ML20137N298
| ML20137N298 | |
| Person / Time | |
|---|---|
| Issue date: | 01/31/1986 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V22-N05, NUREG-750, NUREG-750-V22-N5, NUDOCS 8602030017 | |
| Download: ML20137N298 (115) | |
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Vol. 22, No. 5 Pages 771-873 NUCLEAR REGULATORY COMMISSIOh ISSUANCES November 1985 B REGO y
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\/of. 22, No. 5 Pages 771-873 NUCLEAR REGULATORY COMMISSION ISSUANCES ,
November 1985 I
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This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Ucensing Appeal
, Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the s- Administrative Law Judge (ALJ), the Directors' Decisions (DDI, and
- z. : the Denials of Petitions for Rulemaking (DPRM).
The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or to have any indepen-dent legal significance.
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. s U.S. NUCLEAR ftEGULATORY CO WISSIO&*
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Prepared by the Division of Technical information and Document Control, Office of Administration, U.S. Nuclear Reguletory Commission, Washington, D.C. 20 (301/492-8925)
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4 4 ' I l i t Available from i Superin:endent of Documents U.S. Government Pnnting Office Post Office Box 37082 Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issues, 4 indexes, and 4 harabound editions for this publication. Single copies of this publication are available from National Technical
. Information Service, Springfield, VA 22161 Errors in this publication may be reported to the Divis;on of Technical Information and Document Control Office of Acministration.
U.S. Nuclear Regulatory Commission, Washington. O.C. 20555 (301/492-8925) or (301/492-7566)
NUREG-0750 Vol. 22, No. 5 Pages 771-874 NUCLEAR REGULATORY COMMISSION ISSUANCES November 1985 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal
, Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the
< Administrative Law Judge (ALJ), the Directors' Decisions (D0), and
;- the Denials of Petitions for Rutemaking (DPRM).
s ,;
# The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or to have any indepen-i dent legal significance.
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, s U.S. NUCLEAR REGULATORY COMMISSIONN l ,
Prepared by the Division of Technical Information and Document Control, f Office of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C (301/492-8925)
t t i COMMISSIONERS t
; Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthat Lando W. Zech, Jr.
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J Alan S. Rosenthal, Chairman, Atomic Safety and Licensing Appeal Panel
! B. Paul Cotter, Chairman, Atomic Safety and Ucensing Board Panel
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o . t CONTENTS Issuances of the Atomic Safety and Licensing Appeal Boards DUKE POWER COMPANY, et al. (Catawba Nuclear Station, Units I and 2)
, Dockets 50-413-OL, 50-414-OL 4 DECISION, ALAB-825, November 21,1985 . .. 785 LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
Docket 50-322-OL DECISION, ALAB-824, November 21,1985 . 776
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PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units I and 2) Dockets 50-352-OL, 50-353-OL MEMORANDUM AND ORDER, ALAB-823, November 19, 1985 .
! 773 U. -
- VIRGINIA ELECTRIC AND POWER COMPANY
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I (North Anna Power Station, Units I and 2) l} Dockets 50-338-OLA-1, 50-339-OLA-l
- I MEMORANDUM AND ORDER,
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ALAB-822, November 1,1985. . . .. . 771 P/{" ':#
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Issuances of the Atomic Safety and Licensing Boards N_.' ' COMMONWEALTH EDISON COMPANY (Braid. wood Nuclear Power Station, Units 1 and 2)
.' Dockets 50-456, 50-457 MEMORANDUM OF RATIONALE FOR
SUMMARY
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, ; Le. W : DISPOSITION OF NEINER FARMS V:g $7: .
, _ ! CONTENTION 1, LBP-85-43, November 7,1985 . 805
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HOUSTON LIGHTING AND POWER COMPANY, et al.
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$.2Q(?:- Dockets STN 50-498-OL, STN 50-499-OL
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(ASLBP No. 79-421-07 OL) MEMORANDUM AND ORDER,
, LBP-85-42, November 5,1985 . . 795 ill 9
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IlOUSTON LIGHTING AND POWER COMPANY, et al. (South Texas Project, Units I and 2) Dockets STN 50-498-OL, STN 50-499-OL (ASLBP No. 79-421-07-OL)
- MEMORANDUM AND ORDER, LBP-85-45, November 14, 1985 . . . . . . . . . 819
! KERR-McGEE CHEMICAL CORPORATION l (West Chicago Rare Earths Facility)
Docket 40-2061-ML (ASLBP No. 83-495-01 -M L)
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MEMORANDUM AND ORDER, LBP-85-46, November 14,1985 . . . . 830 KERR-McGEE CHEMICAL CORPORATION (Kress Creek Decontamination) Docket 40-2061 SC (ASLBP No. 84-502-01-SC)
. MEMORANDUM AND ORDER, LBP-85-48, November 29,1985 . . 843 METROPOLITAN EDISON COMPANY, et al.
(Three Mile Island Nuclear Station, Unit 2) j Docket 50-320-OLA (ASLBP No. 80-442-04-LA) ORDER, LBP-85-44, November 8,1985. . . . 816 TEXAS UTILITIES ELECTRIC COMPANY, et al.
-' (Comanche Peak Steam Electric Station, Units I and 2) d
. , Dockets 50-445-OL,50-446-OL (ASLBP No. 79-430-06-OL)
MEMORANDUM AND ORDER, LBP-85-47, November 25,1985 ... . . . . . . 835 Issuances of Directors' Decisio'ns GENERAL ELECTRIC COMPANY (GE Morris Operation Spent Fuel Storage Facility) Dockets 70-1308, 72-1-S P i DIRECTOR'S DECISION UNDER 10 C.F.R. l 2.206, I DD-85-16, November 4,1985. . . . . 851 i iv p -+ , , , m .n. n -s--, ,, _ p , -
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M AINE YANKEE ATOMIC POWER COMPANY (Maine Yankee Atomic Power Station)
;^ Docket 50-309 DIRECTOR'S DECISION UNDER 10 C.F.R. s 2.206, DD-85-17, November 12,1985. . . . . . . 859 PHILADELPHIA ELECTRfC COMPANY (Limerick Generating Station. Units I and 2) s .
Dockets 50-352, 50-353
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, DIRECTOR'S DECISION UNDER 10 C.F.R. { 2.206,
);- DD-85-18, November 12,1985. . . .. 870
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I Atomic Safety and Licensing Appeal Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL Alan S. Rosenthal, Chairman Dr. W. Reed Johnson Thomas S. Moore ;, Chnstene N. Kohl i Gary J. Edles Dr. Regina 6d L Gotchy Howard A. Wilber l i l l I I
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Cite as 22 NRC 771 (1985) ALAB 822 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
; ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
( Alan S. Rosenthal, Chairman Gary J. Edles Dr. Reginald L Gotchy In the Matter of Docket Nos. 50 338-OLA-1 50-339-OLA-1 VIRGINIA ELECTRIC AND POWER l COMPANY (North Anna Power Station, Units 1 and 2) November 1,1985 i
. ,, After conducting its sua sponte review, the Appeal Board alTirms the
*~ Licensing Board's initial decWion (LBP-85-34,22 NRC 481 (1985)) au-
' thorizing the Director of Nuclear Reactor Regulation to issue a license
-. , amendment for the North Anna nuclear facility, Units I and 2. to O '
permit the receipt and storage of 500 spent fuel assemblics from the Surry Power Station.
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! MEMORANDUM AND ORDER
, , On September 3,1985, the Licensing Board issued its initial decision
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ri: authorizing the Director of Nuclear Reactor Regulation to issue a
- 1. T. . 0U . i license amendment for the North Anna nuclear facility, Units I and 2, to permit the receipt and storage of 500 spent fuel assemblics from the
;( - Surry Power Station. LBP-85-34, 22 NRC 481. No appeals from the 771
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Board's decision have been filed. W.: have therefore conducted our cus-tomary sua sponte examination of the initial decision and relevant por-tions of the underlying record. That examination has disclosed no error warranting corrective action with regard to the Board's ultimate determi-nation in the applicant's favor. For this reason. we a/Jirm the Board's decision.' It is so ORDERED. FOR Tile APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board J
)
N s 4 5 Scr gewral/r Arcona /%b/r Scrwe Co. (Palo Verde Nuclear Generatmg Station. Units I,2 and 38 Al.AB-713,17 NRC 83. 8511983L 772
Cite as 22 NRr; 773 (1985) ALAB 823 UNITED STATES C F AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD - 3 Administrative Judges: Christine N. Kohl, Chairman Gary J. Edles Dr. Reginald L Gotchy In the Matter of Docket Nos. 50 352-OL 50 353 OL PHILADELPHIA ELECTRIC COMPANY l (Limerick Generating Station,
! Units 1 and 2) November 19,1985
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The Appeal Board, finding that it does not have jurisdiction over inter-y . 'j . ' j venors' motion to reopen the record, refers the motion to the Commis- _ , . am < sion for its consideration. + ~ ::4._. - , RULES OF PRACTICE: JURISDICTION Jurisdiction to rule on a motion to reopen on certain issues, filed after g.. . exceptions have been taken to a Licensing Board decision on those f; e ",> - - issues, rests with the appeal board rather than the licensing board. Metro-N politan Edison Co. (Three Mile Island Nuclear Station, Unit No.1).
.I ALAB-699,16 NRC 1324 (1982).
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I RULES OF PRACTICE: JURISDICTION
,._ h Q i Jurisdiction to rule on a motion to reopen on certain issues, Gled after ? '
petitions for review of an Appeal Board decision on those issues have
,- c - been Gled with the Commission, no longer rests with the appeal board.
773 f v 9 .
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APPEARANCE Robert L. Anthony, Stoylan, Pennsylvania, intervenor pro se and for in-tervenor Friends of the Earth.
, MEMORANDUM AND ORDER 2
; On October 22,1985, we issued ALAB-819,22 NRC 681, completing l our appellate review of numerous issues raised in connection with the j
' Licensing Board's second partial initial decision in this proceeding. See LBP-84-31, 20 NRC 446 (1984). Among the issues we addressed was
.i the Board's disposition of contentions V-3a and V-3b, raised by interve-i nors Robert L. Anthony and Friends of the Earth (Anthony / FOE),
l Those contentions concerned the possible etTects of a gas or petroleum pipeline explosion on structures at the Limerick nuclear plant. We con-sidered the many arguments raised on appeal by Anthony / FOE and
, found none to have merit. We thus alTirmed the Licensing Board's determination that the Limerick structures are adequate to withstand
' the postulated explosion scenarios. See ALAB-819,22 NRC at 730-41. Anthony / FOE, in a' motion filed November 12, 1985, now ask us to
; reopen the record on contentions V-3a and V-3b and to stay the opera-j tion of Limerick Unit 1. The basis of their motion is an October 31 letter l from applicant Philadelphia Electric Company (PECo), enclosing a
. ; recent Licensee Event Report (LER). That report (No. 85-080) notes a l potential condition not previously covered by the plant's operating or
~
I emergency procedures - a postulated cooling tower basin break with re-sultant entry of water in:o the lower elevations of the plant control struc-ture due to the present status of Unit 2 construction and grading. Such an event could affect the Control Structure Chilled Water Systems (used to remove heat from areas such as the main control room through the j heating, ventilation, and air conditioning system), but assertedly would
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not prevent the safe shutdown of the plant. According to Anthony / FOE, this new information undermines the Licensing Board's conclusions regarding the ability of safety-related structures to withstand such flood-
' ing. See LBP-84-31,20 NRC at 490-92. Because ALAB-819 affirms the l
Board's partial initial decision, Anthony / FOE seek our reconsideration
-b.
of ALAB-819 in light of the information contained in LER No. 85 080. i < We no longer have jurisdiction over matters relating to contentions V-3a and V-3b, however, and therefore refer Anthony / FOE's motion to the Commission for its consideration. 774 4 l l
' As we have noted on several past occasions, the Commission's Rules of Practice provide no ready answer to questions concerning the division
- of authority and jurisdiction among the various decisionmaking entities within the NRC. Similarly, we could locate no case precedent directly ap-l plicable to the situation presented by Anthony / FOE's motion. Our deci-
- sion in Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1), ALAB-699,16 NRC 1324 (1982), however, addresses a closely
- related issue. In that case, an intervenor filed a motion with the Licens-
',. ing Board, seeking reopening of certain issues that Board had decided previously in one of several partial initial decisions. Because intervenor's c'< motion was submitted after the filing of exceptions to that Licensing Board decision - thereby initiating Appeal Board review - we conclud-4 ed (in agreement with the Licensing Board) that jurisdiction over the motion to reopen rested with us rather than the Licensing Board.
4 . That reasoning provides a fair and workable solution to the problem i here. Two petitions for review of ALAB-819 have already been liled with the Commission (one by PECo on November 5, and the other by intervenor Limerick Ecology Action on November 8), thereby triggering the Commission's consideration of that decision, including our rulings
, - 1 ; in connection with Anthony / FOE's contentions V-3a and V-3b. There-I. j fore, the Commission is logically the proper entity within the adjudica-I '; "% { tory chain that should consider Anthony / FOE's motion to reopen on J, these same contentions.
j ,
.- : Anthony / FOE's November 12, 1985, motion to reopen is therefore
, ; referred to the Commission.
! 'e ' It is so ORDERED. l < y# l > ' i
-v M FOR THE APPEAL BOARD A
.' C. Jean Shoemaker Secretary to the 4 Appeal Board
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Cite as 22 NRC 776 (1985) ALAB-824 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: Alan S. Rosenthal, Chairman Gary J. Edles Howard A. Wilber in the Matter of Docket No. 50 322-OL LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) November 21,1985 The Appeal Board affirms the Licensing Board's partial initial decision (LBP-85-18, 21 NRC 1637 (1985)) which determined that, for the first
- fuel cycle, the three Transamerica Delaval, Inc. emergency diesel gener-
)' ators installed at the Shoreham nuclear facility will satisfy the require-ments of General Design Criterion 17,10 C.F.R. Part 50, Appendix A.
REGULATIONS: INTERPRETATION (10 C.F.R. PART 50,
. APPENDIX A)
~ ( The General Design Criteria for Nuclear Power Plants " establish mini-mum requirements for the principal design criteria for water-cooled nuclear power plants similar in design and location to plants for which construction permits have been issued by the Commission." 10 C.F.R.
, . Part 50, Appendix A.
776
REGULATIONS: INTERPRETATION (10 C.F.R. PART 50, APPENDIX A) Both pressurized water and boiling water reactors are equally subject to the requirements of General Design Criterion 17, and fulfill those re-quirements in the same fashion. ATOMIC ENERGY ACT: IIEARING RIGitT The hearing right granted by section 189a. of the Atomic Energy Act i of 1954, as amended,42 U.S.C. f 2239(a), carries with it no license to encumber the record with evidence of little, if any, intrinsic worth on the theory that the examination and cross-examination of other wit-nesses might establish the proposition for which that evidence had been offered. See Abernathy v. Superior Hardwoods. Inc. 704 F.2d 963, 968 (7th Cir.1983). See also 10 C.F.R. j 2.743(c). APPEARANCES l Fabian G. Palomino, Albany, New York, for the intervenors State of
- . ! New York and Suffolk Codnty (Lawrence Coe Lanpher, Alan Roy Dynner, and Douglas J. Scheidt, Washington, D.C., were on the brief for Suffolk County).
l T.S. Ellis, III, Richmond, Virginia (with whom W. Taylor Reveley,
'.Q III, Richmond, Virginia, Odes L. Stroupe, Jr., Raleigh, North + Carolina, and Lucinda E. Minton, Washington, D.C., were on ur - , the brie 0, for the applicant Long Island Lighting Company.
Richard J. Goddard (with whom Edwin J. Reis was on the brieO for the Nuclear Regulatory Commission staff. [ DECISION
' Before us is the joint appeal of intervenors Suffolk County and the 9 State of New York from the Licensing Board's June 14,1985 partial ini-
~
, 'j tial decision in this operating hcense proceeding involving the Shoreham l
777
nuclear facility.' In its decision, the Board determined that, for the first fuel cycle, the three Transamerica Delaval, Inc. (TDI) emergency diesel generators installed at the facility will satisfy the requirements of General Design Criterion (GDC) 17.2 Insofar as here relevant, that criterion provides: Electrrc power systems. An onsite electne power system and an offsite electnc power system shall be provided to permit functioning of structures, systems, and components important to safety. The safety function for each system (assuming the other system is not functioning) shall be to provide sufTicient capacity and capabihty to assure that (1) specified acceptable fuel design hmits and design conditions of the reactor coolant pressure boundary are not exceeded as a result of anticipated opera-tional occurrences and (2) the core is cooled and containment integrity and other vital functions are maintained in the event of postulated accidents-The onsite electnc power supphes, including the batteries, and the onsite electric distribution system, shall have sufficient independence, redundancy, and testabihty to perform their safety functions assuming a single failure. i l Although a large number of subsidiary Gndings and conclusions un-
.. I dergird the Licensing Board's ultimate determination on 'he short-term l acceptability of the TDI generators, the appeal presents a single, and relatively narrow, issue. That issue concerns the exclusion by the Board of certain evidence offered by the intervenors that purportedly re0ects the NRC staffs interpretation of the requirements imposed by GDC 17.
For the reasons that follow, we conclude that the evidence in question could not serve its intended purpose and, therefore, was properly exclud-ed. In addition, we have conducted our customary sua sponte review of the ultimate determination of the Licensing Board on the acceptability of the TDI generators. Finding no error requiring corrective action, we affirm the partialinitial decision. j A. In the case of a loss of offsite power accompanied by a loss-t of-coolant accident (regarded as the " worst case" event for analytic pur-poses),3 the Shoreham emergency generators must be capable of furnish-ing sufDefent AC power to enable various systems to bring the reactor to a safe shutdown condition. In order to ascertain whether the TDI genera-tors satisfy this requirement, one of them was subjected to an endurance test, it was successfully operated for a period of 740 hours at power I LBP-8518,21 NRC 1637, t 2 The General Design Cntena for Nuclear Power Plants are found m Appendis A to 10 C F.R. Part 50. As the Introduction to the Appendis states, they "estabhsh minimum requirements for the pnnapal design cntena ror water-cooled nuclear power plants similar in design and location to plants for whwh construction permits have been issued by the Commission " 3Dawe, eral, rol Tr. 27,153, at 8,29 778
levels that, for the most part, met or exceeded 3300 kilowatts (kW).* Each of the generators was therefore deemed capable of supplying power in that amount over a protracted period? On this basis, the staff found the generators "qualiGed" to fulfill their assigned function; i.e., should the worst case event occur, they would provide an adequate amount of electricity to the required systems? For their part, the intervenors did not contend that the continuous emergency power need imposed on any one generator might exceed 3300 kW.' They nonetheless claimed that the generators should not have been deemed acceptable unless it had been demonstrated that each was capable of delivering more than that amount of power. To the extent pertinent.to their appeal, this claim rested on the proposition that, as interpreted and applied by the stalT, GDC 17 requires that emergency generators be equipped not merely to provide the electricity necessary to take care of the expected maximum loads during the pos-tulated worst case event but, as well, to accommodate unexpected and unnecessary additional loads stemming from possible untoward operator actions. In an endeavor to buttress this proposition, the intervenors offered the written testimony of two officials of a "technica: consulting Grm on
- nuclear power plant safety and licensing matters."' These witnesses maintained that "[ilt has been t.he standard practice in the licensing of
- all boiling wster reactors" to require the " maximum rated load" of the
! emergency generators to exceed by a "significant margin" the amount of power required to shut down the reactor safely.'The essential founda-i tion for this assertion was a table referring to 27 operating boiling water g : reactors located in 18 nuclear power facilities.'o That table, which was ap.
1 e 4See LBP-85-18. 21 SRC at 1681.1697 5 As a general matter, the stali rehes upon the power ratintts awgned by the manuticturer ir 27.759-60. 27.968-69 See Regulatory Guide 1.9. Reviuon 2. " selection. Deugn. and Quahrication of Diesel-Generator Units Used as standby (onntet Electne Power systems at Nuclear Power Plants" [ i (December 1979) (Long Island Lighting Company (LILCol Exhibit C 31 Because of proNerr.s encoun-tered by TDI generators, the staff suggested that the capacity of those generators Iwhether installed at
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8 shoreham or at another nuclear facihtyl be determined through an entensive empirical test. rr
- 27.981-84 See also Da*c, er al. fol Tr 27.153, ai 910.
- Knox. fol. Tr. 27.735, at 12. Tr. 27.787. 27.945-46.
# 7 See LBP 85-18. 21 NRC at 1689,1691. Although the intervenors did argue before the 1.icenung Board that there might be meermittent power demands that would produce a total load on a ungle gener-
; ator in excess or 3300 kw. that thesis is not renewed in connection with their appeal. In any event. we we no reason for concern on this score. See p. 7 3. m/ra.
8 Bndenbaugh and Mmor, foi Tr 27.500. at 1.
' 9 i /d at 15 By " maximum rated load." the witnesws apparently had reference both to (1) in the case of i TDI generators, the capacity 01 the generator as determined empincally hn the words of the stalT " quasi-reed load"). and (2) in the case of other generators. the capacity of the generater as represented by the f manufacturer 6.c , " power ratmg" or " nameplate ratmg")
10Many such facihties have, of course. more than one reattor h e . umt). 779
i pended to their proposed testimony, had been prepared by the witnesses following an asserted survey made of Final Safety Analysis Reports and other documents. According to it, the emergency generators associated with the 27 reactors had capacities that exceeded the loads that they might have to satisfy by margins ranging from approximately three to 100 percent. With the support of the staff, the applicant moved to strike the pro-posed testimony and accompanying table on the ground that the capaci-ty/ power demand margins at other facilities were irrelevant on the ques-tion of the acceptability of the Shoreham TDI generators." The motion was granted for a somewhat dilTerent, albeit allied, reason. According to the Licensing Board, admission of the testimony and table would lead to the litigation of issues "at least so remotely collateral to the material issues before us as to be digressive without any redeeming usefulness."82 As earlier noted, the intervenors' appeal from the June 14 partial ini-tial decision is confined to this Board ruling. According to the interve-nors, the testimony and table did provide support for their claim that the staff has consistently interpreted and applied GDC 17 to require that the rated capacity of emergency generators exceed by a substantial margin the anticipated maximum loads associated with a worst case event. This being so, the intervenors maintain, the exclusion of this evidence was improper.
. The applicant and the staff urge affirmance of the ruling (and thus the ! June 14 decision). They insist that the evidence was properly excluded because it both did not demonstrate past agency practice and was "exces-sively collateral." In addition, we are told that, had it been admitted, the 4
evidence would not have affected the outcome of the proceeding.
. B. Contrary to the intervenors' position, we are entirely satisfied that the testimony and table in question were correctly excluded by the Licensing Board. As we have seen, that evidence was proffered for a i
single purpose: to establish that the stalT has uniformly interpreted and applied GDC 17 in a manner consistent with intervenors' own thinking on the subject. It is manifest, however, that neither the testimony nor i the table establishes any such thing. More specifically, they do nothing 3 to contradict the staff's insistence on the appeal that "GDC 17 has not t 83 See LILCo's Monon to strike Testimony or Dale G. Bndenbaush and Gresory C. Nimor Resarding suffolk County's Emergency Diesel Generator Load Contention (February 1.1985), at 3. NRC 5tatf Response to LILCo's Motions to senke surroik County's Tesumony on Fmersency Diesel Generator Load Contenuon and Cyhnder Blocks (February 2.1985#. at 2 U February 11,1945 Memorandum and order Ruhng on Moirons to sinke Poroons or sufrolk County and LILCo Tesumony (unpubbshed), at ) 780
. i been construed as requiring a substantial margin, or a margin to accom-modate operator error, between a diesel generator's rating or qualified load and the maximum emergency service load."')
In the final analysis, all that the table demonstrates is that there are 27 boiling water reactors licensed by this agency that possess emergency i generators with widely varying capacity / power demand margins. While each of those margins exceeds to some extent the margin at Shoreham, by no means can all of them be characterized as substantial. As presious-ly noted, the table reflects that one of the margins (that at hiilistone 1) was in the neighborhood of three percent. Nioreover, several others also l were relatively small (i.e., less than ten percent). Still further, the table i did not embrace all licensed boiling water reactors and made no mention of any pressurized water reactors. This is a matter of some significance, given the fact that the TDI emergency generators for Unit I of the Catawba facility (a pressurized water reactor) have stay-accepted capaci-ty/ power demand margins that are less than those possessed by the Shoreham generators.'s if anything, then, both the table and the Catawba data bear out the stalTs representation to us that it has not construed GDC 17 to have the effect attributed to it by the intervenors. But even had the table reflected that the emergency generators associated with all of the listed reactors possessed large capacity / power demand margins, there still scarcely would have been room to infer that such margins were provided in obedience to a staff mandate, rooted in GDC 17. For utilities and their i contractors do many things in the construction and operation of nuclear
! power reactors that are not in direct response to a staff-imposed require-
- ment.
+ The short of the matter is that the table, and accordingly the testimony of the witnesses founded thereon, were of so little probatise value on the question of the stalTs interpretation and application of GDC 17 that the Licensing Board was fully justified in excluding them from the
_ record. In this connection, if interested in obtaining an authoritative L w
, '3 NRC stafr Response to sufrolk County and state of New York Snerin support of Arreal of June 14.
j 1985 AsLB Decivon on Emergency Diesel Generators I Auguss 26.1985). at 1213 (fooinote omittedt
's i The term " maximum emergency service load (or "MEsL") was employed in this proceeding to refer i
to the load that the generators would have to bear in response to the worst case event for more than a short time period. LBP-8518. 21 NRC at 169192.
' , ! 18Although shoreham is a boiling water reactor, there is no reasonabic, technical basis for distinguish- *' ! ing between at and pressunted water reactors for present purposes Both types of reactors are equally y
3 subject to the requirements of GDC 17 - and fulfill those requirements in the same fashion
* 'i b l 15 Ser supplement No 4 to the safety Evaluation Report for Catawba Nuclear station. t!nns I and 2 e> 's (NUREG-0954. December 1984 Appendis G. at 9 At Catamba, the stalT.acceried rated capaciy for
' each of its two emergency generators is 5750 kW and the power demand for ns worst case esent is $714 g kW. The equivalent figures for shoreham are 3300 and 3253 3. respectnely. See t.BP 85.l A. 21 NRC at
- 1691-92. Thus, the Catawba margin is o 6 percent and the shoreham margin is 1.4 percent 781
answer to the interpretation question, the inter"enors might well hase sought through the discovery process to obtain thct answer from mem-
; bers of the stafT responsible for the enforcement of GDC 17. It is unclear j to us why such a direct approach was eschewed, in favo,' of an endeavor j to have the Licensing Board indulge in assumptions that the pidfered I indirect evidence simply would not allow.
l It need be added only that there is no substance to the intervenors' claim at oral argument that the exclusion of this evidence deprived them of hearing rights guaranteed by the Atomic Energy Act of 1954, as amended.'7 The intervenors were accorded a full hearing on the subject of the acceptability of the TDI generators. They had ample opportunity to adduce any evidence of true probative value and to test on cross-examination the evidence presented by other parties. That was the i extent of their entitlement. More speci0cally, their counsel's apparent
} differing view notwithstanding, the statutory hearing right enjoyed by
! the intervenors carried with it no license to encumber the record with
} evidence oflittle, if any, intrinsic worth on the theory that the examina.
j' tion and cross-examination of other witnesses might establish the propo-sition for which that evidence had been ofTered.'8 C. We have reviewed sua Sponte the evidence on the adequacy of the Shoreham emergency generators and concluded, in common with the Licensing Board, that the generators will suf0cc at least for the first fuel cycle. Although there is no need to explore this matter in great detail, a few brief observations are appropriate. To begin with, there is no basis for the belief expressed below by the intervenors that a substantial capacity / power demand margin is required to avoid the consequences of operator error. To be sure, such error might occur and might lead to the loss of the availability of one of the three generators. But GDC 17 requires the emergency power supply to be able to provide sufGcient power to perform its safety functions esen in the event of such a " single failure."20 Accordingly, the three genera-tors each must and do possess suf0cient capacity to enable any two of 86 The mtervenors cited m their brier and at oral argument a portion or the prepared tesumony or sta:T witness John L Knox. mtroduced into the record rollowmg Tr 27.735. Mr Knos did not state directly. however that the stali meerpreted GDC 17 to require substannal capaciippower demand marsms % nh respect to the meervenors' reliance on Mr. Knon's testimony regardmg operator error loads, we discuss the ability orthe emergency power supply to accommodate such loads at pp 782.A3. m/ra l7See section i29a. 42 U.s C. 223 Hat 18 5,, e,r,,,,4, ,, Supe,wr Hardwoods. lec. 704 F.2d 963. 968 (7th Cir.1983p see also 10 C.F R 2.74)(ct l'The applicant has ensured that a smgle operator error cannoi cause the loss or more than one
! emergency generator. Dawe. er al.. rol. Tr 27.153. at 37 NSee p 778. supra 782 ,w , m m.c --. -
them to meet the power demand should the worst case event be ac-companied or followed by a loss of the third generator (either because of operator error or otherwise).28 Nor is there merit to the other reasons advanced by the intersenors before the Licensing Board in support of their claim that the capaci-ty/ power demand margins are insufDcient.22 With regard to the power re-
. quirements of equipment that might operate intermittently, the record indicates both that (1) such operation would be for no more than a few
, minutes; and (2) in the unlikely event of the simultaneous occurrence
, of all of the intermittent loads, the total additional power demand for that relatively short period would be 78.1 kW.22 Yet the tested generator successfully completed a 220-hour segment at power levels at or abose 3500 kW - i.e.,200 kW greater than the 3300 kW capacity accepted as more than suf6cient to accommodate the maximum continuous load.2*
This consideration also provides an adequate response to the interve-nors' concern that the instrument used by the operators to determine the power output of the generators might be crucially inaccurate.2' Al-though the design accuracy of the instrument is plus or minus 140 kW, the calibrations performed before and after the endurance test showed that it was accurate within 70 kW.2* Apart from the issue regarding the power capacity of the TDI genera-
, tors, the Licensing Board considered in detail the adequacy of the cylin-I der blocks and crankshafts of the TDI diesel generators at Shoreham-On our review, we have found that the TDI diesel generators have been l subjected to extensive analyses, testing and inspections. In addition, stringent license conditions have been imposed with respect to operating
# limits, surveillance testing and inspections of the generators.2' As pre-viously noted, the Licensing Board approved the use of the TDI genera-tors for only the Grst fuel cycle, after which newly purchased diesel generators from a different manufacturer presumably will be available
. ~
, 28 Dame, er al. rot Tr. 27.153 at 37. The loss of only one emergency generator must be posiutated be.
; cause GDC 17 does not require that the emergency power supply be capable or enduring more than a
<.. 4
- single faelure "
-c l 22See LBP-8518,21 NRC at 1689.1691.
e ._. 2314 at 1693,1694 Dame, er al. fol. Tr 27.153, at Il 19 24 LBP.85.lS. 21 NRC at 1697
' 25 See A/. at 1691 The intervenors also claimed below that an allowed operating band of 100 kw ren.
+
dered the capacity / power demand margin ensufnaent. /bal This operahng band is allowed. however. 3 only during surveillance testing and mill not result in the generators being operated at increased power a s I lescis during an emergency. Dawe. cr al. foi Tr. 27.153. at 21 i 26 /J at 28-29 The estensive testing of one of the emergency generators for 220 hours as or above 3500 kW also satss6cs 15e entervenors' concern that the endurance rest did not demonstrate that the genera.
~
' tors can provide 33110 kW See LHP-AS-la. 21 NRC at 1691. 27Tec ad. at 1677.79.1647, 1649-90 783
-r -_,_. - -. .
for service.28 Along this line, the Board agreed "with LILCO and the staff that the record supports the approval of continued operation of the Shoreham TDI [ diesel generators] for multiple fuel cycles - with ap-propriate inspections - but consider [cdl it prudent for the NRC to defer a decision on operation past the first fuel cycle until industry ex-perience with TDI diesels up to that time can be reviewed."N In our view, there is no reason to disturb any condition or limitation placed on the operation, testing or inspection of the TDI diesel generators by the Licensing Board. i The Licensing Board's June 14,1985 partial initial decision is affirmed. It is so ORDERED. FOR Tile APPEAL BOARD f i l C. Jean Shoemaker Secretary to the Appeal Board i 1 28 /d at 1677-78 For eis pari, the apphcant has noi raised an obcction i on appeal to any of the hcense conditions or hmitations estabhshed by the Licensing Board. l N/d at 1654 784
Cite as 22 NRC 785 (1985) ALAB 825 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION f ATOMIC SAFETY AND LICENSING APPEAL BOARD i Administrative Judges: Alan S. Rosenthal, Chairman Thomas S. Moore Howard A. Wilber i in the Matter of Docket Nos. 50 413 OL 50-414 0L i DUKE POWER COMPANY, et al. (Catawba Nuclear Station, Units 1 and 2) November 21,1985 Following up on ALAB-813,22 NRC 59 (1985), the Appeal Board af-
, firms the remainder of the Licensing Board's authorization of a full power operating license for the Catawba facility - the receipt and stor-I age at Catawba of spent fuel generated at the applicants' Oconee and
, McGuire facilities.
LICENSING BOARDS: JURISDICTION jl Adjudicatory boards do not have plenary subject matter jurisdiction in _j Commission proceedings. See Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units I and 2), ALAB-739,18 NRC 335,339 (1983). LICENSING BOARDS: JURISDICTION i Under the Atomic Energy Act, the Nuclear Regulatory Commission f is empowered to administer the licensing provisions of the Act, 42 l U.S.C. (( 2132, 2133, and use licensing boards "to conduct such hear-i ings as the Commission may direct." 42 U.S.C. { 2241. The boards, 785
e' therefore, are delegates of the Commission and, as such, they may exer-cise authority over only those matters that the Commission commits to them. See Carolina Power and Light Co. (Shearon liarris Nuclear Power Plant, Units 1,2,3, and 4), ALAB-577,1I NRC 18,25 (1980); Northern e Indiana Public Scence Co. (Bailly Generating Station, Nuclear-1),
; ALAB-249,8 AEC 980,987 (1974).
LICENSING BOARDS: DELEGATED AUTilORITY IIcaring notices are the means by which the Commission identifies f the subject matters of the hearings and delegates to the licensing boards the authority to conduct proceedings. See 10 C.F.R. s 2.700; Pacv7c Gas
; and Electric Co. (Diablo Canyon Nuclear Power Plant, Units Nos. I and 2), CLI 76-1,3 NRC 73,74 n.1 (1976).
; LICENSING BOARDS: J URISDICTION
, Licensing boards "can neither enlarge nor contract the jurisdiction
.l '
conferred by the Commission." Consumers Power Co. (.\fidland Plant, Units 1 and 2), ALAB-235,8 AEC 645,647 (1974). LICENSING BOARDS: JURISDICTION A licensing board does not have the power to explore matters beyond those which are embraced by the notice of hearing for the particular pro-ceeding. Portland General Electric Co. (Trojan Nuclear Plant), ALAB-534,9 NRC 287,289 n.6 (1979). OPERATING LICENSES: DISPOSAL OF SPENT FUEL Proposals to store spent fuel generated at one facility in the fuel pool of another facility that does not qualify as an independent storage instal-lation under 10 C.F.R. Part 72 should be licensed pursuant to 10 C.F.R. Part 50. 45 Fed. Reg. 74,693, 74,698 (1980). RULES OF PRACTICE: BRIEFS Under the Commission's Rules of Practice, an appellant is obligated to clearly identify the errors of fact or law that are the subject of the appeal and, for each issue appealed, must identify the precise portion of
, the record relied upon in support of the assertion of error.10 C.F.R.
) 2.762(d)(1). See Wisconsm Electric Power Co. (Point Beach Nuclear
, 786 i
Plant, Unit 1), ALAB-719,17 NRC 387, 395 (1983); Pennsy/rania Power and Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-693,16 NRC 952,954-56 (1982); Consumers Poner Co. (hlid-land Plant Units I and 2), ALAB-270,1 NRC 473,476 (1975). i j RULESIAKING: EFFECT ON ADJUDICATION Appeal boards are required to apply the regulations in effect at the time of the appeal to matters before them. ALAB-813,22 NRC 59,86 (1985). APPEARANCES Robert Guild, Columbia, South Carolina, for the intervenors Palmetto Alliance and Carolina Environmental Study Group. J. Alichael SicGarry, III, Washington, D.C. (with whom Anne W. Cot-
! tingham and alark S. Cabert, Washington, D.C., and Albert V.
Carr, Jr., Charlotte, North Carolina, were on the bricO, for the A applicants Duke Power Company, er al.
, George E. Johnson for the Nuclear Regulatory Commission staff; i DECISION i
In ALAB-813,8 we decided the consolidated appeals of intervenors
; Palmetto Alliance and Carolina Environmental Study Group from a
' series of Licensing Board decisions, the last of which authorized full
,: power operating licenses for the two unit Catawba Nuclear Station owned by Duke Power Company, North Carolina blunicipal Power Agency Number 1, North Carolina Electric hiembership Corporation
, and Saluda River Electric Cooperative. Although we afGrmed the major
. portion of the Licensing Board's license authorization, we deferred all questions pertaining to a small part of the authorization permitting the applicants to receive and store at Catawba spent fuel generated at Duke Power Company's Oconee and AlcGuire nuclear power facilities.2 We 122 NRC 59 (1985L 2/4. at 64,86-87. 787
now address those questions and affirm the remainder of the Licensing Board's full power license authorization. I. This proceeding was instituted with the publication of the customary notice of opportunity for hearing indicating that the Commission had re-ceived an operating license application pursuant to 10 C.F.R. Part 50 "to possess, use and operate" the Catawba Nuclear Station, Units I and 2.3 In addition to the conventional information concerning the procedures for intervening in the proceeding, the notice closed with the usual state-ment that the license application on file in the agency's various public document rooms should be consulted "[ flor further details pertinent to the matters under consideration."* The Commission's published notice said nothing about the possible utilization of the Catawba facility as a repository for spent fuel generated at other nuclear power plants. The ap-plication referenced in the notice stated, however, that [tlhe bcense hereby apphed for is a class 103 operatmg license as defined by 10 CFR 50.22. It is requested for a period of forty (40) years. Apphcants further request such additional source, special nuclear, and by product materiallicenses as may be neces-l' sary or appropriate to the acquisition, construction, possession, and operation of the tecensed facihties and for authority to store irradiated fuel from other Duke nuclear facihties. At present, Duke has no spectfic plans to utthre this storage alternative 9 but, rather, considers it prudent planning to have this storage as one of the alterna-i tives available.8 in response to the Commission's notice, both Palmetto Alliance and Carolina Environmental Study Group filed petitions to intervene and proffered contentions aimed at, inter alia, the fuel storage proposal con-tained in the license application.' The Licensing Board admitted both in-tervenors as parties to the operating license proceeding, but, in initially considering the admissibility of the intervenors' contentions concerning the fuel storage proposal, the Board questioned whether it had jurisdic-
,, tion over that subject matter. Asserting that its jurisdiction "is normally
, e 3 42 Fed. Res. 32.974 (19811. 4/4, at 32.975, 4
- 5 Duke Power Company Catamba Nuclear station License Application tMar. 31.1981), volume I at 11 12.
- 4
, After the intervenors' petitions to intervene were riled. the Chief Administrateve Judge of the Atomic safety and Licensing Board Panel facting pursuant to the standmg delegation of authority con-P , tamed in the Commission's Rules of Practice,10 C F R. ( 2.714) established a Licenens Board to rule on the petitions and preside over any c.perstmg license proceedmg Sec 46 Fed. Reg 39.710 0 981).
! . other than namme the members of the Licensing Board this notice only referred to the Commiswon's
, previous notice of opportumty for hearms 788
established by the notice of opportunity for hearing" and that here the notice did not mention the fuel storage proposal, the Licensing Board sought the parties' views on the issue.7 After receiving them, the Board
; concluded, without elaboration, that it "must consider the environmen-l tal impacts associated with (spent fuel] transport to, and sterage at i Catawba."8 As pertinent to the issues now before us, the Licensing I
Board then rejected for various reasons most of the intervenors' conten-tions regarding the applicants' spent fuel proposal. On appeal, the intervenors purport to challenge the Licensing Board's rejection of certain of their contentions concerning the applicants' spent fuel proposal. Because they sought to contest the applicants' plan, the in-
, tervenors understandably did not dispute the Licensing Board's assertion i of jurisdiction over the portion of the license application containing the
{ spent fuel proposal. We, on the other hand, raised the issue of the
; power of the Licensing Board to consider the intervenors' spent fuel con-tentions at oral argument of the intervenors' appeal. Because the issue of subject matter jurisdiction may be raised at any time, we questioned
! (for much the same rer on originally asserted by the Board below) that i Board's naked conclusion that it had authority over the spent fuel por-I tion of the license application. Accordingly, we invited the parties to brief thejurisdictionalissue.
In response, the applicants and the NRC staff assert that the Licensing Board properly exercised jurisdiction over the spent fuel proposal. They also argue that the Board properly rejected the intervenors' related con-tentions. The intervenors, in effect, now argue alternatively that the ap-plicants' spent fuel plan was beyond the jurisdiction of the Licensing Board, but that, in any event, the Board erred in rejecting their conten-tions. I
! II.
i i Although it failed to articulate the rationale for its conclusions, the
- Licensing Board was correct in asserting jurisdiction over the spent fuel proposal contained in the operating license application. This being the case, the Board properly could, as it did, determine whether the interve-nors' spent fuel proposal contentions were admissible.
7LBP-82 86.15 NRC 566. 580 (1982) a LBP 82 51.16 NRC 167.171 (1982). 789
Adjudicatory boards do not have plenary subject matterjurisdiction in Commission proceedings.' Under the Atomic Energy Act, the Nuclear Regulatory Commission is empowered to administer the licensing provi-sions of the Act
- and use licensing boards "to conduct such hearings as the Commission may direct."" The boards, therefore, are delegates of the Commission and, as such, they may exercise authority over only those matters that the Commission commits to them '2 The various hearing notices'3 are the means by which the Commission identines the subject matters of the hearings and delegates to the boards the authority to conduct proceedings.
Our decisions make clear that licensing boards generally "can neither enlarge nor contract the jurisdiction conferred by the Commission."" For example, in Marble Hill we faced the question whether a notice of opportunity for hearing on a construction permit application gave the Licensing Board jurisdiction to consider an intervention petition seeking to raise antitrust issues where the Commission previously had issued a notice of hearing on the antitrust aspects of the application. In afGrming the Licensing Board's determination that it lacked jurisdiction, we held that the Board correctly turned to the Commission's hearing notices to ascertain its subject matterjurisdiction, and that the Board had no discre-tion to alter this delegated authority absent Commission approval.
} Thereafter, in Trojan " the issue of the Licensing Board's jurisdiction arose in a special proceeding involving the question of the interim opera-tion of the facility where the notice initiating the hearing spelled out the issues to be heard We agreed with the Licensing Board's conclusion that it lacked jurisdiction over certain issues pro!Tered by the intervenors because the " issues manifestly [were] beyond the bounds of the issues l
'See Wisconsm Electre Power Co (Point Bea(h Nuclear Plant Units I and 21. AL AB '39.18 NRC 335, 339 (1983)
I 1042 U s C. (i 2132,2133. The Atomic Energy Commisuon was abolnhed and its regulatory functions were transferred to the Nuclear R(gulatory Commisuon by the Energy Reorganitation Act of 1974, 42 U.s C. I 584t tr) & (g) Il 42 U.s.C. ( 2241. 12See Carolma Power and Light Co. (shearon flarns Nuclear Power Plant, Units I, 2, 3, and 48 ALAB 577, !! NRC 18, 25 (1980); .vorrhere Indesa Pubir Servre Co. (Bailly Generating station, Nuclear l). ALAB-249. 8 AEC 980. 987 (19748 13 See 10 C F R. i 2 700. 14 See Pacs /ic Gas and Electre Co. (Diablo Canyon Nuclear Power Plant, Un is Nos i and 2), CLI 76 l. 3 NRC 73,74 n.t (1976). 18 Costumers Power Co (Midland Plant, Units I and 2) ALAB-235,8 ALC 645,647119748 16 Ps.bhe Servre Co ofledena tMarble Ibit Nuclear Generatins station Units I and 21. AL AB 316. 3 NRC 167119766. f 17/d at 170 71 la parrland Generalflectre Co. (Trojan Nuclear Plantt. AL AB-5.14,9 N RC 287 s 1979p. 790
identified in the notice of hearing which triggered this special proceed-ing.""In so holding, we relied upon Marb/c Hill as a precedent of gener-al applicability and characterized that decision as " squarely holdlingl that a licensing board does not have the power to explore matters beyond those which are embraced by the notice of hearing for the partie.
-l ular proceeding."'o Finally, in Zion.2' we had occasion in an operating i
license amendment proceeding concerning the modification of a spent fuel pool to state, in a somewhat ditTerent context, that the Licensing
; Board's " jurisdiction was limited by the Commission's notice of hearing" and that its " jurisdiction extended only to issues fairly raised by the ap-plication to modify the spent fuel pool, the sole matter which the Com-
, mission had placed before it."22 Unlike the hearing notice in the special Trojan proceeding that speci-tied the issues for hearing, the notice of opportunity for hearing on the
{ Catawba operating license application followed the Commission's cus-tomary practice for such notices and was very general. As pertinent I here, the notice referenced only the application to possess, use and oper-i are the two Catawba units and stated that the application should be con-i suited for furtner details. By employing a broad announcement without I specifying any limitations, the Commission delegated to the Catawba Licensing Board authority over all portions of the license application in the event of an operating license proceeding; the application itself there-fore set the bounds of the Licensing Board's jurisdiction. The fact that the hearing notice did not specifically identify the applicants' spent fuel proposal, or any other particular feature of the application, is irrelevant to the question of the Licensing Board's subject matter jurisdiction be-cause the Commission's delegation of authority to the Licensing Board in the hearing notice necessarily covered the entire operating license ap-plication.22 All matters properly included as part of an operating license M IJ. At 189 n 6 20IJ. 21
. Commonwealth l'4tson Co. (Zion station. Units I and 2), ALAB-616,12 N RC 419 (19407.
22Id. at 426. $re also Posrr Beach. l8 NRC at 339 23 ' Because the intervences sought to challenge the apphcants' spent ruel proposal m their profTered con-tentions (and on appeal did not raise any questions concermns the notice) and we raned only the ques-tion of the t.icensing Board's Junsdiction to consider the spent fuel portion of the lecenw appination, we lease for another day any questions concermns the adequacy of the Commission's heanns notne under the Atomic Energy Act,42 U s C. I 2239. the Admemstrative Procedure Act. $ U s C. ) 554, and the Commission's regulanons,10 C F R 4 2.105 For esemple,10 C F R. ) 2105f bHI) states, mter sha,
" that the notsce of opportumty for heanns on an operstmg hcenw apphcanon set forth the " nature of the action propowd
- one substantial question is whether that wction requires somethms more m a notice than a simple statement to consult the licenw apphcation for further mformation when the notned apph.
; cation, en addition to wekir's authonty "to poswis. uw and operate" a nucicar power plant, also weks i
authonty for a wcond actmty that is clearly nonmtegral and comtidental to the operation of the plant t (ContinurJ) 791
application pursuant to the Commission's regulations thus fell within the jurisdiction of the Licensing Board. Moreover, the Commission's regulations,10 C.F.R. Part 50, do not prohibit the type of spent fuel proposal contained in the applicants' appli-cation, indeed, in the statement of basis and purpose accompanying the Commission's rule setting forth requirements for the storage of spent fuel in an independent spent fuel storage installation,10 C.F.R. Part 72, the Commission indicated that proposals such as that contained in the Catawba application that do not qualify as independent storage installa-tions should be licensed pursuant to 10 C.F.R. Part 50.2* Consequently, . the applicants' spent fuel proposal was properly included within their operating license ap' plication, and the Licensing Board's jurisdiction en-compassed that proposal as well as the intervenors' contentions directly challenging the applicants' spent fuel plan. Ill. On appeal, the intervenors claim that the Licensing Board erred in rejecting their " environmental contentions which sought to require thor-
~
ough environmental impact analyslels of the costs and benefits, as well as the consideration of more environmentally sound alternatives" to the applicants' transshipment proposal.25 They assert that the lower Board in-correctly relied upon the Commission's generic determination of insig-nificant environmental impacts contained in Table S-4, " Environmental Impact of Transportation of Fuel and Waste To and From One Light-Water-Cooled Nuclear Power Reactor," 10 C.F.R. 6 51.20 (1984). They i argue that the S-4 Table applies only to the shipment of irradiated fuel
; from a reactor to a reprocessing plant, not from one reactor to another.
But the intervenors have failed to identify which specific contention was wrongly rejected and which Licensing Board ruling was incorrect. Over the course of the operating license proceeding, they filed a number of similar contentions all aimed at the applicants' spent fuel proposal.26
. t (such as receiving and stonng spent fuel generated at other facilities) Regardless of what 10 C F R.
I 2.105f b)(la requires, however, esplicit mention in the notice of opportunity for hearing of such non-
' integral activities clearly would be advisable in the future so that the notice may fully wrve its intended
, purpose.
2445 Fed. Reg. 74.693. 74,698 (1980).
- 25 Brief of Appellants Palmetto Alliance and Carolina Environmental study Group IJan 9.1995) at 69 26 See CEsG's Contentions (Dec. 9.198lh Palmetto Alliance supplement to Petition to Intervene IDec. 9.1981h Palmetto Alliance and Carolina Environmental study Group supplement to Petitions to Intervene Regarding Draft Environmental statement tsept. 22.1982).
792
hloreover, the Licensing Board dealt with all of them in a number of dif-ferent rulings.27 Consequently, like so many of the intervenors' argu-ments in ALAB-813 their argument here suffers from a lack of proper briefing.28 Once again the intervenors have not fulfilled their obligation under the Rules of Practice " clearly [to) identify the errors of fact or law that are the subject of the appeal" and, "[ flor each issue appealed, (to
, identify] the precise portion of the record relied upon in support of the j assertion of error."2' For this reason their argument fails. Nevertheless,
! as best we can determine, it appears that the intervenors intend to chat-lenge the Licensing Board's rejection of combined contention 19.ia if that is the case, their protest is without substance.
One part of the intervenors' contention 19 questioned the environ-
; mental costs and benefits of the applicants' transshipment proposal and sought an examination of the alternatives to it. In rejecting the conten-i tion, the Licensing Board found that the intervenors' challenge was an impermissible attack on the Commission's regulations, specifically Table
, S-4.3' That ruling and the Board's supporting reasoning is generally cor-i rect. We need only add that the intervenors' sole argument before us i (i.e., Table S-4 is inapplicable to the transport of spent fuel from one I
reactor to another because 10 C.F.R. } 51.20(g)(1) (1984) speaks of the spent fuel being shipped to a reprocessing plant) is unavailing. As the Licensing Board indicated in rejecting another of the intervenors' con-tentions, the Commission's generic determination of transportation im-pacts in the regulation is equally applicable to the transshipment of spent fuel between reactors as well as to a hypothetical reprocessing facility be-cause it is the same fuel regardless of destination.32 Even if the intervenors' literal reading of the regulation were accepted, however, the Licensing Board's result would not change. First, the inter-venors have not challenged the Board's alternative determination that the contention lacked speelficity.33 hlore important, subsequent to the
! Licensing Board's decision, the Commission's regulation was amended j to delete all reference to a reprocessing facility.llence, there no longer 27See LBP-8216.15 NRC at 578-81; LBP-82 51,16 NRC at 17172. LBP-83-88,17 NRC 291 (1983)
,' 2See ALAB-813,22 NRC at 66 n.16. 71,84 n.128.
2'10 C.F.R. I 2.762(d)(1). See Wiscossen Derrrr Po=cr Co (Point Beach Nuclear Plant. Unit I). 1 ALAB-719.17 NRC 387. 395 (1983); Pesenhaam Po=cr and Leirt Ce tsusquehanna steam Electne i station. Units I and 23. ALAB-693.16 NRC 952. 954-56 (1982). Consumers Power Co. Ofidland Plant. Units I and 2), ALAB-270,1 NRC 473. 476 (1975L 30See LBP-83-88.17 NRC 291 (l'83L
. >- 31 /d. at 294.
32 Lgp-3216,15 NRC at 579 33See LBP 83-8B.17 NRC at 295
! 14Sec 49 Fed. Reg 9352,9389 90 (1984L The substance or 10 C F R. t 5120f gHl) is nam codiried m 10 C.F R. ( 50 52 (1985) i 793 4
b
can be any basis for arguing that Table S-4 does not apply to the trans-shipment of spent fuel from one reactor to another. Because we are re-quired to apply the regulations in effect at the time of the appeal," the amended regulation is controlling and the intervenors' semantic argu-
; ment is now moot.
j For the foregoing reasons, therefore, we affirm the remaining part of 4 ~ the Liu.1 sing Board's operating license authorization that permits the applicants to receive and store at Catawba spent fuel generated at Duke Power Company's Oconee and McGuire nuclear power facilities.
, It is so ORDERED.
FOR Tile APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board i
. ~
i I MALAB-813. 22 NRC at 86.
}
794
l l l
.- x _ *>z i
. ,.It
. c, m
l Atomic Safety i and Licensing " 1 Boards issuances 1 ATOMIC SAFETY AND LICENSING BOARD PANEL - j B. Paul Cotter, ' Chairman Robert M. Lazo, 'Vice Chairman (Executive) 3 e R~;t j Frederick J. Shon, 'Vice Chairman (Technica// f i Members .e g - Dr. George C. Anderson James P. Gleason Dr. Linda W. Litt!e Charles Bochhoefer* Andrew C. Goodhope Dr. Emmoth A. Luecke' Peter B. Bloch' Herbert Grossman* Dr. Kennth A. McCollom Lawrence Brenner* Dr. Cadet H. Hand, Jr. Morton B. Margulies* , Glenn O. Bright
- Jerry Harbour
- Gary L Mahollin Dr. A. Dixon Callihan Dr. David L. Hetrick Marshall E. Miller James H. Carpenter
- Emest E. Hal Dr. Peter A. Morris
- Hugh K. Clark Dr. Frank F. Hooper Dr. Oscar H. Paris' Dr. Richard F. Cole
- Helen F. Hoyt* Dr. Paul W. Purcom Dr. Frederick R. Cowan Elizabeth B. Johnson Dr. David R. Schink Dr. Michael A. Duggan Dr. Watter H. Jordan Ivan W. Smith * ;w Dr. George A. Ferguson James L. Kelley* Dr. Marun J. Steindler Dr. Harry Foreman Jerry R. Ki;ne* Dr. Quentin J. Stober
' Richard F. Foster Dr. James C. Lamb Ill Seymour Wenner John H Frye lit' Gustave A. Linenberger* Sheldon J. Wolfe'
- Permanent panel members l
l
h
, Cite as 22 NRC 795 (1985) LBP-85 42 UNITED STATES OF AMERICA NUCLEAR REOULATORY COMMISSION
).
l ATOMIC SAFETY AND LICENSING BOARD l
-l Before Administrative Judges:
Charles Bechhoefer, Chairman Dr. James C. Lamb Frederick J. Shon l e 1 In the Matter of Docket Nos. STN 50-498 0L l STN 50-499 OL (ASLBP No. 79 421 07-OL) HOUSTON LIGHTING AND POWER COMPANY, et al. (South Texas Project, Units 1 and 2) November fi,1985
.The Licensing Board explains its earlier summary ruling which granted in part and denied in part an intervenor's motion to reopen the record.
The Board permitted incorporation into the record of a document which inadvertently had not been supplied to the intervenor through discovery but declined to reopen the record to include another document which the Board determined was not material to the issues under consideration.
- - RULES OF PRACTICE: REOPENING OF PROCEEDINGS i
Where a record is closed and at least some proposed Gndings have R 1 been filed, but where a decision has not yet been rendered on a question, a motion to reopen the record must satisfy three criteria: (a) the motion must be timely filed; (b) it must address a signincant safety (or environmental) issue; and (c) the additional information must poteritial-l ly be susceptible of altering the result which would be reached in its
) absence.
1 795 e
/%
RULES OF PRACTICE: REOPENING OF PROCEEDINGS Where a party seeks to reopen a record to include a new contention,it must demonstrate not only that the criteria for reopening a record are satisGed but also that the factors for late-Gled contentions in 10 C.F.R. { 2.714(a) have been satisGed. RULES OF PRACTICE: REOPENING OF PROCEEDINGS
, in evaluating the signiGeance of newly proffered information for pur-poses of reopening a closed record, a Licensing Board may consider whether the information is new factual information. Differing analyses of experts of factual information already in the record do not normally constitute the type of information for which reopening of the record would be warranted.
RULES OF PRACTICE: NONTIAIELY SUB311SSION OF CONTENTIONS
~
Where a motion to reopen the record to consider a late-Gled conten-tion fails to discuss the factors bearing upon such contentions set forth in 10 C.F.R. { 2.714(a), the motion could be dismissed on that basis alone. RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES
, The McGuire doctrine requires advice to a Licensing Board of matters j " relevant and material" to issues pending before that Board. LBP-85 6, j 21 NRC 447,461 (1985), and cases cited.
RULES OF PRACTICE: REOPENING OF PROCEEDINGS I The stringent standards for reopening a record need not be asplied , with full force in a situation where (1) the proponent of reopening the record to include a newly discovered document was prevented from offering the document earlier, and (2) the new evi'dence can be received
! with little or no burden upon the parties.
i i 796
1 1 MEMORANDUM AND ORDER (Explanation of Rulings on CCANP hiotion of 9/30/85)
, On September 30, 1985, Citizens Concerned About Nuclear Power, Inc. (CCANP), an intervenor in this operating license proceeding, filed j a "hfotion for Board Ordered Production of Documents, to Reopen the Record, for New Contention, for Discovery, and for Extensions of
, , j Time" ("htotion"). By our Order (Rulings on CCANP 9/30/85
,' hiotion), dated October 16,1985 (unpublished), we announced sum-
,4- <
mary rulings on the hiotion, stating that we would provide our reasons in a forthcoming hiemorandum and Order. We are doing so here.
; 1. Background ;
j The hiotion in effect seeks to reopen the Phase il evidentiary record i j to incorporate therein two documents: (a) a report prepared by S. 1 Levy, Inc., on Brown & Root Engineering on the South Texas Project, dated October 1,1984 ("SLI Report"); and (b) a handwritten chronolo-gy of events from June 26, 1981, to December 16, 1951, prepared by I hir. Don D. Jordan, Chairman of the Board of Directors of flouston Lighting & Power Co. (HL&P), the lead Applicant (" Jordan Chronolo-gy"). The hfotion also seeks related relief: (a) that we order the Appli-
', cants to provide the Board and parties with copies of the SLI Report; (b) that we admit a new contention premised upon the SLI Report; (c) that we permit discovery on two matters - the Applicants' handling of the SLI Report, and the origin, supporting documentation and handling of the Jordan Chronology; and (4) that we grant CCANP a 2 week exten-sion of time within which it might file its proposed findings of fact and conclusions oflaw for the recently completed Phase II hearings.
By our hiemorandum and Order dated October 4,1985 (unpublished), we granted CCANP's request for an extension of time. Furthermore, in , their response to the hiotion, the Applicants provided the Board and par-
,j:' . _
ties with copies of the SLI Report, making moot CCANP's request for Board-ordered production of that document.
- +
With respect to the remainder of CCANP's hiotion, the Applicants. on October 10, 1985, filed a response which offered no objection to the l 1 incorporation of the Jordan Chronology into the record but opposed reopening the record for the SLI Report. The Applicants also opposed V y .g , the new contention and the discovery requested by CCANP (although, as noted above, they provided the Board and parties with copies of the j SLI Report). By its response dated Oc:ober 15, 1985, the NRC Staff op-j posed reopening the record for either document, as well as the other 1
- 797 i
I i
relief requested by CCANP (excluding that on which we had already ruled or which had become moot by virtue of the Applicants' response). In our summary October 16, 1985 Order, we ruled that we would admit into the Phase 11 record the Jordan Chronology' but would deny admission of the SLI Report. (We issued the Order at an early date to ac-commodate the date we had established for CCANP to file its Phase 11 proposed findings, which now could reference the Jordan Chronology.) We also denied CCANP's proposed new contention, and the additional
; discovery which CCANP had requested.
h 2. Standards
, The Commission's standards for reopening the record of a proceeding j are well recognized. As we have recently pointed out, a proponent of a i motion to reopen a record bears a heavy burden. Under normal circum-
- stances, such a motion must satisfy three criteria:
} (a) The motion must be timely filed; (b) It must address a significant safety (or environmental) issue; and 1 (c) It must demonstrate that the information sought to be added to the record might alter a result previously. reached.
l LBP-85-19, 21 NRC 1707,1720 (1985) and cases cited; see also our Phase i Partial Initial Decision, LBP-84-13,19 NRC 659, 716 (1984), aff'd, ALAB-799, 21 NRC 360, 381 (1985). Furthermore, when a party seeks to reopen a record to consider a new contention, it must also demonstrate that the factors in 10 C.F.R. y 2.714(a) relating to late-filed contentions have been satisfied. Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-812,22 NRC 5,14 (1985).2 CCANP raises no question as to the first two of the reopening-the-record criteria but claims the third not to be applicable where, as here, no decision has yet been rendered. The Applicants and Staff disa-gree as to the third criterion, finding it applicable with respect to the cur-rent motion. I We denominated the jordan Chronology as CCANP Exhibit 148 and requested the Applicants to pro-vide copies to the NRC's Dockeung and seruces Branch. By their letter dated october 17.1985. they promptly complied with cur request.
. 2 Thew fadom am
- 0) Good cause. if any. for failure to file on time.
hil The availability of other means whereby the petitioner's interest mill be protected. 6n) The entent to which the petitioner's parucipatron may reasonably be espected to assist in de-veloping a sound record. by) The ettent to wh.ch the pet tioner's interest will be represented by etisung parties. j (v) The extent to which the petitioner's participation mill broaden the issues or delay the proceeding. 798
' CCANP is technically correct in its claim that, before a decision on a i question has been reaced, a motion to reopen the record need not -
' indeed, cannot - demonstrate that a dilTerent result would hase been reached. That is so since no result has in fact yet been reached. See Consumers Power Co. (Midland Plant, Units I and 2), LBP-83-50,18
! NRC 242, 248 (1983). Nonetheless, as we observed in LBP-84-13.
I supra,19 NRC at 716 n.43, with the record closed on the portion of the j proceeding with respect to which new information is being proffered, it is appropriate for us to consider (in the context of the materiality or sig-nificance of the information in question) whether the additional informa-tion might potentially alter the result we would reach in its absence.) We have done so here. In evaluating the significance of newly protTered information, we may
! consider whether the information is new factual information. Differing i analyses of experts of factual information already in the record do not normally constitute the type of information for which reopening of the
! record would be warranted. Id. at 718-19; Pacific Gas and Electric Co.
t (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644,13 l' NRC 903,994-95 (1981). We turn now to the application of these standards to the two docu-ments for which CCANP seeks to reopen the record.
- 3. SLIReport By letter dated October 9,1984, the Licensing Board and parties were advised of the SLI Report, dated October 1,1984. That report had been prepared by a technical consultant of the Applicants in conjunction with the Applicants' lawsuit in Matagorda County, Texas, against Brown &
Root, Inc. (B&R), the former architect-engineer, construction manager and constructor of the South Texas Project (STP). The SLI Report was subject to a protective order of the Texas court, which was dissolved on May 30,1985. The SLI Report is a two volume,541-paged evaluation of B&R's engi-
.6 neering activities on the STP. In that respect, it is similar to the Quadrex J !n LBP-84-13. the motion to reopen the record was Gled prior to our ruhng on the issue in quesiion but subsequent to the submission of proposed 6ndmgs by ali part et To the same effect. ser Pinbar Serv.
re Co. of OAbhoma (Black Fox station, Units I and 21, AL AB-573.10 NRC 775. 804 (19791 mcated I w part on other trounds. CLI 80-8.11 NRC 433 (1980L Here, the motion was riled subsequent to (but
' on the same day as) the rihng of t!.e Apphcants' proposed findings and pnor to the riling of proposed I i findings by other parties. In this context. we rind no compelhng reason for not considerms the etTect of
; the information on the result we would otherwise reach
; 4 our page ount difrers from the ~650-page" description meluded in CCANP's Motion and the stalTs I response.
799 l a l
l } 1 I Report which was the subject of Phase 11 litigation. In addition, the SLI Report was an overview of the review of Quadrex Report findings pre-2 viously performed by Bechtel Corp. (Applicants' Exhibit 63) together with a review of some of Bechtel's redesign activities. As set forth in the SLI Report (at li): The specific Gndmgs in this report on Brown & Root's engmeerms work renect an histoncal review of certain areas of BAR engmeering and its management. SLIN evaluation of data m the Bechtel work packages, and a review of some Bechtel rede-sign work. i According to the Applicants, the SLI Report represents an expert consul-tant's analysis of information obtained though lawsuit discovery from 1982-84. None of the issues admitted for litigation in Phase Il questions the ad-
> equacy of B&R's engineering, or the adequacy of engineering at STP foi-lowing the replacement of B&R by Bechtel. As we understand it, the issue as to which CCANP seeks to reopen the record to include the SLI Report is CCANP Contention 9, which questions the adequacy of HL&P's reporting of the Quadrex Report to NRC pursuant to 10 C.F.R.
f 50.55(e). ; CCANP asserts that the SLI Report is relevant to the reportability of l the Quadrex Report and of particular Quadrex findings, it asserts that this issue is significant - a point with which no party disagrees. But it
, fails to explain the significance of the information in the SLI Report to Contention 9, either in terms ofits effect on the result to be reached or
- in the manner in which the SLI Report would bear on information al-i .! ready in the record (see Motion at 17-19). All that CCANP does in this i regard is to set forth certain SLI Report excerpts bearing upon Quadrex Report findings which Contention 9 claimed to be reportable. CCANP d
also references certain SLI Report excerpts which, it claims, support its position that the Quadrex Report as a whole should have been reported
.to NRC as a QA breakdown pursuant to 10 C.F.R. f 50.55(e).
; Applying the reopening criteria, we agree that the issue to which the SLI Report is said by CCANP to relate is significant. We decline to rule
.. on questions of the timeliness of CCANP's Motion, although we believe l the Applicants and Staff have raised valid questions as to why CCANP
. could not have obtained the SLI Report and filed its motion earlier. (in 1 particular, we understand that CCANP naver sought this report from
} the Applicants.)
~] Dispositive of CCANP's Motion insofar as it seeks to reopen the
~
record to include the SLI Report, however, is the lack of materiality of
- this report to CCANP Contention 9. In our view, the SLI Report appears
, 800 4 2 W
..s'
\
-.+
.- _ ,__ ~_ _ . . . _ _ . . _ _ _ _ _ _ _ _ . . _ . _ _ _ - _ . _ . , , , - _ _ _ _ - - _ _ , _ . . _ _ _ _ _ _ ~ _ - , _ - , - _ _ _
J
?
, j to be no more than a further expert opinion on facts already in the l record. This is not the type of information for which reopening a record
; is generally warranted. Diablo Canyon, ALAB-644, supra. In this case, it
; is the information available to llL&P in 1981 that determines the j reportability of the Quadrex Report, not a subsequent evaluation of that information in the light of later-acquired information. Indeed, earlier in ,
this proceeding, at the behest of CCANP, we declined to admit into evi-
., dence a 1982 Bechtel review of Quadrex Gndings offered by the Appli-cants (Work Package EN-619, Applicants' proposed Exhibit 64) to t *5- -
, cz demonstrate (in part) that some of the Quadrex Gndings were not as ,
- - serious as they appeared to be when the Quadrex Report was issued and hence did not represent reportable "deGeiencies" (see Tr. 13,464-70).
For reasons similar to those causing our rejection of Apolicants' Exhibit
- 64. we here decline to accept into evidence the SLI Report. Accordingly, J- I. we decline to reopen the record for that purpose. <
~
- 4. SLI Report (New Contention)
CCANP also seeks to introduce a new contention which asserts that the Applicants violated their obligations under the McGuire doctrine by
- not providing copies of the SLI Report to the Board and parties during i- the Phase II hearings. This proposed contention is by de6nition late-filed, since it was not (indeed, could not have been) submitted in 1978, 1 4 during the period when contentions were initially required to be filed.
i For that reason this contention is subject to a balancing of the Sve fac-
~
tors bearing upon late-filed contentions set forth in 10 C.F.R. l 2.714(a). CCANP fails to address these factors. Its proposed new contention
} , ,
could be dismissed on that basis alone. Cf Waterford, ALAB-812, supra, 22 NRC at 16. But its motion for a new contention must be denied for a more fundamental reason: it fails to meet the materiality standards for
. reopening the record.
The McGuire doctrine requires advice to a Licensing Board of matters
- ..N , " relevant and material" to issues pending before that Board. LBP-85-6,
- ,, i . "2.i * - 21 NRC 447, 461 (1985), and cases cited. As we have explained, the v N.NL ' w SLI Report is not material to CCANP Contention 9, the only contention
- .a M... , as to which CCANP claims any relevance. CCANP has made no real
' . ' ;' ,. R. - effort to demonstrate the materiality of the SLI Report to any issue ac-
'~
- 6 >
cepted for litigation in Phase II. Absent such a connection to a Phase II d i.; ~ ~$ ' , jR. ' ~
' ~ #
issue, the Applicants would not have been obligated by the McGuire j , doctrine to supply copies of the report to us and the parties. Furthermore, the Applicants kept us informed in a timely fashion
' - ~
about the existence of the report. Their October 9,1984 letter advising l } 801 I
' ~
k \ 1 1 a l
'4 l
I -.
. _ . _ _ . _ ~ . __ _ _ _ _ _ . . - _ . _. . . _ _ _ _ _ _ _ . _ _ _ _ _ _ _ . _ _ _ _ _ __ ____- -.
of the report was sent little more than a week following the issuance of the report on October 1,1984. The report's nature was discussed in the letter and brie 0y at the October 16, 1984 prehearing conference (Tr. 10,859-62), where we concluded that it probably was not relevant to Phase 11 issues. We discussed the report again at the outset of the Phase II hearings, when we were advised that the protective order imposed by the Ntatagorda County Court had been lifted. We advised CCANP that it could bring to our attention anything in the report it believed to be "specifically relevant" to Phase 11 issues (Tr. 11,268-70). Prior to its cur-
; rent Niotion, CCANP made no attempt to do so.
Our present examination of the SLI Report convinces us that it is not j material to the Phase 11 issues before us. We stress again that, at the time the SLI Report was released from the protective order of the N1ata-1 gorda County Court, the issues open for litigation in Phase 11 (insofar as they might be affected by the SLI Report) concerned only the reportabil-ity of the Quadrex Report and not the adequacy of B&R's engineering ef-forts. That being so, there was no McGuire violation in the Applicants' failure to provide the SLI Report to us. For that reason, CCANP has not j satisfied the standards for reopening the record to include its proposed j new McGuire contention.' t i S. Jordan Chronology I. The second document as to which CCANP seeks to reopen the record is a handwritten diary or chronology of events prepared by Don D. Jordan, Chairman of the Board of Directors of HL&P, covering the period June 26,1981, through December 15, 1981. Nir. Jordan testified during the Phase 11 hearings, and certain of the entries in the chronology are clearly relevant to that testimony. CCANP claims, and the other par-ties acknowledge, that the Jordan Chronology should have been provid-ed to the Board and parties by virtue of the direction included in LBP-85-19, supra, 21 NRC at 1730-31. The Applicants explained, and apologized for, their failure to supply it (along with other documents which they provided on July 2,1985), as an inadvertent error by coun-sel. The Applicants and Staff claim that the matters set forth in the Jordan Chronology, to the extent relevant to Phase II issues, are cumulative of matters already in the record. The Staff would accordingly deny reopen-ing the record to include this document. The Applicants also assert that 5 Given this ruhng. we need rot under'ake a balancing of the five factors or 10 C F R. 4 2.714(at governing late-filed contenbons. l l 802 l 1
j the document does not satisfy the standards for reopening the record; but, inasmuch as their error prevented CCANP from introducing it ear-j lier, they do not object to its admission into evidence. l
' In our view, the Jordan Chronology clearly would have been admissi-7 ble if CCANP had ofTered it during the hearings. We also believe that the stringent standards for reopening a record need not always be applied wi,h full force, particularly where, as here, the proponent of reopening I
the record was prevented by the inadvertent error of another party from offering the document entier. See also Carolina Power d Light Co. (Shea-ron Harris Nuclear Power Plant, Units 1,2,3, and 4), LBP-78-2,7 NRC 83, 85 (1978) (lower threshold of signiGeance where new evidence can c
- be received with little or no burden upon the parties). Finally, reopening the record to include the Jordan Chronology will not result in any delay in the proceeding; we specifically announced our ruling early to avoid
)
any such delay. j in view of the above considerations, we have reopened the record to i I include the Jordan Chronology, which is to be designated as CCANP Ex-hibit 148.
- 6. Discovery L
(a) the CCANP has asked for discovery concerning two matters:
.l handling of the SLI Report as it relates to CCANP's proposed new con-tention, and (2) the origin, supporting documentation, and handling of 2
-~ - the Jordan Chronology.
^
With respect to the first of these requests, discovery would not be ap-propriate since we have denied admission of the proposed contention ( (see j 4, supra).10 C.F.R. { 2.740(b)(1) (discovery shall1729; relateDuke only to matters in controversy); LBP 85-19, supra, 21 NRC at Power Co. (Catawba Nuclear Station, Units I and 2), ALAB-687,16 NRC 460,467 n.12 (1982).
. As for the Jordan Chronology, the document is being offered by CCANP primarily on a collateral issue - the role of Applicants' lead
' - . , - if counsel in the decision to replace B&R. While the answer to that ques-tion *may have some bearing on the honesty and candor which we accord
. L to the testimony of certain of Applicants' Phase II witnesses, we do not
- c. x. ' view that circumstance as sufficient, at this late date, for reopening dis-i i .
covery. Furthermore, one of the bases for our reopening the record to
"~
[E q . admit the Jordan Chronology (CCANP Exhibit 148) was the absence of
- significant burden on the parties by virtue of doing so~. Discovery would i ;
~
803 b e
undermine that basis. For these reasons, we are denying the request for discovery on the Jordan Chronology. For the reasons set forth above, and confirming our Order dated Octo-ber 16,1985, it is, this 5th day of November 1985, ORDERED
- 1. That CCANP's Motion dated September 30, 1985, to reopen the record to admit the Jordan Chronology is granted, the Jordan Chronolo-gy is admitted into evidence as CCANP Exhibit 148;
- 2. That CCANP's Motion for Board-ordered production of the SLI Report is dismissed as moot;
- 3. That in all other respects (and except as ruled upon by our Memo-randum and Order dated October 4,1985, granting CCANP an extension of time within which to file its proposed findings of fact and conclusions oflaw) CCANP's September 30,1985 Motion is denied.
FOR TiiE ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE 4 4 i ) 5
- ~ < '7
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^
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~
j, l 4 i [' . r i i 1 804 f t
+
-m
t j Cite as 22 NRC 805 (1985) LBP 85-43 i UNITED STATES OF AMERICA t NUCLEAR REGULATORY COMMISSION l ATOMIC SAFETY AND LICENSING BOARD i
! Before Administrativo Judges:
I j Lawrence Brenner, Chairman
; ~
.j Dr. A. Dixon Callihan Dr. Richard F. Cole In the Matter of Docket Nos. 50-456 50 457 COMMONWEALTH EDISON COMPANY (Braidwood Nuclear Power Station, Units 1 and 2) November 7,1985 t
in this Memorandum and Order the Licensing Board rules that the Na-tional Environmental Policy Act (NEPA) does not entitle the intervenor to litigate the ?ossible effects of a proposed transmission line to transport
, - electricity from the Braidwood facility. The Board imposes an operating license condition requiring notice in the event Applicant decides to build and operate a 765-kV transmission line on rights-of-way to and i from the Braidwood site.
. t
~
- - ? _ NEPA: SEGMENTATION
~ ~
There is no requirement to assess the efTects of an overall transmission grid system long-range plan when considering a presently proposed part
-~
, of the transmission system. Sierra Club v. Hodel. 544 F.2d 1036,1040-41
- (9th Cir.1976); see also Indiar. Lookout Alliance v. Volpe, 484 F.2d i1, 19 (8th Cir.1973) (same reasoning applied in the analogous factual set-ting of an independently useful highway).
l
, 805 i
l, e
NEPA: SEGalENTATION The three-prong test to determine whether an agency may confine its environmental analysis under NEPA to the portion of the plan for which approval is being sought is: (1) whether the proposed portion has sub-stantial independent utility; (2) whether approval of the proposed por-tion either forecloses the agency from later withholding approval of sub-sequent portions of the overall plan, or forecloses alternatives to subsc-
, quent portions of the plan, and; (3) if the proposed portion is part of a larger plan, whether that plan has become sufficiently definite such that there is a high probability that the entire plan will be implemented in the near future. Swain v. Brinegar,542 F.2d 364,369 (7th Cir.1976) (en banc); see also Duke Power Co. ( Amendment to SNM-1773 - Transpor-tation of Spent Fuel from Oconce Nuclear Station for Storage at McGuire Nuclear Station) ALAB-65),14 NRC 307,313 (1981).
AIEAIORANDUAI OF RATIONALE FOR SUAI AI ARY DISPOSITION OF NEINER FARAIS CONTENTION 1 MATERIAL FACTS By unpublished order dated August 12, 1985, this Licensing Board granted Applicant Commonwealth Edison's motion, which had been supported by the NRC Staff, for summary disposition of Neiner Farms Contention 1. This memorandum gives the reasons for our ruling and determines that an operating license condition providing for notice in the future is appropriate to assure the integrity of the hearing process
, and Neiner Farms' rights to due process. We do not adopt more exten-sive license conditions sought by Neiner Farms.
Neiner Farms Contention I alleged that there would be specified ad-verse operational effects from a 765-kV transmission line which was being proposed to transport electricity from the two-unit Braidwood nuclear power plant. Applicant's June 11, 1985 motion for summary disposition, as sup-ported by affidavit of its System Planning Manager, Alfred 11. Getty, es-tablishes the following material facts as to which there is no genuine issue to be heard (see 10 C.F.R. l 2.749):
- 1. Applicant does not now plan to build a 765-kV transmission line to transmit power from Braidwood, Units 1 and 2. Getty Affidavit, at 1.
806
1
- 2. Applicant might in the future build and operate a 765-kV trans-mission line connected to the Braidwood Station or elsewhere t on the existing rights-of-way running to and from Braidwood
, only if additional generating plants (beyond those now being constructed) were constructed and operated at Braidwood or at other nearby sites such as the LaSalle site (located west of l
Braidwood), or at other locations which could require a 765-kV line on the existing rights-of-way east of Braidwood.
/d. at 1-2,4. See Applicant's Environmental Report (ER) Fig.
s 3.9-1,
- 3. Based on present load projections, Applicant does not now foresee the need for such additional electrical generating i capacity for at least 25 years. Therefore, Applicant does not
; now plan to install a 765-kV transmission line connected to
! Braidwood or elsewhere on the existing rights-of-way running i to and from Braidwood for at least 25 years. Getty Affidavit at l 4-5.
Material facts I and 2 are clear, unambiguous commitments by Appli-j cant. These commitments are sufGeient to establish that any future i 765-kV transmission line which may be connected to Braidwood Units I and 2, or otherwise installed on the existing Braidwood rights-of-way, would be attributable to a future generating unit and not sufficic_ntly at-tributable to the present subject of the application for operating licenses
- Braidwood, Units I and 2 - to be considered under the National En-vironmental Policy Act (NEPA) as part of this operating license hearing.
_ This lack of attribution, which we will discuss below, includes elements of lack of reasonable certwny of future plans, lack of foreclosure of future transmission line alternatives by the proposed action before us, and the substantial independent utility of Braidwood Units I and 2 and its associated transmission lines. j In light of material fact 2, material fact 3 is not truly material to our i determination. Applicant has promised under oath that any 765-kV transmission lines associated with the Braidwood site or rights-of-way
^
~ 1 would be built only if future generating plants were built. Material fact
- 2. If Applicant had not made this commitment, then the long period of
, time before any such 765-kV lines might be built could have been suffi-cient by itself to Gnd that such a future possibility should not now be considered under NEPA in this operating license hearing. Ilowever.
given material fact 2, our decision to grant summary disposition does not depend directly or strongly on material fact 3. We view material fact 3 as a supporting " makeweight',' fact which establishes that Applicant has no nefarious scheme, vaguely alluded to by Neiner Farms, of putting 807 i
e i t 4 4 4
; a 765-kV line on the Braidwood rights-of-way in the near future for pur-poses of serving Braidwood Units I and 2, under the subterfuge of as- ,
- serted need for such a transmission line by another generating unit '
which would be built in that near-future time frame. Given our limited, contextual reliance on material fact 3, we place no
. importance on high accuracy for the prediction that it will be at least 25 i
years before any additional generating capacity might be needed at or l < sulTiciently near the Braidwood site so as to require 765-kV transmission lines in ~ the Braidwood region of the Applicant's transmission grid
; system. It is sufficient for our purposes to rely on the fact that it will be 7
many years before such future generating capacity will be needed. More- l 1 over, as set forth below, we establish a notice requirement for the Appli-cant which will protect Neiner Farms' opportunity to argue that it s
! should be entitled to litigate its contention before the NRC if Applicant l l materially changes its commitments in material facts I and 2 as we have
; them set forth above, or in material fact 3 to the extent we have relied 3 ! on it.
FACTUAL BACKGROUND i Neiner Farms is concerned with a transmission line right-of-way
~ ~ '
which runs through its property. This right-of-way extends from the
; Braidwood Station site, generally east for about 23 miles to the Davis '
Creek Transmission Substation, and then north for about 7% miles to i
, the Wilton Center Transmission Substation (apparently point "J" on ER t j Fig. 3.9-2), for a total distance of about 30% miles. ER { 3.9.1 and Fig.
3.9-2.8 The Neiner Farms' properties are located in Manteno, Illinois, i +- , .a . 1 7- ,
, y which is in Kankakee County on the portion of the right-of-way in ques-g ,, tion between Davis Creek and Wilton.
Mr. Getty states that Applicant has never planned to build a 765-kV L transmission line to transmit power from Braidwood Units I and 2. [ ! Getty Affidavit at 1. However, the Applicant deemed it prudent to plan
- i. ' , 3- e ,
for the ultimate development of the rights-of-way between LaSalle and j Braidwood (running west from Braidwood) and those running to Wilton i- to include a future 765 kV line which would parallel the two-circuit,
- s
_ 3 It is not a material difTerence, but Mr. Getty's affidavit. at page !. reports that the distance from Braid-wood to Wuton is about 38.3 miles. From wdton, new nghtser-way were acquired to the east and then north to the Crete substation, ror transmission lines or 345 kV and lower voltage. Part or these rights- ,
! or-way invrAved the widenmg or an existmg 765.kV transmission hne right-or-way. ER i 3.9 I and Fig.
, j 3.9-2, 4 808 1 1 t
- e q
- i 2
, 345-kV lines associated with Braidwood Units I and 2. /d. at 1-2.2 Appli-cant believed, at the time those long range planning studies were per-formed in the early to mid-1970's, that a 765-kV line would be needed if additional generating units were added at the Braidwood site, or at other
- nearby sites, such as LaSalle. Given the estimated electrical load growth at the time of those planning studies Applicant believed such additional
~
generating capacity, and therefore a new 765-kV transmission line
. , system in the vicinity of Braidwood, would be needed in six or seven years after the Braidwood 345-kV lines were needed. /d. at 2.
l
; Therefore, at least along the Braidwood to Wilton route. Applicant
.. "m sought to acquire a right-of-way wide enough for both the 345- and
. 765-kV sets of lines. All of the rights-of-way necessary for the 345-kV circuits needed for Braidwood Units I and 2 have been acquired. Appli-cant has also acquired adequate width for the possible future 765-kV cir-cuit for more than 97% of the route to Wilton. /d. at 2-3.2 The right-
, of-way easement through the Neiner Farms' property had to be obtained l by eminent domain. Since only the 345-kV circuits were immediately re-i quired, this easement awarded by the Illinois Commerce Commission does not permit installation of a 765-kV line. Applicant would have to obtain a Certificate of Convenience and Necessity from the Illinois Com-merce Commission before a 765-kV line could be built. Id. at 3.
~
As set forth above, the three material facts show that Applicant might
~
build and operate 765-kV transmission lines on the route from Braid-W - wood to Wilton, or on other rights-of-way running to and from Braid- }' ' wood, only if additional generating plants were built and operated at Braidwood or other nearby sites. Moreover, it will be many years before s
-. such future generating capacity will be needed.'
,- d, l~ . 2 Neither Mr. Getty's afridavit, nor the ER, discloses whether Applicant's long-range planmns also mcluded the possible addition of a 765-kV line on the Braidwood to East Frankfort substaison 345-kV hne nght-of-way, which runs m a general northeast direction from Braidwood See ER Fig 3 9-l.
3 on the Davis to Wilton portion of the route, the 345-kV circuits require a nght-of-way about 145 feet wide. A future 765-kV circuit would require additional width of about 170 feet, for a total of about 315 l- , , , . , feet. Getty Afndavit at 3. ER Fig. 3 9-2. other secnons of the Braidwood to Wilton nght of-way acquired e
~m ~C . ; d ,
- g. *4+ by Appicant range as wide as 330 to 405 feet. ER Fig. 3 9-2. Possibly because almost all of the transmis-sion ime route crosses nearly nat cleared farmland, no issue has been raised before us regardmg cleanns r.?d 2 C , of the nght-of way to the width required for the possible future 765-kV Ime. ER ( 3 9.l. Cf Vurmo Eter.
' " *
- tre and Powr Co- (North Anna Power stanon, Umts I and 2). LBP 75-70, 2 NRC 879. 891 (1975), and F4 LBP-76-I. 3 NRC 37 (1976L We do not know whether cleanns is necessary to accommodate the wider bc - ,,s nghts-of-way for a possible 765-kV Ime. If it is, we do not know whether cleanns has or will be done
' , ' .J". . s before the Apphcant seeks and obtams the Certificate of Convemence and Necessity from the Illmois Commerce Commission which is prerequisite to buildmg any future 765-kV line. Getty Afridavit at 3
~ { b, -"
+
Given the absence of any such issue raised before us, we do not pursue it. This is probably a matter also
,
- j.; q withm the domam of the Illmois Commerce Commission.
'- 4 As discussed above. Applicant represents its present plan will not require addinonal capacity wNh g would requre 765-kV ci.cune on nahts of-way runnmg to and from Braidwood for at least 25 years. This
, ; is supported by the G*tt, .tfidan tat 4.9. The Gatty Afridavit (at 4# ilso states t* tat 'here are teita-
~ '
(Contmurds 809 d h ,~ 4 k
-e t--
ya, 4y- --ryv ..%#p< - - _---. - g p.
-_m_.. _ _ _
1 l We have set forth the factual circumstances at some length, because
- when combined with the applicable law, there springs directly from the j
facts a clearly mandated result: Applicant's possible future construction
~ and operation of 765-kV transmission lines are not part of the proper scope of a NEPA evaluation of the proposed action of operating Braid-wood, Units I and 2.
i-4 . APPLICATION OF THE LAW g I t . -- ' Along with another Licensing Board's determination, we recognize that "(claution is necessary in dividing a project into segments for NEPA purposes in order to avoid arbitrary divisions which may hide sig-
* " niGeant total impacts." Phdadelphia Electric Co. (Limerick Generating ;
Station, Units I and 2), LBP-82-43A,15 NRC 1423,1473 (1982). The l test for whether an agency may conGne its environmental analysis to the portion of the plan for which approval is being sought is: (1) whether
, the proposed portion has substantialindependent utility; (2) whether ap-proval of the proposed portion either forecloses the agency from later 1 _ withholding approsal of subsequent portions of the overall plan or fore-i
, - . c closes alternatives to subsequent portions of the plan; and (3) if the pro- _ posed portion is part of a larger plan, whether that plan has become suffi-
~
; ciently deGnite such that there is high probability that the ent;re plan will be carried out in the near future. Swain v. Brinegar,542 F.2d 364, '
l 369 (7th Cir.1976) (en banc). See, e.g., Piedmont Heights Civic Club.
'~ ~~N -
Inc. v. 3/oreland. 637 F.2d 430, 439 (5th Cir.1981); Sierra Club v.
- -. froehlke. 534 F.2d 1289,1297-98 (8th Cir.1976); Trout Unlimited v.
.',If W '
; Morton. 509 F.2d 1276,1285 (9th Cir.1974). See also Duke Power Co.
c
' ~J x, .= , -
(Amendment to SNM-1773 - Transportation of Spent Fuel from
- j .u Oconee Nuclear Station for Storage at McGuire Nuclear Station),
4 .; E, . I < ALAB-651,14 NRC 307,313 (1981). Clearly, the generation" and delivery of electricity by the Braidwood Station, Units I and 2. over its 345-kV (and lower voltage) transmission , j . - _ _ circuits has substantial independent utility. This is decidedly not a situa-g ';[ , tion like those of a highway segment with no logical termini unless and 1 until an additional connecting ent is added (cf Swain, supra, 542
^ -
F.2d at 370), or of an electri. plant without the transmission
.j ine plans for w a gener.me eg.u- phcant's Langham site. These statements t in the afndaut woutJ tse um-niem - ham would not require new 765-kV trans-
} mission bnes on righh-ew n runn - We do not know ir this is the case. Ilow.
i cur. It does not maner t a ciated with a plant at Langham would not be attnbt.ubie to %
- i* 4 and (2) 12 years easily rits under a label I i -
or "many >e.irt ' wha n , wie. r hmired reliance on matenal tact 1 l .io k' s A- - ** e4 f9 4
,. ..e. ,.,-- .e ..-e-e----,,~-pw..,wa..-,.w>~,-e-v~-=,~ -w, w-~*'~~****"'''^*"~- ' ' " " " " " ~ ~ ~ ~ ' ~ * ~ ~ ~ ' ~ ~ ' ~~ ~
4
' 4 t
lines necessary to make the plant useful by the delivery ofits cicetricity. Detroit Edison Co. (Greenw ood Energy Center, Units 2 and 3), j ALAB-247, 8 AEC 936, 939 (1974). Cases which have found a lack of sufficient independent utility of a proposed project have found that the I project was dependent on subsequent phases "such that it would be irra-x.N ; '- l tional, or at least unwise, to undertake the first phase if subsequent phases were not also undertaken (footnote omitted)." Trout Unlimited. supra,509 F.2d at 1285. This is not the case here. l Approval of the proposed project does not preordain that 765-kV q,y^. 4 ,
~
.- transmission lines will be constructed in the future or otherwise fore-
~ -
, close future alternatives. Neiner Farms argues that because Applicant is maintaining the option ofinstalling 765-kV lines on the rights-of-way to
'S and from Braidwood within the lengthy period of time that Braidwood Units I and 2 would still be operating, the issue of elTects of such possi-
, ble future 765-kV lines is now ripe for litigation. Intervenor's Answer, July 10,1985, at 2. We disagree. If and when approval to build such future 765-kV lines is actually sought, its impacts can then be evaluated a , by the governmental authority with jurisdiction (which could vary or overlap depending on the type of generating plant or plants with which the lines would be associated). For example, if operational efTects of
, , 765-kV lines are found unacceptable even with mitigation, the lines could be disapproved, and lower voltage lines approved instead.
The particular routing was not in issue in Neiner Farms' contention al-
. though we imagine that Neiner Farms would prefer that any 765-kV lines which might be approved in the future not traverse its property.
;a
- 3. - Sensibly, future routing decisions would take into account existing J . + N . ;;.e. rights-of-way and the location of the new and existing generating plants
' ~
~ '
, fo on the Applicant's electrical transmission system. However, this does not foreclose alternatives to any future proposals. The fact that future W~ ~
projects may be correlated with past projects and the project pending before us does not bring such future projects within the scope of envi-
,w ronmental review of the present proposal. See Sierra Club v. Callaway.
499 F.2d 982, 987 (5th Cir.1974). Thus, there is no requirement to
] - ' --
assess the impacts of an overall transmission grid system long-range
! W f plan when considering a presently proposed part of the transmission l? '
4: ~ system. Sierra Club v. Hodel, 544 F.2d 1036,1040-41 (9th Cir.1976); \~... Columbia Basin Land Protection Ass'n v. Kleppe, 417 F. Supp. 46, 52 G, ? . ' (E.D. Wash.1976), ajTd in part, rev'd in part on other grounds. sub nom.
. Li , . ;; '
Columbia Basin Land Protection Ass n v. Schlesinger 643 F.2d 585 (9th
' * ~ '
Cir.1981). The same reasoning has been applied in the analogous factual N setting of an independently useful highway, which may be built without the need for an environmental evaluation of: 811
, ^d' n q
~ .
g(*-i k g
1 a network of highway routes comprising a statewide highway plan. . l$luch plans
, , must of necessity be projected oser a relatively long span of time and be detible m order to allow mod:Gcations to meet unforeseen and untoward developmenisi.]
[Wie do not think the overall project is subject at the outset to the requirements of NEPA. Such plans usually are and should be visionary. subject to extenssve modifi-cation and dependent to a large degree upon (future circumstancesl. 1 [Als a practical matter it is necessary to permit the division of a state highway plan j into segments for the purpose of environmental considerations. i
% 'j Indian Lookout Alliance v. Volpe, 484 F.2d 11,19 (8th Cir.1973), cited w*"' 3' by Sierra Club v. Callaway, supra,499 F.2d at 987.
The third prong of the Swain test, supra, 542 F.2d at 369, is not ex-4 plicitly set forth in the string of cases we have cited above after Swain, or l by the Appeal Board in Dul<e Power Co., supra. It appears to us that the fact that a future larger plan is definite would not necessarily bar seg, i i mented consideration of a smaller portion of the plan if the first two
.! prongs of the test, discussed above, are met. Ilowever, the facts perti-nent to the future prospects of a larger plan could also be viewed as rele-vant indicia in applying the Grst two prongs of the test. In any event, our s decision that a possible future 765-kV line on rights-of-way to and from Braidwood need not be evaluated as part of the decision regarding the
..=
- ' ! operation of Braidwood Units I and 2 easily satisfies the third prong of Swain.
In the first place, it is arguable whether there even is a sufficiently e
- formed larger "overall plan" in existence so as to come within the pre-requisite conditional clause of the third prong
}' "if the proposed action is part of a larger plan" (emphasis added). See Kleppe v. Sierra Club,427 ' N q. ,. .' _ ,
_ U.S. 390, 400-06 (1976); Sierra Club v. //odel, supra, 544 F.2d at 1 1040-41. Moreover, as is clear from the factual context discussed above
. f. [' d " , ' '
and set forth in the material facts, Applicant is engaged in long-range planning for the future expansion ofits electrical capacity and associated transmission system. It is not definite that 765-kV lines will be needed
'r on rights-of-way running to and from Braidwood. It is definite that addi-
. R ,
tional electrical units, which possibly might have 765-kV transmission
.I' '
[V lines associated with them, will not be needed for many years (perhaps i! ,- about 12, perhaps about 25). Moreover, the routes and voltages of such
, ,. future transmission lines will depend on the location of future generating
. , plants, and probably on other future circumstances such as the location and distribution of electrical demand by customers on the Applicant's system.
For the first time, and with no explanation, Neiner R ms in its July 10,1985 opposition to summary disposition of its contention, at page 2,
~
states "there is a possible nexus between a 345 kV line and an already
/ t
. N12 I. M f
4
. - - -. - = - - - - . - - .
i t L O existing 765 kV line. An existing 765-kV line runs east-west for about 17 miles between the Wilton Substation and a point in Washington Township. ER j 3.9.1 and Fig. 3.9-2. See note 1, above. The new 4
~ 345-kV circuits running between Braidwood Units I and 2 and the Crete Substation parallel this existing 765-kV line along this 17-mile portion ,1 4
of the 55-mile route to Crete. Neiner Farms' contention, and its stated i - _ basis, focuses on 765-kV lines which would transport power from Braid- l wood Units I and 2 and which would be placed in the new rights-of-way
- acquisitions testified to before the Illinois Commerce Commission and discussed by us above. Indeed, the Neiner Farms' contention appears to
}~,' be limited to the Braidwood to Wilton right-of-way given its stated basis
, in the second paragraph, although we have assumed in this Memoran-g dum that it would be broad enough to include any new 765-kV lines transmitting power from Braidwood Units I and 2.5 An already operational 765-kV line transmitting other power over the
' grid would not be attributable to Braidwood Units I and 2. Although not
! referred to in Neiner Farms' July 10. 1985 answer, if the reference to
~
{; the existing line meant to allege cumulative or synergistic operational impacts caused by adding the Braidwood Units I and 2, 345-kV lines parallel to the existing 765-kV line, Neiner Farms has never raised any such contention, let alone a timely one with reasonable specificity and
, basis.
}
J 1 i
" CONDITION 4
.L
" , , To protect Neiner Farms' ability to pursue whatever legal action it F '
deems appropriate before forums with jurisdiction, if and when Applicant
- ~, A^.. , - ' '
does seek to build additional 765-kV transmission lines on rights-of-way to and from the Braidwood site, we direct that a notice condition be i made part of any operating liwases which may be issued for Braidwood s i 5The contention states- - ( t
'_ r '
Intervenors contend that the 765kV transmission imes that will be used to transport the
' + ' electncal output from the Braidwood station create an unacceptable, hazardous and dangerous i - ' conditson to persons hving or workmg on a daily basis within 600 (cet from the closest hne. and that the 765kV transmission hnes should not be placed closer than 600 feet from any structure or area m which people can be espected to be present sit or more hours per day, The haiardous 6
and dangerous conditions mclude: audible noise impaenng heanns. increasing tension. mterfer-mg with sleep. mterferms with speech mterference with the operation o(cardsac pacemakers, bi-ological efrects on humans becaase of exposure to electne racids excluding the use of nearby areas for workmg. hving or recreation, and the danger of shock to persons and anianals.
..i' .
The basis for this contention is that Commonwealth Edison testified before the filmon Com- ' merce Commission that as of March 3.1978, approximately 60% of all transmission right-of may acquisitions mcluded nghs-of way foe 345kV and 765kv transmissions hnes. opmeon No 78-13, i '
, mvolvmg Case No. 26529. issued by the Pwhioc service Cornmission of New York dncusses the
' l haurds assocnted w th 7fSkV liees.
813 l y -> woie+-y .------ww,,.-w ~n , . . - - m-+yeC*s' 4 ww+7"'-FWt-v& e e c'=t'Pe-w-- - - - ' **^---*'"e-^-- - - ' - " " ' * - " ' " - - - " ' - * * ' ' - " " * * ~ ~ - " * " '8'T*"
- 4 d
i 4 e i Units I and 2. The notice condition could also serve to protect the in-tegrity of the hearing process in the event future actions by Applicant i provide the basis for arguing that material facts I and 2, and 3 to _the
' I extent relied upon by us, have changed materially. Therefore, we include the NRC Staff as a recipient of the notice required by the condition.
e , c. * ' Neiner Farms would in any event receive notice if Applicant were to seek an casement for a 765 kV line on Neiner Farms' property since, as noted above, the present easement does not include permission to erect
.w 765-kV lines. Ilowever, the condition we impose is not limited to the ,
9
~
,y - - ,,
particular right-of way which passes through Neiner Farms' property, or for that matter, to existing rights-of-way. The condition is:
-l
; Commonwealth Edison Company win gne notice to Bob Neiner Farms, Inc. and i the NRC Stati of any apphcation to construct, or of other firm action en advance of
! construction af an apphcation to construct is not required. 7654V iransmnuon knes on present or future rights-of-way routed ts or from the site of the Braidwood f
Station. I 1
. APPEALAllILITY I I t
As discussed in our unpublished Order of August 14, 1985, today's memorandum completes our action dismissing Neiner Farms Contention
- . l. Dismissal of Contention I has the effect of terminating Neiner
. Farms' participation as a party in this case. Therefore, Neiner Farms may now appeal our summary disposition of its Contention I. Neiner l . Farms may also appeal any earlier rulings against it in this case. The
' ~
! , y . > nature of our action does not neatly fit under the initial decision category
,' ' ', of decisions for which appellate procedures and schedules are provided
, .7 for in 10 C.F.R: { 2.762 of the Commission's Rules of Practice, or under
'- the category of appeals of rulings on petitions to intervene and requests
- ^ for hearing governed by 10 C.F.R. { 2.714a. In the circumstances that:
(1) Neiner Farms can now appeal all prior rulings against it; (2) we desire to resolve doubt in favor of giving Neiner Farms and other parties t the longer time period of f 2.762 if they so desire; and (3) the fact that G we referenced { 2.762 in our August 14, 1985 Order, we presently advise, subject to change by the Atomic Safety and Licensing Appeal Board, that { 2.762 shall govern. As before, we offer no opinion on whether any appeal of this Memo-randum by the Applicant or NRC Staff would be ripe, since their partici-f:q'" l , pation in the case has not been terminated. It seems the better course
. that these parties should appeal now, if they desire to do so. The Appeal 1
- 814 l
3 i s-i , a
Board could always hold their appeal in abeyance if it so desires. If a party desires to wait for the issuance of the next appealable initial deci-sion by the Licensing Board before deciding whether to appeal, that
; party promptly should seek such permission from the Appeal Board.
i Finally, courtesy would suggest, in the peculiar circumstances at hand. I that a party which does not wish to Gle an appeal should so inform the Appeal Board within the 10-day period of service of this Memorandum speciGed in s 2.762 for a Notice of Appeal. Therefore, pursuant to 10 C.F.R. 5 2.762, any party may take an appeal from this grant of summary disposition by Gling a Notice of Apaeal within ten (10) days after service of this Memorandum. Each ap-peilant must Gle a brief supporting its position on appeal within thirty (30) days after filing its Notice of Appeal (forty (40) days if the Staff is the appellant). Within thirty (30) days after the period has expired for f the Gling and service of the briefs of all appellants (forty (40) days in l the case of the Staff), a party who is not an appellant may file a brief in
! support of or in opposition to the appeal of any other party. A responding party shall Gle a single responsive brief, regardless of the number of ap-pellants' briefs filed.
IT IS SO ORDERED.
- FOR THE ATOMIC SAFETY AND I
LICENSING BOARD Lawrence Brenner, Chairman ADMINISTRATIV,E JUDGE Bethesda, Maryland November 7,1985 815
4 Cite as 22 NRC 816 (1985) LBP 85 44 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: a ::: Sheldon J. Wolfe, Chairman Oscar H. Paris Frederick J. Shon s . In the Matter of Docket No. 50-320-OLA (ASLBP No. 80 442 04-LA) METROPOLITAN EDISON COMPANY, et al. (Three Mile Island Nuclear Station, i l Unit 2) November 8,1985
~
~
The Board's Order grants the parties' joint motion to approve a stipu- _ lation, dismisses the Intervenor and dismisses the proceeding involving proposed technical specifications for this plant. RULES OF PRACTICE: STIPULATIONS
,' A stipulation is approved to further the principles of settlement and
;-p, 5 -- '
- , compromise of NRC litigation.
,w *o g-t s
- 53* f.
2 816 I _.- . - ---, -, - - . ,~ , , -,,
ORDER (Granting Joint Motion to Approve Stipulation, Dismissing ECNP and Dismissing Proceeding) On October 22, 1985, the Atomic Safety and Licensing Board was
! served with a Joint Motion, filed by all parties to the captioned proceed-l ing, requesting Board approval of the " Joint Stipulation Regarding Set-tiement of ECNP Proposed Contentions," a copy of which was attached thereto. According to the Joint Stipulation, the subject Stipulation was entered into by the Environmental Coalition on Nuclear Power, the NRC Staff, and Licensee for the purpose of resolving the remaining pro-posed contentions advanced by ECNP in this proceeding.' The Stipula-tion memorializes Licensee's commitment to leave in place and to oper-t ate its real-time monitoring system :ntil shipment from TMI has been completed of all TMI-2 core material the recovery of which is practicable (whether located in or external to the pressure vessel), as evidenced by a final accounting of the TMI-2 core which accounting has been received and accepted by the Nuclear Regulatory Commission. In addition, ECNP will continue to be sent all documents currently being sent (including formal correspondence to Licensee management, Weekly
, Status Reports, safety evaluations, exemptions, environmental review
, documents and changes to the Recovery Operations Plan) pertaining to
! TMI-2 for the duration of cleanup and recovery activities or until ECNP notifies Licensee and the NRC Staff to the contrary.
, The Board regards the Joint Motion and subject Stipulation as further-
,K'
( ing the principles of settlement and compromise of NRC litigation. Ac-j cordingly, the Joint Motion is hereby GRANTED and it is hereby OR-l DERED that:
- r. i u
+.
l y-
+
3 (CNP is the only petitioner retrainmg in this p:oceed.ng. f r 817 1
- 1. The Stipulation is approved;
; 2. ECNP is dismissed from the proceeding; and i 3. The proceeding is dismissed.
Tile ATONIIC SAFETY AND LICENSING BOARD Sheldon J. Wolfe, Chairman ADN11NISTR ATIVE JUDGE
, Oscar II. Paris 4-l ADN11NISTR ATIVE JUDGE J
Frederick J. Shon l ADN11NISTR ATIVE JUDGE l i . Dated at Bethesda, Staryland, I this 8th day of November 1985. W b e 5 % r w 1 y > 1 04 i 818 8
9 Cite as 22 NRC 819 (1985) LBP 85-45 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i j ATOMIC SAFETY AND LICENSING BOARD i 1
. Before Administrative Judges:
l Charles Bechhoefer, Chairman
; Dr. James C. Lamb l Frederick J. Shon l
i i in the Matter of Docket Nos. STN 50-498 OL
- STN 50 499 OL l (ASLBP No. 79-421-07 0L)
! HOUSTON LIGHTING AND POWER COMPANY, et al.
~
(South Texas Project, Units 1 and 2) November 14,1985 The Licensing Board grants (in part) a motion to reopen the record, and permits withdrawal of another such motion. I RULES OF PRACTICE: REOPENING OF PROCEEDINGS i A motion to reopen the record filed prior to decision but subsequent to the filing of certain parties' proposed findings must satisfy the follow-ing criteria: (1) the motion must be timely filed; (2) it must address a significant issue; and (3) it must demonstrate that the information sought to be added to the record might potentially alter the result which l would be reached in its absence. l RULES OF PRACTICE: REOPENING OF PROCEEDINGS ! Even if untimely, a motion to reopen a closed record may present a l matter of such gravity that the motion should be granted. l l 819 l
I 1 RULES OF PRACTICE: RESPONSIBILITIES OF COUNSEL A party that attacks the integrity and professional responsibility of an i opposing party's counsel has an obligation to assure that the charges have a basis and are accurately documented. Lack of resources is no excuse for baseless charges. 1 i RULES OF PRACTICE: MOTION TO STRIKE s Licensing boards have authority to strike pleadings which do not live w. 1 up to the high standards of practice expected before the Commission.
~
l MEMORANDUM AND ORDER (CCANP Motions II and III to Reopen Record) On October 16, 1985, Citizens Concerned About Nuclear Power, Inc. (CCANP), an intervenor in this operating license proceeding, filed two motions (hfotion II and blotion Ill) to reopen the record of Phase 11 of this proceeding.' Thereafter, CCANP moved to withdraw hiotion III (Withdrawal Motion). For reasons set forth herein, we are granting (in j part) hiotion II, as well as the Withdrawal hiotion.
.i s
A. Background
~
~ ; Hearings in Phase II of this proceeding were conducted during the Summer of 1985, and the record has been closed. Proposed findings of a fact and conclusions of law have been submitted by the Applicants and CCANP, and are due in the near future from the NRC StalT. The issues
) included several which raise questions on a very sensitive subject - the
! openness and candor of the Applicants in their dealings with the NRC, including this Board, and the efTect of the Applicants' performance in
.; this area on their character to manage construction and operation of the 9 , . , .
South Texas Project (STP). In particular, CCANP Contention 10 claims that HL&P's failure to advise this Board in a timely fashion of, inter alia. 7 the Quadrex Report putsuant to the so-called McGuire doctrine reflects
; r. .
.i-
, l$ :
I CCANP carher riled another motion to reopen the Phase 11 record ofonon it wegranted in part and i denied in part that monon. See Memorandum and order. LBP-85-42,22 NRC 795 f1985L i 820 e
adversely on the Applicants' character. See LBP-85-6, 21 NRC 447, 460-63 (1985). Motions 11 and 111 each seek to introduce into the Phase Il record documents which, according to CCANP, indicate that certain testimony
, presented by the Applicants was not wholly truthful. Although filed on the same date, the two motions were kept separate because of the dif-fering circumstances surrounding CCANP's discovery of the particular 1
documents. In particular, CCANP claimed in Motion 111 that the docu- ~
. ment for which it there sought to reopen the record should have been -
but was not - provided to CCANP pric.c to the Phase 11 hearings. Short-ly after filing Motion III, however,.CCANP realized (through the advice of the Staff) that the document in queuion had in fact been provided to j it prior to the hearings. CCANP thus advised the Board and parties by
- telephone of this circumstance; and on November 1, it filed its With-l drawal Motion.
By response dated October 31, 1985, the Applicants opposed Motion f II. On November 4,1985, the Applicants filed a response to the With-j drawal Motion which did not object to the v.ithdrawal of Motion til but { sought certain sanctions against CCANP because of language included i both in Motion III and the Withdrawal Motion. The StalTs response, dated November 5,1985, opposed reopening the record through Motion
! II but offered no objection to the withdrawal of Motion III.
We will treat each of these motions . seriatim. B. Motion II
- 1. Positions ofParties and Applicable Standards
, , , Motion II see.ks to have the record reopened for the purpose of admi-ting,four documents. These documents (hereinafter referred to as Docu-ments 1-4)2 consist of the typed version of notes taken by Mr. Thr. ash, Secretary of the STP Management Committee, of four meetings of that Committee (or, in the case of Document 3, a meeting of that Committee
. , , with the Chief Executive Officers of the applicant utilities). The meet-ings were held on December 4,1980 (Document 1), February 19,1981 (Document 2), February 20,1981 (meeting with CEOs, Document 3),
and March 19,1981 (Document 4). The official minutes of three of the meetings in question are in evidence as CCANP Exhibit 108 (meetings of February 19 and 20,1981) and CCANP Exhibit 109 (meeting of I 2 The documents were designated by CCANP as Exhibits 1-4. but. to avoid confusion with exhibits of. i fered or entered mto evidence m the proceedmg. we wdl refer to these documents as Documents 14 8:'1
0 . i + i March 19,1981). The notes of the meetings recorded by Documents A l-3 refer in part to the reasons for llL&P's commissioning of the Qua-
, j drex Report and the relationship of the report to the then-forthcoming Phase I hearings. Document 4, in relevant part, includes only a hypo-thetical discussion of possible outcomes of the Quadrex review.
CCANP claims that these documents undercut the position taken by the Applicants that they did not regard the Quadrex Report as relevant and material to the Phase I issues and hence were not required to pro-vide it to the Board shortly after its issuance, pursuant to AlcGuire obli-gations. See LBP-85-6, supra, 21 NRC at 461 and cases cited. CCANP 4 claims that Documents 1, 2 and 3 show that ilL&P had intended the Quadrex Report to assist it at the Phase I hearings, and that Document 4 demonstrates the potential signincance of that report and its import to the "licenseability" of the STP. Further, CCANP asserts that thesc
. , documents demonstrate "that there was a direct link in the minds of HLdP senior management between the commissioning of the Quadrex Report, the Phase I operating license hearings, and the ultimate licensc-ability of the plant" (Motion 11 at 5-6, emphasis in original). CCANP concludes that testimony of IIL&P olTicials during Phase 11 was incon-
, sistent with these documents, and that flL&P did not turn the Quadrex Report over to us early in Phase I because it would threaten the license-ability of STP.
In determining whether to reopen the record, we are bound by the
, , well-known standards which we recently described in LBP-85-42, supra, 22 NRC at 798-99. See also our earlier ruling in LBP-85-19, 21 NRC 1 v. 1707,1720-21 (1985). Suffice it to say that, given the timing of Motion 3- - II, three criteria must be satisned:
- l. The motion must be timely Gled;
- 2. It must address a significant issue; and
~
- . 3. It must demonstrate that the information sought to be added to the record might potentially alter the result we would reach in its absence.
m CCANP concedes that Motion II was not timely submitted, since {4, "q;^ - CCANP could have obtained Documents 1-4 through discovery but n - - ~ failed to attempt to do so. CCANP relies (Motion 11 at 7) on one of our earlier rulings which cites authority to the effect that "a matter may be
.o ,
of such gravity that the motion to reopen should be granted notwith-standing that it might have been presented earlier." LBP 85-19, supra, V: :~ 21 NRC at 1720-21, citing Vermont Yankee Nuclear Power Corp. (Ver-
, mont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523 (1973); to the same effect, see Public Service Co. of Oklahoma (Black e
822 i e 4
- - . - ---- , . - - - - , , , m. -- - - - -- - - --,,,-e.- - - - . - . - - - - - . ~ , - ,
Fox Station, Units I and 2), ALAB-573,10 NRC 775, 804 (1979), racatedin part on othergrounds. CLI-80-8,1 I NRC 433 (1980L In opposing Motion II, the Applicants claim that CCANP's charges
~
are totally without merit and are supported only by its own mischarac-terization of the Phase 11 record and of Documents 1-4. They further claim that the information in Documents 1-4, to the extent relevant to Phase 11 issues, is at best cumulative and would not modify the result
, which we otherwise would reach. Finally, the Applicants point to the un-
. timeliness of Motion 11 as another reason for dismissing or summarily I denying it.
. The Staff ofTers somewhat different reasons for denying Motion 11. It l stresses the untimeliness of the motion an_d the ambiguity in the state-ments in Documents 1-4 upon which CCANP relies. The StalTacknowl-l edges the seriousness of the safety issue to which the documents pertain.
j But it asserts that the documents are susceptible to many interpretations,
; "none of which are entitled to conclusive (or indeed much, if any)
', weight"; and accordingly, that admission of the " documents standing alone" (as sought by CCANP) would provide no probative evidence
; which would be likely to affect our decision (Staff Response at 4). The i Staff notes that CCANP's failure to have offered the documents in a j timely fashion prevented the possibility of introducing them into the t record at the hearing and " deprived the parties of the opportunity to adduce evidence concerning the meaning and import of the documents" (id. at 3).
- 2. Ruling on Motion H No party questions the significance of the issue to which Motion 11 is directed. Nor do we. The real question before us is whether the informa-tion in Documents 1-4 would !iave a tendency to modify the result on Contention 10 which we we.,uld reach absent such information. As the Staff observes, there is same ambiguity as to the meaning of certain terms in Documents 1-4. But we nonetheless conclude that the new in-formation could potentially alter the result we would otherwise reach on Contention 10. In particular, the documents appear to raise legitimate questions about the veracity or completeness of certain evidence now before us for decision and hence of the integrity of the Phase 11 record on Contention 10.
The crucial fact which these documents could establish is that one of the major reasons for HL&P's having commissioned the Quadrex review was to provide information for use in the Phase I hearings. If proved, such fact would undercut the Applicants' position on Contention { 823 I
+ l I 1
, f 10. The Applicants assert that CCANP's claim is not supported by either l the Phase 11 record or Documents 1-4. The first of these assertions is l obvious - if CCANP's claim were clearly established by the Phase il i j record, CCANP would not have filed Motion II. Contrary to the Appli- )
j , .- : cants' claim, however, the proffered documents do support a connection j between the Quadrex Report and Phase I issues beyond that to which l the Applicants' witnesses have testified and contrary to the position
; taken by the Applicants on Contention 10.
~ ,
_- , ; in our view, the following scenario could be created by adding Docu-
! ments 1-3 to the record:
.M~ '
'+
] a. The second prehearing conference was held on Novcmber 19, m 1980. At that conference, the issues for Phase I were approved.
The most important question discussed at that conference was
.~ whether Phase I issues should include consideration of correc-1 -
j tive actions adopted by the Applicants following the April 30, j -
.j 1980 Order to Show Cause or (alternatively) whether Phase !
i should be limited to an exploration of the deficiencies leading
~s-l up to the Show-Cause Order. See Second Prehearing Confer-
.: ence Order, dated December 2,1980, at 3 5 (unpublished).
l l We ruled in favor of considering corrective actions during i Phase I.
' ^ ' - b. The broader aspects of corrective actions involved considera-
] - 1
,- s j tion of whether the Applicants had abdicated (and were con-
~ O.f s' i tinuing to abdicate) responsibility for the project. Abdication
]j of responsibility was one of the indicia of lack of character to which the Commission had referred in CLI-80-32,12 NRC
- ^ ,
' - - 281 (1980), the Order which gave rise to the broad Phase I i .
s, , issues. , aJ'T' ,
- e. The Phase I issues were discussed at the Management Commit-i tee meeting on . December 4,1980 (slightly more than two weeks following announcement of the Phase I issues at the November 19, 1980 prehearing conference). At that meeting,
. - i;
. there was discussed a third-party review of engineering as a
~
2 3'.- % ~_. ' ' 7 method for demonstrating at the OL hearing that ilL&P was in
~Y " '
charge of the entire operation, was competently discharging its
~l' , ' ; responsibilities for overseeing design engineering, and accord-ingly had not improperly abdicated its responsibilities in this 5 area (Document 1).
'".7 eo .
e J d. Accordingly, there was a direct relationship between the com-V~ s missioning of the Quadrex Report and the Phase I issues (Documents 1,2 and 3).
, . 1 T
i 824
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1 .
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, s
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- e. Further discussion at the February 1981 Management Commit-tee meetings redects a difference of opinion as to the relevance of the Quadrex review to the OL h.arings. Mr. Goldberg deter-mined it to be relevant, but Mr. Oprea found it not relevant (Document 2). The view of Mr. Oprea, the senior of these two officiels, prevailed at the hearing, notwithstanding Mr. Oprea's acknowledgment (in a somewhat different context) that he had less experience to determine reportability than did Mr. Gold-berg (Tr. 14,170, 14,390).
- f. A likely reason for the Applicants' adoption of Mr. Oprea's view was the strong negative character of the Quadrex Report and the potential adverse effects on the abdication of responsi-
! bility issue to be litigated in Phase I.
! To be sure, the Applicants offer explanations for statements in the
. various documents. They refer to testimony by Mr. Goldberg indicating only a peripheral and incidental use of the results of the Quadrex review at the hearings. Goldberg, ff. Tr.11,491, at 4-5; Tr.11,582-84 (Gold-berg). They also assert that the discussion at the December 4,1980 Management Committee meeting came up only " incidentally" ( Appli-l cants' Response at 5). They attribute the discussion to persons unfamil-j iar with the particular issues to be litigated in Phase i but familiar with j the broad scope of NRC licensing proceedings - pointing specifically to
! the circumstance that the December 2,1980 Order which "delineatled)
Issues A-F" was issued only 2 days prior to the December 4 Manage-ment Committee meeting (id. at 6 n.10). That latter claim, however, is misleading: Issues A-F were approved at the prehearing conference on November 19,1980 (Tr. 306-07) and the approved text (at the sugges-tion of the Applicants, Tr. 307) was bound into the transcript of that conference (fr. Tr. 307). Absent further information, we must presume
. that many attendees at the December 4,1980 Management Committee meeting were familiar with the precise issues to be litigated in Phase I.
Furthermore, the Applicants failed to explain the apparent inconsistency between Document I (which indicates Mr. Oprea's presence at the _ December 4,1980 Management Committee meeting) and Mr. Oprea's testimony in which he indicated that his best ruollection was that the Management Committee was first informed of the Quadrex review in March 1981 (later amended to February 1981) fTr.14,103-06). Because Documents 1-3 can be construed as seriously undercutting the position adopted by the Applicants, and hence as adversely impacting our evaluation of their character, we do not believe that we could render a fair or meaningful decision on Contention 10 without reopening the record to include those documents. Given the potential differences in l 825
how these documents may be construed, however, we would not adopt
,j CCANP's proposal merely to incorporate the documents into the j record. We believe that testimony of various individuals concerning the 1
meetings in question is necessary to create an adequate record on Con-j
, . tention 10.
, On the other hand, we agree with the Applicants that the portions of Document 4 (and to some extent, Document 2) on which CCANP relies, bearing on the seriousness of the Quadrex Report, are largely speculative, as well as cumulative of some testimony in the record. We
' c' ~; do not believe that the record should be reopened to include Document m >
- 4. As for Document 2, it is significant not for the seriousness of the Qua-
. drex Report but rather for the relationship of the Quadrex review to the
. ~ forthcoming hearings, and the apparently differing views within HL&P on that question.
; As for the timeliness criterion, we agree with all parties that Motion 11 should have been submitted earlier - indeed, the material should have
] been offered prior to the Phase II hearings. But the information in Docu-
~
j ments 1-3 is so basic to the Applicants' position on Contention 10 that, e as CCANP claims, the record should be reopened to include that infor-
'l mation notwithstanding its untimely sub~mittal. We are therefore reopen-ing the Phase Il record to include Documents 1-3 and testimony con-
, cerning the relationship of the Quadrex review to the Phase I heari .gs.
The Board envisages the reopening of the record which n imd war-(j. '
-l
'f ranted to entail a relatively short evidentiary hearing. To enable us to complete the Phase Il record and issue a decision in a timely fashion, we propose a hearing in the Houston, Texas area for December 5 and (if t . necessary) December 6,1985. Appropriate witnesses would include
- , Messrs. Goldberg, Oprea and Barker, but possibly would also include s
y Messrs. Jordan and Thrash. We expect to discuss hearing arrangements in the conference call we previously scheduled (for other purposes) for November 15,1985. j Motion II does not seek discovery. Although we envisage that discov-
.. ery would possibly be useful, we are not authorizing discovery in view of i ; _ ...- -] the time constraints necessary for us to issue our Phase II decision in a j,' .-y y ' , %. - -
ll timely fashion. We request the Applicants, however, to produce the fol-J- w lowing documents (to the extent that they may reflect either the rea-
< 4 ~ '
son (s) for HL&P's commissioning of the Quadrex review or a relation-
'.. y --
. ship of the Quadrex review to the Phase I hearings):
- l. Notes of the meeting of the Management Committee with ex-L-
ecutive officers (if such meeting took place) on or about
. December 4-5,1980.
t s -4
- 826 l
r f
\ g t s
I i
+
- 2. Notes of the Management Committee meetings (including the meeting with executive omcers) on January 22 and 23,1981 (see CCANP Exh.113, at 5 (p. 4603)).
3 Notes of the meeting of the Management Committee with ex-ecutive omcers on March 20,1981 (the minutes of which are included in CCANP Exh.109). These documents should be provided to the Board and parties by
~
W~ednesday, November 27,1985 (filing date) or Monday, December 2, 1985 (delivery date). .. r C. Withdrawal of Motion III In seeking to withdraw Motion III, CCANP acknowledged that it had erred in accusing the Applicants' counsel of withholding important docu-ments from it. CCANP also apologized for its accusations against coun-4 sel. Motion ill additionally accused HL&P management omeials of pre-senting perjured testimony during Phase 11. The Withdrawal Motion does not retract those allegations but, instead, reiterates them. 4 . The Applicants would permit CCANP to withdraw Motion Ill, but
- ! they ask us to impose sanctions against CCANP for its " baseless and scandalous charges." Specifically, the Applicants would have us strike both Motion ill and the Withdrawal Motion "since they contain charges that defame HL&P management and Applicants' counsel." They also would have us admonish CCANP's representative that further unwar-ranted accusations regarding the integrity of Applicants' counsel or management omcials will result in additional sanctions.
Absent objection, we are granting the motion to withdraw Motion III. Although we are not striking from the record either Motion III or the Withdrawal Motion, we wish to put parties on notice of our displeasure
', at the unfounded and reckless allegations which CCANP has made against Applicants' counsel. Since the allegations of perjury against HL&P management omcials are in part closely relatud to the position i taken by CCANP on substantive Phase II issues, we defer any ruling on
- - such allegations pending issuance of our Phase 11 Partial Initial Decision I on those issues. Finally, we note that one of the positions taken by the
- ~ Applicants in connection with Motion II was based on an erroneous statement of facts, most likely through carelessness, and hence was mis-j leading at best. That, too, warrants our disapproval.
l, ; The most serious - partly because of its lack of any basis - is l CCANP's attack on the integrity and professional responsibility of Appli-cants' counsel. As the Applicants point out, this is at least the second in-
- stance in which CCANP has made baseless charges against Applicants' I
i 827 i A - a
'* w'- '^v- = ww--p-- - .-e, ---. - --- evy.-- e, e- - y ---- -g- -~=-----2+- - - - --r- - - < 4-v-w+-- -- ----- - - -r'---'-i-
counsel concerning the Applicants' response to Board-ordered discovery. (The other example appears at Tr. 12,660-63, 14,186-89.) CCANP ex-i plained its charges against counsel in N10 tion Ill on the basis of its own lack of organization of the material which it previously had received. l Stost significant, however, is the listing of the allegedly withheld docu-I ment in the July 2,1985 transmittal letter to the Board and parties on
.! which CCANP relied in part in its Niotion lil; in its Withdrawal 51otion, j CCANP conceded that it had not actually looked at the transmittal letter l it had cited (Withdrawal N1otion at 4).
8 In its Withdrawal hiotion, CCANP admitted it had been " careless" and it apologized for its carelessness. Similarly, CCANP had apologized
,,, g for its earlier erroneous charges concerning the Applicants' response to i discovery (Tr. 14,193-96). Nonetheless, CCANP failed to take appropri-ate steps to assure the validity of the serious charges it was making. As the Applicants point out, CCANP failed to inquire of Applicants' counsel (or Staff counsel) whether the document in question had been produced; i failed to review the documents which were produced; and failed to con-sult the list of produced documents in the Applicants' July 2,1985 trans-l mittal. When charges as serious as those against Applicants' counsel are j proffered, a party has an obligation to take greater care than did CCANP
, in asserting those charges.
i We recognize, of course, the paucity of resources available to j CCANP. Nonetheless, when charges as serious as those in $10 tion 111
, are made, lack of resources is no excuse, if charges of this type cannot be accurately documented, they should not be made.
Although intrinsically less serious, the erroneous claims advanced by the Applicants in responding to Slotion II (see supra p. 825) are also inexcusable - particularly in light of the far greater resources available to the Applicants. The Second Prehearing Conference Order, dated December 2,1980, indicated that the issues set forth in the attachment to ihat Order had been accepted at the Prehearing Conference. A perusal of the transcript of the November 19,1980 prehearing conference would have revealed that, at the suggestion of the Applicants themselves, the text of the accepted issues was bound into the transcript. That being so, it is inconceivable to us that the precise issues to be heard in Phase I were not known by at least some of those who attended the December 4,1980 hianagement Committee meeting. One of the Applicants' pri-mary responses to Niotion II was, therefore, upset by the facts. We have authority, of course, to strike pleadings which do not live up to the high standards of practice expected before the Commission.10 C.F.R. sf 2.708(c), 2.713(a), 2.718(e); see also Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units I and 2), Docket 828 l 1 1 i s
Nos. 50-445-OL-2 & 50-446-OL-2, Niemorandum dated September 17, 1985 (unpublished). Ilowever, given the totality of circumstances, including the ditTering evaluations by CCANP and the Applicants of the completeness and accuracy of testimony of IIL&P ollicials during Phase II (all of which bear on the substance of Phase 11 issues), we decline to
, strike Motion til or the Withdrawal 510 tion from the record. We warn all parties, however, that we expect more care in the preparation of
, pleadings than has been demonstrated by either CCANP or the Appli-cants in the instances described herein.
i 1
, For the reasons stated,it is, this 14th day of November 1985, ORDERED
- 1. That CCANP's N1otion II is granted in parr, the record of Phase 11
{ is reopened to the extent indicated in ( B.2 of this Niemorandum and Order; i 2. That CCANP's N1otion to Withdraw N10 tion ill is grantett,
- 3. That the Applicants' request to strike N10 tion til and the With-drawal N1otion is denied.
FOR Tile ATON11C SAFETY AND LICENSING BOARD l Charles Bechhoefer, Chairman j ADN11NISTR ATIVE JUDGE Bethesda, Staryland G 829
Cite as 22 NRC 830 (1985) LBP-85 46 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1 ATOMIC SAFETY AND LICENSING BOARD l Before Administrative Judges:
'5 I
John H Frye, Ill, Chairman
, Dr. James H. Carpenter
! Dr. Peter A. Morris In the Matter of Docket No. 40 2061-ML
, (ASLBP No. 83 495 01-ML)
KERR-McGEE CHEMICAL CORPORATION (West Chicago Rare Earths Facility) November 14,1985
?
l The Licensing Board rules on intervenor's motion to stay the j proceeding.
- l'
, RULES OF PRACTICE: INTERVENTION j When a party intervenes in an NRC proceeding, that party assumes all of the responsibilities attendant to intervention. The pressures of other
' ~
- . . professional responsibilities are not a basis for alleviating that burden.
.'. ~, See Statement of Policy on Conduct of Licensing Proceedings. CLI-81-8,13
- NRC 452,454 (1981); Commonwealth Edison Co. (Byron Nuclear Power v Station, Units I and 2), ALAB-678,15 NRC 1400,1416 n.33 (1982).
RULES OF PRACTICE: LICENSING BOARDS The existence of State Court litigation between the same parties as those before the NRC does not prevent the Licensing Board from carry-830
1 ing out its responsibilities under Federal law. See Philadelphia Electric Co. (Limerick Generating Station, Units I and 2), ALAB-785,20 NRC 848, 884-85 (1984). F MEMORANDUM AND ORDER (Ruling on the People's Motion to Stay the Proceeding) L I On September 11. 1985, a prehearing conference was held to discuss l discovery disputes pending between Kerr-McGee and the People. Vari-f ; ous scheduling matters were also addressed. In this connection, counsel
! for the People expressed the view that activity in this case should be held in abeyance until the related action pending in the Illinois Circuit Court for DuPage County' is completed. Tr. 403-04. Subsequent to the
{ prehearing conference, we issued a Memorandum and Order ruling on i the discovery disputes which, while noting the People's interest in defer-i ring further proceedings,2 required that further discovery responses re-i quired by the Order, and requests for admissions, be made within 30 l days of service. Further, we required motions for summary disposition j to be made within 60 days of service.2
- On October 15, 1985, the People Gled a Motion to Stay the West I Chicago proceeding. Kerr-McGee and the Staff responded in opposition.'
1 Kerr McGee's response also included a motion urging the Board to impose sanctions on the People due to their noncompliance with the Board's order.5 The People's motion alleges that they are unable to comply with the discovery schedule because of the nece;ity to prepare for the upcoming State Court trial. The Staff response 6 points out that, as a procedural a
- E Peoptr of the Starc ofillmons v Kerr-McGer ChemealCorp., No 80-CH-29R (Cir Ct. DuPage Countys.
j In this htigation, the People seek. uiter sha. an injunction requinns Kerr-McGee to move the mill tail. ings which are the subject of this proceeding elsewhere for disposal. The People rely on state water quali-ty standards in support of their position. This htigation has implications for this proceeding in that here
- we are considering Kerr-McGee's apphcation to dispose of those mill taihngs on sne.
2 I Memorandum and order (Ruhns on Discovery Disputes) dated September 26.1985. LBP-85-38. 22 r NRC 604. 631. 3 l<t 4 l Kerr McGee Chemical Corporation's Motion for sanctions and oppostion to state's Motion to stay Proceedings. dated october 28.1985. NRC stalT Response to People of the state of flhnois' Motmn to !' stay the Proceedings dated November 6.1985 (-staff Response"). 5 The Board has considered the arguments propounded by Kerr-McGee m its motion for sanctions We
+
do not feel sanctions would be appropriately amposed at this time, and therefore we deny the motu>n. I our demal is without prejudice however, and the motion may be renewed if the People are asam dere-f hct in upholding their responsibikties as an mtervenor in this proceeding.
- a statT Response at 3-4 831 l
1
- c-. -.. . -.. _.-. . . ,. .-- . , - - - . , , -- . . - - - . - .
_ _ , , , . - . . . , , - - , .c- . .-
matter, the People failed to comply with the deadline for 61ing objections
, to a Prehearing Conference Order prescribed under 10 C. F. R .
s 2.752(c). While we agree with StafT that s 2.752(c) is applicable, we i nonetheless address the merits of the motion. i in so doing, we note that this proceeding was instituted at the behest of the People.7 While we recognize that this proceeding may impose a heavy burden, the People assumed all the responsibilities attendant to intervention in NRC hearings by initiating this proceeding. The pres-sures of other professional responsibilities are not a basis for alleviating that burden.8 We cannot allow the People to abdicate responsibilities which are required of even pro se intervenors who lack many of the , resources presumably available to the People. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Counca. Inc., 435 U.S. Sl9, 553 (1978); Northern States Power Co. (Tyrone Energy Park Unit 1), LBP-77-37, 5 NRC 1298 (1977); Offshore Power Systems (Manufactur-ing License for Floating Nuclear Power Plants), LBP-75-67,2 NRC 813 i (1975). Discovery has been ongoing in this proceeding for many l months. The existence of related litigation in the State Court furnishes I no good reason why this discovery should not be completed now. Furthermore, we reject the People's argument that we are restricted from requiring progress in this proceeding by the existence of the State Court litigation.' While in theory the. People's success in the State pro-
! ceeding could result in an injunction requiring Kerr-McGee to move the
) mill tailings in question, we question whether any such injunction would l be upheld. Brown v. Kerr-McGee, 767 F.2d 1234 (7th Cir.1985). More i importantly, however, even absent the question of Federal preemption,
! the existence of the State litigation furnishes no basis on which to abdi-cate our responsibilities under Federal law. We will not permit the NRC proceeding to be held hostage to the State Court action. The People have raised serious issues with regard to the apphcation of Federal law in this proceeding. It is our intent to give these issues full consideration.
However, the People's neglect of their responsibilities creates difficulties
~
in this regard. We call upon the People to fulfill these responsibilities. 4 f one other request for a hearing was riled by the Chamber of Commerce of west Chicago. but was subsequently withdrawn. 8 Statement o/Polary on Conduct o/Lrresmg Pmccrdmes. CLI-818.13 NRC 452. 454 (1981). Common.
=calth Edison Co. IByron Nuclear Power stauon, Units I and 2), AL AB-678.15 NRC 1400.1416 n 33 (1982).
' As stafr noted in its Response at 7 n 7. in PhdaJr/ phar Elrrrr.s Co. (Limenck Generating station.
Units I and 2). ALAB 785. 20 NRC 841 884-85 (1984) the Appeal Board took the poution that an NRC .idjudication is independent rrom that of other admimstrative or Judicial entitics "with ditTering
, concerns and responsibilities." For this proposioon. the Appeal Board cites the NRC Commisuoners' decision in the West Chacago proceeding and its subsequent aftrrrance in the 7th Circuit. 20 NRC at 885 n.164 i
832 i i f
At the same time, the People must be aware that we will not hesitate to impose sanctions if their neglect continues.'a Thus, while we deny the People's Ntotion to Stay, we will provide a period of 3 weeks from service of this Order for the People to comply with our September 26 rulings on discovery. Further, we vacate the deadline for summary disposition motions provided in that order, as well as the deadline for filing requests for admissions." As noted, Kerr-NicGee has moved to impose sanctions for the People's neglect of their responsibilities. We deny this motion without prejudice to its resubmis-sion if compliance with our Order is still not forthcoming. Order In consideration of the foregoing, it is hereby ORDERED:
- 1. The People's motion for a stay is denied. The People are to comply with our discovery orders contained in our September 26 Niemo-randum and Order no later than 3 weeks following the date of service of this Niemorandum and Order.
- 2. Kerr-NicGee's motion for sanctions is denied without prejudice to its resubmission if the People do not comply with 1 1, above.
l 1 I I 10 The statement on Conduct or a beenung Proceeding Pohey issued by the Commission in 1981 sug. gests vanous sanctions a board may impose when a participant in a hcenung proceeding fails to meet its l. obhgations. These include. in severe cases the dismissal of a party from the proceeding. Siaremeer of Pohcy on Conduct of Lwensme PmcerJungs. CLi-8l-8. supra- l3 NRC at 454. H our decision not to proceed to heanns on the basis of the draft supplement to the FEs alleuates the need for early consideration of any arguments that staffs alternate site analysis is inadequate as a matter oflaw This was the argument which,if it were to be raised, we ,shed raised early. The schedule for admissions was set because counsel for the People had suggested at the preheanny conference that this might be appropnate, and no obgctions were voesed iTr 402L lt now appears that i all parties object to rihng such requests pnor to the completion of de soutions People's Nf otion to stav f Proceeding, dated october 15.1985, at 2. KerratcGee Chemical Ccrp Ntotion for Euenunn of Time i to File Requests for Admissions, dated october 30.1985, at 2 n 1. statf pesponse at 5 n 4 833
- 3. The deadlines for filing requests for admissions and motions for summary disposition contained in our September 26 Niemorandum and Order are vacated.
, FOR THE ATONilC SAFETY AND LICENSING BOARD t
+
Dr. James II. Carpenter
- ADNilNISTR ATIVE JUDGE
- f.
Dr. Peter A. Ntorris ADNIINISTR ATIVE JUDGE John H Frye,111, Chairman ADNilNISTR ATIVE JUDGE Bethesda, Niaryland I f i
~
' Judge Carpenter concurs but was unavailable to teview and sign this Memorandum and Order.
834 C h 0
Cite as 22 NRC 835 (1985) LBP 85-47 UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD e Before Administrative Judges:
}
Peter B. Bloch, Chairman Dr. Kenneth A. McCollom 8 Dr. Walter H. Jordan i in the Matter of Docket Nos. 50-445 OL 50-446 OL
; (ASLBP No. 79 430-06 OL)
}
l TEXAS UTILITIES ELECTRIC COMPANY, et al. (Comanche Peak Steam Electric
. Station, Units 1 and 2) November 25,1985' The Licensing Board denies Applicants' motion for reconsideration of an earlier Board order.
i MEMORANDUM AND ORDER
. (Reconsideration of Misrepresentation Memorandum)
Memorandum The principal purpose of this Memorandum is to act on TEXAS
, UTILITIES ELECTRIC COMPANY, et al.'s (Applicants') " Motion for Reconsideration of Licensing Board's Memorandum (Reopening Discov-i i
835 l I C [ L
ery; Misleading Statement)," January 7,1985.' In response to the Appli-cants' motion we have decided to leave our initial order in effect but to clarify it somewhat. We hold Applicants to a very high standard concerning the complete-ness and persuasiveness of proof. Litigation of technical issues can be difficult. Simplification is feasible if a party attains mastery of the techni-cal issues and communicates them so clearly that the outcome becomes evident. In licensing cases, applicants are expected to master the technical j issues affecting their plant. Their mastery flows from: i
- the availability of the sophisticated technical staff needed to i
build a sound nuclear plant and to defend it before the Nuclear Regulatory Commission (NRC), and
- the seriousness of their commitment to understand their plant in sufficient depth to be able to assure themselves the public and their stockholders of the soundness and safety of their
; plant.
If an applicant masters technical issues, implements its knowledge during design and construction, and describes its knowledge in deta:1. l the case can become simple. If mastery of technical issues is not attained or if the presentation is lacking in thoroughness or clarity, then the work of the Licensing Board becomes far more difficult and the outcome may be clouded by doubt. Because Comanche Peak is built under a complex regulatory schme.
! an applicant also must demonstrate the use of a reasoned arproach to I
what is required by regulations, regulatory materials (Regulatory
) Guides, etc.), codes and commitments (FS AR). A full, 'ogical descrip-tion of the resolution of a safety problem must include a clear discussiori of the relationship between the problem and the regulatory context.
With respect to the clear presentation of technical inues, it is instruc-tive to consider the following argument in Applicants' motion for recon-
. sideration, at page 16:
i
] The Board . . should recognize the inherent impracticality in Apphcants being held j to a standard that requires it to anticipate the inquiries of others and to provide i every shred of evidence that others may deem important regardless of its signifi-l cance related to a particular subject.
Contrary to the thrust of this argument, we find that anticipating the in-
, quiries of others is important. Although "providing every shred of evi-I Apphcants completed their riling mth a supplementary statement on this motion on Nosember 12, 1985. See Tr. Uanuary 9.1985) at L5.
i
, 836 i
4
dence" is not required, effective communication requires anticipation of the inquiries of others. After all, the purpose of communication is to per-suade someone of the truth of an assertion. Understanding the questions they may ask is essential to communicating in a way that persuades. In addition, one must seek to understand the inferences others are likely to draw. Inferences that are intended to be evoked should be sup-portable. If a favorable inference is incorrectly evoked, then our integrity as communicators is placed squarely on the line and we have an obliga-
+
; tion to revise our language so the incorrect inference will no longer be j evoked.
; In licensing cases, it is necessary to set forth technical findings persua-i sively. The filing should describe how the problem is resolved by the ap-
' proach, including a description of the problem, the legal setting in which it arises, the reasoning applied to the problem and how the approach was implemented. The reader must be informed of how the problem was log-ically and fully resolved. If new problems were encountered during implementation or if the resolution is uncertain, the problems or uncer-tainties should be described. Disclosure of difficulties encountered i during resolution of the problem can add to confidence that the problem was resolved in a thoughtful way and that the presentation to the licens-
, ing board is an honest description of a real-world process rather than just a presentation designed to persuade.
Within this general framework, there is substantial freedom. What is
; not permitted is a simplification of the process that creates an appearance l or gives rise to honest inferences that are different from reality.
For example, it may be acceptable to determine - for certain purposes
- what the torque on U-bolts was in Unit I by testing the torque on U-bolts in Unit 2. However, acceptance of the appropriateness of that procedure requires acceptance of a number of assumptions concerning why Unit 2 is " representative" of Unit 1. Furthermore, for certain limit-
! ed purposes, it may be acceptable for a person to wander around in the l field choosing U-bolts the person happens upon. Necessarily, this will exclude certain U-bolts from the sample (such as hard to-reach U-bolts or ones that happen to be in a different part of the plant than where the person started selecting U-bolts).
Selecting a " sample" in the imprecise manner just discussed may be appropriate for some purposes. flowever, describing the sample thus ob-tained as a " representative sample" or as a " randomly selected repre-4 sentative sample"2 without any discussion of the way the " sample" was l in fact selected is to oversimplify and mislead. f i 2 Memorandum (Reopening Discovery. Misicadmg staiements. LBP-84 56. 20 N RC 1696,1697 (19848 837 l l
It was appropriate for Applicants to file a motion for reconsideration, challenging the Board's conclusion. Then, before we acted on the
; motion, the Applicants stated that they were changing their legal team and examining anew their position in the case. We were hopeful that Ap-plicants would revisit what they had written, what the Board had said
'! and what the Applicants had replied. Ilowever, Applicants have not
, l .withdrawn their motion for reconsideration and their new affidavits fail to resolve the concerns that led us to issue our N1isrepresentation order. I The problem with Applicants' brief on the N1otion for Reconsideration l is that Applicants argue that they do not need to use a random or repre-j sentative sample. This may be true. Applicants have not been required l to use a random or representative sample for what they did. 1 The problem with Applicants' brief was that they said they had used
]. such a sample. They voluntarily stated, without compulsion, that they had done that. This suggested to us niecisely what Applicants discuss on l
. page 10 of their Station for Reconsideration. We thought that when Ap-
.} plicants used the words " samples," " representative" and " random" that
} the words bore their natural reference to sampling theory, which j governs how samples of voters, families, airplanes, etc., would be j drawn. That Applicants also would refer to that kind of sample in their Niotion for Reconsideration indicates to us that the misrepresentation that occurred may have grown from ignorance rather than intention.
Otherwise, it would make little sense to make such a direct reference to samples that follow laws other than what Applicants followed. Our knowledge of sampling theory is derived from basic principles ths' are broadly accepted and widely known. Randomness requires some methad of assuring the operation of chance. Random samples are not drawn cy someone voluntarily choosing from the universe based on per-sonal choe. Sometimes random number tables are used. Sometimes structured sangles may be appropriate, where a known decision rule is utilized to assure structured, unbiased sample. What is never done is to permit a person to draw names (or U-bolts) from a telephone book (or a nuclear plant) by personal choice, for there is no assurance that some personal factor will not bias the sample. We know nothing of the knowledge or bias of the people who chose the bolts for Applicants' sample. We know nothing of the psychological process governing how particular U-bolts or areas of the plant were selected for sampling. There might, for all we know, be some knowl-edge, belief, habit or superstition that caused certain areas or U bolts to be excluded or included in such a sample. Without an objective method of choosing the sample, those biases could result in an unrepresentative sample. 838
1 4 d 4 So we continue to conclude that we were misled. Did it matter in this particular case? Probably not. Although Applicants' entire technique for qualifying U-bolts is still up in the air, the impact of this error on the a technique that was used appears to be marginal. Did the statement matter? Yes. Assuredly it did. The only way the 1 Board can trust the Applicants is if their filings communicate clearly and i j are trustworthy.) That requires care. Otherwise, each word or phrase
! must be parsed and distrusted. We would be driven to examine closely how we might be misled if we accepted the obvious meaning of the i
words Applicants used. Unless Applicants' language is careful, precise
! and trustworthy, we would need to approach their Glings with suspicion.
! ! We expect Applicants to be forthright about what they do, the prob-4 lems that remain, the regulatory context, the areas of uncertainty. By
, j living up to that ideal, Applicants will facilitate timely Board action. If
; that ideal remains elusive, we will have to be suspicious, and action on our part will be delayed or will be unfavorable.
Licensing cases before the NRC are not ordinary litigations. They are i ' not games of persuasion. Facile, simplified arguments do not show an
~
[ awareness of the sei susness required for building and running a safe i plant. Clear, careful arguments (and admissions of error when error is pointed out or detected) inspire trust and confidence. In this proceeding, where time means money and carefulness protects lives, we urge Appli-1 l cants to consider the importance of assuring that we can place trust in a ! their filings. Careful filings are the key to the efficient conduct of this j hearing from this time on. 3 As to Mr. Reedy's testimony, we note that he stated that the AsME Code does not provide a formula for every snuation but refers to good engmeerms practice or standard practice. Tr. 6915 lie also said i that "the whole mdustry . . does it the same way' (Tr. 6917) and that a " consensus of the field of engr. i neenng in the Unsted states helps estabbsh good ensmeerms practice'* (Tr. 6920t The implication that l } Mr. Reedy was apparently seekms to convey was that Comanche Peak was complying. in its methods of analysis, with methods used elsewhere. He was then challenged by Mr. walsh, who stated that r.: a previous hearms Mr. Reedy said he had
+
not seen anywhere else a particular pipe support configuration used at Comanche Peak. To that. Mr.
~ Reedy responded that he had now seen the type of configuration (Tr. 6921) but that he had no knowl-edge of whether the particular kind of analysis suggested by Mr. Doyle would be done elsewhere in the industry. Tr. 6922. Until this pomt in the cross-csammation. Mr. Reedy created ihe impression with the s
Board that it was not industry practice to do the kmd of analysis suggested. After the question by Mr. w alsh, we concluded that Mr. Reedy's testimony rested on general philosophical analysis but that he j had no specific basis for applying that analysis to the particular configuration used by NPsi at Comanche Peak. The Board felt misled by Mr. Reedy's testimony. Upon rereading the pertinent transcript passages. however, it now appears that Mr. Reedy was not intentionally misleading the Board. on the other hand. l the situation serves as an example of the Board's concern that testimony be adequate to specify the rela. tionship between the arguments bems made and the specific problems bems addressed. j Applicants have not persuaded us to revise any of our other findings in the challenged order. 1 i - 839 l r 1 l
+
l t 1
I. APPLICANTS' SUPPLEMENTARY FILING The AfGdavits of Robert C. lotti and John C. Finneran, Jr., Gled on November 12,1985, did not persuade us to reconsider our earlier order. 4 Indeed, this new Gling leaves us with some preliminary concerns that we will discuss for the purpose ofinforming the parties. Although we are pleased at the candor involved in revising the earlier summary disposition motions, the imprecise use of language in the car-lier filings is apparent from a careful examination of this new filing. Fur-thermore, the discussion of the U-bolt tests and analyses remains con-fusing. On page 2 of the U-bolt Gling, the alTidavit states: (Alpphcants' program of tests and analyses assured that results of both lemphasm added) the tests and Gnite element analyses . . may be apphed to supports m the Geld. I Then, on page 3, Applicants appear to use the following language to dis-claim the direct applicability of the tests that were performed: It is important to understand that Apphcants' approach m utihang U-bolt tests was i not a simple empirical one of performing selected tests and employmg the test re-suits directly for evaluatmg Geld conditions. Rather, the tests were utihzed for the purpose of deriving, then con 6rmmg, a general theoretical model. . S i This confusion relates to an important point. If Applicants conducted
! a test program, then they are required by 10 C.F.R. Part 50, Appendix f B, to " include suitable qualiGcations tuting of a prototype unit under the most adverse design conditions." Unless we accept Applicants' argu-ment that the tests were utilized solelv for the purpose of deriving, then confirming, a general theoretical model, then the tests were used for verifying the adequacy of a specinc design feature and were covered by Appendix B requirements.
It is not entirely clear to what extent these tests were used to verify a design feature, but the tests were used at least in part for that purpose. . In Applicants' Motion for Summary Disposition of CASE's Allegations Regarding Cinching Down of U-Bolts Uune 29,1984), page 44 states: ITjo unequivocally answer the Board's concern with pipe stresses and how they are mauenced by emchmg the U-bolt and related stresses, a mtr of mformanon deriwd from test and ana6ses is regtured lemphasis added). . (Tlhere are concerns which can only be answered by test. Examples of these concerns are the relaxation charac-teristics of the assembly under long term vibration, thermal cycling, and preload. The thermal cychng, creep and accelerated vibration tests hase prosided answers to these concerns. No analytical tool could hase done it. i 840
To the extent that tests were used to verify a design feature, the tests had to cover the most adverse design conditions. Ilowever, they did not. Generally speaking, the test value for U-bolt parameters was near the middle of the range of variables for lever arm. pipe thickness, U-bolt diameter, cross-piece width and cross-piece thickness. There was no effort made to pick adverse design conditions.' To the extent that the tests were used to confirm "a general theoretical model," the Olings are confusing as to what that model is (the model itself does not seem to have been presented), the extent to which it has
, been confirmed, the range of values over which it may be valid, and its precision (standard error).5 It is not clear whether the general model was applied, at the time of the initial filing, to the range of parameters pres-ent in the plant. Additionally, there is the legal question of where this
! " general theoretical model" is contemplated in the scheme of regulation
~
and of the ASME Code. In conclusion, we do not see any reason for the supplementary filing to influence our order concerning the scope of discovery. II. DISCOVERY 1511'LICATIONS.0F TIIE MISREPRESENTATION ORDER i t
; Applicants have sought to withdraw the filings by which they initially I implemented their Plan to respond to our order of December 1983. The l Board has expressed its interest in examining the extent to which those filings represent a failure on the part of management to understand the design problems confronting the plant. Under the circumstances, discov-ery about the validity of arty of these motions and of Applicants' knowl-edge about the validity of these motions is in order. Applicants therefore ,
should respond promptly to the outstanding interrogatories, related to their first Plan and their filings under that Plan. in addition, we are not persuaded to revise any portion of our Memo-i randum of December 18,1984. Consequently, the Order issued that day
- remains in effect. The discovery period shall run for 50 days from the is-suance of this Memorandum. Discovery may of course cover the supple-4totti-Finneran U-Bolt AMdavit at Attachment B (last page of rilms).
8For example. there are other conclusions on page 14 of the June 29 totibFmneran amdavit that might be afrected by the parameters set forth in Appendix B of the November 12 memorandum. and there are other tests. such as the rnction test discussed on page 15 or that affidavit, that could be afrected by those same parameters we note also that the fimte element analyses reported by Westmghouse were analyses i of the precise U-bolt assembhes that were sent to them and did not melude vanations m parameters i present at the plant. " Comanche Peak steam Electnc station U-Bolt Fimte Element Analysis." %esting-house Electnc Corp Uune 12.1984) at 10 ( Attachment 3 to the June 29 Amdant). 841
,. ~ _ .- . .. ..
i mentary filing. Applicants' answers may, where appropriate, reference , appropriate sections of the supplementary filing. Given the status of this issue, we deny CASE's motion to make BN 85-077's conclusions about " material false statement" a separate issue
- in this case at this time. We have already announced our conclusions concerning this particular false statement and see no point to further pro-ceedings about it. We will consider the implications of our finding when
, -i it can be placed in the context of the larger picture of this vast project.
4
}
III. APPLICANTS' MOTION FOR CLARIFICATION OF AUGUST 28, 1985 J This motion is now moot, in light of the Board's determination of Ap-plicants' earlier motion for reconsideration.
. Order i
For all the foregoing reasons and based on consideration of the entire i record in this matter, it is, this 25th day of November 1985, P. _. p .; ' ORDERED: ,
- l. Texas Utilities Electric Company, et al's N!otion for Reconsidera-l tion of Licensing Board's Niemorandum (Reopening Discovery; Niis-
! leading Statement), January 7,1985, is denied.
! 2. Applicants' Nfotion for Clarification of August 28,1985, is moot
;f. . 3. The discovery period shall run for 50 days from the issuance of g- this Niemorandum. Interrogatories previously served shall be responded to promptly, i: '
l 4. We deny CASE's motion to make BN 85-077's conclusions an issue in this case. [ . FOR Tile ATONflC SAFETY AND
)
LICENSING BOARD e . ,
^*
J, , Peter B. Bloch, Chairman '[' ., ADNilNISTRATIVE JUDGE
' Bethesda, Nf aryland 4
i 842 1 i
Cite as 22 NRC 843 (1985) LBP 85-48 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD ~ Before Administrative Judges: John H Frye, Ill, Chairman Dr. James H. Carpenter Dr. Peter A. Morris In the Matter of Docket No. 40 2061 SC (ASLBP No. 84-502 01 SC) KERR-McGEE CHEMICAL CORPORATION (Kress Creek Decontamination) November 29,1985 In this Memorandum and Order the Board denies Kerr McGee's re-quest to postpone further proceedings until completion of related State Court litigation between it and the People of the State of Illinois
- (People). The Board also dismisses the People's Contentions 1 and 6 for failure to comply with Board-ordered discovery.
RULES OF PRACTICE: MOTION TO DEFER PROCEEDING An inability to complete prehearing preparation because of demands of intensive discovery in related State Court litigation is not adequate justification for postponement of the proceeding. Counsel's failure to as-certain that the People's contentions did not add anything to the pro-ceeding and that the People's discovery responses were not a precondi-tion to proceeding under the established schedule created a delay, and the Board will not grant relief from the consequences of a delay caused by counsel's own factual error. 843
1 RULES OF PRACTICE: SANCTION FOR FAILURE TO j COMPLY WITH DISCOVERY ORDER f Where the People failed to respond to a discovery order and failed to l file an appropriate motion seeking relief from filing dates, the Board dis-missed the People's contentions after considering "the relative impor-tance of the unmet obligation, its potential for harm to other parties or the orderly conduct of the proceeding, whether its occurrence is an isolated incident or a part of a pattern of behavior, the importance of the safety or environmental concerns raised by the party, and all of the cir-cumstances. Commonwealth Edison Co. (Byron Nuclear Power Station, Units I and 2), ALAB-678,15 NRC 1400,1416-20 (1982), quoting
, Statement of Policy on Conduct of Licensing Proceedings. CLI-81-8,13
' NRC 452,454 (1981).
MEMORANDUM AND ORDER t This proceeding has been pending for 18 months.' There has been { ample time for the parties to complete discovery, prepare for, and com-i plete a hearing which should'last no more than 2 weeks. Nonetheless, we are now confronted with a request from Kerr McGee
.' to postpone further proceedings until completion of related litigation be-tween it and the People of the State of Illinois (People) in the Circuit Court for DuPage County, Illinois, and a failure of the People to comply , with our discovery orders.
Our rev;ew of the history of this proceeding leads us to conclude that
. there is no good reason why the hearing in this proceeding should not
. take place in January 1986. Further, we conclude that sanctions are ap-propriate against the People for failure to comply with our discovery orders.
In our September 7,1984 Memorandum and Order (unpublished),
'i issued following the first prehearing conference held August 22, we . adopted a schedule for this proceeding which the parties had proposed.
The parties' schedule called for discovery to take place between Novem-ber 12,1984, and February 15, 1985. It anticipated that this proceeding would be ready for hearing in March 1985. s
~
Our Memorandum and Order of February 7,1985 (unpublished), I ' issued following the second prehearing conference held January 25, 4 i 3 See unpubinhed Commission order of June 28,1984. 844 0 l
1 noted that the parties contemplated completion of discovery on May 1. We required a status report on March 1. Following receipt of that report, we approved a schedule agreed to by the parties which called for the filing of an agreed schedule for deposi-tions on July 31. We also set a schedule for filing of motions to compel j and suggested that a prehearing conference to consider discovery dis-1 putes be held on July 9,10, or 11.2 That schedule was subsequently 4 amended in a telephone conference. The prehearing conference was put j off until September 11 to accommodate the schedules of counsel.) l No discovery disputes arose between Kerr-McGee and Staff. Ilowever, i the People raised five matters with respect to Kerr McGee's discovery
! responses (we granted their motion with respect to one of these), and
< Kerr-McGee raised eleven matters with respect to the People's re-i sponses (we granted its motion with respect to nine of these and with-held a ruling on one other). See LBP-85-38,22 NRC 604 (1985). Kerr-
; McGee has responded pursuant to our Order in LBP-85-38, but the People have not. As a result, on November 6 we issued an Order to the People to show cause why their Contentions I and 6 should not be dis.
missed. We deal with the People's response to that Order below. In LBP-85-3E, we required further discovery responses by November
- 4. In our unpublished Memorandum and Order denying StalTs motion t to hold this proceeding in abeyance, we required that witness lists be ex-changed on November 8, depositions taken between November 8 and
,. 29, written testimony to be filed by December 13 and 20, and set the hearing to begin on January 6.
In our Order to Show Cause directed to the People referred to above, we noted that we were considering dismissing Contentions I and 6 be-cause the People's failure to comply with LBP-85 38 requiring additional discovery responses threatened this schedule. This Order was prompted 2 5ce unpubhshed Memorandum and order of May I.
- 3 one day pnor to the september ll conference, stafr ruled a trotion to hold this proceedmg in abeyance pending a decision from EPA as to whether action should be taken under the Comprehensive Environ.
- mental Response. Compensauon. and Liabihty Act (superfund) with respect to Kress Creek. stalTs res.
sons were that: F.rst, action under superfund could result in a more espeditious resolution of the Kress Creek situanon; and second. holdmg this proceeding in abeyance would conserve the parties' resources pendmg a decision by EP A. stafTs monon Indicated that it had mmated discussions with EPA on this subject. The People supported the monon and Kerr.McGee opposed in an unpubhshed Memorandum and order of september 26.
;r 1985. we denied stafTs monon and set a schedule leading to heanns m January 1986. We tonk this siep in order to provide for an early resolution of the queshon whether Kerr-McGee must prepare the cleanup plan which stafiseeks. Until the films of statTs motion, no mdicanon had been given to us that staff was concerned that resolution of the matters raised in its order to show Cause could not be enreds.
tiously achieved before us. 845 i f l
by a motion filed by Kerr-NicGee which requested that the schedule which we had established be deferred pending the People's compliance with LBP-85-38. We agreed with Kerr-NicGee that it could not proceed with the identification of witnesses and the scheduling of depositions in the absence of the People's discovery responses. j Our Order to Show Cause was issued on November 6. On that day, StalTeounsel requested a telephone conference because of the impending deadline (November 8) for the exchange of witness lists. We advised Staff counsel that, in light of the People's failure thus far to comply 'd th LBP-85-38 and our issuance of the Order to Show Cause, witness lists need not be exchanged on November 8 and that we would address the schedule with the parties following receipt of the People's response due to be filed November 15. To that end we held a telephone conference with the parties on l November 19 at which time we set a deadline of November 27 for the j parties to exchange witness lists on their affirmative cases together with
! a synopsis of each witness' testimony and defined the scope of the hear-l ing for this initial phase. (See unpublished Niemorandum and Order of November 20.)
l During that telephone conference, Kerr NicGee's counsel reiterated the motion to defer the schedule. This time counsel did not base the motion on the People's failure to comply with LBP-85-38. Rather coun-sei cited the intensive discovery taking place in the related State Court litigation, a matter which counsel also raised in his written motion. Counsel asserted that it was not possible to complete prehearing prepara-tions in this proceeding because of the demands of the State Court litiga-tion. Counsel now sought to defer further proceedings until completion of the State Court litigation, rather than until compliance by the People with our discovery orders. Thus, if the motion were granted, no further proceedings would take place until next Spring. During the telephone conference, counsel for the People and the Staff agreed, and counsel for Kerr-NicGee did not contest, that Contention 1, which raises the possibility that chemical pollutants may exist in Kress Creek which would need to be considered in a cleanup plan, was not in-volved in the subject matter to be addressed in this hearing.* Similarly, counsel for the People and the Staff agreed that Contention 6 is duplica-s tive of the StalTs Order to Show Cause and would not add anything new to the hearing. No other contentions have been admitted. 4 Presumably, this comenuon woukt come mta play in connecunn with hnganon or the content of any cleanup plan Kerr& Gee might be ordered to rrepare 846 i
l 4 t l Counsel for Kerr-McGee has vigorously opposed any suggestion from
! the People that the related West Chicago disposal proceeding bc
; deferred because of intensive activity in the State Court litigation. Coun-sel lacks credibility when he asserts that that activity demands that this proceeding be deferred. We have been unwilling to entertain this argu-ment from counsel for the People. We are no more inclined to entertain
- it from counsel for Kerr-McGee. In LBP-85-46,22 NRC 830. we denied
; a similar motion filed by the People in West Chicago. Just as we refused
; to allow the West Chicago proceeding to be held hostage to the State j Court litigation, we refuse to allow this proceeding to be held hostage to
^ l that litigation. Of more concern is the fact that counsel's motion to defer this pro-
. ; ceeding was based on an incorrect factual premise. Counsel could have t
readily ascertained this prior to filing the motion. Phone calls to counsel j for the People and the StalT would have revealed that the People's con-i tentions did not add anything to the hearing and that therefore the Peo-l j ple's discovery responses were not a precondition to proceeding under j the schedule which we had established. When making factual representa-tions, counsel may not make errors. Cf. Regents of the University of Cali-fornia (UCLA Research Reactor), LBP-84 22 and attachment,19 NRC 1383 (1984). By failing to verify the accuracy of his factual argument. counsel has created a delay. We will not grant him relief from the conse-quences of that delay. It is clear from these circumstances that there has been ample time to complete prehearing discovery in this proceeding. Nonetheless, we will permit depositions by all parties to be taken until December 31. We take this step because Staff has advised that it needs to take the deposition of
, William A. Nixon, the current Staff Proiect Manager, who will retire
+' prior to the hearing, and because Staff counsel has indicated that StatT needs depositions in order to discover the facts underlying Kerr-l l McGee's averments. In his November 27 letter identifying witnesses, counsel for Kerr-
> . McGee has elaborated Kerr McGee's legal position with respect to the averments stated in the answer to the Order to Show Cause. A review of this letter and StafTcounsel's letter of the same date also identifying wit-i nesses indicates that the issue posed by averment 10 - no order may be
- issued to Kerr-McGee without a complete analysis of the health risks of such an order - will be addressed by both StalT and Kerr-McGee. This is in accord with our Memorandum and Order of March 22,1985 (un- ;
4 published). However, we are unable to determine at this point whether i testimony on the remaining averments is appropriate at this phase of the i 847 i
l hearing. Consequently, we will entertain a motion to exclude some or all of Kerr-htcGee's testimony on the remaining averments. We set January 6 as the deadline for Gling written direct testimony on each party's affirmative case. Slotions to exclude testimony are to be
, Gled by January 13. Answers to such motions are to be delivered to the Board on January 20.
We will hear limited appearances the afternoon and early evening of
, January 20 at a location in or near West Chicago. The evidentiary hear-j ing will commence on January 21 at a location in the Chicago area to be I
announced. The People have addressed the Board's Order to Show Cause in a re-sponse Gled November 18,1985.5 The People's motion focuses on their position that their failure to comply with the Board-ordered discovery has not prejudiced Kerr-hicGee. The People base their argument that Kerr-htcGee endured no prejudice on the People's claim that the re-sponses sought would not have substantially added to Kerr hicGee's knowledge of factual matters at issue in the proceeding. The People cor-rectly conclude that their conduct has not impinged upon the Company's ability to prepare its admission requests and witness lists necessary for the upcoming hearing.
; Nonetheless, the People's arguments to rebut the Show Cause order are wholly inadequate. The Board issued the Show Cause order because the People did not comply with LDP-85-38. To avoid a default the People could easily have Gled an appropriate motion seeking relief from
; the filing dates. This is especially important if there were early indica-tions that it was not going to be possible to meet the Board's deadlines.
The People instead chose to do nothing. We cannot permit our orders to be ignored. Were we to do so, we would fail to discharge our responsibil-1 ity to properly manage this proceeding. Consequently, we now impose the sanction proposed in our Order to Show Cause. There is no question that the Board is vested with the authority and the obligation to mete out a sanction commensurate with the misconduct
, in a particular situation.* Indeed, another Board has aptly stated that "a licensing board is not expected to sit idly by when parties refuse to comply with its orders." Long Island Lighting Co. (Shoreham Nuclear l
Power Station, Unit 1), LBP-82-Il5,16 NRC 1923,1928 (1982). Ilow-l ever, the appeal board has directed licensing boards imposing sanctions to provide an explication of their reasons for doing so pursuant to the i 8 People's Response to Board's show Cause order and Kerr McGee's Motion to Estend $shedule, dated November 18. 1985. I i 6Starrment of Polwv on Conduct of Lnenung Pmcerdones. CLi-8l.S. l) %RC 451,4$4 (l98l L Ahhnugh l this is not a heenung proceeding. we find the guidance contained in the Pohcy statement apphcable ( l l 848
factors enunciated by the Commission in its 1981 Policy Statement. Commonwealth Edison Co. (Byron Nuclear Power Station, Units I and 2), ALAB-678,15 NRC 1400,1416-20 (1982). The pertinent portion of the policy statement is as follows: In selecting a sanction. boards should consider the relatise importance of the unmet obligation, its potential for harm to other parties or the orderly conduct of the pro-ceeding, whether its occurrence is an swlated incident or a part of a pattern of be-havior, the importance of the safety or environmental concerns raised by the party, and all of the circumstances. CLI-818, supra 13 NRC at 454. We take these seriatim. As stated' earlier, the Board's sanction arises from the People's failure to comply with our order compelling them to answer the disputed inter-rogatories. We were not whimsical when we required the People to re-spond. We acted after giving careful consideration to Kerr-SicGee's as-sertions of the nature and importance of the interrogatories as well as the People's bases for not responding. The Pecple.have an obligation to properly flesh out their contentions and to respect the Board's orders. These obliga: ions are to tse taken seriously. No party may be selective in meeting them liad the People simply provided responses to the inter-rogatories (which, because they do not require complicated answers, un-i doubtedly could have been' answered with less effort than has been ex-l pended on the objections), discovery could have concluded and the hear-
) ing held several months ago. The schedule of the proceeding has been impacted by the People's resistance to providing answers. Aforeoser, while we are not convinced that the People's actions could properly be characterized as part of a pattern, the incident is the most egregious example of the People's reluctance to adhere to schedules and to comply with our Orders.
I The People's failure to provide answers to these relatively simple in-l terrogatories leads us to conclude that they da not have any substantial basis for Contention I and are engaged in a " fishing expedition." Thus we weigh the factor citing the importance of th'e safety and environmen-tal concerns raised by Contention I in favor of imposing the sanction. Contention 6 is duplicative of the StalTs Show Cause Order which pre-cipitated the Kress Creek proceeding initially. Thus the issues contained l i in Contention 6 will be addressed through the Staff's efforts at hearing. l In considering all the circumstar.ces, we find the sanction of dismissal l of the People's Contentions 1 and 6 to be justilled. Although we are cognizant of the seriousness of imposing such a sanction, the factual sit-uation before us warrants such action. 849
c-4
+
- Order In consideration of the foregoing, it is, this 29th day of November
, ! 1985, ORDERED:
1 1. Kerr McGee's motion to hold this proceeding in abeyance is denied;
- 2. Depositions may be taken until December 31;
- 3. Prepared testimony on each party's affirmative case is to be filed 3? -
by January 6,1986;
- 4. Motions to exclude testimony are to be filed by January 13, and 7
i answers to such motions are to be delivered to the Board on January 20, i 1986; i 5. Limited appearances will be heard at a location to be announced
, f. -
in the vicinity of West Chicago the afternoon and early evening of Janu-
- ary 20,1986;
- 6. The hearing will commence at a location to be announced in the Chicago area on January 21, 1986, and conclude by January 31, 1986; and
- j. , , ,
'_ , 7. The People's Contentions 1 and 6 are dismissed.
, ~v v, . ',
..; ., j, ,
Tile ATOMIC SAFETY AND
.' .' . g...
; LICENSING BOARD n:.- ..s iQYjf s, ay[U .'gljg Dr. James II. Carpenter
, . ' . .;* 9. 7.5 ' ADMINISTR ATIVE JUDGE g.c ,: :w :n. ,
m' .3 .}7.;. : .. -
^- '
' Dr. Peter A. Morris
- ~ '
ADMINISTRATIVE JUDGE v 3 p r.. A . ; , Q .;i. ::$: A.:~.' ; .g::
. ? . ., E -
John II Frye, Ill, Chairman
$qu-sr ' ' g:_;.y ', ;Y ' ADMINISTRATIVE JUDG E -Sc ' .f 8 . ,
Bethesda, Maryland .9g -:,,, m..s . , 9;/q., ..< , .. November 29,1985
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' 'n:
l Directors' Decisions
!, Under i 10 CFR 2.206 .
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Cite as 22 NRC 851 (1985) DD 85-16 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
! OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS John G. Davis, Director In the Matter of Docket Nos. 70-1308 721-SP (10 C.F.R. l 2.206)
GENERAL ELECTRIC COMPANY (GE Morris Operation Spent Fuel Storage Facility) November 4,1985 The Director of the OITice of Nuclear Material Safety and Safeguards denies the Petition submitted by Catherine Thiel Quigg on behalf of the Illinois Safe Energy Alliance. The Petition requested that the Director of Nuclear Material Safety and Safeguards prepare an environmental impact statement for the General Electric Morris Operation and that the
. Commission reconsider a decision by the Licensing Board which author-
- ized the Director to renew the license of the General Electric Company t
to store spent (irradiated) fuel at the facility without requiring a Federal environmental impact statement. NEPA: ENVIRONMENTAL IMPACT STATEMENT NEPA does not require that an environmental impact statement be prepared when an action does not directly or indirectly bring about any change in the environmental status quo. l RULES OF PRACTICE: 9 2.206 PETITIONS I Section 2.206 procedures are not to be used as a vehicle for reconsid-eration of issues previously decided. , 851 1
NRC: RESPONSIBILITIES UNDER NEPA NEPA does not require the Commission to reconsider environmental decisions whenever new information developed subsequent to the action becomes available. Rather, it is unnecessary for an agency to reopen the NEPA record unless the new information would clearly man-date a change in result. NEPA: ENVIRONMENTAL IMPACT APPRAISAL The function of an environmental impact appraisal is to supply reasons why an action with potentially significant environmental impacts does not require a detailed environmental impact statement. Thus, to pass
. muster, the appraisal must simply reflect that a hard look was taken at
, the problem, identify the relevant areas of concern, and make a convinc-mg case that the impact is insignificant.
I DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206
~ '
m e I. ny , . . On August 29,1985, Catherine Thiel Quigg, on behalf of the Illinois s ,
~~
Safe Energy Alliance, filed a Petition pursuant to 10 C.F.R. s 2.206
;, - - requesting that the Director of the Office of Nuclear Material Safety and Q , ;) . - ., .e Safeguards (NMSS) prepare a Federal environmental impact statement WR ' '. # J for the General Electric Morris Operation (GEMO). The Petition also f/:p ' f %# '
requested that the Nuclear Regulatory Commission reconsider a decision i,Q . ;' in ' by the Licensing Board which authorized the Director of NMSS to
- .y - Y, - '
renew the license of the General Electric Company (GE) to store spent
~
(irradiated) fuel at the facility without requiring a Federal environmental impact statement (EIS). See LBP-82-14,15 NRC 530 (1982). The Peti-tioner asserts as a basis for this request that the granting of a license to
,f .5 ' /j. 4 Oi ; ; , y GEMO to store 750 tons of spent fuel until the year 2002 constituted a
' '; '.6 , - major Federal action significantly alTecting the quality of the human en-
'. (.C J '
vironment which requires a detailed environmental impact statement
. - L i pursuant to the National Environmental Policy Act (NEPA),42 U.S.C.
$J"' f 4332. According to the Petitioner, there have been substantial changes 7.pc.,d ?; l a [.'d '
- from the original proposed use of the GEMO facility, and environmental a j@y.@ , ,
, j assessments supporting the use of GEMO as a nuclear waste depository
,,i~ are seriously deficient.
' 'i ~ ,-
For the reasons given below, I have concluded that the Petitioner's re-7 ' quest should be denied. 852
. , h e-
~, [ r . , .
t
+
4 II. A brief historical review is helpful at this point to place the Petitioner's assertions in proper perspective. GEhlO was originally constructed as a pilot irradiated fuel reprocessing operation, known as the Slidwest Fuel Reprocessing Plant, pursuant to a construction permit issued by the Atomic Energy Commission (AEC) on December 28, 1967. Following construction, the facility was tested during a period of attempted cold op-eration using unitradiated uranium. The testing was not successfulin es-tablishing routine operation, and GE subsequently notified the AEC that it was suspending efTorts to operate the reprocessing facility. Ilowev-er, before completion of the cold testing, an application was submitted l by GE for the receipt and storage of irradiated light-water reactor fuel, i and Materials License SNM-1265 was issued to permit such activities on
; i I
December 27, 1971.' Following termination of the construction permit, a spent fuel storage license was reissued for a term of 5 years on August 23, 1974.2 An amendment to the license was issued on December 3. i 1975, that permitted an increase in the storage capacity of the facility j from 100 metric tons uranium (100 MTU) to 750 MTU of spent nuclear 1 fuel. An Environmental Impact Appraisal (EIA) was issued on Decem-i ber 3,1975, that considered this change. i j 1 By letter dated February 27,1979, GE applied for renewal of Materials
' s I
License No. SNM-1265 for a license term of 20 years. The Licensee sub-mitted a " Consolidated Safety Analysis Report for Morris Operation," NEDO-21326C (CSAR) dated January 1979, in support of the applica-tion. The Staff assessed the environmental aspects of the proposed license renewal in an EIA issued in June 1980. See NUREG-0695, "En-vironmental Impact Appraisal Related to the Renewal of Material ' License SNM-1265 for the Receipt, Storage and Transfer of Spent Fuel." On December 12, 1980, the Commission put into effect a new part to its regulations,10 C.F.R. Part 72, which covered the specific licensing requirements for the storage of spent fuel in an independent spent fuel
! storage installation, and stated that the licensing action related to the
- renewal of the license for the Morris Operation was to proceed in accord-
' ance with that part. 45 Fed. Reg. 74,693 (Nov.12,1980), corrected at 45 Fed. Reg. 78,623 (Nov. 26,1980). Accordingly, on January 12, p
8 A -Final Environmental Impact statement Related to the operation of the %dwest Fuel Recovery l Plant by General Electne Co." (Docket No. 50-268) was issued in December 1972 that, among other things, addressed storage of fuct at the facility. l 2 The hcense was issued pursuant to 10 Cf R. Part iO. Part 72. w;ich now covers the spectric liceris 1 requirements for the storage of spent fuel in an mdependent spent fuel storage installation. was not at that time a part of the Commission's regui.tions.
- i 853 i
I
1981, GE submitted an amendment to its application under 10 C.F.R. Part 72. A Safety Evaluation Report (SER) was issued in July 1981, documenting the StalTs review and evaluation of the safety of the con-tinued receipt, storage and transfer of spent nuclear fuel at the N1 orris Operation. See NUREG-0709, " Safety Evaluation Report Related to the Renewal of N1aterials License SNN1-1265 for the Receipt, Storage and Transfer of Spent Fuel Pursuant to 10 CFR Part 72." The State of Illinois and others intervened in the license renewal pro-ceeding, and the matter was referred to the Licensing Board for hearing. Following the conclusion of discovery, GE Gled a motion for summary
. disposition of all contentions of the only remaining intervenor, the State of Illinois. On Starch 2,1982, the Licensing Board granted GE's motion for summary disposition, and authorized the Director of NNISS to issue the license renewal. LBP-82-14, wpm.15 NRC at 530. A license was issued on Atay 4,1982.
III. The Petitioner contends that the decision permitting GE to store 750 tons of spent fuel at GEN 10 was a " major federal action significantly af-
~
.s . fecting the quality of the human environment," which, under NEPA, re-quires "a detailed environmental impact statement by the responsible government officials." In support of this contention, the Petitioner cites numerous examples of purported " environmental impacts" of GEN 10 on the human and physical environment and "de0ciencies" in previous
.. ! GEN 10 environmental assessments. Broadly characterized, these include:
D- ' (1) concerns about hydrologic and geologic conditions at GENIO, includ-
, ing effects from potential leaks from radwaste tanks, Gooding and earth- , y, .;.
u-J quakes; (2) the assertion that existing environmental assessments are i
~ # '
not in compliance with NEPA; (3) an assertion that the environmental i.mpact of dry storage at GENIO has never been evaluated; (4) assertions that the etTects of storing spent fuel with high burnup for long term at
', GEN 10 have not been and should be evaluated; (5) claims that the con-
.a >
, H sequences of " clandestine acts" against high-burnup spent fuel and
-l
-' y lN _i sabotage prevention technologies have not been but should be evaluat-9'*
' -l ed; and (6) an assertion that GE has evaded NEPA by going beyond its original contractual obligations to acquire new spent fuel storage customers.
* '" 4 In its 1982 decision, the Licensing Board considered and speci0cally
". ^ &
, rejected the claim that an EIS should be prepared. The State of Illinois a . had maintained, in Contention 7, that NRC "has an obligation under the National Environmental Policy Act (NEPA) 42 U.S.C. s 4332 854
+
m r---- - --&m- 4-4 x-N -- - - - __. - a (1969) to issue an environmental impact statement which will account for environmental impact of normal operation of the Morris facility " in holding that this contention presented no genuine triable issue of mate-rial fact, the Board noted that the Staff had concluded that the proposed licensing action would not significantly affect the quality of the human
! environment and that there would be no sigmficant environmental l impact from the proposed action it held that GE proposed only to con-tinue, without change, the activities that it had carried on, which were i licensed subsequent to NEPA and after environmental review under i
i that law. Citing Consumers Power Co. (Big Rock Point Plant), ALAB-
, 636,13 NRC 312 (1981), the Board stated that NEPA does not require that an EIS be prepared when an action does not directly or indirectly l j bring about any change in the environmental status quo. LBP-82-14, l
supra,15 NRC at 549-50. 1 Although the Petitioner makes numerous claims of purported "im-pacts" on the environment necessitating the preparation of an EIS, none
, of these claims presents any new information. All of these alleged "im- ; i pacts" were considered by the Licensing Board either explicitly, or im-j plicitly, as the Board had before it the EIA, CSAR and SER which ana-1 lyzed each of these issues.) The Commission has cautioned before that
{ 2.206 procedures are not to be used as a vehicle for reconsideration of l issues previously decided. General Public Utilities Nuclear Corp. (Three
' Mile Island Nuclear Station, Units 1 and 2), CL1-85-4, 21 NRC 561, 563 (1985), citing Consolidated Edison Co. of New York (Indian Point, Units I, 2, and 3), CLI-75-8, 2 NRC 173,177 (1975); Paci/7c Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2),
CLI-81-6,13 NRC 443,444 (1981); Rockford League of Women Voters
~ '
- v. NRC, 679 F.2d 1218 (7th Cir.1982). Furthermore, NEPA does not
- - require the Commission to reconsider environmental decisions whenev-
- er new information developed subsequent to the action becomes availa-ble. Rather, it is unnecessary for an agency to reopen the NEPA record unless the new information would clearly mandate a change in result.
See, e.g., Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units 1 and 2), DD 79-17,10 NRC 613, 621 (1979); Georgia _ e
~
l ^
. Power Co. (Alvin W. Vogtle Nuclear Plant, Units I and 2), DD-79-4,9 NRC 582, 584-85 (1979); see also Greene County Planning Board v. FPC, 559 F.2d 1227 (2d Cir.1976), cert. denied, 434 U.S.1086 (1978). For this reason, the Petitioner's argument that an EIS must be prepared
. -c must fail. 3 These issues are briefly treated in { IV, m/ra. 1 1 4 9 855 s
IV. The remainder of this Decision brie 0y describes the prior evaluations of the six general areas described above which the Petitioner raises.
- l. The Petitioner asserts that hydrologic and geologic conditions are
, unfavorable for high-level radioactive waste storage, that potential leaks i
from radwaste tanks could threaten the underlying drinking water aqui-fers and should be evaluated, that GEhlO lies between Hood plains and l should be evaluated for the probability and effects of flooding, and that l the potential for damage from earthquakes should be evaluated.
! NRC Response Sections 6.3 of the EIA and 7.3 of the SER discussed j the hydrological monitoring program at GENIO, and methods to control
! potential leaks. The Licensing Board considered risks of radiation from l loss of fuel basin cooling and leakage from fuel basins in dismissing Con-l tention 1(b)(ii). LBP-82-14, supra,15 NRC at 537. Sections 2.6,2.7 and 7.4 of the SER considered geologic conditions, including seismology and the efTects of potential earthquakes. The Licensing Board considered the ability of the hforris Operation to withstand earthquakes in dismissing Contention 1(b)(iii). LBP-82-14, supra,15 NRC at 537. The potential for Gooding was evaluated in s 2.8 of the SER.
- 2. The Petitioner asserts that environmental assessments are not in compliance with NEPA because they do not contain necessary geological and ecological data for determining potential adverse consequences fr'om the operation of GEhtO.
NRC Response: The Licensing Board had before it the existing envi-ronmental assessments, and did not indicate that it found these assess-ments inadequate. The detailed listing and examination of data that the Petitioner asserts should have been included in the environmental as-
?' sessments for GEN 10 need not be included in an environmental impact f fy b appraisal. An environmental impact appraisal (or environmental assess-I ment) is intended to be a concise document that brie 0y provides suf0-cient evidence and analysis to establish a basis for determining whether to prepare an EIS or to make a finding of no significant impact. See 10
.- C.F.R. 6 51.14(a). The function of an environmental impact appraisal is
?
to supply reasons why an action with potentially <ignificant environmen-4 l, - tal impacts does not require a detailed environmental impact statement. Thus, to pass muster, the appraisal must simply reflect that a hard look i: i ' ,g . * * ~ was taken at the problem, identify the relevant areas of concern, and
, , make a convincing case that the impact is insignificant. Duke Power Co.
(Amendment to Ntaterials License SNht-1773 - Transportation of
, - Spent Fuel from Oconee Nuclear Station for Storage at NicGuire Nuclear l 856
[:. . i i
Station), ALAB 651,14 NRC 307,317 (1981). The more detailed dis- ' i cussion which the Petitioner asserts should have been included in the GEMO enviror..nental assessments might be included in an environ-mental impact statement, if one were required, because an environmen-i tal impact statement must weigh all potential environmental effects and 9 alternatives, as its purpose is to assure that the taency has fully consid-ered environmental effects and alternatives to the proposed action and has incorporated all practical means to avoid or mitigate possible adverse environmental effects of the action. However, as noted before, the j Licensing Board explicitly found that such a detailed environmental impact statement did not need to be prepared in this instance. i 3. The Petitioner contends that the environmentalimpact of dry st'or-l age at GEMO has never been evaluated. NRC Response: The Licensing Board stated that dry storage would not be permitted under the license renewal. LBP-8214, supra,15 NRC at 540.4 4 The Petitioner contends that the long-term storage of spent fuel with high burnup at GEMO has not been evaluated, and should be eval-uated, including impact on local water supplies and potential for in-l creased occupational radiation exposure. l NRC Response: The SER explicitly consid:rs spent fuel with burnup of 44,000 megawatt-days per metric ton of uranium (mwd /MTU). NUREG-0709 at-3-1, ! 3.2. GE's license for the Morris Operation ex-plicitly prohibits storing spent fuel with a burnup higher than this. Water use for this fuel was specifically considered in the EIA in { 3.3. The Licensing Board specifically considered the effects of occupational expo-sure to radiation in dismissing Contention 3. LBP-82-14, supra,15 NRC at 539-42. 5. The Petitioner contends that sabotage prevention technologies for GEMO need to be evaluated, and the consequences of terrorist attack against high-burnup spent fuel have not been evaluated. NRC Response: The Licensee is required to comply with applicable
~
requirements in 10 C.F.R. Parts 72 and 73 and implement a security
~
+
plan to provide physical protection of the facility and licensed material. 4 The Pentioner complams that the Department or Energy, m cooperation with the Tennessee v ll a ey f Authonty, conducted a dry storage cask expenment at GEMo. The Licensms Board's statement that dry storage would not be permitted does not mean that GEMO is prohibited from conductmg tests such as this under condutons routmely encountered at GEMo in the receipt and shipment of n'ent riact m dry shippmg casks. Ttus test was conducted pursu:nt to 10 C F R. { 72.35. which <tes not require a rormal NRC review and approval Nonetheless. NRC statimet with the GE stafr m August 1984. etam-
' ined the REA.2023 cask used m testms. and determmed that GE was actmg m accordance with tL: con.
ditions orits hcense and NRC regulations. 857 1 y . , , , . . . ,- ~ + . ~ . .. i
- _ _ _ - . A-.,_. . , _ _ _ _ _ . _ , . . . _ _ _ . _ _ . _ _ _ . . - - _ . . _ _ _ _ _ . _ . . . _ _ _ _. . _ - , . . , . _ _ , . . .
The Licensee has in place a physical security plan which meets these re-quirements. GE's license for the N1 orris Operation does not allow storage
; of spent fuel with a higher burnup than 44,000 N!Wd/NITU, and the Staff considered and found adequate GE's physical protection program for the Niorris Operation for spent fuel up to this level of burnup in s 11 of the SER. The Licensing Board considered the Staff's assessment of GE's physical protection program in dismissing Contentions 1(b)(iv) and 2. LBP-82-14, supra,15 NRC at 538-39.
- 6. The Petitioner contends that GE has evaded NEPA by going beyond its original contractual obligations as the Niidwest Fuel Reproc-essing Plant to acquire new spent fuel storage customers for the long term. According to the Petitioner, the EIA states that GE was not com-mitted to future acceptance of spent fuel beyond 350 tons, so that the 400 tons now being shipped to GEN!O go beyond the original GE reproc-i essing contracts and constitute a change in the nature and scope of the l GEN 10 operation requiring an environmental impact statement.
NRC Response: GENIO is licensed to receive 750 megawatt-tons of uranium (NiTU), and the EIA was prepared on the basis of that capacity. i Therefore, regardless of whether or not it has gone beyond its original contractual obligations, it is operating within its licensed capacity and
._- .f the scope of the operation has not changed.
1 0 v. _a ,t For the reasons stated above, the Petitioner's request has been
- 1. denied. The Petitioner has presented no new information which was not I i '
considered at the time of the renewal of the license. Accordingly, initia. o tion of further proceedings is not appropriate.
#. As provided by 10 C.F.R. f 2.206(c), a copy of this Decision will be
- - filed with the Secretary for the Commission's review.
l l ( 'i i
- . ? Original signed by
( , Donald B. Stausshardt for John G. Davis, Director Office of Nuclear Niaterial Safety l ,
,- and Safeguards l
Dated at Silver Spring, Ataryland, i - this 4th day of November 1985. i i 858 l . i , c.. :
l Cite as 22 NRC 859 (1985) DD 85-17 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
! OFFICE OF NUCLEAR REACTOR REGULATION
; Darrell G. Eisenhut, Acting Director i
in the Matter of Docket No. 50 309
, (10 C.F.R. I 2.206)
MAINE YANKEE ATOMIC POWER COMPANY (Maine Yankee Atomic Power Station) November 12,1985
; The Acting Director of the Office of Nuclear Reactor Regulation i denies the petition of the State of Maine asserting that there were a number of alleged deficiencies at the. Maine Yankee Atomic Power Sta-
.l tion of the Maine Yankee Atomic Power Company associated with envi-ronmental qualification of electrical equipment that represented a hazard I to continued safe operation of the facility.
I
; TECHNICAL ISSUE DISCUSSED: ENVIRONMENTAL l
4 QUALIFICATION OF ELECTRICAL EQUIPMENT The Licensee's program for environmental qualification of electrical equipment complies with the requirements of 10 C.F.R. l 50.49. Pro-posed resolutions for each of the environmental deficiencies identiGed
- are acceptable. Continued operation of the facility until implementation i
j of the program is complete will not result in undue risk to the public health and safety. 859 i l f t.
i DIRECTOR'S DECISION UNDER 10 C.F.R. 9 2.206 I INTRODUCTION On November 19, 1984, the Nuclear Regulatory Commission (NRC)
' promulgated its final rule on environmental qualification of electrical equipment (49 Fed. Reg. 45,571). The rule requires licensees of operat-ing power plants to meet the schedule for environmental qualification j
set out in the rule, specifically in 10 C.F.R. l 50.49(g). In adopting the i fmal rule, the Commission directed the Director of the Office of Nuclear Reactor Regulation to consider, pursuant to 10 C.F.R. f 2.206, four comments filed in response to the Notice of Proposed Rulemaking issued on March 7, 1984 (49 Fed. Reg. 8445). Each of the four com-i ments alleged equipment qualification deficiencies at specific plants. The
] Commission's action had the effect of requiring the Director of the Office of Nuclear Reactor Regulation to issue a formal decision pursuant to j 2.206 considering the plant-specific comments filed in the rulemak-ing noted above. The comments filed by the State of Maine through its Attorney General (hereinafter referred to as Petitioner) dated June 26, 1984, were among those identified-by the Commission for consideration.
On January 4,1985, I advised the Petitioner by letter that I would issue a formal decision regarding the Petitioner's comments concerning the Maine Yankee Atomic Power Station in the reasonably near future. My j _ decision in this matter follows. DISCUSSION
' ~
Petitioner's comments mainly relate to alleged inadequacies in a _ . ?, number of equipment qualification items identified by the Franklin Re-search Center (FRC) and set out in its Technical Evaluation Report (TER) for the Maine Yankee Atomic Power Station of the Maine Yankee Atomic Power Company (Licensee). It is important to recognize m that the FRC study to which the Petitioner refers was one initiated by the Nuclear Regulatory Commission itself to assist it in assessing the ad-equacy of the Licensee's equipment qualification program for the Maine Yankee Station. The TER provided by FRC has been available to the t i - 4 , . - J t i 1 1 860 l - a Q n. l . ., .-. -
NRC Staff since February 23, 1983, and has been specifically addressed by both the Licensee and the NRC Staff.' On February 8,1979, the NRC Office of Inspection and Enforcement issued IE Bulletin 79-01, " Environmental Qualification of Class IE Equipment." This Bulletin, together with IE Circular 78-08 (issued on May 31,1978) requested afTected licensees to perform reviews to assess
!' the adequacy of their environmental qualification programs. The NRC StalTs review of this area is discussed in a Safety Evaluation (SE) dated
, June 1,1981, and resulted in further requests for information from the Licensee. Following submittal by the Licensee of additional information on September 2,1981, March 5,1982, February 11,1982, June 24,
! 1982, and October 18, 1982, the NRC Staff asked FRC to evaluate that information in order to: (1) identify all cases where the Licensee's re-sponse did not resolve the significant qualification issues (2) evaluate the Licensee's qualification documentation in accordance with estab-lished criteria to determine which equipment had adequate documenta-tion and which did not, and (3) evaluate the Licensee's qualification documentation for safety-related electrical equipment located in harsh environments consistent with TMI " Lessons Learned" implementation.
A TER was issued by FRC on February 23,1983, to document its evalu-i ation. It is this document to which the Petitioner makes reference. A j second SE was subsequently prepared by the NRC Staff and issued to l the Licensee April 8,1983, with the FRC TER as an attachment.2 This TER identitled a number of electrical equipment environmental qualifi-cation deficiencies and the SE concurred with the bases and findings of the TER. Based on these findings, the Staff requested the Licensee to provide its plans for qualification or replacement of certain items and jus-tification for continued operation in the near term. A meeting was held with the Licensee on April 4,1984, in order to discuss the Licensee's proposed method of resolving the environmental
; qualification deficiencies identified in the 1983 SE and FRC TER.
, During this meeting with the Licensee, a proposed resolution for each of these deficiencies was discussed and the NRC StalT found the Licen-I see's approach for resolving them acceptable. The approach described by 1
The background associated with the NRC staff's review of the Licensee's equipment quahrication pra-
' gram for the Maine Yankee station is provided m Attachment 1. safety Evaluation by the otTice of Nuclear Reactor Regulation. Maine Yankee Atomic Power Company. Maine Yankee Atome: Power sia-tion. Docket No. 50-309. issued December 13.1984 (hereinafter rererred to as the Mame Yankee sEL l 2 safety Evaluation for Environmental Quah6 cation or safety Related Electncal Equipment. Docket No e
50-309, Apnl 8.1983. with Technical Evaluation Report entitled " Review or Licensee's Resolution or i outstanding Issues rrom NRC Equipment Environmental Quahncation safety Eve!uation Reports (F il and B-60), Maine Yankee Atomic Power Company. Mame Yankee Atomic Power station." Frankhn Research Center. February 23,1983 861
the Licensee for addressing and resolving the identified de0ciencies included replacing equipment, performing additional analyses, utilizing additional qualification documentation beyond that reviewed by FRC, obtaining additional qualification documentation, or determining that some equipment was outside the scope of 10 C.F.R. { 50.49 and there-fore not required to be environmentally qualified. The discussions also included the Licensee's general methodology for compliance with 5 50.49 and justification for continued operation with those equipment items for which environmental quali0 cation was not yet complete.) Subsequent to the April 4,1984 meeting, the Licensee provided fur-ther information for resolution of the identified deficiencies by its letter dated May 31, 1984. With its review of this submittal, the NRC Staff completed its evaluation of the acceptability of the Licensee's electrical equipment environmental qualification program, inch. ding the type of documentation the Licensee indicated it has retained. The Staff's find-- 4 ings are found in the attached Maine Yankee SE dated December 13.
' 1984 (Attachment 1).
The resolution of Petitioner's comments for specific items of equip-ment identified by FRC and discussed in the TER is contained in Attach-ment 2. Resolution is complete for all items identified in the FRC TER; 1 therefore, justifications for continued operation are not required.
, U in addition to specific items raised in the TER prepared by FRC, Peti-I tioner identifies two other general concerns regarding environmental qualification of equipment at the Maine Yankee Station. First, the Peti-tioner asserts that information in the record was incomplete and cursory,
,} thereby making it extremely difficult to conduct any meaningful analy-
- . .,. - - lr,j ses. Petitioner argues that this failing made it diflicult to comment on
.O the adequacy of the qualification review. The Petitioner further claims
;d that the Licensee's responses to the TER are inadequate, unsubstantiat-ed, or nonexistent and, consequently, neither the Petitioner nor the
-]
NRC is in a position to ascertain whether the concerns raised in the i TER have been adequately addressed. The Petitioner was not present at
, the meetings at which the Licensee and the NRC Staff discussed resolu-
;I tions of the items identified in the TER and also apparently did not have
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A Gnal rule on environmental quahncation of electncal equipment important to safety became effec.
< %. tive on February 22. 1983 (48 Fed. Res. 2729). This rule.10 C F.R. t 50.49, speciGes the requirements
, ' .'] or electncal equipment important to safety located in a harsh environment. Effective November 19.
s
, i ,'. , ) 1984, this rule was amended to remove the June 30.1982 deadhne for environmental quahGcation of
, -- l electrical equipment imposed by previous Commission order and estabhshed a new date for Gnal envi-7 i ronmental quahGcation of electncal equipment (49 Fed. Reg. 45,571). Accordmgly. March 31. 1985
'] was estabbshed as the new deadhne for the Maine Yankee Atomic Power station. All open items were
.; resolved by the t.icensee pnor to March 31.1985.
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- 1. . _
i 7 i l I' Maine Yankee's letter to the NRC of May 31,1984, wherein the Licen-see responded to each concern raised in the TER. Thus, in fact, adequate information was available to the Staff to permit it to assess the adequacy of the resolutions proposed for items identified in the TER. Second, Petitioner claims that the scope of review by the NRC was timited. Specincally, the Petitioner alleges that there was no independent NRC analysis or determination that the Licensee's responses to the TER warrant a Onding of environmental quali0 cation. The approaches described by the Licensee for addressing and resolving the identi0ed deficiencies included replacing equipment, performing additional analy-ses, utilizing ablitional quali0 cation documentation beyond that
. . reviewed by FRC, and 9termining that some equipment is outside the
! scope of f 50.49 and therefore is not required to be environmentally J
I qualified. Equipment located in a mild environment is an example of
- } this latter category. The NRC Staff discussed the proposed resolutions in detail on an item-by-item basis with the Licensee during the meeting of
( j April 4,1984. Replacing or exempting equipment, for an acceptable reason, is clearly an acceptable method for resolving environmental qual. i incation deficiencies. The more lengthy discussions with the Licensee concerned the use of additional analyses 'or documentation. In the at-
; tached Maine Yankee SE, the NRC Staff has documented its review and evaluation of the Licensee's electrical equipment environmental qualin-cation program. The result of that evaluation was that the Staff found 1
! the Licensee's qualification program acceptable.
1 Clearly, the Staff has conducted an independent view of the Licensee's i environmental qualification program and has documented that review. [ Prior to reaching such a conclusion with respect to the environmental
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qualification programs at several other plants, the Staff has' performed { , j audits of the Licensee's documentation. This action was taken because the Staff had concerns regarding the acceptability of the programs being
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- implemented by the associated licensees. However, the StalT does not have a similar concern for the Maine Yankee facility and believes it is
- , reasonable to conclude that the considerable efforts expended by the 4
.q ,
l Maine Yankee Atomic Power Company have substantially enhanced the
, a- ; i status of environmental qualification of the electrical equipment at the l Maine Yankee Atomic Power Station.
I Nonetheless, a follow-on implementation review will be performed by personnel in NRC Region I as part of the Staff's overall effort to monitor implementation of all licensees' environmental qualification programs.
- t. 4 A schedule has not yet been established for the Maine Yankee imple-i mentation review. The primary objective of this review will be to verify
, that the Licensee's files contain the appropriate analyses and other 863 l-4 i
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necessary documentation to support the Licensee's conclusion that the equipment is properly qualified. The inspections will also provide rea-sonable assurance that the Licensee's program for surveillance and main-tenance of environmentally qualified equipment is adequate to assure t!.at this equipment is maintained in the as-analyzed or as-tested condi-tion. The method used for tracking periodic replacement parts, and implementation of the Licensee's commitments and actions, e.g., regard-ing replacement of equipment, will also be verified. l CONCLUSION in summary, the NRC Staff has reviewed each of the items relied upon by the Petitioner. The FRC TER dated February 23,1983, and NRC's letter to the Licensee dated April 8,1983, do indicate various en-
; vironmental qualification deficiencies. Those deficiencies were identified
, by the FRC and the NRC Staffin reviewing the information available at j that time. Thus, the Petitioner has not raised any environmental qualifi-cation issues of which the Staff was unaware.
l Since the TER was issued, the Licensee has provided considerable I additional information regarding the identified electrical equipment defi-ciencies and has proposed a resolution of each of them that has been found acceptable by the Staff. The attached Maine Yankee SE dated December 13, 1984, documents the Staffs review which concludes that the Licensee's electrical equipment qualification program complies with the requirements of Q 50.49, and that the proposed resolutions for each of the environmental qualification deficiencies identified in the FRC
- TER are acceptable. The Staff will continue to monitor the Licensee's progress in implementing its environmental qualification program. Con-sequently, I conclude that the overall state of equipment qualification of the Maine Yankee facility is adequate to assure the public health and safety Darrell G. Eisenhut, Acting Director Office of Nuclear Reactor Regulation Dated at Bethesda, Maryland, this 12th day of November 1985.
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[ Attachment I has been omitted from this pubhcation but may be foun in the NRC Public Document Room,1717 H Street, NW, Washington, DC 20555.] l ATTACHMENT 2 i
. RESOLUTION OF PETITIONER'S COMMENTS REGARDIN j THE FRANKLIN RESEARCH CENTER'S TECllNICAL t EVALUATION REPORT i
aryPetitioner's 23,1983 specific comments regarding items identi6ed in the Febru-FRC TER and Maine Yankee's resolutions for each of those items are listed below. Those resolutions have been reviewed by
, the Staff and found to be acceptable.
j 1. Item 3: j FRC found that Maine Yankee had not adequately eval-
- uated the aging degradation of a limit switch in the primary auxili-ary building. In its May 20,1983 response to the April 8,1983 SE, Maine Yankee still listed the limit switch as unqualiGed.
j 1 in its resolution of the TER items, Maine Yankee, by letter dated I May 31,1984, stated that the limit switch had been replaced with a qual tied limit switch, with appropriate documentation on Hie.
- 2. Item 6:
FRC found that Maine Yankee had not established that
, the terminal block located in the primary auxiliary building at eleva-tion 11'0" was environmentally qualiGed.
In its resolution of TER items, Maine Yankee, in its May 31, 1984 letter, stated that qualineation documentation, not previously available, had been obtained and was on file at Maine Yankee to establish qualiSca-
; tion for this item.
- 3. Item 8:
FRC found that Maine Yankee had not established that electrical cable for power located in the containment spray pump
- area had been qualified for steam exposure.
Maine Yankee stated, in its May 31, 1984 letter, that qualified docu-mentation not previously available had been obtained and was on Gle at Maine Yankee to support qualification of this equipment.
! 4. Item 9:
i FRC found that Maine Yankee had not provided sufficient I information to establish that installed cables located in the co ment spray pump area were identical to the tested cables. 865 r
.. . . ,-.n. .. .. , .-. -
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N!aine Yankee stated, in its Ntay 31,1984 letter, that the cable used at N1aine Yankee has insulation of a sufficiently similar type as that quali-fled by Okonite Report No. NQRN-3. Thus, applicable portions of that report had been used to qualify the cable used at N1aine Yankee.
- 5. Item 12: FRC found that 51aine Yankee had not established that certain power cables located in the reactor containment were suffi-ciently similar to those used in qualification tests.
51aine Yankee stated, in its Ntay 31, 1984 letter, that the original documentation reviewed by FRC had been superseded by documenta-tion traceable to IEEE 383-1974 testing of the above-mentioned cables, thus establishing qualification.
- 6. Item 14: FRC found that 51aine Iankee had not established that electrical cables installed in the reactor containment at elevation 3'0" which provides electrical power to control valves were suffi-ciently similar to those used in qualification tests.
Staine Yankee stated, in its Stay 31,1984 letter, that the cable manu-facturer had verified, by letter dated Starch 16, 1984, that the cable tested is identical to the purchased cable.
, 7. Item 15: FRC found for electrical cable for instruments at eleva-
! tion 20'0" of the reactor containment that, although 51aine Yankee had provided results for tests enveloping the accident conditions of the Surry plant, the testing did not envelope the 51aine Yankee j accident profile, or radiation requirements. Thus, qualification had not been established.
51aine Yankee, in its Stay 31, 1984 letter, stated that additional qual-ification documentation not previously available to FRC was obtained and is on file at 51aine Yankee. The new documentation establishes qualification. j 8. Item 16: FRC found that 51aine Yankee had not provided a j schedule for the replacement of an unoualified motorized valve 8 actuator located in the primary auxiliary building. 51aine Yankee has replaced the actuator and, in its Stay 31, 1984 letter, stated that its Documentation Review Package is now adequate to l show full qualification for the new piece of equipment. j 9. Item 18: FRC found that, for a motorized valve actuator located in the cantainment, the aging degradation had not been evaluated j adequately and the criteria regarding duration had not been ade-quately established. 866
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s Maine Yankee stated, in its May 31,1984 letter, that the equipment reviewed by FRC has been replaced by new equipment for which it has adequate equipment qualification documentation on Gle.
- 10. Item 23: FRC found that Maine Yankee had not provided a schedule for the replacement of an environmentally unqualified motorized valve actuator located in the containment.
Maine Yankee has replaced the actuator and, in its May 31, 1984 letter, stated that its Documentation Review Package is now adequate to
, show full qualification for the new piece of equipment.
; 11. . Item 37: FRC found that Maine Yankee had not established qual-ification for electrical penetration located in the reactor contain-ment elevation 46'0" In its May 31,1984 letter, Maine Yankee stated that its Qualification Documentation Review Package now contains sufficient new documen-tation to establish environmental qualification for the electrical penetration.
- 12. Item 38: FRC found that electrical cable installed at elevation 46'0" of the reactor containment was not properly qualified.
, This equipment is not in the scope of 10 C.F.R. { 50.49 and has been deleted from the Master List because it has no required Design Basis
- Accident usage. The distribution cabinets are used for power distribution l to pressurizer heaters which are not required for accident mitigation.
j 13. Item 39: FRC found that qualification had not been established I for the hydrogen analyzer located at elevation Il'0* in the primary auxiliary building. Maine Yankee stated, in its May 31, 1984 letter, that this equipment 3 is not in the scope of f 50.49 because it has been relocated to a mild en-I vironment. This hydrogen analyzer has been relocated to an area in the Primary Auxiliary Building which is removed from the radiation lesels due to the charging pumps and recirculation piping and is accessible to
- 4 personnel. A qualified hydrogen analyzer (Item 43) has been installed
, and is available as an alternate indication. Also, in its May 31, 1984
. i letter, Maine Yankee stated the following concerning qualification of the
; backup hydrogen analyzer (Item 43):
Quahlication of this installed equipment has been demonstrated by type testing. The quahfication documentation has been obtained and is on file at MYAPCo (QDR-5436-038-1816). 1 867 9
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- 14. Item 44: FRC found that qualification had not been established for a motor control center located at elevation 30'0* in the contain-4 ment spray pump area.
Maine Yankee, in its May 31,1984 letter, stated that this equipment l is not in the scope of { 50.49 and has been deleted from the Master List because it is located in a mild environment. Since the submitta! of the documentation for the TER, a calculation of the post-accident radiation dose has been performed for the specific location of the motor control center. The revised calculation demonstrates that the actual radiation
; dose is less than 1 x 10' R. This is not considered to be a harsh environment.
- 15. Item 45: FRC found that Maine Yankee had not established qual-ification for a radiation detector located in the reactor containment
! at the top of the crane wall.
! In its May 31,1984 letter, Maine Yankee stated that sufficient docu-i mentation which addresses similarity, aging and radiation criteria is now on file to demonstrate qualification for this equipment.
- 16. Item 47: FRC found that qualification had not been established for a solenoid valve located in the reactor containment at elevation 51'7*
- Maine Yankee, in its May 31,1984 letter, stated that a more compre-hensive test report has been obtained which establishes qualification.
- 17. Item 51: FRC found that qualification had not been established for a solenoid valve located at elevation 11'0* in the primary auxili-C'. '
; ary building.
Maine Yankee, in its May 31,1984 letter, stated, as in item 47, that a b , more comprehensive report has been obtained which demonstrates qual-ification for the specified Maine Yankee normal service and accident [
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environment.
- 18. Item 64: FRC found that qualification had not been established for an electric motor located in the containment spray pumps area
.. at elevation 20'0* because qualification documentation was not i adequate.
l Maine Yankee, in its May 31,1984 letter, stated the following: Additional qualiGcation documentation, not previously available to FRC, has been
' obtained and is on Gle at MYAPCo (QDR-5436-038-0303). The quahfication has
[ , been established by engineering evaluation of the data provided in: 1) Siemens-
- i Allis Test Report No. NQ7304852, " Equipment Qualification for Class IE Safety.
Related Service in Power Generation Station, dated February 13,1981 (FRC
Reference:
PGR s19), and 2) Acton Test Report No. 15564 22. " Analysis of 868
. > we sen. s . + s,
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r f Class IE Quahfication of Siemens-Alhs Form Wound Containment Spray Pump Motors for Maine Yankee Atomic Power Station", dated April 7,1981. The quahfication documentation provides parameter by parameter analysis to demonstrate that the equipment is quahGed for the specified Maine Yankee normal service and accident environmental conditions.
- 19. Items 65 and .66: FRC found that equipment qualification had not been established for an electric motor located in the primary auxili-
; ary building at elevation 21'0* and another electric motor located i in containment spray pump area at elevation 14'6" because similari-ty had not been established between the tested insulation systems and the installed equipment insulation systems.
+ Maine Yankee, in its May 31,1984 letter, stated the following: The motors at Maine Yankee are manufactured by the Westinghouse Large Motor Division for Class IE apphcations as specified by the NSSS sendor Combustion En. ] gineering. The qualification is based on Westinghouse Report WCAP-8754, "Ensi-r ronmental QuahGcation of Class IE Motors for Nuclear Out-of-Containment Use" (FRC
Reference:
PGR #604). This report and Revision I to the report clearly 4 demonstrate traceabdity to Maine Yankee plant. Section 2 of the WCAP Report j states the following: "The same insulating system (Thermalastic Epoxyl and only
; two different types of bearing are used on all nucicar Class IE motors manufactured by Westinghouse Large Motor Division. Therefore, a generic quahfication can be i done to quahfy all such motors to the requirements of IEEE 323-1974." Therefore, the Maine Yankee equipment is traceable to the WCAP Report.
20, Item 67: FRC found that, for an electric motor located in the reactor containment at elevation 24'0", qualification had not been established because similarity between installed equipment and test
; specimens had not been adequately established.
l In its May 31,1984 letter, Maine Yankee stated the following:
! Similanty between Maine Yankee and tested equipment has been estabhshed in Quahncation Documentation Review package QDR-5436-038-0341. The QDR i- ,
groups all the previous data reviewed by FRC into a concise and auditable package l' that demonstrates quahGcation. In addition to the previously submitted data, the l- , , QDR provides traceability between ma crials of construction of the motor (nomex, kapton, ML polyimide enamel magnet wires, DC997 sihcone varmsh) to motors tested to IEEE 334-1974, IEEE 323-1974. The vendor (Rchance) has certined that l the Maine Yankee motors are of the same construction as the tested motor. 1. 3 l 4 I 869
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Cite as 22 NRC 870 (1985) DD-85-18 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION James Knight, Acting Director In the Matter of Docket Nos. 50-352 50-353 i (10 C.F.R. I 2.206) i PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2) November 12,1985 t
-j The Acting Director of Nuclear Reactor Regulation denies a petition r: under 10 C.F.R. 2.206 which requested that the NRC stay the activities
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of the Delaware River Basin Commission until the Licensee complied
; . with certain environmental license conditions.
~a s .. 6 _
s . _, , , , '. , .-; NRC: JURISDICTION .;w ,
; The NRC has no authority over the Delaware River Basin Commis-sion (DRBC) and, consequently, may not stay any of its activities or cause any applications before the DRBC to be withdrawn.
LICENSE CONDITIONS Licensees are expected to adhere to all NRC requirements and license
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conditions. However, NRC action is inappropriate in the absence of any
, present violation of a regulation or license condition.
.c -
% J ee 870 l
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1 DIRECTOR'S DECISION UNDER 10 C.F.R. 0 2.206 On October 1,1985, Robert L. Anthony (Petitioner) filed a petition with the Nuclear Regulatory Commission (NRC) asking the NRC to take certain actions with respect to applications filed by the Philadelphia Electric Company (Licensee) with the Delaware River Basin Commis-sion (DRBC) related to the operation ofits Limerick Nuclear Generating i Station, Unit 1 (the facility). Principally, Petitioner requested that the i NRC stay DRBC consideration of the Licensee's applications and require that the applications be withdrawn until Licensee complies with certain environmental license conditions imposed by the NRC. The Commission has referred this matter to the Office of Nuclear Reactor Regulation for its consideration pursuant to 10 C.F.R. s 2.206 For the reasons stated in this Decision, the Petitioner's request is denied. t On September 20, 1985, the Licensee filed with the DRBC applica-tions to modify current restraints established by the DRBC upon the Licensee regarding the withdrawal of water from the Schuylkill River as-
- sociated with the operation of the Limerick facility. Petitioner seeks to have the NRC stay consideration by the DRBC of the Licensee's applica-
, ,tions to the DRBC. The DRBC is a regional agency created by an inter-governmental compact and given Federal ratification by a joint resolution of Congress.' The NRC has no authority over the activities of the DRBC j and consequently may not stay any of its activities or cause any applica-l
, tions before the DRBC to be withdrawn. The NRC is thus not in a posi-I tion to grant the relief sought by Petitioner regarding this aspect of its petition.2 See Wabash Valley Power Association (Marble Hill Nuclear'
; Generating Station, Units 1 and 2), DD-81-18,14 NRC 925, 927 1 '
(1981). Petitioner also has concerns regarding the Licensee's compliance with certain environmental license conditions appended to Facility Operating License No. NPF-27 which the NRC issued to the Licensee on October
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26, 1984, to authorize operation of the Limerick facility. License No. NPF-27 was superseded by Facility Operating License No. NPF-39, which was issued on August 8,1985, to permit full-power operation of the facility. License lio. NPF-39 includes the same environmental license conditions as we e contained in License No. NPF-27. Petitioner appears to be concernec that the Licensee will receive authorizations 4 I j i See DD-8213.16 NRC 2115. 2117 n 3 (1982L j 2 Petitioner has recognized the need to Gle his corKerns directly with the DRBC by submittmg a wntren i document to the DRBC on october 1.190. 871 t i 4 i _ . .. ~
i
, from the DRBC regarding water usage which permit it to operate in a
' manner in violation of the environmental license conditions. Such a course of action by the Licensee is certainly a possibility, albeit highly speculative at this point in time. Petitioner alleges no present violations by the Licensee of any NRC requirements including the license condi-tions. I have recently addressed in a Director's Decision adherence by e
this Licensee to its environmental license conditions.2 The issue in that matter was the potential use by the Licensee of alternate sources of sup-
, piemental cooling water for the Limerick facility and a concern on the part of that Petitioner that such alternate use would not receive NRC scrutiny. I noted there that the requirements placed upon the Licensee by the terms ofits Environmental Protection Plan (EPP) to assure that activities undertaken by the Licensee affecting the environment would receive appropriate review. The language of that Decision is appropriate-
- in this matter and bears repeating here:
l 3 The requirements of the EPP are triggered at the time of the Licensee's proposed action. The Licensee must meet these requirements and take the appropri.ite actions prior to taking the action itself. Compliance with these requirements in a timely manner so as to gain the relief of any changes sought is a matter for the Licensee's consideration. Consequently, to the extent that the Licensee wishes to operate the Limerick facility in a mode different from that presently represented in its license ap-plication, it must examine that proposed change in light of the terms of the license
, conditions set out above. It must make the appropriate determinations and. should the activity involve an unreviewed environmental question. the Licensee must obtain prior NRC approval. Should the activity involve a change in the EPP. a
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license amendment is required. These provisions of the license for the Limerick
* . Unit I facility provxie adequate assurance that any change contemplated by the
?
Licensee having potential environmental implications will be appropriately dealt with.
. DD-85-8,21 NRC at 1566.
In summary, the NRC is without authority to stay DRBC considera-
! tions with respect to water quality matters placed before it by this Licen-see. Furthermore, in the absence of any present violation of any regula-tion or license condition, I do not consider it appropriate to take any action in this matter. I do, however, fully expect the Licensee to adhere l
l , j, to all NRC requirements and license conditions, including those which specifically govern the types of changes which might be forthcoming from any consideration given by DRBC to the Licensee's current propos-l al regarding water use for its Limerick facility. f l 3 DD-85-8. 21 NRC 1561 (1985). l i l 872 i
Accordingly, the Petitioner's request for action pursuant to 10 C.F.R.
} 2.206 is denied. As provided by 10 C.F.R. 2.206(c), a copy of this De-cision will be filed with the Secretary for the Commission's review.
i James P. Knight, Acting
' Director Office of Nuclear Reactor Regulation
, Dated at Bethesda, Maryland,
- this 12th day of November 1985.
t 1 i t i i l 1 i 873 f
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m .- - _..-, - . , ,
. . . a Jo Ann Retn3*r~' " '
. W-501
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NUREG-0750 V.22 N. 5 (4 copies) I Y O 4 O 9 0
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