ML20080U147

Motion for Summary Disposition of Joint Intervenor Contention V Re Continuous Air Monitors & Portable Air Samples.No Genuine Issue of Matl Fact Exists & Applicant Entitled to Favorable Decision.Related Correspondence

ML20080U147
Person / Time
Site:	Harris
Issue date:	02/27/1984
From:	Patricia Anderson CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20080U150	List: ML20080U147 ML20080U168 ML20080U179
References
ISSUANCES-OL, NUDOCS 8403020182
Download: ML20080U147 (14)

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RELATED CORRESPONDENCE Febru[b h f 1984

'84 ER -1 All :47 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION , .,,_m ...

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

%: e, In the Matter of- )

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. CAROLINA POWER &-LIGHT COMPANY)

AND NORTH CAROLINA EASTERN ) Docket Nos. 50-400 OL

MUNICIPAL POWER AGENCY ) 50-401 OL

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(Shearon Harris Nuclear-Power )

Plant, Unita l'and 2) -

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' APPLICANTS' MOTION FOR

SUMMARY

DISPOSITION OF JOINT INTERVENORS' CONTENTION V (CONTINUOUS AIR MONITORS AND PORTABLE AIR SAMPLERS)

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- Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency ("Applicantis") hereby move the Atomic Safety and Licensing Board, pursuant =to 10 C.F.R. 52.749, for summary disposition in Applicants' favor of Joint Contention V.

g For the reasons set forth herein, Applicants respectfully sub-mit-that there is no genuine' issue as to any fact material to Jo' int Contention V, and that Applicants are entitled to a deci-sion in their favor on Joint Contention V as a matter of law.

8403020182'840227 PDR ADOCK 05000400 0 PDR So' )

This motion is supported by:

1. " Applicants' Memorandum of Law in Support of Motions for Summary Disposition on Intervenor Eddleman's Con-tentions 64(f), 75, 80 and 83/84," dated September 1, 1983;

2. " Applicants' Statement of Material Facts As To Which

-There is No Genuine Issue To Be Heard On Joint Contention V"; and

3. " Affidavit of Dr. William H. Wilkie" and Attachment A affixed'thereto.

I. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

-Joint Contention V alleges that Applicants intend to cali-

.brate continuous tir monitors (" CAMS") and portable air sam-plers only-once annually,=that this is insufficient to ensure accuracy in the event of an emergency, and that Applicants should be. required to inspect and calibrate these monitors and

. samplers frequently enough to ensure accuracy within + 5 per-

-cent. The wording of Joint Contention V accepted by the Board is stated as follows:

Applicants intend to calibrate and inspect continuous air monitors and portable air sam-plers only.once annually. Said infrequent inspection and calibration appears inadequate to assure'the ability to provide accurate monitoring in the event of an emergency. Ap-plicants should be required to inspect and calibrate these monitors and samplers fre-quently enough to assure their accuracy

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within plus or,minus 5' percent in the event that they are needed.

On January 31, 1983,; Applicants propounded their first set

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of interrogatories on Joint Contention V to the Joint Interve- ,

ncrsT s Those interrogatories were designed to discern the basis of Joint Intervenors contention and to determine what measures Joint.Intervenors believe -to be necessary to ensure appropri-

~ ate responses-in emergency situations.. " Applicants' Interroga-tories and Requestffor Production,of Documents to Joint Inter-venors (First. Set),'" dated January 31, 1983. On March 18, 1983, the Staff:also addressed interrogatories to the Joint In-tervenors with regard to Joint Contention V. "NRC Staff Inter-irogatori,es'to' Joint Intervenors," dated March 18, 1983.

The Joint Intervenors' responses to Applicants' first set of interrogatories and to the Staff's interrogatories demon-p strate a lack.of understanding of the use of CAMS and portable airtsahplers and their role in' emergency response procedures.

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'In addition Joint Intervenors, in their discovery responses, are notably vague about the-measures that Applicants could take to satisfy Joint Intervenors' concerns. For instance, Joint Intervenors have stated that they would not withdraw their con-tention even if Applicants-demonstrated compliance with the o

provisions 1of NRC; Regulatory Guide 8,.25 which specifies calibration procedures and error limits for air sampling in-

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'struments. Jcint1Intervenors' Response to Applicants'

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Interrogatories and Request for Production of Documents to Joint Intervenors (First Set)," dated March 29, 1983, Responses to Interrogatory V-1(a). Yet Joint Intervenors have completely failed to provide a responsive answer to a Staff interrogatory about any perceived deficiencies in Regulatory Guide 8.25, stating " Wells Eddleman doesn't possess RG 8.25. Travis Payne has looked for it and cannot locate it. We will supplement when we'get a copy." " Joint Intervenors' Response to Staff In-terrogatories," dated August 31, 1983, Response to Interrogato-ry 24. Joint Intervenors have never supplemented this response and have never articulated any justifiable reason for their

-dissatisfaction with the standards set forth in Regulatory Guide 8.25.

Joint Intervenors also took advantage of the discovery

_ process to pose detailed interrogatories to Applicants and the Staff. " Joint Intervenors' Interrogatories to Applicants on Contentions IV, V and VI (First Set)," dated June 27, 1983;

" Wells Eddleman's Interrogatories to NRC Staff (First Set),"

dated May 6, 1983. Applicants and the Staff provided Joint In-tervenors with detailed responses to their relevant interroga-tories. " Applicants' Responses to Joint Intervenors' General l

l' Interrogatories and Interrogatories on Contentions IV, V and VI to Applicants Carolina Power-& Light Company, et al. (First bet)," dated August 1, 1983; "NRC Staff Reponse to Interrogato-ries Dated May 6, 1983 Propounded by Wells Eddleman and Joint Intervenors," dated June 24, 1983.

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After supplying Joint Intervenors with the information sought:in their interrogatories, Applicants served their second set of interrogatories on the Joint Intervenars. " Applicants' In'terrogatories and Request for Production of Documents to

. Joint Intervenors (Fourth, Set),"-dated October 12, 1983. These interrogatories were' designed to clarify some'of the concerns alluded to in Joint Intervenors' discovery requests and re-

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sponses andLto follow up on'those areas in which Joint Interve-nors had been-. unresponsive during the first round of discovery.

-Rather than responding, or even objecting, to those interroga-tories, the. Joint Intervenors chose simply to ignore Appli-

. cants' discovery requests.

After receiving no response or other communications from the Joint Intervenorsl1 Applicants'took the initiative to con-tact. counsel'for Joint'Intervenors and offer an-extension of

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time. The~ Joint Intervenors refused Applicants' offer and

stated, throughstheir counsel,I that they would be unable to re-

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spond.to'discove'ry requests until'after the environmental hear- ,

ing,' than scheduled to begin on : January 24, 1984. At that q

point,.Anplicants were forced to. file a motion to compel dis-coveryifromLthe' Joint Intervenors. " Applicants' Motion to Com-pel Discovery on Applicants' Interrogatories and Request for ProductionLof Documents:to Joint Intervenors (Fourth and Fifth Sets)," dated-November 17,-1983. The Board granted Applicants' p' motionjon Novemberf29,'1983,- and ordered Joint Intervenors to um A

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. respond'to Applicants' interrogatories by December 9, 1983.

" Memorandum and Order (Ruling on Discovery Disputes Between Ap-plicants and Joint Intervenors)," dated November 29, 1983. On December 12,.1983, . Applicants received a copy of a letter frou -

counsel-for Joint'Intervanors, dated-December 9, stating that

" Joint.Intervenors have been unable to comply with the Board's Order of November 29, 1983, regarding Discovery on Joint Con-

'tentions IV, V and'VI." "Unfortunately, the press of other business prevented us from preparing a response." Letter of M. Travis Payne, dated' December 9, 1983.1/ As of this date, Joint Intervenors have not made any further effort to respond to Applicants' second round of discovery on Joint Contention V or to supplement.their incomplete responses.to Applicants' 7

first. set of requests.

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Joint Intervenors' failure'to comply with the Board order is grounds for sanctions, including dismissal of the conten-tions at issue. Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C. 452, 454 (1981); see also Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 1), ALAB-719,;17 N.R.C. 387.(1983); Public Service Company

.of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-20A, 17 N.R.C. 586, 590-(1983). Applicants have moved for summary disposition rather than imposition-of sanctions because, not-withstanding Joint-Intervenors' egregious failure to fulfill-

-their_ discovery. obligations, it is manifestly. clear at this

. time that no genuine 11ssue of material fact exists with respect to Joint Contention V.

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b II. TIMELINESS A motion for summary disposition may be filed at any time in the course of a proceeding. Wisconsin Electric Power Company (Point Beach Nuclear Plant, Unit 1), ALAB-696, 16 N.R.C. 1245, 1263 (1982); see also 10 C.F.R. 52.749(a). In the instant case, Joint Intervenors have had more than 17 months in which to conduct discovery on the issues raised in Joint Con-tention V. .Yet, as discussed above, they have failed to take advantage of their opportunity to propound a second round of interrogatories to Applicants and have abdicated their own dis-covery obligations.by failing to respond to Applicants' inter-rogatories, even when ordered to do so by the Board. Further-

.more, Joint Intervenors have known since February, 1983 that

. Applicants intended to file for early summary disposition on this contention. See " Memorandum and Order (Ruling on Discov-ery Dispute Between Applicants and Joint Intervenors)," dated November 29, 1983. Thus, the instant motion is timely and the subject. contention is ripe for summary disposition.

III. ARGUMENT Joint-Contention V alleges that Applicants' program for calibrating and inspecting CAMS and portable air samplers is

-insufficient to ensure that accurate monitoring will be per-formed during emergency situations. Joint Intervenors contend a

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that Applicants should be required to inspect and calibrate their monitoring equipment frequently enough to maintain accu-racy within 1 5 percent. As the foregoing Statement of Facts indicates,. Joint Intervenors' responses to discovery have shed little light on the basis for this assertion. To the extent that it is possible-to interpret Joint Intervenors' responses  ;

to discovery' requests propounded by Applicants and the Staff, it appears that Joint Intervenors believe that: 1) Applicants are required to calibrate CAMS and portable air samplers month-ly because monthly calibration and inspection will ensure accu-racy of 1 5 percent and 2) that this degree of accuracy is nec-essary to ensure-appropriate responses to emergency conditions.

See " Joint Intervenors Response to Applicants' Interrogatories and Request for' Production of Documents to Joint-Intervenors (First Set)," dated March 29,'1983, Responses to Interrogato-ries V-1,RV-2 and V-3. Neither of these allegations has any basis'in fact because each is premised on a misconception of the function of CAMS and portable air samplers and the roles

'those instruments play in Applicants' emergency response pro-gram.

The affidavit of Dr. William H. Wilkie (" Wilkie Affida-vit"),; attached hereto, discusses each of Joint Intervenors' assumptions in detail and. demonstrates that there is no basis in' fact for any.of the concerns implied in Joint Intervenors'

. responses to discovery. Dr. Wilkie holds a Ph.D. in nuclear

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engineering and'has professional experience in a wide range of health physics. areas, including aerosol physics, internal dosimetry.and emergency preparedness. His affidavit, made on the basis of this extensive background in t'he field and person-al' familiarity with Applicants' programs demonstrates conclu-sively.that Joint Intervenors' vague assertions lack any factu-al support whatsoever. .He also demonstrates that Applicants'

- program for using, inspecting and calibrating CAMS and portable air samplers complies with all applicable -agulatory guidelines and with standards recognized by the authorities in the field and is sufficient to ensure the health and safety of plant per-sonnel and the public during emergency conditions.

As-discussed in the Wilkie Affidavit, Applicants intend to calibrate CAMS and portable air samplers once every six months, rather than once a year as originally stated in Applicants' FSAR. Wilkie Affidavit at 17. This commitment to semi-annual calibration.is in accord with the recommendation of Regulatory

' Guide 8.25.- Id. at:111. Joint Intervenors have indicated,

however, that. compliance with Regulatory Guide 8.25 does not ensure thatiworkers will be adequately-protected in the event ofIan emergency situation. 'According to Joint Intervenors, s

Regulatory Guide.8.25 is inadequate because it allows a cumula-

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tive.orror in air flow calibrations of 1 20 percent, a range greater.than the 1 5 percent accuracy that Joint Intervenors ur <

allege is required.

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c As Dr. Wilkie has stated, however, Joint Intervenors' be-lief that accuracy within 1 5 percent is necessary simply has no merit. -Joint Intervenors have asserted that the ALARA stan-dard requires such accuracy. Yet ALARA is completely inappli-cable to Joint Contention V which deals with emergency situa-tions, not routine operations. Id. at 112. Furthermore, the ALARA criterion is achieved primarily by precautionary measures such as procedure review, design analysis and personnel training rather than by measurements made at the time work ac-tually is performed. Id. Thus, the only grounds cited in Sup-port of Joint Intervenors' assertion of a 1 5 percent accuracy requirement is completely irrelevant in the context of Joint Contention V.

In addition, ensuring that CAMS and portable air samplers are always within 1 5 percent of the calibrated air flow would not likely result in any improvement in Applicants' ability to protect the public or plant personnel during emergency condi-tions. Id. at 115. Joint Intervenors' allegation that such accuracy _is necessary reflects a serious misunderstanding about

-the operation of CAMS-and portable air samplers. In the first

place, CAMS and portable air samplers have different functions and are not interchangeable, as Joint Intervenors seem to be-lieve. CAMS are classified as non-safety related equipment.

Id. at 14. They merely indicate the presence of airborne radioactivity in concentrations that warrant investigation, and

u do not accurately determine the concentrations or identities of thefradionuclides in the mixture. Id. An alarm on the CAMS merely provides notice that further evaluation is in order.

o Id..at 115. Thus, because CAMS provide qualitative information on: relative-levels of radioactivity, ensuring a 1 5 percent ac-curacy'in their measure of air flow rate would not result in

- any improvement in emergency responses. Id.

Portable air samplers do provide data that can be analyzed for an accurate' determination of the concentration of airborne radionuclides. Id. at 15. A portable air sampler may be used to procure a sample for analysis after a CAM has indicated that

a trend toward higher concentration is occurring. Id. at 16.

It is apparent, however, that the 1 20 percent deviation in air flow rate measurements allowed by Regulatory Guide 8.25'will

'not have a significant influence.on decisions about appropriate emergency procedures. Respiratory protection will be mandated whenever the measured concentration in the breathing zone is

. greater than 25 percent of the MDC values listed in 10 C.F.R.

Part-20,. Appendix B, Table 1, Column 1, thus assuring a very 4 .

conservative' approach. Id. at 116. In addition, portable air samplers merely signal a need for analyses such as bioassay procedures; regardless of the accuracy of-their air flow mea-surements, they are not used to determine internal dose. Id.

2 Thus,.notwithstanding Joint Intervenors' allegation, it is not necessaryLthat CAMS and portable air samplers be calibrated 3

to an accuracy of + 5 percent. On the other hand, Applicants' program for calibration of CAMS and portable air samplers is designed to ensure that the instruments are available and func-tional when they are needed. Applicants presently use calibration techniques that employ standards traceable to the National Bureau of Standards for their emergency air samplers.

Id. at'18. The on-site equipment that will be obtained prior to fuel loading will be calibrated using techniques as accurate as those presently performed.on the emergency air samplers.

These programs meet the standards recommended in Regulatory Guide 8.25 as well as those set forth in " Air Sampling Instru-ments for Evaluation of Atmospheric Contaminants," 6th Edition, 1983, a publication of the American Conference of Governmental Industrial Hygienists. Id. at 111. Applicants' program also has been reviewed and approved by the NRC Staff. Safety Evalu-ation Report (NUREG-1038) at $12.3.4.

With regard to inspection of the monitoring instruments, Joint Intervenors apparently do not understand that the CAMS are inspected daily during use and are response checked approx-imately every week. Id. at 118. Portable air samplers also are inspected each time they are used. The emergency equipment stored off-site-is inspected thoroughly at the time of the semi-annual calibration and is stored under controlled condi-tions that will diminish the likelihood of deviation. Id.

• g,e In summary, Joint Intervenors allegations that accuracy of 1 5 percent must be maintained with respect to CAMS and porta-ble air. samplers are premised on a variety of misconceptions.

First, ALARA has no relevance whatsoever to Joint Contention V.

I Second, calibration of CAMS and portable air samplers once a

. month to 1 5 percent accuracy would not result in any improve-ment in Applicants' ability to protect plant personnel or the public in the event of an emergency situation. Finally, the procedures employed by Applicants are sufficient to ensure that CAMS and portable air samplers effectively perform their in-tended functions.

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CONCLUSION Based upon the foregoing and upon the facts set forth in the Wilkie Affidavit and Applicants' Statement of Material Facts, Applicants submit that their motion for summary disposi-tion should be granted and that Joint Contention V should be decided in Applicants' favor.

Respectfully submitted,

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Thomas A. Baxter, P.C.

John H. O'Neill, Jr., P.C.

Pamela H. Anderson SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 and Richard E. Jones Samatha Francis Flynn CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-7707 Counsel for Applicants Dated: February 27, 1984

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