ML20137P881
| ML20137P881 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 12/02/1985 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#485-380 LBP-85-35, OL, NUDOCS 8512050123 | |
| Download: ML20137P881 (105) | |
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Ds December 2, hi UNITED STATES OF AMERICA s?pc -w[ p"Jh_';?u NUCLEAR REGULATORY COMMISSION #M[pO/M Before the Atomic Safety and Licensing Appeal Board In the Matter of )
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THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 j ILLUMINATING COMPANY, ET AL. ) 50-441 Q
)
(Perry Nuclear Power Plant, )
Units 1 and 2) )
APPLICANTS' BRIEF IN OPPOSITION TO INTERVENORS' APPEALS FROM THE CONCLUDING PARTIAL INITIAL DECISION Shaw, Pittman, Potts & Trowbridge v
Jay E. Silberg, P.C.
Harry H. Glasspiegel Michael A. Swiger Rose Ann C. Sullivan Counsel for Applicants 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 G512050123 851202 >
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TABIZ OF CONTENTS PAGE TAB LE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TAB IZ OF AUTHORITI E S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v APPLICANTS' STATEMENT OF THE CASE............................................ 1 ARGUMENT........................................................................
I. Reply to Sunflower...................................................... 2 A. Sunflower Has Waived Its Contentions by Failing To
. Meet the Briefing Requirements of 10 CFR 5 2.762................... 2 B. The ASLB Correctly Rejected as Inadmissible Sunflower Proposed Contentions D, E, F, K, L, N, R, S, T, V, W, X, Y, AA, EE, FF, HH, II, KK and LL............................. 3
. 1. Background.................................................... 4
- 2. Proposed Contention D: " Protective Actions De c i s ion-Mak ing" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
- 3. Proposed Contention E: " Authority Lacking for School Bus Usage".................................................... 7
- 4. Proposed Contention F: " Insufficient Proofs of Volunteer Aid"................................................ 8
- 5. Proposed Contention K: " Implementation of Staff Recommendations on EALs"...................................... 9
- 6. Proposed Contention L: "EPZ Radius"......................... 10
- 7. Proposed Contention N: " Ingestion Pathway Monitoring"........ 10
- 8. Proposed Contention R: " Insufficient Background Data"...... 10
- 9. Proposed Contention S: " Unavailable Extension Agent"......... 11
- 10. Proposed Contention T: " Shelter and Loading Buses"........... 11
- 11. Proposed Contention V: " Monitoring Contaminated I Consumables".................................................. 12
- 12. Proposed Contention W: " Phantom Reimbursements".............. 12
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- 13. Proposed Contention X: " Source Term".....,................... 12
- 14. Proposed Contention Y: " Incoherent Ambulance Usage".......... 13
- 15. Proposed Contention AA: " Sunflower's Status Report".......... 13
- 16. Proposed Contention EE: " Reception Center Locations"......... 13
- 17. Proposed Contention FF: " Remote Control Sirens".............. 14
- 18. Proposed Contention HH: " Evacuees Not Going To Center"...... 14
- 19. Proposed Contention II: " Evacuation Center Resources"....... 14
- 20. Proposed Contention'KK: " Returning to the EPZ".............. 15
. 21. Proposed Contention LL: "The Plans Will Not Work"........... 16 C. The ASLB Correctly Decided Sunflower Contentions A, J, M P, Q, U, Z and BB........................................ 16
- 1. Contention A: State and Local Comments on E'.'E Study......... 17
- 2. Contention J: Incomplete Emergency Action Lerels............. 18
- 3. Contention M: Independent Radiation Monitoring Systems...................................................... 19
- 4. Contention P: Hospitals..................................... 22
- 5. Contention Q: Letters of Agreement for School Buses......... 25
- 6. Contention U: Handling Contaminated Property at Reception Centers......................................... 26
- 7. Contention Z: Bus Driver Protection......................... 28
- 8. Contention BB: FEMA Interim Report........................... 29 II. Reply to 0CRE.......................................................... 30 A. The ASLB Correctly Decided OCRE Issue Nos . 8 and 16. . . . . . . . . . . . . . . 30
- 1. Issue No. 8: Hydrogen Contro1............................... 30
- a. Introduction....................,....................... 30
- b. The ASLB Correctly Interpreted and i Applied the Hydrogen Ru1e............................... 31 J
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- c. The ASLB Gave Appropriate Weight to the Expert Testimony Presented Below. . . . . . . . . . . . . . . . . . . . . . . . 39
- d. The PID is Supported by Substantial Evidence and Applies the Correct Burden of Proof................. 45
- e. Conclusion.............................................. 56
- 2. Issue No. 16: TDI Diesel Generators......................... 56
- a. ASLB's Concluding Partial. Initial Decision.............. 56
- b. Issue No. 16 Should Not Have Been Admitted as a Late-Filed Contention.............................. 62
- c. May 28, 1985 Memorandum and Order (Motion to Reopen the Record on Issue 16)....................... 63 B. The ASLB Did Not Err in Dismissing OCRE Issue No. 6 and Summarily Disposing of OCRE Issue Nos . 9 and 13. . . . . . . . . . . . . . . 64
- 1. Issue No. 6: Standby Liquid Control System.................. 64
- a. Background............................................... 64
- b. Status of Perry SLCS.................................... 66
- c. Interpretation of the Final ATWS Rule. . . . . . . . . . . . . . . . . . . 68
- 2. Issue No. 9: Polymer Degradation....................... .... 71
- a. Background.............................................. 71
- b. Tim ing o f OCRE ' s Appe a 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
- c. OCRE's Arguments on Appea1.............................. 73-(1) Mechanical Equipment................................ 74
) Scope of the ASLB 's Analysis . . . . . . . . . . . . . . . . . . . . . . . 75 (3) Post-Summary Disposition Affidavits................ 77 (4) Schedule for Submitting Surveillance and Maintenance Program............................ 79
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- 3. Issue No. 13: Turbine Mis s iles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 0
- a. Issue No. 13 Should Not Have Been Admitted as a Late-Filed Contention.............................. 80
- b. OCRE's Arguments On Appeal Are Without Merit............. 82 C. The ASLB' Properly Denied OCRE's Late-Filed Air Lock
' Testing Contention................................................ 86
- 1. Section 2.758 Does Not Apply to Applicants' Exemption Request............................................ 87
- 2. -Applicants' Exemption Request Was Properly Submitted Under 10 CFR 5 50.12............................... 88
, .3. OCRE's Contention Was Rejectable on Other Grounds...................................................... 89
- a. OCRE Failed to Support Reopening the Record............. 89
- b. OCRE Failed to Support a Late-Filed Contention.......... 91 C ONC LU S I ON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 2 1
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-h TABLE OF AUTHORITIES i
CASES: PAGE(S)
. Connecticut Light and Power Co. v. NRC, 673 F.2d 525 (D.C. Cir. 1982),
cert. denied 459 U.S. 835 (1982).................................... 88 Duke Power Co. v. NRC, 770 F.2d 386 (4th Cir. 1985)................... 88 GUARD v. NRC, 753 F.2d 1144 (D.C. Cir. 1985)......................... 22,23,24 Massachusetts Financial Services, Inc. v. Securities Investor Protec-tion Corp., 545 F.2d 754 (1st Cir. 1976)............................ 69 Pacific Gas and Electric Co. v. State Energy Res. Cons. & Dev. Comm.,
461 U.S. 190 (1983)................................................. 89 Power Reactor Develop. Corp. v. International Union, 367 U.S.
396 (1961).......................................................... 89 SEC v. Spence & Green Chem. Co., 612 F.2d 896 (5th Cir. 1980),
cert . denied 449 U. S . 108 2 (19 81) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Union of Concerned Scientists v. NRC, 735 F.2d 1437.
(D.C. Cir.
1984).................................................... 34 U.S. v. Allegheny - Ludlum Steel Corp. , 406 U.S. 742 (1972) . . . . . . . . . . . 88 Alabama Power Co. (Barton Nuclear Plant), LBP-75-32, 1 NRC 612 (1975).............................................................. 9 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant)....... 88 CLI-74-22, 7 AEC 939 (1974)................................ 72 LBP-85-28, 22 NRC 232 (1985)...............................
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2)......................................................
ALAB-443, 6 NRC 741 (1977)................................. 7, 78 ALAN-675, 15 NRC 1105 (1982)...................... ........ 22 ALAB-736, 18 NRC 165 (1983)................................ 72 ALAB-802, 21 NRC 490 (1985)................................ 3 LBP 24, 14 NRC 175 (19 81) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7 LBP-81-35, 14 NRC 682 (1981)............................... 4,6,7 LBP-82-98, 16 NRC 1459 (1982).............................. 80, 81 LBP-83-18, 17 NRC 501 (1983)............................... 77, 79 LBP-83-46, 18 NRC 218 (1983)............................... passim LBP-84-28, 20 FRC 129 (1984)............................... 4, 5, 6 LBP-84-40, 20 NRC 1181 (1984)..............................
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~ CASES: PAGE(S)
LBP-85-33, 22 NRC 442 (1985)............................... 86 LBP-85-35, 22 NRC 1985)............................... passim DD-84-23, 20 NRC 1549 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
- - - ; Memorandum and Order (Concerning Motions to Admit Late Contentions) (July 12, 1982)........................
Memorandum and Order (Admissibility of Contentions on Emergency Plans-and Motion to Dismiss)
(January 10, 1985)....................................... . passim Erratum (Emergency Planning Contention)
, (January . 14, 1985)....................................... 2
-Memorandum and Order (Motions) (March 13, 1985)............ 25 Memorandum and Order (Motions on Hydrogen Control Contention) (March 14, 1985)............................. 30
- - - - Memorandum and Order (Motions for Summary Disposition of Issues 1, 15 and 16) (April . 9, 1985) . . . . . . . . . . . . . . . . . . 25
- - - - Memorandum and Order (Motion to Reopen Record)
(May 28, 1985)...........................................
Memorandum and Order (Motion for Clarification of Initial Decision) (October 4, 1985)...................... 26 Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-793, 20 NRC 1591 (1984)............................... 62,80,89 Commonwealth Edison Co. (Zion Station, Units 1 and 2).................
ALAB-116, 6 AEC 258 (1973)................................. 84 ALAB-616, 12 NRC 419 (1980)................................ 58 Consolidated Edison Co. of New York (Indian Point Station, Unit No. 2), CLI-74-23, 7 AEC 947 (1974)................................. 34 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2)...............
CLI-83-19, 17 NRC 1041 (1983)............................. 5, 6, 90 ALAB-355, 4 NRC 397 (1976).................................
39
--- AIAB -687, *.16 NRC 460 ( 19 8 2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
. Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2),
ALAN-669, 15 NRC 453 (1982)......................................... 40 Houston Limhtina & Power Co. (Allens Creek Nuclear Generating Station, Unit No. 1)................................................
CLI-82-9, 15 NRC 1363 (1982)............................... 32
ALAB-629, 13 NRC 75 (1981)................................. 74 L Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 NRC 53 (1984)................................ 8, 26
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CASES: PAGE(S)
~Long Island Lightina Co. (Shoreham Nuclear Power Station, Unit 1).............................................................
CLI-84-8, 19 NRC 1154 (1984)............................... 87 ALAB - 7 8 8 , 20 NRC 110 2 ( 19 8 4 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4 , 7 9 , 85
LBP-84-45, 20 NRC 1343 (1984).............................. 88 Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3).............................................................
ALAB-732, 17 NRC.1076 (1983)............................... 15, 34
ALAB-812, 21 NRC 5 (1985).................................. 89 i
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1).........................................................
CLI-80-16, 11 NRC 674 (1980)............................... 47
ALAB-807, 21 NRC 1195 (1985)............................... 64 Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973).......................... 75 Northern States Power Co. (Pra!rie Island Nuclear Generating Plant, Units 1 and 2), ALAR-2.14, 2 NRC 197 (1975)................... 78 Offshore Power Systems (Floating Nuclear Power Plants),
ALAB-489, 8 NRC 194 (1978).......................................... 76 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, I Units 1 and 2), ALAB-644, 13 NRC 903 (1981)......................... 54 i Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2)......................................................
ATAR - 806 , 21 NRC 118 3 ( 19 8 5 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 l
ALAB-819, 22 NRC (October 22, 1985)................... 58
- ---- LBP-84-31, 20 NRC 446 (1984)............................... 34 Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2),
ALAB-573, 10 NRC 775 (1979)......................................... 3, 64 South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881 (1981)................................ 91 Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528 (1983)............... 22 Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B, and 2B), ALAB-463, 7 NRC 341 (1978)......................... 76
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CASES: PAGE(S)
Union Electric Co. (Callaway Plant, Unit 1), ALAB-740, 18 NRC 343 (1983)..............................................................
Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station)......................................................
ALAB-138, 6 AEC 520 (1973)................................. 90 ALAB-141, 6 AEC 576 (1973)................................. 32 Washington Public Power Supply System (WPPSS Nuclear Project No. 3),
ALAB-747, 18 NRC 1167 (1983)........................................ 58 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1),
ALAB-719, 17 NRC 387 (1983)......................................... 2 STATU'IES:
42 U.S.C. I 2201(b)................................................... 88 42 U.s.c. I 2201(p)................................................... 88 Ohio Rev. Code i 3734.01.............................................. 27 Ohio Rev. Code i 3734.01(J)(2)........................................ 27 REGULATIONS:
10 CFR $ 2.700........................................................ 76, 87 10 CFR $ 2.711........................................................ 76 lLO CFR 5 2.714........................................................ 5 10 CFR I 2.714(a)..................................................... 91 10 CFR I 2.714(a)(1).................................................. 5 1
10 CFR 5 2.749(b)..................................................... 85 i 10 CFR 5 2.749(c)..................................................... 83 I 10 CFR 5 2.758....................................................... 10,86,87 88,89,90
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REGULATIONS: PAGE(S) 10 CFR 5 2.762(c)..................................................... 1 10'CFR 5 2.762(d)(1).................................................. 2, 19
, . 10 CFR $ 2.762(g)..................................................... 2 10 CFR $ 20.1(c)...................................................... 89
- 10 CFR $ 50.12........................................................ 90 10'CFR I 50.12(a).................................................... 86,87,88 10 CFR 5 50.44(c)(3).................................................. passim 10 CFR $ 50.47(d)..................................................... 25
, ' 1'O CFR I 50.49........................................................ 34, 76 10 CFR $ 50.49(i)..................................................... 52, 76 10 CFR 5 50.57........................................................ 36 10 CFR 5 50.57(a)(2).................................................. 35 10 CFR S 50.57(a)(3).................................................. 36 10 CFR $ 50.109(a)(3)................................................. 89 10 CFR Part 50, App. B................................................ 78 10 CFR Part 50, App. J................................................ 86 4
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. , . _ , .- , . . . , _ . . _ _ _ _ , , _ _ _ _ _ . . _ . . . _ , . , . _ _ , , _ . _ , . . - _ . ~ - . _ _
o- ,
e-MISCELLANEOUS:
34 Fed. Reg. 19546 (1969)............................................. 87 37 Fed. Reg. 15127 (1972)............................................. 87 49 Fed. Reg. 26036 (1984)............................................. 69 Statement of Policy on Conduct of Licensing Procnedings, CLI-81-8, 13 NRC 452 (1981)........................................ 77 NUREG-0123,." Standard Technical Specifications for General Electric-Boiling Water Reactors" (Rev. 1, April 1, 1978)............ 91 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)............ passim 6 Moore's Federal Practice 1 56.12.................................... 66 6 Pt. 2 Moore's Federal Practice 1 56.24.............................. 83 Wright, Miller & Kane, Federal Practice & Procedure:
Civil 2d 1 2720..................................................... 66 i
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-December 2, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing' Appeal' Board
.In the Matter of )
. )
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, ET-AL. ~
) 50-441
. )
~(Perry. Nuclear Power' Plant,. )
Units 1 and 2) )
APPLICANTS'~BRIEF IN OPPOSITION TO INTERVENORS' APPEALS FROM THE CONCLUDING PARTIAL INITIAL DECISION s
.. APPLICANTS' STATEMENT OF THE CASE On September 3, 1985, the Atomic' Safety and Licensing Board ("ASLB") issued .
its . Concluding Partial Initial ' Decision on . Emergency Planning, Hydrogen Control and Diesel Generators, LBP-85-35, 22 NRC ("PID"). That decision, subject to certain license. conditions and the requisite findings by the Director of Nuclear Reactor Regulation,' authorizes issuance of full power operating licenses for the Perry Nuclear Power Plant, Units 1 and 2. PID at 122-23.
'Intervenors Sunflower Alliance, Inc., et al. (" Sunflower") and Ohio Citizens for Responsible Energy ("0CRE") both have appealed the PID, along with certain earlier interlocutory orders.1/ Pursuant to 10 CFR $ 2.762(c), The
. Cleveland Electric Illuminating Company ("CEI"), Duquesne Light Company, Ohio Edison Company, Pennsylvania Power Company, and The Toledo Edison Company If Appellate Brief of Sunflower Alliance (October 29, 1985) (" Sunflower Brief");~ Appellate-Brief of Ohio Citizens for Responsible Energy (October 21, 1985) ("0CRE Brief").
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(collectively " Applicants") submit this brief in opposition to Intervenors' ap-peals.2/
ARGUMENT I. Reply to Sunflower A. Sunflower Has Waived Its Contentions by Failing To Meet the Briefing Requirements of 10 CFR S 2.762 The Commission's Rules of Practice, at 10 CFR $ 2.762(d)(1), require that:
An appellant's brief must clearly identify the errors of fact or law that are the subject of the appeal. For each issue appealed, the precise portion of the record relied upon in sup-port of the asserti,on of error must also be provided.
A brief which does not substantially comply may be stricken. 10 CFR $ 2.762(g).
Sunflower-has failed to meet its briefing obligations under 6 2.762(d)(1).
" Proposition No. 1" of Sunflower's brief, which challenges the ASLB's rejection of a number of emergency planning contentions proposed by Sunflower, consists of nothing more than a verbatim restatement of the rejected contentione and their
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alleged bases.3/ Sunflower fails entirely to address the ASLB's reasons for re-jecting the proposed contentions.4/ Sunflower's mere restatement of its re-jected contentions is grounds for dismissal of its appeal. See Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1) , ALAB-719, 17 NRC 387, 2/ The relevant history of the proceeding has been set forth in the PID and need not be repeated here.
3/ Compare Sunflower Brief at 2-14 with Sunflower Alliance's Particularized Objections to Proposed Emergency Plans in Support of Issue No. 1 (August 20, 1984) (" Sunflower's Particularized Objections").
4/ See Memorandum and Order (Admissibility of Contentions en Emergency Plans and Motion to Dismiss) (January 10, 1985) (" January 10, 1985 Memorandum and Order"); see also Erratum (Emergency Planning Contention) (January 14, 1985).
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9 395 (1983). Similarly, " Proposition No. 2" of Sunflower's argument, which chal-1enges the ASLB's resolution of those emergency planning contentions which were admitted and went to hearing, restates (essentially verbatim) the proposed find-
'ings submitted by Sunflower to the_ASLB.5/ This does not constitute an adequate brief under $ 2.762(d)(1). Public Service Co. of Oklahoma (Black Fox Station,
. Units 1 and~2), ALAB-573, 10 NRC 775, 805-06 (1979).
Alt'iough Applicants must assume from Sunflower's refiling of the text of its earlier pleadings that Sunflower disagrees with the ASLB on every point, Applicants and the Appeal Board are nonetheless in the dark as to Sunflower's bases for its continued disagreements. Sunflower has failed to meet the requirements of the Commission's Rules of Practice and its appeal should be dis-missed on this ground alone.6/ Nonetheless, Applicants address below Sunflow-er's arguments as if they constituted an adequate appeal.
B. The ASLB Correctly Rejected as Inadmissible Sunflower .
Proposed Contentions D, E, F K, L, N R, S, T, V, '4, X, Y, AA, EE, FF, RH, II, KK and LL Sunflower's Proposition No. I takes issue with the ASLB's rejection of cer-tain of its proposed emergency planning contentions, and with what it alleges to be a " procedural irregularity" in the ASLB's treatment of the proposed conten-tions. Sunflower Brief at 1-2. The ASLB properly denied admission of these contentions. Moreover. any " irregularities" involved in the handling of the S/ Compare Sunflower's Brief at 15-26 with Intervenor Sunflower Alliance's Findings of Fact and Conclusions ~of Law in the Form of a Partial Initial Deci-sion (Emergency Planning) (May 22, 1985) (" Sunflower's Proposed Findings").
6/ This is not the first time that Sunflower has failed to meet its briefing obligations. See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2.), ALAB-802, 21 NRC 490, 496 n.30 (1985).
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g 1 contentions favored Sunflower, not Applicants. Applicants will address the
" procedural" issue first. -
- 1. Backaround Because Sunflower's statement of the procedural history of the emergency
-planning contentions is substantially incomplete, it is necessary to provide a- !
detailed account of that history.
Notwithstanding Applicants' argument that offsite' emergency plans for the Perry plume exposure pathway' emergency planning zone (" plume EPZ") were not yet
-available, the ASLB admitted a broad emergency planning contention, Issue No. 1, which gtated:
Applicants' emergency evacuation plans do not demonstrate that they provide reasonable assurance that adequate protective mea- '
sures can and will be taken in the event of an emergency.1/
The ASLB clarified that it was admitting the contention " conditionally," and that it expected the parties "to further refine these issues" as discovery pro- . .
. coeded. LBk)-81-35,14NRCat 686.
- Af ter of fsite emergency plans had been available for some time, and follow-ing extensive discovery, Applicants moved.for a Board order requiring particu-larization of the contention.8/ The ASLB granted Applicants' motion, directing Sunflower to:
2/ LBP-81-24,14 NRC 175,189 (1981), as modified by LBP-81-35, 14 NRC 682, 686 (1981). The ASLB later noted that " State and local" sh'ould be substituted for " Applicants'" in the wording of the' contention. LBP-84-28, 20 NRC 129, 130 n.1 (1984).
8/ Pursuant to th's ASLB's. direction in LBP-81-35 that the parties attempt to refine the issue prior to hearing, Applicants had attempted to initiate discus-sions with Sunflower concerning particularization of Issue No. 1. When Sunflow-er failed to respond to' Applicants' attempts, Applicants filed their Motion for Particularization of Issue No. 1 (June 26, 1984).
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specify in a written filing the specific inadequacies alleged to exist-in the draft local and State emergency plans and...
-provide a reasoned basis for believing that the allegations concerning inadequacies are true.
LBP-84-28, 20 NRC at 132.
Sunflower responded to the ASLB's order by. filing a number of "particu-larized objections" to the State, County and onsite emergency plans. Applicants then moved to dismiss Issue No. 1 based on the inadequacy of Sunflower's "objec-tions." The ASLB denied Applicants' motion to dismiss Issue No. 1, and reworded and admitted' as contentions 18 of Sunflower's " objections," while rejecting 20
.others for failing to meet the basis and specificity requirements of 10 CFR
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I 2.714.
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See January 10, 1985 Memorandum and Order.9/ The ASLB did not apply the tests for late-filed contentions set forth in 10 CFR $ 2.714(a)(1).10/
Sunflower's complaint on appeal seems to be that the ASLB should not have subjected its particularized contentions to any kind of review at all, because it already had an admitted emergency planning contention. According to Sunflow-er, it had "a substantive right to have these matters go to the finders of fact for determination on their merits." Sunflower Brief at 2. This clearly is 9/ Applicants subsequently filed summary disposition motions-which were granted for nine.of the 18 admitted contentions and parts of two others. Memo-randum and Order (Motions for Summary Disposition of Issues 1, 15 and 16)
(April ' 9, 1985) (" April 9, 1985 Memorandum and Order"); Memorandum and Order (Motions) (March 13, 1985) (" March 13, 1985 Memorandum and Order"). Sunflower does not challenge the summary disposition of these contentions.
Ig/ Si e Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ,
ALAB-806, 21 NRC 1183,1188 n.17 (1985) (error in licensing board's initial con-ditional admission of emergency planning contention academic because board properly applied the five-fact.as test; see also Duke Power Co. (Catawba Nuclear Station,. Units 1 and 2), CLI-8' 19, 17 NRC 1041, 1045-47 (1983) (contentions based on materials-not available until a later point in the proceeding should be judged by balancing the factors applied to late-filed contentions).
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, incorrect. ~ First', Sunflower's broad emergency planning contention should not' q have been a'dmitted in the first place.11/ Second, Sunflower was on not' ice from-the time that Issue No. I was admitted that it was; admitted " conditionally,"
- i.e., subject to some form of subsequent; demonstration. LBP-81-35, 14 NRC at t:
. '686. Third,~the'ASLB found in requiring Sunflower to particularize its concerns thet "the underlying factual situation has shifted so dramatically that the i
- original basis for the contention has been undermined." LBP-84-28, 20 NRC at 131:(emphasis added).- Thus, contrary'to Sunflower's~ claim, Sunflower had no admitted contention; and even-if it did, Sunflower had no " substantive right" to havefitsparticularized'contentionsautomaticallyadmitted. Indeed,-Applicants believe that none of Sunflower's contentions would have been admitted had the late-filed criteria been applied.
Aside'from Sunflower's misplaced procedura1' argument,' Sunflower offers no reason to question the ASLB's denial of the-20 concentions which were rejected as inadmissible.by'the ASLB. Those contentions'were properly rejected for the reasons given below.
- 2. Proposed Contention D: " Protective Actions Decision .'taking"
'In this' contention, Sunflower raised a number of subissues on sheltering as a protective action, relating'in particular to ventilation control.12/ All of:
11/' See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687,-16 NRC 460, 467 (1982), rev'd in partion other grounds, CLI-83-19, 17 NRC 1041 (1983) (licensing boards are prohibited from conditionally accepting contentions
.wliich (as in the case of Issue No. 1) fail to meet the specificity requirements of 10 CFR $ 2.714(b)).
12/ Sunflower also raised an issue concerning a purported failure in the emer-sency plans to adhere to EPA protective' action guidelines. See Sunflower Brief at 3. The 1-5 rem protective action guide for whole body exposures cited by >
(Continued Next Page) 6-t
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- these subissues were inadmissible because they were outside the scope of Issue No. 1. That issue was limited to " emergency evacuation plans." LBP-81-24, 14 NRC at 189, as modified by LBP-81-35, 14 NRC at 686.
Even'if shelter and ventilation controls were within'the scope of emergency evacuation planning, the specific issues raised by Sunflower lacked basis and were properly rejected. As pointed out by the ASLB, "There is no regulatory
. requirement for evaluating ventilation controls in EPZ shelters." January 10,
'1985 Memorandum and Order at 8. See also Applicants' Motion to Dismiss at
- 17. Since Sunflower fails to address the ASLB's reasoning in its appeal brief, Sunflower provides no basis for questioning the ASLB's decision.
- 3. Proposed-Contention E: " Authority Lacking for School Bus Usage" Sunflower asserted'that Ohio law forbids the use of school buses for dff-site evacuation of individuals without access to private automobiles. Sunflower Brief at 3-6. The ASLB properly rejected the contention on the grounds that .
"(ajn NRC hearing is not the proper forum for resolving conflicts - if any exist in state law." January 10, 1985 Memorandum and Order at 8. See-Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 748-(1977); see also Applicants' Motion to Dismiss at 17-18. Again, Sunflower offers no basis for questioning the ASLB's ruling.
(Continued)
Sunflower is not a dose limit, but is the projected dose at which protective ac-tion is considered to be warranted. The off-site plans for Perry follow this guideline. See Applicants' Motion to Dismiss Sunflower Alliance's Particu-larized Objections to Proposed Emergency Plans in Support of Issue No. 1 (September 20, 1984) (" Applicants' Motion to Dismiss"), at 15-16.
l l
l l
~4 Proposed Contention F: " Insufficient Proofs aof Volunteer Aid" Sunflower claims that the " state and local plans are deficient.because they fail-to fix in unequivocal terms the availability of volunteers...." Sunflower LBrief at.6. Sunflower selectively quotes from NUREG-065413/ to give the mir-leading impression that volunteer emergency workers must be identified in the plan and letters of agreement obtained from them. However, there is no regula-
- tory requirement (in NUREG-0654 or elsewhere) that emergency workers be named in i-
!, plans or sign letters of agreement. See January 10, 1985 Memorandum and Order
^4 t 8; Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1),
rt The only hint of a basis for Sunflower's claim of the unavailability of
. volunteers is its citation to a 1983 " Status Report" by the " Perry Legal Defense Fund." -Sunflower Brief at 6-7. This report on its face was out-of-date at the ,
- time Sunflower submitted the proposed contention.14/ Furthermore, the " Status
. Report" was-based on such limited information that it could have been an ade-quate basis for admitting the contention. See Applicants' Motion to Dismiss at
- 19. The contention was properly rejected.
,J 13/ NUREG-0654/ FEMA-REP-1, " Criteria for Preparation and Evaluation of Radiolo-gical1 Emergency Response Plans and Preparedness in Support of Nuclear Power Plants"'(Rev. 1, November 1980).
14/ The report was prepared before agency procedures had been finalized and prior.to the training of any significant number of offsite emergency workers.
See Applicants' Motion to Dismiss at 19.
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- 5. Proposed Contention K: " Implementation of Staff.
Recommendations'on EALs" Sunflower notes.that the NRC Staff'in a January 11, 1984 letter to CEI pro-vided comments on the Emergency Action Level ("EAL") statements in Applicants' on-site plan. Sunflower then " incorporates each of the Staff's criticisms of
'the EALs and realleges them...by reference as particularized objections." Sun-
- flowec Brief at 7. In rejecting the proposed contention, the ASLB stated
An incorporation by reference is not adequate where the Board does not possess'any of the particulars of the referenced docu-3:: ment or report. The Board has no way of assuring itself that the proposed issues are proper for adjudication in the proceed-ings, which is another purpose for requiring contentions to be specified.
January 110, 1985 Memorandum and Order at 8. See id. at 3 & n.9 (citing Alabama Power Co. (Barton Nuclear Plant), LBP-75-32, 1 NRC 612, 615 (1975)); see-also Applicants' Motion to Dismiss at 29.
At any rate.. Sunflower's Proposed Contention K is moot. Condition 1 of the
-license conditions imposed by the ASLB15/ requires that " Applicants' EAL's con-form to the initiating guidance of NCREG-0654, Appendix I." PID at 123. This condition was imposed to assure that all Staff concerns with the adequacy of the EALs are resolved. See id. at 8. Sunflower neither acknowledges this condition nor explains why it is inadequate. Proposed Contention K thus presents no
' litigable-issue.
15/ This license conditien was based on Sunflower's admitted Contention J. See
, PID at 8. .
4
2 o 4
si 6. Proposed' Contention L: "EPZ Radius" Proposed Contention,L " demand [ed]" that the radius of the plume exposure '
pathway EPZ be . increased to "15 miles or more."
Sunflower-Brief at 8. The ASLB properly rejected-the contention as "a challenge to NRC regulations which call for a 10-mile Emergency Planning Zone...." January 10, 1985 Memorandum and
-Order at 8 See also id.~at 3 & n.8; Applicants' Motion to Disuiss at 29-30.
- Sunflower fails to make the showing required by 10 CFR 5 2.758 to support a challenge to the regulations.
- 7. Proposed Contention N: " Ingestion Pathway Monitoring" This contention charged that the State: lacks equipment and personnel to handle radiation monitoring and. sampling in the ingestion pathway. Sunflower 1Brief at 8-9. The ASLB correctly denied admission of the contention because
"[t]he ingestion pathway.is outside the scope of Issue 1." January 10, 1985 Memorandum and Order at 8. See also Applicants' Motion to ' Dismiss at 33. As
~ discussed supra, Issue No. I was limited to emergency evacuation plans.
'8. Proposed Contention R: " Insufficient Background Data" Sunflower claims that "[b}ackground radiat'in readings must be taken before PNPP becomes. operational for the entire 50-mile EPZ." Sunflower Brief at 9. As noted supra, the ingestion pathway (50-mile) EPZ is outside the scope of Issue No. 1.
Moreover, although Sunflower claims that this monitoring is required "to conform with NUREG-0654 at 67," Sunflower Brief at 9, no such recommendation ap-pears there or anywhere else. As stated by the ASLB:
There is no regulatory or safety guidance that requires for emergency planning purposes the gathering of pre-operational background radiation levels within a 50-mile radius of a nuclear site.
- s. .
1 January 10, 1985 Memorandum and Order at 8. The contention was therefore prop-erly excluded.
- 9. Proposed Contention S: " Unavailable Extension Agent"
~
Sunflower asserted that the Ashtabula County Cooperative Extension Service has not received the equipment or training to advise on food'and livestock pro-taction'. Sunflower Brief at 9-10. However, the Cooperative Extension Service is: responsible only for ingestion pathway concerns. _ See Applicants' Motion to Dismiss at'40-41. As discussed supra, ingestion pathway. issues are beyond the scope of Issue No. 1; and the ASLB properly rejected the contention for that
-reason. -See January 10, 1985 Memorandum and Order at 8.16/
- 10. Proposed Contention T: " Shelter and Loading Buses" This contention appeared to attack the concept of shelter as a protective
' action'. . Sunflower Brief at- 10 '(" Sunflower objects to mere shelter precautions
- ..."); This argument is outside the scope of Issue No. 1. Sy supra at l'B.2. .
Sunflower also questioned the effectiveness of a shelter recommendation followu. by a decision to evacuate, arguing that "the plans ef fectively could cause. school children to evacuate outside(,) under or into a plume." Sunflower Brief at 10. However, Sunflower presents no basis for this assertion. See e
Applicants' Motion to Dismiss at'42. The ASLB correctly rejected the contention.
for failing to " allege a specific failure in meeting NRC regulations and guid-ance." January 10, 1985 Memorandum and Order at 8.
16/ - Apart from this contention being outside the scope of Issue No. 1, none of the specific points raised in support of the contention has any basis. ,See Applicants' Motion to Dismiss at 41-42.
s
g.
- 11. Proposed Contention V: " Monitoring Contaminated Consumables" This proposed contention stated that the " role of the State and county pub-lic health departments in monitoring the agricultural food chain" is given " lit-tie more than lip service." Sunflower Brief at 10-11. For the reasons set forth supra, this ingestion pathway allegation falls outside the scope of Issue No. 1 and was properly rejected. See. January 10, 1985 Memorandum and Order at 9; see'also Applicants' Motion to Dismiss at 44.
- 12. Proposed Contention W: " Phantom Reimbursements" Sunflower complained that the State emergency evacuation plan does not re-solve whether there will be reimbursement to *.he State after an accident, and where any such reimbursement woulu come from. See Sunflower Brief at 11-12.
However, Sunflower cited no requirement that the State plan identify who would
\ reimburse the State. The ASLB properly rejected the contention. See January 10,-1985 Memorandum and Order at 9; see also Applicants' Motion to Dis- .
missat.44k5.
- 13. Proposed Contention X: " Source Term" This proposed contention asserted that the NRC's on going reevaluation of
" source terms" must be completed before the emergency plans can be approved.
Sunflower Brief at'12. If the source term reevaluation shows " greater radia-tion dangers to the populace around Perry," Sunflower Brief at 12, the appro-priate step will be to amend NRC emergency planning rules. The ASLB correctly held that the contention was an impermissible challenge to h1C regulations. 6 January 10, 1985 Memorandum and Order at 9; see also id at 3 & n.8.
. _ . _ _ . _ _ _ _ . . _ _ . _______.-.a
- 14. Proposed Contention Y: " Incoherent Ambulance Usage" This proposed centention noted that Lake County may call upon ambulances
-from Ashtabula and Geauga Counties to evacuate people who cannot be moved by bus. . Sunflower alleged that this " underscores the possibility of conflicting responses at the county level." Sunflower Brief at 12. Sunflower provided no basis, however, to indicate that there are insufficient ambulances, or to ques-tion the three counties' ability to coordinate their ambulance requirements.
See Applicants' Motion to Dismiss at 46. The ASLB correctly rejected the con-tention as " vague" and failing to " meet the test of stating any basis with spe-cific particularity," January 10, 1985 Memorandum and Order at 9.
- 15. Proposed Contention AA: " Sunflower's Status Report" In 'his t contention, Sunflower " incorporate [d] by reference and reallege(d)
...all objections to state and local emergency plans which appear in the ' Status Report: Planning for an Accident at the Perry Nuclear Plant,' Perry Legal De- .
fense Fund (1983)." Sunflower Brief.at 12. The ASLB's rejection of the conten-tion as inadmissible was correct for the reasons discussed suora, at $ B.S. See January 10, 1985 Memorandum and Order at 9; see also id. at 3 n.9; Applicants' Motion to Dismiss at 47.
- 16. Proposed Contention EE: " Reception Center Locations" Sunflower argued that reception centers should be located more than 20 miles from Perry. Sunflower Brief at 12-13. As the ASLB stated in rejecting the contention, "There is no regulatory basis for requiring the location of re-ception' centers beyond 20 miles of a nuclear facility." January 10, 1985 Memo-randum and Order at 9. The contention also could have been construed as a dis-guised attack on the 10 mal: plume EPZ limit, and was rejectable for that reason
! as well. See Applicants' Ho: ion to Dismiss at 50.
I
n _-
- 17. Proposed Contention FF: " Remote Control Sirens" This contention appeared to allege that CEI must activate the sirens since it is required by NUREG-0654 to install and maintain them and therefore must hold the FCC license for the radio-activation system. The ASLB correctly stated that "[t]here is no regulatory basis for requiring an applicant to be a Federal Communications Commission licensee...." January 10, 1985 Memorandum and Order at 9; see also Applicants' Motion to Dismiss at S t.
- 18. Proposed Contention HH: " Evacuees Not Going to Centers" This contention asserted that the plans do not address the identification and monitoring of evacuees who do not report to reception centers. Sunflower alleged, without more, that "[h]ad CEI bothered to analyze the reactions of
, evacuees in comparable evacuation scenarios, it might find that a majority, or at least a significant minority, of people go to friends' and relatives' homes during a crisis, not to evacuation centers." Sunflower Brief at 13 (emphasis .
added). The contention was properly rejected because it was " speculative" and provided "no basis with particularity." January 10, 1985 Memorandum and Order at 9. See also Applicants' Motion to Dismiss at 53 (evacuees not reporting to reception conters would ba told to do so, if necessary, via the Emergency Broad-cast System and the news media).
- 19. Proposed Contentign II: " Evacuation Center Resources" Sunflower's Proposed Contention II stated that "[o]ther than identifying the (reception) centers, data on available resources there is nil." Sunflower Brief at 13. Sunflower complained that the evacuation plans do not cover the availability of such items as food, drugs and beds, that no " documentation is provided of the potential length of stays," and that no mention is made of
" psychological services" for evacuees. Id.
o As a legal argument on the level of detali necessary in the plans, Sunflow-er's claim is-baseless.17/ As the ASLB recognized, " Implementing details _are
~
not' required to be reviewed in operating license proceedings.k January 10,-1985 Memorandum and Order at 9 (footnote.omitted) (citing Louisiana Power and Light
=Co. (Waterford Steam Electric Station, Unit 3), ' ALAB-732,17 ' NRC 1076,1107-08 (1983)). See also Applicants' Motion to Dismiss at 54. Sunflower's other claims - that the plans must include documentation-of the potential lengths of stays, and that the plans should discuss psychological services - were properly rejected as not alleging " regulatory deficiencies." January 10, 1985 Memorandum and Order'at 9. See also Applicants' Motion to Dismiss at 54-55,
- 20. Proposed Contention KK: " Returning to the EPZ" This proposed contention alleged that "(o]ther than general references to cordoning off all or parts of the EPZ, the plans do not tell how persons re-entering the EPZ will be handled if an accident is in progress." Sunflower .
Brief at 14. Sunflower stated without support that "[t]he issues [ sic] of securing the cordoned area while allowing access to bona fide residents is .dif-i .
.ficult to manage." id. No_ explanation or basis is provided as to why this is difficult. Such an issue is also beyond the scope of the contention, which, as discussed supra, is limited to emergency evacuation planning. The contention was properly rejected. See January 10, 1985 Memorandum and Order at 9.
12/ Sunflower did not allege that equipment and supplies will be unavailable.
+--M
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(
- 21. Proposed Contention LL: "The Plans Will Not Work" ,
This generalized contention asserted that the evacuation plans were
" unworkable" because there had been "no full-scale drill of any sort" to test i the plans. Sunflower Brief at 14. This contention suffered f-om the fatal de-
>fect that'it was no more specific than the broad Issue No. I which the ASLB or-dered particularized. Also, as the ASLB pointed out in its January 10, 1985 Memorandum and Order, at 9, "[e]xercises and drills are not required prior to)
Board hearings on emergency. evacuation plans."
In any. case, the contention has long been overtaken by events. A full-scale emergency preparedness exercise was held for Perry on November 28, 1984.
See FEMA Ex. 2, ff' Tr. 3111 (FEMA Exercise Report). Sunflower has provided no grounds for questioning the adequacy of the State and local plans based on the exercise.
C. The ASLB Correctly Decided Sunflower Contentions i. ,
A. J, M 'P, Q, U, Z and BB ',
.o As discussed supra, Sunflower's brief on these contintions.is easentially.a Y
' word-for-word repetition of its proposed findings. Sunflower ~ fails to address the reasons given by_the ASLB in its PID for dismissing the contentions. See.
t
-PID at 3-22. Although Applicants do not-believe Sunflower,has met its briefing
-obligations, see'$ I.A above, Applicants address Sunflower's arguments below.18/
5
, \ \
18/ -Applicants note'that Sunflower.is not appealing the ASLB's resolution of
. Contention CC. See PID at 21. -Sunflower' conducted no cross-examination and
' submitted no proposed findings on this contention. .See id.
t .
\
%s
'. P . g 3 7)
\T
- 1. Contention A: State and Local Comments on ETE Study
+
Contention A concerned the issue of obtaining comments from State and local.
V..
officials on the evacuation time estimate. study ("ETE") prepared for the Perry plume EFZ. See PID at.3-4.19/
Sunflower's substantive arguments on Contention A are wholly deficient as well. First, Sunflower misstates the evidence. Sunflower claims that Appli-cants failed to follow the regulatory guidance of NUREG-0654 by seeking " concur-ren'ces, rather than, and in lieu o'f, written comments, from local officials."
Sunflower Brief at 16 (original emphasis). On the contrary, the evidence clear-
.ly established that written comments were obtained from county (and State) offi-
-.cials, and that those comments, reflected in the February 1985 revision to the ETE, were submitted to the NRC along with.the revised ETE.20/
~i
,c Second, Sunflower misunderstands the NUREG-0654 regulatory guidance appli-1 : cable to ETEs. For instance, Sunflower attempts to make much of the fact that -
1 .
the ETE. authors met for the first time with the county engineers approximately three weeks before the evidentiary hearing, and then only as a result of Sun-
- flower's "litigative insistences." Sunflower Brief'at 15.
> However, all wit-4
-nesses agreed, and the.ASLB concurred, that participation by county engineers-is not necessary to meet NUREG-0654 guidelines. Perrotti at 3;.Tr. 2799-2804,
- 19/ The portion-of Contention A concerning consideration of adverse weather conditions in the ETE was dismissed by summary disposition. See April 9, 1985 Memorandum and Order at'3; March 13,-1985 Memorandum and Order at 1. Sunflower
- has not appealed this. dismissal.
. 20/ Applicants' Direct Testimony-of Scott T. McCandless on Issue No. 1 - Con-
~
tention A, ff. Tr. 2791, at=3; Testimony of Donald J. Perrotti Regarding-Emer-gency Plan Issues,-ff. Tr. 3111 ("Perrotti"), at 2; Tr. 2823-24 (McCandless),
3,112t13.(Shapiro). See.PID at 4.
,p h.-
~
_17 i
1
'2811-16, 2830 (McCandless), 3122, 3127 (Shapiro), 3141-43 (Perrotti). See PID at 5-6. At any rate,-the ETE authors did meet with the county engineers and obtained their concurrence.
Tr. 2795-97 (McCandless). See PID at 5-6.
' Sunflower also points out that, at the time of the hearing, written concur-rences: on the revised'ETE had not been received from certain state and local of-ficials. Sur. flower Brief at 15-16. This argument is irrelevant. The conten-tion deals with obtaining comments on the ETE from State and local officials.
In any: case, NUREG-0654 says nothing about obtaining concurrences, let alone written concurrences, from State and local officials with respect to changes
'made to the ETE as a result of their comments. See Tr. 3146 (Shapiro, Perrotti). Applicants.in fact obtained verbal concurrence from State and local officials, including the county engineers. Tr. 2795-97, 2809 (McCandless),
2896-97 (Cole). That is more than Applicants were required to do. Sunflower's-criticisms'concerning the ETE are without basis. .
- 2. Contention J: Incomolete Emergency Action Levels This contention was based on the incomplete status of 13 out of 200 EALs in Revision 3 of the Perry onsite emergency' plan.21/ The testimony established that.all of the. EALs, including the 13 that were incomplete in Revision 3 of the onsite plan, were now complete and included in Revision 4. Hulbert_(Conten-tion J) at 2-3; Perrotti at 3-4. See PID at 7. The AS'LB found that the EALs were complete. PID at 8.
21/ ~Aplicants'LDirect Testimony of Daniel D. Hulbert on Issue No. 1 - Conten-
.t!.on J. ff. Tr. 2965'("Hulbert (Contention J)"), at 1-2. See PID at 6. EALs
-describe-specific plant conditions at which one ofJthe four Emergency Classifi-cations is to be declared. Hulbert (Contention J) at 2. See P1D 5.t 6. -
.4-t Sunflower does not question the completeness of Applicants' EALs. See Sun-Eflower Brief.at 16. Indeed, Sunflower identifies no errors which could be con-sidered the subject of.an appeal. See 10 CFR S 2.762(d)(1). Sunflower offers only'the gratuitous comment that the " late provision of this data has helped I
[ Applicants) successfully.to slick by the operating license stage, and have or--
chestrated'the startup impectus (sic], such as to forestall any serious regula-
~
tory; questioning of the new data." Sunflower Brief at 16. However, Sunflower fails to show that it was prejudiced in any way by Applicants' inclusion of the
" missing" EAL data in Revision 4 to the onsite plan. See PID at 7.
- 3. Contention M: Independent Radiation Monitoring Systems Contention M stated.that independent radiation monitoring systems'should be installed within the plume EPZ. See PID at 9. Sunflower's argument was that
'each of the counties within the plume EPZ should have fixed radiation monitors, meteorological-and telemetering equipment. See Sunflower Brief at 16. .
Sunflower's proposed findings questioned both the effectiveness of,- and the
. cost-benefit for, the mobile monitoring teams on which the State of Ohio, the counties and Applicants rely,'versus the fixed monitoring systems which.Sunflow-er would;prefar. However, the ASLB'found Sunflower's arguments unpersuasive, and concluded that "ius effective ~ independent monitoring system, which meets all regulatory guidance and standards, has been progra=med for the Perry facility."
PID at 12.
Once again, Sunflower ignores the PID in offering up its proposed findings to the' Appeal' Board. In addition, Sunflower consistently misstates the record,
-ignores evidence which does not support Sunflower's views, and makes irrelevant.
arguments. For example, Sunflower argues that CEI monitoring teams would not be I
r (
b.- C -
7=" ~ ,
l deployed until 1.5 to 2.0-hours after an accident, although a major release of s.adioactivity could occur within 45 minutes. Sunflower Brief at 17, 19. How-ever, the record cited by Sunflower for this proposition discusses the response time of the Lake County monitoring teams (compare Tr.12935 with Sunflower Brief
- at'19), not the CEI monitoring teams, which would be in place within'30 minutes.
Applicants' Direct Testimony of Richard Bowers on Issue No. 1 - Contention M, ff. Tr. 2914L(" Bowers"), at 5-6; Tr. 2936-37 (Bowers).
' Sunflower also claims that cross-examination of Applicants' witness Cole
,. revealed, contrary to Applicants' direct. testimony, that the State monitoring teams would be gathering data for use after an accident at Perry, rather than-during the emergency. Sunflower Brief at 20. Sunflower ignores the evidence, which shows that'the State teams obtain gross gamma readings which are used to plot the radioactive plume, identify plume parameters, and make protective ac-tionLrecommendations during an emergency. -Applicants' Direct Testimony of .
Kenneth B. Cole 'cni Issue No. 1 - Contention M, ff. Tr. 2833 (" Cole"), at 2, 4; Tr. 2890-91_(Cole). Thus, Sunflower is incorrect in suggesting that the State teams do not' provide an independent source of radiation monitoring data during an emergency at' Perry.22/ See also PID at 11-12.
~
Sunflower also argues that the " team approach [does) not-provide fo'r moni-toring in Lake Erie," and that " monitoring teams would be largely confined to sampling along road rights-of-way." Sunflower Brief at 17. See also id. at 19.
However, the. record shows that there is an excellent network of roads in the 22/~ Sunflower also completely ignores the independent monitoring during an emergency by the' Department of Energy, USEPA, NRC and Lake County mobile teams.
-Bowers at 5; Cole at 5. See Tr. 2842-44 (Cole).
f.
r
=
- g a -
~ vicinity of Perry which allows effective tracking of the plume' by mobile teams
.I in land-based vehic1'es. Tr. 2932 (Bowers). Releases over Lake Erie would be
' tracked _by' Applicants computerized dose projection system, and could be de .
tected by mobile teams along the shore if the plume returned to land. Tr.
'2958-59 (Bowers)'. In addition, DOE helicopters are capable of conducting off-shore monitoring. Tr. 2901-(Cole). See PID at 11.
' Sunflower further argues that (n]one of the ' drills to date of the moni-toring teams have taken place under.any more adverse conditions than darkness and: rain."' Sunflower Brief at 19-20. However, the record shows that the CEI i
teams are equipped with four-wheel drive vehicles and that snow conditions would therefore not be~1ikely to be a serious problem. Tr. 2945 (Bowers).23/
sith respect to cost-effectiveness, Sunflower criticizes the decision not
- to.use fixed monitors on the _ grounds that Applicants have not comparatively as-
' seshad- the costs of the existing systems with the cost of- a fixed system. . Sun- ,
. flower Brief_at 17,.19. This argument is irrelevant, since a system of fixed monitors would not repl' ace the existing s'ystems which will be used at Perry.
See Tr'.'2958-(Bowers).M/
9
~
,-23/f Sunflower also alludes to alleged health effects of " unreported release _s of
- radiation" from Three Mile Island,and "other plants." Sunflower Brief at 20.
. Sunflower here relies solely on the direct testimony of its witness, Dr.
Ernest'J. Sternglass. The ASLB concluded that the credibility of Dr. Sternglass on'this'and other contentions had been_" substantia 11y' impeached" on cross-examination. PID at 10. Sunflower on' appeal does not-dispute this conclusion.
~
L24/. . Sunflower mischaracterizes witness Bowers' testimony as stating that a com-
- bination of mobile-monitoring teams and fixed systems as envisioned by Sunflower "would not be as effective as the exclusive use-of monitoring teams." Sunflower Brief at 17.-LMr. Bowers actually testified that such a combined system would not beLany more effective than mobile monitoring by itself. Tr. 2928 (Bo.wers). ,
I r- ;
Sunflower-also claims that Applicants' projected costs for a fixed moni-
'toring. system "did not even mathematically add up." Sunflower Brief at 17.
JApplicants' addition was correct. Sunflower omitted the $9000 cost for each of the 100 radiation detectors. See Tr. 2917 (Bowers).
Sunflower fails to support its claim that.a system of fixed monitors is ei-ther preferable or. legally required. Contention'M was correctly decided by the ASLB.
4 Contention P: Hospitals
' Sunflower's Contention P concerned the capability of hospital medical ser-vices to handle contaminated injured-or exposed persons if an accident were to occur at Perry. See PID at 12.25/
The Commission's emergency planning regulations, at 10 CFR $ 50.47(b)(12),
require .that "[a]rrangements are made for medical services for contaminated in-
'jured individuals."21/ The U.S. Court of Appeals has ruled that " arrangements" for medical services for contaminated injured an'd exposed members of the general public require more than "a simple list of1 treatment-facilities already.in place...."27/'
25/ :Although the wording of the contention itself did not explicitly limit the 1
contention.to hospitals, Sunflower's objection which formed the basis-for this contention was so. limited. -See Sunflower's Particularized Objections at 19. A contention cannot extend beyond the intervenor's self-imposed limitations.
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), .
ALAB-675, 15 NRC 1105, 1115 (1982).
2s/_1The Commission.has-interpreted'S 50.47(b)(12) to-include radiation exposed as well as contaminated injured persons. Southern California' Edison Co. (San-
.Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 NRC 528, 530 ,
-(1983).
- 27/' GUARD v'. NRC, 753 F.2d 1144, 1146 (D.C. Cir. 1985).
.~
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- t f
Sunflower contends that Applicants have failed to detail satisfactory "ar-rangements" consistent with the GUARD decision.28/ According to Sunflower, GUARD mandates that-Applicants " detail medical arrangements fully, as to facili-ties, equipment, personnel, etc., for each facility which would be included in emergency'preparat' ions." Sunflower Brief at 21. ~ Sunflower alleges that Appli-cants."put forth no substantive evidence of arrangements for provision of medi-cal services to public persons who would be radiological victims beyond a su-
. perfis.ial discussion of persons trained at area hospitals." Id. at 23.
.There is no requirement in GUARD for the type of detail called for by Sun-flower. In any case, the record contains considerable detail concerning ar-rangements for medical services at the four designated local hospitals, and the medical 1 resources (including facilities,. equipment and trained personnel) which
. those, hospitals possess. See, e.g., PID at 13-14.29/ In addition, evidence'was 28/ ; Sunflower also' continues to insist, in reiterating its proposed findings, that'the number of casualties requiring emergency medical care could be ex-tremely high. See-Sunficwer Brief at 21-22, 23. The overwhelming record evi-dence is, and the ASLB agreed, that even a severe accident at Perry would pro-duce few iffany contaminated injured or. radiation exposed persons requiring emergency medical care. Applicants'. Direct Testimony of Roger E. Linnemann on
~
Issue-No. 1 Contention P, ff. Tr. 2980 ("Linnemann"), at 3-4, 6; Rebuttal.
Testimony on NUREG/CR-2239, fi. Tr. 3158 ("Hankins"), at 7-9; Tr. 2984-87, 2991,.
~
2994, 3033-34'(Linnemann), 3173 (Hankins). See PID at 13. These cases could readily be handled:by the four local hospitals designated to handle contaminated injured or exposed members of the general public. See, e.g., PID at 13-14 The worst case estimates. cited by Sunflower are inapplicable to-Perry. Hankins at 2-8;.Tr. 3176 (Hankins). See PID at 13.
' l 29/ LSun' flower _ asserts that Applicants did not adequately deal with the case of
- personsfwho are internally contaminated with. radiation. Sunflower Brief at 22.
However, internal' contamination.'is not the critical factor in radiation expo-sure; thus,.the'need for. treatment of internal contamination is unlikely. Tr.
12991-93, 2999-3001 (Linnemann). Moreover, radiation exposure as a general mat-Lter is unlikely to: require hospital emergency room care. Tr. 3031-33 (Linnemann).
.r.- __
submitted describing generally the capabilities and resourc'es of 26 backup hos-pitals which could.be used if needed. Linnemann at 6-7; Testimony of Robert 0.
Shapiro, Federal Emergency Management Agency Regarding Emergency Planning Con-tentions A, M, P, Q, U, Z, BB, ff. Tr. 3111 ("Shapiro"), at 6-7; Tr. 3034
!(Linnemann). 'See PID at'14.30/ The ASLB concurred that "the training, person-nel and equ'pment.at i the designated hospitals within the EPZ as well as'the med-ical resources available outside of the EPZ are adequate to comply with the Com-mission's regulations and standards...." PID at 15. None of Sunflower's arguments is sufficient to question that conclusion. The ASLB correctly decided Contention-P.31/l
-10/- Sunflower erroneously characterizes arrangements with these backup hospi-tais as "ad hoc." .
Sunflower Brief at 22. Sunflower fails to address the exist--
ing written hospital-disaster plans which provide for emergency patient overflow at one hospital to be handled by referral hospitals. See Tr. 2998-99,~3041'
-(Linnemann) .- These plans constitute adequate pre-arrangements for purposes of GUARD. See PID at 82 (Finding 37).
31/- As noted in the PID at.15,.the Commission has recently issued interim.guid-ance to licensing boards pending the Commission's response to the Court of Ap-
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peals' remand in GUARD. 50 Fed. Reg. 20892.(May 21, 1985). The Commission's Statement of Policy directs licensing boards to consider an exception from Sec-tion 50.47(b)(12) under-10 CFR $ 50.47(c)(1) for applicants who meet the pre-GUARD standard for medical services and commit to full compliance with the Commission's forthcoming response.to the. GUARD remand. 50 Fed. Reg. at 20893.
'Because~the ASLB found that Applicants have fully complied with 10 CFR 5 50.47(b)(12) as interpreted by GUARD, the ASLB apparently did not believe it twas necessary to pursue the course of action made available by the Commission.
However, the ASLB required Applicants.to commit to comply with any additional requirements that may be forthcoming in the Commission's response to the GUARD remand. PID at 15, 123 (Condition 4). Applicants'have fulfilled that condi-'
tion .' See id. at 123.
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- 5. -Contention Qi Letters of Agreement for School Buses The-portion.of Contention Q which remained following summary disposition 32/.
' concerned formal ~ letters of agreement with school districts supplying buses in
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1 the. event:of.an emergency. evacuation at Perry. See PID.at 15-16. The, evidence, unchallenged by Sunflower, was that the ner.ssary letters were under development .
-and would be obtained in~a timely' fashion. _ Applicants' Direct Testimony of-John
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Baer on. Issue No.-1 -' Contention Q, ff. Tr. 3047, at 1-2; Shapiro at'9; Tr.
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J3049-51 (Baer). .See PID-at 16. The ASLB concurred that the contention was without basis, but imposed a condition :that the letters must be obtained prior
,a
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to operating-license issuance. PID at 16, 123 (Condition 2).
S'unflower declines to brief its purported appeal'of this contention,.but
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simply; notes that " Revision 5 of the PNPP Emergency Plan does not contain let -
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- ters of agreement as of September,.1985." ' Sunflower Brief at 24 Sunflower fails 1to explain the' significance of this observation, given the fact that the letters-are not required prior-to operation of Perry above 5*. of rated power.
See 10.CFR $ 50.47(d); Memorandum-and' Order (Motion for Clarification of Initial-Decision)-(October 4, 1985), at 2.33/_ Sunflower's appeal of Contention Q is
.w ithout merit J and should be rejected.
f 1
32/ See April 9, 1985 Memorandum and Order at 8; March.13, 1985 Memorandum and Ordercat 1.
- 33/ Neither;does, Sunflower provide any reason to believe that the letters,.when obtained,' would be ' published.in Applicants' onsite plan.
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J. y .
- 6. ContentionLU: ' Handling Contaminated Property at
' Reception Centers Contention U claimed that reception centers do not have the means or facil-11 ties to handle contaminated property. The ASLB found, contrary to the conten-
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tion,'"that the reception' centers around PNPP will be adequately supplied with.
equipment and supplies for implementing monitoring and decontamination proce-dures in handling property and that trained fire personnel will be available 'to carry out this assignment." PID at 18.
Sunflower on appeal simply restates its proposed findings. First, Sunflow-er states that emergency kits were not present at reception centers at the time
'of the hearing. . Sunflower Brief at 24.34/ There is no regulatory requirement that-such kits be in place at the time of the hearing. Wolf Creek, LBP-84-26, NRC at.61-62 & n.4. In any case, the ASLB imposed a license condition that emergency kits be in place prior to operation above 5% power. PID at 123 (Condition 3). See Memorandum and Order (Motion for Clarification of Initial Decision), supra, at.2.
Sunflower also claims, based on a provision in the Ohio' Disaster Services Agency's ("0DSA's") Radiological Training Manual (see Sunflower Ex. 12), that I
. private individuals will be personally responsible for decontaminating their own vehicles and equipment. Sunflower Brief at 24 The provision cited by Sunflow-er does not apply to nuclear power plant accidents. Tr. 3201-03 (Wills). See PID at.17-18. Decontamination of privately owned vehicles at reception centers .
34/ Sunflower. incorrectly assumes that the emergency kits will be stored at the reception centers'themselves. The equipment will be kept at the fire depart-ments responsible for monitoring and decontamination activities at reception centers. Tr. 3060 (Baer). See Memorandum and Order (Motion for Clarification
- of Initial Decision),. supra, at_2.
c .
- .-(
will befhandledL-by' fire departmens personnel. Applicants' Direct Testimony of John:Baer on-Issue No. 1 - Contention U, ff. Tr. 3055 ("Baer (Contention U)"),
'at 1-2. See PID at 17.
' Sunflower further' complains that vehicle de' contamination procedures do not
~
. provide for trapping of radioactive water runoff. Rather, the areas where decontamination takes place are quarantined. Sunflower Brief at 24. The quar-lantine procedureLis a commonly accepted method that would pose no threat to the publiclheslth or safety,:and that there is no need to conduct special studies of possible-leaching effects. Tr. 3068 (Baer). See PID at 18 (Finding 58).
.' Finally, Sunflower alleges that although the Ohio EPA is designated to dis-pose of contaminated personal property collected at reception centers, Ohio law
-does not give that agency authority to handle nuclear waste. Sunflower Brief ar
for disposal of. contaminated personal property with a licensed commercial' radio-
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active. waste disposal firm. Baer (Contention U) at 2. See Tr. 3056-57 (Baer).
There was no need for the ASLB to consider whether the State Plan is in conflict with State law on this point, since an'NRC licensing proceeding is not the appropriate' forum for resolving such alleged conflicts. See suora at I'B.3.35/
35/[Inanyevent,~Sunflowerfailstoestablishsuchaconflict. Sunflower
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- cites Sections- 3734.01 et seq. of the Ohio Revised Code. Although
$-3734.01(J)(2) provides that Ohio does not have regulatory authority over sub-stances' subject'to the Atomic Energy Act, nothing in the statute prohibits the
-Ohio EPA from making the arrangements specified in the . State Plan. Arranging for disposal > of the . contaminated material with a licensed firm is not exercising regulatory authority.
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.m W
- 7. Contention Z: Bus Driver Protection Sunflower's Contention Z asserted that the emergency evacuation plans do
- not provide decontamination protection for bus drivers. Sunflower contended that bus drivers should also be provided with protective gear such as respira-tors and goggles. See PID at 18.
The ASLB correctly rejected Sunflower's argunents. See id. at 17-18. Sun-flower first' argues that the testimony of Applicants' witness Baer was inconsis-tent because he stated that there is no regulatory requirement or guidance' call-ing for bus dristers to be supplied with respirators, yet he acknowledged that an EPA Manual recommends respiratory protection for emergency workars. Sunflower Brief at 25. However, Sunflower ignores Mr. Baer's testimony that the EPA Manu-
~ al's recommendation does not apply to bus drivers. Tr. 3071-74, 3076 (Baer).
For instance, bus drivers will not -be required to remain in evacuation areas to
. perform' life-saving activities or time-consuming loading of elder ~1y or handi-capped-persons into special vehicles. Tr. 3073-74, 3084-86 (Baer) . SS Appli-cants Direct Testimony of John Baer on Issue No. 1 - Contention Z, ff. Tr. 3069
("Baer-(Contention Z)"), at 3-4; see also PID at 19.
Sunflower also claims that Applicants have failed to consider the possibil-ity of prolonged radiation exposure to bus drivers as a result of repeated trips-into.the plume EPZ. Sunflower Brief at 25. Ther'e is no record support for this claim.3_6/ There are sufficient buses to evacuate.everyone needing transporta-tion in a single trip. Tr. 3082 (Baer). In any event, bus drivers would not be subject to radiation exposures beyond the protective action guides established for the general population. Tr. 3074 (Baer).
3_6/ Tr. 3074, cited by Sunflower, contains no discussion of repeated trips into the plume EPZ for bus drivers.
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Sunflower.also states that.the dosimetry supplied to bus drivers is not ca-r pable o'f recording cumulative _ radiation exposures. Sunflower Brief at 25. Sun-flower's citation to the record, at Tr. 3078, does not support this claim. On
-the contrary, the record indicates that the self-reading dosimeters supplied to
. bus' drivers do measure cumulative exposure, or radiation dose, as opposed to dos e . rate'. See Baer (Contention Z) at 3; Tr. 3077-78 (Baer).37/
Finally, Sunflower argues that "(a]s of the-time of hearing, training to
- bus drivers-'on the use of dosimeters had been given to only one-half of their
- number." Sunflower Brief at 25. There is no regulatory-requirement that training of personnel must be complete at the time of the hearing. Wolf ~ Creek, LBP-84-26, 20 ?UM: at 61-62 & n.4. Sunflower provides no reason to believe that
.the training of bus $ rivers will not proceed in a timely fashion.
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- 8. Contention-BB: FEMA Interim Reoort-Contention BB asserted that the offsite. emergency plans for Perry are inad - .
equate;due to the' planning deficiencies set forth in FEMA's Interim Report on
-Offsite Radiological Emergency Planning for.the Perry Nuclear Power Station
.(1984) (" FEMA Interim Report").38/ See PID at 19. Sunflower alleges, as it did in its pro' posed _ findings, that 58 of the 145 planning deficiencies set forth in the FEMA Interim Report were "still open and not corrected as of the time of .
hearing." Sunflower Brief at 26.
37/ In addition, each bus driver will be provided with a thermoluminescent dosimeter-("TLD"), which is a permanent record device. Tr. 3076 (Baer). See-Baer (Contention Z) at 2. _TLDs also measure cumulative exposure.
-38/ FEMA Ex. 1, ff. Tr. 3111.
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In fact, the 58 deficiencies cited by Sunflower were those originally iden-tified by FEMA in the Interim Report itself as being uncorrected. See Appli-cants' Direct Testimony of John Baer on Issue No. 1 - Contention BB, ff. Tr.
3088 ("Baer (Contention'BB)"), at 2; Tr. 3097 (Baer); see also PID at 20. Most h'ad been corrected by.the time of the hearing by subsequent revisions to the county plans. See Baer (Contention BB) at 2-3; Tr. 3097 (Baer); see also PID at
- 20. .The evidence established that the county plans are adequate in spite of the few remaining uncorrected deficiencies. See Shapiro at 13. The ASLB correctly concluded that there was no reason to believe that the few items still being addressed at the time of hearing would not be resolved in a timely manner.39/
Sunflower provides no grounds for questioning the ASLB's conclusion.
II. -Reply to OCRE A. The ASLB Correctly Decided OCRE Issue Nos. 8 and 16 1, Issae No. 8: Hydrogen Control
- a. Introduction Issue No. 8 has a long and somewhat complicated history. Its background is recounted in the ASLB's Memorandum and Order (Motions on Hydrogen Control Con-tention) (March 14,'1985) at 1-3. See PID at 22-23. As reworded and admitted by the ASLB,' the contention challenges the ability of Applicants' distributed igniter system to comply with the hydrogen control requirements of 10 CFR
$ 50.44(c)(3)(iv)-(vii),'50 Fed. Reg. 3498 (1985) (the " hydrogen rule").
- 39/.-Those items primarily concerned Applicants' emergency information material.
Baer (Contention'BB) at 3. -See PID at 20. The NRC reviewed the emergency Linformation' brochure for Perry and-determined that it complies with the applica-ble regulatory guidance. Tr'. 3145-46 (Perrotti). See PID at 20.
After a detailed review of the extensive record on this issue, the ASLB
. concluded that Applicants' hydrogen igniter system complies with the hydrogen rule,.and that Applicants have carried their burden of proof on Issue No. 8.
See PID'at 56-59. OCRE now appeals the PID, arguing that the ASLB misinter-preted and misapplied the hydrogen rule and applied the wrong standards for ad-judicating Issue No. 8 (OCRE Brief at 2-12), that the PID is based on unreliable evidence (id. at 13-16), and that.it applies the wrong burden of proof and is illogical and contrary to.the weight of evidence (id. at 16-25). For the'rea-sons below, OCRE's appeal of the ASLB's dismissal of Issue No. 8 is without merit and should be dismissed.40/ ,
- b. The ASLB Correctly Interpreted and Applied the Hydrogen Rule The first'section of RE's brief, while somewhat disjointed, appears to argue two basic points: (1) that the ASLB placed too much weight on the Staff's interpretation of the hydrogen. rule; and;(2) that the ASLB refused ~to rule on the proper scope of a preliminary analysis and applied the wrong standards for adjudication. Both. arguments are without basis.
The Staff's Role OCRE begins w'ith a " straw me, : 'that Applicants and Staff believe the hy-drogen rule "give(s) the Staff the sole power to determine whether compliance with the' rule has been achieved." OCRE Brief at 3. Neither Applicants nor the Staff advanced this position,41] nor was skch a position adopted by the ASLB.42/
40/ OCRE's brief contains numerous citations to its proposed findings, often
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with little discussion.of the PID. Where OCRE incorporates by reference its L proposed findings, and offers rua new argument based on the PID, Applicants have identified' for the Appeal Board those portions cf Applicants' Reply To Proposed Findings of Fact and Conclusions of Law Filed By The Other Parties (Hydrogen Control). (July 1, 1985) (" App. Reply") which address OCRE's proposed findings.
41/ See, e.g., Applicants' Proposed Findings qi fact and Conclusions of Law in '
the Form of a Partial Initial Decision (Hydrogca Control) (Juc.e 3, 1985) (" App.
(Continued Next Page)
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. 'f An extensive record was developed demonstrating to the ASLB's satisfaction Applicants' compliance with the hydrogen rule.
0CRE' argues that' "a basic misunderstanding of the obligations and authority of the Liceasing Board as opposed to the Staff pervades not only the PID but
-several earlier decisions as well." OCRE Brief at 4. OCRE admits that "the Board did not explicitly address the question of what the Staff's role is under this rule in a contested proceeding," but asserts that the " decision represents an implidit acquiescence to Applicants' interpretation." Id. at 4.
The single portion of the PID which OCRE cites to support this broad asser-tion of error on the'ASLB's part is page 24 of the PID.43/ But there,'in summarizing the hydrogen rule, the ASLB accurately quoted the rule's requirement
.(Continued).
PFC")~, at 13; App'. Reply at 6-7. As discussed therein, the plain words of para-Lgraph (c)(3)(vii)(B) and other parts of the rule make it apparent that some weight 11s to be given to the-NRC Staff's judgment of what constitutes a satis-factory preliminary analysis. The cases cited,at page 6 of OCRE's brief did not involve similar express delegations by the Commission. Cf. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Suclear Power Station), ALAB-141, 6 AEC 576, s 580-81--(1973) (citing the "' venerable' doctrine that the ccustruction of a stat-ute by the agency charged with its administration is entitled to great weight,"
and applying that doctrine to staff interpretations of Commission regulations);
see also-Houston Lighting and Power Co. (South Texas Project, Units 1 & 2),
CLI-82-9,.15 NRC.1363, 1370 (1982) (the Staff "as an arm of the Commission and
'as;the principal instrumentality through which the Commission carries out its regulatory. responsibilities...is charged with the more weighty responsibility of
. advancing the correct interpretation of the Commission's regulations").
42/ OCRE attempts'to have the Appeal Board consider extra-record material on the issue of "the degree to which the Commission intended to place discretion on
=
this issue with the Staff." See OCRE Brief at 11-12, Attachment. OCRE offers-
- the material for'the proposition that "the rule was never intended to insulate the Staff's' actions from Licensing Board' scrutiny"-(OCRE Brief at 12). Whether or not OCRE's attachment is competent "I gislative history," Applicants have not argued that the. rule insulates the Staff from the ASLB's scrutiny.
43/ See OCRE Brief at 4.
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-that Applicants'. analysis must "use accident scenarios that are accepted by the Staff." -See PID at.24; 10 CFR $-50.44(c)(3)(vi)(B)(3). Contrary to OCRE's claim,-0CRE Brief at 4, the ASLB did not "ignor(e) the substantive requirements" of the section of the rule dealing with' accident scenarios. The ASLB dealt ex-tensively with these requirements. See PID at 35-45, 48-53.
OCRE next asserts--without citation or explanation--that Applicants 1
presented their interpretation of 10 CFR S 50.44(c)(3)(vii) "as essentially a -
challenge to the jurisdiction of the Licensing Board." OCRE Brief at 3.44/
Contrary to OCRE's suggestion, Applicants never challenged the'ASLB's jurisdic-tion to construe and apply subsection (c)(3)(vii) regarding the scope of the Commission's preliminary analysis requirements. .
OCRE claims that the ASLB should not have delegated Conditions 6'(imple-menting procedures)'and 7 (confirmatory analysis)45/ to the Staff for 44/- See also OCRE Brief at 5, which incorrectly asserts:
Applicants have argued that, in the case of the hydrogen rule,
'the Commission chose not to delegate... determination of the scope of the preliminary analysis to the Board,. but rather gave-those functions to the Staff in 10 CFR S 50.44(c)(3)(vii)(B).
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OCRE provides no citations to support the assertion, which patently misstates Applicants' position. See, e.g., App. PFC at 10-14; App. Reply at 3-7.
45/ Conditions 6 and 7 are set forth at PID at 123:
Prior to the issuance of the aforementioned licenses the Appli-cants shall demonstrate to the Director of Nuclear Reactor Reg-ulation satisfactory completion of the following
- 6. Written procedures for operation of the hydrogen igniter' system are available before operation in excess of 5% power.
(Continued Next Page) t
post-hearing resolution. See OCRE Brief at 6-9, 11-12.46/ Contrary to OCRE's claim,ithe ASLB.did not refuse to consider Applicants' implementing procedures for~the hydrogen control system. OCRE Brief at 12. The record described the general approach to be incorporated in the procedures. See PID at 90-91 (Find-
.ings 82, 85). OCRE had full opportunity to cross-examine this testimony. The ASLB considered and rejected OCRE's arguments.that the procedures are of suffi-cient complexity to warrant further detailed consideration. See PID at 27-28.47/
(Continued)
- 7. Applicants have made further confirmatory analysis of equipment in the containment that has not been qualified for pressure survivability, or have narrow margins of pressure survivability: this includes containment vacuum breaker, hy-drogen mixing compressor and discharge check valves.
46/; Although as a general proposition, issues should be dealt with in the hear- .
ings, relatively minor unresolved issues may be left to the Staff if the ASLB is able to.make the reasonable assurance findings requisite to the issuance of the license. Consolidated Edison Co. of New York (Indian Point Station, Unit No. 2), CLI-74-23,_7 AEC 947, 951 (1974); see also Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit ~1), ALAB-788, 20 NRC 1102, 1159-60 (1984) -
.(permitting post-hearing delegation to the Staff to confirm that non-safety electrical equipment was either upgraded to be environmentally qualified under 10 CFR $ 50 49, or isolated from safety-related equipment); Philadelohia Electric Co. (Limerick Generating Station, Units'I and 2), LBP-84-31, 20 NRC 446, 506-09 (1984) (delegating to the Staff remaining S 50.49 environmental qualification issues).
47/ OCRE's reliance (OCRE Brief at 7, 12) on Union of Concerned Scientists v.
NRC, 735 F.2d 1437 (D.C. Cir. 1984) is misplaced. In that case, the court held that the evaluation of emergency preparedness exercise results was a material licensing issue based on an NRC regulation which made the exercise results a precondition to licensing. 735 F.2d at 1438, 1442-43. In this case, there is nothing in the hydrogen rule, or in'0CRE's contention, that required the ASLB to examine the detailed implementing procedures for the hydrogen control system.
Cf..Waterford,'ALAB-732, 17 NRC at 1106-07 (implementing procedures for appli -
cant's emergency plan not required for " reasonable assurance" finding). Unlike
- the emergency planning ruleslat-issue in Waterford, the hydrogen rule does not require ~that Applicants submit-implementing procedures to the Staff.
'Similarly, Applicants' preliminary analysis of equipment survivability was extensively considered below. See, e.g., PID at 45-48, 103-108 (Findings 136-153). Subject only to the condition of "further confirmatory analysis" of the pressure survivability of three pieces of equipment (containment vacuum breaker,
~
hydrogen mixing compressor and discharge check valves), see PID at 45-48, 123, the ASLB confirmed the adequacy of Applicants' preliminary analysis of equipment
~
survivability.48/ Hence, Condition 7 was an appropriate matter for post-hearing confirmation by the Staff. The ASLB's judgment that the matter was minor enough
~
'to be resolved by the Staff, and that it did not justify further hearings, is consistent with the eviden;ce concerning these few items and with the extensive record demonstrating the overall adequacy of Applicants' preliminary survivability analyses.49/
Secpe and Standards for Adjudication OCRE first asserts, OCRE Brief at 3, that the ASLB " refused to accept its ,
responsibility" to determine Applicants' compliance with 10 CFR $$'50.44(c)(3)
(vii)(B) and 50.57(a)(2). OCRE's assertion is witho'ut basis. The ASLB clearly 48/ The record indicates that _this is a comparatively minor item in the overall issue, and.that.further analysis will confirm that the limited number of compo-nents involved will survive the pressures expected from a hydrogen event. See, e.g., Findings ~140, 141, and the evidence cited therein.
49/ Moreover, it is clear from Section 50.44(c)(3)(vii)(B) that the Commission does not require " completed final analy'es"s to justify equipment survivability prior to full-power operation, as long as Applicants' preliminary analysis is satisfactory. There is no .basisifor OCRE's suggestion (OCRE Brief at 12) that it was'"an idle gesture" for the ASLB to direct the Staff to consider further-confirmatory analysis by Applicants. The fact that the Staff was satisfied with Applicants' preliminary analysis of pressure survivability of the three compo-
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nents in question, Staff Ex. 8 at 6 6-11, certainly does not mean--as CCRE implies--thatLit will be unable or unwilling to conduct further confirmatory '
analysis, as required by the ASLB. ,
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. held 't hat " Applicants' preliminary analysis as described in the preliminary
- evaluation report and in Applicants' testimony, and as approved by the~ Staff and
- discussed in Staff's testimony, does address in detail the substantive provi-sions of.the hydrogen rule." See PID at 25, 54-59.50/ The ASLB's standard of l acceptance, "whether there is reasonable assurance of safety during operation at-Perry based on our assessment of the record that was actually developed," PID at 25-26, is in accord'with the standards set forth in 10 CFR r,
5 50.44(c)(3)(vii)(B), as well as 10 CFR 9 50.57(a)(3).51/ The standard is
-therefore not " illegal," as OCRE contends.
0CRE Ldevotes a substantial portion of its brief attempting to show that the ASLB possesses "a basic misunderstanding of the obligations and authority"'it possesses under Sections 50.44(c)(3) and 50.57 of the Commission's regulations.
See OCRE Brief at 4-12. However, OCRE's lengthy argument fails to identify any errors of fact or. law in.the PID. Most of its argument'is simply irrelevant to
'+
the' matters. litigated below.
.i 50/. Indeed, the'PID provides in. great detail the bases for the ASLB's conclu-sion that-Applicants' hydrogen control system, and supporting preliminary analy-sis, meet-the hydrogen rule. .Because the preliminary analysis went well beyond the requirements of the-rule, there was no necessity for the ASLB to " define the precise boundaries that separate the prelimi.tary analysis from the final analy-
-sis because the Applicants submitted an extensive and detailed analysis of hy-drogen combustion during degraded core events at Perry." PID at 54. See App.
TPFC at 10-15.
51/ The ASLB-_ clearly spelled out at pages 54-59 of the PID how it applied this general standard to the preliminary analysis requirements of the hydrogen rule.
OCRE fails.to cite, let alone discuss, this portion of the PID, despite its clear relevance to the-issues raised by OCRE at pages 2-12 of its brief.
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JOCRE concludes after s'ome discussion, for example, that:
JIf it.is inappropriate to consider low-power licensing in a full-power operating license proceeding, absent a specific pe-
- tition,under.the appropriate regulatory standards, then it is
= improper to consider interim acceptance criteria and licensing-son a contested issue absent statutory authorization.
OCRE BriefLat 9'. Low power licensing is-irrelevant-to the PID. The issue con-sideted and decided'by_the ASLB concerned Applicants' application for. full power m
'(not low-power) operating licenses. PID at 1, 122-24; Memorandum and Order-(Mo '
I ition for-Clarification of Initial. Decision), supra, at 2.
' <0CRE fails to demonstrata that the ASLB improperly considered " interim
~ acceptance criteria" in violation of Commission regulations. Indeed, the ASLB's references to an " interim period" prior to completion and approval cf Appli-
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cants' final analysis 52/ are completely consistent with the plain words in the h'ydrogen rulo:
. ~
Completed final analyses are not necessary for a staff determi-
- nation that a plant is safe to' operate at full power provided- .
that prior to such operation an applicant has provided a pre-liminary analysis which-the staff has determined provides a satisfactory basis'to support interim operation at full power until the final analysis has been completed.
L >
10 CFR 5.50.44(c)(3)(vii)(B) (emphasis added).
Similarly, OCRE's legal arguments-(OCRE Brief at 5-6, 10) suggesting that Applicants' final' analysis "is part of the final, full-term licensing," and-that it is."within the-Licensing. Board's jurisdiction," are irrelevant to matters litigated below. Since OCRE admits-that it "did not argue this," OCRE Brief at 10,.0CRE is not entitled to make that argument now.53/
152/. See, e.g., PID at 33, 46 (cited, but not discussed, at page 3 of OCRE's brief).
53/ In any case, OCRE*a assertions regarding the final analysis are in error.
'Section 50.44(c)(3)(vii)(B) makes.it clear that " completed final analyses are (Continued Next Page) a a
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,14 ' f
.s
d OCRE further asserts that:
!. 1_
rather than using a subjective " safety in the interim" stan-
- dard, the Board should have required full resolution of.the matters raised in-the preliminary analysis (as defined by OCRE) before licensing.
OCRE Brief.at 11. .0CRE-claims that the ASLB should have adopted "a reasonable-ness test for defining the scope of the preliminary analysis" suggested in OCRE's proposed findings. See id.~'at 10-11. 'OCRE' failed to define such a test,
'other than that it "must encompass all issues raised by intervenors." Id. at
- 11. OCRE's only reference to the PID to support its related claim that "the Board's standard is completely unreasonable" (OCRE Brief at 11) is the follow-4 ing:
It is apparent from the PID that the only criteria which need be met to satisfy the Board are that the preliminary analysis mention the substantive requirements of the rule and that it be approved by the Staff. PID at-25. No evaluation of sufficien-cy was required.
Id. This clearl'y mischaracterizes' the ASLB's statements' at page 25 of the PID, which indicated that the ASLB had carefully evaluated the sufficiency of Appli-1 cants' preliminary. analysis, and the Staff's review and acceptance of the pre-liminary analysis. See PID at 25. .
(Continued) not necessary for a staff determination that a plant is safe to operate at full power," so long as Applicants l provide a satisfactory preliminary analysis. The ASLB agreed. See, e.g., PID at 25 ("The Applicants have no obligation under the rule to present a final analysis until some time after reactor startup and oper-ation at full power.") Thus, the ASLB_would be without authority to conclude that completed final analyses were required as a condition precedent to full-power licensing.
s
- c. The ASLB Gave Appropriate Weight to the Expert Testimony Presented Below OCRE next argues that the ASLB failed to adopt its arguments that some wit-
. nesses were1" evasive, untruthful or incompetent," and should therefore be given
. L11ttle if.any weight. OCRE Brief at 13-16. An examination of the few examples
~
given by OCRE shows that the ASLB gave proper weight to testimony below.
OCRE argues that the ASLB was in error, but fails to substantiate the as-sertion. The four isolated instances which OCRE cites (id. at 13), where the
-ASLB. Chairman directed witnesses to provide further answers, hardly call into question the ASLB's reliance on the witnesses overall testimony. The ASLB's
' determination of-the witnesses' truthfulness and credibility is entitled to sub-stantial deference.54/ Nor does OCRE's incorporation by. reference of its pro-
~
posed findings provide any basis to overturn the PID. OCRE Brief at 13. 55/
OCRE cites a number of examples in which the ASLB allegedly " relied upon ipse dixit averments of the witnesses and other material that was not in the record and was' incapable of being examined by OCRE." OCRE Brief at.13.
~
Con-trary to OCRE's assertions, the ASLB dealt appropriately with all the examples which OCRE raises.
54/ Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 SRC
, 397, 404 (1976) ("where the credibility of evidence turns on the demeanor of a witnes s . [the appeal board] give[s] the judgment of the trial board which saw and heard his testimony particularly great deference").
55/ 'The proposed findings reasserted by OCRE, id. at 13, are addressed in de-tail in Applicants' reply findings: alleged contradictory testimony by Mr. Alley (compare OCRE PFC at 24-26 with App. Reply at 17-20); Mr.
Notafrancesco's expertise (compare OCRE PFC at 30 n.1, 32 n.2 with App. Reply at 36); credibility of Dr. Fuls (compare OCRE PFC at 32 n.2 with App. Reply.at 35-36); and competence of Dr. Lewis (compare OCRE PFC at 34 and n.3 with App.
- Reply at 40 n.22).
i r- ____ _m
OCRE's argument regarding testimony on " analyses of stresses at defective welds in the containment vessel at 50 psig" (_i_d. at 14) is without basis. OCRE never asked Applicants to furnish copies of the underlying calculations, and asked no questions about the calculations that the witness was unable to answer.
OCRE does not explain why a review of the underlying calculations is required. '
See PID at 31-32.
The testimony by Dr. Lewis on flame speeds, cited by OCRE (OCRE Brief at 14), was hardly an unreliable "ipse dixit avern.ent" of a witness. The Appeal Board has recognized the special competence of Dr. Lewis to address the hydrogen control issue. See Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 471 & nn. 37 & 39 (1982). Moreover, OCRE did ex-amine Dr. Lewis on the statement. See Tr. 3520-22 (Lewis). In any case, the ASLB's conclusions as to the adequacy of Applicants' analysis clearly do not depend on the flame speed testimony cited by OCRE. Sy PID at 40.
GCRE's argument regarding Applicants' testimorv on drywell leakage of hy-drogen (OCRE Brief at 14) is refuted by the expert testimony of Applicants' and Staff's witnesses, which the ASLB accurately summarized. PID at 45. That testimony amply demonstrates that Applicants adequately considered the effects of drywell leakage on the operation of the igniter system.M/
56/ OCRE suggests, id. at 14, that Applicants " refused to answer" Interrogatory No. 13-10 from OCRE's 13th Set of Interrogatories relating to General Electric
("GE") analyses. OCRE neglects to point out that its discovery concerning GE was untimely, and that Applicants were never required to respond. The sequence of events with respect to OCRE's late-filed 13th Set of Interrogatories is set forth in the following: Applicants' Answer to OCRE Motion to Reopen Discovery on Issue No. 8 (August 14, 1984); Applicants' Further Answer to Ohio Citizens For Responsible Energy Motion to Reopen Discovery on Issue No. 8 (September 24, 1984); Applicants' Voluntary Answers to a Portion of OCRE's Late-Filed (Continued Next Page) w OCRE's complaints about the ASLB's treatment of testimony relat'ing to Grand Gulf. analyses (OCRE Brief at 14-15) are without basis. OCRE initially claims that Applicants " defaulted on their discovery obligations" by failing to make available documents relating to hydroger control analyses performed for the Grand Gulf plant, in response to Interrogatory No. 13-7 of OCRE's 13th Set of Interrogatories. 'OCRE's interrogatory was untimely, and Applicants were never required to respond to it; thus, there was no default.57/
OCRE asserts-(OCRE Brief at 14-15) that the ASLB relied upon analyses of drywell capacity, equipment survivability, and secondary fires performed for the
. Grand Gulf plant which were not part of the record, citing Finding 114 (pressure capacity of the conta.nment drywell), Finding 136 (equipment survivability), and Finding 148 (secondary fires)'. Those findings include ample citation to the record. OCRE fails to show that the evidence is in any way unreliable. -OCRE had full' opportunity to test this evidence by cross-examination and otherwise to (Continued) i Thirteenth Set of Interrogatories to Applicants (Issue 98) (December 28, 1984);
. Applicants' Second Voluntary Answers to a Portion of OCRE's Late-Filed *
. Thirteenth Set of Interrogatories to Applicants (Issue #8) (December 28, 1984);
Memorandum and Order (Motions on Hydrogen Control Contentions)-(March 14, 1985),
at 7-8. OCRE was permitted extensive discovery on Issue #8, in addition to the
- extensive material it obtained through Freedom of Information Act requests.
See, e.g., Tr. 2009-10, 2025.
57/ See preceding note (and references cited therein). It-is also clear that OCRE had available to it extensive material from the Grand Gulf docket relating to the_ hydrogen issue, which it was free to use for cross-examining Applicants' witnesses. -See, e 3., OCRE Updated Response to Applicants' Second Set of Inter-rogatories to OCRF (January 22, 1985) (updated response to Issue #8, Interroga-tory #3, at 4-6,. listing "submittals and licensing correspondence on the Grand Gulf docket related to hydrogen control"). OCRE was also well aware prior to the hearing of the areas in Applicants' preliminary analysis involving compari-sons to Grand Gulf. See App. Ex. 8-1 at'Section 5.0 (" Design Comparison to Grand Gulf").
M d
r develop a record. Yet OCRE conducted only minimal cross-examination on Grand Gulf comparisons. Vague, unexplained references to " analyses...not a part of I
the~ record"'(OCRE Brief at 14-15) at this stage do not suffice to undermine the substantial record evidence and the ASLB's detailed findings.
OCRE ch$11enges the ASLB's general statements (PID at 24, 35, 46) that the
_ v hydrogen rule permits referencing of previously approved analyses for plants of OCRE implies that an applicant may only ref-
~
~ similar design. OCRE Brief at 15.
erence hydrogen analyses of other plants when the applicant has a PWR ice con-denser plant, or when. the applicant is referring to accident scenarios. Id.
- The rule is not so restrictive. Applicants and Staff have explained in their analyses (App. Ex. 8-1, Section 5.0; Staff Ex. 8 at 6 6-11), and in their
' testimony 5a/ the extent and justification of any comparisons to previously ap-
- proved Grand Gulf hydrogen analyses. Nothing in the hydrogen rule suggests that Applicants comparisons are unacceptable for a preliminary analysis. OCRE had .
full opportunity to question these comparisons, but conducted only minimal
, cross-examination. The ASLB, having evaluated all the evidence, appropriately
-concluded that the comparisons relied on by Applicants were valid.59/
58/ See, e.g. , Applicants' Direct Testimony of Eileen M. -Buzzelli, John D.
Richardson, Kevin W. Holtzclaw, Roger W. Alley, Bernard Lewis, Bela Karlovitz and G. Martin Fuls on The Preliminary Evaluation of The Perry Nuclear Power Plant-Hydrogen Control System (Issue No. 8), ff. Tr. 3241 (" Applicants' Hydrogen Testimony") at 49-51; Testimony of Hukam C. Garg Regarding Issue No. 8, ff. Tr.
3676'("Garg"); see PID at 103-05 (Findings 136-43).
59/ OCRE poi: ts to nothing that would indicate the ASLB failed to scrutinize
- Applicants' comparisons:to Grand Gulf, and the Staff's approval thereof. OCRE
~ had ample opportunity to attempt to demonstrate that the Grand Gulf information referenced.by. Applicants was not "truly applicable, appropriate, and accurate"
'(OCRE Brief at 15). It has made no such showing.
4 OCRE questions the ASLB's reliance on Applicants' testimony as to the abil-ity of the reactor core isolation cooling ("RCIC") system to maintain cooling water in th$ event of a station blackout scenario, thus preventing the buildup of hydrogen. OCRE Brief at 15 (citing Finding 146 and Tr. 3660). OCRE does not show that the single' detail which the witness could not recall (the initial
- a line-u'p of RCIC suction, Tr. 3660) was of any significance to the testimony or to the ASLB's overall conclusions regarding the station blackout scenario. See PID at 36-38, 55 (discussing the tangential relationship between the station blackout-issue and the preliminary analysis requirements of the hydrogen rule).
OCRE. argues that testimony on the ability of equipment hatch 0-rings to withstand elevated temperatures was not based on the witness' own knowledge, citing Tr. 1650 and its proposed findings (OCRE PFC at 25-26). OCRE Brief at
- 15. As shown at Tr. 3272-78, 3581-83 (see PID at 97 (Findings 108-109)), the
' witnesses had substantial knowledge about the 0-ring issue.60/ The ASLB was fully justified in-relying on the evidence, which showed that compression set of the'0-ring seals is not a problem for the environmental conditions associated with hydrogen burning. See PID at 33.
Althcugh OCRE questions the reliability of testimony on penetration seals, OCRE Brief at 16, OCRE neglects to explain why the witness' testimony'at Tr.
' 3623-24, cited by the ASLB in Finding 113, did not constitute reliable evidence concerning the ability of the seals to withstand diffusion flame temperatures.
See OCRE'Brief at 16.61/ Hence, OCRE's unsupported assertion must be rejected.
- 60/_ OCRE's brief essentially incorporates by refernce its proposed findings, which are addressed-in App. Reply at 21-22.
61/ The basis for the ASLB's rejection of OCRE's claim is also discussed at page 48.of the PID.
s
0 ,
0 \
s .
t OCRE questions the ASLB's reliance (in Finding 102 and at page 39' of the PID) on testimony by Mr. Notafrancesco, who OCRE asserts "is clearly not-an ex-i .
l pert." 0CRE Brief at 16. Although Mr. Notafrancesco does not have the long ex-perience of witnesses such as Dr. Lewis and Mr. Karlovitz, he has been associ-ated with hydrogen research for over three years, and is the individual at the t
NRC with responsibility for reviewing the Perry-igniter system.62/ OCRE gives ru) . reason for questioning Mr. Notafrancesco's substantive testimony, which pro-vided ample basis for confirming his knowledge and experience regarding the hy-4 - drogen control issue. ,.
s OCRE challenges the _ ASLB's rejection of OCRE'S argument in its propos5d
\ f findings'(OCRE PFC at 46-47)-that the 1/4-scale test of diffusion flames, in :
w s 7 Applicants' final analysis should consider diffusion flames resulting from a 75%
_ metal-water reaction. OCRE Brief at 16 (citing PID at 48-49, 107 (Finding 152)). OCRE claims in this regard that it was improperly prevented from .
> ; s challenging the BWR Heatup Code, which will be used in the final analysis. See OCRE Brief at 16. The ASLB properly rejected CCRE's findings, for,the< reasons set forth in the PID at 48-49 and Findings 149-52.63/ The ASLB did permit OCRE cross-examination concerning the BWR Heatup Code release rates to be used in the 1/4-scale _ tests, see, e.g...Tr. 3552-57, 3568, 3622-23 (Richardson), 3692, 3695-96-(Notafrancesco), but then properly sustained, objections to further inquiry into the 1/4-scale tests and'the BWR Heatup Code after it was clearly
\
'N 12/ See Testimor.y of Allen Notafrancesco Regarding Issue #8 (Hydrogen Control)',
Testimony of Allen Notafrancesco on the Hydrogen Control Issue Contained in thi Licensing Board Contention #8, ff. Tr. 3676 ("Notafrancesco I"); Tr. 3666-68, 3672-75 (Notafrancesco), 3674-75.
63/ See App. Reply at 50-52, refuting OCRE's proposed. findings on this subject.
> b
- established that the examination was outside the scope of the preliminary analy-
. sis. See, e.g., Tr. 3692-96 (establishing that the OCRE Ex. 21 raised matters Ethat clearly related to the final analysis, and not to the preliminary analy-3 sis).
. CCRE. argues that. the matter of suppression pool drywell loads, discussed by the ASLB in' Finding 133 and at pages 50-52 of the PID, "is still unresolved."
3:
- 0CRE Brief at 16. The uncontradicted evidence indicates that for Perry, the
. differential pressures were less than those analyzed for the design basis case.
Thus, the matter is resolved. .See PID at 50-51, Finding 153; Tr. 3485-96 y
(Richardson). :0CRE provides no basis for calling into question the credibility i
.of the testimony that was presented.6_4/
- d. .The PID is Supported by Substantial Evidence and Applies the Correct Burden of Proof In the last section of its brief (OCRE Brief at 16-25), OCRE argues that:
the Licensing Board had to ignore crucial evidence, mischarac-terize OCRE's arguments and proposed findings, create bizarre
' theories for refusing to consider the facts, and continually place the burden of proof on OCRE....
- it,
_f .\
64/ OCRE states parenthetically that:
.u The Board's refusal to consider pool loads resulting from con-Mp('. servative assumptions (PID at 51) also contradicts OCRE Ex. 19, j.K ,
in which the Staff required the most severe pool loads to be evaluated.
OdkE~Briefat'16'. The information requested in the Staff's September 1982 let-ter ,to Applicants: (OCRE" Ex. 19) went beyond what the current hydrogen rule re-4
' quires. In any case, the Staff's testimony indicated that a majority of_the questions in.that document have been responded to, and the remaining questions will be addressed as part of Applicants' final analysis. Tr. 3684
.(Notafrancesco). OCRE fails to show any contradiction between the ASLB's con-clusions at page 51 of the PID, and OCRE Ex. 19.
s
,6
~ 0CRE'Brief at.16-17. ~ The ' examples OCRE gives to support these broad assertions do not-provide a' basis to question.the PID.
OCRE~first questions the ASLB's treatment, PID at 28, of OCRE'S arguments
.on1 potent ai l radioactive releases from containment venting. OCRE Brief at-1715/- :0CRE was ' permitted to explore containment venting in the' hearing. The evidence indicated that the venting and offsite dose issues raised by OCRE are
- being adequately handled by Applicants in a manner consistent with the Commis-sion's regulations.fs/ Moreover, OCRE' raised the issue of venting in the con-
- text of a hypothetical station blackout event, which is not required to be ana-
- lyzed as-part of'a preliminary analysis under the hydrogen rule.17/ In any case, OCRE's briefl deals selectively with the PID and fails to explain how the issue
'of'" radioactive releases from containment venting" calls into question the ASLB's ultimate determination regarding the adequacy of Applicants' hydrogen s5/- See OCRE PFC at 15.
W is/ See, e.g., Tr. 3599-36'00.(Buzzelli) (demonstrating that current design basis of fsite dose values are conservative); Tr. 3441-43 (indicating that Appli-L cants are establishing 'a vent path for the' unlikely possibility that. venting would be needed following a station blackout); PID at 105-06 (Findings 145-46).
{7/ Sc3 App.' Reply at 26-29 (demonstrating why Applicants are not required to
-analyze a_ station blackout scenario as part of the~ preliminary analysis). As noted in Applicants' Reply, the igniters would be supplied with power from the emergency diesel generators in the' event of a LOCA with loss of offsite power.
See Tr. 3632-33 (Buzzelli). Applicants' testimony on Issue No. 16, discussed infra 5 II.A.2, demonstrates that the PNPP diesel' generators are reliable. See
- PID at 59-76, 109-22. In any event,-given the low likelihood of a station blackout event leading to release'of large amount of hydrogen, the ASLB reason-
-ably concluded that the hydrogen rule does not require detailed consideration of The July venting as part.of the preliminary analysis. See PID at 28, 36-38.
15,.1985;1etter cited by OCRE at page 17 of its brief was extra-record material, which in-any case provided no basis for the ASLB'to consider reopening the record to pursue the venting issue. (Indeed, OCRE did not move to reopen the record.)
c , -- -- _
e
' control system.68/
-For the reasons discussed above, there is no basis for OCRE's suggestion, OCRE Brief-at 18, that the ASLB was required by the hydrogen rule to take probabilistic evidence concerning the likelihood of a station blackout event, as
-part of its consideration of Applicants' preliminary analysis.69/ For the same reasons, OCRE's arguments concerning the probability and risk of a station 1
blackout, OCRE Brief at 18-19, do not call into question the ASLB's determina-tion-that Applicants and' Staff have adequately considered station blackout for' purposes of a preliminary analysis under the hydrogen rule.
OCRE is also incorrect in its assertions that the ASLB " failed to confront t
the facts," and that the ASLB " ignored substantial evidence in the record con--
trary to its conclusions." OCRE Brief at 19.
~
OCRE first suggests that the, ASLB ignored "the severe. criticisms.of the CLASIX code," citing OCRE Ex. 21. Id.
The criticisms were not-ignored; the ASLB explained at length why it discounted .
them. :See.PID at. 38-43, 100-02 (Findings 122-33);70/
OCRE's reference, OCRE Brief at 19, to "0CRE Ex- 20, which contained the NRC Staff's recommendation'that,the CLASIX-3 Code not be used," is misleading and out of context. The Staff's. comments in OCRE Ex.'20 (an August 1984 Staff
'68/ 10CRE's reliance on Metropolitan Edison Co. (Three Mile Island Nuclear Sta-tion, Unit No. 1), CLI-80-16, 11 NRC 674.(1980), OCRE Brief at 17, is misplaced,
-since that decision pre-dated the enactment of the hydrogen control rule which
!is the basis of OCRE's reworded' contention. See PID at 22-23.
69/ In referencing-a 10 CFR 5 50.55(e) report attached to OCRE's post-hearing letter to the ASLB (OCRE.Brief at 18), OCRE again seeks impermissibly'to rely'en extra-record material, which, in any event, does not address a postulated sta-tion blackout accident.
70/ See App. Reply at 30-40, 45-46 (comparing OCRE Ex. 21.to Applicants' CLASIX-3 analysis).
e
c
};:~
p B 'information request to Applicants, which' pre-dated the hydr' ogen rule), related V
to the use of CLASIX-3 in demonstrating equipment survivability. The Staff N
testified'that, although'0CRE Ex. 20 alluded to a possible non-conservative ele- ,
4 ment of CLASIX-3, the overall effect of the .CLASIX-3 analysis for Perry was con-y 'servative. See Tr. 3684-87, 3721-22, 3733-34 (Notafrancesco). OCRE's example
.of a statement'by Sandia which the ASLB allegedly ignored (the effect of igniter
. location and-spray shield), OCRE Brief at 19 is similarly flawed; the ASLB con-sidered-the evidence and reached a different conclusion.21/ Similarly,'OCRE's assertion that the ASLB ignored'information in OCRE Ex. 18 regarding credit for
. annulus' concrete, OCRE Brief at 19, is no more than a disagreement with the ASLB's weighing of the. evidence. See PID at 31-32; App. Reply at 19;Z2/
s OCRE -reasserts its proposed findings, OCRE PFC at 22-23, regarding margins Lin the'Aptech analysis (OCRE Ex. 13), claiming that the ASLB at page 31 of the.
PID "mischaracterizes OCRE's arguments." OCRE Brief at-19-20. The ASLB gave thorough treatment to OCRE's proposed findings regarding the Aptech analysis (PID at 31-32, Findings 100-106) and properly found.that Aptech's analysis,used adequate margins and was conservative.Z3/
11/ 'There was sa substantial, reliable record basis for the ASLB to conclude that the. hydrogen igniter location, and'the igniter spray shield configuration, would not' affect combustion characteristics. See Applicants' Testimony at 31; Tr. 3513-14 (Lewis).
12/ In any case, the annulus concrete issue was not' central to the'ASLB's
-acceptance of Aptech's. analysis, which is discussed at length by the ASLB. See
~PID at 31-32,:94-96 (Findings 100-104). Moreover, the annulus concrete was con-
-sidered by Applicants-in analyses subsequent to=Aptech's analysis. PID ate 32.
Z3/ ' See App. Reply at 14-17, refuting each of the. arguments raised by OCRE at pages 22-23 of its proposed findings. '
' I
e.,
OCRE argues that the ASLB's treatment of Applicants' spray availability assumption was " contrived."- OCRE Brief at 20. OCRE fails to refute the ASLB's reasoning, PID at 43-44, which properly rejects postulating a failure of con-tainment' sprays on. top of the postulated 75% metal-water reaction. OCRE argues that "the evidence ' indicates" that the spray, availability assumption is not "a conserv'ative or even realistic assumption" (id. at 20), but OCRE fails to cite to any evidence showing this.Zh/. Thus, the ASLB's conclusion, PID at 43, that
"[n]ojfactual basis exists in the record, however, for challenging the avail-ability.of containment sprays," is correct, TOCRE refers to lengthy cross-examination it conducted at Tr. 3448-85 con-cerning the residual heat removal (RHR) system, containment heat removal, sup-pressi6nipool cooling, and the emergency core cooling system (ECCS) system, claiming that("the actual as-built configurations of these systems and the pro-cedufes for their operation must be examined." OCRE Brief at 20. OCRE had more
.than: adequate opportunity to explore these areas at the hearing.' It fails to
. explain why further inquiry is justified under the hydrogen rule, or to provide any' specific' basis to challenge the ASLB's consideration of these matters.Z5/
24/ l0CRE's claim, that'the Staff believes that spray availability is question-able, OCRE Brief.at 20, is a mischaracterization of the record. The Staff has
" reviewed and approved Applicants' spray availability, assumption in the Perry preliminary analysis. See, e.g., Testimony of Allen Notafrancesco on the Hydro-gen Control Issues Contained in the Licensing Board Contention #8, ff. Tr. 3276,
("Notafrancesco II") at 5,'7; see also Applicants' Proposed Finding 104; App.
Reply at 44.
p .Z5/ OCRE claims that the ASLB fails to comprehend "that systems, structures, and components designed ~and analyzed for design basis conditions are now expect-ed to' survive much more severe conditions" (OCRE Brief at 20-21, citing PID at
.55). No specifics are provided to support OCRE's broad assertion; it is belied g
.by the ASLB's extensive treatment of Applicants' hydrogen control analysis.
Thus, OCRE fails to call ~into question the ASLB's conclusion, in its discussion
~
of the' scope of the preliminary analysis (PID at 54-56), that there are reason-able ' limits to the ASLB's inquiry under the hydrogen rule.
c
egz - -- -
OCRE contends.that "[t}he Board's acceptance of the negative pressure capa -
Ebility of 'the Perry containment (PID at 34) is entirely illogical, since that acceptance relies on the assumed action of vacuum breakers, which the Board
~
Efound to be insufficiently qualified for pressure." OCRE Brief at 21. 'The ASLB has accepted Applic' ants' preliminary analysis, subject.to confirmation by the 4 Staff'that the vacuum. breakers will withstand pressures due to hydrogen burning.
.See supra $ II.A.l.b. In light of the evidence demonstrating the pressure survivability of the vacuum breakers, see App. Ex. 8-1 at 21D; Tr. 3570-71
. (Buzzelli), and the-confirmation that will be made by the Staff, the ASLB was correct in assuming that the vacuum breakers will be available.76/
OCRE challenges.the ASLB's rejection (PID at 40) of OCRE's comparison of.
the HECTR Code analysis in'OCRE Ex. 21, with Applicants' CLASIX-3 analysis.
OCRE'Brief'at 21. The ASLB' correctly noted at page 40 of the PID that there was "uncerta'inty of'the_ parameters which apply as well to HECTR as they do to ,
CLASIX-3;"7k/therefore, the ASLB did not rely on proposed detailed comparisons 11/ Moreover, the ASLB was referring, at page 34 of the PID, to negative pres-sure events. OCRE points to'nothing in the record suggesting that the negative pressure capacity of the containment would be challenged following any apsitive pressure spikes from deflagration burning that might potentially challenge the survivability of the vacuum breakers. Thus,'it was not inappropriate for the ASLB to agree that the vacuum breakers would be available during a negative p'ressure event, while at the same time imposing the condition of further Staff confirmation of the positive pressure survivability of the vacuum breakers.
77/- See also PID at 39, which states:
We do not put our reliance on the model comparisons of the Sandia report for assessing containment response in Perry since we accept.that later experiments tend to confirm the validity of CLASIX-3. (Fuls, Tr. 3621). Additional subjective consid-erations also support a conclusion that CLASIX results are con-servative. (Finding 133).
l 1
1 1
. ~ :.
g y
y m-
[ l byf OCRE. The ASLB's decision not to consider detailed comparisons between CLASIX-3.and HECTR.is consistent with the record, including OCRE Ex. 21.78/
OCRE asserts thati the ASLB, a't page 43 of'the PID, " avoids considering the e
effect of-l'onizing rad'iation of flame speeds." OCRE Brief at 21. OCRE is in'
~ error. The A3LB concluded:
There.is no evidence in our record that the specific chemical radicals needed to accelerate flame speed.would be present in Perry containment or that ionizing radiation in any event could create enough such radicals to accelerate flame speed. OCRE's-assertion was based on.old and outdated evidence and there was no recent_ corroborating evidence to suggest that ionizing radi-~
-ation:in containment could have any effect. (Finding 135).
'PID at 43.7_9/. OCRE provides no basis to challenge the ASLB's conclusion.
-OCRE next challenges the ASLB's conclusions concerning-the conservatism of Applicant's CLASIX-3 analysis, by essentially reasserting OCRE's earlier pro--
posed' findings - (OCRE PFC at 38-40, 42-43) regarding.various CLASIX-3. input as-sumptions. See OCRE Brief at 21-22. OCRE argues, without adequa'te discussion .
of the PID, that the ASLB neglected, ignored, or failed to consider the record 7_8/ The witnesses testified that they.know of no_information in OCRE Ex. 21 which calls into question Applicants' use of CLASIX-3, and that the HECTR analy-ses-in OCRE Ex. 21 are overly-conservative and out-of-date. See Tr. 3621 .
(Fuls), 3688-81, 3722-26, 3733-46 (Notafrancesco, Pratt). Sandia itself acknowledged the difficulty of comparisons such as those OCRE recommended in its proposed findings. See OCRE Ex. 211at 12, which states:
Comparisons between the various computer codes is difficult be-cause we know little of the calculational models within CLASIX-3 and even MARCH. We have attempted to carry out calculations with MARCH and HECTR that are nearly identical to several CLASIX-3 cases. Unfortunately, we invariably end up comparing
" apples" to " oranges."
79/ The ASLB was correct in labelling OCRE's evidence "old and outdated." See
.0CRE-Brief'at 21. OCRE relied on its cross-examination of Dr. Lewis at Tr.-
3528-29 about a 1928 paper, a paper which Dr. Lewis discounted. Id.
I 51-
. E. .
~
3
.t.
- N as OCRE h5d characterized it-in its proposed findings. M. Once again, OCRE has Lsimply disagreed with the ASLB's weighing of evidence, which was amply sup-
- ported byjsubstantial, reliable evidence in the record.8,0/ Without an adequate description of how the_ASLB neglected material' issues raised by OCRE, thereby isrring in;its_ decision, OCRE's argument must be rejected.
LOCRE asserts that the ASLB should have imposed license conditions or taken
-'other actions with respect to the temperature qualification of "certain compo--
nents.". .0CRE Brief at 22. (These components are seals for locks and hatches, and the transformer for the. igniter assembly, PID at 47.) OCRE's assertion is--
. without merit; _ che ASLB noted that Applicants were already obligated to justify xinterim' operation of these components by November 30, 1985, pursuant _to_10 CFR _
B L SO.[49 (i) . PID at 47. In light of the Staff's review and approval of Appli-cants'.praliminary' analysis of equipment survivability for these and other com-ponents,81/fand Applicants' existing obligations with respect to 5 50.49(i), the ASLB was justified in' approving Applicants' preliminary analysis of the -tempera-L ture survivabilf y of these two items.
=0CRE claims that the ASLB's conchsions (PID at 53) with respect to the
~
- - 0 . potential for secondary fires " ignore OCRE Ex. 24" (a paper by Dr. Pratt ~ and others). _0CRE Brief at 22-23. However, Dr. Pratt testified that the statements 80/h See, e.g., PID at 40, 102 (Finding 132) (flame speed), 43-44, 101 (Finding 1
129), 108-(Finding 154) (containnent spray issues), 40, 101 (Finding 126) (igni-tien limits), 41,-42 (combustion completeness), 38-39,~42-43, 45-46 (other con-servatisms in~ Applicants use of the CTASIX-3 Code), 35-38 (appropriateness of
-Applicants' scenarios); see also App. Reply at 32-33, 43-44 (flame speed). 44-45 .
(containment spray issues), 32-33, 38-39 (ignition limits and combu:stion com-pleteness), 47..(heat transfer), 45-46 (code validation), and 47-48 (accident i~
. scenarios).
81/ See, e.g.,_Garg at 4-7, Table 1; Applicants' Proposed Findings 110-112.
1}
r' g-- w rw- y s -
e- - ,
w a
in OCRE Ex. '24 cited by.0CRE ~were based on analyses of PWR large dry contain-
- ments.and' dealt with "very severe hydrogen burns, starting at very high concen-trations." Tr.~ 3730-31. In. light of this testimony, and Dr. Pratt's uncertain-Lty about' the' relevance of the paper to Perry (id.) . the ASLB was correct in not relying on the' exhibit. Similarly, there is substantial, credible ~ evidence ~in Ethe-record supporting the ASLB's conclusion that Applicants have adequately con .
sidered.the potential'for secondary fires for purposes of the preliminary analy-s'is, and that the: risk is low. See PID at 53, 106-07 (Findings 147-48).
OCRE disagrees with the ASLB's acceptance (PID at 39, 57) of evidence
- indicating;that-later versions of the'HECTR code have predicted decreased pres-
.sures and temperatures. OCRE.Brief at 23. OCRE's interpretation of "the only reliable evidence on this point" (id.) is in error.82/
OCRE argues that the ASLB "placed the wrong burden of proof on this issue,"
- and " continually. viewed the evidence on Issue No. '8 in the light most favorable to Applicants and least favorable to CCRE." OCRE Brief at 23. OCRE's examples
. fail to show that the ASLB Lplaced the burden of proof on OCRE; .they merely il-lustrate differences.in how.the ASLB and OCRE viewed the evidence.83/
82/ OCRE cites to Tr. 3738, 3741-42 (OCRE Brief at 23). The analysis discussed at Tr. 3738 involved a model with no drywell. See Tr. 3738 (Notafrancesco).
The witness.did not testify that this model involved higher ~ pressures (it was OCRE who' referred to'the higher pressures at Tr. 3738, not the witness), and the witness did not agree that the model being discussed was appropriate to-use, Lgiven its lack of a drywell. OCRE's questions at Tr. 3741-42 appeared to be based on HECTR pressure calculations from Sandia's 1983 report, OCRE Ex. 21, which is based'on the results of the analysis of the Grand Gulf plant through 1981 only. Tr. 3723 (Notafrancesco);.0CRE Ex. 21 at 9-10. The testimony shows
'that HECTR pressures and temperatures have decreased since the time of the anal-ysis' in OCRE Ex. 21. See PID at 38-39, 57.
_-83/ The fact that -the ASLB rejected OCRE's interpretation and weighing of the evidence does:not mean that the burden of proof was placed on OCRE, or that the (Continuad Next Page) i.
- [
. Thus ,- the- ASLB's statement (PID at 46) that "0CRE has not developed any
' basis for challenging 'the HEATING 6 computer code that is used for computing equipment temperatures at Perry," reflects the ASLB's acceptance of uncon-t tradicted-evidence endorsing Applicants' use of the code,!4/ rather than the
'ASLB placing'the burden of proof on'0CRE, as OCRE suggests. See OCRE Brief at
- 23. Similarly, the ASLB (PID .at 29-31) rejected OCRE's proposed findings on containment integrity (OCRE PFC 20-22), see OCRE Brief at 23-24, not by shifting.
the burden of proof, but based upon the substantial, credible evidence sup-porting the adequacy of Applicants' preliminary. analysis in the areas discussed by OCRE in its proposed. findings.!5/
'(Continued)
- ASLB was.trying to view the evidence on Issue No. 8 "in the light...least favor-able to OCRE." OCRE Brief at 23. Cf. Pacific Gas and Electric Co. (Diablo Can- ,
-yon Nuclear. Power. Plant, Units 1 and 2), ALAB-644, 13 NRC 903, 923 (1981), where the' appeal board stated the-following:
The resolution of issues of fact in favor of one side suggests neither. bias nor error on the tribunal's part; without more,
- the appropriate inference is that the evidence of the prevail-
'ing. party.was the more persuasive. Be that as it may, we reit-erate that in administrative hearings as in court cases, rulings and findings made in the course of a proceeding are not
~
in'themselves reasons to believe that the tribunal is biased for or against a party.
14/ See, e.g., PID at 104 (Findings 137-38), citing Garg at 5-6.
15/ See PID at 29-31, 92-94 (Findings 90, 91, 94-98), 97-98 (Finding 110)
(refuting OCRE's proposed findings regarding "the true limiting penetration, margins available in the use of actual ~ material properties, and the effects of dead load, elevated temperature, and containment vessel out-of-tolerance on con-tainment' capacity (OCRE's Proposed Findings 20-22)" referenced at page 24 of OCRE's~brief). These portions of the PID refute OCRE's claim that the ASLB
" summarily rejected" OCRE's arguments, or that the ASLB "placed [the burden] on OCRE to show that these factors are additive and significant" (OCRE Brief at
'24).
r
, -e r -w
c- ,
s-e k ,I Similarly, OCRE reasserts its proposed findings'(OCRE PFC at 25-28) regard-ing the applicability of the ASME Service Level C limits and analytical methods, stating onlylthat "[a] view of the evidence (e.g., Tr. 3382-87, 3401, 3403-06) in accordance with the correct burden of proof would reach the contrary conclu-sion." OCRE Brief at 24. OCRE fails to show that its proposed findings,.or the cited testimony, call into question the PID or the burden of proof impesed by E
the'ASLB.!s/ Nor did the ASLB " illegally take credit for Applicants' ASME code fj _ service level-D analysis," as OCRE (id.) contends.!7/
OCRE also disagrees-with the ASLB's weighing of the evidence on voids in the'drywell wall, anc the potential effect of voids on Applicants' preliminary analysis. OCRE Brief at 24 (questioning PID at 35). However, the substantial, credible evidence in the record supports the ASLB's finding that voids in the drywell have been detected and repaired. PID at 35,- 99 (Finding 115).!!/ Simi-
!1arly, the PID indicates that the ASLB' carefully considered OCRE's proposed .
!!/ .The ASLB discusses, and rejects, OCRE's challenges to Applicants' use of' the ASME-Service Level C limits and analytical methods. See PID at 29-35; App.
Replyfat 12-24. -Tr. 3382-87, 3401, 3403-06, cited by OCRE at page 24 of its brief, deal with various test-to-fail experiments. The experiments are not rel-evant to Applicants' ultimate capacity analyses, which are based on ASME Service Level C limits well within the elastic range. See PID at 34, 93 (Finding 93);
Tr. 3356-58, 3382-87, 3392-3402, 3629-30 (Alley).
17/- Applicants' Service Level D analysis demonstrated that the use of Service Level C limits to define the-PNPP pressure-retaining capability, rather than the higher, more realistic Service Level D limits, represents a conservative ap-proach to assuring that containment integrity will be maintained. See PID at 34, 92-93 (Finding 92); Applicants Proposed Findings 66-67; App. Reply at 23-24.
OCRE provides no basis to support its suggestion that Applicants' Service Level D analysis.was " illegal" or that Applicants failed to meet 10 CFR 9 50.44(c)(3)(iv)(B)(1) (see OCRE Brief at 24). .
!!/ Applicants' witness testified "with reasonable certainty" that no undetected voids exist within the wall. Tr. 3417 (Alley). OCRE provides no basis for questioning this testimony.
r e
findings-(OCRE PFC atl43-49) concerning decay heat removal assumptions in Appli-cants' preliminary analysis. See OCRE Brief at 24-25. There'was substantial I ' evidence-.in the record'to support the ASLB's conclusions at pages 51-53 of the
'PID. See PID at 108.(Findings 155-156). Contrary to OCRE's claim (OCRE Brief
.at 24-25), the ASLB neither " summarily affirms" Applicants' testimony, nor places the burden of proof on OCRE.39/
OCRE offers no'other' specifics to support the general claim that "[t]he only view of the evidence on Issue 8 consistent with 10 CFR 2.732 is that presented in OCRE's' June 13 Proposed Findings." OCRE Brief at.25. For the rea-sons noted herein, OCRE's proposed findings were adequately addressed by the
- e. Conclusion For the reasons set'forth above, OCRE's appeal of the ASL3's decision to dismiss Issue No. 8 should therefore be denied. .
- 2. Issue No. 16: TDI Diesel Generators
- a. ASLB's Concluding Partial Initial Decision s.
OCRE maintains that the ASLB ignored or mischaracterized evidence favorable
. to OCRE's case in dismissing Issue No. 16, concerning the reliability of.the Perry Transamerica Delaval, Inc. ("TDI") diesel generators. Each of OCRE's al-legations is without foundation and reflects nothing more than OCRE's disap-pointment that the ASLB reached conclusions contrary to those urged by OCRE.
. 89/ See PID at 51-53, 108 (Findings 155-156); Applicants' Proposed Findings 107-108; App. Reply at 52-53 (refuting OCRE's view of the evidence discussed at pages 48-49 of OCRE's proposed findings) .
~
A ,
Initially, OCRE states that the ASLB ignored a Staff-witness' disapproval
.of Applicants'. evaluation of the engines' foundation. OCRE Brief at 26-27. The witness did not disapprove Applicants' evaluation; rather, he stated that he wanted; additional informat'on.
i Tr. 2*17 (Kirkwood). Applicants explained the engineering evaluation which had been performed. .See Tr. 2496-97 (Chris-tiansen). OCRE conducted no cross-examination on this point. The ASLB.found Applicants' explanation' persuasive, and, based'on the record before it,.conclud-ed that-the foundatiou was acceptable.
~
PID at 74-75,120 (Finding 200).
Similarly,' OCRE argues that"the-ASLB ignored evidence that Perry's mainte-nance and surveillance program for the diesels may never be implemented or may
. not exist 'for the life of the plant. OCRE Brief at 27. The ASLB dorrectly found that the record indicated otherwise. PID at 64. Engine maintenance and surveillance is already being conducted at Perry, which has committed to imple-ment all applicable'0wners Group recommendations as well as the maintenance-and ,
surveillance recommendations made by its independent engineering'consultanc and Pacific Northwest Laboratory. PID at 111-12 (Finding 169).90/ While mainte-nance and surveillance requirements may be modified in the future..any modifica--
tions will be supported by site experience and successful engine operation, as noted in the'very exhibit to which OCRE cites.91/ The Staff will be reviewing Perry's implementation of required maintenance and surveillance. Id.
a
.t m .
90/ See also Applicants' Reply to Proposed Findings of Fact and Conclusions of Law' Filed by the Other Parties (Emergency Planning and TDI Diesel Generators)
(June 10, 1985) (" App. TDI Reply"), at 35-38. -
91/ See OCRE Ex. 2,'ff. Tr.'2191 (January 10, 1985 Memo to File at 1); OCRE Ex. 2, ff. Tr. 2200 (Executive Summary).
, 4 D
{::
o OCRE cites recent correspondence between Applicants and the Staff.(not part of the decisional record) to support its position.92/ OCRE Brief at 27. This letter. does not -reflect a change in Applicants' commitment, which has always been to implement all applicable Owners Group recommendations.93/ Likewise, it
~
^
has always been Applicants' commitment (and'the Staff's requirement), to imple-ment all applicable recommendations prior to startup from the first refueling outage. See Tr. 2499-500 (Christiansen); Staff Ex. 1, ff. Tr. 2284, at 8.
There is,.therefore, no basis on which to question the ASLB's conclusions
~
- regarding the adequacy of Perry's maintenance and surveillance program.
OCRE further. argues that the ASLB should have concluded that a problem with
- crankshaft oil hole plugs was a failure of the Owners Group program.94/ OCRE Brief at 27. It would be unreasonable to expect that any program could guaran- i tee the absence of future problems. See PID at 65. Nor is such a guarantee re'-
. quired; all that'is necessary.is that the program provide' reasonable assurance that the diesels.will perform reliably.95/~ The record establishes that the 92/ OCRE impermissibly se~eks to add to the record without moving to reopen it.
Appeals must be considered and decided on.the basis of the ASLB reco. ,. ' S e e ,-
e.g., Washington Public Power Supply System (WPPSS Nuclear Project No. 3),
ALAB-747, 18 NRC 1167, 1177 n.29 (1983).
93/ See Applicants' Direct. Testimony of Edward C. Christiansen on Issue No. 16, f f . ,1ht . 2179, at 12; Applicants' Answers to Ohio Citizens for Responsible Energy Eleventh Set of Interrogatories to Applicants Relating to Issue No. 16 (March 8, 1984)', Interrogatory No. 11-9(a).
)
94/ Contrary to OCRE's assertion, the component did not fail, see Tr. 2230 (Kammeyer), 2253 (Christiansen), and the ASLB did not characterize the defect as a failure. See PID at 65. In any event, the problem occurred at River Bend and was not-applicable to Perry. See Tr. 2262 (Christiansen).
95/- Although OCRE would argue otherwise, Applicants are not obliged to meet an
- absolute standard, but rather a " reasonable assurance" test. See Commonwealth Edison Co. '(Zion Station, Units 1 and 2), ALAB-616,12 NRC 419, 421 (1980); see also Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),
ALAB-819, 22 NRC __ (October 22, 1985), slip op. at 100.
a
g
~
~ + 7
- ~
- c. 7 ,
program provides this' assurance. See PID at 75.
.0CRE'next claims that the'ASLB mischaracterizes the evidence of. cylinder i M ' block cracking. OCRE'Brief at 27-28. The ASLB's characterization is correct.
- PID at 73.96/ OCRE's abbreviated statement omits, among other things, that Ethe cracks were considered benign.' Similarly, it is obvious that there is no. -
. support forl0CRE's conclusory statement that "Dr. Bush noted that the reason for
- the absence:of,[ cylinder block] cracking is the low number of operating hours on
- the engines." 0CRE Brief at 28. In the actual testimony of the witness (Tr.
2413):
Q: ~Are there any-ligament-to-ligament cracks at Perry blocks?
A: To my. knowledge.none, but of course it is probably a very.
few hours of operation, too.
. OCRE attacks the ASLB's reliance on the statement of a witness concerning
~
the length ~of-'t'ime emergency' power would be needed. OCRE Brief at 28; PID-at 72.D Although the witness cited by the ASLB later corrected the statement, Tr. ,
~ 2274.(Kammeyer), the ASLB still correctly accepted the_572 hour inspection in-terval 'in view of.the substantial conservatisms associated with that value. See Tr. 2269-73 (Kammeyer); PID at 72-73.
OCRE argues that the ASLB erred in refusing to consider the character of the Owners Group when it evaluated and approved its program for the revalidation-
~of the' Perry engines. OCRE Brief at 28; PID at 62-63. 10 CFR Part 50, App. B, Criterion 1 requires that the entities responsible for performing quality assur-ance functions be independent from the influence of cost and schedule concerns.
. Applicants, not the Owners Group, have this responsibility at. Perry. Thus, it 96/ See also App. TDI Reply at 54-55.
-o .
1
)
I l
a ..
f was appropriate for the ASLB to completely disregard OCRE's allegations that the
-Owners Group was a " lobbying force," and to focus, instead, on the technical as-pects of the Owners Group program.97/
In response to OCRE's claims that the ASLB improperly delegated contested issues to.the Staff _for post-hearing resolution, OCRE had every opportunity to i
question any aspect of the entire Owners Group program. To attack the adequacy .
of this program (and Perry's implementation thereof), it was not necessary that all of the detailed results be available.98/ Furthermore, with regard to OCRE's claim that the Staff should not evaluate the effect of added loads, there is neither: evidence, nor expectation, at this time that additional loads will ever
-be added to the diesels, and OCRE cited to none.
0CRE attacks the'ASLB's reliance on the Staff's conclusions by charac-terizing the Staff's approval of the diesels as " preliminary." OCRE Brief at
- 29. 0CRE erroneously finds support for its position in the ASLB's reasons for ,
denial of summary disposition of Issue No. 16 and the Staff's program of " inter-im' licensing."' Id. at.29-30. In commenting upon the Staff's extensive review .
of.the diesels, the ASLB noted that the review included work the Staff had com-plated at the time summary disposition was denied. See PID at 66.99/ Although 97/ In any event, OCRE failed to produce any evidence that the Owners Group was, in reality, a " lobbying force." See App. TDI Reply at 27-32.
98/ OCRE argues that open items 1, 2, 3 and 6, of SER Supp. 6 at 9-7, should not be resolved outside of the evidentiary hearing. OCRE Brief.at 29. The record contains substantial evidence on each one of these items which OCRE was free to attack. See PID at 111-12 (Finding 169) (maintenance and surveillance);
'PID at 118-19'(Finding 192) (torsiograph testing); PID at 119-20 (Finding 195)
-(engine imbalance); PID at 120-21 (Finding 200) (chock plates).
99/ Compare NRC Staff Response to Applicants' Motion for Summary Disposition of Issue 16 (February 25, 1985), Affidavit of Drew Persinko Regarding Issue 16, at 12.
u.
- .- s the ASLB may have concluded in. denying summary disposition that the NRC Staff review was'"brief" and " preliminary," it was entitled to reach a different con-
~ clusion after evidentary hearings, t
OCRE continues to . confuse the Staff's future evaluation of the Perry die-sels' performance.with.its program of " interim licensing" at other plants. OCRE Brief at 29-30. The Staff did not consider " interim licensing" at Perry because-
' Perry. completed'its owners Group Phase II effort.100/ As evidenced by the Staff's testimony at the hearing, as well as its pre-filed testimony and exhibits, the Staff's evaluation of the diesels is complete. The ASLB, there-fore, correctly' concluded that OCRE's allegations concerning illicit " interim licensing" were without basis.
OCRE fails to support its assertion that the ASLB erroneously. transferred the burden of-proof. Instead, OCRE makes a series of conclusory statements-in-dicative of nothing more than disappointment. in its failure to persuade the ASLB .
that it should adopt OCRE's interpretation of the factual record. CCRE Brief at
- 30-31. The record establishes that Applicants met their burden of proof by pro-viding substantial and convincing evidence on each of the matters cited by OCRE.101/ ,
100/ See App. TDI Reply at 38-42.
101/ See PID at 117 (Finding 187) (turbocharger); PID at 120-121 (Finding 200)
(foundation); Joint Testimony of Carl H. Berlinger, Drew Persinko, Spencer H.
Bush,. David A. Dingee, Howard M. Hardy, Adam J. Henriksen, and B.J. Kirkwood on Issue 16 Concerning TDI Emergency Diesel Generators at the Perry Nuclear Power Plant, ff. Tr. 2281, at 7, 52, Tr. 2495.(Christiansen) (Dresser couplings); Tr.
2187 (Christiansen) (engine specification); Tr. 2326-31 (Berlinger, Hardy) (San
- - Onofre crankshaft); PID at 116-17 (Findings 184-185) (engine base and bearing caps).
l m__
l'
- b. Issue No. 16 Should Not Have~Been Admitted as a Late-Filed Contention OCRE's appeal of Issue No. 16 also should be rejected because the. late-filed contention ~should not have been admitted.102/
~
10CRE failed to satisfy any of the. requireme.sts for an untimely filing of a Leontention. Relying in large part upon IE Information Notices (and accompanying
- newspaper articles) concerning' events at otherz plants to establish " good cause,"
OCRE provided no~ explanation of the relevance of these occurrences to the reliability of the engines at Perry.103/; OCRE also relied on Perry Deviation Analysis Reports earlier made available to OCRE through discovery, as well as through the public record, without any explanation as to why.0CRE previously
, disregarded this information.104/ OCRE also failed to meet the remaining criteria when it failed to demonstrate why diesel generator reliability was not assured by Applicants' commitment to regulatory requirements, failed to estab-lish'its competence to litigate the issue, and summarily stated that its partic-ipation would " aid in the development of the record" and that "[dlelay of the proceeding is of no concern."105/
OCRE's contention also lacked adequate basis and specificity, as required by 10 CFR $ 2.714(b). As previously noted, OCRE f ailed to establish a nexus 102/ Applicants are free to urge affirmance of the ASLB's result on grounds other than those assigned by the' tribunal. Commonwealth Edison Co. (Byron
~ Nuclear Power Station, Units 1 and 2), ALAB-793, 20 NRC 1591, 1597 n.3 (1984).
103/ See Ohio Citizens for Responsibic Energy Motion to Resubmit its Contention
.#2 (September 16 1983) (" Motion"), at 1,3.
104/ Motion at 1-2.
'105/ Motion at 3-4.
l
, v
- .a betw'een'the information it re, led upon and the engines ~at' Perry, relying-instead on a conclusory statement'that the items were indicative of a " pattern of de51ciencies and substandard quality," a statement not. borne out by the docu-ments in question.106/ The Deviation Analysis Reports relied upon by OCRE ap--
~
. plied to problems which had either been corrected, were being corrected, or, in some cases,.were not even applicable to Perry.197/ Furthermore, OCRE failed-to explain why-the discovery of such problems was indicative'of'anything more than
-a good' quality assurance program. Having failed to satisfy the requisite criteria, OCRE's diesel generator contention should not have been admitted.
For the reasons' set forth above, OCRE's appeal of the 'ASLB's decision to
, dismiss Issue No. 16 should be denied.
- c. May 28, .1985' Memorandum and Order (Motion to Reopen'the Record on Issue 16) _
0CRE argues that the ASLB erred in denying its motion to reopen the record on' Issue;No. 16. OCRE Brief at 31-33.108/ OChE initially attacks the decision by' noting that "the same valves also-failed'at Shoreham." OCRE Brief at 31.
See also~1d. at 32. This statement is without b' asis in the record. In fact, Shoreham " discovered crack indications on the valve body" when it inspected the check valves on its engines, which likely would have been detected when Shoreham 106/ Motion at 3. The one design problem reported which affected Perry;had been addressed and OCRE did not allege that the remedy was inadequate. See Appli-cants' Answer to Ohio Citizens ~for Responsible Energy Motion to Resubmit its
-Contention #2 (October 3, 1983)(" Answer"), at 10-12.
-107/ See Answer at-12-14.
108/ OCRE's motion was based upon the f ailure of an air-start system header -
check valve at Grand Gulf which OCRE maintained demonstrated the inadequacy of the Owners Group program. 'See Motion to Reopen the Record on Issue #16 (April
.30, 1985),Lat 2. .The Perry engines do not have such a valve.
!T"C l
~
~
. performed-the,0wners Group maintenance requirements.109/
OCRE: attacks on twoLfronts the ASLB's application of the third prong-of the
' tripartite standard on whether or not to reopen-the record.110/ '0CRE Brief at.
32-33.. TheI ASLB's decision to deny OCRE's motion was premised on the fact that
'the Perry engines did not have the check valves in question in their air start
! system and the fact that the component was evaluated by the Owners Group.111/
~
'Because the new information was, therefore, not relevant to Perry or the Owners Group program, the ASLB correctly found that the information could not influence its ultimate' decision on Issue No.'16.
The ASLB was therefore correct in denying OCRE's motion to reopen the
. record .'
B.- The ASLB Did Not Err in Dismissing OCRE Issue No. 6 and Summarily Disposing of OCRE Issue Nos. 9 and 13
- 1. Issue No. 6: Standby Liquid Control System
- a. Background OCRE argues that the ASLB wrongly dismissed . Issue.No. 6. That issue states:
109/ NRC Staff-Response to 0CRE Motion to Reopen the Re' cord (May 15,.1985), Af-fidavit of Drew Persinko at.3-4 ,
110/ The third test is "that a different result might have been reached had the newly proferred material been considered initially." Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit No. 1), ALAB-807, 21 NRC.1195, 1199 n.3
-(1985). OCRE argues that the ASLB erred by even considering the third test.
0CRE Brief at 32. Notwithstanding the ASLB decison cited by OCRE, LBP-83-52, 18 NRC 256-(1983), Appeal Board precedent requires applying the third test in this situation. See Black Fox, ALAB-573,10 NRC at 804 (1979).
111/ Memorandum and Order (Motion'to Reopen Record) (May 28, 1985), at 1-2.
m .
Applicant should install an automated standby liquid control y ^
system to mitigate the consequences of an anticipated transient
, without scram.
Since Perry has a standby liquid. control system ("SLCS"),112/ LBP-81-24,14 NRC
' .at 220,1 the issue is whether the SLCS initiation should be automatic or manual.
Following the close of discovery on Issue No. 6, the Commission issued its' final rule on anticipated transients without scram ("ATWS"). 49 Fed. Reg. 26036 (June 26, 1984). The new rule explicitly dealt with SLCS initiation.
The SLCS initiation must be automatic and must be designed to perform its -function in a reliable manner for plants granted a construction permit after July 26,.1984, and for plants granted a construction' permit prior to July 26, 1984, that have already been' designed and-built-to include this feature.
10 CFR,5 50.62(c)(4), 49 Fed. Reg. at 26045 (emphasis added).
Since the Perry construction permits were issued prior to July 26, 1984, the Perry SLCS system need only-include automatic initiation if it has "already been designed.and built to include this feature." The Supplementary Information accompanying the .
new rule included a similar explanation.. 49 Fed. Reg. at 26038.
On July 6, 1984, -0CRE moved for summary disposition of Issue No. 6. OCRE argued.the Perry SLCS must be automated because it "is being designed and built such that the SLCS will be capable of automatic initiation" and because
"[a]utomation of the SLCS can be achieved at low cost."113/ Both Applicants and Staff opposed OCRE's motion, pointing out that the motion on its face failed to
. establish that the Perry SLCS had already been designed or built for automatic q-112/ The'SLCS is a system for injecting borated water into the reactor primary coolant system. 49 Fed. Reg. 26036, 26038 (1984).
113/ Statement of Material Facts As To Which There Exists No Genuine Issue To Be
, , Heard, attached to OCRE Motion for Summary Disposition of Issue No. 6.
4 initiation.114/
Recognizing that the final ATWS rule as applied to Perry would be disposi-tive, the ASLB orally requested the parties to provide their views on the mean-ing of " designed and built" and how that language applied to Perry. Based upon the parties' replies,115/ and the earlier pleEdings, the ASLB found that there were no remaining material issues of fact and, with former Chairman Bloch dis-senting, denied OCRE's summary disposition motion and dismissed Issue No. 6.116/
- b. Status of Perry SLCS There is no factual dispute on the " designed and built" status of the Perry SLCS initiation. As far as its design, the Prelininary and Final Safety Analy-sis Reports have always shown manual initiation. The NRC's Safety Evaluation Reports also reflect manual initiation. During 1980-1982, GE performed design and analysis work on automatic initiation for CEI as a prudent response to the possibility that the final ATWS rule might require automatic initiation. In June and July,1982, meetings with the Advisory Committee .cx1 Reactor Safeguards and the NRC Staff, CEI described the SLCS as being manually ~ initiated. Notwith-standing CEI's position to retain manual initiation, the GE electrical 114/ NRC Staff Response to OCRE's Motion for Summary Disposition of Issue 6 (July 30, 1984); Applicants' Answer in Opposition to OCRE Motion for Summary Disposition of Issue No. 6 (July 30, 1984). For example, OCRE's motion (at 2) acknowledged that the SLCS "was to be manual even though automatic is possible."
115/ OCRE Brief on the History and Intent of the ATWS Rule (September 7, 1984);
NRC Staff Response to Board Request for Information Regarding the New ATWS Rule (September 7, 1984); Applicants' Response to ASLB Request for Information on ATVS Rule and the Perry SLCS (September 7, 1984).
116/ LBP-84-40, 20 NRC 1181 (1984) . Although no cross-motions for summary dis-position were filed, the ASLB majority properly decided the issite in favor of Applicants and the Staff. See 6 Moore's Federal Practice, 156.12; Wright, Mill-er & Kane, Federal Practice & Procedure: Civil 2d 12720.
9
- elementary drawings in -June 1982 included automatic initiation. The architect-engineer on August 2, 1982 modified its electrical elementary drawings to re-flect'the GE drawings. However, on August 9, 1982, CEI directed GE to return the design _to manual initiation. The GE drawings were effectively changed in
-December 1983,'and-the architect-engineer's drawings in February 1984 112/
The'"as built" status of the Perry SLCS initiation is similarly uncontroverted. The Perry SLCS was never built to include automatic initiation.
Automatic-initiation.would require bringing plant status indicators from the plant to..the control system logic and sending appropriate signals to SLCS pumps and valves.-l Thirty-two additional circuits and eight additional relays would have to be installed and two switches would have to be replaced in order to con-vert the-Perry SLCS to automatic initiation. While control room panels have au-
' tomatic initiation logic included in a few of'the plug-in circuit cards and mem-i ory chips, a substant'ial amount of. additional. equipment would be required to . :
make the Perry SLCS initiation. automatic. As of June 26, 1984 (the date of the, final ATWS rule), installation'of manual SLCS initiation in Unit 1-was at least 90*. complete.118/
117/ LBP-84-40, 20 NRC at 1185-86; Affidavit of Frank R. Stead, attached to Applicants' Response to ASLB Request for Information on ATVS Rule and the Perry SLCS (September 7, 1984); Affidavit of John A. Grobe, attached to NRC Staff Re-sponse to Board Request for Information Regarding the New ATVS Rule, (September 7, 1984) ("Grobe Affidavit").
. 118/ LBP-84-40, 20 NRC at 1186 87;TAffidavit of Gary R. Leidich, attached to
' Applicants' Response to ASLB Request for information on ATVS Rule and the Perry SLCS (September 7,1984); Grobe Affidavit. Since Unit 2 construction is sub-stantially behind that of Unit 1,. Unit 2's SLCS is similarly not built for auto-matic initiation. See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2) DD-84-23, 20 NRC 1549 (1984) (discussing construction sta-tus of Unit 2).
- . . 3
- c. Interpretation of the Final ATWS Rule The key to this issue is the meaning of the term "already designed and built" ~in the final AWS rule. .If the Perry SLCS was'never designed and built to. include automatic initiation, then the ASLB's decision was correct. The ASLB.
majority concluded that the Unit l'SLCS was "now designed and built for manual' "
initiation and.that it is not designed and built for automatic initiation."
.LBP-84-40, 20 NRC at 1187. -Given the undisputed facts surrounding the design history and construction status of the . initiation feature, .that is clearly the proper ccnclusion.
The dissent filed by former Chairman Bloch would bypass the literal lan-guage of the rule and interpret it "to effectuate the purpose of the framer rather than by' mechanical rules of word interpretation." LBP-84-40, 20 NRC at 1192. The dissent states.that its " reasonable interpretation of ' designed.and buiYt'wouldrequirethatthetotalproject, including its design and construc- . <
tion and possible costs for downtime during construction, be reasonably complet- ,
ed." M. at 1193.
OCRE's. arguments are similar to those advanced by the dissent. M / OCRE rejects applying the language of the rule. Indeed, OCRE conce' des that the Perry SLCS was not designed and built to include automatic initiation.120/ OCRE tries 119/ OCRE would have "the dissenting opinion of Chairman Bloch affirmed in every respect." OCRE Brief at 39.
120/ See OCRE Reply to. Applicant and NRC Staff Responses to OCRE's Motion for
~
Summary Disposition of Issue No. 6 (August 3, 1984) (" Applicants claim that Perry has not already been designed and built to include an automated SLCS. Of course it'has'not.") OCRE's acknowledgement that the Perry SLCS could be converted to automation means that it is not already automated. See, e.g., OCRE Motion f or Summary Disposition of Issue No. 6, at 2.
68-
to glean some other meaning from the " legislative history." However, legisla-tive history should be used to resolve ambiguities, not to create them.
. Massachusetts Financial Services, Inc. v. Securities Investor Protection Corp.,
545 F.2d 754, 757 (1st Cir. 1976).
OCRE's major argument is that the " designed and built" language stems from a " generic value/ impact analysis." According to OCRE, this analysis showed that the cost to automate SLCS on an existing plant would be $23 million. OCRE Brief at 34. OCRE then argues that since the cost of converting Perry to automatic initiation is only $100,000, Perry is not like the existing plants which the Commission excluded from the automatic initiation requirement. Id. at 34-35.
Regardless of the accuracy or comparability of the dollar amounts quoted by OCRE,121/ its argument is irrelevant. The ATVS rule reflects the Commission's policy determination that certain categories of plants need c.ot automate their SLCS systems. OCRE cannot challenge the appropriateness of these categories by .
analyzing the cost of converting Ferry to automatic initiation. As even OCRE must acknowledge, the purpose of generic rulemaking is to avoid such case-by-case analyses. Cf. OCRE Brief at 37. The test is whether the SLCS was "already designed and built to include this feature [ automatic initiation]," not whether "the total project...be reasonably completed," LBP-84-40, 20 NRC at 1193, or the dollar comparisons on which OCRE relies. OCRE Brief at 34-35.
121/ The $100,000 figure for converting the Perry SLCS to automatic excludes delay costs as well as the costs of an inadvertent trip. See Af fidavit of Gary R. Leidich, attached to Applicants' Answer to OCRE's Motion for a Stay Pendente Lite (October 10, 1985). The $23 million figure includes both of these cost elements, as well as the cost of increasing the SLCS capacity from 86 gpm to 150-200 gpm, and the cost of automatic initiation. See 49 Fed. Reg. at 26038; SECY-83-293 (July 19, 1983), Encl. C at 15, Enct. D at 19.
r p Similarly unavailing is 'OCRE's argument that the rule "would create the op-t portunity for [ construction permit) holders to evade the rule" by allowing con-struction permittees "having an automatic SLCS design to avoid implementing its-function by not building it as automatic." OCRE Brief at 36. OCRE's rationale would apply equally to pre-July 1984 construction permittees who could !' avoid" the rule by not designing automatic SLCS's. The Commission has made the policy
-choice reflected in the^ rule. While OCRE may disagree with the line which the Commission has drawn, that was a matter for the rulemaking.122/ OCRE's position
- would, in fact, penalize utilities such as CEI which took prudent steps in
,. . advance of the rule so that they might be able to comply with whatever rule was finally promulgated.
OCRE also argues that it is unappropriate to apply the words of the rule because .of the " extreme safety significance of AWS in BWRs and the important contribution to safety made by automating the SLCS." OCRE Brief at 38. The .
CommissionhiasdeterminedthatmanualSLCSinitiationisacceptablefromthe standpoint of the public health and safety for ay plants currently operating or under construction unless a plant is already designed and built to include auto-matic initiation. That safety determination cannot be re-examined by OCRE's ap-peal. Nor can that issue be considered in the guise of "[ capturing] a signifi-cant safety improvement at low cost." _OCRE Brief at 39. Had the Commission intended a' cost-benefit analysis, it would have provided for one in the rule.
What the AWS rule does mandate for plants such as Perry is an analysis of whether the plant has already been designed and built to include automatic SLCS 122/ OCRE's representative participated in the AWS rulemaking, see 49 Fed. Reg.
at 26037, but did not challenge the final rule.
~~ ~
initiation. The ASLB majority correctly determined that Perry was neither de-signed' nor built to include automatic' SLCS initiation and that it was in fact designed and built with manual initiation. The ASLB's dismissal of Issue No. 6 was ,- the'refore, ' correct.
- 2. Issue No. 9: Polymer Degradation 4 .
-a. ' Background -
,0CRE in Section II.E of its appeal brief takes issue with the ASLB's summa-ry disposition of Issue No,'9.123/
~
Following discovery and OCRE's particularization of the issue, the Staff filedforsummary[ disposition.124/ The ASLB granted the Staff's motion with the-exception of the following genuine issue of fact, which the ASLB admitted'for hearing:
whether the inspection and maintenance program will be adequate to. assure that safety functions will not be inhibited by radia-tion-induced embrittlement of polymers. .
123/ The contention as admitted stated:
Applicant has not demonstrated that the exposure'of polymers to radiation during the prolonged operating history of Perry would not cause unsafe conditions to occur.
JMemorandum and Order (Concerning Motions to Admit Late Contentions) (July 12, 1982), at 6. Issue No. 9 was based on studies by Sandia National Laboratories
'("Sandia") which indicated that certain polymeric materials used as electrical
-cable insulation experienced greater degradation when subjected to relatively
- low dose rates over a longer. period of time (as during normal plant operation) than when subjected'to the same total integrated dose at higher dose rates over-
. a shorter period of time (as during environmental qualification testing). See
-id. at 4.: The ASLB admitted.the broad polymer degradation contention condition-ally, subject to further specification by OCRE. Id. at 6. Cf. ASLB's condi-i .tional admission of Issue No.1, discussed supra at 5 I.B.l.
124/ NRC Staff Motion for Summary Disposition of Issue #9 (January 14, 1983) i"5taff's. Issue'9 Motion").
m LBP-83-18, 17 NRC 501, 511 (1983) (footnote omitted). s Applicants moved for reconsideration of the ASLB's order on the surveil-lance and maintenance issue.125/ In their motion for reconsideration Applicants pointed out that NRC regulations and practice do not require that a surveillance and maintenance program be issued prior to the need for such a program. See Mo- l tion for Reconsideration at 7-9.126/ The ASLB granted Applicants' motion, con-curring that NRC regulations permit development of a surveillanen and mainte-nance program at the time when it is needed, which in this case (due to the long-term nature of dose-rate effects on polymers) would not be until several a years after plant startup. See Tr. 828.
- b. Timing of OCRE's Appeal The ASLB granted Applicants' motion for reconsideration, summarily dispos-ing of Issue No. 9 in full, on May 9, 1983. OCRE now comes, almost two. years later, to challenge the ASLB's decision granting summary disposition of Issue No. 9.
Appeals must be brought within 10 days of an initial decision. 10 CFR
$ 2.762. It is.well established that a partial initial decision is an ap-pealable decision. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-736, 18 NRC 165, 166 (1983,). A partial initial de-cision makes earlier summary disposition rulings ripe for review. Carolina N
125/ Applicants' Motion for Reconsideration and Clarification of the Licensing Board's March 30, 1983 Memorandum and Order on Summary Disposition of Issue No. 9 (April 14, 1983) (" Motion for Reconsideration").
126/ As part of the overall quality assurance program for plant operation, the program should be " establish [ed) at the earliest practicable time, consistent with the schedule for accomplishing the activities. . . ." 10 CFR Part 50, App. B, Criterion 2 (emphasis added).
T d'
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3
, j N'i j
g Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-85-28, 22 NRC 232, 6
235 (1985). OCRE~ failed to take advantage of the timely opportunity offered by the December 2, 1983 partial initial decision, LBP-83-77, 18 NRC 1365, to appeal
-the polymer degradation issue. Instead, OCRE chose, unreasonably, to wait until
. s. '
Ithe ASLB issued its September 1985 concluding partial initial decision. This
' delay could unfairly prejudice Applicants in the event that an appeal were to renult in the need to take additional actions, since it might not be possible to
-i 1 take such actions prior to plant operation. Applicants, as a matter of policy
) i, -
j( and fairness, should not be made to suffer for OCRE's inexcusable dilatoriness in filing its. appeal. Neither would a delay be in the public interes't since, for the. reasons discussed in 5 II.B.2.c., infra, OCRE fails to establish the ex-istence of a safety concern relating to polymer degradation at Perry. OCRE's appeal is therefore untimely and should be denied.
- c. OCRE's Arguments on Appeal .
OCRE in its appeal. argues that the ASLB should not have limited its analy-
. sis to the interim period prior to full-scale environmenta1' qualification, was-incorrect in excluding mechanical (non-electrical) equipment from its analysis, improperly allowed " gaps" in the envidentiary record to be filled by post-summary disposition affidavits, and erred in ruling on reconsidt,atf.on that
< Applicants' surveillance and maintenance program was not an appropriate subject
[g for. litigation under the Commission's regulations. None of OCRE's arguments has any merit.
n b .
ts
-7 * ^4 l' T 1..
g 1
L:: _
>\
El i _
s (1) Mechanical Equipment 0CRE objects tha't the ASLB's " assumption that seals and gaskets can become
~
degraded without causing a safety problem...is not supported by evidence," and
- E '
' that-theTASLB improperly placed the burden of proof on 0CRE to show the exis-
_ tence of_a safety problem. OCRE Brief at 50. See LBP-83-18, 17 NRC at 507.-
-. With respect to burden of proof, OCRE misunderstands the Commission's Rules
~
fon summary disposition. Those Rules, at-10 CFR 5 2.749(b), require that:
~
When a motion for summary disposition is made and supported as provided in this section, a. party opposing the motion may not rest upon the mere allegations or denials of his answer; his
' answer by. affidavits or as otherwise provided in this section must set forth specific facts showing that there is a genuine issue of fact.
- (Emphasis added)~ . Applicants and the Staff supported the Staff's motion for
- summary disposition-by affidavits of experts.127/ .Those affidavits were not' limitedLin scope to electrical equipment. .but addressed polymer degradation in
< safety-related equipment generally. .
It-was incumbent upon OCRE to set.forth
' specific facts controverting Applicants' and Staff's case where OCRE believed a genuine issue of-material. f act existed. - Houston Lighting-& Power Co'. (Allens Creek 1 Nuclear' Generating Station,- Unit No. 1), ALAB-629, 13 NRC 75, 81-83
~
-(1981). -
OCRE is unpersuasive-in its attempts to suggest the existence of a material
- issue of fact overlooked by the ASLB. OCRE. states generally that " electrical
' systems control. mechanical components such as valves, which utilize the suspect:
' 127/.' Affidavit of James E. Kennedy .in Support of Summary Disposition of Issue -
,, > #9, attached to Staff's. Issue 9 Motion; Affidavits of Srinivasan Kasturi and LDavid R.~ Green attached to Applicants' Answer in Support of NRC Staff Motion for
, Summary-Disposition of Issue No. 9;(February 8, 1983).
c x
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3 .
m -
polymers," and that, as a logical matter, "[i]t is inconsistent to assume that the failure of a control system is unsafe while failure of the controlled compo-nent is not unsafe." OCRE Brief at 50. However, OCRE fails to identify spc.:f-ically any mechanical components at Perry (electrically controlled or otherwise) which could be rendered unsa'fe by radiation dose-rate effects.128/
OCRE further states that the ASLB's dismissal of the mechanical components aspect of the contention is inconsistent with the ASLB's stated reasons for in-terpreting the contention to include-such components. OCRE Brief at 50. See LBP-83.-18, 17 NRC at 505. This ignores the substantial difference between the requirements for admitting a contention, see 10'CFR S 2.714, and the stricter
-standard imposed where, as here, a motion for summary disposition is properly supported by affidavit or other evidence. See 10 CFR S 2.749; Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423,
~
425 n.4~(1973) (fact that contention is found admissible under 10 CFR S 2.714 does not give rise to a genuine issue of fact within:the meaning of 9 2.749).
(2) Scope of the ASLB's Analysis OCRE argues that the ASLB erred in limiting its analysis of electrical ccm-ponents to consideration of the interim period between startup of Perry and the deadline for demonstration of full-scale equipment qualification under the new rule. .0CRE Brief at 48-49. Applicants note-that CCRE raises this argument for 128/ In this connection, OCRE claims that the ASLB incorrectly asserted that OCRE had failed to identify polymeric mechanical components with sufficient spe-cificity. -See OCRE Brief at 50-51. The ASLB did not dismiss OCRE's argument for failure to identify specific mechanical components. The ASLB dismissed OCRE's concern with mechanical c^mponents because OCRE failed to show that deg-radation of such components would cause a safety problem. LBP-83-18, 17 NRC
-at 507 & n.16.
o
the first time on appeal.129/ Indeed, OCRE argued below precisely the interpretation of 10 CFR $ 50.49 which it would now have the Appeal Board re-ject.130/ OCRE cannot now argue that the interim analysis which it called for, and which the ASLB endorsed, is not sufficient.
At any rate, OCRE's current argument regarding the proper scope of the ASLB's analysis is without basis. OCRE reiterates its argument that a licensing board has no authority to consider anything less than a full-term operating license, and claims that the ASLB's interim analysis was an improper delegation of authority to the Staff. OCRE simply ignores the fact that the Commission's equipment qualification rule, at 10 CFR $ 50.49(i), specifically authorizes the incerim analysis which OCRE claims is prohibited. OCRE's assertion that nothing lbs the. rule prohibited the ASLB from imposing an earlier compliance schedule can only be viewed as a challenge to the regulation.131/
' 129/ Absent a serious substantive issue, which OCRE does not show tc exist here,
- the Appeal Board does not ordinarily. entertain arguments that are raised for the first time on appeal and that the licensing board thus had no opportunity to address. Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, and 2B), ALAB-463, 7 SRC 341, 348 (1978).
130/ See.0CRE Response to NRC Staff Motion for Summary Disposition of Issue #9 (February 7,'1983),Jat-4 131/.The' provision of'the regulations cited by OCRE~ purportedly allowing the
- ASLB to impose an earlier deadline, 10 CFR $ 2.711, is inapposite. As stated
~
in 10 CFR $ 2.700, which addresses the scope of Subpart G: "The general rules in this subpart-govern procedure" (emphasis added) in NRC adjudications. Thus,
- 6 2.711 does not apply to substantive regulations such as 10 CFR S 50.49.
OCRE also. cites Offshore Power Systems (Floating Nuclear Power Plants),
ALAB-489, 8 NRC 194, 208 (1978), which states that a board may, under certain circumstances, order the Staff to publish licensing documents by a certain date to avoid delay. This case is totally irrelevant to a licensing board's power to alter a compliance schedule set by Commission regulation.
(Continued Next Page) l
)
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~0CRE.also argues that "to claim that the Board is bound by a projected li-
. censing date, beyond which it has no authority, is circular reasoning, as the Boar'd itself controls the date of licensing...." OCRE Brief at 49. The ASLB's approach was consistent with the direction given by the Commission in its Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, (1981), that~ licensing boards should conduct licensing proceedings so as not to interfere unnecessarily with plant operation. Once Applicants' official proj-ected schedule for plant startup changed, it was incumbent on OCRE to bring any concern it might-have had with the adequacy of Applicants' full-scale equipment qualification to the attention of the ASLB. OCRE did not do so, but simply sat
'back and waited for the appeal process.
(3) Post-Summary Disposition Affidavits OCRE's objections to post-summary disposition affidavits required by the ASLB are unfounded.132/ OCRE argues that "[a]llowing gaps in the evidentiary ,
(Continued)
OCRE also' refers to the wording of the contention itself (" exposure of polymers _to radiation during the prolonged operating history of Perry"). OCRE Brief at 49. This, likewise, is irrelevant, since the issue was admitted prior to passage of the Commission's environmental qualification rule.
132/ The ASLB condicioned its partial summary disposition of the contention on submission- of an affidavit by Applicants confirming a statement concerning safe-ty margins in electrical equipment, as applied to particular equipment at Perry potentially subjected to significant dose-rate effects. LBP-83-18, 17 NRC at 508. Applicants subsequently submitted the required affidavit. See Affidavit of Srinivasan Kasturi, attached to Applicants' Response to Licensing Board's March 30, 1983 Order Concerning Summary. Disposition of Issue No. 9 (March 9, 1984). ,
In granting Applicants' motion for reconsideration, the ASLB required Applicants to submit (Continued Next Page)
record to be filled by' post-summary ' disposition affidavits is clearly unf air and l-l . improper" because OCRE has "no means...by which to challenge the affidavits."
- 'OCRE Brief at 51.133/. OCRE did not object at the time that the ASLB imposed the requirements-for' additional affidavits, either in a motion to reconsider or on the-record (See Tr. 828-29). Cf. Houston Lighting & Power Co. (South Texas Project,'-Units 1 and 2), ALAB-799, 21 NRC 360, 378 (1985) (party may not chal-lenge on appeal licensing board practices not objected to at hearing stage).
-Neither'did'0CRE raise.any questions concerning the adequacy of the affidavits
-(by mot' ion for reconsideration or other appropriate motion) after they were (Continued) brief1 affidavits stating the tests that they now intend to in-clude in the quality assurance program [on polymer degrada-tion], and an expert opinion that those tests are adequate to detect electrical. embrittlement.
In addition,-the affidavit should contain a statement con- .
-cerning the ability to gain access to key locations in which~
degraded polymers might be present....
Tr. P?8. .These. requirements addressed concerns raised by OCRE. relating to de-tection of degradation of electrical cable insulation inside conduit. See:
Tr.-818-19. Applicants submitted the require ~d affidavits on August 4, 1983.
See . Applicants' Response to Licensing Board's May 9, ' 1983 Order Concerning . Issue-No. 9 (August 4, 1983),-and attached affidavits of David R. Green and Srinivasan.
Kasturi.
f133/ Northern States: Power Co. (Prairie Island Nuclear Generating Plant,~ Units 1
~
.and 2), ALAB-284, 2 NRC 197, 205-06 (1975), cited by OCRE, is not supportive of OCRE's appeal. That case did not address the standards for summary disposition, but involved reopening of the record to address certain sua sponte issues raised by the Appeal Board following the evidentiary hearing. Further,'ALAB-284 held
~
that even in the context of an evidentiary hearing, a gap in the record could be filled by" affidavits on-narrow'and relatively simple questions. More'on: point zis Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1
,and 2), ALAB-443, 6 NRC 741, 752 (1977), in which the Appeal Board ruled that it g -was proper for the licensing board to-request submission of an additional-docu-
' ment in support of;a motion:for summary disposition where the board knew of the document and was faced with' insufficient record for summary disposition without it.
.I '
submitted. Nor, indeed,-does OCRE do so now. Thus, 0CRE fails to show that the ASLB's alleged procedural error changed the ultimate outcome on this contention.
~
Shoreham, ALAB-788, 20 NRC at 1151,1155-56 (complaining party must demonstrate actual prejudice, i.e., that procedural ruling had ' substantial effect on outcome of proceeding).
OCRE further asserts that'"[i]f the Board had any doubts about the validity of Applicants' position, it should simply have denied summary disposition and explored the matter at a hearing...." OCRE Brief at 51. OCRE offers no reason to suggest that the ASLB doubted the validity of Applicants' position. The re-
-quired affidavits clearly were meant to confirm statements Applicants had al-ready made on the record. See LBP-83-18, 17 NRC at 508; Tr. 824-25, 828.
(4) Schedule for Submitting Surveillance and Maintenance Program Finally, OCRE disputes the ASLB's determination that Applicants need not
~
submit their completed surveillance and naintenance program on polymer degrada-tion for litigation in this proceeding. However, OCRE merely characterizes as
" absurd," without addressing the merits of the issue, Applicants' and the ASLB's
~
interpretation of 10 CFR Part 50, Appendix B on this point. OCRE Brief at 52.
Again, OCRE points to no genuine issue of material fact concerning the consider-able evidence on Applicants' program which was submitted.134/
134/-0CRE also claims that "[i]t appears that the Board was influenced by Appli-cants' claim that a hearing on the maintenance and surveillance program would cost them money that would not otherwise be~ expended before fuel load." OCRE Brief at 53. .On the contrary, the record appears to reflect that the ASLB was not influenced by Applicants' cost arguments. See Tr. 817 ("The real question is what the section in Appendix B means.")
c.
V-
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[ In conclusion, OCRE fails.to point to any genuine issue of material fact on the basis of.which summary disposition of Issue No. 9 should have been denied.
'OCRE's appeal should be rejected.
- 3. Issue'No. 13: Turbine Missiles OCRE. objects to the ASLB's granting summary disposition of Issue No.
13.135/ See LBP-83-46, 18 NRC 218 (1983). OCRE claims that the ASLB improperly deferred final resolution'of the issue to the NRC Staff, that the ASLB improp-erly denied OCRE's request for a continuance to respond to the NRC Staff's sum-mary disposition motion, and that the ASLB improperly rejected OCRE's substan-tive opposition to the summary disposition motion. None of 0CRE's arguments is.
valid. In addition, OCRE's appeal should be rejected since, as an initial mat-ter, the contention should not have been admitted.136/
- a. Issue No. 13 Should Not Have Been Admitted as a Late-Filed Contention OCRE's. motion'for leave to file its turbine missile contention was filed
-August. 18,.1982, more.than one year after the deadline for filing contentions.
As good cause for its untimely filing, OCRE pointed to the Staff's Safety 135/ Issue No. 13 reads as follows:
Applicant has not demonstrated that the placement and orienta-tion of the Perry Nuclear Power Plant turbine-generators is'in compliance with regulatory requirements that limit the risk that low trajectory turbine missiles will strike safety related targets, thereby endangering the safe operation of the
' facility.
~LBP-82-98, 16 NRC'1459, 1471 (1982).
-136/ The result reached by the ASLB (i.e., dismissal of the contention).may be
-sustained on grounds other than those relied on by the ASLB. Byron, ALAB-793, 20 NRC at 1597 n.3.
b Evaluation Report.("SER") (May 1982). the letter from the Advisory Committee on Reactor Safeguards (July 13, 1982), and a 1976 report referenced in the FSAR.
-The ASLB in LBP-82-98, 16 NRC 1459, held that OCRE had shown good cause for its late-filed contention because the May 1982 SER "first put [0CRE] on notice Lof the seriousness of this issue and...the July 13, 1982 report of the ACRS also highlighted this problem." Id. at 1462. The ASLB held that "we do not consider:
it realistic to expect an intervenor to be conversant with'the entire SER'and' the entire record of the construction permit stage when it first files conten-tions."
~
d I'. at 1462-63. Instead the ASLB stated that it was acceptable for an intervenor "to await scientific publications and key staff documents."
~
Id. at 1463.137/:
In fact, OCRE's good cause was premised on a report furnished by Applicants
-to the NRC Staff in 1976 and a 1977 Regulatory Guide.138/ The May 1982 SER did no more than list turbine missiles as an "open item" with no suggestion that the Sta'ff considered it a significant unresolved safety issue. The ACRS letter only expressed. concern with the NRC Staff's " progress" in resolving the generic tur-bine missile' issue and did not even mention Perry.
'The Commission-has made'it clear that an intervenor cannot sit back and await scientific. publications and key Staff documents. Rather, the interv2nor is obligated to examine. publicly available documents to uncover any information which could serve as a basis for a contention. Catawba, CLI-83-19, 17 NRC'at
'137/ Applicants' MotionLfor Directed Certification of.the Order Admitting Issue No. :13 was denied as interlocutory in ALAB-706,16 NRC 1754 (1982).
'138/ See OCRE Mot' ion for Leave to File Its Contentions 21 through 26 (August 18 , -
1982), at 1-2;.0CRE Reply _to Staff and Applicants' Responses to OCRE's Motion for Leave to File Its Contentions 21 through 26 (October 12, 1982), at 4-6.
1; _
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d 1048. The ASLB, therefore, erred in initially admitting Issue No. 13.139/
Since it was. erroneously admitted, OCRE's appeal of the decision on the merits must also be dismissed.
.b. OCRE's Arguments On Appeal Are Without Merit OCRE begins its attack on LBP-83-46 by arguing that the ASLB improperly de-ferred the " final resolution" of the turbine missile issue and delegated that responsibility to the'NRC Staff.- OCRE Brief at 40-41. OCRE misunderstands the record. The NRC Staff has established an inspection, maintenance and test pro-gram for-the Perry turbines, including a three year inspection interval. GE, the turbine manufacturer, is preparing a report which will be used to generate Perry-unique testing and inspection schedules. In the meantime, however, Perry must adhere to the NRC Staff' program.140/ Although OCRE argues that resolution of this' issue must await the GE report, the real issue is not whether there.may be later studies, but whether the current requirements are adequate. The .
Staff's affidavit,.together with Applicants' affidavit,141/ fully support the
' adequacy 'of the NRC Staff's program.142/
139/. Applicants submit that the ASLB also erred in its analysis of the other
. factors for late-admission. See Applicants' Answer to OCRE Motion for Leave'to File Its Contentions 21-26.(September 16, 1982), at 4-6.
140/'See NRC Staff's Motion for Summary Disposition of Issue No. 13 (May 31, 1983), Affidavit of John 0. Schiffgsns.
141/ - Af fidavit of D. P. Timo and L. H. Johr. son, attached to Applicants' Answer In Support of NRC Staff Motion for Summary Disposition of Issue No. 13 (June 27,
- 1983). Messrs. Timo and Johnson are highly qualified engineers with the'GE Large Steam Turbine Generator Department. They calculate a longer inspection interval than the Staff. Id. at 18.
142/'Although the ASLB assumed that the NRC Staff has verified or would verify GE's conclusion on the adequacy of testing, LBP-83-46, 18 NRC at 221 n.11, this assumption is unnecessary in light of the evidence presented. See Timo/ Johnson Affidavit at 11, 16-17.
Next, OCRE challenges the ASLB's rejection of its request under 10 CFR
, 5 2.749(c) to delay action on the Staff's summary disposition motion'. OCRE said that it was actively pursuing potential witnesses and consultants, it lacked q; time to' review documents, it desired further discovery, and it wished to await the GE report-143/ OCRE also argued.that further action should await a "soon-to-be-filed court action, seeking additional information necessary for its case on the turbine missile issue," and OCRE's fund-raising activities.144/ None of.these excuses warranted the delay. As the ASLB noted, OCRE had since October 1982 for discovery. LBP-83-46, 18 NRC at 226. OCRE's failure to pursue discov-ery more diligently and failure to investigate earlier the availability of ex-perts or witnesses cannot constitute good cause-for a delay.145/ Whether the GE report (which has not yet been issued), or any other document OCRE may obtain would give rise to a genuine issue of material fact is " sheer speculation."
LBP-83-46, 18 NRC at 226. The issue-is not whether OCRE requested a 6-month .
delay or a 2-3 month delay, cf. OCRE Brief at 42; OCRE failed to justify any
'dalay.146/
~
143/ OCRE Response to NRC Motion for Summary Disposition of Issue #13 (June 23, 1983), Affidavit of Susan Hiatt.
144/ OCRE Amended Response to NRC Staff's Motion for Summary Disposition of Issue #13 (June 29, 1983), Affidavit of Susan Hiatt. Applicants know of no such
. court _ action.
145/ Indeed, OCRE had sufficient time and resources during_this period to file a petition to intervene in another operating licensing proceeding. See OCRE Peti-tion-for Leave to Intervene, (July 1, 1983) in Duquesne Light Co. (Beaver Valley
' Power Station, Unit 2), Docket No. 50-412.
146/ Although OCRE alludes to the alleged liberality in granting comparable re-quests under the Federal Rules of Civil Procedure, OCRE Brief at 42, a continu-ance under those Rules must be based on more than " vague assertions that addi-
'tional discovery will produce needed, but unspecified facts." SEC v. Soence &
' Green Chem. Co., 612 F.2d 896, 901 (5th Cir. 1980), cert. denied, 449 U.S._1082 (1981). See also 6 Pt. 2 Moore's Federal Practice 156.24
r OCRE also complains that information from GE was not made available cx1 dis-covery. OCRE Brief at 43. Yet OCRE never filed a motion to compel nor sought discovery against GE as a non-party.147/ Nor does it appear that OCRE ever raised this issue ~before_the ASLB.
Much of OCRE's appeal is devoted to the ASLB's treatment of the Heasier and Bush articles. 'OCRE Brief at 44-46. OCRE's June 23, 1983 Answer to the Staff's motion cited a statement in a 1982 paper by Heasier that there was a one in a thousand chance of a new turbine failing soon after it goes into operation. Id.
at 3. 0CRE did not reveal whether these were GE turbines, or turbines in nuclear service, or whether the failures occurred in the factory, or any other relevant information. Applicants' affidavit, however, demonstrated without con-tradiction on the record that there had never been an overspeed failure with the type of fprotection system at Perry and that no GE nuclear turbine'had ever
-failed:from stress' corrosion cracking. Timo/ Johnson Affidavit at 2-3. Since .
-these were the only two kinds of events which could hypothetically lead to tur-bine missiles, this evidentiary showing was more than adequate to indicate that the Heasier article failed to create a-genuine issue of material fact. The 1978 article by Dr. Bush, reviewed by the ASLB,-further corroborated this conclusion.
.0CRE als'o asserts that the ASLB erred when it denied OCRE's motion for re-
-consideration of.LBP-83-46.148/ -The ASLB's decision denying OCRE's motion for 147/ OCRE asked for certain documents from Applicants" agents," including GE.
Applicants answered that GE had no contractual obligations to make such docu-
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ments.available to Applicants. .0CRE failed to file a motion to compel or pursue
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' discovery directly against GE as a non-party. See, e.g., 10 CFR 5 2.740(f)(3);
Commonwealth Edison Co. (Zion Station, Units 1.and 2), ALAB-116, 6 AEC 258 (1973),
148/ Motion for Reconsideration of the Licensing Board's August 9, 1983 Memoran-dum and Order Granting Summary Disposition of Issue No. 13 (October 14, 1983).
(Continued Next Page)
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reconsideration was correct.'149/. OCRE's motion was supported by a letter writ-
. ten by'Dr. Bush,-not;by.an affidavit as required-by 10 CFR $ 2.749(b). Thus, lDCRE. failed to,present' admissible evidence showing that a genuine issue of mate-rial fact ' existed'for the ASLB to address. Moreover, the Timo/ Johnson affidavit cddressed.each of Dr. Bush's concerns. Dr. Bush could not have been aware of the Timo/ Johnson' affidavit when he. wrote his letter since Applicants' Answer, to which the affidavit was attached, was submitted that very same day. Nor, appar-ently,7 ad h Dr.. Bush seen the affidavit when.0CRE contacted him by phone on
.0ctober 11~, 1983. . Thus, the Bush letter was written without the benefit of the detailed information in the Timo/ Johnson affidavit. His letter, therefore, could not and did not contravert the information on which the ASLB relied in
-LBP-83-46. Thus, OCRE's motion failed to provide a basis for reconsideration.
- Finally, OCRE alleges that the Licensing Bgard' wrongfully endorsed an
' unapproved Staff position that denigrated the Staff's former position. OCRE .
BriefLat 46-47. OCRE's complaint seems to be that SSER-3 adopts a mechanism different-from that used in a Regulatory Guide'and the Standard Review Plan.
Since-the Staff is bound by regulation and statute, not by other regulatory po-sitions,-OCRE is raising a non-issue, and clearly one which has no bearing on a
. genuine issue of material fact. See Shoreham, ALAB-788, 20 NRC at ll61.150/
(Continued)
OCRE's motion was based on a letter from Dr. Spencer Bush to A. Cappucci of the
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-ACRS dated June.27, 1983. Dr. Bush therein commented on the Staff's generic po-
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sition on turbine missile as reflected in SSER 3. See id., Attachment. Dr.
Bush's letter reflects his desire to see more information, specifically the GE report, before offering his opinion of the efficacy of the Staff's position.
d Id.
- 149/ Memorandum and Order (Turbine Missile Reconsideration) (March 29, 1984). .
150/ Moreover, OCRE has' made no showing that the Staf f's new position is - any Lless stringent than the Staff's former position. The Staff still requires a (Continued Next Page)
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Thus,1Di C RE's objections to LBP-83-46 and the ASLB's decision denying OCRE's'
. motion for reconsideration thereof are without merit. OCRE's appeal of LBP-83-46 should, therefore, be rejected.
C. 'The ASLB Properly. Denied OCRE's Late-Filed A'ir Lock Testing-Contention Section' II.F of OCRE's Brief challenges the ASLB's denial of OCRE's motion to reopen and late-filed contention on air lock testing.151/ The contention
, claimed that Applicants' request, pursuant to 10 CFR S 50.12(a), for a partial exemption from air lock testing requirements in 10 CFR Part 50, App. J failed to meet the requirements of 10 CFR S 2.758.
-The contention was properly denied because of its faulty premise that
- Applicants' exemption request must meet the requirements of 10 CFR $ 2.758.152/
The contention was also rejectable for other reasons which the ASLB did not need to reach, but which would also warrant denial of OCRE's appeal.
(Continued).
plant's overall probability of generating turbine missiles causing unacceptable damage to safety-related equipment to be less than 10' per year. SSER-3 at 3-2. Only the method of. calculating that probability has changed, as explained by the Staff in.SSER-3.
151/ LBP-85-33, 22 NRC 442 (1985), denying OCRE Motion to Reopen the Record and to Submit a New Contention (July 5, 1985) ("0CRE Motion").
152/ Although its Motion and Brief are somewhat confused as to the nature of' OCRE's arguments, the contention itself is explicitly limited to the claim that the exemption does not meet the tests of 10 CFR 5 2.758. OCRE Motion at 2.
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9 i.
Section 2.758 Does Not Apply to Applicants' Exemption Request
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if Section 2.758 provides a mechanism for dealing with challenges to NRC reg-ulations in adjudicatory proceedings.153/ It provides that a party to a pro-ceeding "may_ petition that application of a specified Commission rule or regula-tion...be waiv'ed or an exception made for a particular proceeding" (emphasis added). JOCRE!s' argument that an exemption must be judged by the standards of 10 CFR 5 2.758 has no basis. Nothing in'5 2.758 bars the use of 10 CFR S 50.12(a).
Applicants at no time sought to use the adjudicatory process to challenge the applicability of Appendix J. Nor is there any requirement to do so. Therefore, 5 2.758 does not apply.
The Commission's exemption regulation, 10 CFR S 50.12(a), has been a part of the NRC's rules since at least 1969. 34 Fed. Reg. 19346 (1969). Section 2.758 w'as'_added~in 1972. 37 Fed. Reg. 15127 (1972). Section 2.758 was not intended to replace 5 50.12(a), but rather to establish a -specific procedure to .
govern challenges to Commission regulations raised in adjudicatory hearings. 37 Fed. Reg. at 15127, 15129. When the Commission adopted 5 2.758,'it neither re-pealed nor modified 5 50.12(a).
OCRE seems to argue that-the Commission's decision in Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-84-8, 19 NRC 1154 (1984), re-quires that 5 2.758 be applied or at'least that all exemptions requested in con-tested proceedings be submitted to.the licensing board. OCRE Motion at 8; OCRE Brief at 56. The ASLB correctly pointed out that Shoreham involved an exemption request directly related to an already admitted contention. 22 NRC'at 446.
153/ Sectica 2.758, together with a11'other provisions of Subpart G to 10 CFR
- Part 2, applies only to-adjudications.
10 CFR S 2.700. .
,i-- , - . , _
r There.is no such contention here. OCRE cannot use an exemption request unrelated to'any pending issue to bootstrap its way into an admitted contention.
- 2. Applicants' Exemption Request Was Properly Submitted Under 10 CFR $ 50.12 Although OCRE's contention was limited to the applicability of 6 2.758, much of 0CRE's Motion and Brief is devoted to an attack on 5 50.12(a). OCRE ar-gues that specific Congressional authority is needed to grant exemptions,~ 0CRE Brief at 54, and that the Atomic Energy Act "does not authorize the Commission to grant exemptions." OCRE Motion at 3. OCRE proclaims that granting the ex-iemption would be an ultra vires act. OCRE Motion at 1,.10.
OCRE is incorrect on all counts. Administrative agencies have inherent au-thority to provide for exemptions from their regulations. U.S. v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 755 (1972).154/ The Atomic Energy Act gives
.NRC the authofity to issue regulations to carry out its statutory functions. 42 U.S.C'. $ 2201(b),(p). Section 50.12(a) .is such a regulation. The courts-have specifically recognized NRC's exemption regulations. Duke Power Co. v. SRC, 770 F.2d 386 (4th Cir. 1985). Cf. Connecticut Light'and Power Co. v. NRC, 673 F.2d
.525 (D.C. Cir. 1982), cert. denied, 459 U.S. 835 (1982)(fire protection exemp-l' tion provisions). Of course, any attempt to challenge the applicability of a Commission regulation can only proceed pursuant to 10 CFR $ 2.758. Although
.0CRE' claims that it "was not challenging the regulation, but instead offered an 154/ OCRE's argument that the Allegheny-Ludlum principle applies only to com-
-plex economic regulations (OCRE Response to Staff and Applicant Answers (August 5,-1985)), is inccrrect. See, e.g., Carolina' Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1-4), CLI-74-22, 7 AEC 939, 944 (1974); Long Island Lighting Co. (Shoreham Nuclear Power Station), LBP-84-45, 20 NRC 1343,-
1381 n.143.(1984),
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interpretation of it,".0CRE Brief at 54, it is hard to read OCRE's argument that
-the NRC is without statutory authorization to issue exemptions as anything but a challenge ~to 5-50.12(a).
1 OCRE also argues that the Commission may not consider financial burdens in passing on the exemption request. OCRE Brief at 55. OCRE's reliance on the PRDC and PG&E cases, OCRE Motion'at 3-4, is simply inapposite.155/- The NRC has
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weighed financial burdens in other contexts.156/ So long as the reasonable as-surance standard'is met, financial burdens may be considered.
- 3. OCRE's Contention Was Rejectable on Other Grounds In addition to the grounds relied upon by the ASLB, OCRE's late-filed con-tention was also rejectable on other grounds.157/
- a. OCRE Failed to Support Reopening the Record A motion to reopen the record must be timely,:must address a significant safety orienvironmental' issue, and must show that reopening would produce a dif- .
ferentfresult. Louisiana Power & Light Co. (Waterford Steam Electric Station, 155/ Neither. Power Reactor Develop. Corp. v. International Union, 367 U.S. 396
.(1961), nor Pacific Gas and Electric Co. v. State Energv Res. Cons. & Dev.
Comm., 461 U.S. 190 (1983), prohibited cost-benefit considerations in reactor licensing. . PRDC required that licensing decisions be;made on reasonable assur-ance findings, not on the' economic consequences of license denial. PG&E addressed the respective responsibilities of states and the Federal Government with respect to authorization to construct nuclear power plants.
156/ See, e.g., 10 CFR S 20.1(c) ("as low as reasonable achievable"); 10 CFR 5 50.109(a)(3) .( backficting rule) . OCRE.itself relies on the SRC's cost evalua-tion for the Commission's SLCS regulation. OCRE Brief at 34-35.
157/~Having decided the 5 2.758 issue against OCRE, the ASLB did not need to reach other grounds'for rejecting the contention. 22 NRC at 445. However, the result' reached by the ASLB (i.e. denial of the contention) may be sustained on
. grounds other than those relied on by the ASLB. Bryon, ALAB-793, 20 NRC at 1597 n.3.
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Unit:3), ALAB-812,'22.NRC 5, 13 (1985)'. The burden of satisfying these require-ments is a heavy one'. Id. at 14. OCRE's motion met none of these standards.
- See generally Applicants' July 22, 1985 Answer to OCRE's motion.
OCRE's motion was extraorc.inarily untimely. Since 1978, the NRC's Standard
- Technica'1' Specifications 158/ h' ave explicitly included the exemption. Appli-cants' July. 31,'1984 initial draft technical specifications, available to OCRE, included the exemption, as dic NRC Staff drafts of the technical specifications, served on OCRE on January 30 and March 6, 1985. Applicants formally transmitted the exemption to the NRC on April 8,-1985. OCRE wrote a-letter to the NRC Staff concerning the exemption on May 8, 1985. Yet the motion to reopen was not filed until July 5, 1985. OCRE cannot sit back and await a staff document (in this case the June 21, 1985 environmental assessment) when information on which to-base the contention was available months (if not years) earlier. Catawba, CLI-83-19, 17 NRC at 1048.1,59/
The contention does not raise a.significant safety or. environmental' issue.
Whether the exemption request is evaluated pursuant to 5 2 758 instead of SI50.12 -- the specific issue raised by the contention -- has neither safety nor environmental significance. The underlying exemption request itself does not raise a significant safety issue,.as evidenced by its inclusion in the NRC's Standard Technical Specifications since 1978 and the many identical exemptions 158/ NUREG-0123, " Standard Technical Specifications'for General Electric Boiling Water Reactors" (Rev. 1, April 1, 1978) $ 4.6.-l.3.a. (see Attachment 1-to Appli--
cants ' J' .ly 22, 1985 Answer to OCRE Motion).
E f L en a two month delay in the l'ater stages of a proceeding is enough to
- warrant denial of a motion to reopen. Vermont Yankee Nuclear Power Corp.
(Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 526 (1973).
f-13%
l et for other plants.160/ -Other arguments on significance raised by OCRE in'its motion ~(but not in its brief) are shown to be baseless iri Applicants' July 22, 1985 Answer at 14-17.
OCRE did not show that reopening would produce a different. result. OCRE's-
.only argument was that new information concerning regulatory non-compliance always warrants reopening. OCRE. Motion at 9. This argument is irrelevant to the third-reopening test. It is also irrelevant to the ' contention -- if the Commission grants.an exemption, there is no regulatory non-compliance.
- b. OCRE Failed to Support a Late'-Filed Contention OCRE's showing on the five factors to-be balanced in deciding whether to j admit a;1 ate-filed contention, OCRE Motion at 9-11, was totally inadequate. The most important of the factors are good cause for lateness, ability to make a
- significant' contribution to the record; and delay /expension of'the proceeding.
eSouth Carolina _ Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit l') , ,
ALAB-642,' 13 NRC 881, 895 (1981). OCRE's unjustified untimeliness is demon-strated above. OCRE.should have known of the exemption since July 1984 at the latest, and perhaps since NUREG-0123, Rev. I was published in 1978. OCRE's sup-port for its ability to assist'_in developing the record was limited to an asser-tion that it. conducted research on containment integrity in connection with an-otF2r contention. OCRE Motion at 10. OCRE admitted th'at admitting the contention might result in some' delay. It would obviously broaden the proceed-ing. OCRE's late-filed contention, therefore, did not meet the.6 2.714(a) criteri'a .
>l60/ See Applicants' Answer to OCRE Motion at 3 n.1; NRC Staff Response in Oppo-sition to OCRE Motion (July 24, 1985),. Attachment.
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. CONCLUSION
!For all the above reasons, Applicants respectfully request that Sunflower's
'and OCRC s'appe'als be dismissed.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
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p
. S lberg,'P. C.
~M H. Glasspiegel ael . Swiger Rose Ann C. Sullivan Counsel for Applicants 1800 M Street, N. W. ,
. -Washington, D. C. 20036 (202) 822-1000
. Dated: December 2, 1985 f
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3:
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December 2, 1985 W. .
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION L Before the Atomic Safety and Licensing Appeal Board.
-In the. Matter of- )
)
- THE CLEVELAND ELECTRIC .) Docket Nos. 50-440
-: ILLUMINATING COMPANY, ET AL.- ) 50-441
)
i(Perry Nuclear Power Plant,- )
. Units - 1: and 2) , )
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing APPLICANTS' BRIEF IN OPPO--
~
SITION TO INVERVENORS' APPEALS FROM THE CONCLUDING PARTIAL INITIAL' DECISION were served by deposit in'the United States Mail, first class, postage prepaid, this 2nd day of December.1985, to all-those on the attached Service-List.
A s
. 11 berg DATED: December 2, 1985 4
I F-
y , -- '
t-ep UNITED STATES OF AMERICA
& NUCLEAR REGULATORY COMMISSION.
BEFORE THE ATOMIC SAFETY AND-LICENSING APPEAL BOARD In the' Matter of -)
)
)
(Perry Nuclear Power Plant, )
Units 1 and.2) )
SERVICE LIST Alan S. Rosenthal, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Panel Appeal Board U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Dr.' W.-Reed Johnson Docketing and Service Section Atomic Safety and Licensing. Office of.the Secretary
. Appeal Board U. S.' Nuclear Regulatory Commission U. S.-Nuclear Regulatory Commission Washington, D. C. 20555 Washington,.D. C. 20555 fir. Howard A.'Wilber- Colleen Woodhead, Esquire Atomic Safety and Licensing Office of the Executive Legal .
Appeal: Board Director U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington,'D. C. 20555 Washington, D. C. 20555 James P. Gleason, Chairman Terry Lodge, Esquire 513 Gilmoure Drive Suite 105 Silver. Spring,' Maryland ' 20901 618 N. Michigan Street Toledo, 0hio 43624 Jerry R. Kline Ms. Susan L. Hiatt
~ Atomic Safety and' Licensing _ Board. 8275~Munson Avenue U.S Nuclear Regulatory Commission Mentor, Ohio 44060
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a l Washington, D.C. 20555 Glenn 0. Bright Donald T.-Ezzone, Esquire Atomic Safety and Licensing Board Assistant Prosecuting Attorney
~ Lake County Administration Center
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U.S. Nuclear Regulatory Commission
-Washington,;D.C. 20555 105 Center Street
.Painesville, Ohio 44077
. Atomic Safety andLLicensing Atomic Safety and Licensing.
Appeal Board Board Panel
-U.S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
. John G. Cardinal,' Esquire-
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Prosecuting Attorney Ashtabula County Courthouse
-Jefferson, Ohio. 44047 L