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Central Power and Light Company; and the City of Austin, Texas (here-inafter referred to collectively as the Applicants). Other participants in this portion of the proceeding are Citizens Concerned About Nuclear Power, Inc. (CCANP), the only remaining Intervenor, and the NRC Staff. (The State of Texas, an interested State, did not participate in the issues covered by this Decision.)
Central Power and Light Company; and the City of Austin, Texas (here-inafter referred to collectively as the Applicants). Other participants in this portion of the proceeding are Citizens Concerned About Nuclear Power, Inc. (CCANP), the only remaining Intervenor, and the NRC Staff. (The State of Texas, an interested State, did not participate in the issues covered by this Decision.)
The procedural background of this proceeding is set forth extensively in our earlier two decisions and will not be repeated here. We need only reiterate that, in those decisions, we resolved all contested issues except for two aspects of one contention (dealing generally with the adequacy of the design and construction of the STP to withstand hurricanes and hurricane missiles). LBP 84-13,19 NRC 659 (1984) (PID-I), off'd in part, ALAB 799, 21 NRC 360 (1983), review declined by Commission, letter dated July 30,1985; LBP 86-15,23 NRC 595 (1986)(PID-II). In this De-cision, we are granting the Applicants' motion for summary disposition with respect to the unresolved design questions - finding that, with re-spect to portions of three structures which are not designed to withstand wind-driven missiles, the risk of severe damage is so low that the failure to satisfy otherwise applicable design standards may be regarded as de minimls. Accordingly, we are concluding that the STP has been ade-quately designed to withstand hurricanes and hurricane missiles. We are also dismissing that portion of the contention which questions whether the STP has been adequately constructed to withstand hmricanes.
The procedural background of this proceeding is set forth extensively in our earlier two decisions and will not be repeated here. We need only reiterate that, in those decisions, we resolved all contested issues except for two aspects of one contention (dealing generally with the adequacy of the design and construction of the STP to withstand hurricanes and hurricane missiles). LBP 84-13,19 NRC 659 (1984) (PID-I), off'd in part, ALAB 799, 21 NRC 360 (1983), review declined by Commission, {{letter dated|date=July 30, 1985|text=letter dated July 30,1985}}; LBP 86-15,23 NRC 595 (1986)(PID-II). In this De-cision, we are granting the Applicants' motion for summary disposition with respect to the unresolved design questions - finding that, with re-spect to portions of three structures which are not designed to withstand wind-driven missiles, the risk of severe damage is so low that the failure to satisfy otherwise applicable design standards may be regarded as de minimls. Accordingly, we are concluding that the STP has been ade-quately designed to withstand hurricanes and hurricane missiles. We are also dismissing that portion of the contention which questions whether the STP has been adequately constructed to withstand hmricanes.
Finally, we have completed the review which we must give to uncontested matters. We posed questions regarding one aspect of the emergency plan, and the Applicants have provided a satisfactory re-sponse. We accordingly have found no matter warranting our further consideration pursuant to 10 C.F.R. { 2.760s.
Finally, we have completed the review which we must give to uncontested matters. We posed questions regarding one aspect of the emergency plan, and the Applicants have provided a satisfactory re-sponse. We accordingly have found no matter warranting our further consideration pursuant to 10 C.F.R. { 2.760s.
Having concluded our review of all matters before us, we are author-izing the Staff (upon completion of those aspects of review vdthin its re-sponsibilities) to issue licenses permitting fuel loading and low. power op-erations and thereafter (subject to Commission "immediate effectiveness" review) full-power operations. Such licenses are subject to conditions previously imposed by us in our earlier decisions.
Having concluded our review of all matters before us, we are author-izing the Staff (upon completion of those aspects of review vdthin its re-sponsibilities) to issue licenses permitting fuel loading and low. power op-erations and thereafter (subject to Commission "immediate effectiveness" review) full-power operations. Such licenses are subject to conditions previously imposed by us in our earlier decisions.
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Here, we are convinced that the failure of three nonconformmg struc-tures to meet deterministic standards coupled with a likelihood of mammele l
Here, we are convinced that the failure of three nonconformmg struc-tures to meet deterministic standards coupled with a likelihood of mammele l
impact orders of magnitude less than the Wm critenon, and a likely lack of severe damage even if a missile strike were to occur, falls well within the category of risk which the acceptance criterion deems acceptable. Even though it would have been preferable for the Appli-cents to have properly designed the nonconforming structures to resist hurncane and tornado missiles, we view the failure to meet deterministic requirements here as de minimis and not sufficient to warrant redesign to accord with the deterministic requirements.'
impact orders of magnitude less than the Wm critenon, and a likely lack of severe damage even if a missile strike were to occur, falls well within the category of risk which the acceptance criterion deems acceptable. Even though it would have been preferable for the Appli-cents to have properly designed the nonconforming structures to resist hurncane and tornado missiles, we view the failure to meet deterministic requirements here as de minimis and not sufficient to warrant redesign to accord with the deterministic requirements.'
i                                                                                            HL UNCONTESTED MATTERS We have reviewed various unresolved generic issues applicable to STP, as well as other uncontested safety and environmental matters, as required for operating license applications by Louisiana hr and Light Ca (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,111012 (1983), and by Virginia Electric and hr Ca (North Anna Power Station, Units 1 and 2), ALAB-491,8 NRC 245 (1978): We posed questions to the Applicants regarding one matter, concerning the alert and notification system of the emergency plan. See our letter dated July 25,1986, to the Applicants' counsel.
i                                                                                            HL UNCONTESTED MATTERS We have reviewed various unresolved generic issues applicable to STP, as well as other uncontested safety and environmental matters, as required for operating license applications by Louisiana hr and Light Ca (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,111012 (1983), and by Virginia Electric and hr Ca (North Anna Power Station, Units 1 and 2), ALAB-491,8 NRC 245 (1978): We posed questions to the Applicants regarding one matter, concerning the alert and notification system of the emergency plan. See our {{letter dated|date=July 25, 1986|text=letter dated July 25,1986}}, to the Applicants' counsel.
The unresolved generic issues applicable to STP are set forth in Ap-pendix C of the Staff's Safety Evaluation Report, dated April 1986 (NUREG.0781). Taking into account the scope of review appropriate for an uncontested issue in an operating license proceeding, we have exam-ined whether the generic safety issues have been taken into account in a manner that is at least plausible and that, if proven to be of substance,
The unresolved generic issues applicable to STP are set forth in Ap-pendix C of the Staff's Safety Evaluation Report, dated April 1986 (NUREG.0781). Taking into account the scope of review appropriate for an uncontested issue in an operating license proceeding, we have exam-ined whether the generic safety issues have been taken into account in a manner that is at least plausible and that, if proven to be of substance,
!                                                                  would be adequate to justify operation. North Anna, ALAB.491, supra, 8 NRC at 248-49 n.7. We are satisfied that the Staff's review has met that
!                                                                  would be adequate to justify operation. North Anna, ALAB.491, supra, 8 NRC at 248-49 n.7. We are satisfied that the Staff's review has met that
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                                                                                                                                                                                                             }.
                                                                                                                                                                                                             }.
issue pursuant to our authority under 10 C.F.R. I2.760s would n64 be warranted.
issue pursuant to our authority under 10 C.F.R. I2.760s would n64 be warranted.
We have reached a similar conclusion with respect to ot'rer uncontested matters. With respect to the emergency planning Instter raf-erenced above, the Applicants provided responses to our questions by letter dated August 14,1986.8 (CCANP did not offer any comments on the Applicants' response; the Staff (which could file cosaments as late as today), advised us by telephone that it did not intend to do so.) Our                                          ,
We have reached a similar conclusion with respect to ot'rer uncontested matters. With respect to the emergency planning Instter raf-erenced above, the Applicants provided responses to our questions by {{letter dated|date=August 14, 1986|text=letter dated August 14,1986}}.8 (CCANP did not offer any comments on the Applicants' response; the Staff (which could file cosaments as late as today), advised us by telephone that it did not intend to do so.) Our                                          ,
questions had been motivated by our belief that the alerting and notifna-tion provisions of the emergency plan (which relied on a camW==*1r= of sirens and tone-elert radios in some reendencer.) might not have been ado quate to provide effective nighttime alerting in summer (when windows are likely to be closed and air <:onditioning #dquipment is in operation). In response, the Applicants expressed their beleef that the emergency plan sataafled all governing requirements, but thhy volunteered to amend their emergency plan to include tone-elert radios it. every residence veitkn the portions of the Emergency Planning Zone (EPZ) within a 10 tr.Je radius of the plant. Without reaching any conclwlon as to the adequacy of the earlier version of de emergency plan, we hra satisited that, with the de.
questions had been motivated by our belief that the alerting and notifna-tion provisions of the emergency plan (which relied on a camW==*1r= of sirens and tone-elert radios in some reendencer.) might not have been ado quate to provide effective nighttime alerting in summer (when windows are likely to be closed and air <:onditioning #dquipment is in operation). In response, the Applicants expressed their beleef that the emergency plan sataafled all governing requirements, but thhy volunteered to amend their emergency plan to include tone-elert radios it. every residence veitkn the portions of the Emergency Planning Zone (EPZ) within a 10 tr.Je radius of the plant. Without reaching any conclwlon as to the adequacy of the earlier version of de emergency plan, we hra satisited that, with the de.
scribed === art ==ne, the emergency plan adoquetely resolves the Board's
scribed === art ==ne, the emergency plan adoquetely resolves the Board's
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CIVIL PENALTIES: ASSESSMENT Civil pentities are not proposed for Severity Level V violations in the absence of willfulness.
CIVIL PENALTIES: ASSESSMENT Civil pentities are not proposed for Severity Level V violations in the absence of willfulness.
PARTIAL DIRECTOR'S DECISION PURSUANT TO 10 C.F.R. 5 2.206 INTRODUCTION On December 13, 1984, Mozart J. Ratner and Arthur M. Schiller, as Counsel for Vera M. English (Petitioner), filed pursuant to 10 C.F.R.
PARTIAL DIRECTOR'S DECISION PURSUANT TO 10 C.F.R. 5 2.206 INTRODUCTION On December 13, 1984, Mozart J. Ratner and Arthur M. Schiller, as Counsel for Vera M. English (Petitioner), filed pursuant to 10 C.F.R.
I 2.206 a " Motion to Institute Proceeding Pursuant to 10 C.F.R. 9 2.202, for Imposition of Civil Penalties and to Vacate and Reverse Inspection Reports and to Schedule Hearing Thereon." The Petitioner, in part, re-quested the Nuclear Regulatory Commission (NRC) to impose civil pen-alties against the General Electric Company (GE or Licensee) for al-leged serious violations occurring at its Wilmington, North Carolina fuel fabrication facility. Specifically, the Petitioner referred to five NRC in-spection reports and argued that certain conclusions in those reports were in error. The Petitioner requested that the inspection reports be withdrawn and be reissued with the appropriate Notices of Violation and Proposed Imposition of Civil Penalties. The Petitioner also requested that a hearing be scheduled to inquire into these matters. By a letter dated January 10, 1985, the Deputy Director, Office of Inspection and 326 l
I 2.206 a " Motion to Institute Proceeding Pursuant to 10 C.F.R. 9 2.202, for Imposition of Civil Penalties and to Vacate and Reverse Inspection Reports and to Schedule Hearing Thereon." The Petitioner, in part, re-quested the Nuclear Regulatory Commission (NRC) to impose civil pen-alties against the General Electric Company (GE or Licensee) for al-leged serious violations occurring at its Wilmington, North Carolina fuel fabrication facility. Specifically, the Petitioner referred to five NRC in-spection reports and argued that certain conclusions in those reports were in error. The Petitioner requested that the inspection reports be withdrawn and be reissued with the appropriate Notices of Violation and Proposed Imposition of Civil Penalties. The Petitioner also requested that a hearing be scheduled to inquire into these matters. By a {{letter dated|date=January 10, 1985|text=letter dated January 10, 1985}}, the Deputy Director, Office of Inspection and 326 l


Enforcement, informed the Petitioner that her request was being re-viewed by the Office of Inspection and Enforcement and would be re-sponded to by that Office. Consideration of Petitioner's request by the NRC wris also noticed in the Federal Register (50 Fed. Reg. 2634, Jan.
Enforcement, informed the Petitioner that her request was being re-viewed by the Office of Inspection and Enforcement and would be re-sponded to by that Office. Consideration of Petitioner's request by the NRC wris also noticed in the Federal Register (50 Fed. Reg. 2634, Jan.
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,                                    The Petitioner concluded that a violation of 10 C.F.R. I 70.57 oc-curred since the Chemet Laboratory "does not know the metal impurity content in the UO being assayed," and therefore reports only the oxygen-to-uranium ratio. This is not a correct conclusion. Total nonvolatile metallic impurity (TMI) analyses and oxygen-to-uranium ratio (O/U) analyses are performed routinely and independently by dif-t                              ferent groups in the Chemet Lab. The two analyses are combined subse.
,                                    The Petitioner concluded that a violation of 10 C.F.R. I 70.57 oc-curred since the Chemet Laboratory "does not know the metal impurity content in the UO being assayed," and therefore reports only the oxygen-to-uranium ratio. This is not a correct conclusion. Total nonvolatile metallic impurity (TMI) analyses and oxygen-to-uranium ratio (O/U) analyses are performed routinely and independently by dif-t                              ferent groups in the Chemet Lab. The two analyses are combined subse.
quently to obtain a corrected uranium factor, which is used in accord-ance with the Licensee's Fundamental Nuclear Material Control (FNMC) Plan. Consequently, no violation was appropriate.
quently to obtain a corrected uranium factor, which is used in accord-ance with the Licensee's Fundamental Nuclear Material Control (FNMC) Plan. Consequently, no violation was appropriate.
i As a result of a corporate audit review, GE's Product and Quality As-surance Operations raised the issue of not always using the same stand-ards to verify correction of an out-of-control condition. They suggested changes in the GE Nuclear Fuels Manufacturing Department special nu-l                              clear material control program to ensure compliance with l70.57. In a letter dated April 9,1982, to the NRC Fuel Facility Safeguards Licens-i                              ing Branch, GE attempted to clarify its procedures. The NRC consid-ered the clarification unnecessary because GE's FNMC Plan (6 4.0 and
i As a result of a corporate audit review, GE's Product and Quality As-surance Operations raised the issue of not always using the same stand-ards to verify correction of an out-of-control condition. They suggested changes in the GE Nuclear Fuels Manufacturing Department special nu-l                              clear material control program to ensure compliance with l70.57. In a {{letter dated|date=April 9, 1982|text=letter dated April 9,1982}}, to the NRC Fuel Facility Safeguards Licens-i                              ing Branch, GE attempted to clarify its procedures. The NRC consid-ered the clarification unnecessary because GE's FNMC Plan (6 4.0 and
;                                                                              352 i
;                                                                              352 i
l
l
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As a result of this memorandum, NMSS issued License Condition 4.10, effective immediately, by letter to General Electric dated July 20, 1982.
As a result of this memorandum, NMSS issued License Condition 4.10, effective immediately, by letter to General Electric dated July 20, 1982.
The July 20,1982 letter stated that the requirements of License Condi-tion 4.10 should be incorporated into the Licensee's FNMC Plan as soon as practical.
The {{letter dated|date=July 20, 1982|text=July 20,1982 letter}} stated that the requirements of License Condi-tion 4.10 should be incorporated into the Licensee's FNMC Plan as soon as practical.
General Electric submitted to NMSS for approval the revised pages to its FNMC Plan pursuant to 10 C.F.R. I 70.34 on December 9,1983. This submittal occurred after periodic, extensive discussions with NMSS con-cerning the subject matter. The December 9,1983 submittal also ad-dressed the Region II concern originally raised in Inspection Report No.
General Electric submitted to NMSS for approval the revised pages to its FNMC Plan pursuant to 10 C.F.R. I 70.34 on December 9,1983. This submittal occurred after periodic, extensive discussions with NMSS con-cerning the subject matter. The December 9,1983 submittal also ad-dressed the Region II concern originally raised in Inspection Report No.
82-07. The revised pages were approved by NMSS on November 30, 1984.
82-07. The revised pages were approved by NMSS on November 30, 1984.

Latest revision as of 09:23, 5 May 2021

Nuclear Regulatory Commission Issuances for August 1986.Pages 197-396
ML20212K154
Person / Time
Issue date: 02/28/1987
From:
NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V24-N02, NUREG-750, NUREG-750-V24-N2, NUDOCS 8703090229
Download: ML20212K154 (208)
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0703090229 060031 PDR NUHEQ 0700 R PDR

o COMMISSIONERS Lando W. Zech, Jr., Chairman Thomas M. Roberts James K. Asseistine Frederick M. Bernthal Kenneth M. Carr b

Alan S. Rosenthal, Chairman, Atomic Safety and Licensing Appeal Penel B. Paul Cotter, Chairmen, Atomic Safety and Liconeing Board Penel

NUREG-0750 Vol. 24, No. 2 Pages 197-396 NUCLEAR REGULATORY COMMISSION ISSUANCES August 1986 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Ucensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).

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

> U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Technical information and Document Control, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C. 20566 (301/402-8925)

CONTENTS Issuances of the Atomic Safety and Licensias Appeal Bosnis CAROLINA POWER AND LIGHT COMPANY and NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY

. (Shearon listis Nuclear Power Plant) -

Docket 50-400-OL DECISION, ALAB.843, August 15, 19 8 6 ... ............... .. 200 CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al (Perry Nuclear Power Plant, Units I and 2)

Dockets 50-440-OL,50-441-OL MEMORANDUM AND ORDER, ALAB-844, August 18, 1986.. 216 CONSUMERS POWER COMPANY (Midland Plant, Units 1 and 2)

Dockets 50-329 CP, OM&OL, 50-330-CP, OM&OL MEMORANDUM AND ORDER, ALAB 842, August 1, 1986.... 197 PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2)

Dockets 50-352 OL,50-353-OL DECISION, ALAB-845, August 28,1986; .........................220 Issmances of the Atoanie Safety and Licensias Boards FLORIDA POWER AND LIGHT COMPANY (Turkey Point Nuclear Generating Plant, Units 3 and 4)

Dockets 50-250-OLA 3,50 251.OLA 3 (ASLBP No.84-505 08-LA)(Increased Fuel Enrichment)

MEMORANDUM AND ORDER, LBP.86 27, August 25, 1986... 255 GEORGIA POWER COMPANY, et al (Vogtle Electric Generating Plant, Units I and 2)

Dockets 50-424-OL,50-425-OL (ASLBP No. 84-499-01 OL)

PARTIAL INITIAL DECISION, LBP.86 28, August 27, 1986.... 263 til

HOUSTON LIGHTING AND POWER COMPANY, et al.

(South Texas Project, Units 1 and 2)

Dockets STN 50 498-OL, STN 50-499-OL (ASLBP No. 79-421-07-OL)

PARTIAL INITIAL DECISION, LBP-86 29, August 29, 1986.... 295 Issuance of the Administrative Law Judge EDWARD WALLACE (Three Mile Island Nuclear Station, Unit 1)

Docket 50-289 EW (ASLBP No. 86 532-04-SP)

MEMORANDUM AND ORDER TERMINATING PROCEEDING AND REMOVING NOTIFICATION REQUIREMENTS AS TO EDWARD WALLACE, ALJ-86 3, August 19, 19 8 6 .... . .. .. ............... .......... . ........... . . ...... 3 21 Issuance of Director's Decision GENERAL ELECTRIC COMPANY (Wilmington, North Carolina Facility)

Docket 70-1113 PARTIAL DIRECTOR'S DECISION PURSUANT TO 10 C.F.R. I 2.206, DD-8611, August 29, 19 86.... .... ... ............. 3 25 l

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Atomic Safety and i Licensing Appeal Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL l

Alan S. Rosenthat, Chairman l Dr. W. Reed Johnson Thomas S. Moore l

Christine N. Kohl Gary J. Edles l

Dr. Reginald L. Gotchy Howstd A. Wilber

Cite as 24 NRC 197 (1986) ALA8-442 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Alan S. Rosenthal, Chairman Thomas S. Moore in the Matter of Docket Nos. 50 329 CP, OM&OL 50-330 CP, OM&OL CONSUMERS POWER COMPANY (Midland Plant, Units 1 and 2) August 1,1984 Upon information from the applicant that it wishes to withdraw its ap-plication for an extension of the Midland construction permits and for operating licenses for the facility, the Appeal Board, on mootness grounds, withdraws its jurisdiction, retained in the construction permit proceeding, over the issue of the environmental significance of the radon-222 emissions" occasioned by the mining and milling of uranium fuel. The Board also vacates the Licensing Board's partial initial decision on remedial soils issues in the consolidated construction permit modifica-tion and operating license proceeding, the sua sponte review of which the Appeal Board had been holding in abeyance.

APPEARANCES Frederick C. Williaans, Washington, D.C., for the applicant Consumers Power Company.

Joseph Rutberg for the Nuclear Regulatory Commission staff.

I 197 I

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s MEMORANDUM AND ORDER The Consumers Power Company (Consumers) recently advised us that its Board of Directors has recognized that there is "no reasonable possi-bility that the Midland Project could be completed as a nuclear power plant" and, accordingly, has " authorized the abandonment of the nuclear steam supply systems and other unusable components of (that] Project."1 Given this development, Consumers has informed the Director of Nu-clear Reactor Regulation that it wishes to withdraw its applications for an extension of the Midland construction permits and for operating li-censes for the facility.8 It also seeks the termination of all pending NRC adjudicatory proceedings concerned with those permits and licenses.:

For our part, we have before us two matters involving the Midland facility, First, in an opinion issued several years ago in connection with the construction permit proceeding, we retained jurisdiction over the issue of the environmental significance of the redon 222 emissions occa-sioned by the mining and milling of uranium fuel.* Second, because some time ago Consumers halted construction of the Midland facility and presaged the abandonment determination that it has now made, we have been holding in abeyance our review sua sponte of the Licensing Board's partial initial decision last year on remedial soils issues, which were raised in the consolidated construction permit modification and operating license proceeding.*

We agree with the NRC staff that the appropriate course of action in the present circumstances is apparent. On mootness grounds, we now withdmw our retention of jurisdiction over the radon issue presented in the construction permit proceeding.* On the same basis, we vacate the 8 Motion for Terumstion of Appeal Board Junediction (July ll,1944) at 1. We are told that Coneesners contesepleses converting Unit I ao a corobened cycle gas Ared generating stasion.16sd

  • 14 at i.2.
  • 14 at 2.
  • ALAB491,16 NRC 397,909 (1902) As there observed, the redon leeue was then being actively bei.

geted in proceedings involving other nuclear fecahtiesL Laser that year, we decided in those proceedings that the effects on husnee hesith of the annual fuel cycle redon reisease attribuseble to the operethAs of the facihues in question were insufncient to t p the Netsonal Environmental Policy Act ecst-benent bel-ance esmaet such operation. /'Niedelphe KJserree Ca (Peach Bostose Atomes Power station Units 2 and 3h ALAB-701,16 NRC 1517 (1982).11 CLI-83-14,17 NRC 745 (1963A the Commiasson announced that it was defe ring action on a patienna seekk.sg its revsew of ALAB 708 to awat the outcome of a generic

, - .; of certeen ureneuse insil teshnes requienone. As of this dese, the pension remeene pending i before the Cosnaiseson, with the conesquence that we have continued to retain juriedaction over the

, redon issue in the Midlemsf proceeding (among othersh

' See lap.45-2,21 NRC 24 (190$k

'See Tennessee Valley As#Aerver (Hartsville Nuclear Plant, Uests IA and 2Ak ALAB.78),20 NRC 84)

(1944k Tolede Edasse Ca (Devis Besse Nuclear Power seetion Umas 2 and 3h ALAS-422,12 NRC 647 (1990) 190 l

. _ , , - . _ . . _ , . - - -. _ _ - - . . - _ _ . . . . _ _ , , . , , ,_.,__m__- . . - - - , ~ . , -,. _ _ ,, ,_ . _ - - -_~

Licensmg Board's partial initial decision on remedial soils in the consoli-dated construction permit modification and operating license proceed-ing.' This step leaves the Licensing Board free to act upon Consumers' request that it authorize withdrawal of the operating license application and then dismiss the consolidated proceeding.* Before doing so, how-ever, the Board is to determine whether any conditions should be im-posed upon such an authorization and dismissal.'

It is so ORDERED.

FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board

' See Umissef Saetas Deperiment of Kerrgy (Clinch River Breeder Reactor Planth A1.AB-755,18 NRC i

1337 (1983); lang Isisasi Lis4 ting Ca Gamesport Nuclear Power stanon. Units I and 2A ALAB-628.13 NRC 24 (19st).

  • h= pornons of that proceeding are sull before the Licenang Board. Consurners quite property has c.lled upon that Board to termunate it.

'See Clinch Riser, supre note 7; Davis.arme, supre note 6. Needless to say, if dissausrud with it, any party may appeal the Ucenung Board's determunsuon on the quesnon of the need for conditiont l 199 l

I I

Cite as 24 NRC 200 (1986) ALA8-443 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Thomas S. Moore, Chairman Dr. Reginald L Gotchy Howard A.Wilber in the Matter of Docket No. 50-400-OL CAROLINA POWER & LIGHT COMPANY and NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY (Shearon Harris Nuclear Power Plant) August 15,1906 The Appeal Board affirms the Licensing Board's third partial initial decision in this operating license proceeding, LBP-85-49, 22 NRC 899 (1985).

RULES OF PRACTICE: REPRESENTATION A person who is not an attorney cannot represent in NRC licensing proceedings any other individual or any organization in which he does not hold membership.10 C.F.R. f 2.713(b).

RULES OF PRACTICE: STANDING TO APPEAL A party has no standing to raise on appeal possible grievances of other parties that have not perfectM their appeals. See ALAB-837, 23 NRC 525, 543 n.58 (1986); Houston Lighting & Power Ca (Allens Creek Nu-clear Generating Station, Unit No.1), ALAB-631,13 NRC 87,89 (1981);

200

Puget Sound hwr and Light Ca (Skagit Nuclear Power Project, Units 1 and 2), ALAB-556,10 NRC 30,33 (1979). Cf Houston Lighting a hwr Ca (South Texas Project, Units I and 2), ALAB-799,21 NRC 360,383 (1985).

RULES OF PRACTICE: BRIEFS The Commissn's Rules of Practice require that an appellant's brief clearly identify the errors of fact or law that are the subject of the appeal, and that for each issue appealed, the precise portion of the record relied upon in support of the assertion of error be set out.10 C.F.R.

{ 2.762(d)(1). Moreover, the brief must contain sufficient information and cogent argument to alert the other parties and the appellate tribunal to the precise nature of and support for the appellant's claims. See Public Service Ca of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 NRC 775, 805 (1979), scated in part and remanded. CLI-80 8,11 NRC 433 (1980).

RULES OF PRACTICE: BRIEFS In appealing a particular Board ruling,it is not enough for an appellant simply to declare flatly that the ruling was in error. Rather, it is incum-bent on the app;$nt to confront directly the reasons assigned for the challenged ruling ani to identify with particularity the infirmities pur-portedly inherent in those reasons. Duke hwr Ca (Catawba Nuclear Station, Units 1 and 2), ALAB-813,22 NRC 59,84 n.128 (1985).

RULES OF PRACTICE: BRIEPS An appeal that is inadequately briefed is subject to dismissal. See Cleve-land Electric Illuminating Ca (Perry Nuclear Power Plant, Units 1 and 2), ALAB-841,24 NRC 64,69 (1986); Pennsylmnia Pbwr and Light Ca (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-693,16 NRC 952,956 57 (1982).

RULES OF PRACTICE: BRIEFS Issues on appeal that are inadequately briefed are considered waived.

See Cleveland Electric Illuminating Ca (Perry Nuclear Power Plant, Units 1 and 2), ALAB-802,21 NRC 490,4% n.30 (1985); Wisconsin Elec-tric Pbwr Ca (Point Beach Nuclear Plant, Unit 1), ALAB-6%,16 NRC 1245,1255 (1982); Susguchanna,16 NRC at 954-57; Duke Pbwr Ca (Ca-l 201

tawba Nuclear Station, Units I and 2), ALAB-355, 4 NRC 397, 413-14, reconsideration denied ALAB-359,4 NRC 619 (1976).

EMERGENCY PLANS: CONTEST (PROTECTIVE MEASURES)

The Commission's regulations dictate that a range of protective actions be developed for the plume exposure pathway emergency planning zone.

10 C.F.R. f 50.47(b)(10).

REGULATORY GUIDES: APPLICATION The Commission's basic guidance document on emergency planning, NUREG-0654/ FEMA-REP-1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," (Rev.1 November 1980), like the Regulatory Guides, serves as guidance and does not prescribe regulatory require-ments. It simply serves as a method of meeting the applicable regulatory requirements. Philadelphia Electric Ca (Limerick Generating Station, Units I and 2\ ALAB-819,22 NRC 681,710 (1985), review denied, CLI-86-5, 23 NRC 125 (1986); Metropolitan Edison Ca (Three Mile Island Nuclear Station, Unit No.1), ALAB-698,16 NRC 1290,1298-99 (1982),

rev'd in part on other grounds, CLI-83-22,18 NRC 299 (1983).

RULES OF PRACTICE: CONTENTIONS A party is bound by the literal terms of its own contentions. Philadel-phia Electric Ca (Limerick Generating Station, Units 1 and 2), ALAB-836, 23 NRC 479, 505 (1986); id, ALAB-819, 22 NRC 681, 709 (1985).

RULES OF PRACITCE: APPELLATE REVIEW An appeal board will overturn a licensing board's findings of fact only where it is " convinced that the record compels a different result." Niag-ara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2),

ALAB-264,1 NRC 347,357 (1975). See ALAB-837,23 NRC at 531.

RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES It is not the licensing board's function to act as an intervenor's advo-cate and prepare its case.

202

4 APPEARANCES Wells Eddleman, Durham, North Carolina, intervenor pro se.

Homes A. Baxter, Washington, D.C. (with whom John H. O'Neill, Jr.,

Delissa A. Ridgway, and Pamela H. Anderson, Washington, D.C.,

and Richard E. Jones, and Dale E. Hollar, Raleigh, North Caroli-na, were on the brief) for the applicants Carolina Power & Light Company, et al.

Charles A. Barth (with whom Jantee E. Moore and Marjorie U. Roth-schild were on the brief) for the Nuclear Regulatory Commission staff.

DECISION In its third partial initial decision in this operstmg license proceeding, the Licensing Board resolved in the applicants' favor several emergency planning and safety issues.1 One of the several intervenoh in the pro-ceeding,8 Wells Eddleman, now appeals several of the conclusions of that decision. He also seeks to appeal the Licensing Board's rejection of a number of his contentions. For the reasons that follow, we affirm the results reached by the Licensing Board on each of the challenged issues.4 8 See LBP-8549,22 NRC 399 (1985) a See LBP-85-5,21 NRC 410,412-13 (1985).

e Although the Notice of Appeal from LBP-85-49 was signed by four intervenors (John Runkle, coun-set for the Conservanon Council of North Carolina (CCNC); Dr. Richard Wilson, pro se: Daniel F.

Reed Prendent of the Chapel Hill Anti-Nuclear Group Effort (CHANGE); and Wells Eddleman, pro se and as jcnnt intervenor), only one appellate brief was filed and it was signed by Mr. Eddleman alone.

Thus, despite Mr. Eddleman's representation on the first page of the brief that several intervenors have appealed, we reject Mr. Eddleman's attempts to appeal the rejection of contennons that were sponsored i

solely by other parties. n-c== Mr. Eddleman is not sa attorney he cannot represent any other individ-7 unl or any organiaanon in which he does not hold membership, see 10 C.F.R. I 2.713(b), and be has no l standing to rane before us posuble grievances of other parties that have not perfected their appeals. See ALAB-837.13 NRC 525,543 n.58 (1986); &usson Lir4 ring d her Ca (Allens Creek Nuclear Generat-I ing Station. Unit No. Ih ALAB431.13 NRC 87. 89 (198th Anger Somad her and Liger Ca (Skagit

' Nuclear Power Project, Units 1 and 2k ALAB-556,10 NRC 3(A 33 (1979). Cf Houssos Lir4rmg a her Ca (South Texas Project, Units I and 2), ALAB-799,21 NRC 340,383 (1985). Hence, we denuss Mr.

Eddleman's attempt to appeal the Licensing Board's rejection of CHANGE contentions 4. 9,20,21,23 and 33, and Wilson contentions 1. 3. 4, 5(b), (c), (d) and (e). We hkewise disnuss Mr. Eddleman's at-tempt to appeal the lacensing Board's ruling recasting Emergency Planning jome contenuon I, because he did not =paaaar that contention.

  • In ALAB-837,23 NRC $25 (1986), we affirmed the Licensmg Board's first partaal intial decision on environmental issues.

M .

i l

. . . . . ~ . - __ - -

Before turning to the various claims of error, a brief comment about the intervenor's appellate papers is in order. The Commission's Rules of Practice require that an appellant's brief clearly identify the errors of fact or law that are the subject of the appeal, and that for each issue ap-pealed, the precise portion of the record relied upon in support of the i assertion of error be set out.' Moreover, the brief must contain sumcient information and cogent argument to alert the other parties and the appel-late tribunal to the precise nature of and support for the appellant's claims.'

A party's failure to brief adequately its claims of error ler.ves the other parties in the dark as to how to respond properly and niakes appellate review dimcult, if not impossible. Unfortunately, this is precisely the situation we face here. Mr. Eddleman's "brief" is far from a model of clarity. In only nine pages, he asserts claims of error regarding, inter alia, dozens of separate contentions involving numerous Licensing Board rul-ings.7 From this fact alone, it is obvious that his assertions of error cannot possibly be adequately briefed. Many of his claims consist oflittle more than bald assertions that the Licensing Board erred, wit,hout any t

explanation or argument as to how or why the particular decision is wrong. As we have said before, "it is not enough simply to declare flatly .

that a particular Board ruling was in error. Rather, it is incumbent upon the appellant to confront directly the reasons assigned for the challenged ruling and to identify with particularity the infirmities purportedly inher-ent in those reasons."s Similarly, Mr. Eddleman's briefis noticeably lack-ing in appropriate and necessary citations to the decisions in question and the evidentiary record.' In the circumstances, we would be fully justified in dismissing the entire appeal.10 Rather than take that step, however, we have attempted to review those of Mr. Eddleman's claims that make

  • 10 C.F.R. I 2.762(d)(1).
  • See #bMk Servoer Ca of OUshoais (Black Fox stanos Units I and 2), ALAB-573,10 NRC 775,805 (1979), usessed in part sad ressended. CLI-80 8,11 NRC 433 (1900).

' Mr. Eddlemas =M in keeping his bnef under ten pages by fahag to comply with the require.

meats of 10 CF.R. I 2.700(b) that all documents Aled in an adjudication must be typed C ,:

wtth mergus of not less than one and one<guarter iactes. While the Grst two pages and the Gaal para-l graph on the last page of Mr. Eddleman's bnef comply with the regulation, the rest of his brief does not.

l Had Mr. Eddlemas complied fully with sectica 2.70s, his bnef mismost certmaly would have exceeded ten pages la length. Hence, we And dmagenuous the stateteent that [a] table of contents etc. is not required for bnefs 10 pages long,10 CFR 2.762(c)." Eddleman Brief(January 30,1986) at 2.

e p,&,3,uve Ca (Catawba Nuclear station, Units I and 2), ALAB-813,22 NRC 59, s4 n.128 (1985).

l

  • See supre note 5.

Ssv Clovised Elsernie Illusmusmar Ca (Perry Nuclear Power Plant, Units I and 2), ALAB-841,24 NRC 64,69 (1996); /Waarphemis An,vr sad Lir4r Ca (Susquehanna steam Electnc Station, Units I and 2k ALAB-693,16 NRC 952,956 57 (1982).

204 i

1

_ _ _ _ . _ . . ._ _ . . _ _ _ __ _ _ __ ._. . _=

caough sense so as to allow their disposition. All other claims are consid-ered waived.81 4

L EMERGENCY PLANNING The Commienson's regulations dictate that "[a] range of protective ac-tions" be developed for the plume exposure pathway emergency plan-ning zone (EPZ).88 One of the protective actions available during a re-diological emergency is sheltering. The Comminainn's basic guidance document on emergency planning, NUREO.0654/ FEMA REP-1,ts pro.

vides that emergency plans should include "[t]he bases for the choice of rec- '- H=' protective actions from the plume exposure pathway during emergency conditions. This shall include expected local protec-tion afforded in residential units or other shelter for direct and inhalation exposure . . . ."14 In an attempt to comply with this . kl ce and the Comminason's res-ulations, the applicants undertook a survey of the protection factors af-forded by the types of housing prevalent in the plume EPZ.as This review, however, did not address the protection factors afforded by typi-cal institutional structures (schools, houses of worship, etc.), co z .ekil structures, and industrial facilities in the EPZ, presumably because such buildings constitute only about twenty percent of the structures in the area.88 The Licensing Board determined that given the size of such i

~

buildings they could house far more than twenty percent of the plume EPZ population at the time of a radiological emergency.87 Thus, the Li- -

88 Jer Cirsedend Klartric Illumnessas Ca (Perry Nuclear Power Plant. Uniss I and 21 A1Aa 802. 21 NRC 460,496 a.30 (1985k rheense KJerrrie FWest Ca (Point assch Nacient Plant Uma Ik ALAa.496, 16 NRC 1245,1255 (IM2k - . _16 NRC at 954-57; Duke Jbuer Ca (Casawba Nacimer station, Units I sad 2), ALAa 355,4 NRC 397,41314, munddssedes 4meisd ALAa 339,4 NRC 419 (1976).

10 C.F.R. { $(L47(b)(10k is-Criieria for Preparamon sad Evalunnan of =_ _
  • Emerssacy ma r==== Plans and Prepared.

meus in support of Nuclear Power Planta," (Rev. I. November 1900) (heranener referred to as "NURE04654'1 NURE04654,like the Resulasory ouides, serves as sedance and does not prescribe resulosory requireemenet It saply serves as a asethod of meetins the appbcable resulatory respurmasmet i 71bsinds4u6ae Elsesric Ca (lieerick Generenas taania= Unies I and 2), ALAa.819,22 NRC 601,710 i

(1985), revere demisd CLI-845,23 NRC 123 (1906h Neospedisse Edisse Ca (flirse Mile Island Nuclear '

i

' **=*'a= Unit No. IA ALAa-498,16 NRC 129th 1296-99 (1982), rev'd in part es ember geveunds CLI.83 22, .

18 NRC 299 (1983).

Evan=an'a= Criesrice J.10.m., NURE04654 at 64 (faa==ana caussed).

    • The shehenas eNectivenes of a structure is measured in terans of its protecteos factor. The PF is the ratio of the =W does cueide the structure to the done imoide. It indsceses the desrae to which a structure would aSord prosecnon hoss a rahatson reissne is compenson with no shelter at all lap.8$.

49,22 NRC at 903.

    • 3se Applicanas* Motion .for Summmary Dupoetion of Eddleman Comeennon $7 C.10 (3aamary 14, 1905% Affidavit of Robert O. aleck, Attachaient 4.

i 8' Memorendues arid order (Rulins on B =======s Summary Dispoemas Motices)(April 24, IMS) at 7.

l $

f '

g I ,

e i i

l

a censing Board admitted Eddleman contention 57-C-10 for litigation, but confined the hearing on the contention to one issue: the adequacy of the applicants' review of sheltering afforded by non-residential structure's in the EPZ.88 After the hearing on the contention, the Licensing Board found that a satisfactory survey of the protection factors of institutioisal, commercial and industrial structures in the Shearon Harris EPZ had been conducted; that a " range" of protection factors for representative structures had been obtained; that the North Carolina Division of Emergency Manage-ment had accepted the applicants' results; and that the emergency re-sponse plan "will be amended to reflect the results of the survey and to include an analysis of the level of protection from radiation releases af-forded by representative commercial, institutional and industrial struc-tures in the Harris EPZ . . . ."** The Board also found that the appli-cants' evidence in support of their proposed findings had not been im-peached, except in some " minor respects."8' On appeal, Mr. Eddleman does not question the adequacy of the appli-cants' survey. He asserts that the Licensing Board erred in not requiring

?

the protection factor data garnered as a result of the applicants' survey to be placed in the emergency plan. As best we can understand it, Mr.

Eddleman's position is that NUREG-0654 dictates that the plan must in-clude the actual protection factors typical of structures within the EPZ, as opposed to the " range" of protection factors described in the Licens.

ing Board's findings. For support, Mr. Eddleman simply refers us to sev-3 1

eral of his proposed findings and several pages of the hearing transcript.

He also cites, without more, GUARD F. NRC for the proposition that the deference due an agency's interpretation ofits own regulation "is ap-propriate only so long as the agency's interpretation does no violence to the plain meaning of the provision"in question.81 In addressing Mr. Eddleman's concern, the Licensing Board pointed i

out that is swia-== consention 57-C.10L as ongenally admutted try the 1,6cenesag Board, stated in pernment part:

"The sense Flas provides no useful analyses or infonnanon on sheltenng effecoveness . . The Plan does not cosmply with Evalussion Cntenon J.10st of NUREo454, which calls for 'espected local protection factors in r===d*=*=1 units or other shelter for direct and inhalanon esposure . ,. '" LBP-854,22 NRC at 902.

'*14 at 90L 8814 at904, s 753 F.2d lied, lies-49 (D C. Cir.1985).

206 f

- -- ..-.--e- ..-- - - . , , , .- - - - -- , ~, . , , , .,-,,-,-. , - - - , - - . - , . - - - - - - . - - ,

I

[t]he purpose (of sheltenns survey inforinaha=] is to allow planners to make in-forined, but relatively groes, judgments about sheltering in the EPZ as a whole, or large segments of the EPZ, wherever people happen to be at the time Its purpose is not to assist decimonmakers in docubag whether to move people, e.g., from wood tmMiars to brick buildings, seeking to mammune sheltering protection. Thus, what t,he decisionmakers need is a menaceable set of reasonable estimates, not a finely tuned and detailed mass of data.

This conclusion was based on testimony of John C. Heard, Jr., an expert witness appearing on behalf of the Federal Emergency Management Agency (FEMA). Among other things, Mr. Heard testified that "[y]ou can't run an evacuation or a protective action process in large sectors by earmarking one :-ctor as having better protection so we will leave them alone;" and "it is never intended to move people from their hemes into better protected buildings within the 10-mile EPZ."88 In light of this tes-timony, we can find no fault with the Licensing Board's finding that

! "merely provid[ing] low- and high-range [ protection factor) data on vari-i cus categories of buildings" is sufficient to comply with the regula-tions.8* Mr. Eddleman has not directed our attention to anything in the record that would tend to contradict Mr. Heard's testimony and support the position. that using ranges of prot'ection afforded by structures in the EPZ does not satisfy NUREG-0654, and hence the Commission's emer-gency planning regulations. s Furthermore, the very wording of Crite-rion J.10.m (on which contention 57-C-10 is apparently based) confirms that the use of the applicants' summaries of protection factors is satisfac-tory, for they do, in fact, inform the decisionmakers of the " expected local protection afforded" in structures within the EPZ. Thus, Mr.

Eddleman's citation to GUARD F. NRC does not avail him.88 The Li-censing Board's conclusion that the applicants have met their burden with respect to Eddleman contention 57-C-10 is affirmed.

IL FIRE PROTECTION i

A. The Licensing Board also admitted for litigation Eddleman con-tention 116, which challenged various aspects of the applicants' fire pro-as 14 at 906 (citauon omitted; emphases in onginal).

as Tr. 8155 56.

t 9P-85-49,22 NRC at 907.

as Mr. Eddlemas cites several poses of the transcnpt (Tr. 8537, 8139 40, 8142-44, 8146 48)for support.

We have reywwed these and rmd nothing in them that bnngs the Lacensing Board decasion into ques.

tion.

[

to addition. NUREo4654 is not a regulanon and hence, the general pnnciple v.-,--

  • in the GUARD decision, and cited here by Mr. Eddleman, is not apphceble in these circumstances. See sure note 13.

207 i

tection system.8' Among other things, this contention averred that "[ijn establishing fire r==ia*= ace ratings of fire barners with respect to fire in cable trays, Applicants have not established that qualincation tests repre-sent actual plant conditions or comparable conditions."88 The Licensing

, Board specincally found, however, that "the qualification methods to be used by the Applicants represent equivalent or more rigorous tests of cable tray Are barners than would be experienced under actual plant -

conditions."88 On appeal, Mr. Eddleman does not dispute this finding. Rather, he complains of what he describes as the Licensing Board's =aa~p-= of promises and future inspections with regard to fire protection.no What Mr. Eddleman is apparently referring to is the Board's finding that each

, cable tray fire barrier will be tested "by an iW==t laboratory on a

' generic

  • assembly of that Are barner, and [that) installation of that bar-rier will be done in eccad ce with the recommendations of the testing laboratory to ensure that the actual barner has the same configuratica as the test mesannbly.":1 Mr. Eddleman contends that the Board here

' impernussibly allowed the testing of the fire barners to be performed after the hearmg "instead of requiring data on the test results."88 For support, he cites to Commission and Appeal Board decisions that teach that post-hearing resolution of issues should be employed sparingly and only in clear cases.:a Mr. Eddleman's argument is groundless, for as the applicants and the NRC staff indicate, there is nothing of this aspect of contention !!6 left for post-hearing resolution. Mr. Eddleman is bound by the literal terms i

of his own contention,84 and here the issue did not deal with the ade-quacy of testing or test data, but only concerned whether the qualifica-tion tests to be used with respect to cable tray fire barners " represent actual plant conditions or comparable conditions." The Licensing Board directly answered this question. It made specific findings, which are fully s'The basic purposes of a Are proesction prosram for a nuclear power plant are to ensure that, in the event of a fire, the reactor can be shut down safsfy and smaastained in that

  • and to control redecoctive retenses to the en.'. - 3er 10 C.F.R. Part 30, Appends: A, oemeral Damien Cneerion 3, and Appsodis R; LaF-85-49,22 NRC at 987; Eherly/Ferguson, Tr. foL 464 at 4 7.

se lap-85-49,22 NRC at 916 se1d at 919.

se s.a.sh arief at 7.

s' lap 45-49,22 NRC at 989.

se y,s.n==== anaf at 7.

es Mr. M1==== ciess --h Edhse Ca e/New York (Indian Point Station, Unit No. 2h CLI.74 23,7 AEC 947,95132 (1974) and famiasms hear sad 44 48 Ca (Waterfbrd Stamma Electric Session, Umst 3h ALAa-732,17 NRC 1076,110.1(1981).

s. m,g, gag, gg,,,,ic Ca (Linsensk Generanne Session, Unies I and 2), ALAa 436,23 NRC 479. 305 (1996);id. ALAB-819,22 NRC 68I,709 (1983).

M 1

i

.f

. - . - - , . . . -,- - _ . - . - .--..----.,--.---,--.,-1.-- - . - ----,.-.-.--,-.m - - - - - . _ _ + - - , . - - - -y - - , -,, --,--.w-- , . . - _ , -r--w.- . - -

r-supported by the record, concerning the quahfication conditions for fire bemers. Testimony revealed that the tests to deternune fire resistance ratings of the Shearon Hams fire bamers are conducted according to standard testing procedures approved by organizations such as Under-writers Laboratories.** The Board found that the fire bemers are quali-fled by an exposure fire " based on a senadard, empirically derived time-temperature curve" which " represents a worst-case exposure Are."*8 Ac-cordingly, the Board found that a fire bamer tested under those condi-tions "will resist a fire from the maximum calculated combustible loading in any fire area in the (Shearon Harris] power block."87 Thus it is clear that this issue was correctly resolved by the Licensmg Board.se

- B. Another part of Eddleman contention 116 is directed at the appli-cants' treatment in the Final Safety Analysis Report (FSAR) of the con-sequences of the spread of a fire at Shearon Harris. "Ihe contention al-eged that "the ' analysis' of what happens if the fire spreads is generally a rationahzation that it can't spread much, not an analysis."** In address-ing tNs issue, the Licensmg Board agreed with the NRC staff's assess-ment that, if the proper fire bamers and detection and exda="3ahiag equipment are provided, there will be no spreadmg of fire.** Addition-ally, the Board found that the applicants' analysis would enable them to know what the effect would be, should a fire spread.*

  • On appeal Mr. Eddleman complains of the Licensmg Board's "ap-proval" of the applicants' analysis of the effects of fire spreading from one fire area to another. He claims that "without analysis of what equip-ment will be knocked out in a spreading fire . . . the [ applicants'] analy-sis cannot be adequate."*8 Mr. Eddleman's complaint is without merit. As noted above, the Li-censing Board explicitly found that the applicants' analysis of fire haz-ards is sufficient to analyze the impact of fire spreading to an adjacent s* serbanseca. Tr. fol. 4254, at B-9.

L5P 85-49,22 NRC at 919. See Serbanescu Tr. fol. 4254, et 141 t; Tr. 4526, deseos,466648.

av Lgy.45-49,22 NRC at 919. See Serbansecu Tr. fol. 4254, at ll.

se Although it is not entirely clear that Mr. Eddlenian's argunnent is a challenge to the Lacenmas Board's factual Andings on tius insias, to the essent it is we note that we wdl overturn a licenmag board's Andings of fact only where "we are convinced that the record conspels a dsNorent result." Niagers Mohawk #buer Corf. (Nine Mile Point Nuclear station, Unit 21 ALAB-264,1 NRC 347,357 (1975). See ALAS-437,23 NRC at $31.

LDP.45-49,22 NRC at 916.

    • Pire and sanoke detectors serve to provide tunely warning to personnel The une of synnkler syssenes is the pnacipal ananas of mutigating the efects of Sres at the plant. Ed at 922. In addition, a backup nianent Arenghting capah la.y wdl be provided in the forni of trened Are bngades, which wdl coasset or a annunum of Ave people on each plant stun. LBP.85-49,22 NRC at 923.

14

  • e Eddleman Bnef at 7.

209

9 fire area, should that occur. This conclusion is amply supported by the record. The Shearon Harris plant is divided into a number of " Fire Areas." These were established based on the nature of occupancy of that part of the plant, the amount and distribution of combustible materials within the area, and the location of safety-related systems and equip-ment.*: Further, the applicants' Safe Shutdown Analysis describes the equipment needed to achieve a safe shutdown, the Fire Areas where these systems are located, and the type of protection provided in each location.** Thus, contrary to Mr. Eddleman's assertion, the applicants have adequately analyzed the effects of fire on safe shutdown equipment.

Equally important is Mr. Eddleman's failure to challenge the Board's findings or the record relied on by the Board. For example, Mr.

Eddleman criticizes the staff's position that, if its guidelines concerning fire barriers, extinguishment and detection are met, the spreading of fire will be prevented; yet at no point has Mr. Eddleman postulated a fire spreading scenario that would call into question the Shearon Harris fire protection program. We need not rehash all the additional record sup-port for the Licensing Board's findings here. Suffice it to say that we have reviewed the record and find no cause for overturning the Licens.

ing Board's conclusions regarding the adequacy of the applicants' Fire Hazards Analysis.**

IH. PIPE HANGER WELDS Eddleman contention 41 states: " Applicants' QA/QC program fails to assure that safety-related equipment is properly inspected (e.g., the

  • ** sert mc Tr. rol. 4254. at is
    • 3ee Appucants Enh. 7. " safe sheldows Analyus sumunary and Desenption [ott Fire Protectme"

' (orissantly subausted in a letter from A.B. Cutter. Vice Premdent. Nuclear F . & Licensing.

Carohna Power a IJght Co. to KR. Denton, Director. Nuclear Reactor Regulation (June 12.19H));

Apphcants Enh. 6. Final safety Analyus Report asction 9.5.1 and Appendix 9.5A Fire Protection syntent

    • Mr. Eddleman also seeks to challenge the Uceanng Board's rejectaan of several of his proposed And-ings on the Are protecnon issue As to the bulk of these propoemd Andings he provides no argument at all as to how the Doord erred. With respect to has propceed Andags 16 21. they commet of aDeganons about certain matenal having been ometted from the TSAR. In rejecung these. the Board concluded that, because "the smaserial in question was placed in the record at the heanng." any earher coussions were irrelevant. LBP 85-49, 22 NRC at 925. on appeal. Mr. swen.=aa openes that " omission of [the}

masenal [in q=ahna) bears on the trustworthiness of Apphcants and the thoroughness of ther analyus."

and that "[t]his is sign Acant la light of the prommes and analyms the Board has accepted." Eddleman Brief at 7.

Contrary to Mr. Eddleinen's assernoms, however, the Licenmag Board did not improperly leave any metters regarthag the applicants' Are protecnon synem for later resolution. Moreover, aside front the fact that the "trustworthemens" of the applicants was not among the issues raised in Eddlenian cor.tennon 116, we fail to ese how the esclusion of some matenal fross the FsAR would impuso the applicants' character

, 210

'OK' tagging of defective pipe hanger welds at [Shearon Harris])."** In admitting the contention, the Licensing Board limited it "to Mr .

Eddleman's only specified concern 'that there exist defective hanger welds that have been improperly inspected and approved.'"** The inter-venor has not challenged this limitation.

The Licensing Board found that the applicants had suffered through several years of problems relating to pipe hanger welding, but that they had successfully taken actions to correct these problems. Thus, the Board concluded that although "[t]his contention may have had merit when it was initially raised [,] . . remedial actions have averted a possi-ble breakdown in quality construction." Furthermore, the Board found '

that "[n]o uncorrected errors that would affect safe plant operation were identified in this proceeding."*e On appeal, Mr. Eddleman now asserts that the Board approved a pipe hanger welding program riddled with errors and administrative manage-ment failures based on mere promises to comply. For support, Mr.

Eddleman refers us to our Shoreham decision ** for the proposition that "a promise to comply is not enough."**

This argument misses the mark. In the first place, Mr. Eddleman has not directed our attention to anything in the record that would indicate that the applicants' program is currently " riddled with errors." Instead, he simply asks us to consider his proposed findings. By so doing, Mr.

Eddleman has failed to elucidate what he believes is wrong with the de-cision below, and what evidence he relies on for his position. As we have indicated in the past, this will not do.** Furthermore, the Licensing Board's conclusion is not based on " promises to comply," but rather, on record evidence of actions that have already "been demonstrated to be effective."*8 Based on Mr. Eddleman's failure to cite any evidence that would support his assertion on appeal, and our review of the record, we conclude that the Licensing Board reached the correct determination with regard to Eddleman contention 41.

    • Lar 85 49,22 NRC at 926.
    • 14
    • Id at 930.
    • Long Idead Lig4ang Ca (sho chama Nuclear Power Station. Unit 1) ALAB.788. 20 NRC 1102,1846 (1984).

" Eddleman Brwf at 8.

s 3,,,,,,e pp. 20445. See also Adsch For.10 NRC at 40546: 1%else Senece Electne and Gas Ca (Hope Creek oenerating station. Units I and 2k ALAB-394. 5 NRC 769. 770 (1977). Moreover, we have re-viewed Mr. Eddlevnan's propoemd riadangs and agree with the Licenseg Board that they do httle more than repeat the history of the applicants' probleans with pipe hanger welds. Ser LBP 85 49,22 NRC at 929.

88 Id at 929 30. See seserelly id at 927 29; Nevdl. er el. Tr. fol. 6663. Tr. 6610 71,704143.

211 r

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1 IV, STEAM GENERATOR TUBE FAILURE Mr. Eddleman next appeals the Licensing Board's conclusions on joint intervenors' contention VII(4).ss The issue raised by that contention is whether the applicants were required to consider multiple tube failure in their steam generator tube failure analysis.** The Licensing Board found the applicants' analysis of tube failure to be adequate. More specifically, it found the likelihood of multiple tube failure to be so small as not to warrant an analysis of such an occurrence.ss On appeal, Mr. Eddleman contends that the Board did not adequately justify its decision. He also asserts that "the probability of such events would be in the range of other events analyzed."** Both arguments are clearly without merit.

All direct evidence on this issue was presented by the applicants and the NRC staff.sv Based on this evidence, the Licensing Board found that the likelihood of a steam generator tube rupture at the Harris plant was about one rupture every 45 years. It further found this number to be conservative, based on the fact that the causes of the five known tube ruptures in Westinghouse steam generators using Inconel tubes - stress corrosion cracking, denting, and loo e foreign objects in the system -

have either been eliminated or mitigated by subsequent developments.

With these changes factored into the analysis, the probability of a single tube failure at Shearon Harris drops to about one in 120 years. The Board also noted that no multiple tube failure has ever occurred. Finally, the Board relied upon a Westinghouse analytical model that predicted

. the expected frequency of multiple tube failure to be approximately one in 14,000 plant-years.es Based on these findings, the Licensmg Board found no reason to require analysis of multiple tube failure.

It is thus apparent that the Licensing Board did indeed " justify" its de-cision.** In light of the evidence supporting the Board's findings and Mr.

Eddleman's failure to cite anything in the record that would call those

" The comem o. eu,ar-ded . one-sur =r-ed =peremiy i,y ur. Eddianen and l CHANGE. See LBP-s2-Il9A. le NRC 2069,2075 7s a a.Il (19s2)

    • De rest of Janet VH wasa=y==d of1,y sospulemon and summiary depoestba. LBP.sS-49, 22 NRC at 93132. Mr. Eddleman is not appenhas the sumunary . rulems.

88 Id as 934-33. For a semeral dincueman of seemse generasor tube failure see frurensur assesric Jbuer Ca (Poest Beach Nuclear Plant. tJames I and 2h ALAB-739, is NRC 335 (19s3)

" Eddleman Brief at 9.

er $se Hitchier. Tr. foL 4012 Marsh and comrad. Tr. fol. 4876.

" lap.IS-49. 22 NRC at 932 33.

" The Licemens Board also hilly answered the intervenors' argumenes rammed in ther propoemd Andings.

LBP-sS-49. 22 NRC at 933-34.

212

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Andings into question, we conclude that there is no merit to Mr.

Eddleman's assertions on appeal. The Licensing Board's conclusion re-l garding joint contention VII(4), therefore, is amtmed.

V. EMPLOYEE HARASSMENT Mr. Eddleman's next assertion of error concerns the Licensing Board's rilamitasal of his contention 41 G. That late-Aled contention was based on an amdavit of Chan Van Vo, a former employee of one of the appli-cants, who alleged that he was harassed, and eventually fired, for raising construction related safety concerns at the Shenron Harns plant. As ad-mitted, the contention read: "Chan Van Vo was placed on probation and later termmated from his job with [ Carolina Power & Light Com- i pany] because he had sought to raise nuclear safety concerns about the Harns facility, as he alleges, and not hee'=nne of poor job performance, as CP&L alleges."**

In admitting contention 410, the Licensing Board determined that a

- balancing of the five criteria by which a late-Aled contention must be judged tilted in favor of admitting the contention in this narrowed form.88 Later, however, the Board reconsidered its analysis admitting the contention aAer learning that Chan Van Vo's counsel could not war-rent that his client would be available as a witness in the beenna that had been scheduled on contention 41-G.'8 The Board found Chan Van Vo's availability as a witness to be crucial to any heanns on the conten-tion, because the contention " speaks directly to the unique personal expe-rience, including the subjective reactions, of a single individual - Chan Van Vo."** It found that the third of the Ave factors, the ability of the a omne agm., Mr. sediaman he shiisd to provide any enemi m. to um umasing ased dommi or en rumord. Aeoordingly, we samply could have considend stus etsim to be waived. .fse aqpre pp. 3DNIS.

We chsee to address the else bessume it purportedy sysshe to ces of the issues that the Lissamms enerd resolved on the ausries, and bessume the imeerwmor did sense, albot in a minimal thshism, what he behoved to be wreas with the ruling below (i.e he did nos simply sense "the 8 % amard erved.").

This should not be taken as an indacasise of our assepeamre of sush bare home brts8mg.

i

    • Mamersedue sad order (Rulleg ce Certain smisty Ph and other Memore) pensary 14, 19ss) et 3.

a As ornemmuy proposed. - 410 ausged the esisammee of a gameral poners of bannsmaat of remag genney amaremos and genaisy comirei commerne a shonron Harvta, and muely ciend to perooms of the ches van va aedsvit as easseples of the ausged harassmaat. The Ussamme amerd con-cluded that the Ave crearia of 10 c.F.R. 91714(e) weghed nesisse admemon of comesmeise 4143 in its ortgemal form. AAer marrowtag the soops of the - however, the soard doesrunimod that the Ave Anster emelysis favored its adenessissL .See ad at 2 3.

-l a notert ound appmaaily eceing as comment set Chan Yea Vo and one of the other imeervemon la this maner. .See Tr. 7639, 7732.

a Memoremdum and order (Dionnenes heersretrue r Comesresas Alleged Heresament of Former Bas-pioyee and Rejecting Emergsacy Piemmes t'-) Quae 12.19st) et S.

213 I

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. - - - - - ,. - - . . - - ~ . - ,--.----._w, . . _ _ - _ . - , . _ _ ,-,,,,,n.-----_.--=,_-, -__, , , - - - . _ - - - - -n, . .. - . ,..

late-filing party to contribute to the record, had " changed dramatically against the Intervenors because they cannot produce the person they once recognized as their chief witness. This means . . . that further liti-gation of Contention 410 would never get to the heart of that conten-tion and would result only in wasted time and resources."** The Board, therefore, dismissed the contention.

On appeal, Mr. Eddleman contends that the Licensing Board erred in dismissing the contention in that (1) the dismissal was based on "a factor not even noted in the decision admitting" the contention (presumably, the presence of Chan Van Vo at the hearing), and (2) the Board took no steps to compel this witness' attendance.

Mr. Eddleman's arguments are without foundation. In originally ad.

dressing the five lateness factors, Mr. Eddleman acknowledged the im-portance of Chan Van Vo's ability to appear. He made it clear to the

, Board that the third factor was met because he could present Chan Van Vo as a witness.** Moreover, while the Licensing Board's order admit.

ting the contention did not explicitly mention that this witness' presence at any hearing was crucial to its decision to admit Eddleman 410, it is clear from the Board's order that this was the case. In narrowing the contention from a broad allegation of harassment at Shearon Harris to a specific allesc. tion regarding the treatment of Chan Van Vo, the Board stated: "This contention should be understood as focusing on the rea-sons particular personnel actions were taken against a particular individ-ual. The parties' attention should focus on particular incidents alleged in the Van Vo affidavit."** Manifestly, such a specific contention, narrowly trilored to address one person's experiences and impressions, could not be adequately litigated without that person's availability for cross-exami-nation."

n u ot a a sediesen nr f at 2.

" See, eg.. Tr. 3738 ("Mr. Van Vo is avealable. and he is available reasonably promptly . . [a]nd I would be prepared to put hun on as a witness on these things."); Tr. $742 ("Mr. Van Vo. according to his counsel. ts willes to appear . . . . He is avealable and has direct knowledge of these matten as stened 6e has afHdevet, so I tlunk se to having a witness, we are okay."); Tr. $743 ("Sence (Chen Yen Vo]

would be my witness. 64 doesn't depend much on my abehty to cross, et just depends on my abahty to put hun on."k Tr. 3744 ("And my participenas then would be beescelly just to get (Chan Van Vo]in here and seeke him evadable to bnns out has aformation . . . ."),

se Mesmorandum and order (3enuary 14.1983) et 4.

"l'urther. Mr. Eddleman's argument that "(i]t was never stated thes Van Vo would not appear" (Edd-lemen Brief et 2)is fnvolous and ignores the remrd of the Licesmas Board's efforts to schedule a heer-ing on contention 410. Chen Van Vo's counsel clearly stated to the Board that he could not guerentee that his chent woukt be svedable as a waness on the date that had been set for the beenns. Neither did Mr. EJdlesnan or Chen Van Vo's counsel ever suggest en eherneuve date for the beenng at whach the witases could appew. Indeed. Chen Van Vo's counsel argued that the heenng should proceed without has c!wne's appserence as a witness. See Tr. 7732. 7745-48. 7750w51.

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Contrary to Mr. Eddleman's view, the Licensing Board had no inde-pendent obligation to " compel" Chan Van Vo's appearance. Had he so wished, Mr. Eddleman could have requested that the Licensing Board

- issue a subpoena compelling this witness' attendance. Mr. Eddleman did not do so. It is not the Licensing Board's function to act as an inter-venor's advocate and prepare his case. The Board's decision disnussmg contention 41-0 is, therefore, anirmed."

We have conducted our customary Sua Sponte review of the decision and have found no errors requiring correction. For the foregoing rea-sons, the Licensing Board's third partial initial decision, LBP-85-49, 22 NRC 899, is affirmed.

It is so ORDERED.

FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board i

'e See i0 CF R l 2.72ct

'8 Mr. Eddisman niso compleses of the Lacenaang Board's threshold demussel of his emergency plannsas esercise (EPX) contennons 4,9.10 and 11. The ,. -- ,emergency planning esercus required by 10 CF.R. Part 30, Appendas E. IIV F. was conducted for the Shamron Hams facdary on May 17 18, 1985.

on September 3(k Mr. Eddismen proffered twelve bened on the esercise. The Licenaams Board adsutted two and rejected the romaanmg ten because they fhaled to allege fundamental flows web the o#ute emergency response plan. on appeal. Mr. Eddlesman asserts that because thee - had not adopted the "fundansental now" standasd. the Licenesas Board lacked authority to apply 6L He also contends that. in rejectsas EPX 4. 9.10 and 11. the I W==am9 Board ' "y reached the meries of the four -

Ahhough at the thne the docusan below was rendered thera =====aa= had not spoken on the use of a "fundesmental flaw" test. It has esace espremely approved clus standard. See lang lained W Ca 3 (Shoreham Nuclear Power Stenon, t!nst ik CLI.86 il, il NRC 577. 541 (19sek Thee- there-in made it clear that the term "fk=d====tal flaw" means a "ds6cesac(y] which preclude (s) a nadmg of reasonable assurance that protecave asessures can and will be taken."Id That name decision also smede it clear that the standard is nocheng more than the long4tanding requerement of the Rules of Practice j that - must be pisoded with adequese bases and spacencny.14 Jer eine 10 CF.R. 91.714(bk As to Mr. Eddlesman's second arguesent (that the Lacenmes Board reached the ussrus of the consen.

l -it merely toonsk we do not agree. The Board did not delve into the morns of the four _

apphed the standard for adesenhshey of _ endorned by the r- in 34sw4sae, i.e it found that the contentions in quescon did not allege that the esercus hrased huutamental Anws in the essergency plan, or dal not piend bases that, if shown to be true, would hente a Wa8 Anw in the pien. See Shemesas,13 NRC at 581.

4 215

Cite as 24 NRC 216 (1986) ALAB-844 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Alan S. Rosenthal, Chairman Dr. W. Reed Johnson Howard A. Wilber

.i in the Matter of Docket Nos. 50-440-OL 50-441-OL CLEVELAND ELECTRIC

. ILLUMINATING COMPANY, etal.

(Perry Nuclear Power Plant, Units 1 and 2) August 18,1986 The Appeal Board denies an intervenor's petition for reconsideration of portions of the Board's earlier decision, ALAB-841, 24 NRC 64 (1986), affirming the Licensing Board's concluding partial initial decision l

authorizing the issuance of licenses for the operation of Units 1 and 2 of the Perry Nuclear Power Plant.

APPEARANCE  ;

Swan L. Histt, Mentor, Ohio, for the intervenor Ohio Citizens for Re-sponsible Energy.

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MEMORANDUM AND ORDER Opiales of Messrs. Rosenthat and Wilber:

Intervenor Ohio Citizens for Responsible Energy (OCRE) has peti-tioned for reconsideration of portions of ALAB-841,24 NRC 64 (1986).

Our study of the petition discloses that in large measure it renews argu-ments previously advanced in OCRE's appellate brief and found to be without merit. In any event, the petition does not persuade us that the result reached in ALAB-841 warrants reexamination.

There is only one matter justifying any further discussion: interve-nor's continued insistence that the preliminary analysis of the applicants' i hydrogen control system should have addressed issues beyond the se-lected (and staff-approved) accident scenarios - more particularly, the effect of station blackout and the availability of containment sprays. In rejecting that claim in ALAB-841, we stated:

Given the complexity of a nuclear power plant, there is virtually no end to the

! sequences of failures and errors that might conceivably result in hydrogen produc-

' tion. But the likehbood of the occurrence of most of the sequences is extraordinarily remote: in order for them to materialize, there would have to be such unlikely de-velopments as the concurrent failure of redundant safety-related equipment or an eqmpment malfunction accompanied by improbable operator error. Manifestly, the Comnussion did not intend to require utilities to include in their analyses - prelimi-nary or final - every one of these sequences, irrespective of how divorced from reality it might be. Moreover, it is plain from the terms of the rule itself that the Coninussion was fully prepared to leave it to the staN to decide which of the vast number of possible scenanos should be analyzed. Assuming, again without deciding, that the esercise of the s.aN's broad discretion in that regard is reviewable at all, the intervenor seeking to challenge the choice of scenanos must do much more than simply allege that there are other scenarios that the staN might appropnately have inmeted be factored into the analysis: it must also allege and establish that, without the inctusion of the additional scenanos, the analysis could not fulfill its intended purpose. We are satisfied that no such demonstration was made here. Stated other-wise, this record does not establish that the staN acted capriciously in approving the use of the two chosen scenanos for preliminary massesment purposes.L l

~

Although in disagreement with this standard of review, OCRE asserts in its reconsideration petition that, contrary to our conclusion, it has met the standard We are told that the hydryen control system analysis could not fulfill its intended purpose without inclusion of the two addi.

! tional scenarios to which OCRE alluded.

3 8 24 NRC at 74-75 (footnote onutted).

i l 217 l

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.. We adhere to our belief that the standard of review adopted in

! ALAB-841 is appropriate. Further, we remain satisfied that there is no

, compelling necessity to include in the preliminary analysis either station blackout or total containment spray unavailability.

A " station blackout" scenario postulates a situation in which the plant loses both its offsite and onsite alternating current (AC) power. This would disable the hydrogen igniters, thereby allowing the accumulation <

of hydrogen to high concentrations.8 The scenario then assumes the res-toration of power and the consequent ignition of these high concentra-tions of hydrogen by the igniters or some other ignition source in the containment. The ensuing pressure could exceed the maximum pressure-containing capacity of the Perry containment. OCRE maintains that

"[t]his scenario thus results in the failure to meet the containment integ- i rity requirement of the rule; therefore the threshold for challenging the r

Staff's selection of accident scenanos has been surmounted."8 The short answer is that the Statement of Consideration accompanying the hydrogen control rule flatly states that "[p)rovision of a backup power supply is not required by this rule."* In this connection, the Com-mission referred to the staff's acceptance, with regard to the scenanos analyzed at certain other facilities, of AC-powered igniters without re-quiring a backup power supply.s This acceptance rested, the Commission noted, upon the " staff's perception that the incremental risk reduction associated with provision of the igniter system backup power supp'y did not warrant the additional cost at these particular facilities."' Given this explicit Commission declaration, there~is no possible foundation for

OCRE's insistence that the intended purpose of the Perry hydrogen con-trol analysis could be served only by the consideration of a station black-4 out scenario.

With respect to containment spray, we disagree with OCRE's asser-tion that the unavailability of both containment spray trains must be as-l . sumed in the preliminary hydrogen control analysis. As mentioned in ALAB-841, one of those two trains was assumed to operate in that anal-ysis.7 Such an assumption is consistent with the Commission's design re-l e If it leses suf5cesarly long. any stenom bieckout will - a loss of cooling to the reactor core. The l resultant overheenng of the fhet cladding wdllead to the generataos of hydrogen.

  • Petinom for Reconsideranon of At.Aa-Set (August 8,1984) at 8.
  • 30 Fed. Res. 3498, 3502 (1985).

l 8 IM

  • Red

' 24 NRC at 74.

! 218 f

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quirement that emergency systems be able to perform their functions de-spite the occurrence of a single failure

  • and, therefore, is reasonable in terms of the preliminary analysis required by the hydrogen control rule.

Beyond our scrutiny here, more severe failures of the containment spray trains may be addressed as part of the final hydrogen control analysis.

Petition for reconsideration denied.

It is so ORDERED.

FOR THE APPEAL BOARD Barbara A. Tompkins Secretary to the Appeal Board Concurring Opinion of Dr. Johnson:

Although in agreement with the summary denial of the petition for re-consideration, I do not join in the foregoing opinion and played no role in its preparation. I adhere to the view set forth in my concurring opin-ion in ALAB-841 that the Commission intended to preclude from explo-ration in licensing hearings the details of those scenarios that lead to the generation oflarge quantities of hydrogen.1 Accordingly, I see no reason for any discussion of the station blackout and containment spray unavail-ability scenarios.

'See sews /ly to C F R. Part 50, Appendia A. " General Desso cruena for Nuclear Power Plants" a 24 NRC at 100.

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Cite as 24 NRC 220 (1986) ALAB445 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Christine N. Kohl, Chairman Gary J. Edles Dr. Reginald L Gotchy in the Matter of Docket Nos. 50-352-OL 50-353-OL PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2) August 28,1986 The Afteal Board afYirms the Licensing Board's concluding partial initial dwision in this operating license proceeding, LBP-85-25,22 NRC 101 (1985), involving the emergency response plan for a prison located within the plume emergency planning zone of the Limerick facility. The Appeal Board also affirms the Licensing Board's rejection of several proffered contentions concerning the plan, but reverses the Board's re-jection of another contention and remands for further action.

RULES OF PRACTICE: BRIEFS Appeals that are not briefed are considered waived. See ALAB-836,23 NRC 479,485 n.2 (1986).

I 220

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)

. The Commission's Rules of Practice,10 C.F.R. f 2.714(b), require intervenors to set forth the bases for each contention with " reasonable specificity."

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)

There is no easy formula for determming what are " basis" and "rea-sonable specificity." Such judgment must be exercised case-by-case, with the underlying purpose of this requirement in mind. One such purpose is to help assure at the pleading stage that the hearing process is not im-properly invoked - for example, by challenging statutory requirements or the basic structure of the Commmaion's regulatory process. Philadel-phia Electric Ca (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-216, 8 AEC 13, 20 (footnote omitted), modefed on other gmunds, CLI-74-32, 8 AEC 217 (1974). Other purposes are to put the parties on notice of what issues they will have to defend or oppose, and to assure the issues raised are appropriate for litigation in the particular proceed-ing. Id. at 20-21.

4 RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)

In exercising the "consuierable amount of diacretion" it has in deter.

mining the admissibility of a contention, a boani must be careful not to i reach the merits. Id at 21, 20; Houston Lighting and Pbwer Ca (Allens I Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542, 547-49 (1980).

EMERGENCY PLANS: NOTIFICATION REQUIREMENTS Section 50.47(b)(5) of the Commmaion's regulations requires the estab-lishment of procedures "for notification of emergency personnel by all l organizations" (emphasis added). See also NUREG-0654/ FEMA-REP-1, Rev.1, " Criteria for Preparation and Evaluation of Radiological Emer-gency Response Plans and Preparedness in Support of Nuclear Power i Plants" (1980) (hereafter, "NUREG-0654"] at 43 (Criterion E.2). Implicit l in this standard - which must be met as part of the overall " reasonable assurance" finding required by 10 C.F.R. 5 50.47(a)(1) - is that such no-f l tification procedures should be adequate to serve their intended purpose, i.e., eventual mobilization of necessary emergency workers.

221 4

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EMERGENCY PLANS: NOTIFICATION REQUIREMENTS Section 50.47(b)(5) of the Commission's regulations does not specify or prohibit any particular method of notifying emergency personnel. Some notion of adequacy, however, must be read into the section. Cf Long Island Lighting Ca (Shoreham Nuclear Power Station, Unit 1), CLI 13,24 NRC 22,32 (1986)(specific emergency planning measures not ex-plicitly mentioned in the regulations may nevertheless be required for reasonable assurance).

EMERGENCY PLANS: COMMUNICATIONS REQUIREMENTS Section ").d7(b)(6) of the Commission's regulations concerns prompt communications among principal response organizations to emergency personnel and to the public. A principal response organization is one that has a major or lead role in emergency planning and preparedness.

NUREG-0654 at 51. See Southern California Edison Ca (San Onofre Nu-clear Generating Station, Units 2 and 3), ALAB-717,17 NRC 346,377-78 (1983), aff'd, Carstens v. NRC, 742 F.2d 1546 (D.C. Cir.1984), cert.

denied, U.S. 105 S. Ct. 2675 (1985).

EMERGENCY PLANS: CONTENT (SUFFICIENCY)

Under section 50.47(c)(1) of the Commission's regulations, failure to meet the applicable standards set forth in section 50.47(b) may result in the Commission's declining to issue an operating license; however, the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.

EMERGENCY PLANS: CONTENT (ONSITE AND OFFSITE PREPAREDNESS)

Any participant in an emergency response activity should be ade-quately informed as to the nature of his or her responsibilities.

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)

The Commission's regulations require that the basis for a contention be supplied in the contention itself - not developed at a hearing. See 10 C.F.R. 9 2.714(b).

I 222 l

APPEAL BOARDS: SCOPE OF REVIEW Arguments and issues not raised below cannot properly be pressed ini-tially on appeal. ALAB-836,23 NRC at 4% n.28.

EMERGENCY PLANS: CONTENT (ARRANGEMENTS FOR MEDICAL SERVICES)

The Commission's " Statement of Policy on Emergency Planning Standard 10 CFR 50.47(b)(12)," 50 Fed. Reg. 20,892 (1985), pertams to those situations where actual deficiencies in medical arrangements have been identified and a question thus has ansen as to the propriety of li-cense issuance pursuant to 10 C.F.R. I 50.47(c)(1), notwithstandmg the deficiency.

EMERGENCY PLANNING: REQUIREMENT FOR OPERATING LICENSES Section 50.47(b)(14) of the Commission's regulations requires periodic exercises to evaluate major portions of emergency response capabilities, periodic drills to develop and maintain key skills, and the correction of identified deficiencies.

REGULATORY GUIDES: APPLICATION NUREG.0654 simply serves as guidance for the staff's review of emergency plans and does not prescribe regulatory requirements. ALAB-819, 22 NRC 681, 710 (1985), review declined. CLI-86-5, 23 NRC 125 i

(1986).

EMERGENCY PLANNING: FEMA FINDING (REBUTTABLE PRESUMPTION)

Federal Emergency Management Agency (FEMA) findings concern-ing emergency preparedness exercises are only rebuttable presumptions in NRC proceedings. But before a party can exercise its right to chal-lenge a FEMA finding at a hearing, it must proffer a contention that sat-isfies the basis and specificity requirements for admissible contentions.

RULES OF PRACTICE: CONTENTIONS Nothing in Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C.

Cir.1984), cert. denied. 469 U.S.1132 (1985), suggests that it was in-223 l

l l

tended to override the fundamental Commission prerequisites for the ad-judication of contentions.

RULES OF PRACTICE: DISCOVERY Discovery begins only after the identification of the matters in contro-versy -i.e., the admission of contentions.10 C.F.R. 9 2.740(b)(1).

RULES OF PRACTICE: CONTENTIONS Intervenors are bound by the literal terms of their own contentions.

ALAB-836,23 NRC at 505 (citing ALAB-819,22 NRC at 709).

EMERGENCY PLANS: CONTENT (EVACUATION)

The Commission's emergency planning regulations require an evacu-ation time estimate (ETE) for various sectors and distances within the plume exposure pathway emergency planning zone for transient and per-manent populations.10 C.F.R. Part 50, Appendix E, f IV. No particular time limits are established for an evacuation; rather, the analysis is in-tended to reflect a realistic time for completing an evacuation. Thus, by using the ETE, emergency coordinators can then decide what protective actions (e.g., sheltering or evacuation) are warranted in the circum-stances, if a radiological emergency occurs. ALAB-836,23 NRC at 486, 491. See also NUREG-0654, Appendix 4.

EVIDENCE: EXHIBITS (STATUS AS EVIDENCE)

The fact that information contained in an exhibit admitted into evi-dence at an earlier stage of the proceeding may be superseded by more current information elsewhere in the record does not deprive the exhibit ofits status as evidence of record.

EMERGENCY PLANS: CONTENT (EVACUATION)

An ETE should not reflect a " worst case" scenario. It is intended to be representative and reasonable so that any protective action based on its estimates will reflect realistic conditions. On the other hand, an ETE should take account of a wide range of seasonal, weather, and other con-ditions. ALAB-836,23 NRC at 491. See NUREG-0654, Appendix 4.

224

9-EMERGENCY PLANS: CONTENT (EVACUATION)

The Commission's regulations require the ETEs for special facilities to be included in the applicant's emergency plan. See 10 C.F.R. Part 50, Appendix E, f IV (" Content of Emergency Plans"). See also 10 C.F.R.

I 50.47(b)(10); NUREG-0654, Criterion J.8.

EMERGENCY PLANS: CONTENT (EVACUATION)

Despite the lack of a specific regulation prescribing it, ETEs necessar-ily must be readily available (logically as an addendum to the radiologi-cal emergency response plan) to all those decisionmakers whom the ETEs are to aid in deciding what protective actions to order.

RULES OF PRACTICE: MOTION FOR DISQUALIFICATION Motions for disqualification under 10 C.F.R. f 2.704(c) must be filed as soon as possible after ostensible grounds for such action arise. Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), ALAB.

749,18 NRC 1195,1198-99 (1983).

RULES OF PRACTICE: APPELLATE REVIEW (ISSUANCE OF SUBPOENAS)

To preserve for appeal a claim that a subpoena was improperly issued, a party is obliged to seek relief first from the Licensing Board by moving to quash the subpoena. See 10 C.F.R. I 2.720(f).

ADJUDICATORY BOARDS: CONDUCT OF PROCEEDINGS A board on its own may interrupt or cut off a witness' testimony where the board believes the testimony strays beyond the issues in litiga-l tion. This action is implicitly, if not explicitly, within the board's author-ity "to take appropriate action to avoid delay," to " receive evidence," to l "[r]egulate the course of the hearing," and to "[e]xamine witnesses." 10 C.F.R. I 2.718. See also 10 C.F.R. I 2.757.

ADJUDICATORY BOARDS: CONDUCT OF PROCEEDINGS Where the circumstances warrant it, the Commission's regulations clearly permit the adjudicatory boards to shorten the time periods other-I wise authorized for discovery and for submitting prefiled testimony and proposed findings of fact and conclusions of law. See, e.g.,10 C.F.R.

225

If 2.711(a), 2.754(a). See also Statement of Policy on Conduct of Licensing Proceedings. CLI-818,13 NRC 452,453 (1981).

ADJUDICATORY BOARDS: CONDUCT OF PROCEEDINGS Expedition of a proceeding should not be at the expense of fairness.

Claims of unfairness, however, must be supported by evidence of specific harm.

RULES OF PRACTICE: APPELLATE REVIEW (SCHEDULING DECISIONS)

If a party agrees to a schedule set by a licensing board, it cannot later complain on appeal that the schedule was unfair. Duke Power Ca (Ca-tawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 74 &

n.69 (1985).

RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES If an appellee fails to respond to an appellant's brief, it is in default so far as that particular appeal is concerned. See 10 C.F.R. { 2.707.

RULES OF PRACTICE: STANDING TO APPEAL Only aggrieved parties may appeal decisions adverse to them. Virginia Electric and Power Ca (North Anna Power Station, Units I and 2),

ALAB-790, 20 NRC 1450,1453 (1974). A party cannot be legally "ag-grieved" for the purpose of appealing an adverse decision if it did not meaningfully participate in the process that led to the objectionable deci-sion. See Pacific Gas and Electric Ca (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-583,1I NRC 447,448 (1980). See also id. at 448-49. Cf Carolina Power and Light Ca (Shearon Harris Nuclear Power i

Plant), ALAB-837,23 NRC 525,542-43 n.58 (1986).

RULES OF PRACTICE: FINDINGS OF FACT (EFFECT OF FAILURE TO FILE Unless a licensing board orders the sub.nission of proposed findings of fact and conclusions of law, a party failing to do so is free to pursue on appeal all issues in which it participated below. Detroit Edison Ca (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709,17 NRC 17 (1983).

226 i

__-~__ ._. _

RULES OF PRACTICE: STANDING TO APPEAL Whether an intervenor has the right to pursue a particular issue on appeal is a function of the level of interest expressed by the intervenor in such issue throughout the course of the proceeding. See Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),

ALAB-244, 8 AEC 857, 863 & n.9, 870 n.19 (1974), reconsideration denied. ALAB-252,8 AEC 1175, aff'd, CLI-75-1,1 NRC 1 (1975).

RULES OF PRACTICE: ORAL ARGUMENT Oral argument is a matter solely within the Appeal Board's discretion.

10 C.F.R. I 2.763; 10 C.F.R. Part 2, Appendix A, 5 IX(e). Thus, the Board can obviously set reasonable ground rules for participation, such as requiring the parties' representatives to be on time.

s APPEARANCES Angus R. Ime, Norristown, Pennsylvania, for intervenors, inmates of the State Correctional Institution at Greterford, Pennsylvania.

Fraak R. Romano, Ambler, Pennsylvania, for intervenor Air and Water Pollution Patrol.

s -

t

(.

Robert M. Rader, Washington, D.C. (with whom Troy B. Conner, Jr.,

and Nils N. Nichols, Washington, D.C., were on the brief), for ap-

! plicant Philadelphia Electric Company.

Zori G. Ferkin, Harrisburg, Pennsykvania (with whom Theodore G. Otto, III, Harrisburg, Pennsylvania, was on the brief), for the Common-wealth of Pennsylvania.

l l

Josep'n Rutberg (Donald F.'Hassell'and Henry J. McGurre on the brief) for the Nuclear Regulatory Commistion.

l 1

l DECISION

' The appeals now before us concern the last issue to be resolved in this y

operating license proceeding - the adequacy of the emergency plan for 227 o

l

?

t e - , . - , - - - - - ,

the State Correctional Institution at Graterford, Pennsylvania (SCIG).1 A group of inmates petitioned to intervene and submitted one contention generally asserting a lack of reasonable assurance that the radiological emergency response plan (RERP) for SCIG would protect them and the prison staff in the event of a nuclear emergency at Limerick.8 The con-tention, however, had eight subparts, two of which were admitted by the Licensmg Board for litigation. Licensing Board Order of June 12, 1985 (unpublished), reconsidemtion denied, Licensing Board Order of July 2, 1985 (unpublished), After the hearing on these two issues (concerning the training for civilian emergency workers, such as bus drivers, and the estimated time of evacuation fer SCIG), the Board issued its fourth par-tial initial decision. It concluded that, insofar as these two contested 1 issues are concerned, the SCIG emergacy plan meets all pertinent NRC regulatory requirements and guidance. Consequently, the Board author-ized the Director of the Office of Nuclear Reactor Regulation (NRR) to issue a full-power operating license for Limerick. LBP-85-25, 22 NRC

, 101, 116 (1985).8 i The inmates appeal the Licensing Board's fourth partial initial deci-sion, as well as the Board's earlier rejection of five parts of their conten-tion.4 Although it did not participate in this phate of the Limenck oper-ating license proceeding, another intervenor, Air and Water Pollution j.

Patrol (AWPP), also appeals the Board's decision.8 Applicant Philadel-phia Electric Company (PECo), the Commonwealth of Pennsylvania, and the NRC staff each urge affirmance. As explained below, we affirm the two Licensing Board decisions here at issue in all but one respect:

the Board's rejection of the inmates' contention concerning manpower mobilization is reversed, the contention is admitted, and this matter is re-8 sClo is laraa=8 in Err =4 Township, appromismasely eight seines froaa the IJmerick anclear power i plant, and is within the facebty's pheme esposure pashway emergency pleansas some (EPZL See Com-monwenith Enh. E-9 (FEMA Evacuation Plan Map). See sese,elly to CF.R. ISO 47(c)(2) and lang hiand EJr4 War Ca (shorehens Nacisar Power station, Unst 1), ALAE 832,13 NRC 135,143-45 (1986A reisew pending, CLI-84 il,13 NRC 577, 579 (1986), for a discuamos of the EPZ concept. other afhise emergency piammans issues involving Limerick were addressed im ALAB-836,23 NRC 479 (1986), reserw dschang, e- order of July 24,1986 (=gm=had),

a Tae background of the inmates' efforts to par **capaan in this procomhng is set out in ALAB.006,21 NRC 1883 (1985). See else ALAB-809,21 NRC leos, seresed er meer CLI-85-le,22 NRC 459 (1985) 8 The ra-ains=a= made the f ac=aning Board's ela "i===ta a-ty effaceve," and the. full-power license for Limenck was issued on August 8,1985. CLI-85-if,22 NRC 184 (1985). We denied subee-quant requests for a stay, as did the Coe=i==ia= and the (J.s. Court of Appenis for the llaird Circuit.

i ALAB-814,22 NRC 191 (1985h e- order of october la 1985 (unpublishedh Limerick Eredsay l Aedes lac n NAC No. 85 3431(3d Cir. Aug. 21, 1985).

l

  • The inasenes do not chauenge the Lacensing Board's esclusion of the remanang sisth part of ther con-tent 6an, which concerns the momeonns of . ' 4 .7See Licensing Board order of June 12 at 10.

e still another joint intervenor from different phases of this proceeding, Robert L. Anthony /Fneeds of the Easth (Anthony / FOE), filed an appeal from the Board's fourth partial intial docusoa ce July 31, 1985. Because Anthony / FOE did not fue a bnef in support of this appeal, however, they are in default j and that appeal is dunnassed. See ALAB 436,23 NRC at 485 m.2.

228 l

L.

. .~ . - . - - . . . .

i manded to the Licensing Board for further action consistent with the Commission's Rules of Practice and this opinion. In addition, we dismiss AWPP's appeal.

L REJECTED CONTENTIONS A. Maaponer Mohmineton The inmates' contention alleges that "[t]here is no reasonable assurance that the call up system to be utilized in the event of a nuclear emergency in order to mobilize the entire work force of the State Correctional Insti-tute [ sic) at Graterford will achieve its designated purpose." Proposed Revised Contentions (May 13,1985) at 2. The basis for the contention notes that SCIG employees are to be mobthzed through a pyramiding system in which one employee telephones ten others and so on until all persons are notified. This system could fail, according to the contention, if the commercial telephone lines become overburdened and thus un-available. In this connection, the inmates refer to the testimony of Rich-ard T. Brown (Chairman of the Lower Providence Township Board of Supervisors) in an earlier phase of this case, suggesting that the local telephone network had been impaired during a past emergency. The in-mates claim that, in light of the possible disruption of commercial tele-phone lines, a backup or alternative system is necessary. They cite 10 C.F.R. Il 50.47(bX5), 50.47(bX6), and NUREG 0654/ FEMA REP-1, Rev.1, " Criteria for Preparation and Evaluation of Radiological Emer-gency Response Plans and Preparedness in Support of Nuclear Power Plants" (1980) [hereafter, "NUREG-0654"), Criteria E and F, in support of this argument. Proposed Revised Contentions at 2-4.

The Licensing Board concluded that the basis for this contention lacks the specificity required by 10 C.F.R. 6 2.714(b). It observed that the NRC and Federal Emergency Management Agency (FEMA) require-ments and guidance do not prohibit the use of commercial telephone lines for radiological emergency-related activities. Noting that it had ear-lier disposed of Mr. Brown's concerns about the commercial telephone system, the Board found that, in the "unlikely" event of a problem with these lines, "five dedicated telephone lines including a direct connection with the Pennsylvania State Police" (who would notify off-duty SCIG personnel) are available. Licensing Board Order of June 12 at 3. The Board also found that the inmates did not reasonably specify that proce-dures for notification of emergency personnel have not been established in accordance with 10 C.F.R. I 50.47(bX5). Lastly, the Board concluded that the inmates misinterpreted and misapplied 10 C.F.R. I 50.47(bX6) 229 f

, .- ---.n_,- .------ -

.-n---,- , - . - - --,,-n v-n,. --

t and NUREG.0654, Criterion F; i.e., tl:ese provisions relate to communi-cations among " principal response organizations" to emergency person-nel and the public, whereas SCIG is a " support organization." Id. at 4.

On appeal, the inmates begin by observing that the adequacy of com-mercial telephone circuits during an emergency has been litigated in an-other NRC licensing proceeding, Cincinnati Gas & Electric Ca (Wm. H.

Zimmer Nuclear Power Station, Unit No.1), ALAB-727,17 NRC 760 (1983). The inmates also argue that the Licensing Board's reasonmg and references to dedicated telephone lines at SCIG "miss0 the point of the call-up system which would be relying on people's private lines and not the institutional telephone system." Brief of the Intervenor Graterford Inmates (Aug. 14,1985) [hereafter, " Inmates

  • Brief"] at 12.8 They cite again to Mr. Brown's testimony concerning the capabilities of the com-

, mercial telephone lines, noting that Mr. Brown is an AT&T communica-tions technician. The inmates also challenge the Board's conclusions that SCIG is not a principal response organization under 10 C.F.R.

9 50.47(b)(6) and thus is not required to have a backup communications system. Id. at 13-14.

. The Commission's Rules of Practice,10 C.F.R.,9 2.714(b), require

' intervenors to set forth "the bases for each contention . . . with reason.

able specificity" (emphasis added). There is no easy formula for deter-mining what are " basis" and " reasonable specificity." As we observed a dozen years ago, such judgment must be exercised case-by-case, with the underlying purposes of this requirement in mind. One such purpose "is to help assure at the pleading stage that the hearing process is not improp-

- erly invoked" - for example, by challenging statutory requirements or "the basic structure of the Commission's regulatory process." Philadel-phia Electric Ca (Peach Bottom Atomic Power Station, Units 2 and 3),

l ALAB-216, 8 AEC 13, 20 (footnote omitted), mod (/ led on other grounds, l

CLI-74-32, 8 AEC 217 (1974). Other purposes are to put the parties on notice of what issues they will have to defend or oppose, and to assure the issues raised are apprcpriate for litigation in the particular proceed-ing. Id. at 20-21. In exercising the " considerable amount of discretion". it has in determining the admissibility of a contention, however, a board must be careful not to reach the merits. Id. at 21, 20; Houston Lighting e ne innum rather po.m o.: the the Bowd made a factml error,insamh a scIo be only one "ha" telephone line with a direct bak to the sense Pohce, and four other ea===cial hace that would be used to intiase the call-up sysesen. Inmaass' Bnef at 12 83. De soord's June 12 order does not denne what it means by "d=8.e=ad* has or cine to the record source or its infor-ar==; indeed. the tranaenyt of the prehennag conference at which this sentier was docussed is somewhat unclear as well See Tr. 20.627 30, 20,672. The ta==a=weakh Ra=ra=== to Proposed Revised Contentions (htay 24, 1985) at 4, however. supports the iamasaa'stasement of the facts and can otrviously be regarded as accu.

rately desenbeng the ^  : system at sClo.

-_.,_-ne-.,,.w,r, --,..-n,__yw-- -,-- - - - , -.--ww, --,

and her Ca (Allens Creek Nuclear Generating Station, Unit 1),

ALAB-590,1I NRC 542,547-49 (1980).

Although the Licensing Board was fully aware of these principles, it abused its discretion in applying them to the inmates' manpower mobili-zation contention. See Licensing Board Order of June 12 at 2; Licensing Board Memorandum and Order of April 12,1985 (unpublished) at 6-9, rey'd on other smunds, ALAB-806, 21 NRC 1183 (1985). The contention clearly raises an issue that can be a proper subject for litigation in an operating license proceeding - the adequacy of the communications system to be used in the event of an emergency.' 10 C.F.R. I 50.47(b)($)

requires the establishment of procedures "for notification of emergency personnel by all orgamzations" (emphasis added). See alSo NUREG-0654 at 43 (Criterion E.2). Implicit in this standard - which must be met as

_part of the overall " reasonable assurance" fmding required by 10 C.F.R.

I 50.47(a)(1) - is that such notification procedures should be adequate to serve their intended purpose, i.e., eventual mobilization of necessary f emergency workers.8 Because the inmates' contention questions whether the SCIO radiological emergency response plan complies with this perti-nent NRC regulation, it raises an issue amenable to adnussion.'

'Indeed, as the inmeiss poet out, a naular _ _ was adestred and litigesad in Zimmer.17 NRC at 773 72. See aim ALAB.436,23 NRC at $1011. The esaff arsi,es, however, that the inansees have not shown -_ problems akan to those in Zimmer. NRC Stadt Brief (oct. 8,1985) at 13. But that problems were J 7:;f at a argument is off the mark because in Zimmer those -

hamnag - en opportunity demed to the inmates here.

PECo also anos to distanguish Zimmer. It asserts that the off<luty SCIO personnel need not be noti-fled as quickly as the school personnel involved in Zimmer. Laconsee's Brief (Sept. 18,1905) at 23 24.

That sney well be true, but the issue the immaess' raises is the adequacy of the SCIO call-up

' syssess to achseve "Its d==ag=aa=d purpose." Propeasd Revised Contentions at 2. The avalatality of more time for aceScenen does not -nily render this notificataan system adequese for in intended use.

eThe r 6,=====g Board s observation that the use of - _. ; telephone lines is not prohibited is enresponarve to the issue raised by the inmasas. See f ar==amg Board Order of June 12 at 3. The nasne j

i can be said with regard to PECo's arguaient that a network of sequential telephone calls has been ap.

proved in other cassa. See Licemame's Brief at 20 21. We agree that 10 CF.R. 9 $0.47(b)(5) does not specify or protubit any particular method of notancataan. Some notion of adequacy however, must be read into the section. (ALAB.436,23 NRC at $10 n.53, was not intended to suggest otherwne.) For,if nonfirmanan procedures only need be "essabhahed." an emergency pian that spec See the une of smoke signals or sonnaphore to notify emergency workers would sufSce, Cf Long Idend Lighting Ca (Shore.

t bem Nocteer Power Stenon. Unit th CLI.86-13, 24 NRC 22, 32 (1986) (specinc emergency planning measures not esplicitly me=aa==d in . . sney nevertheisms be required for reasonable assurance) l

  • The Licensing Board, however, correctly concluded that 10 CF.R. I 50.47(b)(6) and NURE04654 Cntenon F (upon which the inmates also relyk do not apply here. See Licemang Board order of June among pnncipal response orte"'a'?a"' to 12 at 4. Section 50.47(b)(6) concerns "prosnpt emergency person *iel and to the public." A pnncapal r==pa==* orgmaa*=amaa has a major or lead role in

[

emergency pienens and preparedases. NURE04654 at 51. For enemple, the Pennsylvania Eniersency h t=====t Agency (PEMA) is such an orgamassenaa. its buenens is pianung for and meding other or. " umas (e.g., schools, heepitals, pnsons) during emerta=e=== SClO on the other hand, is a support orta=anaeaa= wah largely rescove emnergency . _ , 'itses linused to its own needs rather than those of others. See Seur4ern Calysenia Edissa Ca (Sam onofre Naclear Genereung Station, Units 2 and 3), ALAB.717.17 NRC 346,377 78 (1983), alf'd. Carssess a NAC 742 F.2d 1546 (D.C Cir.1984),

cert dendaf, _ U.S. 105 5. Ct. 2675 (1985) l 231 f

- - - - -- -. -. . ~. . --- - . .

J Moreover, by their explicit references to the pyramiding call-up system for mobilizing off-duty SClG personnel and to the asserted inad.

equacies in the local cominercial telephone network on which that system relics, the inmates have not only put the other parties on notice of exactly what they seek to litigate, they have also raised an issue spe-cific to this case. Despite the Licensing Board's effort to minmuze its sig-nificance or relevance here, the inmates' reference to Mr. Brown's earlier testimony certamly establishes a basis for questioning the adequacy of the commercial telephone system.20 Mr. Brown - who, as noted above, is both Chairman of the Board of Supervisors of Lower Providence Town-ship and a communications technician for AT&T - testified that, based on his experience during emergencies, switching problems could over-load the public telephone system in certain areas of his township. Tr.

18,133, 18,149-52.** As it pointed out, the Licensing Board " disposed i

of" Mr. Brown's concerns in its third partial initial decision. Licensmg Board Order of June 12 at 3. But the immediate issue there involved no-1

' tIfication of an unidentified number of township Emergency Operations Center personnel, which the Board determined (after hearing) could be accomplished without sole reliance on the commercial telephone system.

LBP-85-14, 21 NRC 1219,1387-88 (1985). See also ALAB-836,23 NRC at $10-11. The overall adequacy of the public telephone network in the area relevant to the inmates' contention was not directly addressed, nor was Mr. Brown's testimony about deficiencies in the switching system actually refuted.28 i

The inmates also correctly argue that the Board's discussion of SCIG's direct (i.e., dedicated) line to the State Police misses the point of their l contention. See supra pp. 229,230 & note 6. As they noted in their Pro-l posed Revised Contentions at 2, the pyramiding call-up system for mobi-l lizing off-duty SCIG employees relies on the use of the commercial tele-l

Ahhough the inmasses failed to cite the specinc pages of the tramecript where the pertenent portsome of Mr. Brown's '====y cooki be found, they identined it by date (January 14, 1985), and neither the Board nor the parties appear to have had any difRculty locatmg the precise pages. See PrW Revised Casosassons at 2 3.

88 t.4wer Providence Townskap is adjacent to skippack Township, where sClo is locased. See aqpre nose 1. .

88 The Board's charactensasson of the alleged -- problem as "unlikely" is therefore not supported in the record. See I hg Board order of Jane 12 at 3. Ahhough the Board did not rely on is as a ground for its decision. PEco and the Costanomwealth stressed at oral argument that off-duty personnel are to be actined at the "al,wt* stage (ase AI.AB.s34,23 NRC at 490 n.13A implying that the

comunercial *=I=pha== syneem would not likely be overburdened at that tiene. App. Tr. 44 74 73. But this asserted ef5 set on the communication system is speculence and does not take account of a fast de.

' veloping = rad ==* scenano. It is also somewhat h==t with PEco's argument, discuaned at aqpre more 7. that off-duty personnel are nonned later, rather thes earlier, in an emergency. In any event. this is the sort of "ments" issue that cannot be properly resolved at the contentaan stage. See sep,e pp. 230 31.

232 l

[

i

b 1

phone system, i.e., the private telephones in these employees' homes.ts gr this communications network breaks down, even if the State Police can be contacted via the dedicated line, there is no indication by what means "the State Police will act as a back up to conduct notification of off duty personnel." Licensing Board Order of June 12 at 3.1*

Thus, the inmates' manpower anahih=' ion contention clearly meets the basis and specificity requirements of 10 C.F.R. { 2.714(b). This is par- ,

i ticularly evident from a comparison of this contention with those prop-erly excluded in this and other proceedmgs. See, e.g., Arcific Gas and Electric Ca (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-84-14, 20 NRC 285, 286 (1984) (contentions failed to specify particular structures or systems for which it was claimed the quality assurance pro-gram was insufficient); ALAB-804,21 NRC 587,59194 (1985) (failure to explain what contention sought to litigate and to identify clearly the studies or other documents upon which contention was ostensibly based).

We therefore reverse the Licensmg Board's Order of June 12 insofar as l

it rejected this contention. The contention is admitted and this matter is r==adad to the Board for further action consistent with the Commis-sion's Rules of Practice and this opinion. See infm p. 247.

With this reversal and remand, however, we are once again faced with determining the effect of this action on PEco's outstanding operating li-cense. See supm note 3. On two earlier occasions, it was similarly neces-sary to reverse and remand a few emergency planning matters to the Li-censing Board for further action. In both cases we determined that in-l terim license suspension was not warranted under 10 C.F.R.

f 50.47(c)(1). ALAB-836,23 NRC at 520; ALAB-819,22 NRC 681,715-16 (1985), FeFiew declined, CLI-86-5,23 NRC 125 (1986). That section of I

' the Commission's emergency planning regulations provides:

i

' Failure to n cci the applicable standards set forth in . . section [50.47(b)] may result in the t'- D--('s] declining tc .ssue an operating license; however, the ap-plicant will have an opportunity to demonstrate to the satisfaction of the Comnus-sion that deficiencies in the plans are not signdicant for the plant in question. that adequate interim compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.

  • s This system was discussed later at the hennes on another issue. See Tr. '20.809. As many as 300 off-duty sClo employees might have to be not Aed by this meant Tr. 20,840 42.

a* la is dif6 cult to understand how. dunas an emergency when it has other responesbilities as weil, il,e State Police would notify, without rehable telephone service over en uncertain area, up to 300 SClo I

employees (see sure note 13) who live throughout a relauvely wide geographic area entending beyond the EP2. See Tr. 20,63(A 20,672. See also ALAa 436,23 NRC at 495 (other state Police responsebdities during emergency evacuation). It is also not apparent from the record before us how guards froen other instatutions would be notined and niotmlized to help at SClo if the commercial telephone system is over.

Inadad See Ct.1-8515. 22 NRC at 18&

233 I . - . -. - . _ . . . . _ . . . - ._ _ . ___ _ _ . _ _ _ _ _ __ ._ , , _

. - - - - -. .- - . ~ . - . .. -.- .

The issue now at hand provides even less cause for license suspension than the issues r-madad in ALAB-836 and ALAB-819. The latter deci-sions concerned emergency planning deficiencies that were demonstrated on the record following admission of contentions and that nullified the

" reasonable assurance" finding required by 10 C.F.R. ! 50.47(a)(1). In this instance, however, there has been no showing yet of a "[f]ailure to meet the applicable standardQ" - i.e.,10 C.F.R. 9 50.47(b)(5) - or of an actual deficiency in the SCIG emergency plan. Some means to notify off-duty SCIG personnel in an emergency does exist; it is only the ade-quacy of this notification in the event of an overload of the telephone network that is in question. Further, security personnel are obviously on duty at SCIG at all times; the individuals to be mobilized by the pyramiding call-up system are solely those extra off-duty personnel nec-essary to effect a faster evacuation of the facility. In these circumstances, we conclude that, if any deficiency in the SCIG cmergency plan exists, it is not so significant as to warrant license suspension pending remedial action. Compare Shoreham, supra note 8,24 NRC at 29.

B. Input of Corrwetional Offleers (AMiCME)

The inmates contend that "[t]here is no reasonable assurance that the correctional officers union is awne of the Bureau of Corrections concept of operations and its relationship to the total effort." Proposed Revised

' Contentions at 4. The inmates stress the crucial role of the guards in the SCIG emergency plan and argue that these individuals must therefore be i

well informed as to their duties. The inmates request that officials of the union representing the SCIG guards, the American Federation of State, County, and Municipal Employees (AFSCME), testify about their under-standing of how the plan is to be implemented. The Licensing Board, however, rejected the contention, finding no NRC requirement for con-sideration of a union's role under an emergency plan. Licensing Board Order of June 12 at 5.

i

' On appeal, the inmates refer to testimony given during an earlier phase of this proceeding to support the admission of this contention. First, they cite the statement of a FEMA witness (James R. Asher at Tr. 20,210) that "anyone who is obligated to take a risk should be adequately in-t formed." Thus, the inmates argue that they should be afforded the op-portunity to explore, during a hearing, how well informed the guards are as to their emergency duties. Second, the inmates point out that other union representatives were permitted to testify about their members' par-ticipation in evacuation operations in the event of an emergency at Lim-erick. By denying testimony from the SCIG guards' union, the Licensing 234 l

Board - in the inmates

  • view - has subjected their contention to a higher standard than that applied to the contentions of other intervenors in this proceeding. Inmstes' Brief at 14-16.

The inmates' claims are easily dismissed. We do not quarrel with the general notion thst any participant in an emergency response activity should be adequately informed as to the nature of his or her responsibil-ities. The contention in question, however, provides no basis whatsoever .

for doubting that the correctional officers at SCIO are adequately in-formed about their duties during an emergency at Limerick. Compare supra pp. 23133. The Commission's regulations require such basis to be supplied in the contention - not developed at a hearing, as the inmates seek. See 10 C.F.R. I 2.714(b). As for the testimony of certain union ofri-cials given in connection with other intervenors' contentions, the inmates overlook a key distinction: those contentions satisfied the Commission's basis and specificity requirements (unlike here) and therefore were admit-ted for litigation. See LBP 85-14, 21 NRC at 1289,1319. Similarly, the union testimony regarding those contentions was permitted because it

~

met the Commission's standard for the admissibility of all evidence in li-censing proceedings,10 C.F.R. I 2.743(c). The admission of that testi-mony in no way signifies that any testimony offered by a union omcial

- irrespective of its relevance, materiality, reliability, and other Com-mission requirements - must likewise be permitted, as the inmates ap-parently believe.18 Finally, the inmates rely on this testimony from earlier parts of the i record for the first time on appeal. We have repeatedly stressed in this very proceeding that, in keeping with court practice, arguments and issues not raised before the Board below cannot properly be pressed ini-tially on appeal. ALAB-836,23 NRC at 496 n.28.

C. Medical Services The inmates claim that "[t]here is no reasonable assurance that ade-quate medical services will be provided to those contaminated and/or in-

' jured individuals in the event of a nuclear emergency at (Limerick]."

Proposed Revised Contentions at 9.2e They' refer to an amdavit from 88on the other hand, to the entent the 1.icensing soard suggests that no contention questionang the

, response of pubhc enspicyee union sneebers dunas an emergency could ever be admutted, the aoard is

[ incorrect. Ser Licensing Board order of June 12 at 5. If such a contention were reasonably specinc and a basis for doubting these saiployees' partscapasson were supphed, the contention would, o(course, setas.

fy the Comnussion's standarc's for adensson.

8' For a discussion of the meaning of " contaminated injured.* see A1.Aa-819. 22 NRC at 711 n.39. The particular regulation pertinent to this consonnon is 10 C.F.R. 6 50.47(b)(12), which requires

[s]rrangements [to bel osade for medical services for contaminated injured individuals."

i 235 l

i i

- . . ~ . _ . _ _ _ _ . . - . _ . . . _ _ . _ _ _ -_____ _. - - _

Dr. Roger E. Linnemann (PECo's expert consultant on the treatment of the contammated injured) and chiefly complain that it does not address the adequacy of the capacity of Montgomery Hospital for treating con-taminated injured persons. Ibid.87 ,

The Licensing Board, however, concluded that the contention lacked

" reasonable specific basis." Licensing Board Order of June 12 at 7.

Noting that there is no requirement that each hospital handle a specific number of individuals, the Board thus did not understand "what capacity it is that the inmates have in mind." Ibid. It also explained that the extent of detail vel non in Dr. Linnemann's affidavit does not provide a basis for litigation. The inmates now briefly complain that the Board has effec-tively and improperly addressed the merits of their contention by shifting the burden of proving the inadeguacy of the medical facilities to them, rather than requiring PEco to demonstrate their adequacy. Inmates' Brief at 1617.

We dssagree. The Board did not expect the inmates to " prove" their case on medical services at this stage; instead, it simply - and properly

- required the inmates to meet their limited burden of supplying basis

, and specificity for their contention. See ALAB-804,21 NRC at $92. The Commission earlier expressed its belief that "the number of individuals both onsite and offsite who may become contaminated and injured is ex-pected to be very few." Southern Cal (fornia Edison Co. (San Onofre Nu-

, clear Generating Station, Units 2 and 3), CLI 8310,17 NRC 528, 535 (1983), rev'd In port on other smunds, GUARD r. NRC, 753 F.2d 1144 (D.C. Cir.1985). Thus, it was incumbent upon the inmates to do more than just voice generalized concerns about the capacity of Montgomery Hospital: they should have supplied a good reason for doubting Mont-gomery Hospital's ability to handle the expected "few" contaminated in-jured persons from SCIO.

The inmates' criticism of the Linnemann affidavit is both unjustified and unavailing to their cause. Dr. Linnemann's affidavit was attached to PECo's response to an earlier set of contentions (not at issue here) prof.

fered by the inmates. See Applicant's Answer, supra note 17. Because that version of the contention on medical services was extremely cryptic, Dr. Linnemann's affidavit understandably did not address in detail every discrete element of the treatment capability of Montgomery Hospital, particularly those matters not explicitly identified by the inmates as areas of concern. See Proposed Contentions of the Oraterford Inmates (Feb.

l 15,1985) [hereafter, " Original Contentions") at 8. The inmates cannot 8' hennegamery Haspesel apperonaly is the facihty des rounsely trenes SClo inmetes. See Applicant's Answer to Proposed Eniersency Planning consenssone (Apr. 4.1965)[hereener,"Appiscant's Answer j at 6 a.8; ucenese's Snef et 29.

236 i

l.

l l

l l

l

l reasonably or fairly find a basis fc.r their later contention in an omission frons an affidavit intended to respond to a different docnn=nt. In any event, Dr. Lins =mann unequivocally concluded that " Montgomery County (sic] Hospital has adequate facilities, plans, procedures and trained staff to handle contammated and injured patients." Applicant's Answer, Affidavit of Roger E. Linnernanzi, M.D., at 3.88 Sde also Licens-ee's Proposal for Resolution of Remanded Issue (Nov. 18,1985), Attach-ment (Nov. 15, 1985, letter from president of Montgomery Hospital

' agreeing "to respond to PECO requests to provide hospital treatment for victims of radiological accidents, including (but apparently not limited 4

to) contaminated individuals from the Limerick Generating Station").

The inmates have failed to specify and explain why, in view of these facts, they still doubt the adequacy of Montgomery Hospital. 'Ihe Li-censing Board therefore correctly rejected the inmates' medical service, contention.88 D. Stanisted Evaeustion Plan Exercise 10 C.F.R. I 50.47(b)(l4) requires "[p]eriodic exercises . . . to evaluate I major portions of emergency response capabilities, periodic drills . . . to develop and maintain key sidlls," and the correction of identified deft-ciencies (emphasis added). The inmates contend that there is no reason.

able assurance of the adequacy, under this regulation, of a " table top" evacuation exercise conducted for SCIO on March 7,1985. In particular, they claim that the exercise was deficient because it assertedly did not i

es Dr. I h in Amasiste Professor of Cliamel 8%y at the (JWveresty of Poemsylvania School of Modessee. .tse Profummenal C ~ . Rogst E. r h KD fol. Tr. 9772.

8' Before the Leoensing Board, the lasseess ressed several other argumenes is commeceson with this coe.

emmelon. Bunsene they do not pursue them on oppsal. we ased not address these here. We also need not addrums PBCo's argument sceneraing the (**'s h of Pedicy on Emergency Flamens standard 10 CFR $0.4?(bMl2h* 30 Ped. Reg. 20,s92 (19sSK The W adopted that semessent as

{ an inesnm response to the court's rumand in GUAAA sep,e p. In It penses to those estemacos where estual enW la esselsel arrangemeses have been idensiAnd and a quessoa thus has artsen as to the prepnsey of linease isomanos pureuses to 10 CF.R. l 30.47(cXI)(ase sapre p. 233), notwebseending the esAcisney. By comerest, the immeess' med6cel services - lecha even the basis and spesencety re-gered for adension. and the circumasances that would trtager e of the Policy Seseement therufsse do met portman, one asener, however, does warrant our attemmon. The 8 6-==g meerd omsmeieuy concluded, as it had in an earher desisson comesnung a sunder ersunset by emother party. that a hospeaal sectediend by the Joint tw--.= on Hampstal Accredseneson (JCHA) is messumartly adequate for purpoess of 10 I CFA $ 30.4?(b)(12) Useamms Board order of June 12 at 8. subesguendy. la ALAS-419,22 NRC at 78314 a a.44, we rejected that reassenes in the Board's earher decision. The Board's comment on the eSest of JCHA ascrednession, however, la herudsen error, glves our agreement weh the Daard that the immesess' comessense lechad base and spacencity la any evene. Moreover. Dr. f h's adtdevW (me sepse p. 23s) provides assee infonnesion than the more fhet of JCHA accredmamon. Finally, we nose that she iusseems did not argue in theer knot ce appeal (as did the laservonor la ALAa-819,22 NRC at fil.

is)ihet en adequees bashup hasynelis also needed.

I 1 m L

.- . , . , .,--.,,-,,,.-,.n- - _ n ,,_-.c ,, _-_,,- ,-,_,,n---- ---. _ , , ,-- - - - - - - -

1 include certain elements or scenarios listed in,NUREG.0654, Criterion N.3.e.no Proposed Revised Contentions at 15-16.

The Licensms Board rejected this cantention on the ground that it lacks basis and specificity. The Boero noted that the inmates did not either identify any deficiencies in the scenarios used or justify inclusion of those others listed in NUREO.0654, Criterion N.3.e. No'r, in the Board's view, did they give any reason for disputing FEMA's finding that this was a successful remedial exercise. Licensing Board Order of June 12 at II.

On appeal, the inmates argue that all the justification they need for in-clusion of the elements specified in NUREG.0654, Criterion N.3.e., is found in the criterion itself. They also argue that Union of Concerned Sci.

.I entists F. NRC, 735 F.2d 1437 (D.C. Cir.1984), cerr. denied. 469 U.S.

1132 (1985) [hereafter, "UCS"], precludes the removal from licensmg hearings of issues concerning the adequacy of emergency preparedness exercises. They note that FEMA findings under the Commission's regu.

lations are only " rebuttable presumptions" (see 10 C.F.R. I50.47(a)(2))

and request the right to rebut at a hearing FEMA's finding of adequacy L in connection with the March 7,1985, exercise. Inmates' Brief at 1719.8*

The Licensing Board correctly rejected the inmates

  • contention for lack of basis and specificity. In the first place, as we have explained pre-vioicsly, NUREO.0654 " simply serve (s) as guidance for the staff's review [of emergency plans] and [does] not prescribe regulatory require-ments." ALAB.819, 22 NRC at 710. Further, Criterion N.3.e. itself pro-vides that exercises or drills include "such things as simulated casualties,"

J .

etc. (emphasis added), indicating that the elements listed are to serve l only as examples. Criterion N.I.b. states that "[t]he scenario should be l varied from year to year such that all major elements of the plans and i

i preparedness organizations are tested within a five. year period." Thus, even if NUREG.0654 set " requirements," Criterion N is sufficiently flexible to permit substantial variation in the scenarios played out during i

' emergency exercises. Therefore, contrary to the inmates' belief, satisfac.

' tion of the basis and specificity requirements of 10 C.F.R. I 2.714(b) re-quires more than the mere invocation of NUREG-0654, Criterion N.

I Once again, the inmates were obliged, but failed, to identify the particu.

lar deficiencies they perceived in the March 7 exercise.

l t

. se For en pie. smii d e in c<nise are d.,.ri re c or p rio el. or pro.

tactive clottums, deployammet of. . noenstorums tenses, and pubhc informiseson activessee.

2 as The immenses do not pursue on appeal the arsussens advemoed and rejected below, resardins this cou.

, m that the sClo esmerosary pian is danceses for fedure to mesmenon by manne any sClo esmployee involved la the ^ _ process, ser Licemanssoard order of June 12 as 11.

238 s

4

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

l l

l

- The FEMA report on the exercise described the activities of the ap-pron-ately five-hour period during which a simulated evacuation of the inmates took place. It noted that the results were "very positive" except In two Category B (i.e., of lesser importance) areas. The exercise in-

  • volved testing of certam elements of the communications system and co-orrhamenan among emergency teams, including SCIO, Bureau of Correc-4 tions, and PEMA personnel. Vehicle loading teams were assembled, and

?

inmate and medical records and food were packed. SCIO was instructed to issue potassium iodide (KI) and duJ ary. An advance team was dis-patched to a relocation center, and a lockdown of the inmates (we Infra

p. 247), precedmg simulated evacuation, was effected. See Letter from 4 D.F. Hassell to Licensing Board (Apr. 2,1985), Enclosure (FEMA Memorandum of March 14,1985).88 The exercise thus successfully simu-lated the " major" elements of an emergency evacuatior,. See 10 C.F.R.

I 50.47(b)(14). In order to litigate the matter, it was not unreasonable for the Licensing Board to have expected the inmates to explain "with res-sonable specificity" (10 C.F.R. 5 2.714(b)) why, despite the FEMA report and the requirements of section 50.47(b)(14), the March 7 exercise was nonetheless deficient.

The inmates correctly note that FEMA fmdings are only rebuttable presumptions in NRC proceedings. But before a party can exercise its right to challenge a FEMA finding at a hearing, it must, of course, prof-fer a contention that satisfies the basis and specificity requirements for -

admissible contentions. Similarly, the UCS decision,735 F.2d 1437, does

- not support the inmates' arguments. There the court overturned a former Commission rule that prohibited the litigation of the results of emergency preparedness exercises. But here the Licensing Board excluded the in-mates' contention for lack of basis and specificity, not because of the NRC rule already overturned in UCS. Further, nothing in the UCS deci.

sion suggests that it was intended to override the fundamental Commis-sion prerequisites for the adjudication of contentions.

E. Panic I The inmates contend that there is no reasonable assurance that the SCIO emergency plan will prevent panic by the guards or inmates. They refer to several factors that assertedly warrant special consideration of the potential for panic and disruption during an emergency at Limerick.

l l

SCIO is a maximum security penal institution, housing approximately i

The immeses, of course. had tlue FEMA report et the tune they prepared their Proposed Revised Contentions.

239 i

- . _ _ . . . - ,_,_ __m_.___.-,__ _ _ . _ _ . , .. _ ,. . , _ , . ~ , . . _ , ~ , . . . . .

2500 inmates in space designed for 2000. Overcrowding taxes the re-sources of the facility and makes control of the prison population more difficult. Several escape, hostage, and riot incidents since 1980 serve as

evidence of the potential for disruption. Proposed Revised Contentions at 16-19.

The Licensing Board rejected this contention essentially for lack of a specific basis. It found nothing in the SCIO emergency plan or else-where to suggest that the authorities could not handle any such disturb-ances. The Board explicitly assumed that the guards would perform their duties and that the inmates would therefore be controlled. Licensing Board Order of June 12 at 12. On appeal, the inmates take particular ex-lL ception to these assumptions; in their view, these are conclusions on the i

' merits that can be reached only after a hearing. They also argue that the incidents they cite provide a sufficient basis for the contention. Inmates'

. Brief at 19 20.

We agree with the Licensing Board that this contention lacks a sufft-ciently specific basis to warrant its admission. To be sure, the various in- l cidents to which the inmates refer show a potential for disruption. But such disturbances are not unexpected in a prison environment, and SCIO personnel are tramed and required to cope with them as a matter of course. More important, however, the SCIO emergency plan expressly recognizes and addresses the special security needs of the facility in the event of a radiological emergency at Limerick, as well as possible stresses on the inmates and the workforce. See, e.g., Pennsylvania Bureau of Correction Rsdiological Emergency Response Plan, Appendix E,

, Annez 1 (Oct. 26,1984) [hereafter, "SCIO Plan"), at E 18, E 1 A 1 to E 1 A 3, E t B 2, E t D 1 to E 1 D 2.as In view of this special attention l in the plan itself, the inmates were obliged to explain more precisely why l the plan is nevertheless inadequate for the prevention and control of a l panic situation; the mere recitation of past disturbances at SCIO - none of which is alleged to have resulted in the type of panic situation con-templated by the inmates' contention - is not enough to establish a basis i for hearing on this issue.

l Similarly, the Board's " assumptions" concerning the guards' perform.

t ance of their duties and the restraint of the inmates were not improper or unfounded. For them to have -w in gaining the admission of their contention, the inmates should have supplied a colorable reason for be-lieving that the guards would or could not restrain the inmates in a se h- the SCIO Plan is sell subject to a preessave order issued by the IJeseems Board on Marsh 419sS. our descummon of any port 6on of the pian is assessardy crypeo. 5ee des moes 30.

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i manner that would permit implementation of the plan. In the absence of such a reason, the Board's assumptions are logical.8*

t II. LITIGATED COPfI'ENTIONS A. Training One of the two inmate contentions admitted and litigated concerns the ,

training for civilian i-r' (e.g., bus and ambulance drivers) to be r

used to evacuate SCIO in case of an emergency at Limerick. As prof.

fered and admitted, the contention reeds in pertinent part: "There is no reasonable assurance that emergency response training will be q0irred to civilian personnel who will be involved in the emergency response plans . . . ." Proposed Revised Contentions at 6 (emphasis added). The basis for the contention is a two-part criticism of the means by which '

1 PEMA is to oWer this training - i.e., a letter from Donald F. Taylor, Director of PEMA's Office of Training and Education, to all bus compa-nies providing service to the Bureau of Corrections. See Answer of the

' Commonwealth of Pennsylvania (Apr. 4,1985), Exhibit B. The inmates r first assert that this letter does not " guarantee that the employees will 3

. ever receive any notice of the opportunity to avail themselves of this

training program." Proposed Revised Contentions at 7. Second, they j

contend that the training ofered by PEMA to the bus drivers involved i j in an evacuation of SCIO is not as comprehensive as that offered to bus

' drivers used for school evacuations. IW4. See eles Licensing Board Order li of June 12, Appendix at 12.

After a hearing on this matter, the Licensing Board found that f

"[t]eesonable efforts are being made to oWer training to civilian person. ~

nel who would be involved in an evacuation of Graterford." LBP 8$.25,

< 22 NRC at 104. It relied on not only the PEMA letter criticised in the lamates' contention, but also Mr. Taylor's commitment to follow up his

! letters with personal visits to the bus and ambulance companies, urging

! them to participate in PEMA training activities. The Board noted that ,

training sessions would be scheduled at times and locations convenient for the drivers and that refresher courses would be available annually.  ;

' Id. at 10405,108. The Board also considered the nature of the training and concluded that it is essentially the same as that ofered school bus i

drivers, including an overview of basic radiological principles and in. l a n. use e somd sort =ny cherv.4 ihm on i.ama sammessy met so mehe == e.me===

' amore spanne throush the dissovery presome. "ooetrary to the regenremone that 64 he seNistemely aposene et the osseet." usensens asard Order of June 12 et 12. see sepee p. 235. ase she 10 C F R. $ 1.feathitt) i (dusevery beeins only eAer the idonesAremon of the meneers la eenerovevey - to., the admismen of eso.

temmensk 4

4 j

i t

[

I 4

s struction on the use of dosimetry. Id. at 105-06,108. The Board stressed, however, that the bus and ambulance drivers would be espected simply to drive their vehicles and would not be responsible for inmate custody and control. Id. at 106,107.

In their brief on appeal, the inmates complain that the evidence ad.

duced at the hearing and the Board's decision are wrongly concerned only with the offer of training and not with whether the drivers will actually receive the training. They note that, as of the date of the hear.

Ing, PEMA had received no responses to its offer of driver training. The inmates also refer to the testimony of their own witness, Major John D.

Case (a former prison warden), that financial incentivrs are r-eded to en.

courage driver participation in the courses. Inmates' Brief at 2125.88 It is not surprising that the evidence and Licensing Board decision focus on the issue of whether training is or will be offered to the civilian drivers, for that is precisely the issue the inmates' contention, as admitted by the Board, unequivocally raises. See Licensing Board Order of June 12, Appendix at 12. Whether the inmates actually intended all along to litigate the issue of the drivers' receipt of training, or whether they have simply seized on an issue they believe to'be more likely to succeed on appeal, is r.ot clear. But in either case, it is far too late at this juncture to recast their contention. As we have stated twice before in similar circum.

stances in this proceeding, intervenors are "' bound by the literal terms'"

of their own contentions. ALAB.836,23 NRC at $05 (citing ALAB.819, 22 NRC at 709).

It is particularly reasonable here to bind the inmates to their own words because they had a second opportunity to formulate their conten.

tions. See ALAB.806,21 NRC 1183. The original version of this conten.

tion alleged no reasonable assurance that the drivers will " receive" any emergency response training. Original Contentions at 8. In the later ver.

sion of the contention now at issue, however, the inmates changed "re.

ceive" to "will be offered" and specifically complained, in addition, that the PEMA letter is " inadequate , , . notice of the opportunity (for driv.

ers) to avail themselves of this training program." Proposed Revised Contentions at 6,7. Given the plain meaning of these words and the sur.

rounding circumstances, it was thus not unreasonable for the Licensing Board and the parties to focus the hearing on the offer of training rather than its receipt.88 as The inmeses me6e no argenwate in connecison wuh the nature and scope of the drtver training. They aise do not detectly challenge the anord's conclasson that toesonable efforts em being underta6en to "oNef" treseme le the drivert

The 6nmaase' contenteon ense refer to 10 C P R. l 90 4% Milk which requires radaulogical emergency toeponse treenmg to be "psensded to thnee who sney be talled on to ensist in an emergency"(emphasse cann e 242

That is not to say that the record and decision are silent on the matter of whether training will, in fact, be provided to the drivers. Despite the

- inherent limitations in the wording of the inmates' contention, the LI-censing Board nonetheless addressed Major Case's testimony regarding

the asserted need for financial incentives to assure driver =e~a*=ae- of training. The Board, however, found that Major Case had supplied no reasons for his " belief." LBP-85 25, 22 NRC at 10607. It also indicated that Mr. Taylor holds a contrary belief on this subject and pointed out that the overall standard for emergency plannmg is "' reasonable assur.

1 ance,'" not a "' guarantee.'" Id. at 107. The Board accordingly con-

' cluded that there is " reasonable assurance that training will be offered j and accepted by bus and ambulance providers." Id. at 108 (emphasis added).

In their attempt to show that the Board's conclusion is unwarranted, the inmates rely on Major Case's testimony about the need for a financial inducement. See Statement of Major John D. Case, fol. Tr. 20,930, at 5 (pages unnumbered); Deposition of John D. Case, fol. Tr. 20,930, at 40-42; Tr. 20,938 39, 20,95152. Major Case's view on this matter is not as baseless as the Licensing Board suggests. See LBP 85 25,22 NRC at 106-07, His experience in training corrections officers and in the Marine Corps has led him to conclude that civilian employees usually need some type of monetary incentive to attend courses. He also suggested, how-4 ever, that if such training was offered during duty hours, or off-duty at j premium pay, his concerns would be alleviated. Case Deposition, fol. Tr.

1 20,930, at 40 42. On the other hand, Mr. Taylor (representing PEMA) testified that, based on his experience in emergency preparedness train-

! . ing, he had no real reason to doubt that drivers would participate in the training, even without a Snancial incentive. Tr. 20,868, 20,869. He also stressed that the training sessions would be conducted at times and places j convenient for the drivers. Testimony of Donald F. Taylor, fol. Tr.

p 20,856, at 4. Further, he suggested under cross examination that, if finan-

cial incentives become an issue, reimbursement is not foreclosed and I could be explored through various channels, including PECo. Tr. 20,864.

i The FEMA witnesses t: stifled that, even though training had not yet been provided to any drivers at the time of the hearing, there was no indication that drivers would not ultimately participate in the program.

Tr. 20,997, 21,004, 21,006.

added> reopoma nev d conwntione a s. em the ine so on io conwid (u) ihm en=reener personnel "should he given the opportunety to receive the trarwng" - bnngang the focus of theer con.

cera back to the oNet and notice of tremens. not its actual receipt. In any event. the immeses dad not object to the 1.icenseng acord wltee 60 fenled to lacleads thes matenal in the rectatentent of the contention at the time of its adense6cn. and it is too late to do ao now. See (Jcenomsacord order or June 12.

Appenes at 12.

243

Because of the wording of the inmates' contention, the record on this matter is necessarily limited. But, on balance, we cannot conclude that the Licensmg Board's determination is unsupported or unreasonable. We therefore affirm the Board's decision insofar as it concerns the inmates

  • civilian driver training contention.

B. Esthmeted Time of Eveemation De Commission's emergency planning regulations require an evacu-ation time estimate (ETE) for "various sectors and distances wit'ain the plume exposure pathway (emergency planning zone) for transient and

, permanent populations." 10 C.F.R. Part 50, Appendix E, f IV. No par-i ticular time limits are established for an evacuation; rather, the analysis is intended to reflect a realistic time for completing an evacuation. Thus, by using the' ETE, emergency coordinators can then decide what protec-tive actions (e.g., sheltering or evacuation) are warranted in the circum-stances, if a radiological emergency occurs. ALAB-836,23 NRC at 486, 491. See also NUREO.0654, Appendix 4.

When the inmates prepared their contentions, the then-current Bureau of Corrections estimate of the time needed for evacuation of SCIG was six to ten hours. See Applicant's Motion for Exemption (Feb. 7,1985),

Affidavit of E. Robert Schmidt and Geoffrey D. Kaiser at 7. The in-mates' contention asserted that there is no reasonable assurance that an evacuation of SCIO could be achieved within this time frame. Proposed Revised Contentions at 11. The inmates raised questions about the ade-quacy of the methodology used to derive the ETE. They also called par-ticular attention to NUREO.0654, Appendix 4 at 4-3, which states that 4

ETEs for special facility populations (such as a prison) "shall usually be done on an institution-by institution basis." Proposed Revised Conten- t tions at 12.87 The I.icensmg Board devoted the major part of the hearing and its de-cision to the consideration of the inmates' ETE contention. The Board i

noted at the outset that the six-to-ten hour ETE, developed by Bureau of l Corrections Commissioner Glen Jeffes, was revised by SCIG Superin-tendent Charles H. Zimmerman. The revised ETE is eight to ten hours

and is reflected on a " flow chart," showing vehicle arrival and loading times, off-duty personnel mobilization times, and the completion of evac. '

{ untion. See Testimony of Charles H. Zimmerman, fol. Tr. 20,763, Flow I Chart. The Board reviewed. the methodology and different elements of l

l " The nameses also -- . I that the sClo Plan itself contained no ownuon of the ETE. Propoemd Reviend Canesetions at 11 13. Ser i@u pp. 24s-49.

244 f

4 the revised ETE, found the estimate reasonable, and concluded that it is in compliance with the NRC's regulations and guidance. LBP-85-25,22 NRC at 109-16. The inmates, however, disagree and pursue numerous ar-guments on appeal concerning the methodology and reliability of the ETE. We address their claims seristim.

1. The inmates complain that there have been three different ETEs prepared for SCIO by different persons, and that the discrepancies among the three " establish a prima facie case as to the unreliability of each and every" one. Inmates' Brief at 26. They add that this shows a lack of coordination and cooperation between the relevant emergency response organizations and constitutes a flaw in the planning process. Id.

at 27 28. The first ETE, prepared in 1980 by the Comminananer of Cor.

rections, estimated an evacuation time of five and one-half hours.es The

' second is the six to ten hour estimate by Commissioner Jeffes in early 1985 (see suspm p. 244), and the third is Superintendent Zimmerman's eight-to-ten hour ETE embodied in the flow chart submitted with his

. testimony at the hearing.

2 The inmates

  • arguments with regard to the three ETEs are without merit. The existence of differences among them is not unexpected, given the five year period between the first.and the last ETE and the fact that little or no serious emergency planning had begun yet in 1980. As more information became available, the estimate was refined - precisely the

~

process contemplated by the Commission's emergency planamg regula-tions. Indeed, only the last version prepared by Superintendent Zimmer.

man can truly be considered an analysis of the evacuation time for SCIO: it is the only ETE tendered as such and the only one that sepa-rately (albeit briefly) shows the various components of an evacuation (vehicle arrival, vehicle loading, etc.). Moreover, as Superintendent of

' - SCIO, Mr. Zimmerman is obviously in the better position from which to make the most accurate estimate of the time needed to evacuate Air facil-ity. Nonetheless - despite the inmates

  • protestations to the contrary -

Superintendent Zimmerman did in fact confer with Commissioner Jeffes on the final version of the ETE. See Zimmerman, fol. Tr. 20,763, at 2 3.

s' Than time ===aan, is shows on Immates Enhabet 1. e one-page encorps ham a c --j ETE pre pared for PECo in July 19so by NUs Corporation. The I wr cord a rejected the eshibit on the ground that it was not genmane to the issues being litisesed. See Tr. 20,772 77. 21,0s4 85. The only bene om wimch the Board could have property rejected the ennebet. however. was that it is " unduly repeti-tious " See 10 C.F.R. I 2.743(ch The entire NUsc' - i ETE was already admutsed into evidence et l

en earlier stage of clus prMme as Applicent Fam 32 (1.imerick Emergsacy Plesh Appendia H. See Tr. 20,898. The fact that the informatice contesned in the enlubit may be ' by more current tafonmotion elsewhere is the record does not deprive it of is status as evidence of record. Nor does it preclude the immates frees referring to ther" ' i ETE. or resmag legitnese q aaaa=a about which ETE is meest to apply. See Tr. 20,774.

I

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4-

2. The inmates challenge the ETE itself on several grounds. Citing the testimony of Major Case and the deposition of Robert L. Morris, the inmates' transportation and traffic engineering consultant, they claim that the eight-to-ten hour revised ETE is based on ideal conditions and over-looks traffic congestion caused by panic, public evacuation, and high-ways that may be closed due to meteorological conditions and radioac-tive fallout. The inmates specifically criticize Superintendent Zimmer-

' man's two-to four hour estimate of the time for the evacuation vehicles to arrive at SCIO, noting that the Superintendent has no training in traf-fic engineering. Inmates' Brief at 26,27,28 29.

The inmates are incorrect in their view that the ETE is based on ideal conditions. To be sure, it does not (and should not) reflect a " worst case" scenario. As the Licensing Board explained and the record demon-strates, time estimates a.re intended to be representative and reasonable so that my protec-tive action decision bened on those estianates would reAect realsetic conditions. An overly conservative ==e==e* could result in an ' ,,,, decision.

LBP 85-25,22 NRC at 109. On the other hand, an ETE should "[take]

account of a wide range of seasonal, weather, and other conditions."

ALAB-836, 23 NRC at 491. See NUREG-0654, Appendix 4. Superin-tendent Zimmerman's ETE does just that: in addition to the two-to-four hour estimated vehicle arrival time, the ETE explicitly increases this time to four to six hours under " adverse conditions." Zimmerman,

, fol. Tr. 20,763, Flow Chart. See Tr. 20,803, 20,808. Moreover, incoming vehicles will be moving in the opposite direction and on largely different routes from the general public evacuation. Tr. 20,803-05, 20,815 16,

{ 20,844-45. Traff'. congestion is therefore not expected to be a major factor with regard to vehicle arrival time.

i The inmates' criticism of the ETE on the ground that Superintendent l Zimmerman is not an expert in traffic engineering is without merit. In l the first place, Major Case essentially conceded the value of the Superin-l tendent's firsthand knowledge of the mechanics of the plan a id the oper-l ations of SCIO. Case Statement, fol. Tr. 20,930, at 4. More important, the inmates completely ignore the fact that FEMA's witness, Edward B.

Lieberman - an expert consultant in traffic engineering and the devel-opment of evacuation plans for nuclear power facilities - thoroughly analyzed Superintendent Zimmerman's time estimates and found them "certainly reasonable and somewhat conservative." FEMA Testimony of Edward Lieberman, fol. Tr. 20,956, at 8. See also 14. at 4 8. On the other hand, Mr. Morris (for the inmates) has performed no comparable, close 246 I

. . - - - ._. .- - -- _ - - -. . _ ~ -_ - .- _

analysis of the ETE, simply stating that factors like panic and meteoro-logical conditions should be considered. See Deposition of Robert L.

Morris, fol. Tr. 21,013, at 42-44, 60, 78 79 (cited in the Inmates' Brief at 29). Although the inmates refer to "Mr. Morris' estimatan" as "more reli-able," nowhere are those estimates revealed. Inmatan' Brief at 29. Indeed, Mr. Morris has never done any traffic flow analysis in connection with the evacuation plan for a nuclear plant and is not familiar with NUREG-0654. Morris Deposition, fol. Tr. 21,013, at 43, 33-34.

The inmates next challenge the estimate of one to two hours for mobi-4 lization of necessary off. duty personnel. See Zunmerman, fol. Tr. 20,763, Flow Chart. 'Ihe heart of their argument is that this estimate depends on the pyramiding call-up system used for mobilizing the off duty SCIO i staff- the adequacy of which the inmates unsuccessfully sought to liti-

gate. Inmates' Brief at 29-30. Because we have determined here that the 4 inmates were wrongly denied admission of their manpower mobdnatiaa contention (see supre pp. 229 33), the reliability of this part of the ETE is
necessarily in question. The manpower mobilization contention, how-4 ever, may well be eventually resolved on the merits in favor of PECo, l or in a manner that would not alter or conflict with the ETE. In this connection, we note that the Superintendent's estimate already includes
an adjustment for adverse conditions, increasing the time for mobilizing l off-duty personnel to two to three hours. Zimmerman, fol. Tr. 20,763, i Flow Chart. We therefore direct the Licensing Board and the parties, in the course of their consideration on remand of the inmates' manpower mobilization contention, to determine what effect, if any, the resolution of that issue has on the ETE.

The inmates also criticize Superintendent Zimmerman's estimate of 30 minutes to achieve a "lockdown" of SC10 - i.e., a return of all inmates to their cells to prepare for evacuation. The inmates cite Major Case's estimate of up to four hours and refer to several past incidents involving i power failures and hostage situations where it took hours to complete l lockdowns. Inmates' Brief at 30-31. But as the Licensing Board found and the record establishes, those incidents occurred before the installa-i tion of a backup emergency lighting system at SCIO in 1984. Since that time, lockdowns have taken less than 30 minutes, even during partial power failures. LBP.85 25,22 NRC at 113. The Board also pointed out that the lockdown time is not "a critical path item" because it will occur

during the two-to-four hour vehicle mobilization time. Id. at 114. More-over, Superintendent Zimmerman testified that, based on his experience, the inmates cooperate and thereby shorten the lockdown time when they 1 recognize the procedure is for their own benefit, as would be the case in an emergency evacuation. Tr. 20,782, 20,842. As a result of this testi-i I

f

I

~

mony, Major Case reconsidered his earlier four hour lockdown estimate and pronounced the Superintendent's 30. minute estimate " realistic," as-suming inmate cooperation. Tr. 20,946 47.88 Finally, the inmates contend that the ETE is unreliable becease it as-l sumes 2450 inmates at SCIG, whereas the population has already risen to 2500 and, in their view, is likely to increase. Inmates' Brief at 32. The inmates, however, overlook the Licensing Board's disposition of this ar.

gument, which we conclude is fully in accord with the record. The Board found that any increase in inmate population will be met by a cor-responding increase in staff and support facilities. Thus, it would have no effect on the estimated eight-to-ten hout evacuation time. LBP-85-25,22

  • NRC at i15. See Tr. 20,830 33.
' 3. Although the inmates no longer pursue it on appeal, one final
matter of " form" remains of concern to us. The inmates' contention com-
plains that the ETE is not specifically mentioned or included in the SCIO Plan itself. Proposed Revised Contentions at II,13; Licensing Board Order of June 12, Appendix at 3. The Licensing Board stated:

i whether the . . . estimate is in the plan, or not, dose not require litigation. m dia, of the plan will reveal its presence or absence. If absent. It will be inserted.

Licensing Board Order of June 12 at 9. The Board subsequently con.

cluded, however, that l

there is nothing in the Comminaion's emergency plannens requirements or guedence that requires the =**=an=4 time for evacusung a special facility, such as the SCIO.

l to be included in the radioissieel emersency responer plan )6r that speetelferility (see 10 CF.R. l $0.47; Appendia E,10 CF.R. Part $0; NtJREG.06$4/ FEMA. REP.1, Rev. I (November 1900).

LBP-85 25, 22 NRC at 115 (emphasis added). The Board's finding is technically accurate. The Commission's regulations, however, unques.

tionably require the ETE for SCIG to be included in oppikant PEco's emergency plan. See 10 C.F.R. Part 50, Appendix E, IIV (" Content of Emergency Plans"). See also 10 C.F.R. I 50.47(b)(10); NUREG.0654, se la then connecteos. Suponeeendent 7N essened that en addenduse to the immese handbook would be leased. desenhms emergency evacusesos r -_ Tr. 30,833-34. heeper Case agreed that thee la e "very good

  • IdeeL Tr. 30.938. The immanos now argue for the Gret thne ce appeal thee the ed.

dondues no inadegenes benemas of the h6gh ilheeracy rese and Spenesh.epenhang populasson et SClo. They ures. lasseed. en essergency dedt for the immeses. Inmeess' anaf et 3132.

As we essee et sepse p. 235. argumsate commet be property remad for the Arst thne on appeal. hoore.

over, the peones the immenes rame here are well beyond the scope of the ETE consenmon, w6th no eSort l co estafy ther* 's prorsquasese for reopenug the record for heartng on a new. but late conten.

teue. Ase Al.As.428. 23 NaC 13. If (1904k l

t i

I

Criterion J.8. The Com=semian has already directed this action, and we

- assene that it has been taken. See CLI-85-15,22 NRC at 188.

Despite the lack of a specific regula*iam prescribing it, the ETE neces-sarily must be readily available (logically as an add-win = to the RERP) to all those decision =alrers whom the ETE is to aid in decidag what protective actions to order. See supre p. 244. In the case of SCIO, the Commiaaioner of Corrections is the only official who can order an evac-untion (based on a PEMA recommeart=*iaa). SCIO Plan at E 16, E-t-10, E t il.no We lack the authority to order the Commonwealth's Bureau of Corrections or PEMA to incorporate the ETE for SCIO in the emergency plan for that facility, but we strongly urge them to under-take this minimal task. 'this can only enhance the -f+ '-  % proc-ess, as the NRC's regulations contemplate. It is also i i-ily impor-tant here, where the pertment ETE was prepared by someone other than the Corrections Commissioner or a PEMA official (i.e., Superintendent Zimmerman).

III. FAIRNESS OF THE HEARING The inmates' concluding arguments are directed to the conduct of this proceeding. They claim that they have been denied their right to a fair and impartial hearing, as guaranteed not only by the Commianian's own regulations (m 10 C.F.R. $ 2.718), but also by the U.S. Constitution. In-es we ne so.wwns um mfonaW. in cans no the sClo Pian. not ans, measuse it is preenceed inanna.

teon (ase supsw mese 23A tue also tocause - eurynemely - it was never tearoduced into evidense or otherwise incorperseed inao the record of this praesedans. (T1te prosessed nature of the plan could easdy have bosa preserved by accordung it "in camera

  • eastut) We espresand our concerns in thes regard in out order of June 3.190s (unpuWahadh at 12 (emag AerWIr Gar and Siserrer Ca (DiaWo Canyon No.

clear Power Plant, Unses I and th ALAB400, il NaC 227 (1980)k and asked the paness so -

la thsNe Censush the Unemang Board cousseded that the plant's assurhy plan (a proesseed docusment.

hhe the SClo emergsney plan here) comphed wish the NaC's regulamone - deepses the fact that the pass was not evidense of record and had never base enenused by the Board. We vacased the Bennre essemien, sesenstally on the ground that the Board's Andsage were " empty . . . in the shasase of sessahal evidense." /d at 23th la response to out order. PeCo, the seat, and the r *-wealth argue that DisNe Conson is doesn.

gusheWe la several respaces; the insneess take no & 06ven the lash of genusne dispute annong the peruse ohnet this matest a longehy discuamon of the maalanuss of, and deAhreness totween. DesNs Ceepen and thss proceedung le not warranted or asessaary. We noes. however. thee, whde the Licenesag Board's cleanses conclumen here (as in DisNe Cenpse)is that the SClo Plan meses all pen 6 ment reguia.

tory requagemenes that conclumen to espNc6tly lummesd so "the issues in comeroverty before us." LDP-SS.

  • 2$. 22 NaC at 116. As the peruse poemt out, the issess hegnand did not regenre serusiny of the contenes of the SClo Plan inestf. but rather invasved messors peripheral to or naming hem it. b8oreover, the evidence adduced at the haanng was more than the conclusionary ap=a== of escondary sourcse. on whsch the Licensing Board in DisNe Cenpme had rehed. Joe Il NaC at 229. In the sue _ . . de.

opsee cer chaeonifort weh thes - no one has been prejudeced and no unsAsl putyees would be served by taking esepe at thes lese sense to e# set formal inclusana of the SClo Plan in th* record.

249

T mates

  • Brief at 33. The inmates offer three examples of how their rights in this regard have assertedly been denied or prejudiced.85 First, they refer to the Licensing Board's issuance, upon the request of PECo's counsel, of a subpoena directing the inmates' witness, Mr.

Morris, to appear for a deposition. The gist of the inmates

  • complaint is that, although the Board was allegedly aware that Mr. Morris would be available, if at all, only on July 3,1985, the Board nonetheless directed him to appear on July 2. Id. at 35-36; Licensing Board Subpoena to Robert L. Morris (June 28, 1985); Letter to Judge H. Hoyt from A.R.

Love (June 28,1985). The inmates' argument is frivolous. They offer no explanation of how they have been harmed,88 nor could they: the sub-poena for July 2 was withdrawn and Mr. Morris was deposed on his date of preference, July 3. See Licensee's Brief at 40; Morris Deposition, fol. Tr. 21,013, at 1.88 In ap event, to preserve a claim like this for appeal, a party is obliged to seek relief first from the Licensing Board by moving to quash the subpoena (see 10 C.F.R. 9 2.720(f)) - action that the inmates failed to take here.

Citing Tr. 20,809-11, the inmates next contend that the Licensing Board improperly solicited and then sustained an objection from the Commonwealth to certain cross-examination by the inmates' counsel. In-mates' Brief at 36. The transcript, however, simply does not support the inmates' characterization of the events reported. Nor do we see any im.

proper interference by the Licensing Board in this particular exchange.

The Board essentially interrupted Superintendent Zimmerman when his answer strayed into the area of manpower mobilization - which the Board had earlier, albeit incorrectly, excluded from litigation - and then entertained (rather than invited) objections to the questioning by the Commonwealth's counsel. This action is implicitly, if not explicitly, within the Board's authority "to take appropriate action to avoid delay,"

to " receive evidence," to "(r]egulate the course of the hearing," and to

"[e]xamine witnesses." 10 C.F.R. f 2.718. See also 10 C.F.R. 9 2.757.

88 The inmates introduce ther argument wnh a recitation of the vanous obstacles they had to overcome to participase in this case. Inmaass' Brief at 33 35. The matters about which they complain, however, were eventually resolved in their favor, and thus provide no bems for the instant appeal. See gewelly ALAD-804 Il NRC 1883; ALAB-809. 21 NRC lt05.

we note. in this regard that, despete the inmates' charge that the Licenung Board was biased agenst them at no time did they eset the disquahncation of the Board or any member thereof. See 10 C.F R.

6 2.704(c) See else hWie Jerodre Ca e/ New #empseere (seabrook station. Units I and 2), ALAB 749 18 NRC 1195. I198-99 (1983)(motions for duquahncation must be riled en soon as poseable aner ostens-ble grounds for such action sneek s' Apparently. Mt. Morns was offended by being served wuh a subpoena. See Tr. 20,899 900.

se As a further indication of the lack of harm to the inmates, the other parties and the Licenang Board agreed to eden the Moms deposition into ev6dence on behalf of the 6nmates, even though Mr. Morns did not appear at the beenes. L8P 85-23,22 NRC at 103 250

4 f

The inmates' last due process challenge is directed at the expedited

  • schedule for this proceeding. Specifically, they object to the abbreviated time for discovery and for submitting prefiled testimony and proposed findings of fact and conclusions oflaw. Inmates' Brief at 36-37.8*

Where the circumstances warrant it, the Commission's regulations clearly permit the adjudicatory boards to shorten the time otherwise au-thorized for each of the matters about which the inmates complain. See, e.g.,10 C.F.R. (( 2.711(a), 2.754(a). See also Statement of Pblicy on Con-duct of Licensing Proceedings, CLI 818,13 NRC 452, 453 (1981). Here, the inmates' contentions did not become ripe for litigation until quite late in the proceeding. Although this was not the fault of the inmates, the Licensing Board nonetheless properly recognized the need to expedite the proceeding, given the completed status of the plant. The Commission and this Appeal Board also encouraged the Licensing Board to act promptly on all matters raised by the inmates. See CLI.85 il,21 NRC 1585,1586 (1985); ALAB-809, supre note 2,21 NRC at 161415; ALAB-806,21 NRC at 1186,1193 94. Expedition, of course, should not be at the expense of fairness. But despite their generalized claims of unfairness, the inmates provide no evidence in their brief of specific harm. Indeed, all the parties were subject to the same time constraints, and the inmates agreed with the schedule at the time the Licensing Board proposed it.

See Tr. 20,729, 20,74142. See also Tr. 20,899. It is thus too late now to complain about it. Duke Pbwer Co, (Catawba Nuclear Station, Units I and 2), ALAB-813,22 NRC 59,74 & n.69 (1985).

In sum, the examples cited by the inmates do not support their charges l' on appeal of alleged unfairness and partiality by the Licensing Board.

1 IV. AWPP'S APPEAL AWPP also appeals the Licensing Board's decisions in connection with the SClO emergency plan.88 Although it was an intervenor in an-j other phase of this operating license proceeding, AWPP did not partici-pate in any aspect of the litigation involving the Graterford inmates. It filed no contentions or any other pleadings in this regard, and its repre-H The inmeses mies contend that the Board shined the burden of proof from the appHcant to thent, in violatoon of 10 CF.R. l 2.732, but they provide no specince to support thes charga. See lameess' Brief et 37.

[ ** AWPP meedirected its " Nonce of Appeel" (desed July 2s,1985) to the 1.icenesas Board. In out h i

order of August I,1985 (empubhehed) at 1. we tressed the appeal as properly Aled and cheerved that i the Nouce of Appset was eleo AWPP's bnef on the ments. Despite beans thus put on notice of our deserminanon to treet AWPP's Ahas as a bnet. PEco has faded to respond to the bnef and in therefore in default lneofer es AWPP's appeal is concerned. See 10 CF.R. 9 2.707. Both the staff and the Com.

monwenith, however, have comphed with the aules of Practice and addreened AWPP's argusients.

i 251 i

s i

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sentative did not participate in any of the conferences or hearings held by the Licensing Board. Indeed, until now, AWPP had expressed no in-terest in any aspect of emergency planning, limiting its concerns to air-craft carburetor icing caused by cooling tower emissions and quality as-3 surance. See ALAB-819, 22 NRC at 716 30. See also Petition for Inter-vention (Sept. 3,1981); Supplemental Petition of Coordinated Interve-nors (Nov. 24,1981); LBP 82-43A.15 NRC 1423,1519-20 (1982); LBP-8418,19 NRC 1020 (1984). Now, at the eleventh hour, AWPP seeks to pursue a variety of confusing claims in connection with the SCIO Plan.

AWPP fails for several reasons, and its appeal is therefore dismissed.

Only aggneved parties may appeal decisions adverse to them. Virginia ,

Electric and hr Ca (North Anna Power Station, Units 1 and 2),

4 ALAB 790, 20 NRC 1450,1453 (1984). A party cannot be legally "ag-grieved" for the purpose of appealing an adverse decision if it did not meaningfully participate in the process that led to the objectionable deci.

sion. As we stated in #bc(fic Gas and Electric Ca (Diablo Canyon Nu-clear Power Plant, Units 1 and 2), ALAB 583,11 NRC 447,448 (1980),

"[a]n administrative hearing would be a meaningless charade if those with ample opportunity to participate were allowed to stand idly by and then, nevertheless, demand a replay when they do not like the result."

See also Id. at 448-49. Cf Carolina Mr and Light Ca (Sheaton Harna Nuclear Power Plant), ALAB-837, 23 NRC 525, 542-43 n.58 (1986)

("intervenors have no standing to press before us a possible grievance of another party to the proceeding who is not represented by the interve-nors").

The staff argues, however, that "AWPP has the right to appeal," rely-ing on our decision in Northern States hr Ca (Prairie Island Nuclear Generating Plant, Units I and 2), ALAB 244, 8 AEC 857 (1974), recon.

sideration denied. ALAB 252, 8 AEC 1175, aff'd. CLI 751,1 NRC I

!' (1975). NRC Staff Brief, siepro note 7, at 47.se The staff has given that decision too broad a reading. In Protrie bland we held that e

a The mafr n on i r, ihm w. neverthelem reject AWPP's lmef "for failure to Ale proposed And.

ings of fleet and conclassons eher having had an oppomenety to do so." NRC staff Brief at 47. We do not agree that this would be a proper bases for rejectims AWPP's appeal. The ' hg Board did not l " order

  • the Ahns of propoemd Hadsage of fact and conclueenne of low under 10 CF.R. ( 2.754; rather,

, such Ahmes were opesonal See Licensins Board haemorendent and order of June it,19s$ (enpubhahed),

j as 3; Tr. 20,748,28,08416. In Derseer Adasse Ca (Enrico Ferine Atonus Power Plant. Unst IA ALAB.

709,17 NRC 17 (1983), we held that unless a hcensing board orders the subenssoon of propeesd Andenge and -.-. ' . e party feshas to do so is free to pursue on appeal all issues in which it particepseed holow.

252 l

l

_ _ _ . - . _ _ .-_ ._ _._ , . - ~ _ _ . . - _ . _ _ . .. _ , , _ _ , . _ _ __ _ _ _ . , _ _ . . . . _ .

in passins cwinia spacened issues into controveny lumasif, en intervenor iho id not be taken as waivins the riels to insist that eil other issues comang before the Board (weMe #Ae esekt q(Mr &sesteer as asesMshed APMr leasesseados pseWon) be decided la 1 , with the evidemos of record and opphoshie pnnoiples of low - no metter what the gensis of thoes issues or the source of the evidense.

- 8 AEC at 863 (emphasis added). See eJeo id. at 863 a.9 ("(i]rrespective of who raised the leaus, an intervenor might be aggrieved . . . by a Anding contrary to the weight of the evidence" on that issue (==ph=ia added]),

870 n.19 ("as we have endeavored to miske clear, the entire discussion in this opinion of intervenor part cipa*ir=al i rights hkewise presupposes the eela*= ace of the requisite interest in the outcome of the particular issue

. being considered"). Thus, whether an intervenor has the right to pursue a particular issue on appeal is a fonction of the level of interest espressed by the intervenor in such issue throughout the coures of the proceed.

Ing.87 Applying that rule here, we have no hesitation in concluding that AWPP has failed to desnonstrate the requisite laterest - indeed, esp la.

terest whatsoever - in emergency planning for SCIO so as to legitimise its appeal. See shpre p. 251.$2.

AWPP also raises matters beyond the scope of the lamatas' conten.

tions (e.g., the adequacy of the number of vehicles to be used for evaco.

sting SClO and the possible threat to the public esfety froni a prison riot during an evacuation). Such issues, of course, could not be raised by any party for the Arst thne on appeal. See sapre p. 235. As for the arguments that seemingly relate to issues otherwies suitable for appellate consider.

ation (e.g., the reliability of the ETE and the oiTer of civilian driver training), we have treated those portions of AWPP's Aling as an amicus brief. Thus, we have taken AWPP's views on thoes subjects lafn account in the course of our consideration of the lamates' brief.88 ,

j H Derh renamely propeesd an even sortstu rule, whish would heiis an imeervenor to resma isemse en oppsel that de pissed or seasha to plese to semeroversy. St Ped. Reg. 24.MS,34.Me, le.312 5 09eek

    • Despite the obw6eus defuses in AWPP's appeal, we essepted he bnsf for shag (ase susse essee If) and allassed 11 thee est oral argument Order of Ouester 3d,1985 (unpuhtuhadh at 1. asseus' ofIM reposted teseleses of several pantapanse (mese asashly. AWPp's repreussreewe) Itsoughout the nemes opereeng lesemos presseding (betere beeh the Lisemens amesd and uk we aseed eer e,posenstes that all the par.

ties' reprenomaanwee he en nume $st the oral argumsat and ledtested that '1olopose eenis Aser se# ser es .

psenemend se essma" M et 2 (empheme in ongmelt For the L of the out.cf stees pentes, we [

enheduled the arguesnt to inhe pisse in the easnemme and, as is owe praettee. we elemted ensh pony to  !

moury the asesd esoreenry as to who would appear en les behalf land i We resented me respumas hem AWPP to then lesest diseetswe, and, when the oral argweene began at the esheduled hour. not emppnangly, AWPp's reprensneseve was not pnuent, whereas all ehore were.

We seek noes of that test and gewe the nas preveously elleseed to AWPP 8et oral arguemens to the inmeess'soummel. App. Tr. 3. AWPP's repressnese6ve eenved laser and noserdingly was edvesed by the amese Chaenman (speshing en hohelf of the emure asard) that under the tonne of our Osteher 24 Order, he would not be allowed to panesepees. App 6 Tr. 4 dad'. p commmad i

1 P

i I

- ~ _ _ . _ _ ___

r t

The Licensing Board's Order of June 12, 1985, and its fourth partial initial decision. LBP-85 25, are 40frmed la part; to the extent they ex-

' clude the inmates' manpower inobilization contention, they are reversed.

' the contention is admitted and this matter is remanded to the Licensing

t '

Board for further action consistent with this opinion.

AWPP's. appeal, dated July 26,1985, is dismissed.

, It is so ORDERED.

FOR THE APPEAL BOARD s C. Jean Shoemaker Secretary to the Appeal Board 1

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i Atomic Safety and Licensing 1 Boards issuances ATOMIC SAFETY AND LICENSING BOARD PANEL (f)

B. Paul Cotter, *Chainnan Robert M. Lazo, *Vice Chairman (Executive)

Frederick J. Shon, 'Vice Chainnan (Technicel)

T Members O

O Dr. George C. Anderson James P. Gleason Dr. Linda W. Uttle Charles Bechhoefer*

Peter 8. Bloch*

Herbert Grossman*

Dr. Cadet H. Hand, Jr.

Dr. Emmeth A. Luebke*

Dr. Kenneth A. McCollom h

Lawrence Brenner* Jerry Harbour

  • Morton B. Margalies*

~

Glem O. Bright

  • Dr. David L Hetrick Gary L. Milhollin """

Dr. A. Dixon Callihan James H. Carpenter

  • Emoet E. Hill Dr. Frank F. Hooper Marshall 6. MAer Dr. Petar A. Morris
  • Hugh K. Clark Helen F. Hoyt* Dr. Cscar H. Paris' .

Dr. Richard F. Cole

  • Dr. Michael A. Duggan Bizabeth B. Johnson Dr. Walter H. Jordan Dr. David R. Schink Ivan W. Smith
  • W' Dr. Georje A. Fuguson James L. Kelley* Dr. Martin J. S*.eindler Dr. Many Foreman Jerry R. Kline* Dr. Quentin J. Stober Ricnard F. Foster Dr. James C. Lame til Seymour Wenner John H Frye til' Gustavo A. Linenberger* Sheldon J. Wolfe*
  • Pormonentpanel mer.%ers

l Cite as 24 NRC 255 (1986) LBP-86-27 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Dr. Robert M. Lazo, Chairman Dr. Richard F. Cole Dr. Emmoth A. Luebke in the Matter of Docket Nos. 50-250-OLA-3 50-251-OLA 3 (ASLBP No. 84-505-08 LA)

(Increased Fuel Enrichment)

FLORIDA POWER AND LIGHT COMPANY

. (Turkey Point Nuclear Generating Plant, Units 3 and 4) August 25,1986 MEMORANDUM AND ORDER (Granting Summary Disposition Motion and Terminating Proceeding)

Before us is a motion by Florida Power and Light Company (Li-censee) for summary disposition of Contention 3. Based upon our study of the motion, supporting documents, and the pleadings filed in response thereto, we grant the summary disposition motion. Inasmuch as Conten-tion 3 is the only contention admitted for litigation, no other issues remain in controversy. Accordingly, we close the record and dismiss this operating license amendment proceeding.

B5

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i L BACKGROUND OF PROCEEDING On June 20,1984, the Commission published in the Fedemi Register a notice of consideration of the issuance of amendments to the facility op-

' erating licenses for Turkey Point Units 3 a'nd 4 and offered an opportu-nity for a hearing on the amendments. 49 Fed. Reg. 25,350, 25,360. The amendments were requested to allow storage of fuel with increased en-richment, for use in future operating cycles, and include an additional K.,(neutron multiplication factor) requirement for the existing new fuel storage racks under conditions of low density (optimum moderation). In support of this request, Licensee submitted a " Criticality Analysis of Turkey Point Units 3 & 4 Storage Racks with Increased Enrichment" (Criticality Analysis).

In response to the notice of opportunity for a hearing, Joette Lorion and the Center for Nuclear Responsibility, Inc. (collectively referred to herein as "Intervenors") filed a " Request for Hearing and Petition for Leave to Intervene" on July 12,1984.

' During its review,' the NRC Staff (Staff) submitted written questions to Licensee regarding its request to expand the capacity of the Turkey Point spent fuel pools. Licensee submitted written responses to these questions which supplemented the information in the Criticality *nalysis. ,

  • Following comf letion of its review, the Staff determined that the re-quested amendrnents involved no significant hazards consideration, and issued the licewe amendments on September 5,1984, accompanied by a Safety Evaluation (SE).

The Intervenors submitted an " Amended Petition to Intervene" on March 7,1985, which listed four contentions that the Intervenors pro-posed be admitted for litigation in this proceeding. Following a prehear-ing conference on March 28,1985, the Licensing Board issued a Memo-randum and Order (unpublished) dated September 24, 1985, which ac-cepted the Intervenors as a party to this proceeding and admitted Con-tention 3 for the purposes oflitigation.

On January 23,1986, Licensee filed " Licensee's Motion for Summary Disposition of Contention 3" (Motion). The Motion is accompanied by a statement of material facts as to which it is asserted there is no genuine issue to be heard, and an affidavit concerning the contention by Dr.

j Stanley E. Turner.

j The Staff on February 18, 1986, filed a response in support of Licens-ee's Motion. (NRC Staff Response to Licensee Motion for Summary Dis-position of Contention 3). The Staff response was accompanied by an

, affidavit of Dr. Lawrence I. Kopp regarding Contention 3.

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On March 19, 1986, Intervenors filed a response to Licensee's Motion together with "Intervenors' Statement of Material Facts as to Which There Is a Genuine Issue to Be Heard with Respect to Intervenors' Con-tention 3" and an amdavit by Joette Lorion. ,

II. LEGAL STANDARDS FOR

SUMMARY

DISPOSITION Summary disposition of contentions in NRC proceedings is governed by 10 C.F.R. I 2.749.8

< Under 10 C.F.R. I 2.749(a), any party may move, with or without sup-porting amdavits, for a decision in its favor as to all or any part of the matters involved in the proceeding. Such a motion must be accompanied l

by "a separate, short and concise statement of the material facts as to which . . . there is no. genuine issue to be heard." Id. Any other party may support or oppose the motion. If it opposes the motion, a party 4 must file its own statement of the material facts as to which it contends -

there is a genuine issue to be heard. Material facts are deemed to be ad-mitted unless controverted by the opposing party. Id Under 10 C.F.R. { 2.749(b), when a motion for summary disposition is filed and is supported by amdavits, "a party opposing the motion may not rest upon the mere allegations or denials of his answer." Instead, the opposing party's " answer by amdavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue of fact." Id. See also Houston Lighting and Pbwr Ca (Allens Creek Nu-

. clear Generating Station, Unit 1), ALAB-629,13 NRC 75,77-78 (1981);

_ Duke Pbwer Ca (Catawba Nuclear Station, Units 1 and 2), LBP.83-56,18 NRC 421,430 (1983). In particular, "[t]he opposing party's facts must be material, substantial, not fanciful, or merely suspicious." Gul/ States Utili-ties Ca (River Bend Station, Units I and 2), LBP-75-10,1 NRC 246,248 (1975) (footnotes omitted). A party may not oppose a motion for sum-mary disposition "on the vague supposition that something may turn up" at hearings, id.; nor may an opposing party rely upon general demals l

coupled with a claim that more information is needed for the party to l

evaluate the movant's analyses. Virginia Electric and Ebwer Ca (North l Anna Power Station, Units I and 2), ALAB-584,11 NRC 451, 455 (1980). Furthermore, 9 2.749(b) provides that "[a]mdavits shali set forth such facts as would be admissible in evidence and shall show amtma-a The standards for summary disposition under 10 C.F.R. I 2.749 are simular to those standards for sum.

mary judgment under Rule $6 of the Federal Rules of Civu Procedure. Tennessee ValJry AmrAsnry (Hartsville Nuclear Plant. Units IA. 2A. IB. and 28), ALAB-554.10 NRC 15,20 n.17 (1979); Cle, eland Electne Illsamerug Ca (Perry Nuclear Power Plant. Units I and 2), ALAB-443. 6 NRC 741. 733 54 (1977).

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tively that the affiant is competent to testify to the matters stated therein." If such an answer is not filed, summary disposition shall be granted, if appropriate.10 C.F.R. I 2.749(b).

Under 10 C.F.R. 5 2.749(d), summary disposition shall be granted if the Slings in the i e-  ; depositions, answers to interrogatones, and adniis.

siens on Sie. together with the sta*-*= 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 oflaw.

HI. DISCUSSION OF CONTENTION 3 Contention 3 and the bases for the contention state as follows:

consention 3 That the uraniumi enrichment ===I-ats increase the chances of a enticality acci-dent occurnag in the fresh fuel pool and establishes a clear reduction in the safety unargin of the fresh and spent fuel pool.

Basesfor Contention a) The U-235 loading of $2A0 grams per axial centimeter (SER pg 2). is the maxi.

mum loading which can assure a K e of no greater taan 0.95, including uncertainties.

Thus, the safety margins for the enrichment of the fuel have been pushed to the limit and leave no margin of safety.

b) The increase of cnticality from 0.95 to 0.98 for the fresh pool pushed the critical-ity of the pool closer to criticality, which is 1.0. This increases reactivity and in.

creases the MU y tof a criticality accident and/or loss of fuel cooling system flow. Thus, the requirements of 10 C.F.R. Part 50, Appendix A. criterion 62 will not be met.

In admitting Contention 3, we stated that "the contention should be read as challenging the adequacy of this acceptance criteria by alleging that K.sr of 0.98 is not adequately safe for fresh fuc.1 exposed to abnormal, op-

- timum moderation conditions and 0.95 is not adequate for fresh or spent fuel exposed to the abnormal condition of full flooding with unborated water." Memorandum and Order (September 24,1985) at 7-8.

The matenal facts regarding the issues raised by this contention are not in dispute. These facts are summanzed below.

The new fuel storage vaults and the spent fuel storage pools at Turkey l

l Point are unrelated facilities and are physically located in separate areas of the plant. The new fuel storage vaults are intended for the receipt and temporary storage of fresh unitradiated fuel assemblies being shipped into the plant. These fresh fuel assemblies do not require any shielding or cooling and, under normal conditions, are stored in a dry condition in i

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the Turkey Point new fuel storage vaults. The absence of a moderator for the fresh fuel assemblies in the new storage vaults assures very low values of Q with a large margin to criticality during normal storage of these assemblies. Spent fuel storage pools are designed and intended to store fuel discharged from the reactor core. The spent fuel assemblies are stored in borated water in the Turkey Point spent fuel pools. The pres-ence of boron in the spent fuel pool water absorbs neutrons and there-fore assures very low values of Q with a large margin to criticality during normal storage of these assemblies.8 Criticality analyses for fresh fuel storage areas and spent fuel pools are governed by General Design Criterion (GDC) 62 of Appendix A to 10 C.F.R. Part 50 of the NRC's regulations, which states that "[c]riticality in the fuel storage and handling system shall be prevented by physical systems or processes, preferably by use of geometrically safe configura-tions." The NRC Staff has issued guidance, in the form of Standard .

Review Plan (SRP) ${ 9.1.1 and 9.1.2 (NUREG.0800), for complying with GDC 62. SRP $ 9.1.1 states that the NRC Staff will accept storage racks for new fuel assemblies if the 4 of the assemblies is less than 0.95 for flooded conditions and if the Q will not exceed 0.98 for conditions of optimum moderation. SRP { 9.1.2 states that the NRC Staff will accept storage racks for spent fuel assemblies if the Keeof the assemblies is not greater than 0.95 for flooded conditions with unborated water.:

The design basis Q limits for the Turkey Point fresh fuel storage vaults i and spent fuel pools conform with the 4 criteria in SRP H 9.1.1 and 9.1.2.*

Intervenors are incorrect when they contend that the Turkey Point 4 limits are not adequate to prevent criticality. The Turkey Point 4 limits are less than 1.0, thereby assuring that fresh and spent fuel will be stored in suberitical conditions. Further assurance is provided by the fact that: (1) K.e is calculated by methods which have been calibrated and checked (thereby assuring the calculated values of K.e are highly reli-able), (2) all known uncertainties are included in the calculated values of i Kee, and (3) the K,e limits r.pply to very unusual and highly improbable accident conditions (i.e., the presence of unborated water in the fresh fuel storage vaults and the absence of boron in the sp,.nt fuel pool water), and under normal conditions the fresh and spent fuel assemblies are maintained in a strongly suberitical condition by the absence of a 8 Tarner AfRdavit.118-10t Kopp AfRdevit.11613.

s Ahhoush the sRP does not have the force of. . . the Appeal Board has held that "the staff p guadanoe and accepeance cntenom for spent fusi pool cruscaisty is antatted to consulershie weight." Com.

soumers Apuer Ca (Big Rock Poemt Nuclear Planta ALAS.725.17 NRC Sd2. 56s (19:31

  • Turner AfRdevit.111215; Kopp AfRdevit 113.

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moderator in the fresh fuel storage vault and the presence of borated water in the spent fuel pool. A criticality accident would be possible

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only if two independent and unlikely accident conditions were postulated to occur simultaneously. This possibility is act credible and is not re-quired to be considered under NRC Staff and industry standards.'

Intervenors also are incorrect when they contend that the Turkey Point Ken limits ** leave no margin of safety." The Ken limit of 0.95 appli-cable to the Turkey Point fresh fuel storage vaults and spent fuel storage pools under conditions of flooding with unborated water provides for a criticality safety margin of 0.05 AKen. "Ihis margin is a factor of five times the usual uncertainty included in the caiculated Ken for fresh fuel storage vaults and a factor of two or more times the normal uncertainty included in the calculated Kee for spent fuel storage pools. These safety

, factors are more than sufficient to assure that criticality will not occur.

Furthermore, the existence of optimum moderation uniformly through-out a fresh fuel storage vault is not a credible occurrence and represents a theoretical and conservative upper-bound condition. Consequently, the Ken limit of 0.98 for fresh fuel assemblies under conditions of optimum moderation provides a large criticality safety margin.'

Finally, Intervenors are incorrect when they contend that the in-creased fuel enrichment amendments reduced the margin of safety to criticality in the Turkey Point fresh fuel storage vaults and spent fuel pools. The amendments did not modify the preexisting Ken limit of 0.95 for the Turkey Point spent fuel pools and fresh fuel storage vaults under flooded conditions. Consequently, the amendments did not reduce the margin of safety provided by these limits. Although the increased fuel enrichment amendments did establish a Ken limit of 0.98 for conditions of optimum moderation in the fresh fuel storage vaults, there previously was no license requirement to consider optimum moderation in the vault.' Consequently, the Ke n limit of 0.98 is a new and additional re-quirement, and not a reduction in safety provided by a previous require-i ment.s l

l 8 Turner Afrulavit.116,

  • Turner Af5 davit.1118. 21. and 24,

' There is no K cntenon _ ' - -- to "opnmune moderanos" accidents in spent fuel pools, mace the presence of staanless steel passes between the - in the spent fuel storage rocks absorbs thenna.

haed neutrons and therefore removes the condshoes m for optunuan imoderanos. (Turner Amda-vit 123.) Additionally, the Appeal Board has naled that the Mt'ty of optimum moderstaos is a spent fuel pool need not be comedered when rehable makeup is provided for the pool. Consumers Arwer Ca (Bis Rock Point Nuclear Plant), ALAa.723.17 NRC $62 (1983),

  • Turner Amdavit.1119,22. and 23.

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i Intervenors have set forth in five numbered paragraphs (two bear the number 3) statements which it is asserted are material facts as to which there is a genuine issue to be heard with respect to Intervenors' Conten-tion 3. However, it is readily apparent on examination of these state-ments, that not one properly can be characterimi as a specific fact showing that there is a genuine issue of fact.

IV. CONCLUSION The K,e limits for the Turkey Point fresh fuel storage vaults and spent fuel pools conform with the NRC Staft's acceptance criteria. These limits require that the fresh and spent fuel assemblies be maintamed suberitical under postulated accident conditions, even when all known

' uncertamties are accounted for. Furthermore, these limits provide for margins of safety to criticality which are several times the normal uncer-tainties included in the calculated values of K.e. Consequently, the limits are sufficient to prevent criticality in accordance with the Commmaion's regulations. Since there is no genuine issue regarding any of these mate-rial facts, the Licensee is entitled to summary disposition of Contention 3 as a matter oflaw.

V. ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 25th day of August 1986, ORDERED

1. That the Licensee's Motion for Summary Disposition of Conten-tion 3 (January 23,1986) is gmated ; and
2. No other contentions having been admitted for litigation, the

- record is hereby closed and this operating license amendment proceeding

' is dismissed.

' IT IS FURTHER ORDERED, pursuant to 10 C.F.R. I2.760, that this Decision shall constitute the final decision of the Commission thirty

' (30) days from its date of issuance, unless an appeal is taken in accord-f ance with 10 C.F.R. f 2.762 or the Comnussion directs otherwise. See i

also 10 C.F.R. (( 2.785 and 2.786. Any party may take an appeal from this Decision by filing a Notice of Appeal within ten (10) days after serv.

ice of this Decision. A brief in support of such appeal shall be filed within thirty (30) days after the filing of the Notice of Appeal (forty (40) days if the appellant is the Staft). Within thirty (30) days after the period has expired for the filing and service of the briefs of all appellants (forty t

(40) days in the case of the Staff), any party who is not an appellant may 261 l

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file a brief in support of, or in opposition to, the appeal of any other party. A responding party shall file a single responsive brief, regardless of the number of appellants

  • briefs filed.

THE ATOMIC SAFETY AND LICENSING BONAD Robert M. Lazo, Chairman ADMINIGTRATIVE JUDGE Richard F. Cole ADMINISTRATIVE JUDGE Emmeth A. Luebke ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland, this 25th day of August 1986.

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Cite as 24 NRC 263 (1986) LSP-46-28 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

t Morton B. Margulies, Chairman Gustave A. Linenberger, Jr.

Dr. Oscar H. Paris in the Matter of Docket Nos. 50-424 OL 50-425-OL (ASL8P No.84-499 01-OL)

GEORGIA POWER COMPANY, et al. .

(Vogtle Electric Generating Plant, Units 1 and 2) August 27,1988 In this Partial Initial Decision, the Licensing Board finds that Appli-cants have provided adequate assurance that public ground water sup-plies will n >t be contaminated by an accidental spill of radioactive water, and that certain polymer materials to be employed in plant components that perform safety-related functions are environmentally qualified.

APPEARANCES Eruce W. Churchill, and David R. I4wis, Esgs., Shaw, Pittman, Potts &

Trowbridge, Washington, D.C., and James E. Joiner, Charles W.

Whitney, Kevin C. Greene, and Hugh M. Devenport, Engs., Trout-man, Sanders, Lockerman & Ashmore, Atlanta, Georgia, for the Applicants.

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Dousias C. Teper, Raymond Tingle, and Daniel Feig, Atlanta, Georgia, for the Intervenor, Georgians Against Nuclear Power.

Bernard M. Bordenick, and Lee Dewey, Esqs., Bethesda, Maryland, for the Nuclear Regulatory Commission Staff.

TABLE OF CONTENTS Page I. INTRODUCTION- . 264 A. Scope of Decision.. 264 B. Development of the Decision - 265 II. FINDINGS OF FACT 269 A. Ground Water Contamination - Contention 7 - 269

. B. Environmental Qualification - Contention 10.1 - 286 III. CONCLUSIONS OF LAW.. 293 IV. APPEAL - . 294

, V. APPENDIX - LIST OF WITNESSES (nct published)

PARTIAL INITIAL DECISION I. INTRODUCTION A. Scope of Decision The proceeding involves an application for an operating license for the nuclear Vogtle Electric Generating Plant, Units I and 2 (VEGP), lo-cated in Burke County, Georgia. The application was filed by Georgia Power Company as agent and representative for the co-owners, Georgia l Power Company, Municipal Electric Authority of Georgia, Oglethorpe Power Corporation, and City of Dalton, Georgia (Applicants). Interve-nor Georgians Against Nuclear Energy (GANE) contests the applica-tion. In this Partial Initial Decision, the Board considers two of three Intervenor contentions involving environmental and technical issues liti-gated at a hearing held in March 1986, in which Nuclear Regulatory Commission Staff (StafT) also participated as a party.

The three contentions heard, as originally numbered, consist of Con-tention 7 (alleging that Applicants have failed to assure that the ground 264 l

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k water below VEGP will not be contaminated by a spill of radioactive water); Contention 10.1 (alleging that Applicants have failed to assure that certam polymer materials, to be employed in components of the ~

VEGP that perform safety-related functions, are environmentally quali-fied); and Contention 10.5 (alleging that Applicants have failed to assure that certain models of solenoid valves that are to be used to perform safety-related functions in the VEGP are environmentally qualified). The Board has deferred ruling on Contention 10.5 because of the issuance, on August 25, 1986, of " Board Notification Regarding ASCO Solenoid Valves for Vogtle Units 1 and 2" (Board Notification No. 86-18). We have decided Contentions 7 and 10.1 in Applicants' favor. Staff had sup-ported Applicants on the contentions.

The Board found that: as to Contention 7,' Applicants have provided adequate assurance that public ground water supplies will not be con-taminated by an accidental spill of radioactive water at VEGP, and as to

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Contention 10.1, Applicants have provided adequate assurance that cer-tain polymer materials, to be employed in components of the VEGP that perform safety-related functions, are environmentally qualified.

  • The Board concluded that, as to the contentions addressed in this Par-tial Initial Decision, there is reasonable' assurance that, if an operating li-cense is granted to Applicants, the activities authorized will not be inimi-i

' cal to the common defense and security, can be conducted without endangering the health or safety of the public, and will be conducted in compliance with applicable NRC regulations.

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' B. Development of the Decision Applicants filed an application to operate VEGP on June 22, 1983.

The facility contains two pressurized water nuclear reactors and is lo-cated in Burke County, Georgia,26 air miles south southeast of Augusta and 15 air miles east northeast of Waynesboro. Each unit is designed to operate at a net electrical output of approximately 1160 megawatts.

The Nuclear Regulatory Commission (NRC) published a Fedeml Reg-ister Notice of Opportunity for Hearing on December 28,1983. 48 Fed.

Reg. 57,183 (1983). Petitions for leave to intervene and requests for hear-ing were subsequently filed by GANE, Campaign for a Prosperous Georgia (CPG), Coastal Citizens for a Clean Environment, and the Con.

sumers' Utility Counsel of Georgia. On January 31,1984, this Board was-l established to rule on the petitions to intervene and to preside over the proceeding in the event a hearing was ordered. 49 Fed. Reg. 4570 (1984).

l The Consumers' Utility Counsel withdrew its petition for leave to in-l tervene on February 20, 1984, and in a Memorandum and Order dated 265 L

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March 9,1984 (unpublished), we ruled that Coastal Citizens for a Clean Environment had not demonstrated the necessary interest to establish standing to intervene.

On May 30,1984, the Board conducted a prehearing conference to consider some two dozen proposed contentions submitted by GANE and CPG, many of which were identical. Thereafter, by Memorandum and Order of September 5,1984 (LBP-84-35,20 NRC 887), the Board admit-ted for adjudicatica nine separate contentions on environmental and technical issues, which GANE and CPG adopted as Joint Intervenors.

Contentions on emergency planning were permitted to be refiled after the emergency plans were submitted. This caused consideration of emer-gency planning issues to be delayed and considered separately from the other matters.

The contentions admitted by the September 5 Order, with their origi-nal numerical designations, were: Contention 7 (alleging a lack of assur-ance that a spill of radioactive water on site would not result in contami-nation of the aquifers underlying the site); Contention 8 (alleging a fail-ure to enforce a quality assurance program in the construction of the fa-cility that provides adequately for the safe functioning of dive.se struc-tures, systems, and components); Contention 10.1 (alleging that Appli-cants have failed to assure that certain polymer materials, to be em-ployed in components of the VEGP that perform safety-related func-tions, are environmer. tally 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 (alleg-ing that Applicants have failed to assure that certain models of solenoid valves that are used to perform safety related functions in the VEGP are environmentally qualified); Contention 10.7 (questioning whether the VEGP hydrogen recombiners have transducers or sensors that need to be qualified and whether the recombiners have been qualified as a unit);

Contention 11 (alleging that Applicants have failed to consider vibration-induced fatigue cracking and bubble-collapse-induced water hammer in the VEOP steam generators); Contention 12 (alleging that Applicants

(

t had not properly assessed the amount of salt and chlorine gas release

' from the cooling towers and the extent of consequent adverse agricul-tural and environmental damage); and Contention 14 (alleging that there is no reasonable assurance that the emergency diesel generators manufac-tured by Transamerica Delaval, Inc., to be used at VEGP, will be ade-quate).

Following discovery, Applicants then moved for summary disposition of each of the admitted contentions in which they were supported by l Staff. Intervenors responded only to the motions concerning Contentions 266 l

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l 7 and 8. The Board granted summary disposition on all of the motions except those involving Contentions 7,10.1, and 10.5.1 The Board granted in part, and denied in part, Applicants' motion for summary disposition of Contention 7 and denied the motion as to Con-tention 10.1. The matters to be litigated in each of the contentions were identified in the Memoranda and Orders ruling on the motions for sum-mary disposition.8 Hearing on the contentions commenced on March 11, 1986, at Waynesboro, Georgia, and continued through March 14,1986. Appli-cants, GANE, CPG, and Staff appeared, GANE and CPG without counsel. CPG took the time allotted for making an opening statement to comment adversely on the Comnussion's hearmg process and then imme-distely withdrew from the proceedmg. (In this Decision where the term Intervenors is used, it pertains to the time when GANE and CPG were both participating in the prac*eding. 'Ihe singular is used to identify GANE.) Applicants and Staff presented witnesses to testify.on each of the contentions and cross-examined GANE's witnesses. GANE pre-sented a witness and cross <mamined on Contention 7 but not on 10.1.

Attached as an appendix (not published) is a list of the witnesses that tes-tified at the hearms on Contentions 7 and 10.1.

At the conclusion of the hearing the Board directed that the parties file proposed findmss of fact and conclusions of law in accordance with the schedule set forth in 10 C.F.R. I 2.754. Filings were made by Appli-cants and Staff as directed. The witness who had testified on behalf of GANE on Contention 7 aubmitted timely proposed findings in the name of GANE for the contention, but he was not an authorized representa-tive of the ornamration. The Board permitted GANE to adopt his fil-ings, which the organization did on May 30,1986. It is perrmssible not to i

require the same precision in the filings of a layperson than is demanded of a lawyer. No prejudice was shown to have resulted from this course and the timely proposed findmss were considered as if they were filed by GANE in the first instance.

The Board reached its decision in this proceeding upon cor.Oretion of the entire record imi.LMg to Contentions 7 and 10.1. All proposed findings of fact and conclumons of law submitted by the parties on the raa====a= s, 8 he empublished Maumornada and onsors grammag the easions are dnand as fonows:

21.1965; enne h*= 3.1985. N deedsal Deceumb-e 3,1985; Comesation 10.3, August 147 November S,1985; ca====aa= ll, Seposater 3,1985. Comesation II, h 24,1985: and Con.

esmeios 14, November 25,1985.

Comesnuon 7, s he W Maumoranda and orders niling ce the anaaaan are deced as fonows:

November it,1985, ruesandwense denied January 8,1986, and Contennoe 10.l. January 23,1986, e sist russende,ordse grossed, fr o hruary 14,1996.

  • commest for laservenors wundrew from the procomhns ce January 2s,19es.

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two contentions, that are not directly or inferentially considered in this Initial Decision, were rejected as unsupported in fact or law or as unnec-essary to the rendenng of the decision. The Board's findings of fact are supported by reliable, probative, and substantial evidence of record that was presented by competent wi'====== The Board has concluded as to the matters considered in this Partial Initial Decision that should operat-ing licenses be issued to Applicants for VEOP, it will not be inimical to the common defense and security or to the health and safety of the public.

At the time the oral hestmg concluded on March 14, 1986, there re-mained, of the eight contentions admitted for litigation on the issue of emergency planning, six that were unresolved. Two had previously been disposed of by motions for summary disposition.* This posed the possi-bility of a further hearing on emergency plannmg issues. Motions then were filed for sammary disposition of the remaining contentions, which the Board granted, the last on July 17,1986.s All of the motions for summary disposition of the emergency planning contentions were unop-1 posed. As a result of the dssposition of all of the emergency planning

' contentions, there was nothing left for the Board to adjudicate in the proceeding beyond the issues resed in the oral hearms. By notice to the parties of August 5,1986, we advised: (1) that we considered the entire record closed and (2) an initial decision would be issued, not a partial initial decision as was envisioned as of the close of the oral hearing. The issuance on August 25, 1986, of Board Notification No. 8618, however, caused the Board to defer ruling on Contention 10.5 and to issue this 4

Partial Initial Decision. The Board Notification advised that Staff had forwarded a request for additional information to Applicants on their main ::camline break (MSLB) analysis, which relates to the environmen-tal qualification of certain ASCO solenoid valves considered in Conten-tion 10.5. The Staff's request in part questioned the applicability of the methodology used for the qualification of ASCO valves exposed to su-perheat conditions following an MSLB outside of containment. The -

Board retains jurisdiction of Contention 10.5, the only contested issue yet to be decided in the proceeding.

i

  • The r-MM Memnranda and orders ruling on the smetions are dated as foMows. N-EP 6, February 3,1984 ame comesmoon EP.7, August 12, 1985, monsid,,esias dmisd, oceober I,1985, j mfited monism 3,seasd, March 6,1986.

t .

  • The unpubhshed Memorante and orders ruhag on the smotions are deced a fouows: EP.1/EP.l(ay j

EP 2(bk May 12.1984 EP.2/EP.Mak May IS,1904 EP 2/EP 2(ch May 22,1986; EP 2/EP-2(hk May 3,1984 and EP 3, July 17,1906.

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II. FINDINGS OF FACT A. Ground Water Contamination - Contention 7 Backgmund

1. As admitted by our Memorandum and Order dated September 5, 1984, Contention 7 states as follows:

Applicant has not adequately addreened the value of the ground water below the plant site and fails to provide adequate assurance that the ground water will not be contaminated as required by 10 CF.R. 51.20(a), (b), and (c),10 CF.R. 50.34(aX1),

and 10 CF.R.100.10(cM3).

LBP-84-35, supm. 20 NRC at 898. The gravamen of Contention 7 is that an accidental spill of radioactive water on the Plant Vogtle site could result in radioactive contamination of the water taHe and possibly the deeper aquifers under the site.

2. On July 15, 1985, the Applicants filed " Applicants' Motion for Summary Disposition of Joint Intervenors' Contention 7 (Ground-water)." The motion was granted in part and denied in part by our Memorandum and Order (Ruling on Motion for Summary Disposition of

' Contention 7 re: Groundwater Contamination), issued November 12, 1985 (November 12 Order). Those issues satisfied by Applicants in the motion to strike were the following: whether data on ground water should be analyzed statistically; whether settlement of the VEGP has de-formed the marl and thus affected its ability to function as an aquiclude; whether radioactive water in the auxiliary building (resulting from an ac-cidental spill) could leak through the walls and into ground water; whether there is significant uncertainty with regard to the geology and hydrology under the marl; whether hazardous chemical westes are cov-ered by the contention; whether ground water contamination experience

' at the Savannah River Plant (SRP) can be extrapolated to VEGP; and whether exploratory wells could provide a pathway for radioactive con-taminants to reach ground water.

l

3. There were five issues of material fact remaming to be litigated, as found by the November 12 Order. Those issues were:

(1) Adequacy of the Geological / Hydrological Exploration of the Vogtle Site; (2) Uncertainty in Data on Marl Thickness and Permeability; l

I (3) Data on Marl Continuity; (4) Direction of Ground Water Flow; and l

t (5) Ground Water Travel Time.

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4. Each of the parties prefiled testimony on this contention and sponsored witnesses who testified with respect to it at the hearing. Ap-plicants prefiled testimony by Thomas W. Crosby, Clifford R. Farrell, and Lewis R. West (hereinafter Crosby, et al, ff. Tr. 253) and testimony of Dr. Stavros S. Papadopulos on Contention 7 (hereinafter Papadopulos, ff. Tr. 253). We have examined the qualifications statements of these wit-nesses - and find that they are well-qualified geologists and/or hydrogeologists. Joint Intervenors prefiled testimony by William F.

Lawless (hereinafter Lawless, ff. Tr. 720) and an attachment to the Law.

less testimony characterized as an analysis of the Board's November 12 Crder and dated December 15,1985 (hereinafter Lawless Attachment, ff.

Tr. 720). No qualifications statement was appended to the filing by Mr.

Lawless, but we are able to assess his qualifications from the cross-exami-nation of the witness at the hearing. Tr. 72128. Mr. Lawless, who is cur-rently an Assistant Professor of Mathematics at Paine College, formerly worked for the Department of Energy's Savannah River Plant _(SRP) where he had some experience reviewing reports and managing research projects dealing, at least in part, with ground water hydrogeology. He' has had no training in geology or hydrology, however; his formal train-ing has been in mathematics. We find him to have a general familiarity with the scientific method and to be conversant in the area of ground water hydrology, but his professional qualifications are in the area of mathematics, not ground water hydrology. The NRC Staff prefiled testi-mony of Lyman W. Heller and Raymond Gonzales (hereinafter Heller and Gonzales, ff. Tr. 764). Their qualifications statements show that they are qualified geological and hydraulic engineers.

Discussion

5. To make the context of Contention 7 understandable, we shall begin with a brief description of the VEGP site geology and hydrology.

In the discussions that follow, we have relied on the testimony that we found convincing.

6. Plant Vogtle is located on the Coastal Plain of Georgia. The Coastal Plain is underlaid by a sequence of sedimentary formations con-sisting of alternating beds of sand, clay, marl, and limestone sediments atop a basement complex of older sedimentary, crystalline, and metamor-phic rocks. Crosby, et al, ff. Tr. 253, at 2. The Tuscaloosa Formation overlies the older basement complex and consists of sands and gravels with scattered beds of silt and clay deposited in late Cretaceous time (about 90 million years ago). Id. at 3. The Huber and Ellenton Forma-tions overlie the Tuscaloosa Formation and consist of dark gray sandy 270

clays and silts and multicolored clays deposited during the Paleocene Epoch (Tertiary Period). 7e Lisbon Formation was deposited atop the Huber and Ellenton Formations during the Eocene Epoch (Tertiary Period). This formation is comprised of a lower calcareous sand unit, called the '* unnamed sands" because it has no formal name, and an upper calcareous clay unit named the Blue Bluff mart. Finally, the Barnwell Group of sediments was deposited over the Lisbon Formation during the late Eocene Epoch and consists of sand with minor amounts of clay and limestones. The lowest stratum in the Barnwell Group, the Utley Lime-stone, was locally deposited on the Blue Bluff marl and is not present everywhere. The overlying sediments of the Barnwell Group are com-posed primarily of sands and silts which are exposed at the surface in the Plant Vogtle area. Ibid.

7. There are two major aquifers in the coastal plain region, both of which occur under the Vogtle site. The lower aquifer is called the Creta-ceous aquifer and consists primarily of the sands and gravels of the Tus-caloosa Formation; it is often referred to as the Tuscaloosa aquifer. The upper aquifer is called the Tertiary aquifer and consists primarily of per-meable sands and limestones of several Tertiary-age geologic formations.

At the Vogtle site the Tertiary aquifer consists of the unnamed sands of the Lisbon Formation. Both of these aquifers are confined under the Vogtle site, with the uppermost confining layer being the Blue Bluff marl of the Lisbon Formation. Id. at 4. In addition to these aquifers, ground water also exists in the Barnwell Group in shallow, discontinuous bodies and is referred to as the water-table aquifer. Id. at 4-5.

3 Issues of Material Fact (1) Adequacy of Geological /Hydmlogical Explomtion of Vogtle Site

8. In denying in part Applicants' Motion for Summary Disposition we pointed to three inadequacies in Applicants' program for exploring the geology and hydrology of the Vogtle site that the Staff had identi-fled in the Safety Evaluation Report (June 1985) (SER) and Applicants had agreed to correct. We concurred with the Staff that further evalua-tion was needed. This involved further monitoring of the water-table aquifer and backfill to establish the design-basis ground water level. In addition, Staff required additional wells in the marl because of the lim-ited monitoring that had been done over the full depth of the marl. Fi-(

nally, Staff is requiring that the Tuscaloosa aquifer be monitored by reading observation wells on a monthly basis, to determine the long-term i

271 l

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effect of withdrawing water from the aquifer. November 12 Order at 12 13.

9. During d e summer of 1985, a further program of geotechnical verification work was conducted at Plant Vogtle to resolve NRC Staff -

questions and to acquire supplementary data on site characteristics. The work consisted of conducting standard penetration tests of the backfill, core drilling and in situ permeability testing of the marl, laboratory meas-

, urement of marl permeability, observation well installation, and labora-tory measurement of the cation exchange capacity and equilibrium distri-bution coefficient of the backfill. Crosby, et al, ff. Tr. 253, at 7-8.

10. At the time the Motion for Summary Disposition was filed, Ap-plicants were still conducting laborstory permeability tests on cores taken from the marl in June 1985, and data from well series 42 were still being supplemented and confirmed by data from additional wells. At the hearing the Staff witnesses testified that, based on Staff's review of Ap- t plicants' report entitled "Geotechnical Verification Work - Report of Results," the geological exploration of the Vogtle site is now adequate.

That report, which was submitted to Staff by GPC on August 23, 1985, describes the exploratory work carried out by six core borings in*o the marl and the results of pressure tests conducted in the cored holes.

Heller and Gonzales, ff. Tr. 764, at 4. In addition, laboratory permeabil-i ity tests were conducted on ten core samples from the marl, the results of which indicated that the marl permeability is about 10-' centimeters per second (cm/s). This value is consistent with the description and clas-sification of the marl. Id. at 5.
11. To address the Staff's concern about the design-basis ground water level in the unconfined aquifer, which related to a structural rather than a ground water contamination concern, Applicants installed four new monitoring wells in the plant backfill and two new wells in the Barnwell sediments. Two of these wells have continuous water level re-corders, and the remainder are being monitored on a weekly basis. Id. at
7. The Staff will impose a license condition for VEGP to require this monitoring throughout the life of the plant, although the frequency of monitoring will be subject to change. Id. at 8. Data thus far indicate that the water level in the unconfined aquifer has remamed well below the 165-foot design-basis level. Crosby, et al., ff. Tr. 253, at 34-35.
12. In response to the SER concern regarding marl permeability, Ap-plicants performed six continuous and controlled core borings into the marl. The wells were located in two clusters at opposite corners of the power block. Heller and Gonzales, ff. Tr. 764, at 8. Data on pore pres-sure distribution within the marl obtained from these wells provide addi-tional evidence that the marl is an aquiclude that impedes the movement 272

4 of ground water from the water-table aquifer to the lower aquifers. Id. at 16.

13. The monitoring of the Tuscaloosa aquifer called for in the SER is an environmental concern intended to ensure that the withdrawal of water from this aquifer will not have an adverse impact on other ground water users. Id. at 8. This monitoring will be required throughout the lifetime of the plant. Id.; Crosby, et al, ff. Tr. 253, at 35-36. .
14. Laboratory permeability tests on ten samples obtained during core drilling of the marl, which gave permeabilities ranging from 10 -* to 10 ~8, together with in situ field tests, confirm that the mari is nearly im-permeable. Heller and Gonzales, ff. Tr. 764, at 9. Staff testified that its requirement for additional geologic and hydrologic exploration of the marl has now been satisfied. Id. at 6,13.
15. Intervenor's witness Lawless testified that breaching the marl in order to monitor it may have resulted in the creation of flow pathways through the marl. The witness cited no data or other source of informa-tion to support this statement, however. The suggestion apparently is pure speculation. Lawless, fr. Tr. 720, at 7.
16. The Board finds that the further geological / hydrological explora-tion called for by the Staff in the SER, for the purposes set forth, supra, l in 1 A.8 has been adequately carried out by Applicants.
17. Prior to the 1985 explorations called for in the SER, Applicants conducted extensive investigations of the geology and hydrology at and in the vicinity of the plant. Crosby, et al.. ff. Tr. 235, at 5. The investiga-tions commenced with site exploration in 1971. A thorough literature search, stereoscopic examination of color air photographs, detailed eval-untion of geologic conditions at and within 5 miles of the site, and geo-logic reconnaissance along 12 miles of the Savannah River bluff up-stream and downstream were conducted. Geological field investigations included geologic mapping, drilling, and geophysical surveys. During this phase of the investigation,474 exploratory holes were drilled for a total of 60,000 feet of hole. The drilling program included electric log-

, ging, natural gamma, density, neutron, caliper, and three-dimensional ve-locity logs in selected drill holes. Menard pressure meter tests were per-formed to determine in situ engineering properties of the marl, which is the load-bearing unit for plant structures. The geophysical surveys con-sisted of a total of 28,400 feet of shallow refraction seismic lines, 5000 feet of deep-refraction lines, and cross-hole velocity measurements in the upper 290 feet of materials. Id. at 5-6.

18. Ground water studies were also conducted during initial site ex-pioration. These studies included in situ permeability testing, installation and monitoring of observation wells, and canvasses of offsite, nonproject 273

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l wells. A total of 280 wells were located and inspected on the west side of the Savannah River. These included all wells in use within 7 miles of the site and an estimated 60% of the wells beyond to a distance of 10 miles from the site. Id. at 6.

19. Investigations of the geology and hydrology at VEGP continued during site excavation and construction. These included detailed geologic mapping of the soil and rock strata exposed during the power block ex-cavation plus coring and testing of the Blue Bluff marl. Over 100 addi-tional exploratory holes were drilled in the vicinity of Plant Vogtle. In addition, since initial site exploration in 1971, thirty-seven observation wells have been used to monitor water levels in the water-table aquifer, and the Tertiary aquifer has been monitored by twenty-three wells. Data have also been obtained from four wells open to the Cretaceous aquifer.

Ibid

20. In May and June of 1982 another major well canvass was con-ducted to accumulate a comprehensive hydrogeologic data base to evalu-ate the postulated Millett fault. A total of 886 wells encompassmg an area of approximately 4400 square miles surrounding the plant were in-vestigated. Geophysical well log data from both the State of Georgia Geological Survey and the U.S. Geological Survey were obtamed and analyzed. As part of the Millett study, twelve observation wells were in-stalled along two lines southeast of the plant. The wells were drilled through the mari, and water levels were monitored in the Tertiary and Cretaceous aquifers below the marl. Data from these and other core holes provide accurate definition of the depth of geologic units, lithol-ogy, and aquifers from the plant to 19 miles southeast of the plant, and evidence of the lateral extent of the marl in that direction. Even more

- recently, in 1984, a well canvass was conducted to identify all offsite wells within 2 miles of thd plant.e Id. at 7 and Fig. 3.

21. Witness Farrell testified that he believes that the exploration done is adequate for characterization of ground water, and witness Papadopulos testified that the number of wells to the north and north-west, in the direction of ground water flow, is more than adequate to establish the presence of the marl. Tr. 272-73. Witness Crosby testified that the Blue Bluff marl was also explored to the south and southeast by core holes and that exammation of core holes throughout the plant site gives confidence that the marl is consistent throughout the area. Tr. 281.

Dr. Papadopulos attested that he, too, believes, based on his professional 8 on brief. Intervenor speculates that the Applicants' geolopcal/ hydrological surveys " appear to have treated protecnon of the stound water as a secondary L " cmg Crosby, er al. fr. Tr. 253 Fig. 4. Tr. 271-73. and Tr. 280L81. Lawless PP at 10. The testimony cited. however. contradicts this speculacon.

274 a

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experience, that the number of wells at the site is more than adequate to establish the continuity of the marl. Tr. 274. Staff Witness Heller testified that in his opinion, the data set now available for the marl indicates the marl to be continuous and to provide an effective impediment to ground water movement from the backfill to the aquifer directly below the marl.

Heller and Gonzales, ff. Tr. 764, at 14. Finally, witness Gonzales attested that based on a review of all the information that has been made avail-able to the Staff, he concludes that there is no need for concem that the water table and underlying aquifer will be contaminated by normal plant operation or a design-basis accident. Id. at 25.

22. The Board finds that the geological and hydrological exploration at VEGP is adequate to accurately characterize the geological forma-tions and ground water conditions beneath the site.

(2) Uncertainty in Data on Marl Thickness and Permeability

23. As we indicated, supra, at 18, Staff had required in the SER that additional exploration over the full depth of the marl was needed be-cause of the limited monitoring of the marl prior to 1985. Because the required work was still in progress in November 1985, this issue re-mained to be litigated.
24. The Blue Bluff marl is a densely consolidated, fine-grained calcar-cous clay with subordinate lenses of dense, well-indurated, well-ce-mented limestone. Reported values of the permeability of unweathered clays, of which the mari is a type, range from 10-' to 10-2' cm/s.

Crosby, et af, ff. Tr. 253, at 12.

25. Thickness and permeability of the marl were tested in situ during the site exploration in 1971-1983; eighty packer tests and permesmeter tests were conducted in twenty-two drill holes. During the geotechnical verification work conducted in the summer of 1985 an additional fifteen packer tests were performed in six new holes, and laboratory permeabil-ity measurements were taken on ten samples from these holes. Id. at 9, 13-14; Tr. 281. Marl thickness was determined by data from more than 200 exploratory holes and wells, which included approximately 25 south
of the power block area (the power block area includes the entire backfilled excavation) and a large number to the north.7 Crosby, et al.,

' The staff's wruten teatumony stated that mart thickness was knowr front 33 esploratory holes, which

+ staff ea==dared to be a enore than adequate nuanber. Heller and ooanales, fr. Tr. 764. at 11. Witeses Heller cited Table 25 2 of the FsAR as the source of thus inforisation. Id But Table 25-2 is merely a catalogue of selected mart core samples, obemand from 33 principal bonass. that were placed is protec.

tive storage. FsAR l28.2. FsAR Table 251. however, tabulates drdhas statistics of 354 bonass.14 9 28.1. Far more than 33 of these holes were dorp enough to penetrate the mart. Moreover. Witness I Farrell testined that more than 200 holes penetrated the marl Tr. 663.

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ff. Tr. 253, at 8 and Fig. 4; West, Tr. 81011; Tr. 267. The marl is 65 to 70 feet thick and extends over an area well beyond the limits of the plant site and the interfluvial ridge on which the site is located. Because of excavation, marl thickness has been reduced to generally about 60 feet under the power block. An exception occurs under the auxthary build-ing, where additional excavation to accommodate the building's founda-tion reduced marl thickness to 38 feet. Crosby, et al. ff. Tr. 253, at 1213; Heller and Gonzales, ff. Tr. 764, at i1; Tr. 379.

26. During site exploration, in situ permeability tests were performed at eighty intervals of varying depth in twenty two exploratory holes.

Constant-head inflow methods were used. In twenty of the holes, inflat-able packers were used to isolate a specified test interval, and water was injected under pressure into the isolated interval. Crosby, et al, fr. Tr.

253, at 13; Papadopulos, Tr. 451. In two holes near the intake structure, permenmeter tests were conducted. Crosby, et al ff. Tr. 253, at 13. In nearly all of the test intervals, no measurable water inflow occurred.

Water inflow from test intervals into the marl was measured in only three holes. Two of these were in near-surface, weathered marl at the intake structure. Three other cases of apparent water inflow actually re-suited from leakage around the packers. Id. at 13-14. These results indi-cate a i- cr.bility of less than 10-' cm/s, which would allow 1.5 to 2 inches per year of water to pass through the marl. This estimate of per-meability is consistent with the total recharge, about 15 inches per year,

' that is available to the water-table aquifer. Were the permeability of the marl as high as 10 cm/s the flow through the marl would be about 20 I

inches per year and the water-table aquifer above the marl would not exist. Papadopulos, Tr. 451.

27. In situ pi ;e.b!!ity testag was conducted again in the summer of 1985, at fifteen intervals in six new holes. The entire thickness of the mari penetrated in the holes was tested in 10-foot intervals, to ensure that all of the mart and interbedded limestone lenses were tested. In all of these in situ tests water intake was zero. Thus, results from the recent in situ tests confirmed the earlier in situ measurements. Crosby, et al. ff. Tr.

j 253, at 14.

28. The laboratory im ee.bility tests on ten mari core samples col-lected in the summer of 1985 gave permeabilities ranging from 8.5 x 10-*

l t 5.0 x 10 -' cm/s. Ibid. There were five values in the 10 -' range, three j

in the 10 ~' range, one in the 10-8 range, and one in the 10-' range.

j Papadopulos, Tr. 391. The harmonic mean of these permeability tests is I

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4.3 x 10-8.e Crosby, et al, fr. Tr. 253, at 20. The harmonic mean is the 4

appropriate statistic for estimating average rate of water movement across a layered earth system, and the Blue Bluff marl has such a layered heterogeneity. Ibid; Papadopulos, Tr. 587 89; also see VEGP-FSAR, at 2.5.1 19 and Fig. 2.5.124. Water movement through the marl is primarily in the vertical direction, across the layers. Papadopulos, Tr. 591. More-over it is the vertical component of flow in the marl that is of interest.

Id, Tr. 588. We conclude that it is clearly appropriate to use the har-monic mean of the permeabilities of the core samples, rather than the arithmetic mean.

29. Applicants used the harmonic mean only as a check on the per-meability of 10-' cm/s (0.1 foot per year (ft/yr)) estimated from the in situ tests, which was adopted by Applicants as the upper bound of marl l

permeability. The mean of 4.3 x 10 ~' cm/s (0.045 ft/yr) from the labora-

' torj permeability tests indicates that the 0.1-ft/yr estimate is reasonably conservative.' Crosby, et al., ff. T. 253, at 20. In situ permeability tests r.re generally considered to be more accurate than laboratory tests on core samples, because laboratory samples are of small size and therefore i may not be representative, and the samples are n=naarily disturbed when extracted. Papadopulos, Tr. 451-52; Gonzales, Tr. 769. We con-clude that the evidence establishes that the permeability estimate of 10" cm/s is both reasonably accurate and reasonably conservative.

30. The Board finds that there is sufficient certainty in the data on

( ,

marl thickness and permeability to resolve this issue in Applicants' favor.

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(3) Dafa on Marl Continuity

31. The continuity of the Blue Bluff marl, i.e., the lack of voids, open joints, or fractures, has been demonstrated at VEGP by a program of drilling, coring, standard penetration testing, and undisturbed sampling that has penetrated over 10,000 feet of the marl since 1971. During coring, the most revealing evidence of voids or fractures is a loss of drill-ing fluid and/or a sudden or rapid advance of the core barrel. At no time during the testing program was there any unaccountable fluid loss or ab-normal tool advance in the marl. Very few joints or fractures were ob-served, and those identified were consistently found to be tight and with-e Intervenor challenges Applicants' use of the hannonic uneen. on the grounds that Apphcants have not shown that the mort is layered or that water snovesnent through the snart is ,._ tly vertical Lawless PF at 14. There is no beeis for either allegation.
  • on brief. Intervenor proposed a r u- "y value for the earl of 65 ft/yr, or 5 x to-' cm/s. and calculated ground water travel time across the 3s-foot 4 hick esction of mort beneath the ammiliary build-ins on this beans. Lawless FF at it. This re ~y value was ousgested de novo and totally lacks may evidentiary basis. Consequently it must be rejected.

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I out voids. Crosby, et al, ff. Tr. 253, at 14-15. More than 200 holes pene-trated the marl and showed it to be a tight, calcareous clay of essentially constant thickness throughout the area. Farrell, Tr. 663-64.

32. Visual inspection and detailed logging and photographing of more than 500 feet of extracted samples of marl have likewise produced no indications of voids or extensive fracture zones. Marl that was ex-posed during excavation in the power block was examined directly and carefully logged by qualified geologists. This included more than 900,000 square feet of the upper surface of the marl in the power block excava-tion, more than 20,000 square feet of vertical face in the auxiliary build-ing excasation, and more than 20,000 square feet in the radwaste solidMi-cation building caisson excavation. These extensive and detailed mapping

+

investigations of the marl produced an abundance of data indicating an

. absence of voids, solution cavities, and systematic or extensive fractures or joint sets in the marl. Crosby, et al, ff. Tr. 253, at 1516.
33. The report from the 1985 geotechnical verification work pre-sented geologic drill logs for the new holes drilled into the marl, which provide evidence that the marl is continuous and lacks detectable paths for water to leak into the lower aquifer. Heller and Gonzales, fr. Tr. 764, at 16. Staff testified as to additional evidence which also demonstrated the marl to be an effective and continuous aquiclude the evidence is found in another report, "Vogtle Energy Generating Plant - Ground-

. water Monitoring Program July December,1985" that was attached to a letter, dated February 6,1986, from J. Baily to BJ. Youngblood at the NRC. Id. at 14-15.

34. The large and consistent hydraulic head differential between the water-table aquifer and the conf'med aquifer immediately below the marl confirms that the marl is a barrier to significant ground water movement.

Crosby, et al, ff. Tr. 253, at 16. The hydraulic head or energy potential -

of ground water in an aquifer is commonly expressed in units of feet above sea level and is determined by measuring the elevation of water in an observation well. Ibid. Observation wells constructed in 1971, includ.

ing two open to the marl itself and one each open to the confined and water. table aquifers, showed that in the vicinity of VEGP the hydraulic head in the water-table aquifer is 45 to 55 feet greater than the hydraulic head in the aquifer immediately below the mari. Ibid. These wells were monitored for 4 years until construction of the plant required their clo-sure. Id. at 17.

. 35. In addition, two clusters of piezometers were installed in the i

power block in June and July of 1985 at og posite corners of the power block; they provide a direct measurement of hydraulic head over the full depth of the marl. The differences in hydraulic head between 278 1

[

piezometers within a cluster show a progressive decline in head with

. depth which is consistent with the results obtained from the observation wells installed in 1971.10 Id. at 18.

36. The Board finds the data regarding the continuity of the marl to be adequate; they show that there are no voids, fissures, or fractures that would allow radioactive material which might get into the water-table aquifer as a result of an accidental spill at VEGP to move into the con-fined aquifers below the marl.

(4) The Direction of Ground Water Flow

37. Three ground water maps for the Vogtle area dated November 1971, March 1980, and December 1984 showed differences in the flow fields sufficient to suggest the possibility that flow fields under VEGP may shift and change. These maps led Intervenors to challenge Appli-cants' claim that ground water flow from the plant would be to the northwest, toward Mathes Pond; Intervenors alleged that flow could occur to the southeast and southwest as well. November 12 Order at 23-24.
38. Because the marl will prevent significant vertical movement of contaminants through it, any migration of contammants from an acciden-tal spill at VEGP would be predominantly lateral in the direction of the decreasing head in the water-table aquifer. Crosby, et al, ff. Tr. 253, at 21.
39. The November 1971 map shows ground water conditions prior to construction of the plant, with the highest ground water level of 162 feet south of the plant, and another high ground water level of 161 feet northeast of the plant. Both of these elevations are higher than the ground water level of 160 feet that is directly underneath the plant.

These two ground water levels indicate a ridge in the ground water sur-i face extending from northeast of the plant to south of the plant. If the plant were located astride the ridge, contaminants from a spill at the plant might flow in both directions. Staff testified that because the plant l

is located northwest of the ridge and ground water can only flow downgradient, it is not possible for ground water to move from a level of 160 feet beneath the plant to a higher elevation along the ridge lo-cated south of the plant. Heller and Gonzales. ff. Tr. 764, at 17.

t 40. The November 1971 map also shows that ground water levels west of the plant are even higher at an elevation of 165 feet; therefore

Ahhough Intervenor stated that this issue was addressed in i II.a of its proposed Andings, it was not.

Lawless PF at 2.

279 1

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+

there could be no flow in a westerly direction. Flow in a northerly di-rection is also impossible,' because ground water would have to move ,

from an elevation of 160 feet beneath the plant down to an elevstion of i

155 feet, and then back up to an elevation of 160 feet. Staff believes that the only direction ground water can flow from the plant is in a north- -

westerly direction. Id. at 18.

41. The March 1960 map suggests that the flow fields around the plant are directed back toward the plant, but this circumstance resulted from the effects of a temporary construction-related activity. The exca-vation of the power block extended well below the ground water level.

To prevent sloughing of the excavation side slopes and to ensuie dry, firm working conditions, the construction area was dewatered; the 1980 map reflects the effects of this dewatering program. The dewatering pro-gram was terminated once construction was completed. Ibid.

42. The post-construction December 1984 map is sirtilar to the pre-construction November 1971 map in that it suggests a ground water ridge extending from south of the plant to northeast of,the plant. This result indicates that dewatering was a temporary condition and suggests fr that water table has returned to approximately the 1971 configuration. -

Id. at 19; Crosby, et al, ff. Tr. 253, at 22. Applicants' witnesses acknowl- )

edged, however, that changes in the water table due to corstruction pre-clude, at this time, a precise definition of its future configuration. Conse- ,

quently, a flow path to the northeast cannot be unequivoc4!!y eliminated ~i as a possibility. Id. at 31. But in any case, the grocad water ridge.run-ning south to northeast will prevent ground water flow in a southerly ,

direction. Id at 23; Heller and Gonzales, fr. Tr. 764, at 19; Farren and  ;

Papadopulos, Tr. 673-77; Gonzales, Tr. 774. Ground water records taken

. for a period of 3 years prior to the start of construction indicated a per.

sistent divide south of the site.11 Papadopulos, Tr. 675. t

43. Ground water levels north and west of the plant are also lo ver ,

than at the plant, but the gradients in those directions are flatter thmi the gradient toward the northwest.- Heller and Gonzales, fr. Tr. 764, at 19.

, Since ground water flow follows the path ofleast resistance, flow will be toward the northwest. Ibid. Ground. water movirig northwestward from beneath the power block would eventually reach Mathes Pond. Crosby, et al, ff. Tr. 253, at 23; Crosby, Tr. 401; Papadopulos, Tr. 486. If y radionuclides from a spill at the plant moved in ground water to Mathes f.

r,

+ H on bnef. Intervenor argues that contemanents can move upgradsent 6- of a hydremhe head and

' concentration gradient resultmg from a spell. Lawless FF et 19 20. Nothing in the record supports thus claim, however, Intervenor also refers to Figure 16 or Apphcants' testunomy which showed that en 1905 f the ground water divide had shaned closer to the pt,wer block. M et 2tk 11ms sluA is beheved M de the .# "

temporary result of locahred recharge caused by the addison of water M the wee denne placensa. of ,

the backAIL Crosby, er el. fr. Tr. 253. at 21.

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permissible concentratus I,MPC) levels for continuous routine releases as .

'I*- i .. . 1I ,,f g4ound water slowly di4hriged into Mathes Pond and, subsequently, to

/ . J b  % tho ?tnam below *sathes For.d. Crosby, et oL, ff. Tr. 253, at.23, 30 31.

f' ,/ *js 44. If, on the oiber hand, flow is acrtheasterly rather than toward c; '/ Mathes Pond, contaminnata reaching the water table aquifer from the 1i i 1/ backflit would travel towarit the Savannah River. Id at 31. *Ihe 6s-i chstge point would be on the bluff of the river at the head of a srs,11

  • tributary to the river. After disdarging to t:se tributary, concentratica of-

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t the spill wmid be diluted in the stream to below MPC levels.14. at.33.

45 /The Matli.s Pond drainge be cut down to the mari, as he,e tN s ~,' other streams bordering the interfluvial ridge on which the plant is k>-

cate3,4v interrupting contin:st) between water-table aquifers. I6kf.'

Oround: water in lie 7 vater table aquifers on both sides of the streams

,. (nj the pend dia.rges into the streams and the pad andfdoes not

,y,s i cro thsh,Id at 10,23. Sirre the interfluvial ridge on whi..h the plant N

' f^ ' >  ! ds locaw is bordered by th Hreams and pond, the wa'.er table aquifer beneath VEOP is hydraulicafy isolated. Ibid Consequertly a spill at the i

site flowing in any direction could not impair any domestic or other

> welb located beyond the streams that border the interfluvial ridge. Id at

23. Ybere is only one well on the in:erfluvial ridge that draws water

/ fro n the water tab'e aquifer beneath VEOP; it is locital approximately 1.7 miles south of tle plant, however, and an accidental spill would not move in tiset brection. I6id The determmation that flow is northwestward is tased on 13 years of records, from 1971 to 1954, and r the e mntds sugg* tMt the divide can be expected to exist for the life oh.16 pf ant. Genules. Tr. 774.

W. The Board tinds that the evidence shows that radioactinty from pn accidental spill that gets into the water-table aquifer can be expected

' to nect.e ei.her northwestward and eventr. ally enter Mathes Pond or t  ; northeinward ard eventually enter the Savarnah River. In either case, l' / the contaminants iwould pose no threst' to domestic or commercial

!, f /- ground wate.t supplies. Thus the issue of diracuon of ground water flow

is satisfactortiy resolve i. c' t

(3) Ground Water Tmer! 77me p . i, 47. In its No4 ember 12 Order the Boart' acknowledged Intervenors'

~

concern because Applicants sad Staff had vaed a one-dimensiond model to calculate ground water travel time, assuming the trasel pathway to be the hnear distance between point of spill and point of discherge, whereas

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at the Department of Energy's SRP across the river from VEOP a more

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realistic three-dimensional model has been recently developed for esti-

.; mating ground water travel times. The Board noted that at VEGP the hydraulic gradient becomes very steep as Mathes Pond and the Savan-nah River are approached from the plant, and it wanted to know whether a three-dimensional model that could 'secount for changes in

/ flow velocity as the water-table gradient changed would be superior to

, the one-dimensional model that had been used by Applicants and Staff.

I

48. He time required for ground water to migrate through the back-

) fill toward Mathes Pond is determined by the permeability and porosity s

of the material and by the hydraulic gradient. The relationship between these parameters in determuung ground water seepage is expressed by Darcy's Law:

x' Y = KUm, where V = seepage velocity (L/T),

K = coefficient of hydraulic conductivity (permeability)(L/T),

f = hydraulic gradient (ratio), and 5 = effective porosity (ratio).

Crosby, et al. ff. Tr. 253, at 1819.

49. Applicants' witness Papadopulos addressed the foregoing ques-tion. Papadopulos, ff. Tr. 253. Papadopulos compared results calculated with a three-dimensional model with results calculated with the one-di-

, mensional model and showed that the one-dimensional model gave a

' ' smaller travel time because the linear pathway is shorter than the three-

dimensional pathway. Id. at 2-4. and Figs. I and 2. Staff took a different approach, arguing that since travel time and sorption would reduce ra-i dionuclide concentration within the homogeneous backfill to below 10 C.F R.'Part 20 limits by the time the contammants left the backfill, the varying gredients between the site and Mathes Pond could be ignored.88 Heller and Gonzales, ff. Tr. 764, at 20-24.
50. The Board finds that the concern with regard to use of the one-dimensional model has been resolved by the foregoing testimony, which shows the one-dimensional model to be more conservative than the
i. three-dimensional model. Herefore we shall proceed now with our eval-88 latervenor claisis that Applicants assert "that the one<limensional approach is . . . more conservanve ascesse the flow path & longer" (a ph added). goes on to argue that it would be more correct "to assert that flow ped is shorser in e one versus e threeJunenmonel model'* (esiphases added), and concludes "it does not then follow that the one dimesmonal snodel is more conservative."16al Intervenor appears to have anierend the testunomy of Dr. r . 1. who testdled "[s]ince the linear datance Iis shorter than the three<hmenseonel pathway 4. the travel tune calculated by the one<hmenssonal approach is samaller." r , - .. ff. Tr. 253. at 4.
l. 282 t

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untion of the estimates and testimony based on the one-dimensional model.

51. ' Die backfdl in the power block at VEOP is sand and silty sand compacted to an average of 97% ofits maximum density. The permeabil-ity assigned to the backfdl by Applicants was the manmum value meas-ured in situ,1220 ft/yr. Total porosity measurements of compacted back-fdl samples ranged from 31.6 to 37.6%, with an average of 34%. For

. sand and silty sand, total and effective porosity are essentially the same.

The hydraulic gradient in the backful along the Mathes Pond flow path is 3.5 x 10-8, but for conservatism it was rounded off to 4.0 x 10-8 Crosby, et al, ff. Tr. 253, at 25-26. With these parameter values, Appli-cants estimated seepage velocity in the backfdl, using Darcy's equation, to be 14.4 ft/yr. Using a flow path length of 550 feet, the ground water travel time in the backfdl was estimated by Applicants to be 38.2 years.

Id. at 26. Taking into account retardation due to radionuclide sorption, Applicants concluded that this travel time is sufficient to reduce the con-centration of Sr-90 and Cs-137 spilled by rupture of the recycle holdup tank to below the maximum permissible concentration (MPC) limits of 10 C.F.R. Part 20. Tritium, on the other hand, is not retarded; it would mi-grate with ground water travelling through the backfdl and would exceed MPC limits. These three radionuclides are considered important because of their long half-lives. Id. at 27-29.

52. The Staff performed its own calculations with Darcy's Law, using somewhat more conservative parameter values. Staff assumed a permeability of 2260 ft/yr and an effective porosity of 25% but used the same hydraulic gradient and length of flow path as Applicants. The re-sultant ground water velocity through the backfill is 36.6 ft/yr and the travel time would be 15 years. SER at 2 35. Staff assumed a rupture of the waste evaporator concentrate holdup tank and considered Co-60, Sr.

90, Cs-134, and Cs-137. Ibid. Staff also assumed that once outside the backfdl, radionuclides would travel rapidly through the Utley Limestone to a spring located at Mathes Pond. It conservatively ignored travel time through the Utley Limestone in calculating travel time to the spring. Id.

at 2 34 and Fig. 2.9. Considering, then, a travel time of 15 years and the effects of sorption by soil and rock, Staff came to the conclusion that by the time the four radionuclides left the backfdl, each would have a con-centration that is a small fraction of the MPC limits set by 10 C.F.R.

Part 20 and Part 100.18 I44 at 2 36; Heller and Gonzales, ff. Tr. 764, at 20 24.

as gaservemor argues that sr-90 is not retarded by sorption to the extent assumed by Applicants and staff, citag the Fmal Environmental Impact Statement. I-Reactor opersoon. Savannah River Plant caensend 283

5-18009s 0013(ODX12-FEB-871$.2435) F724&fms 244-87

53. As was mentioned, supra, tritium is not retarded and would travel with the ground water; given the postulated accidents, tritium concentra-tion in ground water would exceed the MPC limits. Crosby, et al., fr. Tr.

253, at 29; Farrell, Tr. 306 Ifs tritium migrated with ground water from the backfill and through the Utley Limestone to Mathes Pond, it would be further diluted in the pond and subsequently in the stream runmng from the pond to the Savannah River, so that its concentration would be below 10 C.F.R. Part 20 limits before it flowed off site. Crosby, et oL, ff.

Tr. 253, at 29 30. If, on the other hand, tritium migrated from the back-fill and through the Utley Limestone to the Savannah River, it would be diluted by stream water as it moved in the tributary toward the river. By the time it entered the river, the concentration would be about half the MPC value, and after entering the river it would be diluted to a negligi-ble concentration almost immediately. Id. at 32-33. If tritium migrated

. downward through the 38 feet of marl under the auxiliary building, the estimated travel time for it to reach the confined aquifer below would be 123 years, because of the low ground water velocity in the marl. Id. at

20. When it finally reached the aquifer below the marl, the tritium (which has a half. life of 12.26 years) would have decayed to acceptably low concentrations. Farrell, Tr. 306.
54. We need not reach the question of whether the Staff's or Appli-cants' estimate of ground water travel time is the more acceptable, since the results from both show that radionuclide concentrations from the

, postulated accidents would be within MPC limits before migrating off

! site. We find that ground water travel time is sufficiently low to assure that any radionuclides that might be released by a design-basis accident into the water-table aquifer under VEGP would be reduced to accept-ably low concentrations, as a result of sorption, dilution, and radioactive decay, or a combination of these factors, before migrating off site in ground water.

Settlement of the VEGP

$5. Although not raised as an issue of material fact to be resolved at hearing, the Board permitted inquiry into a collateral issue regarding the I (May 1964)(L. Reactor Els), the Technical h==ary of oroundwater Quality Protecnon Program at savamaah River Plant (December 1983)(Technical sumunaryk and a report concerasag the Edwin L Hasch Plant. Lawless PF at 19. None of these documents is la evidence in this ,,.-- - . Ande from that legal technicahty, the two pages cited in the Techascal summary display maps, only, aather of which contains any reference to sr-90, and the paragraph which docussed sr 90 on the page cited la the I.rReactor Els opens with the statement. "[s]tronnum, unhke tnnusn. does not move over at the same rose as ground water .  ? The Hatch report was not avadable to um Evidence in this pr~=haf j 68-= that sr.90 is retarded by norm as assumed by Applicants and Staff; therefore latervenor's

, clama to the contrary must be rejected.

f 2:4

impact that settlement of the VEGP would have on the grouted wells under the buildings in the power block. There are three grouted bore holes beneath the aunhary building, eleven beneath unit I containment, three beneath unit 2 containment, and seven under the turbme building.

West, Tr. 789-91. The issue is whether settlement might push the ground columns downward, causing slippage of the grout columns within the marl and thus opening a pathway for travel of contammants. Tr. 713; Lawless, ff. Tr. 720, at 6.

56. Lawless testified that the well grout columns are likely to be less compressible vertically than the more elastic mari, and plant settlement would punch these well grout columns downward at a rate that might be different from the marl. Lawless Attachment, ff. Tr. 720, at 8. Applicants testified that the marl is actually more rigid than the grout columns.

Crosby, Tr. 792. Moreover, slippage of the grou,t columns is very un-likely because the large surface area of grout in contact with the marl provides more than enough frictional area to prevent any movement.

Crosby, Tr. 792-93. In addition, the nanamed sands under the marl are dense enough to resist punching of the grout columns into the lower sands. Crosby, Tr. 793; Papadopulos, Tr. 805. Moreover, the plasticity of the marl would cause the marl to tend to deform and close any opening that occurred. Papadopulos, Tr. 804-05; Crosby, Tr. 798.

57. Net settlement during the entire excavation, construction, and backfilling process has been about 1 inch. Crosby, Tr. 794. Net settle-

, ment is the difference between heave, which occurred before placement I'

of the backfill, and gross settlement after placement of the backfill. At l VEGP the heave was about 3 inches and the weight of the plant plus the backfill caused a total settlement of about 4 inches. Crosby, Tr. 81516; Heller, Tr. 776-77.

58. The Board finds that the evidence shows that the grout columns i under the building at VEGP will not move at a different rate than the mari, should there be additional settlement." Therefore they pose no risk to the integrity of the marl beneath the power block.

B* Adchtmaal settlement at VEoP is not expected to be asaancant. h=e==aa backfilhas is now 95% com.

plate. Crosby. Tr. 794. Intervenor claims that the posahihty of tmeven er'tl aamat was reised in tatuno.

sy. Lawless PP at 2s. laservenor's citation. however. was to the openins **aa-* read into the record by Mr. Tim Johnson when he withdrew his cry ==**=e== r*====i t a for a Prosperous oeorsia, frams this proceedias. See Tr. 229 4(L Mr. Johnson's statement is not y. Moreover. the inne of continuins set'h at VEoP has already been resolved in this pr~=ad=f ybour November 12 order, where we found from the unshaputed Affidavit of Walter R. Fems (Sept. 7.1985) that settlement at VEor was essentiaHy complete.

285

.c - . -

Conclusions

59. 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 have been established and will protect the underlying aquifers from contamination should an accidental spill or a 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 deter-mined, 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 contammated by an accidental spill, in-cluding that resulting from a design-basis accident, at VEGP. Contention 7 is without merit.

B. Endronmental Quallflention - Contention 10.1 Backgmund

1. This contention asserts that VEGP safety-related equipment con-taining certain polymer materials identified in a report by Sandia Na-tional Laboratories (Sandia), and cited by Intervenors, has not been j properly qualified because of possible dose rate effects dealt with in the report. (Dose rate effects refers to a phenomenon whereby radiation deg-radation of some materials may depend vpon the rate of radiation expo-sure even though the total integrated dose remains the same.) In this contention Intervenors rely upon one Sandia report (NUREG/CR-2157, l discussed below) for the proposition that dose rate effects can distort conclusions regarding the acceptability of polymer materials destined for use in the VEGP. That report gave results of tests on mechanical prop-erties of these polymers, whereas their applications in VEGP also in-volve the integrity of electrical properties of some of the polymers. Sub-sequent Sandia work included testing of electrical properties. Applicants' motion for summary disposition considered dose rate effects on mechani-cal properties of the polymers, as raised by Intervenors in the contention, as well as the electrical properties of some of the polymers as appropri-ate to their VEGP applications. The motion generated no Intervenor re-sponse. The motion satisfactorily resolved the contention issues on dose 286

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

rate effects on mechamcal properties, and adequately explained Appli-cants' review of investigations of dose rate impacts on electrical proper-ties, with the exception of certain mechanical and electrical issues that the Board found to have been inadequately addressed. Because of those issues, we denied the summary disposition motion (note 2, supm). The issues were identified as follows:

(1) Whether cross-linked polyolefin is the only polymer in question whose electrical properties were evaluated subsequent to radi-ation exposure.

(2) What significance is to be derived from Duke Power Company's 10-year cable surveillance program.

(3) The scope and results of the mechanical stress tests on prototype VEGP cables.

(4) The nature of Staff's requirement for an operational surveillance program, the status of Staff's approval of Applicants' submittal of a proposed surveillance program, and Staff's requirement for its implementation.

(5) The Staff's reliance upon a future operational surveillance pro-gram rather than upon the prior environmental testing results described by Applicants.

Intervenor GANE offered no witnesses, conducted no cross-examination, and submitted no proposed findings on the contention. Applicants pre-4 sented the following witnesses as a panel: Joel Kitchens, Mark L.

Mayer, Patrick R. Nau, Harold J. Quasny, and George Bockhold, Jr.

(hereinafter the. testimony of Kitchens, et al, ff. Tr. 561) and the testi-

[

mony of Bockhold and Quasny (Bockhold and Quasny, ff. Tr. 561). The i Staff presented Armando Masciantonio (whose prefiled testimony is in

! evidence) as a witness (Masciantonio, fr. Tr. 576). The professional quali-fications of these witnesses were found to be acceptable for giving expert testimony on the issues.

l Discussion

2. The Staff described the reason for the environmental qualification of nuclear power plant equipment and identified the NRC's regulatory requirements for same. The purpose of environmental qualification at a nuclear power plant is to demonstrate that equipment used to perform a necessary safety function is capable of maintaining functional operability under all service conditions postulated to occur during its installed life.

The qualification program must also demonstrate that the equipment in question is capable of the specific length of operating time required fol-lowing an accident. Environmental qualification is normally achieved by l

l l

l l

l subjecting a representative piece of equipment to a test program that sim-ulates the expected environmental and service conditions the equipment will see during its installed life, followed by exposure to a simulation of design-basis accident environment during or after which the equipment is required to operate. Exposure to the radiation generated by the normal operation of a nuclear plant represents an environmental condition that plant components and equipment must be qualified to endure. The higher radiation doses associated with a design-basis accident are not of concern with respect to dose rate effects, since accident radiation effects can be readily simulated. The regulatory requirements for environmental qualifi-cation are stated in General Design Criterion 1 and 4 of Appendix A and in (( III, XI, and XVII of Appendix B to 10 C.F.R. Part 50. Specific requirements for environmental qualification of electric equipment impor-tant to safety are stated in 10 C.F.R. 5 50.49. Masciantonio, ff. Tr. 550, at 5 7.

3. In June 1981, Sandia published a report, NUREG/CR-2157, enti- ~

tied " Occurrence and Implications of Radiation Dose-Rate Effects for Material Aging Studies." The work reported therein dealt with labora-tory studies of the mechanical properties of ethylene propylene rubber (EPR) and cross-linked polyolefin (XLPO), to be used in VEGP as elec-tric cable insulation materials, and the mechanical properties of chlorosulfonated polyethylene (Hypalon) and chloroprene (Neoprene), to be used in VEGP as electric cable jacketing materials. These materials were stripped from cable samples and irradiated in air and nitrogen at radiation dose rates ranging from approximately 0.001 to 1.0 megarsds per hour (Mrads/hr). Degradation of tensile properties (elongation and tensile strength) was measured; radiation dose rate effects were found in all materials tested-in air Kitchens, et al, fr. Tr.- 561, at 4-6, 8-9; Masciantonio, fr. Tr. 576, at 2-4.

4. The dose rate effects on mechanical properties observed in these four polymers, however, are minor. Moreover, the differences in the rate of degradation caused by the various dose rates decrease as the total inte-grated dose decreases, and they are not discernible at the maximum total integrated doses these polymers could incur over 40 years of normal plant operation at VEGP. In the case of EPR and Hypalon, the reduc-tion of tensile properties is virtually the same for all dose rates up to a total integrated dose of 20 megarads. In the case of Neoprene, the reduc-tion is virtually the same for all dose rates up to a total. integrated dose of 10 megarads. At VEGP, no safety-related equipment containing XLPO, EPR, Hypalon, or Neoprene will receive a total integrated dose for 40 years of normal operation greater than 10 megarads, and most such equipment will receive less than 2 megarads. Thus for EPR, Neo-288

i ..

prene, and Hypalon, the dose rate effects reported in NUREG/CR 2157 are insignificant irrespective of polymer application. Kitchens, et al, ff.

Tr. 561, at 9-10.

5. Of the four polymers tested by Sandia and reported in NUREG/

CR-2157, only the sample designated as XLPO eahibited dose rate ef-fects that were discernible at total doses below 10 megarads. Id. at 10; Masciantonio, ff. Tr. 576, at 4. The term "XLPO," however, does not refer to a specific polymer, but instead refers to a group of cross-linked polymers that are based on aliphatic alkene monomers. Kitchens, et al, ff. Tr. 561, at 7. Cross-linked polyethylene (XLPE) is the polymer most often referred to generically as XLPO. Applicants learned from haA=

however, that the polymer that was designated as XLPO in the haAa

< study (NUREG/CR-2157) was a copolymer of ethylene and vinyl ace-

. tate (EVA). Id. at 8.

6. Applicants stated that EVA is not used at VEOP in any safety-related equipment subject to a harsh environment. Nor can the results for EVA be used to predict similar effects in other cross-linked polyolefins.

A later study by Sandia, released after Applicants' summary disposition motion was filed, evaluated dose rate effects in XLPE. NUREG/CR-l 4358, " Applications of Density Profiling to Equipment Q=-N=*iaa Issues" (Septenlb er 1985). Sandia evaluated the degradation of tensile properties of XLPE insulation at various dose rates. The results demon-strate that dose rate effects on tensile properties of XLPE are insignifi-cant below 20 megarads total integrated dose. Kitchens, et al, ff. Tr. 561, at 10.

7. Applicants had assumed, for the purpose of their summary dispo-i sition motion, that the dose rate effects reported in NUREG/CR-2157 for XLPO (which was EVA) were applicable to XLPE. The only safety-related application of XLPE, or of any other type of XLPO, sub-

< ject to a harsh radiation environment at VEGP is cable insulation. To l demonstrate that the dose rate effects observed in XLPO did not com-promise safety-related cable, Applicants described the results of another Sandia study demonstrating that degradation of the mechanical proper-i ties of XLPO insulation does not prevent the cable from performing its i

required electrical function. This particular Sandia study is reported in NUREG/CR-2932, " Equipment Qualification Research Test of Electric Cable with Factory Splices and Insulation Rework Test No. 2" (Septem-ber 1982). For the results reported in NUREG/CR 2932, the XLPO ma-terials that were tested consisted of XLPE. Electrical cable insulated with these materials was exposed to radiation at a relatively low dose rate (0.062 Mrads/hr) for a total integrated normal operational dose of 50 i

Mrads/hr. Then, after elevated temperature aging, the cable was exposed 289 i

i i

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

F i

to an accident dose of 150 megarads at a rate of 0.77 Mrads/hr. Despite severe degradation of mechanical properties, the cable was able to per-form its electrical function at all times. This series of tests was conducted accordmg to industry standards (IEEE 323 1974 and IEEE 383-1974) and NRC guidelines (NUREG.0588). Sandia concluded that the method-ology employed by the nuclear industry to qualify electrical equipment (which includes accelerated aging) is adequate. Kitchens, et al, ff. Tr.

561, at 11 12. We concur.

Jane il)

8. Applicants testified that they are not aware of studies that evalu-sted dose rate effects in the electrical properties of polymers other than XLPE aAer radiation exposure. The electrical properties of XLPE and EPR aAer r=<harian exposure have been evaluated in two additional Sandia studies, but these studies did not assess dose rate effects. Id. at 12-
13. However, Applicants and Staff noted that during environmental qual- i ification testing, all safety-related cables undergo an insulation test after LOCA simulation. Id. at 13; Masciantonio, ff. Tr. 576, at 4. Thus, we find that the electrical properties (in this case insulating capability) of all polymers in question used as insulation are tested and we conclude that Issue (1) has been resolved to our satisfaction.

i lasme(2) l 9. In support of their prior summary disposition motion, Applicants noted that additional information regarding dose rate effects may be ob-

tained from a Duke Power Company study. Duke Power established an
informal cable life evaluation program at its Oconee Nuclear Generating l Unit 1, which 1-=== commercially operational in 1973. For this pro-
gram, representative specunens of control, instrumentation, and power cable were placed in selected locations within the reactor building so that they would be subjected to a normal in-contamment environment.

The cables were for the most part insulated with EPR and had Neoprene jackets. In addition, some samples were insulated with XLPE and cov-ered with Neoprene jackets. For all cable samples, the average radiation exposure rate was 0.65 rad /hr during operation and 0.12 rad /hr when the unit was shut down. The actual exposure level that each sample re-ceived is considered to have varied considerably over the length of the cable dependent upon the exact location of the cable within the reactor building. These dose rates are quite low in comparison to rates used in the Sandia investigations, but are representative of the dose rates ex-290 l

I

pected to occur at VEGP. Samples of these cables were removed aAer 5 years and again after 10 years of exposure. Physical and electrical tests were conducted to determine the degree of degradation of the cable components. In all cases, the cables were in good condition with no more deterioration observed than would be expected over a mi=dar penod in a nonnuclear environment. Kitchens, et al, ff. Tr. 561, at 1314.

- 10. Applicants testified that the si: :" == e of the Duke Power Company's cable survedlance program is that a 10-year exposure to the low-dose rate radiation actually encountered in operstmg nuclear power plants has not done detectable harm to cables of the same general type that are to be used at VEOP. Furthermore, the results demonstrate that there will be plenty of time to benefit from operating experience gained from other plants and to take any a-ry corrective action if signiA.

cant dose rate effects are identified. Id. at 14-15. This testimony estab-lishes to our satisfaction that the Duke Power Company experience, al-though not ruling out dose rate effects in VEOP, adds confidence that such effects will not rapidly occur. Thus issue (2), we conclude, has been put to rest.

Inne U)

11. Environmental qualification tests of cable types to be used at VEOP include a mechanical durability (or stress) test, applied to the cable samples following their exposure to the simulated normal and acci-dent environmental conditions. All VEOP safety-related cables are given such tests, which comply with 9 2.4 of IEEE 3831974. In pertinent part, the IEEE requirement states:

Upon - .' '= of tlw LOCA simulance, the specuman almuld tw uraightened and recoiled around a metal mandrel with a diameter approniwy 40 tismes the overall ceMe diameter and isomersed in tap water at room temperature. While stdl in-nersed, these specumena should again pass a voltase withm-i test for 5 minutes at a possatial of to V/ mil ac or 240 V/mit dc.

All specimens used to qualify each type of VEOP safety related cables passed this test. Kitchens, et al, ff. Tr. 561, at 1516. 'Iliis testimony ex-plains the nature of the stress tests and reports the successful results therefrom. Hence we find that Issue (3) has been resolved to our satisfac-tion.

291

lu u (4)

12. In order to detect any unanticipated degradation, Applicants stated that prior to fuel loading at Unit I they will implement a mainte-nance and surveillance program to be employed over the lifetime of the plant. Bockhold and Quasny, ff. Tr. 561, at 2. Such a program derives from Regulatory Guide 1.33, Rev. 2, and its endorsement, in turn, of the more detailed guidance of the American Nuclear Socuty/American Ns.

tional Standards Institute standard ANS 3.2/ ANSI N18.7-1976. This standard defines the scope and content of a maintenance / surveillance program for safety-related equipment that is acceptable to the Staff. Reg-ulatory Guide 1.33 is acceptable to the Staff as a =*=n= of meetag the requirements of 10 C.F.R. 9 50.49. Additional guidance is found in NUREG-0588, " Interim Staff Position on Environmental Qualification of i

Safety Related Electrical Equipment." Masciantonio, fr. Tr. 576, at 5-6.

The Applicants have submitted their proposed maintenance and surveil-p lance program, which has been found to be satisfactory by the Staff. Ap-j plicants' witnesses Bockhold and Quasny stated that this program is de-scribed in Applicants' FSAR response to Staff question Q271.1 (Septem-ber 6,1983) and in f 4.2 of "Environmen:al Qualification of Safety Relat-ed Equipment Located in a Harsh Environment" (September 1985). In addition, their testimony also summartzes the important features of that program. Bockhold and Quasny, ff. Tr. 561, at 2 7. The Staff stated that it will formally document its approval of the maintenance program in the Safety Evaluation Report prior to licensing the VEOP. Masciantonio, .

Tr.579.

The Board has reviewed the Bockhold and Quaany testimony cited above and finds that, ifimplemented as planned, such a maintenance pro-

, gram will provide a means whereby unanticipated radiation degradation of polymer materials can be detected and randiM prior to compromis-ing operational safety. The nature and intent of the Staff's requirement and the Applicants' response, along with the Staff's stated approval of that response cause us to find that Issue D has been dispositively ad-dressed.

l June (3)

13. Issue (5) notes that the Staff relies upon a future operational maintenance and surveillance program rather than upon the prior testag results described by Applicants. The matter was not explicitly addressed by Staff or Applicants. The Staff did state that its review of Applicants' l testimony did not generate any exceptions or disagreements with that l

l 292 I

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testimony. Masciantonio, Tr. 580. The Applicants' commitment to imple-menting a Staff-approved maintenance and surveillance effort directed toward these polymers (approved by Staff and us, as discussed under

- Issue (4) above) provides assurance that safety-related equipment will perform its intended function if needed. Thus, the silence of both parties on this difference in their approaches does not ap' pear to us to be of ma-terial i-aihe since each approach provides the assurance required.

We find that Issue (5) has been implicitly resolved.

Conclusions i

14. The full testimony of Applicants and Staff on Contention 10.1 is uncontroverted. We find that testimony to be correct and persuasive.

The evidence addressed Intervenors' original challenge, limited in l

~

NUREG/CR 2157 to mechanical properties, and included the adequacy of the environmental testing of those polymers whose electrical proper-ties are also of import to VEGP. Moreover, each of the litigable issues identified (II.1, above) has been addressed to the Board's satisfaction as discussed above. We find from the evidence that polymer materials des-tined for use in safety-related VEGP applications have acceptably passed an adequate environmental qualification program. Additional assurance

! as to the adequacy of these polymers will derive from an operational sur-veillance program to be implemented by Applicants. Accordingly, the Board concludes that Contention 10.1 is without merit and that Appli-cants have prevailed.

IIL CONCLUSIONS OF LAW The Board has a, Lised all of the evidence submitted by the parties in this proceeding on Contentions 7 and 10.1. Based upon a review of the record and the foregoing Findings of Fact on the two contentions, the Board concludes that:

1. As to the contentions addressed herein, there is reasonable assur-ance that, if operating hcenses are subsequently granted to Applicants, the activities authorized thereby will not be inimical to the common de-fense and security, can be conducted without endangering the health or safety of the public, and that such activities will be conducted in compli-ance with applicable NRC regulations.

293

. . -. _ =

IV. APPEAL Although this Decision does not authorize the issuance of licenses or resolve all contentions, i.e., Contention 10.5, it does resolve a major seg-ment of the case and is therefore appealable at this time. Any party may take an appeal from this Decision by filing a Notice of Appeal within ten (10) days after service of this Decision. Each appellant must file a brief supporting its position on appeal within thirty (30) days after filing its Notice of Appeal (forty (40) days if the Staff is the appellant). Within thirty (30) days after the period has expired for the filing and service of the briefs of all appellants (forty (40) days in the case of the Staff), a party who is not an appellant may file a brief in support of or in opposi-tion to the appeal of any other party. A responding party shall file a single, responsive brief regardless of the number of appellants' briefs filed (see 10 C.F.R. I 2.762(c)).

THE ATOMIC SAFETY AND LICENSING BOARD Morton B. Margulies, Chairman ADMINISTRATIVE LAW JUDGE Gustave A. Linenberger, Jr.

ADMINISTRATIVE JUDGE Dr. Oscar H. Paris ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland, this 27th day of August 1986.

[The Appendix has been omitted from this publication but can be found in the NRC Public Document Room,1717 H Street, NW, Washington, DC 20555.]

i 294 9

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Cite as 24 NRC 295 (1986) LSP-96 29 UNITED STATES OF AMERICA NUCLEAR REGUI.ATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Charles Bechhoefer, Chairman Dr. James C. Lamb Frederick J. Shon in the Matter of Docket Nos. STN 50 499 OL STN 50 499 OL (ASLBP No. 79 42107 OL)

HOUSTON LIGHTING AND POWER COMPANY, et s/.

(South Texas Project, i Units 1 and 2) August 29,1998 The Licensing Board issues a Partial Initial Decision that resolves all issues not decided by the Board's two previous partial initial decisions and authorizes operating licenses (subject to further Staff and Commis-sion review). The Board determina that, because of the extremely low 1 probability of significant damage from a hurricane missile strike, portions of three structures need not be designed to withstand such missiles.

RULES OF PRACTICE: EVIDENCE That scientific studies were not performed by NRC does not per se un.

dermine their acceptability.

1 l

ATOMIC ENERGY ACT: LICENSING STANDARDS Under the Commission's Policy Statement on Safety Goals for the Op.

erstions of Nuclear Power Plants, deterministic licensing criteria are to 295 l

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be observed as the primary basis for regulation, but probabilities of sig.

nificant damage may be considered as one factor in the licensing deci-sion.

, ATOMIC ENERGY ACT: LICENSING STANDARDS Where the probability of significant damage from an external hazard is sumciently low, a failure to conform to otherwise applicable regulatory requirements may be regarded as de minimis and accepted on that basis.

OPERATING LICENSE HEARINGS: SUA SMVTE ISSUES In an operating license proceeding, a licensing board is required to give limited consideration to certain unresolved generic issues, as well as other uncontested safety and environmental issues.

LICENSING BOARD: JURISDICTION A licensing board has jurisdiction to conduct the requisite review of unresolved generic issues and other contested safety and environmental issues, notwithstanding that it did not expressly reserve such jurisdiction in a prior partial initial decision which resolved most (although not all) remaining contested issues.

TECHNICAL ISSUES DISCUSSED Externally generated missiles Probabilistic risk assessment Safety goals.

APPEARANCES Alvin H. Guttermes, Esq., Washington, D.C., for Houston Lighting and Power Co. (HLAP), et al, Applicants.

IAnay Alan Sinkin, Esq., Washington, D.C.. for Citizens Concerned About Nuclear Power, Inc. (CCANP), Intervenor.

Oreste Russ Pirfo, Esq., for the United States Nuc! car Regulatory Com.

mission Staff.

296

TABLE OF CONTENTS Page O PI N IO N .. . . ... .. ... ................... . ....... ..... ..... . . ..... ... ... ... 297

1. INTRODUCTION AND

SUMMARY

.. .............. .. ... 297

11. CONTENTION 4: HURRICANE DESIGN AND 29 8 CONSTRUCTION ...... ..... . . .... . ... . . ..... ..

A. Introduction ... . . . . . . . . . . . . . . ........... 298 B. Clarification of Record on Probability Calculations....... . 300 C. Legal Questions Raised by CCANP and Discussed by the Applicants ........................... ..... ........... ...... . . ........ 302 111. UNCONTESTED MATTERS. ... .... ..... .. .... . .. ..... . 307 IV. CONC LU S10N............................. ........... . ............... ......... 308 FINDINGS OF FACT AND CONCLUSIONS OF LAW. . ........ 310

1. FINDINOS OF FACT........... ...... .... . ...... . .......... 3 to A. Procedural Background ........ .. ....... . ................... ... ... 310 311 B. Probability Calculations ......... .... ........................ .. . ....

C. Conclusion with Respect to Contention 4..-......... ............. 316

!!. CONCLUSlON S OF LAW ................... ................ . ......... 317 ORDER...................................... ...........................317 PARTIAL INITIAL DECISION (Authorising Operating Licenses)

Opialon

1. INTRODUCTION AND

SUMMARY

(Fladings SlH19)

This is our third Partial Initial Decision (PID.lli) in this operating 11 cense proceeding involving the South Texas Project, Units 1 and 2 (STP), two pressurized water reactors located approximately 12 miles south. southwest of Bay City, Matagorda County, Texas. Each plant is designed for a rated electrical output of 1250 megawatts.

The Applicants for operating licenses are Houston Lighting & Power Company (HL&P), the project manager; the City of San Antonio, Texas; 297

Central Power and Light Company; and the City of Austin, Texas (here-inafter referred to collectively as the Applicants). Other participants in this portion of the proceeding are Citizens Concerned About Nuclear Power, Inc. (CCANP), the only remaining Intervenor, and the NRC Staff. (The State of Texas, an interested State, did not participate in the issues covered by this Decision.)

The procedural background of this proceeding is set forth extensively in our earlier two decisions and will not be repeated here. We need only reiterate that, in those decisions, we resolved all contested issues except for two aspects of one contention (dealing generally with the adequacy of the design and construction of the STP to withstand hurricanes and hurricane missiles). LBP 84-13,19 NRC 659 (1984) (PID-I), off'd in part, ALAB 799, 21 NRC 360 (1983), review declined by Commission, letter dated July 30,1985; LBP 86-15,23 NRC 595 (1986)(PID-II). In this De-cision, we are granting the Applicants' motion for summary disposition with respect to the unresolved design questions - finding that, with re-spect to portions of three structures which are not designed to withstand wind-driven missiles, the risk of severe damage is so low that the failure to satisfy otherwise applicable design standards may be regarded as de minimls. Accordingly, we are concluding that the STP has been ade-quately designed to withstand hurricanes and hurricane missiles. We are also dismissing that portion of the contention which questions whether the STP has been adequately constructed to withstand hmricanes.

Finally, we have completed the review which we must give to uncontested matters. We posed questions regarding one aspect of the emergency plan, and the Applicants have provided a satisfactory re-sponse. We accordingly have found no matter warranting our further consideration pursuant to 10 C.F.R. { 2.760s.

Having concluded our review of all matters before us, we are author-izing the Staff (upon completion of those aspects of review vdthin its re-sponsibilities) to issue licenses permitting fuel loading and low. power op-erations and thereafter (subject to Commission "immediate effectiveness" review) full-power operations. Such licenses are subject to conditions previously imposed by us in our earlier decisions.

II. CONTENTION 4: HURRICANE DESIGN AND CONSTRUCTION A. Introdnetion (Fladings 819 421)

CCANP Contention 4 questions whether Category I structures at the STP have been adequately " designed and constructed" to withstand hur.

290

_ _ _ . ~.- . ._ _ _ __ _ __ . . .

tv ma*= including hurncane-generated minaik In deshng with this con-tention in PID-II, we granted the Applicants' motion for summary dispo-sition insofar as it related to the design of the STP to withstand hurri-cane wmds. We also h ;,d that all but designated portions of three 5

Category I structures were adequately designed to withstand hurricane-generated miamiles. But we also found the record inadequate to permit us' l

to grant summary disposition with respect to the design of those portion *

' of three structures to withstand hurncane missiles. In addition, we noted that CCANP had a further opportunity to raise questions concerning the adequacy of STP construction to withstand hurricanes, and we declined to rule on that issue at that time. PID.II, supra, 23 NRC at 646 57 and Findings 763 793,23 NRC at 769-79.

CCANP was permitted to raise hurricane-related construction ques -

tions by June 9,1986 (PID-II,23 NRC at 657 n.14). It has not sought to do so. Accordingly, without expressing any opinion on the merits of the issue, we are disnussing the construction allegations of Contention 4.

The portions of three Category I structures with respect to which we declined to grant summary disposition in PID II were the roof areas of l the isolation valve cubicles (IVC), certain Mechanical Electrical Auxil-inry Building (MEAB) HVAC openings, and the diesel generator exhaust

)

' stack openings (heremafter referred to collectively as " nonconforming structures") (Finding 825). These nonconforming structures were con-cededly not designed to withstand hurricane-generated minaiW, as re- ,

quired by 10 C.F.R. Part 50, Appendix A, General Design Criterion 4.

Instead, the Applicants (supported by the Staff) sought to establish the bcensembdity of these structures on the basis that the probabdity of l

severe damage from hurricane (or tornado) missiles was so low that the l

! structures were not required to be equipped with protective features to resist such miamilen SW8L =11y, the Applicants (and Staff) asserted that j

the probabdity of a rnismile strike was less than I x 10-' annually and h

  • that a long-standmg Staff acceptance criterion was satisfied.

j CCANP cpposed this approach on the ground that licensing through a probaSility approach is not permissible and that the nonconforming I

structures did not meet governing' regulatory requirements. We con-curred in srt with that view, expressing our opinion that it was perhaps l

not pernussible (as the' Staff had argued) to accumulate nonprotected Category I structures until the 1 x 10 -' criterion was reached. However, we also concluded that, if the probability of a' missile strike on the non-conforming structures were as low as suggested by the Applicants or Staff, the failure to satisfy deterministic licensing requirements with re-spect to those structures could be regarded as de minimis and acceptable

299 i

i i

h f

I l

I f

(-

on that basis. We express some additional views on this subject later in this Opimon.

We declined to grant anmmary disposition in PID-II with respect to the nonconforming structures because the record did not appear to sup-port the probabdity calculations which were before us. We indicated that we would pose certain questions to the parties concerning, later alla, the probabdity a=1-=8-% and the missile resistance of the nonconformmg structures, to determine whether wy disposition could be granted.

We set forth such questions in our Memorandum and Order (Board Questions Concermng Design of Nonconforming Structures to Withstand Hurricanes and Tornados), dated June 23,1986 (unpublished).

The Applicants and Staff each filed responses, dated July 14, 1986.

(The Staff Aled a corrected response on July 22,1986.1) CCANP filed a statement ofits views on July 17,1986.

i B. Clariflestion of Record on Probability Calculations (Fladings g22-g39)

The long-standing Staff aca~p--~ critenon to which we have re-ferred provides, in effect, that Category I structures must be protected i from offsite hazards (such as tornados or hurricanes) where "the ex-pected rate of occurrence of potential exposures in excess of the 10 C.F.R. Part 100 guidelines is estimated to exceed the NRC Staff objec-tive of approximately 10-7 per year" (Standard Review Plan, NUREG-4 0800, Rev. 2, July 1981 (SRP), f 2.2.3). This criterion, which is derived from Regulatory Guide 1.70, Rev. 3, November 1978, f 2.2.3.1, Determl-nation of Dangs Basir Event.r, is applicable to the assessment of possible hazards due to minanles generated by such natural phenomena (SRP '

I 3.5.1.4; Regulatory Guide 1.117, Rev.1, April 1978).

1 As we discussed in PID-II, the Applicants and Staff each attempted to demonstrate that the probabdity of a minaile striking the nonconforming structures as a result of a hurricane or tornado was less than 1 x 10-7

{ annually and, accordingly, that the structures need not be designed to i

' withstand such externally generated misantes. The Applicants had claimed that this probabdity (en==wl for the three structures) was approximately 6 x 10- annually (PID.II,23 NRC at 652 and Finding 785,23 NRC at 777); the Staff concluded that it was appronimmeely 4.5 x 10-' annually (14. at 652). Both of these calculated probabdities are orders of magni-i tude less than the 1 x 10 -' acceptance criterion. For that reason, the Ap-1 i n. sina e var i io ni. . ,,s  : .nia.* . corr.c c.ri i. .mn i in. .nia.4 upo. which lis .ariier t.sponse was bened. Abessi any e w. areupt the sappissuomies anidevii.

300 -

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

.- . . . . ._ .=- - . ._ . - .

plicants (supported by the Staff) sought summary disposition of the design aspects of Contention 4, including the design of the nonconform-

- ing structures, claiming that there was no outstanding issue of material fact with respect thereto.

Although CCANP did not file affidavits raising questions as to these ym:,.:,ilities, we were unable to accept the Applicants' or Staff's prob-ability calculations at face value. In our view, the record was not clear as to whether an appropriate spectrum of missiles had been used to de-terame the probabdity of a minaile strike. Hence, we determmed that, with respect to the three nonconforming structures (or portions thereof),

there was an unresolved material issue of fact that precluded our grant-ing Summary disposition of that portion of Contention 4 deshng with the

' design of those structures.

As we explamed (PID-II, supra, 23 NRC at 653-55), it appeared to us (mostly from language in the Staff's safety evaluation of this issue) that one of the spectra of design-basis minailes set forth in SRP l 3.5.1.4 had been utihzed. Such a spectrum is appropriate for evaluating the design of Category I structures, since it envelopes missiles of less severity (al-though possibly greater frequency). But where, as here, structures are concededly not designed to resist minailes, missiles which might cause damage to nonconforming structures, or to the safety-related equipment protected thereby, might have been improperly omitted from the spec-trum employed to ascertain the probabilities in question. As examples,

- we mentioned missiles such as pieces of sheet metal, tree limbs, small '

fence rails, pieces of wood, or even chickens or birds (PID II, supra, 23 NRC at 655).

The affidavits submitted by the Applicants and Staffin response to our questions have clarified the record and dispelled our reservations as to the adequacy of the calculated probabdities previously submitted to us in support of summary disposition. Each of the affiants is technically quali-fled to address the questions to which he responds (Findings 823, 824).

The affidavits identify three categories of externally generated minnile

! spectra which must be considered in ascertaining the necessity for miande protection of Category I structures. As designated by the Applicants, they are (Findings 827, 831):

1. Substantive Miniles. Missiles of moderate to heavy weight, such as large pieces of lumber and pipes. The Board perceives these minailes as being encompassed by the various spectra of l

i design-basis missiles identified in SRP $ 3.5.1.4.

2. Light Misiles. Objects such as pieces of wood, sheet metal, plywood, and tree limbs, which are comprehended by the re-301 r

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

suits of onsite surveys of potential missiles at seven nuclear power plants in various stages of construction and operation.

3. Debris Small lightweight objects which, in general, do not have sufficient energy to cause significant damage to safety-re-lated equipment.

As explained in our Findings, the Applicants and Staff utilized a

" standard" missile for their PRA missile spectrum, compnsed of minailes in the first and second categories. Although the third category was not encompassed within the missde spectrum used for the probability calcula-tions, the Applicants and Staff have each demonstrated that the likeli-hood of excessive releases of radiation caused by a missile strike of the saird category of missiles is virtually nonexistent. Furthermore, numerous conservatisms have been employed by the Applicants and Staff in utiliz-ing their " standard" spectrum of missiles. For example, damage in excess of Part 100 guidelines was presumed for every missde stnke, even though that result would clearly not occur with many missile senkes. For that reason, we are able to accept the probability calculations employed by the Applicants or Staff in support of our granting summary disposi-tion of the remainder of the design aspects of Contention 4. See Findings 827 835.

CCANP has not furnished any affidavits in responding to those sub-mitted by the Applicants and Staff. In effect, it challenges the legal ade-quacy of using probabilities as a basis for licensing - not one of the questions left open by PID-II. For their part, the Applicants have com-mented on the reservations which we earlier expressed concerning use of probabilities in licensing decisions (although they expressly refrain from seeking reconsideration of our ruling in PfD-II). For reasons set forth in Part I.C of this Decision, we are explaining in greater detail and reaffirming the views which we expressed in PID-II.

On the basis of the entire record before us, including the enhanced record on probability calculations which we now view as adequate for resolving the material factual issue upon which our ruling in PID-II was predicated, we are granting the Applicants' motion for summary disposi-l J

tion of the design aspects of Contention 4.

e C. I4 gal Qasseless Raised by CCANP and Discussed by the Applicants

! Both CCANP and the Applicants have provided comments concern-i ing our Opinion in PID-II that interpreted the Commission's rules as per-mitting, to a limited degree, and on the basis of a lack of significant prob.

ability of damage, a facility's failure to conform to deterministic stand-ards otherwise applicable to it. CCANP views that approach as imper-L

s . _ . . _ _ ._. . _ _ _ _ ~ __ __

l 4'

i missible; the Applicants view it as overly restrictive (although they rec-osmae that the approach would permit the hcensus of STP and hence do not seek i--r "=ation of any of our rulings). On the basis of these comments, we believe that a greater explication of our legal rulings - to which we adhere -is warranted.

1. In its statement of views, CCANP opposes our granting s===ary disposition of the design aspects of Contention 4 (to the extent it relates to the nonconforming structures) on . essentially two grounds. First, CCANP asserts that the use of a probability approach amounts to a li-cense (construction permit) amendment without following prescribed procedures. Second, assuming orgnendo that use of probabdities does not constitute a license amendment, CCANP asserts that probabilistic risk as-eaan=*at is an " inherently unreliable methodology"; that the determina-tions made with respect to the nonconforming structures rely on sparse data obtained from studies not performed by NRC but rather by indus-i

' try; and that, since it would be feasible to modify the nonconforming structures to comply with applicable regulatory requirements, we should require the Applicants to do so.

We need devote little analysis to the first of CCANP's claims. When a construction permit is issued, it does not normally include details of the design of each structure. Although it requires that applicable regulatory

[ requirements be satisfied, it does not specify the precise mana-r in which that objective must be achieved. Here, the Applicants are asserting that certain requirements need not be construed to govern the protection of the nonconforming structures from external missiles. If they prevail, the applicable regulatory requirements will have been satisfied, and no 11 cense amendment is involved. If they were not to prevail, they would be required to design the nonconforming structures to provide adequate protection against missiles. Thus, we do not perceive that the Applicants are seeking an amendment to their construction permits.

CCANP's second claim warrants some further comment. It asserts, in effect, that probability analyses should never be used to analyse compli-ance with NRC regulatory requirements, at least where (as here) there are significant uncertainties in the data utilized, it also questions the use of data from studies not performed by NRC.

In our view, the O "t-3 has sanctioned to some degree the use of l

probability analyses in conducting its regulatory reviews: the only ques-tion is the extent to which such use is permissible - a topic to which we will turn in discussing the Applicants' comments (Part I.C.2, IVrs). As l for uncertainties, the Staff's acceptance criterion envisions the presence l

of certain uncertainties. Where calculations are demonstrably conserva-tive, the probability of exceeding 10 C.F.R. Part 100 guidelinee may be 303 l

f l

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as high as 1 x 10 -* (SRP { 2.2.3 at 2.2.3. 2). The Applicants and Staff, in performing the probability analyses with respect to the susceptibility of the nonconforming structures to strikes from externally generated mis-siles, have incorporated a number of conservative assumptmas into their calculations (Finding 830). Nonetheless, they have utilized the 1 x 10-'

ecar- e criterion. That being so, we believe that the calculations before us adequately take into account the uncertainties to which CCANP refers. Moreover, CCANP has provided us no ground for ques '

tioning the adequacy of the studies not performed by NRC, and we per-ceive no such ground. Both the Applicants and the NRC Staff relied on those studies, which were undertaken by the Electric Power Research Institute (EPRI). That they were not performed by NRC does not per se undermine their acceptability. See Clewland Electric Illuminating Ca (Perry Nuclear Power Plant. Units I and 2), ALAB-841,24 NRC 64,82 (1986).

2. In PID II, we were unwilling to accept in its entirety the Staff's position that the 1 x 10-' acceptance criterion should be applied irre-spective of the number of safety structures which do not meet determi-nistic standards and are added together to ascertain whether the prob-ability of damage exceeds 1 x 10 -' annually. We reasoned that this posi-tion amounted to regulation by probabdity or safety goal - a position which we viewed as barred by a then applicable Commission Policy Statement.

The Applicants do not formally seek reconsideration of this position.

But they state that they agree with the Staff's position that an unlimited number of safety structures may fail to conform to regulatory require-ments, as long as the annual probability of being adversely affected by a natural phenomenon (or natural phenomena) is less than 1 x 10 -'. The Applicants cite severa) decisions that assertedly support this view.

In the interim, since the issuance of PID II, the Commission has issued a new Policy Statement to replace the Statement on which we had relied in PID II. Safety Goals for the Operations of Nuclent Power Plants:

Policy Statement, $1 Fed. Reg. 28,044 (Aug. 4,1986). That Policy State-ment, which became effective upon publication, defines certain safety goals which are fundamentally probabilistic in nature and which nuclear power plants must satisfy. With respect to regulation by probability or safety goal, the new Policy Statement states, in pertinent part:

304

14 i

Thees safety goals and these iniplementation gudelines are not meant as a ad=rie=*=

for NRC's regulations and do not relieve nuclear power plant pennittees and licens-eos frons complying with ... * *-- Not are the safety goals and thses implementa-tion g=dah- in and of themselves meant to serve as a sole basis for hcomuns deci-sions. However, if pursuant to these gusdehama, informaraan is developed that is ap.

plicable to a particular licensing decision, it may be considered as one factor in the licensing decision.

51 Fed. Reg. at 28,047.8 In declining to accept potential damage to an unhmited number of structures in determining whether the 1 x 10 ~' accapaa=~' criterion has been satisfied, we were motivated by language in the Corn =*amian's in-terim draft safety goal Policy Statement which appeared to preclude that result (PID II, supra, 23 NRC at 652-53). The new Anal Policy State-ment, as quoted above, seems somewhat more permissive in allowing probabilities or safety goals to serve as at least a partial basis for licens-ing decisions. Nonetheless, like the earlier statement, it provides that de-termmistic licensing criteria are to be observed as the primary basis for regulation.

To recognize the 1 x 10 -' acceptance criterion as applicable to an un-limited number of structures (as asserted by the Applicants and Stan) could elevate that acceptance criterion to the status of a regulation and permit it to override the requirements of NRC d&. .bistic rules and regulations. To permit that result would undermine the fundamental thrust of the new (as well as the former) Policy Statement. It would in i effect provide that, as long as the probability of damage from a given hazard or hazards (e.g., hurricanes and tornados) were less than 1 x 10 -', portions of every safety structure on site could fail to meet regula-tory design standards. We cannot envision such a result being permissible under the regulatory regimen now in effect, even though the probabil-ities were to be computed as acceptably low.

We nonetheless believe that the de minimis approach we outlined in l

PID-II is a permissible interpretation of governing regulatory require-

ments. We accordingly are adhering to the views expressed in PID-II i

and are noting that this approach is more clearly permitted by the new Policy Statement than by the old (which at least explicitly gave no ssac-tion at all to the use of probabilities in licensing decisions). We cannot, and need not, define with precision the numbers of safety structures 1 which can fail to meet deterministic requirements under this approach. It would depend in part on balancing the severity of damage which could e In their comments, the Appucents cite e discuemon dran of thn Pohey Stasement that included (at 13) the foregoung language but d Nered in other respects from the final statement.

305 4

E' result from an accident produced by the hazard in question with the cal-culated probability of the damage occurring.

The authorities cited by the Applicants (July 14,1986 Response at 2-3 n.1) are not inconsistent with the result we are reaching. Offshore Ibwer Systems (Manufacturing License for Floating Nuclear Power Plants),

LBP-82 49,15 NRC 1658,1722-23 (1982) involved whether the 1 x 10 -'

+m;= =e criterion was applicable to floating as well as land based plants, for evaluating protection against turbine missiles. The probabdity discussion related to the existence of the hazard (turbine minades), not the effects of the hazard on individual structures failing to adhere to design standards.: Ibrtland Geneml Electric Ca (Trojan Nuclear Plant), LBP-78-32, 8 NRC 413, 429-33 (1978), qg'd, ALAB-531,9 NRC 263,276 77 (1979), si=darly dealt with the likelihood of damage to one structure -

the spent fuel pool - from several hazards (each of which was analyzed separately).*

Florida Ibwer a Light Ca (St. Lucie Nuclear Power Plant, Unit No.

2), CLI 81 12,13 NRC 838, 843-44 (1981) is, if anything, contrary to the Applicants' and Staff's position here, for it stresses the plant-specific analysis which must be factored into any reliance on probabilities; it spe-cifically disapproved any single numerical threshold for the mandatory consideration of accident sequences, concluding that "the probability values calculated for [a] particular event should not be interpreted as establishing a genenc numerical threshold to be used for future consider.

ation of accident sequences" (14. at 843). To the same effect, see Metro-politan Edi. son Ca (Three Mile Island Nuclear Station, Unit 1), CLI 84-11, 20 NRC 1, 9-10 (1984). We interpret those opinions as equally ad.

verse to the unquestioned use of a generic numerical threshold to ex-clude the need to consider otherwise applicable licensing requirements in evaluating design acceptability.

For these reasons, we do not believe that the Commission has en-shrined the 1 x 10 -' numerical threshold acceptance criterion as a licens-ing standard to be used in all cases where the threshold is satisfied. Dis.

cretion in the use of such a threshold must be observed. There must be a consideration of, later alia, the number of structures affected, the extent e To the same esset, see C3r,edend Elseme Ir_  ; Ca (Perry Nucleos Power Plant. Units I and 2k LsP 83-4418 NRC 218 (1983h also cised by the Appau .

  • We prosesse the Appbcasts had la usind the tornado summie hasard. as to which the evulence demon.

etrased that tornado messdes would not cause damase beyond the demen4 ems feel-handhas accident. As a- ..

. the asaed moeod that at 96 hours0.00111 days <br />0.0267 hours <br />1.587302e-4 weeks <br />3.6528e-5 months <br /> eAer reestor shutdows (muussues decay time before feel could be transferred to the spent fuel pool) at least 10 Asel ensembhas could be desnased without esceedens 10 C.F R. Part 100 suidelisest AH of those feel assembbse were in the same structurt Thus, althoush the acord (as a - ) referred to the probabehty of tornado ausade damase . a more then 10 h.el assembhos, the dectanos did not Sad peruusuble a hasard which could impact snore than one structure. 8 NRc at 430538.

306

I of damage which might result, the uncertainties attendant to determining whether the 1 x 10-' threshold has been satisfied, and the degree by which the likelihood of damage is less than the 1 x 10 -' acceptaxe cri-terion.

Here, we are convinced that the failure of three nonconformmg struc-tures to meet deterministic standards coupled with a likelihood of mammele l

impact orders of magnitude less than the Wm critenon, and a likely lack of severe damage even if a missile strike were to occur, falls well within the category of risk which the acceptance criterion deems acceptable. Even though it would have been preferable for the Appli-cents to have properly designed the nonconforming structures to resist hurncane and tornado missiles, we view the failure to meet deterministic requirements here as de minimis and not sufficient to warrant redesign to accord with the deterministic requirements.'

i HL UNCONTESTED MATTERS We have reviewed various unresolved generic issues applicable to STP, as well as other uncontested safety and environmental matters, as required for operating license applications by Louisiana hr and Light Ca (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,111012 (1983), and by Virginia Electric and hr Ca (North Anna Power Station, Units 1 and 2), ALAB-491,8 NRC 245 (1978): We posed questions to the Applicants regarding one matter, concerning the alert and notification system of the emergency plan. See our letter dated July 25,1986, to the Applicants' counsel.

The unresolved generic issues applicable to STP are set forth in Ap-pendix C of the Staff's Safety Evaluation Report, dated April 1986 (NUREG.0781). Taking into account the scope of review appropriate for an uncontested issue in an operating license proceeding, we have exam-ined whether the generic safety issues have been taken into account in a manner that is at least plausible and that, if proven to be of substance,

! would be adequate to justify operation. North Anna, ALAB.491, supra, 8 NRC at 248-49 n.7. We are satisfied that the Staff's review has met that

> standard and, accordingly, that further examination of any generic safety a we nose that, in the new Pohey Seaseawat, two t'm empress the www that mensAcent I damese should be equated to a radiation reisese is excess of EPA standards (which are somewhat lower than Part 100 esandards)($l Fed. Res. at 24,044). Resolution of poemble diferences with the acceptance enterlos which we are relyins ce here is not m or relevant, inasmuch as the Applicaem and staN are conservatively relyins on probetnhties of mesmie senkes, not dw ceuesd froen a eenke. Dey j

each presume J i desmase in the event of a etnke (F' a dines $30,83Sh clearly a very possummac t

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issue pursuant to our authority under 10 C.F.R. I2.760s would n64 be warranted.

We have reached a similar conclusion with respect to ot'rer uncontested matters. With respect to the emergency planning Instter raf-erenced above, the Applicants provided responses to our questions by letter dated August 14,1986.8 (CCANP did not offer any comments on the Applicants' response; the Staff (which could file cosaments as late as today), advised us by telephone that it did not intend to do so.) Our ,

questions had been motivated by our belief that the alerting and notifna-tion provisions of the emergency plan (which relied on a camW==*1r= of sirens and tone-elert radios in some reendencer.) might not have been ado quate to provide effective nighttime alerting in summer (when windows are likely to be closed and air <:onditioning #dquipment is in operation). In response, the Applicants expressed their beleef that the emergency plan sataafled all governing requirements, but thhy volunteered to amend their emergency plan to include tone-elert radios it. every residence veitkn the portions of the Emergency Planning Zone (EPZ) within a 10 tr.Je radius of the plant. Without reaching any conclwlon as to the adequacy of the earlier version of de emergency plan, we hra satisited that, with the de.

scribed === art ==ne, the emergency plan adoquetely resolves the Board's

, concerns in this matter. We now find no warrant for raising this issue pursuant to 10 C.F.R. l 2.760s. We commend the Applicants for the re-sponsible samaner in which they have responded to the questions we  !

raised.'

, IV. CONCLUSION i

With this Decision, we are concluding our consideration of all matters raised by CCANP in this proceeding. Our earlier decisions considered ela that Iseest (at 4 a,7k the Applenames raiard a gummon shout our semaneing jirisdiesera to raise issess puremens to le CF.R. 9 2.70sm They ette the Apse =P Board order of July la 19s4. wherb et**J that the Appeal neerd would rewtow PfD Il suo gasser (as appeds bevtag been fund), escucher wtsh our sessammans he PID.Il which espremly reserved jurtedtsmen only week respect to Canesense 4. They rely I on several desistoms involveng metimes to reopen a record or to admet new esseenasses t

le sur vtow, aimes we are required in an operealms heemse prosemang to rewtow unressved gemarte I'

issues and other uneemessesd endsey sad enetreamsessi quessieme, under seendards spened out he Irisesa l

And ALAB 732, apes and #speldams ALAa491, segum we ased ses espressly reserve jurtsdestese to de es In any event, the Appent amard Oster todiessed only that thee asard was rewtowtad sue esade .

PID IL les gaseselse f>eme FID=ll or our desertpmen er unresolved sensessed issess dad not purport sei  ;

and did noe. depr6ve us of jurteession to rewtow emeenessend issues perement se the senaderde ese sorgh in 10 CF.R. $ 2.7est "

Umkhe the esses stead by the Appisonnes, we are aos levolved in reopening the record or edmiseeng a new e We are merely carrying out a duty that we are ehhgsd to undertake and have not yes sempissed.

elesdeng we say here should be senserend as espriv6sd the seaff of any awherwy h has to regere '

other changes la the emergemey plan wh6sh le before 6e for rettew.  ;

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\t other questions raised by the Intervenors, as well es issues derived from de Comuniesion's decision in CLI so 32,12 NRC 281 (1980).

In reaching this Decision on the single contention lea open by FID II, A[ ' '

he have reviewad all of CCANP's clekas with great care, including the '

entire record of the proceeding. On the basis of the record as supple.

'. .' niented by afhits of the Applicants and Staff Aled subsequent to PID.

II, we have concMed tbst there is no genuine issue as to any material fhot beering on the claWie of CCANP Contention 4 with respect to the design of tu noncomforming structures to withstand hurricane generated missiles, are! that the Applicants are entitled to a decision as a matter of law on thic aspect of Contention 4. V)tther, because CCANP has not pursued its clahns cc+:+= '; the corstruction of the STP to withstand hurricanes and hurricane missilse, we at rilamminaing those claims. (We L

P granted euaunary " , '":- of the remainder of Contention 4 la PID-II.) Dit now have reasonable essucame that safety structures at the STP have been ant-paaaly designed to withstand hurricanes and hurricane I' FineUy, because we have complete 4 our review of all issues before us

- (either contested or uncontested), we are authorising the Staff, upon cosepledos of its own review (which covers many more aspects of the fk3 sty than have+een litigated before us), to authorias operations ini-j tielly for Aset loading and low power operations and therenAor (subject j, to Cc=='=3aa consideration pursuant to 10 C.F.R. I 2.764(f)) Adi-power operadons. TW authorisation is subject to the terms and conditions pre-

"- vinualy imposed by us.*

- In sananining the various issues before us on which we ruled either in

' our earlier decisions or in this Decision, we have not found safety or en-vironmenud issues arising under applicable Co==3=3aa regulations and policies winch we believe present serious, close questions which are cru.

ciel to whether the authorised liceness should become effective before fb!*. oppellate review is conspleted, or en which prompt Corp =3=laa p3licy doidance is called for, within the meaning of 10 C.F.R.

! )2.7k(f)(1)(li). We note, however, that we have used a probability ap-preach in resolvfas a portion of Contensiva 4 (hurricane design) and j

alet, if that approach were to be found leperadasible, substantial design c!4nges to three category I structures raight be wquired.

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' Sense we have not Aanssily remad percusse to 10 C.F.a. 9 3.h the emevesary piammins maast dealt week to our les at to the Apphaema' eeummel doesd July 29. Ivet, we ase s4 loppung as a llesass l

soonessa the happe,sesses to the oestessey pian to wheeh the Appelsames ec=mested Ummesives in thser August 14,1994 respaans Pleaseheten, we fisily espost the Apphennes to adhere to deser comumet.

! ment to psevede te,es> alert tednes to e5 kneesheide in the partess of the erf. weehle e 101sels renus or the plant (Aindevel of herren H. lussey. FT/ plant beenager, prov6ded by Apphemmes' lesent doesd

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This Opinion is based upon, and incorporates, the Findings of Fact and Conclusions of Law that follow. Any statements or rdings on the issues considered herein submitted by the parties that are not dealt with di-  :

rectly or inferentially in this Partial Initial Decision are rejected as being l unsupportable in law or in fact or as being unnecessary to the rendering of this Decision.

Findings of Fact and Conclusions of Law L FINDINGS OF FACT A. Procedural Background 816.' The procedural background of this proceeding is set forth in the Licensing Board's two earlier partial initial decisions and will not gener-l ally be repeated here. LBP-84-13,19 NRC 659 (1984) (PID I), at 723-26 (Findings 112); LBP-86-15, 23 NRC 595 (1986) (PID-II), at 678-83 (Findings 426-445).

817. The p2rties participating in the resolution of the issues dealt with by this Decision are the Applicants (Houston Lighting and Power Co. (HL&P), the project manager; the City of San Antonio; Central Power and Light Co.; and the City of Austin), the Intervenor (Citizens Concerned About Nuclear Power, Inc. (CCANP)), and the NRC Staff.

818. The Licensmg Board presiding over this portion of the proceed-ing is the same as that which presided over the Phase II hearings and issued PID II. See PID-II, Finding 439,23 NRC at 681.

$19. The only contested issue remammg unresolved after PID-II is CCANP Contention 4, concerning the adequacy of the design and con-struction of the STP to withstand hurricanes and hurricane-generated

' missiles. See PID-II, Finding 763,23 NRC at 769. We granted summary disposition of this contention insofar as it questioned the design of STP Category I structures to withstand hurncanes and (except with respect to portions of three structures) hurncane-generated missiles. With respect to the missde protection of the three " nonconforming structures," however, we found the record inadequate to permit us to grant summary disposi-tion, as requested by the Applicants and supported by the NRC Staff.

PID-II, supra, Findings 778, 780, 784-786, and 788 790, 23 NRC at 774-78.

' Fuulins: l-425 appent in PID.I, and Findiass 426-415 appear in PID.II. We are utdizias consecunve

' of Radiass to avoid potential confusion seesamuns froen the comederataca of diNerent espects ofissues or conteenons in snore then one P!D. See P!D.II. 23 NRC at 678 a.39.

310

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820. To rectify the record deficiencies which we perceived with regard to the missile protection of the three nonconforming structures, we stated that in the near future we would issue questions to the parties and that, after receiving responses, wc would :v:h:ste whether summary disposition might then be granted or whether further heanngs may be required. PID-II, supra 23 NRC at 655-56. We issued those questions through our Memorandum and Order (Board Questions Concerning Design of Nonconforming Structures to Withstand Hurricanes and Tor-nados), dated June 23,1986 (unpublished).

821. The Applicants and Staff each filed responses to our questions, supported by affidavits, on July 14,1986. Our Order dated July 17,1986, established a schedule for responses by all parties. CCANP filed a state-ment of its views on July 17, 1986. No supporting affidavits were in-cluded with this response. No other party filed any response. On July 22, 1986, the Staff moved for leave to file a supplemental (corrected) affida-vit. Absent any response, we are granting the Staff's motion (see note 1, supra) and are considering the Staff's affidavit as corrected by the sup-plemental afrulavit.-

B. Probability Calculations 822. In response to our questions, the Applicants submitted affidavits by Messrs. R. Bruce Linderman (Appl. Aff. (Linderman III)),18 Donald H. Ashton (Appl. Aff. (Ashton)), and Dr. Anthony J. Mark (Appl. Aff.

(Mark)). The Staff submitted an affidavit of Mr. Jerry N. Wilson

' (Wilson, Aff. III).11 823. Messrs. Linderman and Wolfe have been previously found by us to be professionally qualified in the areas covered by their affidavits (PID-II, supm. Findings 765 and 767,23 NRC at 769-71). They are simi-larly qualified to address the questions dealt with in their most recent affidavits.

824. Mr. Donald H. Ashton has a B.S. in Mechamcal Engineering from the University of Connecticut, and an M.S. in Nuclear Engmeerms from Purdue University. He is currently employed by Bechtel Energy Corp. as Project Engineer for the STP. He previously has served, later e'.c. as Chief Nuclear / Environmental Engineer for Bechtel's Houston Ares Office, and as Assistant Chief Nuclear Engineer in Bechtel's Gaithersburg, Maryland office (where he was also designated to coordi-

    • Mr. IJaderinen previously subentted two amdevits (Underman M. and Landerman supp. M)(m PID-II. Fundungs 765 and 785).

" Mr. Wilson previously subautted two amdsvita (Wilsoe M. and Wilson Supp. M.) (m PID-II.

Findings 767 and 786K 311 l

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. nate the program for Reliability Analysis and Probabilistic Risk Assess-ment). Dr. Anthony J. Mark has a B.S. in Biological Sciences and a Ph.D. in Cellular and Molecular Diclagy, both degrees from the Univer-sity of Southern California. He has taken additional coursework in, inter alia, reliability and risk ===aament engineering. He currently serves as Engineering Supervisor for the Reliability and Risk Assessment Group of Bechtel Western Power Corp. He previously served as a Senior Engi-neer for the same Group. Appl. Aff. (Ashton), Summary of Education and Professional Experience; Appl. Aff. (Mark), Summary of Education and Professional Experience. Mr. Ashton and Dr. Mark are each profes-sionally qualified in the areas covered by their affidavits.

825. The three " nonconforming structures" which have not been de-signed to withstand hurricane missiles are:

1. The roof area of the Isolation Valve Cubicles (IVC), of which there is one for each unit, divided into four compartments that are separated from each other by reinforced concrete walls ca-pable of withstanding the design-basis tornado missiles;
2. Mechanical Electrical Auxiliary Building (MEAB) HVAC open-ings for each unit, as described in Appl. Aff. (Ashton), A.1, and Wilson, Aff. III, A.1 and Attachment 1.
3. Three diesel generatos exhaust stack openings.

Appl. Aff. (Ashton), A.1, A.2, A.3.C; Wilson, Aff. III (corrected), A.1, '

A.2.

826. The Board declined to grant summary disposition of the design aspects of Contention 4 (insofar as it questioned the missile resistance of the three nonconforming structures) because the record was not clear as to what spectrum of missiles had been used to determine the probability of missile strike on the three nonconforming structures. It appeared that a spectrum of design-basis missiles, as set forth in SRP Q 3.5.1.4, had been utilized. We observed that such spectra are appropriate for evaluating the missile resistance of Category I structures but may be unsuitable for calculating the likelihood of missile damage to Category I structures not appropriately designed to withstand missiles. PID-II, supra. Fmding 790, 23 NRC at 778; to the same effect, see Wilson, Aff. III, A.4.

827. As explained by the affiants, the spectrum of missiles used in the pr-babilistic risk assessment (PRA) of a tornado or hurricane missile strike on the three nonconforming structures was not limited to one of the spectra of design-basis missiles set forth in SRP 5 3.5.1.4. The Appli-cants identified three categories of missiles: substantive missiles, light missiles, and debris. The Applicants' PRA utilized a " standard" missile the characteristics of which were based both upon the SRP spectrum (in-cluding substantive missiles) and upon the results of onsite surveys of po-312

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tential miniles at seven nuclear power plants in various stages of con-struction and operation, as set forth in Electric Power Research Institute (EPRI) reports NP-768 and NP-769.(Twisdale, et al., ' Tornado Missile

' Risk Analysis" (May 1978)). He objects counted as potential miniles in the EPRI survey included not only construction materials and objects found about the plant sites but also miniles which could originate from failures of structures (both temporary construction buildings and perma- -

nent facilities) not designed to withstand tornados. The EPRI spectrum of minites was broader than the spectrum of design-besis miniles in-cluded in SRP I 3.5.1.4. Missiles that could be generated from non-Cate-gory I structures (and which are mentioned in the allegations of Conten-tion 4) are included in the spectrum of missiles utihzed by the Applicants and Staff. This spectrum included all of the " substantive" and " light" missiles as identified by the Applicants. These potential missiles were grouped into twenty-six categories, depending on their material and shape.' Appl. Aff. (Mark, Ashton), A.4; Appl. Aff. (Mark), A.9; Wilson, Aff. III, A.4, A.9.

828. He " standard" missile used in the STP PRA included assump-tions about missile density derived from EPRI survey results for a three-unit plant with all units in operation and a one-unit operating plant. (The other plants surveyed by EPRI had one or more units under construc-tion and had many construction matenals which would not be present on the STP site during plant operation. He Applicants regarded differences in minite density due to continued construction at Unit 2 to be insignifi-cant, since Unit 2 is anticipated to load fuel approximately 18 months after Unit I and, during this penod, will be undergoing startup testing, not major construction.) To account for local variations in missile densi-ties and plant to-plant differences, the STP analysis increased the minile density by a factor of approximately 2.5. Appl. Aff. (Mark, Ashton), A.4; Appl. Aff. (Mark), A.6; Wilson, Aff. III, A.5, item 7(b) (corrected).

829. The methodology and assumptions used in the STP probability calculations are summanzed ano referenced in Appl. Aff. (Mark), A.5, and Wilson, Aff. III, A.5 (as corrected). We accept the described meth-odology and assumptions as adequate for the purposes for which utilized.

A number of conservative assumptions, as set forth in Finding 830, were utilized.

830. The Applicants' PRA included the following conservatisms:

(1) De IVC roof area was assumed to be transparent to missiles -

i.e., open and without missile protection of any kind. In fact, the IVCs will have a roof, although it will blow off as a result of a 2-psi increase in internal pressure. As described in Finding 832, the steel portions of the roof are designed to withstand hurri-313

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cane, although not tornado, winds. Although the roof is .as-sumed not to resist the spectrutn of missiles utilized in the PRA, it may provide protection against debris.

(2) A tornado missile strike in the open top of any one IVC com-partment represents failure.

(3) The comparison of the strike probability to the activity release frequency acceptance criteria assumes (a) missile-inflicted damage is certain and total, and (b) damage leads directly to ac-tivity releases in excess of 10 C.F.R. Part 100 guidelines.

(4) The potential missile model assumes (a) a missile density upper limit increased by a factor of 't.5 (see Finding 828); (b) one-half of the potential missiles are distributed up to 20 feet above grade, with the remamder at grade; and (c) the number of unre-strained potential missiles is conservatively chosen to be 10% of all potential missiles.

(5) The tornado frequency is based on a 30-year historical record fitted with a more conservative lognormal distribution having a larger mean and spread than the empirical distribution.

(6) Geometric factors that result in further conservatisms are (a) the neglect of sheltering by other structures; (b) the failure assumed for a missile strike in any IVC opening (to the extent that no credit is taken for the existence of redundant components or for separation between safety-related trains); and (c) safety-related target areas are less than the IVC open area utilized in the PRA 1 computation. ,

Wilson, Aff. III, A.5 (corrected); Appl. Aff. (Mark), A.5; Appl. Aff..

(Ashton, Linderman III), A.7.

831. Excluded from the spectrum of missiles utilized for the STP PRA was a category of missiles characterized as " debris" (Applicants) or

" light debris" (Staff). These missiles are smaller than the spectrum con-sidered in the EPRI study. (They would include the birds and chickens referenced in PID-II.) The Applicants and Staff excluded these miniles from their PRA calculations because they believed that in general they do not have sufficient energy to cause damage of any significance, and that the potential for damage from debris is negligible and other assump-l tions in the analyses were sufficiently conservative so that their ultimate l conclusions would not be changed. Appl. Aff. (Mark), A.6; Appl. Aff.

l (Ashton, Linderman III), A.7(l); Wilson, Aff. III, A.6, A.8, A.10.

832. With respect to the IVCs, each of the four compartments con-tains equipment associated with an individual steam generator, including a portion of a main steam and a feedwater line, and the main steam and feedwater isolation valves and main steam safety and relief valves associ-314 i

ated with the steam and feedwater lines. The safety-related equipment which could be impacted by a minail, is described in detail in Appl. Aff.

(Ashton), A.3.C and Wilson, Aff. III. A.3 and Attachment 2 at 2. Al-though the PRA assumed no roof on the IVCs, each IVC compartment has a roof made of 18-gauge steel ~with a small portion constructed of reinforced concrete. 'Ihe steel portions of the roof will withstand hurri-cane winds but could be removed by a tornado. If not removed or sig-nificantly damaged, the roof will effectively protect the equipment 1

within the IVC from debris (as well as some light missiles). In addition, most of the safety-related equipment in the IVCs is located below one or more levels of grating, which will withstand the impact of debris and most light missiles. The only safety-related equipment in the IVC which could be affected by debris or light minailes are the fans and power supply cables and valve control systems assocated with the main steam and feedwater isolation and bypass valves and the PORV. Failure of power supply cables or control to any of the valves will result in that valve failing closed (safe position). Failure of the IVC HVAC fans would not affect the ability to shut down the plant safely. Appl. Aff.

(Ashton, Linderman III), A.7.A.

833. The only safety-related equipment which could be struck by a minaile entering the MEAB HVAC openings are tornado dampers, on the interior face of each opening. The tornado damper blades are of suf-ficient strength to withstand debris. Failure of only a small section would not significantly reduce the effectiveness of the large dampers. Debris and light missiles would thus not signifk:antly reduce the effectiveness of the large dampers. But even were the dampers to fail completely, no ad-verse effects would be expected. 'Ihe internal walls in the vicinity of the various openmgs would maintain their structural integrity in the event of

' full depressurization (3 psi). No anticipated effects of depressurization on safety-related equipment in the adjoining rooms would adversely affect the ability to shut down the plant safely. Appl. Aff. (Ashton, Linderman III), A.3.A and 7.B; Wilson, Aff. III, A.10.

834. The only safety-related equipment which could be damaged by l a minaile striking a DGB exhaust stack opening is the DGB exhaust stack. A missile strike in an exhaust stack would only interfere with I diesel operation if it resulted in blockage of approximately 40% or more of the 32-inch. diameter exhaust stack opening. Even in that circum-stance, only the diesel associated with that specific exhaust stack would be affected. Only one of the three diesels would be required to shut down the plant safely, in the event of a loss of offsite power (the only occasion when diesels are required to function). Appl Aff. (Ashton, Linderman III), A.7.C; Wilson, Aff. III, A.10.

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835. The Applicants and Staff have not calculated the probability of a release of radiation in excess of the limits in 10 C.F.R. Part 100, assum-ing a missile strike on a nonconforming structure. They each express the belief that it would be " extremely small" (Applicants) or "de mmimia" (Staff), inasmuch as the damage which might reasonably be postulated to result from a miamile will not prevent the plant from being shut down safely or prevent successful mitigation of resulting transients and acci-dents (which are bounded by FSAR analyses). Appl. Aff. (Ashton,

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836. It would be feasible, although quite costly and time-consuming, to provide missile protection for each of the nonconforming structures.

The Staff has expressed the view that the significant expense would be unjustified in light of the low probability of externally generated mieniles striking the nonconforming structures. Appl. Aff. (Linderman III), A.12; Wilson, Aff. III, A.12. -

837. On the basis of Findings 827 836, we conclude that the minaile spectrum utilized by the Applicants and Staff for their PRA calculations is adequate and conservative, notwithstanding that it omits debris. We have reasonable assurance that a strike of debris would not likely signifi--

cantly affect the nonconforming structures and that the lack ofinclusion

} of debris in the minaile spectrum used for the probability calculations is

offset by other conservatisms in those calculations, as described in Find-ing 830.

838. Applicants have computed the collective probability of a misante strike on the nonconforming structures resulting from a tornado or hurri-cane-generated mineile as approximately 6 x 10 -2* per year. The Staff has computed the probability as approximately 5 x 10-'. Appl. Aff. (Mark, Ashton, Linderman III), A.8; Wilson, Aff. III, A.8; see alm PID-II, 23 NRC at 652, and Finding 785,23 NRC at 777. Each of these probabil-ities is orders of magnitude lower than the Staff acceptance criterion of 1 x 10 -'. Taking into account the low likelihood of a strike, the sigmficant l

conservatisms incorporated into the PRAs, and the low likelihood of sig-

' nificant damage should a strike occur, we agree with the Applicants and Staff that such protection need not be provided.

C. Conclusion with Respect to Contention 4 839. We conclude, on the basis of the record as enhanced by the July 14, 1986 subnussions of the Applicants and Staff, and our discussion of CCANP's views, that there is no genuine issue as to any material fact concerning the design of STP safety structures to withstand hurricanes 316

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and humcane mianites, and that the Applicants are entitled to a decision on this issue as a matter oflaw.

IL CONCLUSIONS OF LAW Based upon the foregoing Findags of F'act and upon consideration of the entire record in this prrw-hag, the Board makes the following con-clusions of law, which supplement the conclusions of law reached in our earlier partial initial decisions.

1. 'Ibe risk of a humcane (or tornado) mienile strike on Category I structures not designed to withstand such missiles (i.e., the IVC roof area, certam MEAB HVAC openmgs, and the diesel exhaust stack open-ings, as identified in Finding 825) is orders of magnitude less than the

, Staff's acceptance criterion of I x 10 -'. "Ihe probability of damage from l

a humcane (or tornado) minaile strike in excess of 10 C.F.R. Part 100 l guidelines is much lower. Accordmgly, the failure of the IVC roof area, the described MEAB HVAC openings, and diesel exhaust stack openmgs I to meet the otherwise applicable requirements of General Design Crite-rion 4 is a de mialmis & ped from those requirements. On the record before us, these nonconforming structures need not be redesigned to resist humcane (or tornado) miamiles.

2. The Applicants are entitled to a decision as a matter of law on CCANP Contention 4.
3. Structures, systems, and components important to safety have been adequately designed to withstand humcanes and humcane-generated

==les, to the extent required by General Design Criterion 4 (and taking into account the above conclusions).

4. -On the basis only of the contentions considered by us, we have reasonable assurance that, if operstag tv anaam are subsequently granted for the STP, the activities authorized thereby can be conducted without endangering the health or safety of the public and that such activities can and will be conducted in compliance with applicable NRC regulations.

Order On the basis of the foregoing Findings of Fact, Conclusions of Law, and Opmion, and the entire record, it is, this 29th day of August 1986, ORDERED:

1. The Staff's Motion for Leave to File Supplemental Affidavit in Response to Licensmg Board's Questions Concermng Design of Noncon-317 l

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forming Structures to Withstand Hurricanes and Tornados, dated July 22,1986, is hereby gmnted.

2. The Applicants' Motion for Summary Disposition of CCANP Contention 4, dated March 12, 1985, to the extent it relates to the ade-quacy of design to withstand hurricane missiles of the IVC roof, certain MEAB HVAC openings, and the diesel generator exhaust stack open-ings, is hereby gmnted. (Summary disposition of the other design aspects of the contention was granted in PID-II.)
3. CCANP Contention 4, to the extent it questions the construction of safety structures to withstand hurricanes and hurricane missiles, is hereby dismissed.
4. Pursuant to the Atomic Energy Act of 1954, as amended, and the Commission's rules, the Director of Nuclear Reactor Regulation is au-thorized, upon malung the findings on all applicable matters specified in 10 C.F.R. I 50.57(a), and subject to conditions previously imposed by this Board, to issue to the Applicants Houston Lighting & Power Com-pany, the City of San Antonio, Texas, Central Power and Light Com-pany, and the City of Austin, Texas, licenses to authorize fuel loading ,

- and low power operations (up to 5% of rated power) and, upon comple-tion of requisite testing (and subject to Commission review pursuant to 10 C.F.R. f 2.764(f)), licenses to authorize full-power operation of the South Texas Project, Units 1 and 2.

5. In accordance with 10 C.F.R. (( 2.760, 2.762, 2.764, 2.785, 2.786, and 2.788, and subject to 14 of this Order, this Partial Initial Decision shall become effective immediately. It will constitute the fmal action of l

the Conmussion forty-five (45) days after the date of its issuance, unless I (1) review is sought or conducted pursuant to the above-cited Rules of l

Practice, (2) a stay is obtained pursuant to 10 C.F.R. I 2.788, or (3) the Commmaion directs that the record be certified to it for final decision.

Any party may take an appeal from this Partial Initial Decision by filing a Notice of Appeal within ten (10) days after service of this Decision.

l Each appellant must file a brief supporting its position on appeal within l thirty (30) days after filing its Notice of Appeal (forty (40) days if the l- Staff is the appellant). Within thirty (30) days after the period has ex-i pired for the filing and service of the briefs of all appellants (forty (40) days iii the case of the Staff), a party who is not an appellant may file a ,

brief in support of, or in opposition to, any such appeal (s). A responding party shall file a single, responsive brief only, regardless of the number of appellants' briefs filed.

Please be advised that, in addition to the appeal and stay remedies l- mentioned above, the Comnussion will be conducting an "immediate -

effectiveness" review of this and our earlier Partial Initial Decisions pur-318 1

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suant to 10 C.F.R. 5 2.764(f)(2). As to timing, that provision states in per-tinent part:

(ii) For operating license aecimons other than those authorizing only fuel loading and low power testing ca==>=r*=t with the target schedule set forth below, the par- a ties naa) Ce t.M m:s v.ith the Co==>=aw= pointing out matters which. in their view, pertain to the i===tiate effectiveness issue. To be considered, such com-ments must be received within 10 days of the Board decision. However, the Com-nussion may depense with comments by so advising the parties. No extensive stay shall be issued without giving the affected parties an opportunity to be heard.

(iii) The Commmason intends to issue a stay decision within 30 days of receipt of the Licensing Board's decision. The Licensing Board's initial decmon will be consid-ered stayed pending the Comaussion's decision insofar as it may authorire operations other than fuel loading and low power (up to 5 percent of rated power) testing.

THE ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Dr. James C. Lamb ADMINISTRATIVE JUDGE Frederick J. Shon ADMINISTRATIVE JUDGE Dated at Bethesda, Maryland, this 29th day of August 1986.

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Cite as 24 NRC 321 (1986) ALJ-86-3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ADMINISTRATIVE LAW JUDGE Ivan W. Smith in the Matter of Docket No. 50-289-EW (ASLBP No. 86-532-04-SP)

EDWARD WALLACE (Three Mlle Island Nuclear Station, Unit 1) August 19,1986 MEMORANDUM AND ORDER TERMINATING PROCEEDING AND REMOVING NOTIFICATION REQUIREMENTS AS TO EDWARD WALLACE BACKGROUND On October 25, 1979, the NRC Staff issued a Notice of Violation to the Metropolitan Edison Company, then the operator of Three Mile Island Units 1 and 2, for actions arising out of the TMI-2 accident. Sub-sequently, in July 1984, the Staff issued a special report on its evaluation of the integrity of the Licensee's management as it might affect the re-start of Unit 1. NUREG-0680, Supp. No. 5 (July 1984). Among the con-cerns expressed by the Staff was its conclusion that Metropolitan Edison Company may have knowingly provided false information in the re-sponse to the Notice of Violation. However, since the two officials pri-marily responsible for the questioned response, Robert Arnold and Edward Wallace, were no longer associated with TMI-I activities, the Commission decided not to grant motions to reopen the record in the restart proceeding on that issue. Instead the Commission imposed a re-quirement on Licensee to notify the Commission before returning either Mr. Wallace or Mr. Arnold to responsible positions at Unit 1. Metropoli-321 i

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i tan Edison Ca (Three Mile Island Nuclear Station, Unit 1), CLI-85-2,21 NRC 282,323 (1985).

Both Mr. Arnold and Mr. Wallace took exception to the implication respecting their reputations and integrity contammel in CLI-85-2. Each re-quested a hearmg. On December 19,1985, the Commianian invited com-ments from interested persons on the requests for hearmgs. The Comnus-sics stated that, based on the information submitted, it would conader initiating an adjudicatory heanns on whether the notification require-ment should be retamed. Genemi Public Utilitier Nuclear Corp (Tinree Mile Island Nuclear Station, Unit 1), CLI-85-19, 22 NRC 886, 889 (1985).

Comments from some of the intervenors in the TMI l restart proceed-ing, the Commonwealth of Pennsylvania, and the NRC Staff were sub-mitted. On May 15, 1986, the Commiaawwi issued an Advisory Opinion and Notice of Hearing effectively exculpating Mr. Arnold (Advisory Opinion) and granting Mr. Wallace's hearing request (Notice of Hear-ing). General Public Utilitter Nuclear Corp. (Three Mile Island Nuclear Station, Unit 1), CLI 86-9, 23 NRC 465 (1986). The Notice of Hearing provided for an adjudication before an administrative law judge under 10 C.F.R. Part 2 and set out the major benchmarks for the proceedmg:

Any petitions to intervene by persons who r==paad=d by Aling cosaments in re-sponse to CLI-8519 shall be Aled in accordance with 10 CF.R. I2.714 and, to be timely, shall be Aled within 45 days of the date of this Notice. No other interven-tions shall be permitted except upon a hatanner of the factors in 10 CF.R.

, 9 2.714(a)(1). NRC Staff shall participate as a party. Any party who advocates that i

Wallace made a knowing, willful, or rarbl=== matenal false =***-' in the NOV response shall have the burden of going forward and pere ===aaa (f ne persove later.

mes agehut Wallace and NRCSt< doer not aduateer a position aseinst Wallace, then the proceeding shall be terminated and the TML-1. :;"-- requimeent at so Wallace shall be remoued.

23 NRC at 472 (emphasis added).

No petition to intervene has been filed.1 On June 30, 1986, the Com-monwealth of Pennsylvania filed a timely petition for leave to participate as an interested state pursuant to 10 C.F.R. I 2.715(c). On July 17, the NRC Staff reported that it does not advocate a position against Mr. Wal-lace. The matter is now ripe for decision.

8 The Advisory Opasson and Notice of Hannas, CLI.sd.9. deced May 13. 1986, was Ph-e la the fedraal Regisser on June 2A 198& $1 Fed. Res. 23.008. Action under the Natace of Hannes has been deferred for at least 45 days fouowins the rankhe *=aa dese.

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DISCUSSION In its petition to parucipate, the Commonwealth assumed that there would be a hearing and stated that:

[T]he Comunoowealth has no additional facts to ofter, and has no ' . ' t - ana of obtaming infonnation on the facts in depute. However, the Comunonwealth is la-terested la participating in the upcomung hennas to ensure that the facts are fairly presented and that the evidence is thoroughly analysed. The Comunonwealth is not now advocating a position assinet Mr. Wallace.

r Commonwealth Petition at 4.

As noted, the Staff, on July 17, 1986, reported that it does not advo-cate a position against Mr. Wallace.8 Also on July 17 the Staff answered the Commonwealth's petition by noting that no person petitioned to in-tervene and that neither the Staff nor the Commonwealth advocates a position against Mr. Wallace. Therefore, according to the Staff, effect must be given to the Commiamina directive, cited above, to termmate the proceeding. Staff Answer at 2-3.

Notwithstanding the Commie,ian's directive and the failure of anyone to take a position agamst Mr. Wallace, the Commonwealth, on August 1, replied to the Staff's answer insisting that a hearmg be held. The Com-

. monwealth urges that the Staff be directed to carry the burden of proof

despite the Staff's disinclination to do so.

Scarcely acknowledging the Cornminaion's directive to termmate the prn~ di'ig absent an adversary against Mr. Wallace (Reply at 3) the Commonwealth advances three principal arguments why, in its view, a hearmg must be held. Each is discussed in the following paragraphs.

1. De Commission directed the Staf to participate in a hearing. Com-monwealth Reply at 2,4,6. In this argument the Commonwealth is ap-parently alluding to the Commtmaion's order in the Notice of Hearing that "NRC Staff shall participate as a party." 23 NRC at 472. In the full context of the Notice, however, it is clear the Comnussion intended for the Staff to participate only if there is a hearing initiated by someone advocating a position against Mr. Wallace.
2. De Commonwealth elected to participate as a state rather than as a parry because it does not have thefacts in its possession and therefore cannot meet the burden of goingformurd and persuasion. Only the NRC Staff has 1

t thefacts knowledge and information to meet this burden. Commonwealth Reply at 3.

8 Latter has Mary Wagner, counsel for Nac Star. so tudge Ivan W. South. July 17.1986.

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4 Given the Commission's directive to terminate the proceedag if no one takes a position against Mr. Wallace, the Commonwealth's second argument is irrelevant. However, the record of this praed=g should not close with the suggestion that Mr. Wallace has escaped the notifica.

tion requirement solely as a consequence of a default by the NRC Staff.

The Commonwealth has participated fully in the TMI-l restart proceed-ing since its inception 7 years ago. Its counsel must be aware ^that if there were a hearing, the Commonwealth would have at its comman<t, through the discovery regulations of Part 2 and the Freedom of Information Act (5 U.S.C. I 552), complete access to any evidence against Mr..Wallace.

3. A hearing is necessary in light of the Commission's and Staf's prior statements regarding Mr. Wallace. The Commission found that Mr. Wal-lace's name cannot be cleared without additional evidence. Commonwealth Reply at 5 9.

The Commonwealth's third argument is directed to the O==3%'s policy determmation to place the burdens of going forward and persus--

sion on any party who advocates a position agamst Mr. Wallace. That determination is binding upon the presiding officer of this proceedmg and the Commonwealth's third argument may not be considered.

In sum, the Commonwealth has not advanced any reason not to comply with the Commission's directive to terminate the proceeding if no one advocates a position against Mr. Wallace.

ORDER

1. This proceeding is terminated.
2. Pursuant to the delegation to the presiding officer in the Commis-sion's Advisory Opinion and Notice of Hearing dated May 15,1986, the TMI l notification requirement as to Mr. Wallace is removed.

APPEAL This Order may be appealed to the Atomic Safety and Licensing j Appeal Board within 10 days following its service.

r Ivan W. Smith ADMINISTRATIVE LAW JUDGE l

Bethesda, Maryland August 19,1986 i

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Cite as 24 NRC 325 (1986) DD-86-11 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF INSPECTION AND ENFORCEMENT James M. Taylor, Director in the Matter of Docket No. 701113 GENERAL ELECTRIC COMPANY (Wilmington, North Carolina .

Facility) August 29,1986 The Director, Omce of Ia-;+1= and Enforcement, denies in part a petition filed p:ssuant to 10 C.F.R. I2.206 by Vera M. English (Peti-tioner).

'Ihe Petitioner, in part, requested the Nuclear Regulatory Comnussion (NRC) to impose civil penalties agamst the General Electric Company (GE or Licensee) for alleged senous violations occurring at its Wilming-ton, North Carolina fhet fabncation facility. Specifically, the Petitioner referred to NRC inspection reports and argued that certam conclusions in those reports were in error. The Petitioner requested that the inspec-tion reports be withdrawn and be rassued with the appropriate Notices of Violation and Proposed Imposition of Civil Penalties. The Petitioner also requested that a hearing be scheduled to inquire into these matters.

'Ihe Director reviewed numerous inspection report findings and relat-i ed allegations regardag public health and safety and concluded that the relief requested in the Petition with regard to them was inappropriate.

Consideration of certam other allegations, specifically allegations of wrongdoing by the f ice ==== and allegations that the Licensee discrimi-

' nated agamst the Petitioner and others in violation of { 210 of the Energy Reorganization Act of 1974, as amended, have been deferred until the NRC's Office of Investigations and the U.S. Department of Labor complete their review of the issues rassed.

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i ENERGY REORGANIZATION ACT OF 1974: SECTION 210 The NRC and the Department of Labor have agreed to coordinate and cooperate concerning the employee protection provisions of f 210 of the Energy Reorganization Act of 1974. Generally, when a complaint has been filed with the Department of Labor alleging discrimmation by an NRC licensee, the NRC defers consideration of the matter until the Department of Labor has acted.

CIVIL PENALTIES: ASSESSMENT Under the NRC Enforcement Policy, civil penalties are not proposed for Severity Level IV violations unless such violations are similar to pre-vious violations for which the licensee has failed to take effective correc-tive action or are willful.

CIVIL PENALTIES: ASSESSMENT Civil pentities are not proposed for Severity Level V violations in the absence of willfulness.

PARTIAL DIRECTOR'S DECISION PURSUANT TO 10 C.F.R. 5 2.206 INTRODUCTION On December 13, 1984, Mozart J. Ratner and Arthur M. Schiller, as Counsel for Vera M. English (Petitioner), filed pursuant to 10 C.F.R.

I 2.206 a " Motion to Institute Proceeding Pursuant to 10 C.F.R. 9 2.202, for Imposition of Civil Penalties and to Vacate and Reverse Inspection Reports and to Schedule Hearing Thereon." The Petitioner, in part, re-quested the Nuclear Regulatory Commission (NRC) to impose civil pen-alties against the General Electric Company (GE or Licensee) for al-leged serious violations occurring at its Wilmington, North Carolina fuel fabrication facility. Specifically, the Petitioner referred to five NRC in-spection reports and argued that certain conclusions in those reports were in error. The Petitioner requested that the inspection reports be withdrawn and be reissued with the appropriate Notices of Violation and Proposed Imposition of Civil Penalties. The Petitioner also requested that a hearing be scheduled to inquire into these matters. By a letter dated January 10, 1985, the Deputy Director, Office of Inspection and 326 l

Enforcement, informed the Petitioner that her request was being re-viewed by the Office of Inspection and Enforcement and would be re-sponded to by that Office. Consideration of Petitioner's request by the NRC wris also noticed in the Federal Register (50 Fed. Reg. 2634, Jan.

- 17, 1985).

The Petitioner subsequently supplemented her original request. On February 28, 1985, the Petitioner filed a supplement discussing alleged deficiencies in additional inspection reports received by Petitioner subse- .

quent to her initial filing. Again, the Petitioner sought the issuance of new " corrected" reports, Notices of Violation, and assessment of civil penalties. A second supplement, dated March 12,1985, further discussed earlier inspection reports and identified additional inspection. reports which the Petitioner sought to have withdrawn and new " correct" re-ports issued. Again, the Petitioner sought the issuance of Notices of Vio-lation for substantiated allegations and numment of civil penalties.

The thrust of these three filings by the Petitioner is to challenge the adequacy and findings of certain NRC inspection activities. The techni-cal adequacy of the review by NRC inspectors of a wide variety of ac-tivities is questioned. Not only is the technical assessment questioned, but

'in many instances the Petitioner suggests, and in some instances expressly alleges, that NRC inspectors have acted improperly by either overlook-4

' ing matters or failing to make findings narranted by the facts. As a result, the Petitioner claims that numerous violations have either been categorized incorrectly or have gone undocumented. The Petitioner fur-ther claims that alleged violations which have occurred at the Licensee's Wilmington facility have been categorized at inappropriately low sever-ity levels under the Commission's Enforcement Policy,10 C.F.R. Part 2, Appendix C. The Petitioner claims that violations that have occurred should have been categorized at severity levels justifying the imposition of civil penalties. The Petitioner alleges this is particularly the case with respect to violations which she claims were willful on the part of the Licensee.

On April 11, 1985, the Petitioner provided additional information to the NRC for consideration. The point of this submission was ostensibly to provide the NRC with additional information which surfaced in a De-partment of Labor proceeding conducted in Wilmington, North Caro-lina, from December 17 to December 19, 1984, and March 19 to March 28, 1985.8 In her April 11, 1985 submittal, the Petitioner submitted GE B Tins procendans was before an Adamastrouve taw Judge permaant to j 210 of the Energy Reorgans.

ansion Act of 1974. as amended. 42 U's.C. 9 5851 and styled Veru M Estl ue a Gese,sf Elserne Ca.

Case No. 85-ERA-2. The Pentioner was complement in this proceedmg and alleged decri====*=a= by comanned

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documents which were alleged to constitute adrasamans of previous claims that GE violations at the Wilmington facility were willful, that GE had made material false statements to the NRC, and that GE had failed in its reporting requirements to the NRC. A variety of relief was requested including a renewed regiust to the Director, Office of Inspec.

tion and Enforcement, to find violations, assign them the highest severity level, and assess civil penalties, and fi-il.-- o c to condition retention of GE's he*=== for the Wilmington facility upon immediate removal of spe-cifically named facility officers, officials, managers, and supervisors.

Finally, on June 20, 1985, the Petitioner submitted to the NRC docu-ments pw_:..: g to another pending Depi ;st of Labor proceeding initiated pursuant to 9 210 of the Energy Reorgamzation Act of 1974.s In j

her June 20,1985 supplement, the Petitioner asked the NRC to conduct its own investigation or cooperate with the Dapwat of Labor in its investigation into the alleged violations of $ 210. The Petitioner asked NRC to take independent action against GE to assure that employees

' would be free to exercise their rights without any fear of reprisal. On July 12,1985, the Petitioner submitted a motion addressed to the Secre-tary of Labor which contained further information regardmg alleged GE

' interference with the rights of employees.:

' The f ic- also made a submittal on May 29,1985, discusems issues raised by the Petitioner's filings. The Licensee argued that the Petition-er's submittals represented a direct and unjustified affront to GE, the-NRC, the integrity of the NRC regulatory and hcensmg process, and the objective facts of record. GE argued that the Petitioner's requests should be denied in their entirety.*

oE as a result of her lamanon of and the pay in NRC inwr=*aa== at the oE Wamsageon thsility. The Adminstrative Law Judge issued a h favorable to the - . -

em August 1, IMS. on May 9,1986, the Under Secretary of I. abor re the case to the Admumsstrative Law Judge for the lismised purpose of takins certain forther tasamony, e on May23,1985, a + alleging vaaaaa a== of f 210 was Aled with the Department of I. abor by Joy Malpass and John Clarence Lewis alleging 4 .' , conduct by oomeral Electne Company (85-ERA-38 and 39) on August 30, IMS, the Departaset ollabor, Wege and Hour Division, usade a he . .pp a.a on January 2tL 1906, the Admumustasive 14w Judge setting in the matter dismused the procentag with prejudice at the prehmanns sense.

eI have also gives ea===a t aa go the - of Mr. Rammer te

  • A-- Report 8544 h in his March 28,1986 lesser to the NRC.
  • The Ave subenteals minde by the Petmoner (Le, the subesttels of h 13, 1986; February 28, IM5; March 12, IM5; Apnl II. IM5; and June 2th 1985) will be hereinener cumulenvely referred to as the Putinoeu l

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d DISCUSSION Prior to discussmg the allegations of the Petition, a brief discussion of the activities conducted at the Wilmington facility is appropriate. The function of the GE Wilmington facility is to produce nuclear reactor fuel. In the production areas of the facility, incoming uranium is con-verted chemically to a powder and then, in a ceramic process, to pellets, which are assembled into fuel rods and bundles. These production oper-ations are supported by the Chemet Laboratory, which provides metal-lurgical, environmental, chemical, and spectrographic analyses.

Some of these analyses are performed on small uranium samples brought in from the production areas of the plant. If not controlled care-fully, analyses could result in uranium contamination on laboratory sur-faces and in laboratory air. Equipment, procedures, and trammg are de-signed to mmmuze such contamination. Surface and air monitoring are intended to detect significant contammation. Bionssay measurements are used to determine whether workers have inhaled, ingested, or absorbed measurable uranium. Thermoluminescent dosimeters (TLDs) are worn on workers' clothing to measure exposure from radiation outside the body.

As described in NRC inspection reports discussing inspections con-ducted at the Wilmington facility, minor uranium contamination has oc-curred in portions of the Chemet Laboratory while performing analyses.

However, radiation and contammation survey records, supported by per-

< sonal exposure records including bionssay measurements, have indicated little uranium exposure to laboratory workers. Nevertheless, NRC in-

spection reports have identified a variety of minor regulatory violations, pih.1 weaknesses, and other matters, the correction of which have improved Chemet Laboratory safety. Some of these inspection report findings are attributable either directly or indirectly to concerns ex-pressed by the Petitioner while other inspection findings, particularly those that discount Petitioner's allegations, have been challenged by the Petitioner.

The Petition makes many serious allegations regarding operation of the Ek 's Wilmington facility and the conduct of the NRC's inspection and enforcement program. Consequently, at the outset, I determined that a commitment of significant resources would be necessary to examme i

these issues and assure that they received appropriate consideration.

I Accordingly, I assigned senior Headquarters staff essentially full time to oversee activities of personnel in Region II in resolving the allegations raised by the Petition. Specifically, I assigned John T. Collins, then my Special Assistant, to oversee preparation of the response to the Petition.

l Having been assigned overall responsibility for the response to the Peti-329 l

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tion, Mr. Collins became the focal point at Headquarters for communica-tions with Mr. Ratner. To the extent possible, without compromising NRC investigations, Mr. Collins responded to Mr. Ratner's requests and provided him material, such as inspection reports.

Mr. Collins was assisted by William L. Fisher, a Senior Health Physi-cist. Together they worked with Region II to ensure that adequate in-spections had been or would be undertaken to confirm or deny each alle-gation, a time-consuming process performed concurrently with other re-quired inspections at NRC licensed facilities. This involvement of senior Headquarters staff provided additional assurance that the review con-ducted by Region II was a balanced one.

On March 13, 1985, Region II personnel met with the General Elec-tric Company at GE's request in Atlanta, Georgia, to discuss health physics and accountability violations at the Wilmington facility. The Li-censee took that opportunity to describe the actions that it was taking pertaining to allegation followup. The NRC stated that it would continue to follow up on the allegations in accordance with agency policy.

On May 6,1985, I and other NRC Staff working on the Petition met with Messrs. Ratner and Schiller in Washington to respond to questions regarding the process whereby the response to the Petition was to be prepared and the status of that response.'

On May 24,1985, Region II management assigned a Project Manager to ensure that the allegations raised by the Petition had been reviewed properly. This unusual assignment was necessitated by the number of allegations; by the overwhelming volume of related correspondence, in-spection reports, and other pertinent material; and by the Petitioner's fre-quent contacts with the Region. The Region's efforts in addressing the allegations raised in the Petition were substantial. Among other things, a new computer-based tracking system had to be developed to relate in-spections to allegations. Since late 1982, nineteen inspections by Region II have addressed the Petitioner's concerns.' Some of those inspections were devoted entirely to that purpose. During calendar years 1984 and 1985, the Region devoted about 4000 man-hours to pursuing the Petition-er's concerns. (This figure does not include NRC Headquarters assist.

ance, nor does it include investigations by the Office of Inspector and Auditor or the Office of Investigations.) About 4000 more regional man-

  • Esecuave Director for operations William Dircks. I and other NRC stafr also out on July 18.1903 wnh oeneral Electne corporate amenagement and Wilausstos plant managenwat la Washnoston. at oemeral Electnc's request, to discuss the Wileumstos plant but not the allegatsons runed in the Pention.

A tramecripuom was made of the meetang.

  • The Inspecuan Reports which address to varytas degrees NRC's revww of the alleganons resed in the Pention are: 8218; 8444, OS 08.13.15.16.17. and 18; and 8542,04. 05, OA II,12.13.15.14 and 17.

330

l-hours were devoted to normal inspection activities related to this Li-censee On May 20,1985, I referred to the Director of the NRC's Office of Inspector and Auditor those portions of the Petition that raised allega-tions about the conduct of the NRC in general and about some NRC em-ployees.

In short, the NRC has given the allegations raised in the Petition a long, hard look.

For purposes of dealing with the many issues raised, the Petition can be divided into four categories.

1. The Petition makes numerous assertions regarding violations of regulatory requirements in the conduct by GE of its operation at the Wilmington facility. Numerous inspection reports are re-ferred to as failing to make appropriate findings with respect to alleged violations; or when violations are identified, the Petition

~

alleges that the assigned severity level is inappropriate.

2. The Petition alleges wrongdoing on the part of the Licensee in conducting its operations at the Wilmington facility. The Peti-tion alleges that the Licensee knowingly permitted and/or fos-tered noncompliance with the Commission's regulations.
3. The Petition alleges that certain NRC employees, especially NRC inspectors, were remiss in their duties by, for example, failing to inspect adequately GE's activities at its Wilmington fa-cility and, on occasion, deliberately downplaying known viola-tions.
4. The Petition alleges that the Licensee dirrimmated agamst the Petitioner and also agamst others in violation of f 210 of the Energy Reorganization Act of 1974, as amended, and conse-quently that the NRC should take independent action against the Licensee to remedy such conduct.-

Some of these issues will not be addressed in this Decision. Specifi-cally, issues relating to the propriety of conduct by NRC employees are handled within the NRC by the Office of Inspector and Auditor and do not fall within the scope of 5 2.206. See Duke Anver Ca (Catawba Nu-clear Station, Units I and 2), DD.8416,20 NRC 161,164 n.3 (1984). Ac-cordingly, allegations made by the Petitioner in this regard have been re-l ferred to that Office for its consideration.

I am also not prepared, at this time, to take action with respect to the allegations of discrimination raised by the Petitioner. The NRC and the Department of Labor have agreed to coordinate and cooperate concern-ing the employee protection provisions of f 210 of the Energy Reorgani-i 331 i

zation Act of 1974.2 Generally, when a complaint has been filed with the Department of Labor alleging disenmmation by an NRC licensee, the NRC defers its consideration of the matter until the Dei,.ruoent of -

Labor has acted. This policy avoids duplication of effort and the need-i less expense of resources by deferring NRC actions until the Department of Labor has fully considered the issues. In the case of the Petitioner's 4

complaint before the Dep.rts cat of Labor, which was resolved in her favor by the Admini<trative Law Judge, this means deferral of NRC consideration until the matter has been determined by the Secretary of Labor. Should litigation result from the complaints filed by Ms. Malpass and Mr. Lewis, see note 2, supra, the NRC likely will await a final deter-mination by the Secretary of Labor. Consequently, I do not reach the discrimmation issues in my Decision today.

It should be noted that deferral of NRC. consideration of any potential discrimination issues at the Wilmington facility is appropriate in this i

matter in light of the extensive inspection activities which have been conducted at the facility, as discussed below, with generally =~-y=ble results.

Nor do I make a determmation regarding all of the issues regarding Licensee wrongdoing raised by the Petitioner. Certain of the wrongdo-ing issues raised by the Petitioner are so clearly without factual sub-stance and foundation that they may be dismissed without extensive in-vestigation. Such issues are discussed in the attached Appendix A, "Res-olution of Certam Issues Raised by Vera English in Her Petition Pursu-ant to 10 C.F.R. I 2.206," hereinafter referred to as Appendix A and in-corporated herein by reference. Certain other issues alleging wrongdoing l

by the Licensee will require further investigation by the Commasson's i

Office of Investigations PI) before I can determme what action, if any, is appropriate. These issues currently are being addressed within OL When that effort and the DOL proceedmgs are complete, I intend to issue a supplement to this Decision.

My Decision today deals with those issues falling into the first cate-gory described above, i.e., issues related to the sufficiency of the inspec-

tion reports and NRC inspections conducted over the past several years of the Licensee's activities at its Wilmington facility and those issues within the second category found to be without factual substance. As was discussed above, extensive Staff efforts and resources were commit-ted to reviewing these issues. Appendix A discusses their resolution.

With respect to the issues addressed in Appendix A, no significant health

'-M or d.moru -

_ artween NRC and du Depenment or Labor: Employee Proescuan."

47 Fed. Reg. 54,585 (Dec. 3. i982).

332 l

and safety problems were identified requiring action by the NRC. Gener-ally, the findings of the inspection reports which were the subject of the Petition were substantiated, while most of the allegations contained in the Petition were not substantiated. However, allegations did lead di-rectly to the following six Notices of Violation:

I"'88888" vieledes Severity Imet Report 84-15 Visible contamination not cleaned up IV.

84-17 Termination exposure report not timely V l 85-02 Lab coats worn improperly and failure to per. IV l form uranium powder sampling inside a hood 85 4 Failure to measure airborne concentrations IV during pellet cutting and polishing 85 04 Failure to provide a complete termination ex- IV posure report 8641 Failure to have an approved procedure for V transportation The intensive inspection program conducted during 1984 and 1985 in J response to the allegations resulted in the following eight additional items of noncompliance:

Vieledes severity Imet 84-04 Improper frisking V 84-16 Failure to investigate and correct when control IV limits were exceeded 84-17 Failure to perform proper air sampling IV j 84 18 Failure to provide for certain emergency pre- IV l

- paredness procedures 85-02 Failure to label shipment properly IV 85-02 Failure to instruct individuals IV 85-02 Failure to post one gate as required by Part 19 Y 85 04 Unauthorized transfer of uranium dioxide sam. IV ples 333 >

L

The severity level assigned to previous violations, to violations identi-fled as a direct consequence of the allegations, and to violations resulting from intensive inspectens prompted by the allegations were classified ap-propriately as Severity level IV or V. Under the NRC Enforcement Policy, civil penalties usually are not proposed for Severity Level IV violations, unless such violations are ==dar to previous violations for which the licensee failed to take effective corrective action or are wdiful.

This was not the case here. Civil penalties are not proposed for Severity Level V violations in the absence of willfulness which was not found here. Consequently, no civil penalties are being proposed at this time.

To the extent that further NRC investigation deterames that certam '

violations committed by the Licensee involved wrongdoing, further en-forcement action may be warranted. Consideration of these matters is being deferred until OI completes its investigation of these issues.

, The Petitioner requested, among other things, that Inspection Reports 8218, and 84-04,05,08,10,13,15,16,17, and 18 be withdrawn and re-issued. Our review of these inspection reports has identified no reason to do so. The above inspections appear to have been properly performed i and adequately documented.

l The Petitioner referred to, but did not request withdrawal of, Inspec-( tion Reports 81-11, 8210 and 16, 83-05, and 85 04 which we also find adequate.

As noted above, certam issues will be addressed later in a supplement to this Decision. Specifically, wrongdoing issues which have been identi-fled as requiring further investigation and issues related to employee dis-crimmation will be addressed later. No actions need be taken at the Wil-mington facility regarding these issues in the interim, as the regulated ac-tivities at this facility generally have been found to be well controlled and the NRC inspection oversight will continue to be sufficient to assure ,

that this remams the case. Accordingly, I decline at this time to grant relief requested in the Petition.

CONCLUSION For the reasons given above, certam issues raised by the Petitioner are deferred pending further investigation by the NRC or further determma-tions by the Secretary of Labor. Based on the review of the issues which are considered herein, operation of the Wilmington facility has not cre-ated an undue risk to the public health and safety, including the employ-ces at the facility, and the issues do not raise substantive health and safety concerns warranting regulatory action. Consequently, I decline to 334 l

1 1

i i _ _ _

,' .I 4

take the actions requested by the Petitioner with respect to these issues.

To this extent, Petitioner's request, for action pursuant to i2.206 is denied. As provided in 10 C.F.R. ] 2.206(c), a copy of this Decision will be filed with the Secretary for the Commission's review.

James M. Taylor, Director Office of Inspection and Enforcement Dated at Bethesda, Maryland, this 29th day of August 1986.

APPENDIX A Resolution of Certain Issess Raised by Vern English la Her Petitles Pursuant to 10 C.F.R. $ 2.206 The Petitioner, in addition to raising questions as to whether the fac-tual findings in refercnced inspection reports demonstrate violations, also -

argues that violationa exist because the Licensee did not meet certain re- L porting requirements. To the extent the reporting sequirements are rele-vant to the subject reports, they are discussed below. However, it should be noted that the Petitioner has incoerectly cited and relied on 10 C.F.R. 4 9 50.73 concerning reporting requirements. That protision does not apply to a materia!S licensee, such as General Electric. Section 50.73 ap-

plies only to the holders of operating licenses for nuclear power plants.

The Petitioner also argues that, unless a violation meets the standards in iIV of Appendix C to 10 C.F.R. Part 2 (hereme?st the NRC En.

forcement Policy), a Notice of Violation must be issued foi the violation.

i Although as a general matter the Commission does cite all violations l which it identifies, the appropriate action to be taken in a given case de-pends on the circumstances of the case and requires the exercise of dis-cretion after consideration of the policies and procedures set out in the NRC Enforcement Policy. Thus, there is no case in which the Commis-

' sion must issue a Notice of Violation or a Proposed Imposition of Civil Penalty. The institution of any enforcement action is within the discre-i tionary authority of the Commisdon.*

l i n. ca.c., g i.: diner.e= o. me p.n v on e- im 6 + by u.

D.C. Circuie. 3se Und.= grCamrersed 3rimis's a N#C Til l' 2d 370,382 (D,c. cir.1983).

335 i

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.WhPe the Petitianer suggests that the NRC is " legally bound" by the NR C Enfocement Policy (PetitkA at 7), the policy actually serves only A.

as% guide r.aJ announces this agncy's intentions. As was stated in the C

N' ' Steldment of ra==ideration for the policy, the poli;y was adopted as "a i

=*=e-t of general policy rathen than as a reg 3 don." 47 Fed. Reg. 9987. (See Cossolidstad X Jtay Service Corp, AIJ-83-2,17 NRC 693, 705 3 o (1983)). It is the essence of a poli..y statement that the agency remams 4 ,

genuinely free to exercise discretion in carrying out its statutory respon-

- ', 4 sibilities.

m , A number of the Petitioner's concerns appear to arise from a misun-d derstanding of what is required of NRC bcensees. Enforceable require-

? / ments for which a Notice of Violation 8 may be issued by the NRC in-h* ,

clude only requirements speedled in statutes, NRC regulations, hcense

, conditions, or orders of the NRC. Connaitments by licensees or recom-y , , ===d=*iana by NRC inspectors are not gicoperly the subject of a Notice

, ,,- of Violation. 'Ihe NRC encounges hcensees to use the best practices 4- ,

, availeNe and, while p'essed wl .:n a licensee exceeds regulatcry require-a meats, the Commission does r;>t take enforcement action when a heensee f% does ad takv additional actions. The on:y exception to this would be when a kcasse 'nes formally connutted to the NRC to take certain ac-tions. I4 that cire====ce, a Notice of Deviation may be issued if the commitment is not 7 st. (See NRC Enforcement Fnlicy, 5 IV.E.2.) How- *

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, ever, such'failmes, though subject to remos by agency orders, are not

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" violatiens which could result in i====ae> hf a Notice of Violation or a

, $- * , Proposef 'tiposi ion of Civil Penalty.

, Wi*.h these general t,bservations, the majority of the concerns of the Petitioner are organized and discussed under the following categories:

1 c ,1* Chenet Laboratory Operationt (pp. 337-40) '

e

, 1. OE Policiec,?rocedures, ud Act!ons (pp. 340 47) 4

, 3. NRCinspections, Findings, and Enforcement

! a. Inadequate Inspection (pp. 347 54) i

b. Imprcper Findings (pp. 354-91)
c. Improper Enforcement (pp. 39196)

Wheregoesive, the issues are quoted as presented by the Petitioner. -

Other4;i:v., *or clarity and brevity the NRC has characterized the issues.

, Refe ecco to source documents are provided to assist in a fuller under-i

. Standing c/the matters resed by the Petitioner.

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f~ ' ;* N 8 A Neues of Vloiselen is e prorrM sM *ae Propamed I& of Ovil Penalty.

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, 1. Chemet r * - y Operations Petitioner made several comments in reference to Chemet Laboratory operations. Dose comments and NRC resolution of them are as follows:

s. Concermns an October 21,1983 memorandum from a Chemet Lab
Supervisor to the Chemet Lab Manager, the Petitioner states that

' the memo shows that management knew that Chemet Lab person-nel felt under inordinate pressure to cover up out.of-alarm limit (OAL) and out-of-control limit (OCL) results and to release only results " acceptable," under " biased" standards established "in order .

to satisfy production oriented egos." (Petition, Chap. I at 13)

Response /

From the review of the referenced memorandum, the NRC concludes that the supervisor was advising his superior that there was a problem in the Chemet Lab and believed the best way to correct the problem was to meet with the affected employees. Note the last sentence of his memo-randum: "I feel a meetmg is needed to address employees' concerns and reduce selfimposed pressure to produce."

While production pressure may be unpler.sant for employees, it is present frequently in any production-based operation. This pressure be-comes of concern to the NRC when it leads to employees failing to a

follow procedures which implement NRC requirements.

De NRC found nothing during its review to indicate that manage-ment deliberately adopted and enforced on employees a policy to in-crease production and adhere to delivery schedules and to ignore safety considerations. Further, the violation identified in Report No. 8416 during the NRC review of the out-of-alarm limit (OAL) and out-of-con-trol limit (OCL) areas was not attributed to production pressures.

b. Petitioner also asserts that violations documented in reports by the NRC continued after October 21,1983. (Petition, Chap. I at 13)

Response

It is no't clear tr wb "rr . s ts" the petitioner is referencmg. The two violations identifid 51% ,t No. 84-17, which was the subject of that section of Chapter I, were not " continued" in the sense suggested by the l

Petitioner. One violation dealt with failure to use suitable measurements of concentrations of radioactive materials in air. De issue of air sam-piers, which became a point of contention between the Lk- and the 337 l

[

NRC, was ultimately resolved by the Licensee adding four more air sam-piers. The other violation involving Petitioner's termmation exposure report was admitted by the Ek- and the Ek- revised an existing computerned termmation dose reporting program in an effort to avoid such violations in the future. Therefore, the violations were resolved to the NRC's satisfaction.

c. In an attempt to " clean up" the lab, a portion of the flooring was ripped out only to find that the foundation actually was " hotter" than the floor. Nevertheless the foundation was not torn out but rather a new floor was laid on the " hot" base. Further, after work-ing all night to clean contammation from a lab wall, the workers were instructed to paint over a heavily contammated wall. (Petition, Chap. I at 13-14)

Resposar The Lk- performed a specul contammation survey in the LEA nicasurement system (counting) room at the request and in the presence of an NRC inspector. This special survey identified low. level contamma-tion on parts of the floor (not in the normal walk areas), counting equip-ment, and table tops. No visible contammation was observed on the walls during the survey. Some visible contammation was observed on the walls when equipment was moved to facilitate decontamination. The contamination was not " vast," as characterned by the Petitioner. How-ever, the contammation levels were above the Licensee's contammation action level of 220 dpm/100 cm8 for an uncontrolled area, which was specified in Licensee's procedure, Nuclear Safety Instruction MO. As stated in Inspection Report 85-02, neither NRC regulations, License No.

SNM 1097, nor any specific Licensee procedure establishes specific con-tammation limits for this room. Only action levels at which cleanup should be initiated are established. A small section of tile was removed to decontammate the floor. Equipment and walls were wiped down and re-painted. During Inspection 85-02, the Licenace removed several pieces of the new tile, at the request of the NRC inspector, and performed remov-able and fixed contammation surveys to determine the extent of contami-nation remaming under the new tile. The contammation levels were less than the Licensee's action level for an uncontrolled area. Contammation surveys were not performed before or after decontamination of the wall.

However, if one assumed that the contamination levels on the wall were equivalent to the maximum level identified in the actual survey per-formed in December 1984 under the observation of the inspector, they 338

would not represent a significant exposure source. Painting over low-level contaminaten that cannot be easily removed is a method of ensur-ing that contamination remams fixed. Painting over contamination fixes

. the uranium in place and removes its potential to become airborne. It should be noted that no NRC requirements prohibit the painting of con-taminatsul surfSCes.

d. On December 5,1984, a Chemet Lab employee inspected six em-ployee chairs and found them to be " hot" with radiation. When confronted about the matter by an employee, McLamb (supervisor) became agitated and angry, denied the chairs were " hot," and said

"[w]however discovered they were hot had better clean them up."

(Petition, Chap. I at 14)

Karease ne fact that some chairs in the Wet Lab were contammated with low levels of fixed contamination was confirmed by an NRC inspector through indaaaadent surveys, the results of which were reported in In-spection Report 85-02. This !=daaaadaat survey found that one chair had fixed contamination above the f_baa 's action level for fixed contami-nation of 2200 dpm/100 cm8. He removable contammation levels were all less than the Licensee's action level of 220 dpm/100 cm*. The pres-ence of contamination on the laboratory chairs was discussed in Inspec-tion Report 85-02 as evidence that spills in the Chemet Lab had not been cleaned up. His was identified as an example of failure to follow proce-dures, for which a Notice of Violation was issued as discussed previously in Inspection Report 84-15. As McLamb did order the cleanup, it is not of concern to the NRC that he might have a temper or poor manage-ment style unless he intended to and did prevent the reporting of such contammations. The Petitioner offered no clear indication or evidence that this was the case.

e. De "Hendry Report," a March 29, 1984 memorandum titled

" Chemet Lab Safety Review" from WJ. Hendry to E.A. Lees, es-tablishes that personnel were not monitoring the isotopic room as a result of GE management orders not to do so. (April 11 Letter at 29)

Raronse The Petitioner is incorrect in assuming that the microwave work area l

mentioned in the Hendry Report was in the Isotopic Area where the Pe-339

titioner previously worked. As stated in the report the microwave oven was in the Spectrometer Lab, an entirely separate room from the Wet Lab where the Isotopic Area is located. The microwave oven in the Spectrometer Lab was used only infrequently. Documenting the loca-tions where smear surveys were taken in no way limits the discretion or authority of radiation safety technicians to monitor as they believe neces-sary in the Isotopic Area. Although the radiation safety technicians most frequently took smears in the walk patterns, they occasionally took sam-ples in other areas. Survey results documented by the Licensee indicated that surveys had been taken in the Isotopic Area. There is some rationale for using surveys of walk patterns to detect spread of contamination.

However, in Inspection Report 84-17, the inspector suggested that the Licensee routinely survey the work areas where there was a greater po-tential for a contammating event. Based on recorded survey results re-viewed by the inspector the Petitioner's contention that radiation safety technicians were under management orders not to monitor in the Iso-topic Area was not substantiated.

2. GE Policies, Procedures, and Actions
a. At several points, Petitioner made the point that ALARA was not adhered to by the Licensee or addressed by the NRC. (Petition, Chap. I at 6-7, 11, 15, 18-20; Chap. II at 3; April 11 Letter at 28.)

More specifically, the Petitioner asserted that the Licensee willfully breached ALARA.

Response

Before addressing the Petitioner's complaint, a brief discussion of the origin and meaning of ALARA is useful. ALARA is an abbreviation for the phrase "as low ss is reasonably achievable." The Petitioner addresses ALARA as though it is a readily identifiable and precise regulatory re.

,quirement. This in fact is not the case. ALARA is a regulatory goal, which in practical application may lead to more conservative actions, in terms of radiation safety, than those otherwise required by NRC regula-tions (10 C.F.R. I 20.l(c)).

The NRC strives to protect the public health and safety against unnec-essary exposure to radiation by setting limits to those exposures in a given period of time. The radiation exposure limits referenced in 10 C.F.R. Part 20 are considered to be safe; but to ensure additional margin of safety the NRC has adopted the concept of ALARA as published by The International Commission on Radiological Protection in 1973. An 340

underlying principle of ALARA is that radiological protection should be pursued to reduce exposures to a point where any further reduction in risk would not justify the effort required to accomplish it. It must be noted that the application of the ALARA goal involves highly subjec-tive value judgments, which may also include economic and other socio-logical factors.

From the above it should be clear that ALARA is a goal or objective and not in and of itself a requirement. Accordingly, it would be an error to talk in terms of a " breach of ALARA.": The question is whether GE pursued an adequate ALARA program.

We now will address the Petitioner's complaint. Although not specifi-cally addressed in the inspection reports mentioned in the Petition, re-viewing the Licensee's program for maintaining radiation exposures "as low as is reasonably achievable" is one aspect of the radiation protection inspection program. Guidance to inspectors contained in the inspection procedure

  • for radiation protection programs at fuel fabrication facilities is discussed in Regulatory Guides 8.8 and 8.10.

While License SNM-1097 does not refer directly to the ALARA prin-ciple, the license is subject to 10 CF.R. Part 20 and to the conditions of Part I of the Licensee's application dated May 14 and June 20,1984. Part 20 ($ 20.l(c), " Purpose") states that licensees "should . . . make every reasonable efYort to maintain radiation exposures . . . as low as is reason-ably achievable." It defines that ALARA "means as low as is reasonably -

achievable taking into account the state of technology, and the econom-ics of improvements in relation to benefits to the public health and safety, and other societal and socioeconomic considerations, and in rela-tion t.o the utilization of atomic energy in the public interest." Section 20.103(b)(2) requires " precautionary procedures" under certain condi-tions, essentially to achieve inhalation exposures ALARA. Other than in this limited circumstance,10 CF.R. Part 20 does not elaborate or require licensees to achieve exposures ALARA.

Part I of the Licensee's application ($ 2.3.1) requires a Wilmington Safety Review Committee, whose responsibilities include an annual ALARA review which considers the following:

Programs and projects undertaken by the radiation safety function and the

  • It is noted that Petitioner's muscharactenranon of ALARA as a " standard" may have annen out of a nuncharacteruanon of the concept by Platonif's assorney in the Karen $dkwood case whde quesnotung an NRC witness, which was later picked up by the anal judge as dicta in his opinion denying defendants a reheanns in that case (Mmwd a TemWrGee. 485 F. Supp. 566 (1979)). The erfor was then repeated.

as dicta. by the U.s. Supreme Court in its review of the case (Mmud a TemWcGee. 464 U.S. 238,78 L. Ed. 2d 443,104 s. Ct. 615 (19841

  • IE Manual Chapter 2600.

341

operational raAarum safety commit *ee. -

Performance including. but not limited to. trends in airborne concentranons of radioactivity, personnel exposures and environmental monitoring results.

Programs for improving the effectiveness of equipment used for effluent and exposure control Section 2.3.2 requires an Operational Radiation Safety Committee to ensure that "the occupational radiation exposures of employees are kept as low as practicable and within established limits." (The term "as low as practicable"is synonymous with ALARA.)

Section 2.7.1 states that the radiation protection program is designed to establish and maintain written instructions for radiation health and safety practices "so as to maintain occupational radiation exposures at levels as low as reasonably achievable."

Finally, f 3.1.2 states, "WMD [Wilmington facility] has established a radiation protection program designed to ensure that occupational radi-ation exposures are maintained at levels as low as reasonably achiev-able."

There is no question of GE Wilmington's obligation to work toward

, the objective of maintaining exposures ALARA. Inspectable evidence of such effort includes (1) minutes and correspondence of the Wilmington Safety Review and Operational Radiation Safety Committees, (2) expo-sure reduction aspects of operating procedures, and (3) the four aspects of the ALARA Program described in 9 3.1.2 (management commitment, detection and measurement systems, information systems, and major fa-cility and equipment changes).

To maxmuze available inspection time, NRC inspection reports con-centrate on actual and potential problems and on matters of greatest safety or regulatory significance and focus on radiation protection -

subtopics, such as air sampling, internal dose control, etc. The subject of ALARA, which deals with making the already low even lower, is not ignored during NRC inspections but it evokes little inspection report dis-cussion as a separate topic. The ALARA goal is considered in inspec-tions in all radiation protection subtopics.

Nevertheless, there are two fairly recent examples of ALARA discus-sions in GE Wilmington inspection reports:

85-07, in which the inspector reviewed the activities of the Wil-i~ mington Safety Review Committee and the Operational Radiation Safety Committee.

83-24, in which the inspector reviewed ALARA aspects of venti-

!ation and whole-body counting concerns.

342

, .- . . ~.

Thus, the NRC does examine the Licensee's ALARA Program and be-lieves that it is in keeping with the goals of the program.

' Petitioner complains that samples received from the production area b.

for analysis were found to have external contamination on the con-tainer. (Petition at 13)

Respnst There is no NRC requirement that samples transferred from one area of the plant to another be transferred in contamination-free containers, as long as the transfer is not to an area where there are no precautions ap-plied to protect against radistion or radioactivity. In fact, the Licensee recognizes that samples from the production area may be contaminated, cautions Chemet Lab personnel by plant procedures that samples may be

' contaminated, and requires the use of appropriate protective clothing by laboratory personnel. The Licensee's procedures stated that visibly con-taminated sample containers are not to be received in the laboratory. Al-though Inspection Report 84-04 stated that samples from the production area had been externally contaminated, the contamination was not visi-

{

ble. Considering the nature of the uranium material handled in the lab-

oratory, the absence of visible contamination would indicate that con -

. tammation levels on the container were low,

c. Petitioner also complains that the Licensee procedures and notices regarding protective clothing requirements failed to require employ-ees to wear protective gloves when handling radioactive material.

(Petition at 13)

Respnse Inspection Report 84-04 specified that the Licensee's written proce-dures and notices regarding protective clothing requirements failed to re -

quire employees to wear protective gloves when handling radioactive material. However, Licensee management indicated during the inspection that they expected personnel in the laboratory to wear gloves when han-dling radioactive material. It is good health physics practice to wear pro-tective gloves when handling potentially contammated items, but it is not a regulatory requirement. In fact, the inspector observed that personnel in the Chemet Lab wore plastic gloves when handling potentially con-taminated material. Since the Licensee intended to receive potentially contaminated material in the laboratory from the production area, the in-spector indicated it would be prudent to clarify the plant procedure spe-t f

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cifically to require that gloves be worn when handling radioactive sam-pies.

d. Petitioner believes that the "Wieczorek Report," an April 26,1984 memorandum titled " Employee Allegations of Violations to Comps-ny Practices and Procedures" from FJ. Wieczorek to E.A. Lees, substantiates her allegation that isotopic results are accessible in the computer and can be altered. Petitioner also addresses the issue of computer acceptance of out-of-control results. (April 11 Letter at 15-18)

Response

The Petitioner has combined inspection results which addressed sev-eral separate allegations. The allegations addressed in Inspection Report 84-05 and the Wieczorek Report concerned the accessibility of analytical results in the computer, the use of transaction codes to alter existing data, and the falsification of data.

Inspection Report 84-05 and the Wieczorek Report concluded that measurement data were accessible in the computer, that transaction -

codes had been used to correct data, and that no falsifx:stion of measure-ment data could be found. Because NRC has no requirements in the area of computer security, no violation was issued. However, the W-agreed to improve the control of access to measurement data.

Inspection Report 8415 addressed the allegation that the computer was programmed to accept out-of-control results. In Inspection Report 84-15, the inspector concluded that the computer had not been pro-grammed to accept out-of-control results and that the computer was rea-sonably protected from unauthorized changes.

e. Petitioner asserts that GE made no reports to the NRC between May 22,1980, and June 1984 of such events as -

(1) the "UF release" on September 15, 1981; (2) the July 29,1982 dumping of " internally contamimited" 2%-inch pipe; (3) failure, as of February 11,1982, to record standards and sample data on bench worksheets, sample reports, control logs / control charts; -

(4) Chemet Lab contamination levels during 1984 ranging "from 317 dpm/100 cm8 to $100 dpm/100 cm8; (5) 902/903 password system subject to abuse both long before and ,

long after early 1984; 344

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(6) ' April 1-May 31,1984, "both the alarm limits and out-of-control

. limits were not in agreement with (LMCS) computer limits";

(7) constant exceeding of out-of-control limits during 1984; (8) increasing " weaknesses in the contamination control program in the Chemet Lab" and "the fuel manufacturing area" during the period 19781984; and, (9) failure in 1984 to provide projected dose information and recom-mendations to offsite organizations.

(April 11 Letter at 38)

Response Based on NRC review, all of the incidents referenced by the Peti-

,_ tioner, except one, involved conditions below the threshold specified in NRC regulations for reporting and, therefore, were not reportable. Data j

on the September 16, 1981 UF. gas release were provided to NRC Region II by telephone. Additionally, inspectors went to the plant the week after the incident to verify conditions. No written report was sub-mitted because NRC indicated that it had obtained the necessary infor-mation and did not need a written report. ,

f. In general terms, the Petitioner asserts that the NRC inspectors did not consider that the Licensee did not make timely and voluntary identification of violations to the NRC. More specifically, the Peti-tioner noted that GE reported the Petitioner's allegations to the NRC more than 1 month after GE received them from the Petition-er. (April 11 Letter at 38 39) Petitioner asserts that an NOV must issue if violations were not identified to the NRC in a timely manner. (See also Petition, Chap. II at 7)

Responst With respect to the timeliness of the verification to NRC of allegations i received by a licensee, the licensee is not required to report allegations until they are determined to have substance and to be reportable. The Petitioner's allegations did not concern reportable matters.

Nevertheless, the NRC was notified telephonically by the Licensee on the morning of March 23,1984, that it had received allegations from one of its employees concerning safety and accountability issues. At that time, the NRC had already received the allegations from a confidential source. The Licensee was told that a detailed discussion of the issues was not appropriate but that NRC would review the issues and the Licens-ee's investigative findings during a routine inspection. Unknown to the t

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1 Licensee, NRC had already arranged to visit the site unannounced on March 26,1984. NRC inspectors arrived on site on March 26,1984,and the meetmg described in Inspection Report 84 05 took place.

g. Dr. Kenneth Mossman, Assocate Professor of Radution Medicme and Director of the Graduate Program in Radution Science at Georgetown University in Washmston, D.C., testified at Petition-er's Department of Labor hearmg. Petitioner characterized his testi-mony as showing serious deficiencies in certam radiation practices,
including frisking, training, contammation surveys, and air sampling.

(April 11 Letter at 39-42)

, Respenst In regard to frisking as was noted in Inspection Report 8210, "the in-2 spector stated that it appears that hcensee personnef who audit the frisk-ing activities may not know what constitutes a thorough frisk for person-nel contamination. The inspector further stated that there is no reason to believe that what he observed on May 20 and 21 is not typical." Having cited GE for the frisking failures observed by him, the inspector, never-theless, found no evidence which indicated misrepresentation on the part of GE in regard to the GE audits in this area.

The danger of improper frisking depends on the contamination poten- l tial of the area being left. he low levels of contammation typically found in the Chemet Lab suggest that improper frisking is not likely to be dangerous to the worker or to the public. However, that does not excuse anyone's failure to use safety equipment as intended.

The low levels of contammation found in the Chemet Lab during Li-censee surveys, including special surveys performed under the observa-tion of the NRC, and the small quantity of material handled in the lab-oratory indicate little chance of significant exposure to uranium. NRC audits of the Licensee's training programs have confemed that training l generally is consistent with the requirements of 10 C.F.R. I 19.12.  ;

l NRC inspections have found training waak- but these findings i have not been frequent or severe enough to label the training inadequate.

l As discussed previously, the contention that radiation safety personnel were excluded from monitoring certain areas was found to be without merit.

Air sampling and contamination surveys are discussed in responses at 113.b(II), (12), and (14), and 3.c(4).

De NRC does not find in Dr. Mossman's statements a basis for con-l ciuding that "if the condition found at WMD were allowed to exist and 346

- - - , . . - ~ . ..

persist in his own research laboratory, this would be serious grounds for possible civil penalties and even temporary revocation of the license."

No radiation protection program, whether at fuel facilities, universities, or other licensed facilities, is without some weaknesses. Imperfections generally are found, documented, and corrected without resorting to civil penalty or license revocation. No significant health and safety prob-lems were found at GE Wilmington. Therefore, consistent with the NRC Enforcement Policy, inspection findings at GE Wilmington have not re-quired such escalated enforcement action.

3. NRC Inspections, Findings, and Enforcement
a. Inadequate Inspection (1) In regard to Inspection Report 84-05, Petitioner asserts that the Petitioner told GE of password access violations but was ig-

~

noted. (Petition at 16)

Reponse As part of the inspection conducted March 26-29, 1984, the inspectors investigated the Petitioner's assertion that data associated with isotopic i

analyses that were stored in the Licensee's computer system could be al-I tered and falsified. The inspectors investigated the possibility of labora-tory technicians using each other's and their supervisor's passwords to change or falsify data.

The inspectors determined that there was liberal use of employee pass-words by other individuals but that the use was necessary to maintain laboratory access to data across several shifts. The software in this com-puter system required the use of the sample preparer's password to re-lease data over the time span of several shifts. However, once apprised I of the Petitioner's concerns, the Licensee modified the computer soft-ware to facilitate the release of sample results by individuals other than the sample preparer.

A " Laboratory Policy Memorandum" dated January 19,1984, was issued by the Licensee to inform laboratory personnel that use of pass-r words of other individuals was unauthorized. The inspectors viewed the referenced memorandum as a recognition by the Licensee of a problem in the use of passwords and transaction codes. This memorandum clearly addressed the types of concerns raised by the Petitioner and indicated corrective actions to preclude unauthorized use of passwords and trans-

. action codes.

347 l

l l

I

l The inspectors found no evidence that data had been falsified either intentionally or accidentally. Further, there is no NRC requirement for computer system security. No enforcement action was appropriate con-cerning the lack of password control.

The accessibility of computer data also is discussed in the response at '

- 12.d.

(2) As to Inspection Report 84-13, Petitioner noted that the inspec-tor failed to identify and review Petitioner's termination radi-ation exposure report. (Petition at 21) -

Respnse NRC inspections routinely involve a sampling of records. During In .

spection 8413, the inspector reviewed selected Licensee records of ter-mination reports but did not indicate whether the Petitioner's report was or was not included. Nevertheless, it should be noted that the Petition-er's termination radiation exposure report was reviewed and specifically commented on by the inspector in Inspection Reports 8417 and 85-04.

Further, Notices of Violation related to the termination radiation expo-sure report were issued as a result of both inspections.

(3) Petitioner attacks NRC " assumption" that because of unan-nounced inspections, the NRC observes " normal" conditions be-cause management has no opportunity to " clean up" and alert the workers to be on good behavior. (Petition, Chap. I at 3)

Respnse Most NRC inspections are unannounced, meaning that the Licensee is not informed ahead of time about a forthcomir :nspection. Upon arriv-ing at the GE site, the inspector will present himself at the guardhouse and will conduct an entrance interview with the plant manager or his designee. During the entrar.ce interview the inspector will outline the scope of his inspection and will specify any requirements he may have before or during the inspection. The NRC believes it is not inappropriate that the security guard notifies site management that an NRC inspector has arrived on site for an inspection. Site management has a right to know who is on their site in order to carry out their responsibility for the safety and the emergency accountability of all people on site, includ-ing NRC inspectors. To our knowledge, this common practice in inspec.

, tions has not led to covering up significant safety problems.

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L The Petitioner implies that unsafe conditions are changed to safe con-ditions in 15 minutes. Although minor remedial actions could occur before an inspector observes the facility or operations, it would be ex-tremely unlikely that serious conditions could be corrected in that time.

In this instance, the inspectors found no evidence that an unsafe condi-tion was changed to a safe one during this entry period. In addition, NRC inspectors not only observe work being performed, they also inter.

view workers and review the Licensee's records to determine conditions that existed at other times.

(4) Petitioner implies that employees of GE talked to by NRC in-

, . spectors were inhibited from talking freely and candidly with i

the inspector because of the presence of GE management repre-sentatives during such interviews. (Petition, Chap. I at 4-5)

Raposse During NRC inspections, the Licensee's ~ employees have been inter-viewed by inspectors off the site and on the site. While on site, inter.

views frequently are conducted in rooms supplied by the Licensee (usu-ally without management attendance). Regardless,10 C.F.R. I 19.15(a)

, and (b) p'rovide for private consultation between inspectors and workers

! concerning occupational radiation protection and other matters. Form NRC-3, which must be posted in accordance with 10 C.F.R. I19.ll(c) and (d), describes the employees' right to talk privately and confiden-tially with an NRC inspector.

At times it is necessary for the inspector to be accompanied by a Li-p censee representative to assist the inspector in securing necessary infor.

l motion for his inspection, to act as a guide in parts of the facility with

! which the inspector may not be familiar, and to answer questions related to the inspection. Nevertheless, it should be recognized that inspectors have essentially free access to the Licensee's facilities and usually are not l escorted by the Licensee. Additionally,10 C.F.R. I 70.55(c)(3) requires licensees to afford inspectors unfettered access, consistent with identifica.

tion and access control requirements. The NRC inspections associated ,

l with the Petitioner's allegations did not reveal instances of Licensee ac. I companiment having interfered with communication between employees l and NRC inspectors.

(5) Petitioner observes that the ALARA " standard" is not men-l tioned in IE reports. (Petition, Chap. I at 6 7)

L 1 un l

l

Rayonse See again discussion of ALARA, f 2.a.

(6) Petitioner believes that the inspector mainly accepted manage.

ment explanation for alleged failures instead of consulting rele-vant documents. (Petition, Chap. I at 23)

Raponar Contrary to Petitioner's belief, the inspector made an independent as-sessment of the pertinent documents. Further, the Petitioner was incor-rect as to the meaning and application of the documents cited by her to the issue raised. See a fuller discussion of the matter at 13.b(17).

(7) Petitioner charges that the inspector responsible for Inspection Report 8417 was gratuitously insulting, disparaging, and mis-leading in his treatment of a Petitioner allegation concerning the failure of some lab personnel to monitor themselves for contami-nation when leaving the lab. Petitioner also charges that the in-spector failed to consider prior violations concerning frisking.

(Petition, Chap. II at 1719)

Raponst From a review of the inspection findings and discussions with the in-spe'ctor of record, the NRC believes, regarding the technical aspects of this allegation, the followup to and disposition of the allegation was han-died in an appropriate and professional manner by the inspector. The in-spector's conclusion that the allegation was not substantiated was cor-rect. The inspector did not observe or find any evidence which would indicate that Individuals are leaving the controlled area without proper monitoring. The NRC believes further that the Licensee acted responsi-bly by establishing a disciplinary action program for personnel who are observed not to frisk or who frisk improperly as determined by detection of contamination on personnel by the radiation protection staff during the special checks. While the employer is responsible for the action ofits employees, the employee, once trained, also has an obligation to adhere to regulatory requirements and Licensee procedures.

With regard to Petitioner's concern for the inspector's alleged failure to consider prior violations, the NRC Enforcement Policy is silent with regard to repetitive Severity Level V violations, but repeated similar vio-350

lations could result in further enforcement action. However, during In-spection 8417, the inspector was unable to substantiate that Chemet Lab personnel were not frisking and so the issue of repetitive violations did not arise.

(8) Petitioner asserts that the inspector failed to And that GE violat.

ed 10 C.F.R. I 19.13(b) and (c), 20.408(b), and Nuclear Safety Instruction E-6.0, addressed in section "n," Inspection Report 8417, by classifying the matter as a technical violation and leav.

ing the matter as " unresolved." (Petition, Chap. II at 19 22)

R88P8458 During the inspection (8417), the inspector reviewed available radi-

ation exposure data for the Petitioner. However, there was some ques-i tion as to the retrievability of some of the data that were not in the com-puter Ale. At the time of the inspection, the inspector had not deter-mined whether a regulatory requirement had been violated regarding the Petitioner's termination exposure report. Based on these uncertainties the inspector left that issue as unresolved, but he did cite the Licensee for violating 10 C.F.R. I 20.408(b) by not furnishing the NRC a copy of the termination report within 30 days. An unresolved item is one for which 1 more information is required to determine whether the item is acceptable or may involve violdons or deviations. The unresolved item was fol-lowed up during an inspection conducted April 812,1985 (Inspection Report 85-04), and a violation of 10 C.F.R. I 19.13 was identified. (Nu-clear Safety Instruction E-6.0 was merely a Licensee procedure intended to implement the requirements of $ 19.13.)

Regarding the need for the Licensee to provide external radiation monitoring devices (film badge /TLD) to people employed in the Chemet Lab, the film badge /TLD data reported by the Licensee's dosimetry service since 1976 indicated that radiation exposures for Chemet Lab personnel were less than 25% of the applicable limit specified in 10 C.F.R. I 20.101. Thus, personal monitoring would not have been re-quired by NRC regulations.

I (9) Petitioner asserts that the inspector's " selective" review did not discover rejection by JNF, a vendor customer, of a GE product and therefore did not find what Petitioner believed to be multi-pie violations of 10 C.F.R. (( 70.57 and 70.58. (Petition, Chap.

. II at 26-27) 351 I

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Response

The Petitioner did not properly characterize the scope of this inspec-tion. The referenced sections of Inspection Report 8111 dealing with transportation, on pages 3 and 4, were taken out of context and applied to a completely unrelated matter.

De inspection concerned the shipment of radioactive waste to a li-ceased burial facility and focused on DOT requirements (49 C.F.R.

I 173.393) and the site disposal criteria. The inspector did not evaluate shipments to a customer or material control and accounting requirements as suggested by the Petitioner's reference to 10 C.F.R. H 70.57 and 70.58. The Petitioner makes an incorrect statement regarding who se-lected the documentation to be reviewed. De NRC inspector had avail-able at the time the documentation for all waste shipments for the period January to August 1981. Consistent with NRC practice, the inspector se-lected only a portion of the documentation to review in detail.

j (10) Petitioner maintains that the inspectors did not find " crucial" violations of 10 C.F.R. I70.57 in GE's failure to determine metal impurity content in UO and improper verification of out.

of control conditions. (Petition, Chap.11 at 27)

Responst

, The Petitioner concluded that a violation of 10 C.F.R. I 70.57 oc-curred since the Chemet Laboratory "does not know the metal impurity content in the UO being assayed," and therefore reports only the oxygen-to-uranium ratio. This is not a correct conclusion. Total nonvolatile metallic impurity (TMI) analyses and oxygen-to-uranium ratio (O/U) analyses are performed routinely and independently by dif-t ferent groups in the Chemet Lab. The two analyses are combined subse.

quently to obtain a corrected uranium factor, which is used in accord-ance with the Licensee's Fundamental Nuclear Material Control (FNMC) Plan. Consequently, no violation was appropriate.

i As a result of a corporate audit review, GE's Product and Quality As-surance Operations raised the issue of not always using the same stand-ards to verify correction of an out-of-control condition. They suggested changes in the GE Nuclear Fuels Manufacturing Department special nu-l clear material control program to ensure compliance with l70.57. In a letter dated April 9,1982, to the NRC Fuel Facility Safeguards Licens-i ing Branch, GE attempted to clarify its procedures. The NRC consid-ered the clarification unnecessary because GE's FNMC Plan (6 4.0 and

352 i

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Appendix C l 4-0) contained sufficient procedures to verify correction of an out-of-control condition. Therefore no violation occurred.

(11) Petitioner notes the inspector's failure to interview Petitioner, resulting in the inspector not getting supporting evidence (both testimonial and documentary) supporting her allegation concern.

ing improper tag removal from an analyzer. (Petition, Chap. II at 28 29)

Response

The inspectors who conducted the inspection interviewed Mrs. Eng-lish by telephone on several occasions before the inspection and covered many issues, one of which was the out-of-service tag issue. Pertinent in-formation on that issue was obtamed during these interviews. Although i

, the inspectors had not seen copies of the out-of-service tags before the inspection, subsequent review of these copies did not provide the inspec-

, tors any unknown information or change their original conclusion. '

During the inspections, the inspectors applied an accepted inspection technique by interviewing the laboratory personnel. Based on the best recollection individuals had of the event,it was determined that the sub-ject equipment had been tagged as a precautionary measure and that the

  • tag probably had been removed by a supervisor (based on the supervi-sor's remembrance) in accordance with a Licensee procedure entitled

" Administrative, Lock, Tag and Try, No. 302." His procedure did not

require the Licensee to maintain a log of out of service tag use and did not require the Licensee to retain used tags.

The " shift logs" referenced in the inspection report were informal logs or notes maintained by some shift supervisors but not required by NRC j

regulations or the Licensee's procedures. The logs maintamed for equip-ment trend analysis weie informal shift loss used by the Technical Equipment Support Unit to monitor equipment failure rates and mainte-nance time. Dese logs also are not required by NRC regulations or the -

Licensee's procedures. The logs were referenced in Inspection Report 8416 to describe the scope of the inspection and the leads the inspector

developed in his effort to draw a complete conclusion regarding the inci.
dent.

Because the Licensee was not required by NRC regulations or the Li.

censee's procedures to maintain Equipment Support shift logs, laboratory supervisor shift logs, or logs documenting the use of out of-service tags, no violation was issued.

383 i

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(12) Petitioner notes that although inspector found no such require-ment in GE documents, GE rules did require the wearms of protective gloves. (April 11 Letter at 19)

Response

At the time the allegation was made and at the time of the 8404 in-spection, NSR/R 6.1.0 specified the radiological controls for the Chemet Lab. The documents referenced by the Petitioner in footnote 5 on page 19 of the April !! letter were either not considered required procedures by the NRC or were out of date and had been superseded by other doc-uments which did not have a requirement to wear protective gloves. In eith r case, since there were no violations of regulatory reqmrements, no discussion of severity level was appropriate.

b. Improper Findings (1) The Petitioner alleges that the conclusion in Inspection Report No. 8218 that no violations or deviations were disclosed is in error because (a) the General Electric Fundanwntal Nuclear Msterial Control (FNMC) Plan does not reflect GE's actual practice in responding to out-of control conditions and (b) the FNMC Plan does not reflect a license condition. (Petition at 7 8)

Renpenst Durms an inspection conducted March 1518,1982 (Inspection Report 82 07), the inspector observed that the Licensee's practice concerning I

initiation of investigations was more conservative than required by the j facility's FNMC Plan. The plan required an investigation whenever (1) two or more measured values of a standard or (2) the difference between duplicate analyses fell outside the warning limits. (Warning limits are those established at the 0.05 level of significance.) The Licensee's actual practice, not reflected in the FNMC Plan, was to investigate each time j the warning limits were exceeded. Because that practice was more con.

servative, compliance with the FNMC Plan requirement was being main-tamed. The NRC inspector believed that the Licensee should modify the FNMC Plan to be consist.mt with current practices, because those cur-rent practices were superior to the FNMC Plan requirements. A recom.

mendation to this effect was forwarded to the Office of Nuclear Materi-als Safety and Safeguards (NMSS) in a memorandum dated April 15, 1982.

354 l

l

As a result of this memorandum, NMSS issued License Condition 4.10, effective immediately, by letter to General Electric dated July 20, 1982.

The July 20,1982 letter stated that the requirements of License Condi-tion 4.10 should be incorporated into the Licensee's FNMC Plan as soon as practical.

General Electric submitted to NMSS for approval the revised pages to its FNMC Plan pursuant to 10 C.F.R. I 70.34 on December 9,1983. This submittal occurred after periodic, extensive discussions with NMSS con-cerning the subject matter. The December 9,1983 submittal also ad-dressed the Region II concern originally raised in Inspection Report No.

82-07. The revised pages were approved by NMSS on November 30, 1984.

The purpose of requesting the Licensee to put the essence of License Condition 4.10 in its FNMC Plan was to have a comprehensive, inclu-sive document containing all pertinent Material Control and Account-ability (MC&A) aspects. While this is ideal, it is not required. Therefore, during this time period the Licensee was considered to have an accept-able MC&A program based on the commitments in the FNMC Plan and the requirements imposed by license conditions.

(2) In regard to Inspection Report 84-04, Petitioner -

(a) believes that GE committed identical violations in the past. (Petition at 910)

Response

During the previous 2 years, only one similar violation was identified, as documented in Inspect. ion Report 8210 for an inspection during the period May 17-21, 1982. However, the corrective action taken by the Li.

censee in response to the 1982 violation was in most respects effective in preventing recurrence.

In response to the violation cited in 1984, the Licensee took corrective

, action, including disciplining the individuals, conducting special training sessions, and issuing to Chemet Lab personnel a written notice that stressed the need to survey. Consequently, escalated enforcement was not considered necessary to achieve adequate corrective action.

i s

355 i

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l (b) asserts that violations and civil penalties should have been issued for failure of the Licensee to incorporate certain calibration requirements into its formal procedures and for failure of the procedures to require calibratum with sources " traceable to National Standards." (Petition at 10 12)

Revense Neither a violation of a regulatory requirement nor a deviation from a Licensee commitment was involved with regard to the Petitioner's con.

tention that a Notice of Violation or Deviation should have been issued for the Licensee's failure to approve formally the procedure used for calibrating the whole-body counter and high volume air samplers. Para-4 graph 4.1 of Appendia A to NRC License SNM 1097 requires area man-agers to establish written operating procedures incorporating radiation and criticality safety controls and limits. Neither License SNM 1097 nor the license application specifies what type of procedures are required.

The Licensee is permitted to use judgment in determining what proce-dures are needed for operation. Consequently, the Licensee's adminera-tive procedures permit area managers to determine what procedures are necessary for operations. At the time of the inspection, an adequate pro-cedure was in use for calibrating the whole-body counter and high-volume air samplers. The Licensee did not have an administrative proce.

dure to require management approval of calibration procedures for the whole-body counter or the high-volume air samplers, nor was such a procedure required. The NRC inspector indicated in the inspection

, report that it would be prudent for Licensee management formally to ap-

,- prove the procedures to ensure adequate technical content and to pre-vent significant changes to the procedures without the knowledge of ap-

)

propriate Licensee personnel. It should be emphasized that the inspector did not disagree with the technical content of the calibration procedures.

The NRC inspector found that controlling documenn (procedures) for l onsite calibration of instruments used to determine mternal exposure, ex.

posure rates, or radioactivity released from the facility did not require

that the instruments be calibrated with a source traceable to national standards. It is a good practice that calibration sources be traceable to national standards and the inspector was encouraging this. However, I.

there is no regulatory requirement that instrument calibration be per.

formed using such national standards. Therefore, the inspection report is

. correct because no violations or deviations from NRC regulations or li-

, cense conditions were identified.

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(c) notes that 16 of the report discloses circumstances at odds with the inspector's conclusion of "no violations were identified" in light of the fact that the inspector did note that GE's fuel shipment of February 8,1984, was la-beled with RADIOACTIVE WHITE-1 labels rather than RADIOACTIVE YELLOW II labels. (Petition at 12)

Response

As noted in Inspection Report 84-04, the NRC inspector reviewed the Licensee's program for surveying and labeling fuel shipments, including calibration of survey instruments by an independent vendor; observed the techniques used by a Licensee technician to perform the survey; re-viewed records of previous fuel shipments, including a February 8,1984 shipment to a utility; and performed an independent radiation survey of a fuel shipment. Although it was not possible for the NRC independently to confirm the results of the survey performed by the recipient of the February 8,1984 shipment, no evidence was found by the inspector that surveys performed by the Licensee were in error or that data recorded by the Licensee were incorrect or falsified. Thus, it could not be con.

cluded that the shipment was improperly surveyed or incorrectly la-beled, and a Notice of Violation was unwarranted.

(d) also notes, along with item #(4) above, that the inspector found some 1983 Department of Transportation and NRC changes to transport regulations which had yet to be in.

corporated into OE's shipping procedures. (Petition at 13)

Response

The Licensee's failure to incorporate certain 1983 changes to the De.

partment of Transportation and NRC shipping regulations into shipping procedures was the result of an administrative delay that had been recos.

nized by the Licensee.

A draft procedure had been prepared and was being used, but had not been approved formally. The individuals responsible for shipping radio.

active materials were well versed in the contents of the new regulations.

j Necessary form changes had been made, and shipments were being made I in accordance with the appropriate regt.!ations. The Inspection Report

84-04 specifically stated that the inspector reviewed shipping records for shipments made in 1984 and found no violations of DOT or NRC regula-357 l

l

  1. 4 tions in any of these shipments, nor did it identify any violations with regard to failure to incorporate the 1983 changes into OE's transports-tion procedures.

However, in response to the Petitioner's concern, a specific NRC re-quirement for prepanas shipments of radioactive material using ap-proved procedures was identified. Section 71.0(d) of 10 C.F.R. states that the transport of licensed material or delivery of licensed material to a carner for transport is subject to the quality assurance requirements of Subpart H of 10 C.F.R. Part 71. Section 71.113 of Subpart H requires the Licensee to estabhsh measures to control the laanan~ of documents such as instructions, procedures, and drawings, including changes, which prescribe all activities affecting quality. Section 71.113 also requires that the measures must aneure that documents, including changes, are re-viewed for adequacy and approved for release by authorized personnel. <

The determination that the Licensee did violate NRC requirements by not having changes to procedures formally approved before use in pre-paring shipments of radioactive material has led to the issuance of a Notice of Violation in Inspection Report 701113/86-01.

Since the shipping records indicated that the shipments met DOT and NRC requirements, as reported in Inspection Report 8404, failure to have management approval for the procedural changes is of only minor safety concern and the violation was categorized at Severity Level V.

(e) questions a Anding of "no violation or deviations were identiRed" when an inspector. requested survey disclosed three work areas which exceeded OE's administrative dose limit. This was particularly questioned in light of previous surveys which had also conArmed contamina-tion above the " administrative limit." (Petition at 1314)

Raponse The Licensee's'" administrative limit" is a selfimposed action point used to initiate cleanup. This " administrative limit," approximately one.

Afth the removable contamination limit for releasing an item for unre-stricted use imposed by Condition 14 of the license in effect at the time of the 84-04 inspection, was used for uncontrolled areas. This indicated

} the Licensee's intent to keep the contamination level in the Chemet Lab

! low. The inspector's review of weekly contamination surveys performed i by the Licensee's Radiation Safety staff in January and February 1984 indicated that when contamination was identined in the Chemet Lab, prompt decontamination and resurvey was performed as required by i 390 i

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plant procedures. Prompt decontamination and resurvey also occurred after the survey requested by the inspector, which identifwd three work areas above the action point.

During tours of the Chemet Lab, discussed in Inspection Report 84 04, the inspector did not identify visible contammation which rodi have in-dicated that spills had not been cleaned up. Licensee procedures required that spills be cleaned up immediately. Licensee radiation safety surveys, an independent check of the Chemet Lab housekeeping program, assist the laboratory in identifying problem areas to lessen the potential for in-ternal deposition of radioactive material. During the inspection, the in-spector found no evidence that the Licensee's program for identification and prompt cleanup of radioactive contamination was not in accordance with license conditions and plant procedures. Finding contaminarian does not form the basis for a violation. The instances of conta-maema levels in the Chemet Lab exceeding the action level, noted in the survey records reviewed, did not indicate a breakdown in the contamina*ma control program in the laboratory, and no violation of NRC require-ments occurred.

(3) In regard to Inspection Report 84-05, Petitioner alleges that the conclusion in Inspection Report 84 05 that no violations or devi-ations were identified is incorrect because (a) the Licensee failed to follow certain procedures when calibrating enrichment ana-lyzers, and (b) the Licensee failed to maintain certam calibration logs. The Petitioner also alleges that Licensee management misled NRC inspectors and that all of these concerns should have been identified as violations of NRC requirements. (Peti-tion at 1415)

Renpense During the inspection conducted March 26-29, 1984 (Inspection Report 840$), the NRC inspectors reviewed the Licensee's records to evaluate the Petitioner's assertion that proper calibrations were not com-pleted following detector changes for analyzer #4 on August 20, 1982, and for analyzer #3 on June 22,1983. The inspectors reviewed the com-puter generated records, tapes, handwritten logs, and procedures. The in-spectors' review determined that the applicable procedure was not writ-ten clearly. To ensure that they were interpreting it correctly, the in-spectors discussed the procedure with the individual who had prepared it. Also, although not documented in the inspection report, the inspectors interviewed several laboratory technicians. All of the technicians inter-4 i

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viewed had the same interpretation as the author of the procedure. In-spection of the computer tapes revealed that, for the two detectors on the dates specified, the Licensee had performed the calibrations consist-ent with the intent of the procedure. 'Ihe inspectors concluded that the Petitioner had misinterpreted the procedure to require six complete cali-brations rather than the analysis of the highest standard six times. The inspectors further determined that the procedure used by the Lk-was adequate.

During the same inspection, a review of Licensee procedures and dis-cussions with Lk- management did not reveal any requirement for the LWa== to maintain information or data in the calibration log. How-ever, a subsequent inspection (Inspection Report 8415) in this area re-vealed that one step in a Station Control Plan which was in effect be-tween April 29,1979, and September 15,1983, specified that this log was to be maintained. The log was used to provide the Licensee rapid indica.

tion of the status of equipment, thus precluding the need periodically to examine the computer tapes. During the inspection documented in In-spection Report 8415, the inspector determined that because of an over-sight the Licensee had failed to withdraw the Station Control Plan re-quirement to maintain the calibration log. In any event, the Station Con-trol Plan was not a procedure used to implement NRC requirements; the Licensee used the computer system for maintaining the records required by NRC. Thus, statements of Ek- management that the log was not required were not false and no Notice of Violation was issued.

(4) In regard to Inspection Report 84-08, the Petitioner identifies the inspector's statement of "no violations or deviations" as worthless when it was determined that tests to analyze UO were not actually performed nor was the item kept "open" or reserved for subsequent inspection. Further she views.as "ille-gal" a report comment that in the case of examination of analyti-cal control chart data for the period April 1-May 31,1984, it is a " matter currently being addressed by Licensee." (Petition at 17 19)

RasM nst During the inspection conducted on June 25 28, 1984, the inspector obtained samples of special nuclear material (UO:) scheduled for export by the Licensee. These samples were sent to the New Brunswick Lab-oratory (NBL) for analysis under NRC contract. Although not clearly specified, "84-08-01" in the inspection report is the identification se-360

o quence for this open item. Open items are closed during future inspec-tions, and, if appropriate, enforcement action is taken. This particular item was reviewed during and closed by inspection Report 85-14 when data analysis showed no significant difference between the Licensee's and NBL's results.

Control chart data were reviewed during the inspection documented in Inspection Report 84-08 to determine whether the Licensee was com-plying with NRC regulations relative to measurement quality control.

The inspector noted that one of the Licensee's computer reports (a graphical representation of the data) was not properly graphing the con-trol chart limits. Further investigation revealed that this was an anomaly with that particular computer report and that the computer had been

. programmed with the proper limits. This was verified by the inspector by reviewing a second type of computer report, which was produced using the same data base. No violations were detected because the Li-censee was controlling measurements properly and was taking appropri-ate action when limits were exceeded.

The inspector reviewed an internal Licensee report (the Wieczorek Report) covering employee concerns relative to the Licensee's efforts to follow procedures when detectors were replaced. This review was in ad-dition to previous inspections of data, records, and procedures in the Li-censee's laboratory by NRC inspectors, as documented in inspection Re-ports 84 08 and 84 05. The conclusions in the Licensee's report, as in the NRC inspection reports, were that the Licensee's procedures were ade-quate. The Wieczorek Report, referenced in Petitioner's Exhibit F, is dis-cussed in detail in the response in 12.d above.

(5) In regard to Inspection Report 84-13, Petitioner -

. (a) asserts that the following examples show willful devi-ations by the Licensee, making a conclusion of "no viola.

tions or deviations" not only " incomprehensible" but "pa-tently illegal." (Petition at 20)

(i) Having only one air sampler in the laboratory. (Pe-tition at 20)

I Response It should be noted that inspection Report 84-13 carried this issue as an unresolved item, a matter about which more information was required to determine whether it involved a violation. As noted in Inspection Report 8413, the Licensee stated that documentation should be' retrievable from l

old files to indicate that the single air sampler collected samples that l

1 361 l

were representative of the concentrations to which workers in the lab-oratory were exposed. In a subsequent inspection during the period No-vember 27 30,1984 (Inspection Report 8417), the documentation was found to be inadequate. It also was determined that the location of the air sampler was inadequate to provide representative samples of breath-ing air concentrations for workers in the area. Therefore, a Severity Level IV Notice of Violation was issued. Based on the low con e ===a-tion levels in the Chemet Lab and the low potential for the material to become airborne, there was only a small probabdity that the exposure of a worker would even approach the intake limits of f 20.103. Therefore, in the absence of a Anding of willfulness, which would be examined by OI, the violation was appropriately classified as a Severity Level IV vio.

lation.

(ii) Defective hoods and inefficient ventilation equip-ment and the absence of Licensee identification of the problem to the NRC.

Responsr The statement made in Inspection Report 8413 that fhps covering hood openings on several hoods ==MM repair or replacement pertained

, to rubber devices through which an individual inserts his hand and arm in order to work inside enclosures or hoods in the fuel manufacturing area. This enables the individual to handle material which would poten-l tially become airborne if it were not for the enclosures or hoods.. The enclosures or hoods are connected to a Altered ventilation system that draws air out of an enclosure and creates a partial vacuum in the enclo.

i sure. In other words, the pressure is less inside the enclosure than out.

side. This differential pressure causes air to flow into the enclosure, thus keeping airborne radioactivity inside the enclosure. Damaged or missing

! flaps over openings in the enclosures would reduce the differential pres-sure but not necessarily to the extent that airborne radioactive material would leak out of the enclosure. The Petitioner apparently misunder-stood the Anding when she stated that air flow into a hood was evidence i

of a malfunctioning hood. In this case, there was no violation and the Petitioner's belief that the inspector's findings were inappropriate is in-

{ correct.

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N (b) questions the inspector finding of no incidents of expo-sure or contamination for the previous year, when, in fact, Petitioner was transferred for an alleged failure to clean up a radioactive spill. (Petition at 21)

Response

Although the Petitioner did not provide specific information (e.g., con-tamination level, size of contaminated area, and location in the labora-tory) concerning the event characterized as a spill, most spills of rednoac-tive material in powder or liquid form at the plant typically would not -

be reportable under NRC regulations or license conditions. ,

A review of the Petitioner's bionssay data for 1984 indicated that the Petitioner had no detectable uptake of radioactive material. The absence of positive bionssay data supports the conclusion that the Petitioner was not exposed to radioactivity in excess of the limits specified in 10 C.F.R.

I 20.103(a)(1) and (2) as a result of the alleged spill and, therefore, the event was not reportable. A review of the Petitioner's radia.%n exposure records for the last 4 years indicates that her radiation dose for that period was minimal and well below NRC 1,imits. The exposuis records of ,

other Chemet Lab personnel indicate their esposure to radioactive mate-rial also was minimal.

Reviews of routine contamination surveys performed by the Licensee and special surveys performed at the request of the NRClindicated that loose contamination levels !n the laboratory were low.

A review of monitoring records for the Chemet Lab exhaust system indicated that there was no release'of radioactivity to unrestricted areas in excess of NRC limits during the period 1983 1984.

The NRC review did not confirm that the alleged spill in the Chemet Lab, described in the Petition, met any applicable reporting criteria.

Consequently, there was no violation identified sad no " knowing or con-

.' l sciour" failure, as the Petitioner characterizes it, of the Licensee to report. 'Ihe Petitioner has incorrect;7 cited and relied on 10 C.F.R. .

!$0.73 concerning reporting requirements. That provision does not apply to a materials licensee, such as General Electric. Section 50.73 ap-plies only to the holders of operating licenses for nuclear power plants.  !

On the basis of the above, the inspection report is correct la stating i that there were no reportable incidents.

(6) In the Introduction to Chapter I, the Petitioner contends that a number <f inspection reports were in error or deficient because the inspectors (a) found no violations in their followup to many 363

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of the allegations, (b) refused to Gad a siolation on 'the ground ,

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that there is no legally binding requirement, (c) paid no attention',

, , to previous violations in the same area, (d) did not End.that of-fenses renected deliberate or careless' disregard and willfulness $

and were not reported to the NRC as required, (e) did vot 4 purset deptictica of duty on the part of GE management, (f) never aanped severity levels trore than a IV or V, (g) drafted

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findings ta> .nake it sopear th>. violations were only " technical,"

(h) never conslierEd tu rtual s#eds ontworker health and <,

safety, and (i) nr.er c<.ansidered the econonse advartage to OE of noncompliance (Petition at 2 3) s Assposar

1. It is true that no violatioca were found in many areas where alle - '

i gaticas were made. Either the allegation was found not to have merit or, f in some 4ases in which th allegation had merit, molegulatory kequire- t sent was violated by the .censee. In areas where there were no regula.

Q i tory requirements but where practices could be improved, the Licensee cases voluntarily improved the program. When there weie no 0 in many'y requirements this lack of requirement did not lead regulator ,

) tion that adversely affected the health and safety of workers or the

, . )mblic.

2. It is true that in many instances no violations were issued because

' ^ 1. Sere was no legally binding NRC requirement. The NRC cannot issue a notation for failure to do that which the Licensee is not required to do I e, ,

by regulation, license condition, or other reouirement. However, NRC g

does comment to licensees where improvements can be made beyond regulatory requirements. If there is a lack of requina.cno in an area that could significantly affect public health and safety.'theARC can impose _

requirements or terminate operations, as necessary, to ensure the public health and safety. During inspections of the OE Wilmington facility, ,

NRC inspectors found no notances where worker or public health and i safety required actions other than those taken and documenkd in the in.

l . spection reports.

3. Although the contention is made several times thttughout the Pe-tition that ti e NRC did not consider a particular violation in light of pre-t vlous violations,^the NRC did, in fact, consider previous violations in the area. Violations for the preceding 2 years in each technicsi area were considered to determine if there were repeat violations or trends. None W " '

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were found that indicated the need for enforcement actions different 0; '

from those taken.

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4. The NRC has not identified any instances where a violation re-quired to be reported to the NRC was not reported. The Petitioner has alleged several instances where the Licensee did not report when re-quired. Based on NRC's review, in each instance the Petitioner's position was based on a lack of understanding of NRC reporting requirements ap-plicable to the GE Wilmington facility.
5. Neither the NRC revi ew of the Petitioner's concerns nor NRC in-spections of the Licensee's facility revealed dereliction of duty on the part of the Licensee.
6. See Response,13.c(2).
7. Violations must clearly describe the regulatory bases and, where appropriate, a discussion of technical issues. In many instances, informa-tion concerning the health and safety significance of issues was included in inspection report details. In all instances it was considered in assigning severity levels.

.8. It is true that not all NRC inspection reports speak directly of worker or public health and safety. Rather, NRC inspection reports fre-quently refer only to NRC regulatory requirements, the main purpose of which is protection of workers and the public. Thus, in fact, inspection reports do concern issues relevant to worker and public health and safety or national security.

9. The NRC Enforcement Policy states that sanctions should be de.

signed to ensure that a licensee does not profit deliberately from viola-tions of NRC requirements. Whether a matter is deliberate must be de.

termined by the Office of Investigations. Their investigations are pending on matters that may involve deliberate violations.

(7) Petitioner criticizes IE inspection reports in that they are ex.

pressed in tenas of conditions on the date of the inspection and not or. the date(s) of the reported deficiencies. (Petition, Chap. I at 3)

Respome l It is true that inspection reports generally describe conditions that ex-isted during an inspection. Inspection reports alsa may discuss conditions that existed when the inspector was not on site, as determined from dis-cussions with woders and from review of Licensee records. The fact that an inspection report does not specifically discuss conditions alleged

!- to have existed on dates referred to in the allegation does not mean that the inspector ignored those dates. It is normal practice for inspectors to interview people who may or should know of the alleged conditions.

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Also, inspectors review Licensee records to determme plant conditions that existed when NRC inspectors were not on site.

(8) Petitioner complains that when the investigators are unable to find physical evidence which was under the control of manage-ment, they conclude that they are unable to prove the case. (Pe '

tition, Chap. I at 14)

Response

The Petitioner implies that there should have been some evidence pro-vided to the NRC that was not and that this lack of evidence was not discussed in NRC reports, but the Petition cites no examples of where this was the case.

If through followup of a specific allegation NRC inspectors become aware that a Licensee may have destroyed records required by the NRC, with the intent of withholding such evidence from the NRC, this infor-mation is turned over to the Office of Investigations for appropriate fol-lowup. NRC inspections of the GE Wilmington facility have found no indication that the Licensee destroyed records with the intent of with-holding such evidence from the NRC (9) Petitioner complains that covering letters " virtually always assume that the report is ' privileged and confidential

  • and invite the licensee to forward his response as a separate document to avoid disclosure."(Petition, Chap. I at 5)

Reponse Pursuant to 10 CF.R. I2.790(d), correspondence and reports which contain information or records concerning a licensee's or applicant's physical protection or material control and accounting program for spe-cial nuclear material not otherwise designated as Safeguards Information or classified as National Security Information or Restricted Data are sub-ject to disclosure only in accordance with the provisions of 10 CF.R.

I 9.12. Accordingly, inspection reports of General Electric's fuel manu-facturing facility, Wilmington, North Carolina, that contain material con-trol and accounting information or physical protection information gen-erally are not released by the NRC All other NRC inspection reports, Notices of Violation, and Licensee responses to inspection reports are posted at the plant site and are available in the Public Document Room in Washington, D.C 366 v - - -, , , - -

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(10) Petitioner complains that although the NRC was officially noti-fled on September 26,1984, that Mrs. English waived confiden-tiality, every report written after that date has still referred to her as ' alleger.' (Petition, Chap. I at 5)

Raposse This method of referring to allegers in insocction reports is common practice in the NRC. It helps avoid inadvertent identification of confi-dential sources.

(11) Petitioner asserts that GE's highest management " willfully,' cal-culatedly or by ' careless disregard,' and by deception, for its own profit, destroyed the utility of at leastfour of the systems it was required by law to maintain to guard agamst exposure to

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radiation hazards (1) air intake monitoring; (2) Rad. Safety In-spections; (3) frisking and (4) body counts. In consequence, GE was, at the time ofMrs. English's complaints, and at least until Dr.

cember 41984, unable to ascertain or accurately to report the intake of radioactive contamination by wet lab employees." (Pe-tition, Chap. I at i1)

Raponse The inspection reports discussed by the Petitioner do not demonstrate that GE management willfully, calculatedly, or by careless d1-414 and by deception destroyed the utility of air intake monitoring, radiation safety inspections, frisking, and body counts. The NRC expects licensees to adhere to NRC requirements and hcense conditions and holds the Li-ceraec responsible for the acts of their employees. The inspector identi-fled areas that could be improved in the Ek=~'s program relative to air monitoring, radiation safety inspections, frisking, and body counts, but the inspector did not find the Licensee's program to be ineffective.

l In most cases the Ek- 's program was in conformance with NRC re-quirements. Where violations of NRC requirements, license conditions, or required procedures were identified, appropriate Notices of Violation were issued.

The Notice of Violation issued regarding air monitoring was for not performing suitable measurements of concentrations of radioactivity in air, not for exposing individuals excessively or unnecessarily. The inspec-tor reviewed the Licensee's records of contammation surveys, oper-ations, techniques, and the results of bionssays, and found that excessive 367

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exposures had not occurred. The statement by the Petitioner that the utility of the Licensee's employee protection program was destroyed as it applied to the Chemet Lab, is not supported by fact. Based on NRC inspections the Licensee's radiation protection program did have the nec-essary controls commensurate with the potential hazards, and the health and safety of the employees was being protected.

(12) Petitioner asserts that the exit interview described in Inspection Report 84-17 established willful per se violations of the entire contamination control program. (Petition, Chap. I at 11-13)

Response

It is normal practice for NRC inspectors during the exit interview to point out to the Licensee weaknesses in a particular program. Observed weaknesses are not necessarily violations. Usually they are potential problem areas that if left unattended could possibly result in violations.

The Licensee may be requested to respond to these concerns, addressing particular actions taken or planned to improve the effectiveness of its program. The NRC constantly strives to improve the effectiveness of li-censee programs. An inspector's finding a problem does not mean that management knew of and had deliberately. ignored the problem or had carelessly disregarded it. The NRC does not interpret management will-ingness and commitment to take corrective actions as an admission of a willful violation, per se. Rather, NRC views it as an indication of a re-sponsible and responsive licensee.

The premise stated by the Petitioner that the admission of a violation was an admission of willfully violating NRC regulations is not correct.

Section 2.201(b) of 10 C.F.R. states that licensees may be required to admit or deny a violation when formally responding to the Notice of Violation. In admitting a violation, a licensee is acknowledging that the violation occurred essentially as described in the Notice of Violation and that corrective action is or was necessary to correct the condition that led to the violation. It is not an admission of willfully violating NRC re-quirements.

(13) Petitioner asserts that McAlpine signed reports for Clay and Bates because they might have objected to signing a " white wash." (Petition, Chap. I at 14-15) 368

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i Rerpenst Inspection reports are reviewed by several levels of NRC management before issuance. It is normal NRC practice (Exhibit 3 (at E3-1), IE MC 0610) for supervisors to sign inspection reports for inspectors when the inspectors are out of town, so as not to delay issuance of the reports. In the cases cited, recommended changes were coordinated by telephone with the inspectors, and their concurrence was received before the re-ports were issued. When the inspectors returned to the regxmal office, they again reviewed and concurred in the !=5+:tk-n reports.

(14) Petitioner questions finding of"no violations or deviations were identified" in Inspection Report 8417. Section 4.f, in light of showing as Petitioner puts it, that "the Rad Safety inspectors monitor frequently enough but only in the wrong places" (id. at 19); believes the Licensee procedures provide the " illusion" of radiation safety protection which belies reality; questions why the ALARA obligation imposed by 10 C.F.R. I 20.103(b)(2) was never mentioned; and, charged that the isotopic room was the

" hottest ' spot in the lab." (Petition, Chap. I at 18-21)

Response

Requirements for contamination surveys are described in the Licens-ee's bcense application. The surveys specified in the license application were being performed. The rationale behind contammation surveys of the walk areas to detect spread of contamination was sound. The NRC inspector was indicating that the Licensee also should conader surveys of the work areas in which there are operations with high potential for the spread of contammation. The inspector was encouragmg the Li-censee to consider improvements in the contamination survey program in the laboratory, though such improvemems were not specifically required by NRC regulations. The inspector was not implying that the Ek 's program was not in compliance with NRC regulations.

The contammation action levels used by the Licensee in the Chemet Lab were the same as those for " uncontrolled areas" of the plant. These acten levels were conservative and were much lower than the acten levels used for " controlled areas" within the plant. Therefore, the NRC concluded that the Licensee has used extrennly conservative admimstra.

tive action levels for contamination control in the Chemet Lab. The 369

Chemet Iab ademietrative action level of 1000 dpm/100 cm* 8 for smearable contammation is the same value specified in i1.8.2 of the li-cense application for acceptable contamiantina on articles released for unrestricted use. The applicability of ALARA is discussed in 12.a.

above.

Inspection Report 84-17 does not say that radiation safety technicia==

monitored in the wrong places. The i==^ report at page 6 states,

"[t]he review of the contammation survey results and observations by the inspector indicate that surveys performed by the radiation safety -

technicians are generally in the same locations which are often not the areas with the highest potential for becoming contaminated " The NRC inspector was pointing out to the Lkaa- a waalrnema in the radiation survey program. At the time of the inspection, the NRC inspector did not observe any violations.

The ademistrative limits referred to by the Petitioner are ademistra-tive action levels for contammation that are contamed in the license. The Licensee is required to take corrective action if surface contammatian levels exceed these values. Contrary to Petitioner's assertson, eWia the surface contammation action level is not a violation of 10 C.F.R.

I20.103(aX3) and (bX2) because those subsections pertam to NRC re-quirements to perform suitable measurements of radioactive materials in air and to perform bionssays as appropriate. Subsection 20.103(bX2) re-quires licensees to limit the intake of radioactive material by an individ-ual by the use of respiratory protection devices or other precautionary

. procedures if process or engineering controls are impractical.

The Petitioner's statemer.t that the Isotopic Room was the " hottest" spot in the Chemet Lab is not supported by the facts. Records of con-tamination surveys performed by the Licensee and those requested by and observed by NRC inspectors indicate that contamination levels in the Isotopic Room are similar to other work areas in the Chemet Lab.

Records of contamination surveys performed by the Licensee which were reviewed by the inspector indicate that radiation protection techni-l cians routinely went into the Isotopic Room and conducted surveys simi-

lar to those conducted in other parts of the laboratory.

t (15) In a footnote, the Petitioner concluded that an NRC inspector had inferred that Rad Safety personnel did not know where to look for contamination which showed that they were 'unquali-

  • Before May 21. 1985, the adamnatranve accon level for du Chuan I,ahormory wu 220 dpeA00 c==, appronomeiy raciar or 5 i iow on ear nnend are imie.

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fied' or inadequately trained under 10 C.F.R. (( 19.12 and 20.206. (Petition, Chap. I at 19)

Reponse The inspector did not infer that radiation safety personnel did not know where to look for contamination and that they were not qualified.

Each technician met or exceeded the nummum qualifications specified in U~ 's application for license renewal. The inspector's comments in-dicated how the Licensee might improve the program. Hus, the basic prenuse for the Petitioner's statement is incorrect.

The referenced regulations,10 C.F.R. I 19.12 (Instruction to Workers) and 10 C.F.R. { 20.206 (Instruction of Personnel), do not define the qualifications and training of radiation protection technicians. As stated in i 2.5.3.3 of the license, radiation protection technicians at the GE Wil-mington facility must meet all requirements for a radiation protection technician tramee (which includes 2 years of college or completion of high school and adequate experience plus at least 6 months expenence in -

the field of nuclear safety). The individual also must successfully com-i plete a comprehensive General Electric training program, including the Rockwell International " Radiation Protection Technologist" course, and pass tests independently administered by Rockwell International. Written and oral exammations covering radiological / criticality control proce-dures are administered by the Licensee. The U~a=~'s requirements for i a radiation protection technician are more stringent than the qualification requirements for radiation protection technicians specified as part of the NRC license SNM-1097. His area has been reviewed previously and found acceptable by NRC.

(16) Petitioner asserts that the finding that GE had no policy requir-ing notification of Rad Safety in the event of a spill in the lab was false because GE did have a written policy on the matter, which indicates to the Petitioner that the inspector probably took the word of GE management on the issue. (Petition, Chap.

I at 21-22)

Reponse Dunng inspection 84-17, the inspector reviewed Nuclear Safety Re-lease / Requirement (NSR/R) 6.1.0, which he believed to establish general l

radiological safety requirements for the Chemet Lab. NSR/R 6.1.0 re-quired that spills be cleaned up, but not that they be reported. At that 371 l

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m time, the inspect 6r, being unaware of a Job Hazard Analysis (JHA) for the Chemet Lab, which stated that Radution Protection was to be noti-fled of spills, encouraged the Licensee to establish a notification require-ment and to correct an apparent deficiency in the procedure. During a more recent inspection (85-02), the inspector determmed that Chemet Lab personnel had not been notifying Radiation Protection of spills. Job Harard Analyses are not required by the Licensee except for mainte-nance operations, where JHAs are used to establish radiological controls.

Therefore, failure to notify Radiation Protection of spills was not a viola-tion of NRC requirements or license conditions. The Petitioner referred 1 also to the General Electric Course for Hourly Workers. Although train-ing course outlines or handouts may discuss NRC requirements, license conditions, or procedures, such outlines and handouts are not formal pro-cedures. Thus, the inspector properly concluded that the Licensee had no policy requiring notification in the event of a spill.

(17) Petitioner asserts that the finding in Inspection Report 84-17 that GE does not have a procedural requirement, nor do they rope off or otherwise mark contammated areas, is false..(Petition, Chap. I at 22, Chap. II at 11; April 11 Letter at 20)

Response

Before reaching the stated conclusion, the inspector reviewed appro-priate NRC regulations, license conditions for the facility, and required procedures. The inspector did not " naively" accept the verbal statements of GE management, but he reviewed procedures and interviewed indi-vidual nonmanagement employees. Contrary to the Petitioner's statement that the finding was predicated upon GE's misrepresenting, the inspec-l tor's independent assessment of Licensee documents determined that the l Licensee's documents discussed in the Petition had no relevance to the issue of marking off radioactively contaminated areas. Contrary to the Petitioner's assertion, the Course for Hourly Workers is not a formal i procedure. It also should be noted that NRC has no specific require-l ments for roping off contanunated areas. The Petitioner's discussion of

" dead zones" and " safety zones" pertains to criticality safety. The docu-ment entitled " Criticality Safety Control Chemet Lab" pertains to the general criticality safety rules, practices, and procedures and does not pertain to radiation safety or to the marking off of radioactively contami-nated areas. The GE document C2.0-QA 201, " Criticality Safety Control

- Chemet Lab" (in use between 1973 and 1976), also concerned critical-ity safety not contammation control At the time of the inspection, Nu-t 372 i

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clear Safety Release / Requirement 6.1.0 was the effective document for specifying raoiation safety practices in the Chemet Lab. This document also did not address marking off contaminated areas.

The " Hourly Course Outline referenced in the Petition was not a procedure, but instead was an outline for a radiation safety training course given to plant personnel in the early 1970's. The NRC requires licensees to adhere to NRC regulations and license conditions and to li-cense application commitments which are made a part of the license by reference, including specific procedures. Failure to adhere to statements made in course outlines is not a violation of these requirements.

Petitioner's comment regarding the red line on the floor refers to a line below the personnel survey station that persons will step across as they survey themselves and leave the area. Such a line is common in the nuclear industry at controlled area entrances to indicate the boundary of an area where radioactive materials are handled. No such convention re-garding a red line applies to marking of spills.

In conclusion, the inspector was correct in stating that no violations or deviations were identified.

(18) Petitioner asserts that the inspector's conclusion is false that al-lowing open cooling of uranium sintered pellets is neither pro-hibited nor a radiation safety problem. (Petition, Chap. I at 23-27)

Respoosse The inspector observed laboratory technicians performing hydrogen determinations on sintered pellets during inspections 84-17 and 85-02.

During these periods, the inspector observed the removal of pellet pieces frcm the analyzer and the placement of them in a stainless steel can for cooling. The inspector did not observe any enussion of particles of uranium dust while the pellets were being transferred to the can for cooling or from the cooling pellets. In addition, as discussed in Inspec-tion Report 8542, the inspector had the Licensee collect an air sample .

approximately 1 foot above the cooling can and in a position such that the air flowed from the source to the air sampler while a laboratory i technician performed four analyses. The results of this air sample showed that the air concentrations in the immediate vicinity of the cooling can t

were less than 1% of the concentration listed in 10 C.F.R. Part 20, Ap- i pendix B, Table 1, col.1. Any airborne radioactivity that would be re-leased would be in an insoluble form. If an individual remamed at this station for the entire working time in a calendar quarter (520 hours0.00602 days <br />0.144 hours <br />8.597884e-4 weeks <br />1.9786e-4 months <br />), the

  1. 373 e

calculated intake from this operation would have been less than 1% of the limit specified in 10 C.F.R. { 20.103(a)(1).

Reviews by the inspector and discussion with Licensee representatives indicate that Standard Operating Procedure 0.3.4 was discontinued as a procedure for the Chemet Lab operations during the per:od 1977-1978

and replaced with Nuclear Safety Release / Requirements.~ In addition, Calibration and Operation Instruction (COI) 409 and Analytical Test-Method 5.2.9.6 are not applicable to the hydrogen determmation and

, subsequent cooling of sintered pellets, but rather pertam to the analysis ofliquid solutions. Thus, open cooling was not prohibited.

Based on review of the inspection reports for the GE Wilmington fa-cility and from interviews of the NRC Region II inspectors assigned to this facility over the past several years, the NRC has found no eviderce to support the Petitioner's statement that workers in the Chemet Lab are receiving " unnecessary exposure to radiation or to radioactive material."

(19) Petitioner claims that GE never made any tests for contamma-tion by examining feces and took care to assure that these mans-ures would be unrepresentative, inter alia, because it took body

. samples only after the absence of the worker for several days from the lab and did not make or keep required historical records. (Petition, Chap. I at 27)

Response

License No. SNM 1097, Part I,13.2.4.3.3 permits lung counting, in lieu of fecal analysis, to evaluate the uptake of insoluble uranium. Re-garding soluble uranium, the Licensee's bionssay program, including sam-pling frequencies, is consistent with Regulatory Guide 8.11 "Applica-tions of Bionssay for Uranium," as required by the license. Review of bionssay program documentation by the inspector showed no instances where required historical information was not maintamed-(20) Petitioner asserts that the inspector conclusion that neither NRC regulations nor license conditions prohibit dichromate titrations outside a hood is false. (Petition, Chap. I at 27, Chap. II at i1)

Response

The Petitioner implies that the use of contamination survey data for the titration work station was inappropriate because radiation safety technicians surveyed in the wrong places, the Licensee used inappropri-374 1

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ate contammation action levels, and contammation above the action level

( was found at the work station. Inspection Report 84-17 stated that radi-ation safety techmcians generally survey in the same location often not in the areas with the highest potential for becoming contammated The in-spection report did not state that radiation safety technicians surveyed i

only in the wrong places.

' In the case of the titration work station, surveys were performed rou-tinely in this area. Contrary to the statement made by the Petitioner, and as stated in the inspection report, contammation levels were not found above the Licensee's action level. In addition, the Petitioner misunder-stood the statement in the inspection report concernmg the administra-tive limits for contammation used by the Licensee. In the inspection report the inspector pointed out that the admimstrative limits used by the Licensee for removable contammation in the Chemet Lab were very low. In fact, they were less than the removable contamination levels per-mitted on material and equipment that is unconditionally released from the facility to the public in accordance with license conditions.

He Petitioner incorrectly states that the Licensee is required by NRC regulations to keep radiation exposures as low as reasonably achievable (ALARA). (See earlier discussion of ALARA.)

During a more recent inspection (85 02), under direct observation of the inspector, the Licensee took an air sample approximately 1 foot above the titration beakers. The air sampler was positioned so_that the i

air flow was from the source (beskers) to the air sampler. De total sam-pling time selected was based on collecting a large enough sample to ensure that the mmimum detectable level was small compared to the concentration specified in 10 C.F.R. Part 20, Appendix B, Table 1, col.

1. The air sampler operated while the Licensee's technician performed four separate titrations. The air sample results indicated that air concen-trations in the vicinity of the titration work station were less than 1% of the concentrations specified in Part 20. Appendix B, Table 1, col.1.

The NRC advised the North Carolina Department of Labor, Division of Occupational Safety and Health, of the nonradiological safety matter (i.e., the potential for inhaling noxious fumes) by letter of November 8, 1984. Following their investigation of January 29,1985, the North Caro-lina DOL concluded that detector tube samples taken in the breathing zone of workers showed no exposure to acid during dichromate titra-tions. No violations of Occupational Safety and Health Administration Standards were found; hence, no citations were issued by the State.

The statements in Chapter II, page 11, of the Petition indicate that the Petitioner reached an invalid conclusion by putting together unrelated facts. As previously stated, the document " Rad Safety Lab Operating 375 i

l l

Procedures,1973" was not in effect at the time of the allegation or the inspection; therefore, the Licensee was not bound to follow it. The Peti-tioner states that (surface) contamination surveys performed at the work station were unreliable because an air sampler (for monitoring airborne contamination) in the Chemet Lab is improperly located. These two survey methods are not related in this manner. In addition, special air samples performed at the dichromate titration work station during in-spection 85 02 demonstrated that the airborne radioactivity levels result-ing from the titrations were less than 1% of the concentration specified in Part 20, Appendix B, and are, in fact, extremely low.

The Petitioner's contention that during Inspection 84-17, the inspector

" ignored" the air sampling finding of Inspection Report 81-11 as it re-lates to performing titration is correct. However, the subject of air sam-pling in the Chemet Lab had been discussed and identified as an unre-solved item in Inspection Report 8413. As noted in Inspection Report 84-17, the inspector followed up on the unresolved item and determmed that air sampling in the laboratory did not meet the requirements of 9 20.103(a)(3). A Notice of Violation appropriately classified as Severity Level IV was issued.

Because neither NRC regulations nor license conditions address indus-trial safety in the laboratory, the nonradiological concerns noted in the allegation were referred to OSHA.

(21) The Petitioner alleges that the inspector overlooked Part 20, Appendix B, footnote 4, in finding that "because 'the procedure contains no precaution concerning the inhalation of acid fumes that evolve from the titration,' GE was not obligated by its li-cense to take any precautionary action against that danger."

Response

Chemical toxicity referred to in footnote 4 to Appendix B refers only 4

to the chemical toxicity of uranium, not to the toxicity of other materuls which might be present.

(22) Petitioner cites a memorandum dated November 9,1981, from Bowman to Hendry stating that "' analyses of the 9 air sampler filters in the ADU vaporization room'showed airborne contami-j nation levels ' exceed 300 times the maximum permissible con-centration.' " (Petition, Chap. I at 28) 376 i

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' Response The Petitioner's contention that a Licensee memorandum which dis-cussed the analysis of air samples collected in the ADU Vaporization Room was evidence that radiation safety surveys in the Chemet Lab were inadequate is not only incorrect, but it is irrelevant to the discus-

' sion of radiation safety aspects of titrations in the Chemet Lab. "Ihe ref-crenced memorandum pertained to the analysis of air samples collected during an inccidental release of uranium hexafluoride gas in the fuel man-ufacturing area, an area far removed and physically separated from the Chemet Lab. The release resulted from the failure of equipment.

Information and data concerning the release were reviewed by an-NRC inspector and the findings were discussed in Inspection Report 81-

11. In addition the Lk- conducted an appropriate investigation of

' the event and provided a detailed report to the NRC. This report in-cluded a description of actions taken to improve the Licensee's timeliness of the mananament of dose to the general public, as requested by the NRC in the cover letter to Inspection Report 81 11.

(23) Petitioner questioned findings in two separate Inspection Re-ports regarding contammation on vials, etc., received into the lab. (Petition, Chap. II at 3-5; April 11 Letter at 21)

R8spoast Inspection Report 8417 5 4(d) states, "[t]he Licensee recognizes that samples that come from the production area may be contammated. Plant procedures caution Chemet Lab personnel that samples may be contami-nated and require the use of appropriate protective clothing for lab per-sonnel." Nuclear Safety Release / Requirement 6.1.0 does not prohibit re-ceipt of contanunated samples; but it does require that containers and equipment in the Chemet La'o be wiped clean of visible contamination. '

NRC inspectors did not observe visible contammation on samples sent to the laboratory from the production area. The Petitioner incorrectly claims that Inspection Report 84-04 substantiates that a violation oc-curred in stating that samples received from the production area for anal-l ysis were found to have external contamination on the containers. The contamination on containers from the production area discussed in In-l l' spection Report 84-04 was not visible contammation, but was determmed by wiping the turface of the container with a piece of filter paper and l

i then measuring the removable contamination with a radiation survey in-strument. Visible contammation was not observed on samples sent from 377 I

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the production area to the Chemet Lab during imannounced visits to the laboratory by the inspector during the periods February 2124,1984, No-vember 27-30,1984, or January 7-11,1985.

With regard to the issuance of the February 19,1985 memorandum by the laboratory manager alerting workers to the acceptance of sample items from the production area with external contamination, its issuance does not alter the fact that the Licensee had no procedures (nor were they required) which prohibited the receipt of visibly contammated sam-pies in the Chemet Lab. In sum, receipt of such samples was not a viola- -

tion of NRC regulations, hcense conditions, or TE procedures.

Inspection Reports 84-04 and 84-17 were correct in concluding that no violation or deviation was identified regarding accepting visibly contami-nated sample vials and p4perwork into the laboratory.

(24) Petitioner believes that the mapector's finding that allegation

"(e)" (concerning deliberate contamination of the work area) could not be substantiated results from inspector misrepresenta-tion of the allegation (Petition, Chap. II at 5-6)

R8'Poa88 With regard to the Petitioner's contention that the inspector misrepre-sented the allegation, attention is called to the Petitioner's interview with an NRC investigator on July 11,1984. On page 190, line 16, of that tran-script, the Petitioner indicated it looked like her work area was deliber-ately being contaminated by someone. On page 255, lines 214, she again indicated that someone was attempting to harass or irritate her by delib-erstely contaminating her work station. The nature of the Petitioner's allegation as stated to the NRC, was not misrepresented.

Contrary to the statement in the Petition, individuals interviewed did not identify the specific individual who was observed using poor work practices by name. The individual wino stated that the Petitioner con-tammated her own work station voluntarily stated he was told this by the Petitioner.

Without witnesses or records to confirm the Petitioner's allegation, the inspector rightly concluded that the allegation could not be substanti-ated. The NRC's review could not conclude that management condones contammation of any work area.

378

(25) Petitioner believes that the inspector rmding that management did not discourage employees from answering questions by NRC inspectors is erroneous. (Petition, Chap. II at 6-8) e Raponse Sectmn 19.15(b) of 10 C.F.R. permits an individual to bring privately to the attention of inspectors, either orally or in writing, any past or present condition which he/she has reason to believe may have contrib-uted to or caused any violation of the Act, NRC regulations, or license conditions, or any na--ry exposure of an individual to radiation from heensed radioactive material under the Licensee's control. It en-ables the worker to bring concerns to the attention of the NRC. It does not prohibit the Licensee from requesting that employees refer questions from NRC inspectors to the appropriate supervisor. Otherwise, a worker may feel compelled to answer an NRC inspector's questions, even though the worker may not have the requisite knowledge in the area.

Nevertheless, the worker is free to talk to an NRC inspector at any time.

The Petition indicates a possible conflict with the number of individuals in Inspection Reports 84-16 and 84-17 who stated that they were told to refer to their supervisor questions asked them by NRC inspectors. There is no confhet in the two reports. Each inspector independently selected twelve laboratory employees to interview. Several individuals were interviewed separately by both inspectors. 'Ihe individuals interviewed during inspection 84-17 were interviewed in private with no other Li-'

censee employee present. They were asked if the Licensee had told them they could not talk with an NRC inspector and that they should not answer the NRC inspector's questions.- Out of the twenty-four interviews conducted by the two inspectors, two individuals indicated that at least once their supervnor told them to refer questions from NRC inspectors to the supervisors, but that they were not discouraged from talking to NRC inspectors. The Petitioner was not one of the twenty-four inter-viewed because she no longer worked at GE at that time. As noted in Inspection Report 84-17 the inspector on a number of inspections at the facility had never encountered a Licensee employee who refused to answer his questions or one who referred the inspector to a supervisor.

Of the twelve individuals interviewed during the inspection documented in Inspection Report 84-17, only two were supervisors or management.

(26) Petitioner believes that the inspector finding that Petitioner's

" posting" allegation is not a violation is legally and factually in 379 l

1 l

1 error because GE failed to post conspicuous notice. (Petition, Chap. II at 8-10)

Response

The Petitioner's contention that a violation should have been issued i

' for failure to post the document required by 10 C.F.R. $ 19.11 is not cor-rect. From a review of the inspection findings, the Region agrees with the inspector that the Licensee was meeting the requirements of f 19.11.

Due to the volume of_ documents required to be posted in accordance with 10 C.F.R. I 19.ll(s), the Licensee properly implemented the re-quirements of 10 C.F.R. I 19.11(b), which states that if posting of a docu-ment specified in subsections (a)(1), (2), and (3) is not practicable, the Li-censee may post a notice which describes the document and where it may be eummed.

The inspector also found that those documents required by 919.11 were conspicuously posted and had been neither defaced nor altered.

Contrary to the allegations of the Petitioner, the inspector did not find that even the portions of the documents visible through the Plexiglas were barely legible during the night hours without improved lighting.

' The inspector found that the postings were legible during night hours, .

although lighting in the area could have been improved. As a result of ~

the inspector's findings, the Licensee agreed to install better lighting in the vicinity of the bulletin boards.

From discussions with inspectors who have inspected GE facilities during the past several years, the NRC found no evidence that the Li-censee made any attempt to monitor or observe personnel reading mate-rials posted.

The Licensee's reduction of the number of locations within the plant where the documents or notices required by 519.11 were posted is not a violation, since posting at the gatehouse fulfills the requirement to post the documents, notices, or forms such that an individual is permitted to l observe them on the way to or from any particular licensed activity.

(27) Petitioner believes that the inspector conclusion that the dump-

. ing of uranium powder outside hoods is not a violation is unten-able. (Petition, Chap. II at 1011)

'. Response The Petitioner's use of the phrase " dumping uranium powder" misrep-

! resents what actually occurs. The operation in question involves use of a

[' 380 l

i I

spatula to remove a small quantity of uranium powder from a sample container and to place the sample on an analytical balance for weighing.

The weighing of uranium powder outside of hoods was prohibited by procedures at the time of the allegation and at the time of the inspection only in the Spectrographic Area of the Chemet Lab. As noted in Inspec- ,

tion Report 85-02, a Notice of Violation was issued for handling uranium 4 powder outside the hood in the Spectrographic Area of the laboratory.

The document referenced by the Petitioner was issued in 1973 and was superseded in 1978 by Nuclear Safety Release / Requirement 6.1.0. There-fore, the Petitioner was in error in stating that GE was " legally bound" to comply with the obsolete document. Further, the inspector never con-cluded that weighing uraniur, powder outside hoods was not a violation.

The inspector did state that from interviews with twelve laboratory per-sonnel he was unable to establish any association between weighing ura-nium powder and sinus problems. The question of the release of fumes into the laboratory and sinus problems was referred to OSHA.

(28) Petitioner contends that the inspector finding on airborne radio-activity having been minimal is based on a GE survey character-ized by the inspector, himself, to be worthless and conflicting with the finding. (Petition, Chap. II at 13-16)

Response

Inspection Report 84-17 states,

[ alt the request of the inspector and under the direct observation of the inspector.

the Lacensee performed a surface conta===een survey in the recirculation system intake ducts prior to the high efficiency filters. The highest survey result was 300

. dpm/100 cm'. These results indicate that general airborne radioactivity levels in the laboratory have been minimal. '!he recirculation system has been in operation since the laboratory started up.

According to Licensee representatives, the ductwork had never been de-

' contammated.

The inspector also found no evidence to substantiate the allegation that an airborne hazard was created by cooling samples outside a hood. In l

I addition, the inspector found that bionssa) data indicated very little uptake of radioactivity by Chemet Lab personnel, is most cases not sig-nificantly greater than the mmimum detectable level for the instrument used for the analysis. In sum, contrary to Petitioner's observation, the in-spection did not find the GE survey to be " worthless," nor did he even question its validity in Inspection Report 84-17.

l

- 381

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(29) Petitioner raises again her allegation regarding failure to place cooling racks under a hood, which was addressed by the NRC in Inspection Report 84-17. (Petition, Chap. II at 13)

Response

The Petitioner's original allegation, which was addressed in Inspection Report 84-17, was that an aarborne radiation h=nrd was created when bubbly hot uranium material was removed from a microwave oven and allowed to cool in the open and not in a vented hood. Three of twelve Lab personnel interviewed indicated that the trays of samples were not cooled under a hood. Ten of the individuals stated that they had not noted any problems with fumes from cooling samples. It should be noted that Calibration and Operation Instruction (COI) 409 required that watch glasses be placed over the crucible while they were heated and cooled, thus reducing the possibility of radaoactivity being released during the cooling process. During tours of the Chemet Lab, the inspector did not observe the cooling of samples outside the hood. The inspector could not substantiate the allegation that "an airborne hanrd" was created by cool-ing samples outside a hood.

(30) Petitioner contends that Inspection Report 84-17 " condemned" GE's bionssay program as " inadequate and deficient." (Petition, Chap. II at 14)

Response

The Petitioner misinterpreted the cited inspection report. The discus-sion referenced in the inspection report pertamed to a question of whether the Licensee performed whole-body counts during the early days of the Petitioner's employment at the plant and the Licensee's ex-planation of why some bionssay data had been omitted from the Petition-er's exposure records. The inspector did not find the Licensee's bionssay program to be unacceptable. 'I1se inspector did not identify noncompli-ance with NRC regulations. The Petitioner's statement that the whole-body counting system was found to be deficient in Inspection Report 84 04 was also incorrect. Inspection Report 84-04 simply stated that the pro-cedure used to calibrate the whole-body counter, although technically adequate, had not been formally approved by plant management.

With regard to the Petitioner's questions regarding the internal man-agement report evaluation of the Semitrex UA-3 analyzer, these findings by the Licensee were the result of its early internal evaluation of the 382

equipment. A review of Licensee's bionssay program and equipment in use, including the Semitrex analyzer, as documented in Inspection Report 85-05, showed the equipment had been operating adequately when used for bionssay analyses and was providing accurate results.

(31) Petitioner claims that Inspection Report 8417 excused GE vio-lations on the basis that " general radiation levels in the lab have been =iaim*L" (Petition, Chap. II at 14)

Response

In fact the cited report stated that a particular survey indicated "that general airbome mdioactiviry levels in the lab have been minimal" (em-phasis added). As noted in the report, the flow of air from the micro-wave oven area was toward the Chemet Lab recirculation ventilation system. If airborne radioactivity had evolved from the cooling of sam-ples, it would either fall out on the floor along the path of the air flow or be taken into the recirculation system. Contamination surveys per .

formed by the Licensee and reviewed by the inspector indicated that sur-face contamination was not identified along the air flow path. Addition-ally, surveys in the recirculation system housing before the high-effi-ciency filter indicated that there had been no buildup of significant amounts of uranium in the housing as the result of airborne radioactivity in the laboratory. Years of operation of the recirculation ventilation system without a buildup of contamination in the ducts is a valid method of =====mg the extent of airborne radioactivity in the laboratory. The inspection report stated that the single air sampler may not be adequate to measure the concentration to which individuals were exposed while

- working at some stations where loose powder was handled. The inspec-tion report further stated that even if the Licensee could produce evi-dence of an evaluation and could prove that the single air sampler in the laboratory was represent.tive of the concentrations to which individual workers were exposed, it would not be relevant, since modifications of the Chemet Lab exhaust ventilation system could have altered the flow in the laboratory.

He Petitioner argues that the findings noted in Inspection Report 84-04 contrast sharply with the results in Inspection Report 84-17. He fact that the surface cont mination levels ranged from 317 dpm/100 cm8 to

$100 dpm/100 cm8 is not unanticipated when one considers the various operations being performed in the Chemet Lab. Since the inspections were done at separate times it is not surprising that the results would be different. He Petitioner also tries to equate airborne survey results with 383

l surface contamination survey resuks, although the two surveys are not equivalent.

(32) Petitioner believes that the inspector finding in Inspection Report 84-17 that GE had not violated safety rules by removing posted instructions concermng required monitoring of small items when removed from controlled areas cannot stand. (Peti-tion, Chap. II at 16-17)

R8P888r The Petitioner's contention that GE violated safety rules by not post-ing requirements concerning monitoring of paper, notebooks, and per-sonal items removed from the laboratory is invalid. The Procedure (SOP 0.3.4) referenced in the Petition as requiring the maintenance of a " log for clearance of small items from the lab" was not in effect at the time the allegation was made. Discussions with r Mm representatives and reviews of f_ie-=a- ' records andacate that this 1973 procedure was re-placed in 1978 with NSR/R 6.1.0. There was no regulatory requirement that the instructions be posted. Additionally, as stated in the Inspection Report 8417, the inspector did not observe anyone removing items from the laboratory without monitoring them.

(33) Petitioner contends that the inspector failed to make a proper finding concerning GE's "out of control" testing requirements.

(Petition, Chap. II at 22-23)

Rayonse The Petition states that the number of "out-of-control" measurements was naaeraptably high, in that 104 out of 1197 (or 9%) and 5 out of 32 ,

(or 16%) exceeded the 0.05 control limit and one out of 1197 exceeded the 0.001 control limit. The Petitioner asks "what happened to the obvi-ous, suhrtantlye, violation of 70.51, 70.57, and 70.58. . 7" Licensees are required to establish statistical control limits at the 0.05 and 0.001 level of significance and NRC inspects to assure that those re-quirements are met.

The =,+:tkas documented in Inspection Reports 84-15 and 8416 I

were conducted, respectively, by a specialist in nondestructive assay and a chemist. The scope of these inspections was to determine whether the l-l Lka- had taken appropriate action when control limits were ex-ceeded. One inspection revealed that the Licensee had taken all system-384 l

\

4 related actions that were required but failed to make a notification; there-fore, a Notice of Violation was issued in Inspection Report 84-16. As part of both inspections, NRC evaluated the data subjectively at the time the reports were issued and concluded that 104 of 1197 and 5 of 32_ meas-

! urements outside the 0.05 control limits and one of 1197 outside the 0.001 control limit were not of sufficient stati=*e=1 sipf' =e to establish that the limits were unreasonable. For this reason, no other Notice of Viola-l tion was issued. ,

l The data from Inspection Report 84-15 could not be renalyzed, be-cause they represented a composite set of data from several instrunnents.

However, the Lk=~'s original data were r====iaad and rannalyzed again during an inspection documented in Inspection Report 85-17. This inspection confirmed that the LL-- was accurately calculating con-i trol chart limits for the enrichment analyzers. Dunng inspection 8517, l control data for enrichment analyzers for the period February 1983 to October 1985 were analyzed. Eight cases were identified where the ob-served number of measurements which fell outside the control limits dif-fered from the number predicted by theory. In five of those cases, the Licensee had established limits tighter than required, which resulted in better control than required by NRC. In the other three cases, the ob-served number of measurements outside the control limits differed from the theoretical value by only one measurement in two cases and by three measurements in the other case. Statistically, the hypothesis that the con-trol chart limits are stated accurately is supported by the data. Based on the above, the Petitioner's contention is incorrect.

(34) Petitioner objects to the fact that Inspection Report 84-15 finds that the password system is "' reasonably protected from unau-thorized changes

  • and that Mrs. English's ' concerns' were there-fore 'not substantiated.'" (Petition, Chap. II at 30)

! ResPoa8e As reported in Inspection Reports 84 05, 84-15, and 85 06, several weaknesses in the Lk-~'s overall internal program for controlling and using password-designated accessibility to computer information have been ideatified. Once apprised of these weatr=*==*a, the Li-a- took '

prompt and effective corrective action. It should be noted, however, that the Licensee's control of passwords for the identified computer equip-ment was and is solely to protect company propnetary information and processes. No NRC regulations require the Licensee to have specific protective measures, such as password control, to protect this type ofin-l 385

formation. Accordagly, no enforcement action was taken concerning the lack of password control.

(35) Petitioner claims that knowledge of the Wieczorek Report would have led the inspector to the same conclusions about en-richment analyzer calibration as reached by her. (April 11 Letter at 8-11)

RaPon8e As reported in Inspection Reports 82-18, 84-05, 8415, and 84-16, during an NRC review of the LH~'s internal investigation (Wieczorek Report) reported in Inspection Report 85-12, lyzer was properly calibrated following a detector change,the s .

The Petitioner has incorrectly characterized the i h's employees' interpretation of the procedure. The NRC has never reported or indi-cated in any way that only one " counting of the standard ** was required to constitute a properly calibrated and " ready to use" analyzer. 'Ilie NRC interviewed the author of the procedure to positively remove any element ofinterpretation and then venfled that the calibration in question was properly performed using the procedureM6d combinations of calibration stendards and verification standards. The highest standard was analyzed for an aggregate total of six times before the certification of equipment function, stabilization, and the counting release of unknown samples, consistent with the intent of the author of the procedure.

l (36) The Petitioner contends that the inspectors obtamed information about calibration /venfication legs, as reported in Inspection Re-ports 84-05 and 84-16, solely from Li~a= statements and with-out reviewing procedures or previous '=-+-:ke reports' that referenced a violation in sum!ar related areas. (April 11 Letter at 1112)

( Ravnst The inspectors interviewed il~am pewd reviewed procedure COI 411, and emanuned the referenced calibration / verification log for the period under review. The NRC Staff admits that the varying nomen-clature used in the inspection reports regardmg log books may have con-fused the reader, but calibration / verification logs and equipment support shift logs are two different log book references.

386

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Regarding the calibration / verification log, the inspector interviewed LM- personnel relative to maintenance of the log, examined the log book for the period referenced by the Petitioner, and reviewed proce-dure COI 411. The persons interviewed were the laboratory manager, two laboratory supervisors, a licensmg specialist, the measurement con-trol specialist, and three Lab techmcans, all of whom were cc,seide to be very knowledgeable regarding laboratory operations. As a result of these interviews, procedure reviews, and document reviews, the inspec-tor concluded that the calibration / verification log was maintained as re-quired.

The inspector's review of Procedure COI 411 determined that log maintenance was required for standard changes and amplifier settmg changes but was not required for the routine recording of calibration /

verification counting data. Therefore, the LH- was found to be in i

compliance with the operating procedure. The fact that the Licensee did l

not record verification / calibration data during penods when production samples were not being run was not a violation.

Equipment support shift logs, which are different from the calibration /

venfication logs, are maintamed by the Technical Equipment Support Unit for a variety of reasons, including trend analysis of equipment fail-ure. These logs were reviewed by inspectors in an effort to obtain addi-tional information relative to the Petitioner's concerns about improper removal of an out-of-service tag. Equipment support shift logs are not required to be maintamed by Licensee's procedures or NRC regulations.

The findags in Inspection Report 84-05 are not related to calibration and venfication data recordings that qualify an analyzer for production

' use. Those results dealt with a different analytical technique having dif-ferent pica.1 requirements.

(37) The Petitioner asserts that the Wieczorek Report substantiated the allegation that "calibra: ion and verification were not com-pleted before samples were run and material released during 8/

20/82 and 6/22/83 and that this is in "irreconcdable conflict" with NRC inspection reports. (April 11 Letter at 13)

! Raposse Wieczorek and NRC inspectors determmed that the Licensee's Proce-dure COI 411 was worded such that several interpretations were possi-ble, but each took a different approach in reviewing this allegation.

Wieczorek made his own independent interpretation of the intent of the procedure, whereas NRC inspectors interviewed the author of the proce-387 1

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dure and several technicans who used it to determme the Licensee's in-tended meanmg. The Wieczorek interpretation and the Licensee's in-tended meanmg were diffs: rent. Either method ofimplementing this pro-cedure would have been acceptable to the NRC. Since it was the Licens-

' ee's procedure, NRC used the Licensee's intended meanmg and deter-mined that no violation had occurred.

(38) The Petitioner believes that the "Hendry Report" should have led to other than "no violations" findings by inspectois regard-ing the following matters -

(a) the microwave oven leak problem (Hendry Report at 24);

Response

This concern of the Petitioner regarding the microwave oven pertams to the removal of a shield which could result in the leakage of micro-waves out of the oven during operation. This area is outside the purview of the NRC and was turned over to OSHA to follow up. As noted in Inspection Report 85-02, discussions with twelve laboratory employees failed to substantiate the Petitioner's allegation that fumes are given off during the processmg of samples. In addition, observations by the inspec-tot during the processmg of samples failed to disclose any enussion of l fumes while samples were being heated.

With regard to the violation of requirements of Job Hazard Analysis (JHA) CL-JHA-12, it should be noted that the JHA for routine analyses performed in the laboratory is not a procedure required by NRC regula-tions or license conditions. Therefore, failure to adhere to this document would not be a violation of NRC requirements. During a subsequent in-spection, inspectors reviewed the Hendry Report and determined that even if they had seen it before the inspections, the results of those in-

spections would not have been different.

1 (b) housekeeping of the lab (Hendry Report at 26,28);

Responsr The violation cited in Inspection Reports 84-15 and 85-02 pertained to a failure of the Licensee to clean up spi!!s in the Chemet Lab immedi-ately and did not address general housekeeping in the laboratory. The reference to housekeeping in the Fuel Manufacturing Area in Inspection Report 81-11 for the most part is irrelevant to the discussion of house-keeping in the Chemet Lab. Only in a broad, laboratory-wide, general i 388

f sense is housekeeping in the Fuel Manufacturing Area relevant to house-keeping in the Chemet Lab. The discussion of " powder on the floor" in Inspection Report 82-10 was the result of a change-out of a high-effi-ciency filter in the exhaust of a powder-handling enclosure in the Fuel Manufacturing Area. His discussion also is not relevant to activities in the Chemet Lab. As stated previously the contammation above action levels found during the special survey reported in Inspection Report 84-04 did not represent a significant hazard. He Lkaa- took prompt action to reduce the levels below the action level.

The Petitioner combined several unrelated events and concluded in-correctly that housekeeping in the Chemet Lab was a " substantive viola-tion."

(c) spills in the lab (Hendry Report at 30);

Raponse See again 13.b(17).

1 (d) surface contamination (Hendry Report at 31-33);

Raponse The Petitioner is correct when stating that swipes and sm-ars can measure only loose surface contammation. However, the Petitioner is in-correct in the nuaument of the significance of fixed contammadon meas-urements in the Chemet Lab. Measurements performed by the inspector and the Licensee indicated that fixed contamination levels in the Chemet Lab are low. Additionally, fixed uranium contamination is not in itself a c

safety hazard, because the direct radiation levels are low. Fixed contami-nation will not result in personal contammation if brushed against and w31 not become an sirborne radioactivity hazard in normal laboratory operations.

The surveys performed frequently in the Chemet Lab provide ade-7 i quate evaluation of surface contamination hazards in the Chemet Lab.

The total amount of surface contammation present on a surface may be undenestimated if only removable contanunation surveys are performed.

However, in the case of uranium, the amount of fixed contammation re-maining after the removal of visible contammation is small and, as previ-ously stated, does not constitute a radiological hazard. Therefore, in terms of radiological significance, the use of removable contamination 389 l

l I

surveys was reasonable under the circumstances to evaluate the extent of radiological hazard.

(e) installation of sufficient air samplers (Hendry Report at 33-34);

Response

See 13.c(4).

(f) radiation safety training (Hendry Report at 34-35).

Response

In Inspection Report 81-11, the inspector documented a discussion with the L6a~ regardmg an IE information notice about geotropen, which is the difference in response resulting from different orientations of the survey instrument during a survey. The Licensee mdicated that specul training on this topic would be given to radiation safety techni-r cians in the event they needed to use instruments affected by geotropism.

l However, there is no reason to believe that geotropism had any bearms on the ra<hanon safety technicun's ability to detect contammation at the Petitioner's work station on March 5,1984.

Observations by the inspector during a number ofinspections indicated that radiation safety techmcians did, in fact, know how to use radiation survey instruments.

The Petitioner's statements that the general employee and radiation safety training were inadequate are not correct. The reference to em-ployee safety training in Inspection Report 82-10 was a recommendation that the Licensee modify its traming to improve the presentation. The training met the requirements of 10 C.F.R. I 19.12 in content.

The statement in Inspection Report 84-17 concernmg survey tech-niques used by techmcuns did not imply that techmcian traming was in-adequate but that the traming should be expanded to include familiariza-tion with Chemet Lab operations so as to improve survey techniques in the Lab.

l (39) Petitioner alleges that contammation on the switch box and on the legs of her table were cleaned up at the command of super-vision before Radiation Safety was called. (April 11 Letter at 35) 390 i

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The NRC was unable to verify the Petitioner's statement that the l switch box and legs of her table were cleaned before calli ~ng Radiation Safety and, therefore, was unable to substantiate the allegation.

(40) Petitioner claims that the Hendry Report provides some ne v -

evidence about frisker violations. (April 11 Letter at 37)  ;

s f A r RelFNs* ,

See 13.c(1)(a) for a discussion of frisking.

p

c. Improper Enforcement (1) In regard to Inspection Report 84-04, Petitioner -

~

(a) believes that Sevuity Level V should have been Level I (regarding failure by GE to follow survey procedure when rtiting controlled area). (Petition at 8)

Resposar <

< t i

It is a prudent, well-established ir.distry practice for individuals to survey themselves for contammanna when leaving potentially contand-nated areas. The Licensee has incorporated this practice into plant proce-N dures. Individuals frequenting t!ae controlled area have been tramed in the proper methods to comply.with this requirement. Appropriate survey '

instruments have been placei at the exit points for performms such sur ,

veys. Notices that such surveys are required are posted conspu:uously at J exits from potentially contaminated areas. In addition U~a= repre- ,

sentatives pe_riedkelly observe survey techniques and conduct unan- , i' nounceo spot-check surveys of individuals after they have performed self-monitoring and have left the Chemat Lab as well as od er controlled areas. Disciplinary actions cra be and have been taken by the Licensee agamst an individual who fails to surtey or who surveys ina,iisily.

'Ihe above actions show that the U~a= was acting responsibly, I

Despite possible disciplina:y actions, there may be occamens when an f

individual neglects to survey upon levint; an area. Without an lad =*irvi that an individual knowingly failed to suivey, such circumstances are not considered willful acts on the part of the U , but are consulered violations of the Lixasee's procedures. Consequently, a Notice of Viola-tion for failure to follow procedures at the appropriate severity level

would be issued if observed by an NRC inspector.

i '

391  ;

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, As noted in Inspection Report 84 04, a Notice of Violation (Severity v Levd V) wu issued because of two individuals who failed to perform

,4 '

personal comfmination e monitoring in accordance with plant procedures.

nese individuals were visitors to the Chemet Lab, not regular labora- ~

tory employees.

The Petitioner's statement is incorrect that the LM- contended and the NRC accepted the contention that laxness and even violation of the self. monitoring procedure for the Chemet Lab would be excused "be-cause of the lower probability of personnel being concaniaated." A Li-i

' <wa=* representative did state, as noted in the inspection report, that in-adequate attention may have been given to the Chemet Lab because of

, the lower probability of personnel becoming contammated. This state-

' ' ment was made in tim cuntext of a discussion of the actions taken by the Licer.aec to ensure that persontcl leaving the Fuel Manufactunng Area, where the potential for an individual becoming contamiant*<I is signifi-cantly greater, properly surveyt3 themselves. The L*-- noted that while concentratmg on t'.ne Fuel Manufactunng Area it unintentionally may have overlooked a simibr problem with personnel leaving the Chemet Lab.

9 It should be noted that the violation was issued as a Severity Level V, which, according to the NRC Enforcement Policy, is reserved for mat-ters thst have minor r,afety siv&===. Contamination levels in the Chemet Lab ware low and those individuals who failed to survey were found not to be contand.tated. Observations by the inspector of many in-p dividuals leaving contamination-cortrolled areas during the inspection

!' ~

showed no other examples of failure to survey. In 1984 approximately 1000 spot-check surveys were performed plant wide by the Licensee's j Radiation Safety Group, including several spot. checks at the Chemet t_ Lab exit. Only one individual was found who exceeded the contamina-i tion release limit for personnel. This. individual came out of the Fuel Manufacturing Area, not the Chemet Lab. His'is indicative of the low potential for personnel contammation in the facility as a whole.

During the review of this report, NRC regional management correctly concluded that failure to follow the personal survey procedure was an

., a isolated incident of minor safety significance. Therefore, the violation was categorized appropriately as a Severity Level V.

(b) in regard to GE's failure to calibrate whole-body counters, observes that the Director, IE -

(i) did not discuss the severity level of violations or de-termine whether they were willful; l'

392 L

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l (ii) did not determme whether violations were discov-ered and reported by GE or instead by the NRC, although crucial to the imposition and quantum of

- penalty; and, (iii) did not explain or attempt to rationalize his failure to find a violation.

(Petition at 10-12)

. Response As was pointed out in the response discussed under 13.b(2)(b), above, no violations were found.

(2) Petitioner makes the general comment that findings in inspec-tions were illegally assigned the lowest categories of severity levels, i.e., never more than a IV or V. (Petition, Chap. I at 2)

Response

It is true that all violations referenced by the Petitioner were Severity Level IV or V. All violations were properly categorized in accordance with the NRC Enforcement Policy,10 C.F.R. Part 2, Appendix C, or the Enforcement Policy in effect at the time of the violation.

(3) Petitioner maintains that the aggregate of the violations cited should have resulted in assignment of a Severity Ievel I and civil penalties. More specifically, she asserts that the alleged

" careless disregard violation," at a mimmum, should have been a Level II violation. (Petition, Chap. I at 16)

Response

The NRC has reviewed the violations noted in the =5+*.= reports performed by Region II for the period 1981 through the first half of 1985 and has found that the Region' properly assigned the Severity Level to these violations, using the Enforcement Policy in effect at the time of the violation. With regard to those issues raised in the Petition for which the Petitioner felt the LM- should have been cited for a violation, the Region properly determmed except as described herem that these issues were not violations of license conditions or other NRC requirements.

The NRC found that at the time the allegations were made the Licens-4 ee's radiation protection program was effective overall. The violations 393

P cited were indadans that the Licensee had areas where improvements were n**darl The violations apparently were not the result ofintentional or careless disregard c,f regulations on the part of the Licensee, but were a failure of the LWa* to adequately review and implement a com-pletely effective radiation protection program in the Chemet Lab. There-fore, there was no " careless disregard" violation, as alleged by the Peti-tioner.

Furthermore, the Petitioner misapplied a section of the Enforcement Policy in stating that elements of the radiation protection program con-stituted "a system designed to prevent or mitigate a serious safety event

[from] being able to perform its intended safety function" (10 C.F.R. Part 2, Appendix C, Supp. I). This particular section of the Enforcement Policy generally does not pertam to a radiation protection program. Ra-distion protection occurrences generally are categorized using Supple-ment IV of the NRC Enforcement Policy.

The violations were assigned the appropnate severity level in accord-an e with the Enforcement Fulicy. It is noted that the Petitioner incor-rectly assumed that an individual received a cumulative radiation expo-sure above regulatory limits. Even if the violations identified during each inspection had been aggregated, they would not have been sufficiently sigmficant to justify a higher severity level.

(4) Petitioner makes reference to the alleged failure of GE to follow NRC advice on the air monitor, which in the Petitioner's view l also should have led to an increased severity level. The Petition-er further noted that the air monitors are now matalled at the wrong height and that the defects noted in Inspection Report 84-17 discredit all GE air intake contamination surveys. Also, dete-ioration of clemnhness, addressed in Inspection Report 81-11, should have led to a finding. (Petition, Chap. II at 23 26) l RmPo*8r In reviewing operations in the Chemet Lab during Inspection 84-13, the inspector observed only one sampler in the Wet Lab area. It ap-peered that this sampler was not located in such a manner as to provide representative air samples. The Licensee contended that there was docu-mentation of an analysis that showed the location to be suitable and stated that it would retrieve the information from document storage.

This issue was identified as an unresolved item pending review of the Li-censee's documentation as to the suitability of the sampling results.

! 394 l

--*-W ve-,++v-

As noted previously, an unresolved item is one for which more infor-mation is needed to determine whether the item is acceptable or may in-volve violations or deviations. Until the issue is resolved, the Licensee is not required by NRC regulations to take corrective actions. In a subse-quent inspection (84-17), the inspector issued a Notice of Violation for improper sampler location, because the Licensee was unable to provide documentation showing the sampler location to be suitable.-

The Petitioner's contention that the lack of air sampling discredits all

' elements of protection for Chemet Lab employees is without merit. It should be noted that the failure to provide suitable air sampling does not affect the quality of the results of other control and monitoring systems, such as removable contammation surveys, urmalysis results, or lung counts.

With regard to the Petitioner's comments about cleanliness, the inspec-tor's comment in Inspection Report 8111 referred to housekeeping and cleanliness in the Fuel Manufacturing Area, not in the Chemet Lab. No

- NRC requirements specifically address an acceptable level of housekeep-ing or cleanliness, so Notices of Violation were not issued in that regard.

(5) Petitioner holds that collective reports should have been for-warded by Region II to Headquarters, NRC, for collective review and hence assignment of Severity Level I. (Petition, Chap. II at 31)

Response

Part 2, Appendix C, IIII states: "In each case, the severity of a vio-lation will be characterized at the level best suited to the significance of the particular violation. In some cases, violations may be evaluated in the aggregate and a single severity level assigned for a group of violations."

Similarly, Appendix C, i V.B. states that " civil penalties . . . are consid-ered for Severity Level III violations and may be imposed for Severity Level IV violations that are smular to previous violations for which the licensee did not take effective corrective action" (emphasis added, foot-note omitted). 'Iliere is no requirement that the severity level must be increased by considering violations collectively over several inspection reports. The NRC did, in the instances referenced, consider whether the violations as a group identified during an inspection indicated a trend or program breakdown for which escalated enforcement was appropriate.

The conclusion was and is that the violations were not of the level of safety significance equivalent to those items listed as examples of Sever-ity Levels I, II, or III in Supplements IV and VI of the NRC Enforce-395 b

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ment Policy. He significance of the violations, even in their totality, did not justify referring the matter to Headquarters, and certamly did not justify a Severity Level I categorization.

396 4

  • u.S.CQvCatsE47 pa!4fing crr!CC 1987-181-677:40013 i

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