ML20126L722
| ML20126L722 | |
| Person / Time | |
|---|---|
| Issue date: | 08/31/1984 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-B01, NUREG-0750-V20-B01, NUREG-750, NUREG-750-B1, NUREG-750-V20-B1, NUDOCS 8508010001 | |
| Download: ML20126L722 (877) | |
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NUCLEAR REGULATORY COMMISSION j ISSUANCES l
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i OPINIONS AND DECISIONS OF Tile NUCLEAR REGULATORY COM311SSION WITII SELECTED ORDERS ;
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July 1,1984 - August 31,1984 Volume 20 Book I of II l Pages 1 - 798 p, a s cg e o,
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Prepared by the Division of Technical Informanon and Document Control, Office of Adminatration.
U.S. Nuclear Regulatory Comminion Washington, D.C. 20555 0 01.'492 8921) 8500010001 840631 PDR NUREG 0750 R PDR
CO.NIN11SSIONERS Nunzio J. Pa!!adino, Chairman Thomas N!. Roberts James K. Asselstine Frederick Nt. Bernthat Lando W. Zech, Jr.'
William J. Dircks, Executive Director for Operations Herzel H. E. Plaine, General Counsel Guy H. Cunningham 111 Executive Legal Director Alan S. Rosenthal, Chairman, Atomic Safety & Licensing Appeal Panel B. Paul Cotter, Chairman, Atomic Safety & Licensing Board Panel
'Nfr. Zech began serving as Commissioner on July 5,1984 ii
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ATO311C SAFETY AND LICENSING APPEAL PANEL '
Alan S. Rosenthal, Chairman 31 embers j Dr. John H. Buck Dr. W. Reed Johnson I Thomas S. Nfoore Chnstine N. Kohl Gary J. Edles Dr. Reginald L. Gotchy Howard A. Wilber ATO311C SAFETY AND LICENSING BOARD PANEL B. Paul Cotter,' Chairman Robert M. Lazo,* Vice Chairman (Executive)
Frederick 3. Shon,* Vice Chairman (Technical) 31 embers !
Ds. George C. Anderson Andrew C. Goodhope Dr. Emmeth A. Luebke' Charles Bechhoefer* Hertsert Gronman* Dr. Kenneth A. McCollom Peter B. Bloch* Dr. Cadet H. Hand, Jr. Dr. Ntorton B. \largulies*
Lawrence Brenner* Jerry Harbour
- Gary L. Stilhollin Glenn O. Bnght* Dr. Daud L. Herrick Ntarshall E. Stiller
- Dr. A. Dixon Calhhan Ernest E. Hill Dr. Peter A. Ntorrn* I James H. Carpenter
- Dr. Frank F. Hooper Dr. Owar H. Parn* I Hugh K. Clark Helen F. Hoyt* Dr. Hugh C. Patton l Dr. Richard F. Cole
- Elinbeth B. Johnson Dr. Paul W. Purdom l Dr. Frederick R. Cowan Dr. Walter H. Jordan Dr. Dasid R. Schink Dr. Nischael A. Duggan ]
James L. Kelley* Ivan W. Smith
- Dr. George A. Ferguson Jerry R. Ki ne* Dr. Martin J. Steindler Dr. Harry Foreman Dr. James C. Lamb !!! Dr. Quentin J. Stober Richard F, Foster James A. Laurenson* Seymour Wenner John H Frye !!!* Gustase A. Linenberger* John F. Wott James P. Gleason Dr. Linda W. Little Sheldon J. Wolfc*
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- Permanent panel members l
AD311NISTRATIVE LAW JUDGE Ivan W. Smith iii
l PREFACE This is Book I of the twentieth volume of issuances (1 - 798) of the Nuclear Regulatory Commission and its Atomic Safety and Licensing Appeal Boards, Atomic Safety and Licensing Boards, and Administrative Law Judge. It covers the period from July 1,1984 to August 31,1984 Atomic Safety and Licensing Boards are authorized by Section 191 of the l Atomic Energy Act of 1954. These Boards, comprised of three members i conduct adjudicatory hearings on applications to construct and operate nuclear power plants and related facilities and issue initial decisions which, subject to internal review and appellate procedures, become the final Commission action with respect to those applications. Boards are drawn from the Atomic Safety and Licensing Board Panel, comprised of lawyers, nuclear physicists and engineers, en ironmentalists, chemists, and economists. The Atomic Energy Commission first established Licensing Boards in 1962 and the Panelin 1967.
Beginning in 1969, the Atomic Energy Commission authorized A'omic Safety and Licensing Appeal Boards to exercise the authority and perform the review functions which would otherwise have been exercised and performed by the Commission in facility licensing proceedings. In 1972, that Commission created an Appeal Panel, from which are drawn the Ap-peal Boards assigned to each licensing proceeding. The functions performed by both Appeal Boards and Licensing Boards were transferred to the Nuclear Regulatory Commission by the Energy Reorganization Act of 1974. Appeal Boards represent the final level in the administrative ad-judicatory process to which parties may appeal. Parties, however, are per-mitted to seek discretionary Commission review of certain board rulings.
The Commission also may decide to review, on its own motion, various decisions or actions of Appeal Boards.
The Commission also has an Administrative Law Judge appointed pur-suant to the Administrative Procedure Act, who presides over proceedings as directed by the Commission.
The hardbound edition of the Nuclear Regulatory Commission issuances is a final compilation of the monthly issuances. It includes all of the legal precedents for the agency within a six-month period. Any opinions, deci-sions, denials, memoranda and orders of the Commission inadvertently omitted from the monthly softbounds and any corrections submitted by the NRC legal staff to the printed softbound issuances are contained in the j hardbound edition. Cross references in the text and indexes are to the NRCI i page numbers which are the same as the page numbers in this publication. ,
Issuances are referred to as follows: Commission--CLI, Atomic Safety !
and Licensing Appeal Boards--ALAB, Atomic Safety and Licensing l Boards--LBP, Administrative Law Judge. ALJ, Directors' Decisions--DD, and Denial 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 independent legal significance.
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CONTENTS Issuances of the Nuclear Regulatory Commission 51ETROPOLITAN EDISON CON 1PANY, et al.
(Three Stile Island Nuclear Station, Unit 1)
Docket 50-289 SP Decision, CLI-84 il, July 26, 1984 i PACIFIC GAS AND ELECTRIC COblPANY (Diablo Canyon Nuclear Power Plant, Umts 1 and 21 Dockets 50-275-OL, 50 323-OL Decision, CLI-84-12, August 10, 1984. 249 Stemorandum and Order, CL1-84-13, August 10, 1984. 267 Order, CLI 84-13 A, September 12,1984. . 283 Order, CLI-84-14, August 20, 1984 . 285 RULENIAKING ON Tile STORAGE AND DISPOSAL OF NUCLEAR WASTE (Waste Confidence Rulemaking)
Dockets PR 50, PR-51 Decision, CL184-15, August 22, 1984. 288 issuances of the Atomic Safety and Licensing Appeal lloards LONG ISLAND LIGilTING CON 1PANY (Shoreham Nuclear Power Station, Unit 1)
Docket 50-322-OL Stemorandum and Order, ALAB 777, July 20,1984 21 Stemorandum, ALAB-779, August 3,1984. . . 375 Stemorandum and Order, ALAB-780, August 15,1984 378 PillLADELPfilA ELECTRIC CONIPANY (Limerick Generating Station, Units I and 2)
Dockets 50-352, 50-353 Stemorandum and Order, AL AB-778, July 23,1984. 42
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Issuances of the Atomic Safety and Licensing floards CAROLINA POWER & LIGIIT CONIPANY and NORTil CAROLINA EASTERN N1UNICIPAL POWER AGENCY (Shearon liarris Nuclear Power Plant, Units I and 2)
Dockets 50-400, 50-401 (ASLBP No. 82 472-03 OL)
Final Set of Rulings on Admissibility of Offsite Emergency Planning Contentions, Ruling on Petition for Waiver of Need for Power Rule, and Notice of Upcoming Telephone Conference Call, LDP-84 298, August 3,1984 389 CINCINNATI GAS & ELECTRIC CONIPANY. er al.
(William 11. Zimmer Nuclear Power Station, Unit 1) i Docket 50-358-OL ( ASLBP No. 76 317-01-OL) "
Niemorandum and Order, LBP-84 33, August 29,1984 765 CLEVELAND ELECTRIC ILLUN!!NATING CONIPANY, er al.
(Perry Nuclear Power Plant, Units I and 2) i Dockets 50-440-OL, 50 441-OL Niemorandum and Order, LBP-84-28, July 26,1984 129 CONSUNIERS POWER CONIPANY
, (Big Rock Point Plant)
Docket 50155-OLA ( ASLBP No. 79 43211 LA)
Initial Decision, LBP 84-32, August 29, 1984 601 3
KANSAS GAS & ELECTRIC CONIPANY, er al.
(Wolf Creek Generating Station, Unit 1) i '
Docket 50-482 OL ( ASLBP No. 81-453-03-OL)
- initial Decision, LBP 84-26, July 2,1984 53 Niemorandum and Order, LBP-84-27, July 26,1984. 125 LONG ISLAND LIGIITING CONIPANY (Shoreham Nuclear Power Station, Unit 1)
Docket 50-322-OL j
4 Niemorandum and Order LDP 84-30, August 13, 1984 426 PHILADELPillA ELECTRIC CONIPANY (Limerick Generating Station, Units I and 2)
Dockets 50 352-OL, 50-353 OL ( ASLDP No. 81465 07-OL)
Second Partial Initial Decision, LBP 84-31, August 29, 1984 . 446 ROCilESTER GAS & ELECTRIC CORPORATION 4
(R.E. Ginna Nuclear Plant, Unit 1) 4 Docket 50 244 OLA (ASLBP No. 79 427 07 OLA) i Niemorandum and Order, LBP 84-34, August 30, 1984 769 l 1
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SUFFOLK COUNTY AND STATE OF NEW YORK StOTION FOR DISQUALIFICATION OF CIIIEF ADNilNISTRATIVE JUDGE COTTER (Shoreham Nuclear Power Station, Unit 1)
- Docket 50-322 OL-4 ( ASLBP No. 84 503 01 slise.)
N1emorandum and Order, LBP-84-29A, August I,1984 385 i TEXAS UTILITIES ELECTRIC CON!PANY, er al.
(Comanche Peak Steam Electric Station, Umts I and 2)
Dockets 50-445, 50-446 i Niemorandum and Order, LBP-84-30A, August 24, 1984 443
! TiiE REGENTS OF Tile UNIVERSITY OF CALIFORNIA I (UCLA Research Reactor)
- Docket 50-142-OL I Niemorandum, LBP 84-29, July 17,1984 133 1'
Issuances of Directors' Decisions BOSTON EDISON CON 1PANY (Pilgrim Nuclear Power Station)
Docket 50 293 Final Director's Decision, DD 84-15 July 3,1984 157 1 CONSUNIERS POWER CON 1PANY (Niidland Plant, Units I and 2)
! Dockets 50-329, 50 330 j Director's Decision, DD 84-17, July 24,1984 226 4 DUKE POWER CONIPANY, er al.
l (Catawba Nuclear Station, Units I and 2) i Dockets 50-413, 50-414 l Director's Decision, DD 84-16, July 6,1984 , 161
- NIETROPOLITAN EDISON CONIPANY, er al.
. (Three N1ile Island Nuclear Station, Unit 1) i Docket 50-289 Director's Decision, DD 8418. July 27,1984 243 511SSISSIPP! POWER & LIGFIT CONIPANY i N11DDLE SOUTil ENERGY, INC, SOUTil NilSSISSIPPI ELECTRIC POWER ASSOCIATION
! (Grand Gulf Nuclear Station, Unit 1) j Docket 50 416 Director's Decision, DD 84-21, August 31, 1984 788 is
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PACIFIC GAS AND ELECTRIC CO.\lPANY (Diablo Canyon Nuclear Power Plant, Unit 1)
Docket 50-275 Director's Decision, DD-84-20, August 20,1984 776 (Diablo Canyon Nuclear Power Plant, Units I and 2)
Dockets 50-275, 50-323 Interim Director's Decision, DD-84-19, August 20,1984 773 Indexes Case Name Index . . .
11 Legal Citations Index . .
15 Cases. . .. .
I5 Regulations. .
1-25 S tatutes. .
1-43 Others . .
1 47 Subject Index. .
1-49 Facility Index. .
. I-75 x
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Cite as 20 NRC 1 (1984) CLI 84-11 UNITED STATES OF AMERICA )
NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthal Lando W. Zech, Jr.
In the Matter of Docket No. 50-289 SP METROPOLITAN EDISON COMPANY, et al.
(Three Mile Island Nuclear Station, Unit 1) July 26,1984 2
! The Commission reviews five issues decided by the Appeal Board in ALAB-729,17 NRC 814 (1983) on plant design and procedures in this restart proceeding. The Commission decides four of the issues on the basis of the record in the proceeding, finding with respect to each that the existing evidence provides reasonable assurance of safe operation.
The Commission refers a fifth issue (pertaining to environmental qualifi-cation of electrical equipment) to the staff for specified action, subject to possible further decision by the Commission.
RULDIAKING: EFFECT ON ADJUDICATION The Commission's generic rulemaking on environmental qualification i of equipment does not preclude challenges to the continued operation of plants where it is alleged those plants cannot be safely operated because of specific environmental qualification deficiencies.
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s ADJUDICATORY BOARDS: DELEGATED AUTIIORITY (ASSESS IIEALTil AND SAFETY RISKS) i The boards must closely examine any accident sequence which in their judgment poses an unacceptable risk to the public health and safety. Probabilistic or numerical calculations or any other mitigative ac-tions deemed necessary by the boards may be included in such an examination. florida Power & Light Co. (St. Lucie Nuclear Power Plant, j Unit 2), CL181-12,13 NRC 838,843-44 (1981).
ADJUDICATORY BOARDS: DELEGATED AUTIIORITY l (ASSESS HEALTl! AND SAFETY RISKS) i When reasonable questions are raised regarding the reliability of a plant system, a board has discretion to examine that system, even ifit is t j
safety-grade, to determine whether it poses an unacceptable risk to i
public health and safety. In making such an examination, a board may use the best available data, even if not plant-specific.
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, DECISION
{ On January 27, 1984, the Commission took review of live issues in the Appeal Board's decision. ALAB-729,17 NRC 814 (1983), on plant j
design and procedures in the Three NIile Island, Unit 1 (Thll 1) restart j
proceeding. The NRC staff, the licensee, and the Union of Concerned j Scientists (UCS) submitted initial and reply briefs. As aplained more fully below, the staff and licensee argued generally that the Appeal 4
Board's decision was correct, while UCS argued that the Appeal Board j
erred on all five issues.
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- The Commission has determined that four of the five issues can ' e re-solved on their merits on the basis of the record already developed in i
this proceeding. The Commission finds on each of those issues that the i
evidence in the record provides reasonable assurance of safe operation, although on some issues the Commission's reasoning differs from that i of the Appeal Board. On the fifth issue, involving environmental qualiti-cation of electrical equipment, the Commission has directed staff to certify the status of environmental qualification for equipment within l
1 the scope of the proceeding. If staff certifies that the equipment is qualified, this issue is moot. If staff certifies that the equipment is not
) qualified, then licensee is to submit a justification for continued i
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operation. After reviewing that justification, the Commission will decide what further action to take.
We will now address each of the issues in depth.
I. WilETIIER Tile ISSUE CONCERNING ENVIRON 31 ENTAL QUALIFICATION OF ELECTRICAL EQUIP 31ENT IIAS HEEN RE310VED FRO 31 TIIE PROCEEDING BY Tile i COalallSSION'S GENERIC RULE 3tAKING A. Background
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UCS Contention 12 stated that all safety related equipment should be environmentally qualified before restart. UCS subsequently withdrew its sponsorship of this contention, and it was adopted as a Board Question.
See LBP-8159,14 NRC 1211,1397 (1981). The Licensing Board limit-ed this contention to " equipment important to safety in the containment building and auxiliary building," and also agreed with staff that analysis
- and testimony could be limited to accidents with a nexus to the TMI 2 accident.14 NRC at 1401, i
The Licensing Board found that all equipment would not be qualiGed
, prior to restart, but, since it did not know what equipment would be unqualified, it had no basis for judging the risk of operation prior to com-pletion of qualification. Lacking substantive testimony, the Licensing Board found from Petition for Emergency and Remedial Action.
CLI-80 21,11 NRC 707 (1980), that operating plants could continue operating with environmental qualification deficiencies.' Noting the Commission's decision in CLI-81-3,13 NRC 291 (1981), that TMI I was to be treated like an operating plant, the Licensing Board held that TMI l could operate safely until the equipment was qualified. The i Licensing Board found from CLI-80 21 that June 30,1982 was a rea. '
sonable time for compliance, and cited licensee testimony that reasona-i 4 in CLI.80-21, supra, the Commission,in response to a UCs peution ror emergency astion, announted f its miention to insutute a rulemalung proceeding to determine whether, or to what entent. 4 ufuform >
standard for environmental quahricauon of equipfrent at all plants should be adopted The Commissa,n also approved the stafr plan for evaluating the quah0 cation of electrical safety equipment in accord eith the critena estabhshed in "Guidehnes for Evaluating Ennronmental Quahrwation of Class IE Flectrii.at Equipment in Operaung Reactors" (the dor Guidehnes) and NURE04548 Although the Commis-
! sion dechned to shut Joen all plants during the rulemalung. it directed stali to complete its review by February I,198 8 and ordered that all safety related electrical equipment in att operaung plants be quali-ried to the dor Guidehnes or NUREG-0538 by June 30.1982.
j The Commission n its interim rule on environmeriist quabrication deleico the June 30 '1982 deadhne 47 Fed. Reg 28.363 (1982).
in its final rule the Commmeon changed the date Dy which all equipment must be quahrted to the end I of the second refuehng outage after March 31.1982, or by March 31,1981, ehkheter is earher IN 3
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ble progress had been made toward meeting that date. The Licensing Board also directed staff to certify to the Commission for its immediate effectiveness review "a report on Licensee's compliance with CLI 80 21 as it relates to safety equipment functioning in a radiological environ-l ment in a TMI 2 accident." 14 NRC at 1404.2 The Appeal Board agreed with the Licensing Board that the issue of environmental qualification of safety related equipment was being re-solved outside the restart proceeding pursuant to CLI 80-21 and related generic proceedings. Accordingly, the Appeal Board did not review the merits of UCS* individual arguments regarding equipment qualification?
On June 30,1983 the United States Court of Appeals for the District of Columbia Circuit vacated the Commission's June 30, 1982 interim rule on environmental qualification for failure to provide an opportunity to comment on "the sufliciency of current documentation purporting to justify continued operation pending completion of ensironmental qualifi-cation of safety related equipment." Union of Concerned Sciennsts v.
- NRC, 711 F.2d 370,383 (D.C. Cir.1983). The court also stated that the final rule appears to be partially predicated on the Commission's conclu-sion that the safety of continued operation had been demonstrated by this documentation. /d. at 377. The court did not criticize the substance of the Commission's determination, noting that "the NRC maintains
' constant vigilance over the safety of nuclear power plants and monitors compliance with safety requirements at each nuclear reactor on a day-to-day basis." /J. at 383. The court also left it to the Commission to determine whether to proceed by generic rulemaking or separate adjudications.
On March 1,1984, the Commission in response to the D C. Circuit's opinion issued a Policy Statement on Environmental Qualification. 49 Fed. Reg. 8422 (1984). The Commission in that Policy Statement ex-p'ained that evidence of environmental qualification deficiencies which would prevent a plant from going to and maintaining a safe shutdown
' condition in the event of a design basis accident will be the basis for en-forcement action. That Statement also provided that enforcement action would generally not be taken where a licensee has asserted that operation will not involve undue risk, unless the staff has determined that contin-ued operation cannot be justified. The Commission noted that the June 2 stafr submitted its report as an attachment to "NRC stafr Comments on I nmedive ffrectneneu with Respect to LKensing Board Deasion on Hardesre/Detitn/ Issues. Uma separation and Emerseno P!4nmng* 04nuary 28.1982L starr certified that at that time 65% or the eavipmens at T4f f l =4s quan-fied wnder CLI-40-21.
J T'e Commission in this Order mill cover the LCV eceptions which are siitt at issue under this decision.
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l 30,1982 deadline was established to force licensee completion of the en-vironmental qualincation program in a reasonable time, but that blanket enforcement of the deadline was neither necessary nor desirable since
, licensees were making reasonable efforts to achieve environmental 4
[ qualiGeation. Finally, the Commission stated that any person who be-
! lieved there was information " indicating that speciGe qualiGeation deG- ;
ciencies or other reasons related to environmental qualification require enforcement action at a particular plant," could provide such information
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under 10 C.F.R. 5 2.206. The Commission also simultaneously instituted a notice and-comment rulemaking proceeding formally to delete the i
June 30,1982 compliance deadline from all licenses. 49 Fed, Reg. at 8445.
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1 B. The Parties' Positions UCS argues that the Commission's generic rulemaking did not and could not have been meant to resolve factualissues properly raised in a
- plant-speciGe proceeding. UCS maintains that it had a contention in the
- proceeding that T511-1 should not be permitted to operate until General
! Design Criterion (GDC) 4 was met,* that no party attempted to show j that T5111 meets GDC 4 and that no factual evidence was submitted by 1 any party to justify a conclusion that TNti 1 is sufGciently safe to operate j despite noncompliance with GDC 4. Therefore, UCS concludes, it has prevailed on this issue.
I UCS also argues that the proper scope of the contention is the capabili-j ty of safety components in the containment and auxiliary buildings to survive an accident at least as severe as the T5t!-2 accident, with 30% to -
i 50% fuel failure, and that it would be illegal for staff to certify the status
- of environmental qualiGcation of equipment.
1 Licensee maintains that the Licensing Board correctly limited the i scope of the UCS contention after UCS withdrew its sponsorship of that l
contention, and that the issue was litigated and resolved as limited.
Licensee asserts in this connection that the issue in the restart proceed-l ing was only whether the implications of the T5t! 2 accident necessitated l imposing some environmental qualification requirement beyond those generically established by the Commission.
- The General Design Cnter a are contained in 10 C F R. Part $0, Appendia A GDC 4 - Dwoames.
ret osa erssde Jas,te esses - proudes in pertinent part that "Isjtructures, systems and components im-portant to safety shall be designed to accommodate the etTects or and to be compatible niin the enuron-mental conditions associated eith normal operation, maintenance, testing, and postulated accidents.
in6luding loss of<ociant accidents **
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The NRC staff concludes that the ensironmental qualineation issue has been remosed from the restart proceeding because the Commission has held that TN!!-l should be grouped with other operating reactors and there is a generic rule on ensironmental qualification of electrical equipment which applies to all operating reactors. StatT also argues that since UCS withdrew its sponsorship of the environmental qualification issue, the Licensing Board's determination that its concerns were being addressed generically is entitled to great weight.
C. Analysis The Commission's generic rulemaking on environmen:al qualineation does not preclude challenges to the continued operation of plants where it is alleged that those plants cannot be safely operated because of specif-ic environmental qualification deficiencies. While the general intent was for such challenges to be brought under 10 C.F.R. j 2.206, there is no reason why such challenges cannot be brought in other approrriate proceedings. In the present case, UCS Contention 12 presented a general challenge that the equipment should be environmentally qualified under GDC 4 prior to restart. UCS conducted extensise cross examination on this contention, and submitted proposed Gndings of fact. The Commis-sion finds UCS' endeavors sufficient to raise a challenge to the continued safe operation of TN11 1.8 The Commission further finds that the Licensing Board properly limit-ed the scope of the contention. The concern in this proceeding is with TN112-type accidents, i.e., small break, loss of-coolant accidents
' (LOCAs) and loss-of main feedwater transients. As explaisied by the Licensing Board, this limitation "is based on the facts that TN11-1 was reviewed and approved at the operating license stage and that, but for the accident, we would not be insolved in this particular proceeding.'
LBP 8159, supra,14 NRC at 1730. See general /v CLI-84 3,19 NRC 555 (1984). Accordingly, the only concern regarding environmental qualification of electrical equipment should be with that equipment necessary to mitigate those types of accidents. Similarly, the Commission agrees with the Licensing Board's limitation on this issue to equipment in the containment and auxiliary buildings, the only areas in which a TN112-type accident would cause substantial ensironmental stresses.
Finally, the Commission agrees with limiting the contention to submer.
gence and radiation effects, rather than including temperature, pressure, 5 The commun am nm r.na me tcs .eara a er ,iononsonn,p or inn coniennon oncuetae in thn partxular case LCs rul!) partwrpeted in the detetorment or the record on thn asue
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humidity, aging and chemical conditions, because the principal stresses i caused by the TN112 accident were flooding and radiation.
It appears that the issue of submergence has been mooted. Licensee's response to the flooding during the accident was to relocate safety-related equipment to above the maximum calculated Good level from design basis accidents. The Licensing Board required the staff to review the reasonableness of licensee's relocation of equipment above the newly calculated Good level. The Commission finds this to be an accept-able solution, and staff has certified that the relocation has been completed.
With regard to radiation exposure, the Commission has concluded for purposes of this proceeding that equipment necessary to mitigate TN!! 2-type accidents must be qualified at least to the radiation levels expe-rienced during the TN!! 2 accident even though those levels have not been generally associated in the past with so-called " design basis" small-break LOCAs. These levels are less than levels in the DOR Guidelines associated with so-called design basis large break LOCAs. Accordingly
- the Commission believes that electrical equipment at TN11-1 needed to j respond to a TN11-2-type small break LOCA or loss-of-main feedwater 1 accident must be environmentally qualilled to the radiation levels asso-ciated with DOR Guidelines for large break LOCAs.
The record of this proceeding does not include information on the status of environmental qualification of electrical equipment at TN!!-1, as defined above. The Commission therefore directs the staff within 14 days of the date of this order to certify the status of environmental qual-j ilication of equipment as discussed above for radiation levels associated
, with large break LOCAs in accordance with the DOR Guidelines. If any equipment within this ambit will not be properly qualified for radiation prior to restart, licensee is to provide a specific justification for interim 4 operation. The staff is to review that justification and present its recom-j mendation to the Commission. If any such justifications are required i and challenged by a party, the Commission will determine s that time what further action is required.
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TREATSIENT OF THE LICENSING BOARD'S '
Q ', QUANTITATIVE ANAL.YSIS OF THE RELIABILITY OF THE 2
'WHETHER THERE IS SUFFICIENT EVIDENCE IN THE
" RECORD TO SUPPORT A FINDING THAT THE EFW SYSTESI IS ADEQtlATELY REL' FABLE UNDER EITHER A j QUANTITATIVE OP, UTHER RATIONALE y p c
A. lflackground
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- ' The underlying question here is une:her th$ ifc3.gn of the emergency % ,
feedwater (EFW) system and thefocedural changes since the T511-2 l
' acciderit provide sufficient a*suran.:e of EFW reliability to provide rea-sonable assurance of adequate protection of the public health and safety. y <
' The Licensing BNrd and Appeal Board differed in their treatment of "-
this issue.
The. Licensing Board, citing Florida Power and Light Co. (St. Lucie
\ Nuclear Power Plant ' Unit 2), ALAB-603,12 NRC 30 (1980), a/Td, CL1-81-IL 13 NRC 838 91981), examined the reliability of the EFW system from a probabilistic standpoint to determine whether the loss of all feedwater should be accommodated in the plant design basis. The
- Ucensing Board explai':ed that its concerns were based on the generic -
< hallenge rate to the EFW system (0.3 per Babcock and Wilcox (B&W) ,
plant per year) and the' psst record with the "safdty grade" EFW systems at other plants (eight failures ip pressurized water reactors with safety-grade systems in 200 realto# years). The Licensing Board, citing staff's [ ~
~ analysis rnat.the probability of loss of all feedwater is about 1.5 x 10-4 per year,' con'cluded from its p'robabilistic analysis that the EFW system was not lafhiently reliable by itself, even though it was safety grade for \
accifents Lithin the scope of this p;oceeding. However, the Licensing i
Board concluded that the decay 0 eat removal capability at TS11-1 was '
sufficiently reliable because the feed-ar: t bleed method of decay heat
, removal could be ysed as a backup to the ECW system.
The Appeal Board, on the other hand, rejected the Licensing BorJ's probabilistic analysis and found that the EFW system by itself was suffi-
- This estimate was densed by multiptying the estimate for the reliabdity of the EFw system following completaan of long. term modifications (4 5 x 10-4 per demand rounded ofr to 5 a 10-'s by the demand frequency of 0 3 per year from loss of main feedwater The 1.icensing Board also found that this estimate was conservative by a factor or 2 to 4 because staft"$ analysis allowed only the 5 minutes asada-ble to steam generator dryout and 6d not allow the additional 15 minutes untd the core would be damaged This additional time would increase the probability or successful operator action to restore feedwater now
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ciently reliable. Specifically, the Appeal Board lacked conGdence that the data base (EFW challenge rate at B&W plants) used by the Licensing Board is applicable to T511-1 because the design of the feedwater systems is the responsibility of the architect / engineers, not B&W, and according-ly may vary from plant to plant. The Appeal Board also questioned the use of 5 minutes for steam generator dryout as the controlling figure be-cause EFW Gow can be delayed for 20 minutes without core damage resulting. The Appeal Board also found that reliance could not be placed on feed-and-bleed as a backup to the EFW system on the record of this proceeding because of analytical uncertainties regarding that process.
B. Parties' Positions UCS argues that the probabilistic analysis utilized by the Licensing Board shows that the EFW system is not sufficiently reliable. UCS argues in this regard that the Licensing Board correctly used the best available data, and that the Appeal Board erred in rejecting that analysis.
UCS also argues, regardless of any probabilistic analysis, that the EFW system at T511-1 fails to meet the requirements for a safety system under the General Design Criteria for 10 C.F.R. Part 50, Appendix A.
Licensee argues that there is sufficient evidence in the record to sup-port a finding that the EFW system is adequately reliable. Licensee takes issue with the Licensing Board's probabilistic analysis and argues that compliance with all of the NRC's design requirements is adequate for a finding that the TS11-1 EFW system is reliable.
The NRC staff maintains that the EFW system is sufficiently reliable for scenarios within the scope of this proceeding to protect the public health and safety. Staff also agrees with the Appeal Board's critique of the Licensing Board's probabilistic analysis.
C. Analysis The Commission indicated in St. Lucie that the Boards should examine closely any accident sequence which m their judgment poses an unatteptable risk to the pubhc health and safety. Probabihstic or numerical calculations na) be used in such an examination and boards have a responsibihty to mandate whateser mitiga.
tive actions they deem necessary to protect adequately the pubhc health and safet) when such actions are supported by the record.
13 NRC at 843-44. Under that decision, when reasonable questions are raised regarding the reliability of a plant system, a board has the discre-9 1 I
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i
tion to examine that system, even if it is safety-grade, to determine whether it poses an unacceptable risk. A Board in making that examina-tion may use the best availat.!e data, even if not plant-specific, to assist it in judging the acceptability of the system. Ilowever, any inadequacies in the data should be considered in making a linal determination on the adequacy of the system, i.e., the less reliable the data are, the less the reliance which should be placed on it.
In this case, the Licensing Board placed too much weight on the generic 6FW data in making its final determination on system reliability.
As noted by the Appeal Board, the data base (EFW challenge rate at B&W plants) may not be applicable to T511-1 because the design of the feedwater systems is not uniform in all B&W plants. The analysis used by the Licensing Board is then questionable. In addition to these uncertainties, the Licensing Board used 5 minutes to steam generator dryout as the time operators have to take corrective action. As the Appeal Board noted, the time operators have to take corrective action (i.e., the time before core damage) is more likely to be as long as 20 minutes. This provides a significant amount of additional time for opera-tors to take corrective action.7 Given the uncertainties of applying the generic data to T511-1 and given the uncertainties in the analysis of ;
recovery actions, the Commission has not attempted to quantitatisely es-l timate the reliability of the EFW system. However, the Commission has l
not found in the record a specific reliability problem in the EFW system at T511-1 that would justify further requirements. Further, the actual historic performance of the EFW system has been above average -
there have been no failures of the T5111 EFW system upon demand.
The Commission also rejects the UCS argument that the EFW system at TS11-1 fails to meet the requirements for a safety system under the General Design Criteria for 10 C.F.R. Part 50, Appendix A. The Com-mission affirms the Boards' decisions that the system is safety-grade for accidents within the scope of the proceeding. Accordingly, the Commis-sion agrees with the Appeal Board that the EFW system is sufficiently reliable to provide adequate assurance of protecting the public health and safety.'
{
7 While the Commiss.on does not beheve that the Licensing Board's analpn on usefully be apphed to TMI.t. the Commission notes that esen the Licensing Board conduced that using M minutes rarher than 5 mmutes would redur.e the unrehabihty number by a factor or 2 4 8
The enuronmental quahricauon or the EFws istem is discuwed eise here a this order See pp 6 7 supra.
10 f
l 111. WilETilER Tile APPEAL BOARD ERRED IN IIOLDING THAT TIIE ARGUSIENTS CONCERNING USE OF TIIE PORY DURING LOW-TE31PERATURE OPERATION AND INADEQUATE CORE COOLING CONDITIONS WERE OUTSIDE TIIE SCOPE OF Ti!E PROCEEDING, AND, IF SO, WHETIIER TilESE ALLEGED USES OF Tile PORY REQUIRE TIIAT IT BE SAFETY-GRADE A. Background UCS argued to the Licensing Board that the PORV had six primary safety-related functions such that it should be safety grade (i.e.,
designated as a " safety-related" system subject to the full range of safety requirements in 10 C.F.R. Part 50). The Licensing Board found on the merits that these six functions individually or collectively did not require I the PORV to be safety grade. The Appeal Bore treated four of those I functions on their merits and found that the PORV did not have la be safety-grade for those functions.' The other two alleged functions, which are at issue here, were:
(1) The PORV is used to prevent overpressurization of the reactor coolant system at low temperatures when the integrity of the reactor vessel becomes a limiting consideration; and (2) The PORV is essential to depressurize the reactor coolant system in order to utilize the low-pressure injection system during conditions of inadequate core cooling.
With regard to the first issue, the Licensing Board found that the PORV is merely a backup to operator action and hence need not be safety-grade to mitigate transients during low temperature conditions. With regard to the second issue, the Licensing Board found that procedures have been developed for coping with inadequate core cooling conditions without relying on the PORV, i.e., the operative steam generator could be used to depressurize, and the PORV is not required for safety reasons.
The Appeal Board seemed to agree with the Licensing Board's discus-sion on the merits of both issues. The Appeal Board further stated, however, that neither of these uses of the PORV is within the scope of the proceeding.
' Those four were:
- 1. The PoRV is part of the reactor coolant pressure boundaries;
- 2. The PoRV is used to limit the number of times the safety valves are called upon to open.
- 3. The PoRV is used to reduce the challenge rate to the emergency core coolrng system (ECCs).
- 4. The PoRV is used to " bleed" coolmg water durms the feed and-bleed coolmg mode '
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t B. Parties' Positions UCS asserts that both these uses of the PORV are clearly within the i scope of its Contention 5.S UCS states that the TMI-2 accident raised
, the question of whether systems previously considered unrelated to ,
safety do in fact perform safety functions, and hence should be safety-i grade, and that its argument that the PORV performed safety functions and thus should be safety-grade therefore clearly has a nexus to the accident. UCS then argues that both of these uses of the PORV require i that it be safety-grade.
Licensee argues that use of the PORV during low-temperature opera-
- - tion is outside the scope of the proceeding, but use of the PORV during inadequate core cooling conditions is within the proceeding. Licensee as-
- serts that the Appeal Board's error is harmless, that there is ample evi-
-dence in the record to show that the PORV need not be made safety-grade for its potential use in either of these conditions.
Staff also argues that use of the PORV during inadequate core cooling conditions is within the proceeding, while use during low temperature operation is outside the proceeding. Staff agrees with the Appeal Board that the steam generators are used to depressurize during inadequate ;
core cooling conditions. However, staff does not agree that the reason j given by the Boards for holding that the PORV usage in low-temperature operation does not require that it be safety-grade - that the PORV serves only as a backup to operator action - are supported by the record of this proceeding.
i, C. Analysis 3
- 1. Use ofPOR Yfor Primary Depressuri
- ation Under inadequate Core
} Cooling Conditions
' The Commission finds that the need for depressurization following an
' inadequate core-cooling event is clearly within the scope of the proceeding. The TMI 2 accident was an inadequate core cooling event, and thus this issue clearly has a nexus to the accident. liowever, the -
Commission finds the Appeal Board's error to be harmless because the -
record on this issue is adequate to resolve it on the merits.
i to UCs Contentson $ stated that (plroper operation or power operated rettef valves. associated block valves and the mstruments and controls ror these valves as essential to mitigate the consequences or accidents. In addition, l
- their raiture can cause or aggravate a t.OCA. Thererore, these vatwes must be classaied as components important to safety and required to meet all safety grade design cntens 12 l
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The evidence in the record demonstrates that the operable steam generator (s) at TNil-1 is used to depressurize the plant following an in.
adequate core-cooling event. 51orcoser, depressurization can be facilitat-ed by using either the letdown system or the pressurizer or loop sents in-stalled in implementation of the TNil action plan. While use of the PORV may be helpful, it is not necessary." The Commission notes in this regard that many systems in all plants are useful in mitigating accidents, but they need be safety grade only if their u3e is required to mitigate an accident." Operators are trained to use these systems, esen though their use is not required, in order to be able to utihze all asailable systems. Ilence the Commission finds that the PORV need not be safe-ty-grade because of its potential use to depressurize under inadequate core cooling conditions.
2- Use of POR Y During Low-Temperature 07 ations A low-temperature oserpressure event has no riesus to the TN11-2 accident because it is not a reasonable consequence of a loss-of-feedwater transient or a small-break LOCA. That the PORV stuck open during the TN11-2 accident does not mean that all potential uses of the PORV have a nesus to the accident. See CLI 84-3. Supra. Nor does the fact that mitigating an accident will necessarily lead to low-temperature operation mean that low temperature operation has a nexus to the accident. No safety concerns regarding low temperature operation were raised by the accident, and hence h>pothetical low temperature op-eration concerns have no nexus to the accident. The Commission there-fore finds that this issue is outside the scope of this proceeding.
However, since no party objected to this issue and it was fully litigated, the Commission in its discretion has decided to provide the fol-lowing discussion of the merits of this issue. The Commission agrees with the Licensing Board's analysis that the low temperature overpres-sure protection function is purely a backup to operator action in ter.
minating a low-temperature pressure transient and that the operator has in excess of 10 minutes to manually secure high pressure injection (llPI) during a pressure transien:. The Commission notes in this regard M
For insunce. LCs argues that the PoRV is used to keep primary svstem pressure ahin N pu of steam generator pressure esen if the primary snrem is beir's depressurtled by the steam gercrater s it is true that the PoRV w ad ror this function and th.it this fxihtates the prmess Howeser, derreswo lation can be succer.rull) xhiesed without ussng the PORV to maintain this pressure differemial ai re-Qulfed by prmejure i U This issue or what itres or equipmeni needed to be wrety grade was addreiwd di ihe sppeat 8,u,J in the dec;4on below. and the Commewon ded not ine review nr that mue 13 I
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4 that the original licensing basis for low-temperature oserpressure protee-tion at T311-1 did not take credit for the PORV, With regard to the UCS argument that the operator does not hase time to act when the primary system is in a solid condition, the Commis-sion notes that operator procedures are designed to present a solid con- '
j dition from occurring. Hence the PORV serses only as a useful device if I
the operators fail to act properly or act improperly, i.e., the PORV serves as a backup to proper operator action.
While not necessary for a decision on the merits, the Commission notes that in the review of USI A-26. " Low Temperature Overpressure Events'" the Commission concluded that for operating plants mitigation l devices for low temperature overpressure events, including PORVs. did
- not have to be safety grade. This judgment was based on the purpose of
! low temperature overpressure systems, which is only to present the reactor vessel from exceeding 10 C.F.R. Part 50. Appendix G stress levels."
1 4
D. Conclusion f
In sammary, the Commission finds that the record does not proside a i basis for requiring the PORV at TNil 1 to be categorized as !
" safety-grade." The Commission is aware, however, of on going generic analyses by the staff outside this proceeding that may conclude for rea-sons other than those litigated here, that the PORV should be safety-i- grade (see, e.g. Board Notification 83110L The Commission expects I
the stalT to consider all uses of PORVs in reaching a final recommenda-f tion to the Commission on the safety classilleation of the PORV.
IV. WiiETIIER ALLOWING STAFF TO ADDRESS Tile NEED FOR A SYSTE31S INTERACTION STUDY FOR T3II l .
IN TIIE LONG TER31 IN ITS GENERIC PROGRA31 IS lt ADEQUATE, OR WilETilER SUCil A STUDY SIIOULD HE <
i SPECIFICALLY REQUIRED FOR T311 !
, A. Background
- 4 j The Licensing Board specified that "TN111 shall be included by the j Staff in generic reviews of systems interactions " 14 NRC at i
O Appendin G levels are tel suhlantrally Nkie sewel failure lettig. and cweedsrug thme 'entis meam Ofily [hdl the 4414l Will hJtt to be etamined for damagt Mfofg further operauen HCrNC thn etwt dW$
RO{ difC(tl) er$ Olig poi 3ahig lJiluft Or lht nC44Cl t>Aduif Or OverpffsWfi/Jison 41 IOW ICmpt'rdtufC l4 I
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a 1351." The Licensing Board did not require systems interaction studies prior to restart. In its "Niemorandum and Order Niodifying and Approv-ing NRC Staffs Plan of Implementation," the Licensing Board noted that staff was still formulating and testing methodologies and guidance and had not yet imposed a requirement to conduct such studies. The Licensing Board stated that statT plans to include TNil-1 in the generie
- studies "if the presently underway initial studies of the five other plants indicate that the studies are useful and worthwhile . . conforms to the intent of the Board's order." LBP-82-27,15 NRC 747,751 (1982).
The Appeal Board agreed with the Licensing Board that a syst,:ms in-teraction study should be conducted at Thil-1 as a long term objective and that such a study was not necessary prior to restart. The Appeal Board in this connection noted the numerous improvements already made in this area at Thll-l. The Appeal Board also found that the study could be done on a generic basis and that reasonable progress toward commencement of a study of systems interactions had been made.
Finally, however, the Appeal Board noted its concern regarding the prog-ress of stalTs continuing activities in this area and recommended th t this effort be given a high priority.
The Commission took review of this issue to resolve the possible am-biguity in the Boards' decisions regarding whether a formal systems in-teraction stully must be performed at TNil-1 in the long term, or wheth-er that has been left to staffs discretion.
B. Parties' Positions UCS argues that the TNil 2 accident showed that systems presently classified as not important to safety can cause accidents and can be used to mitigate accidents in ways not considered in the plant's safety analysis.'s UCS claims that the mere acknowledgment of the existence of an unaddressed safety problem is not sufficient, and that staff h ts no program under way to take the first step toward upgrading nonsafety sys-i tems for TNil-1.
I4 A sprems interaction study is a "comprehenuve anal)us to demonufate that newlet) grade St *sems '
- ill not erntrate or aggravate an asudent ~ At ABM29 surra. I ? NRC 44 941 0 The requrements that egwpment muu be deuseed to mm ce dependent on whether the eqummeni is klawlied 41 eafety grade, emportant to salcty or not important to ulety the Cemswon Jed not tne 4
review of the Appeal Board's analpus air ihne terms in %L ABM t and reunity ated treat .in.iiv m in the 53me#am proceedmg Lmer Idom/ L4'rrme Ca Ishoreh4m Nuslear Pneer %tmn. Ln t it etI 84-4,19 NRC 115411984L LCs mierman the terms and apparendy is egweg that a u oc % in-teraction study should conuder all eqwpment not wrrently ufety grade. whether or not H n w"ent's clawr4ed as not important to safely The Commrwon's diwumon of ossems interestmn uudio arphes regardiest of the definition used 15
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1 Licensee asserts that this is a generic unresolved safety issue which, absent some special showing, should be resolved for TSil-1 on the same
, schedule as for all operating reactors. !
The NRC staff states that a systems interaction study is not necessary
- to provide reasonable assurance that TN!!-l can be operated safely and, j therefore, the need for such a study may properly be addressed by the l stalTs generic program. The staff endorses the Appeal Board's decision that existing systems can provide reasonable assurance of adequate safety while further study goes on.
1 C. Analysis !
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At the outset, the Commission notes its agreement with both Boards j that a systems interaction study need not be done prior to restart because j sufficient improvements in systems interactions have been made at Thll 1 to support a finding of reasonable assurance of safety. The Com- '
! mission finds that the Appeal Board adequately addressed that question.
1 The Commission also agrees that as a theoretical master systems inter-j action studies could be useful, both at T5111 and at other plants.
1 However, the issue before the Commission is whether to require such a i
study at TN111 or whether to leave that question to the stalTs generie program, j
While significant progress has been made toward developing meth-j odologies for formal studies, no final methodology has yet been developed, and several possible methodologies currently are being i tested at Indian Point 3. That test is expected to enable the Commission i to determine the generic, long term usefulness of such studies.
l Given the status of development of this methodology and the findmg l l that such a study is not required for safe operation at TN!! 1, the Com-i mission has decided not to require that a formallong term systems inter-i action study be done at T5111. llence the Commission linds that the
{ Board's decision to leave this matter to stalTs ;,anetic program is i reasonable.
l V. WilETilER Tile LICENSING HOARD ERRED IN DELEGATING TO STAFF RESPONSIBILITY FOR
^ APPROVING LICENSEE'S SOLUTION TO Tile 31AIN STEASI LINE RUPTURE DETECTION SYSTE31 DISLRDS) PROllLE3!
~
A. Background The Licensing Board in its December 1981 decision (LBP St 59) re-quired that prior to restart (1) the licensee propose for staff approsal a j.
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long-term solution to SISLRDS problem for implementation af ter restart? and (2) the statT certify to the Commnsion that the licensee has made reasonable progress in initiating this program for a long-term solution.14 NRC at (373 74.
( , The Licensing Board in its Niemorandum and Order N!odifying and l Approsing NRC Stalfs Plan of implementation dneussed statrs plan to
! implement this condinon. The Licensing Board indicated that it was l satisfied with the timmg contemplated by staff, i.e., that staff would re-l quire licensee (1) to upgrade its main steam kne rupture detection i
system to safety grade prior to startup followmg Cycle 6 reluchng," and (2) to propose a means to present feedwater isolation due to failure in rupture detection systems. The Licensing Board also reiterated the re-quirement that licensee demonstrate reasonable progress prior to restart, noting that if stalTwas satisfied that licensee's proposal itself con-stituted reasonable progress, it could so certify. LBP-82 27. mera.15 NRC at 749 50.
The Appeal Board held that deselopment of a solution to the steam generator bypass logic problem mwhr go be>ond implementation of the Licensing Board's decision and insolve the resolution of disputed matters. The Appeal Board therefore directed licensee to submit its proposal to the Commission so that the Commnsion could esaluate beensee's proposal and determine whether the parties must be afforded an opportunity to comment on that proposal.
On June 29 1983, licensee submitted its proposal to the Commission."' Licensee in its submittal noted that it had already submit-l ted the proposal to staff on August 2.1982 in responding to the Licens-ing Board's decision, and that the staff had issued a Safet> Esaluation
'" IN spreat Board m sL AH.'N cirfarncJ the \lsLRDs prohtem as fusion 11 ihere should be a men scam 1 ne breas frem a ucam dererator. iN stun sie.,m Line Nap.
ture Derettien suucm 1\l5LRDsl automatsu:fr termmates flow to ihat ceam generater to pre l
i vent oserprenumanon of rme somenment buelareg Coobag wouW nonetheiess be mamtone :
uweg ine remarung sica* senewor The eudense reseais no*eser. thai 4 redation in pres.
j sure below a certam leset souNt Jho cause the st5L R Os tn te'rmt att fced aier although INee
) was no astual brealt m, the steam generator Depreuuritation m both ucam gencruor s wwJ I
therefore 6Juse the duismans imerrurnen of feeJeaier to both steam genereers l? NRC at 4t?
I'Cpte fa ref uches *ill he the hrst re!'uchog after recart 88 The proposed Wution to se sisLRDs sonseen cons.us or the adJinon or usitanes semuris and the l detestion or the sisLR Ds /gnal to the EFW ss vem Low usam genersmr pecuute *hwh actuves the l
tl5LRDs can resul: from eecr 4 sesere mercoces or a mam ceam hne 5ceak esent T he ^rtna l ,
design required operator action to bypass \f sL R Ds to cresent a Ims or heat . ins ir a lo* reeware so*do non developed m a once through steam generator sor5Gt ur 4 sirvie railure then %seJ ihe Ow ssstem Ihe Addsflon or LAbalJIang semurtS to the (rw system trid remosal of the Af)LR Ds f rom ibe
[f w s als'et elsmenJle Opef ator 4(I1@ to prosrde Uw 10 the infest or$G in the esem of 4 sangle IJslure smse the se9turis Jl se) hml! rrw flDW. the slsLN ns is no loegtr reprfd ror f t w Jad need flof be upgr aded t#1 safety grade sof%e it il ehminated as a sJuse or failure er 4 safet)-grade syvem 17 t
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i Report finding that the proposed modification was acceptable. In addition licensee has now completed implementation of its proposed long term solution.
UCS in commenting on licensee's proposed solution identitied three specific concerns: (1) a single failure could isolate main feedwater to both steam generators, unnecessarily creating a demand for emergency feedwater; (2) an overcooling esent could result in depressurization of both steam generators, causing the NISLRDS to isolate main feedwater to both steam generators; and (3) a single failure resulting from a main steam line break accident could result in not isolating main feedwater to the affected steam generator, thus overpressurizing the containment it the break is inside the containment.
B. Parties' Positions UCS asserts that licensee has not proposed an adequate solution, and that the Board. having identified the safety problem, may not lease it to the staff to negotiate a solution with licensee.
Licensee asserts that this was not a disputed matter in adjudication.
and, even if it had been, that the issue was fully litigated in that the par.
ties had an adequate opportunity to comment on licensee's proposed solution. Licensee concludes the issue is moot since the long term action has already been implemented and the parties have addressed its merits.
The NRC stalT states that the solution to the NISLRDS problem is a i long term action whose satisfactory completion was expressly lef t to the i
' staff pursuant to the Commission order instituting this proceeding Staff states thera is no longer a contested matter on this issue because licen-see's proposed solution has been approved by the Appeal Board alter ,
the parties had the opportunity to comment on the proposed solution. '
C. A nal.s sis The Commission notes at the outset its concurrence with the judg-ment of both Boards that completion of SISLRDS modilications is not required prior to restart. With regard to the UCS challenge to the ade-quacy of licensee's proposed solution. UCS' first two concerns - (1) that a single failure could isolate main feedwater to both steam generators, and (2) that an oscrcooling esent could result in depressuri-zation of both steam generators, causing the SISLRDS to isolate main feedwater to both steam generators - both insolse possible action of the SISLRDS that could cause unwarranted termination of main feedwa-18 l
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ter flow to both steam generators. The mam feedwater system is a non-safety system at all plants. That is, the total loss of main feedwater is a
! normal operating transient, and the plant is designed to accommodate such a loss. Neither the Commission's regulations nor any historie or
, analytic evidence of unusual unreliability of the T. Nil 1 EFW nstem re-quire any unique elTort to reduce challenge to EFW from termination of i
main feedwater flow at Thll l. Neither Board was concerned about the NISLRDS causing a loss of main feedwater at T.\ll l. and the Commis-sion sees no reason to take special action because of either of these two concerns.
The third UCS concern is that a single failure of the NISLRDS in the esent of a main steam line break could cause overpressurization of the i containment by allowing main feedwater flow to continue. Given the corrective measures to remove the NISLRDS inadvertent isolation of the EFW system. the remaining issues dealing with the main steam line break are outside the scope of this proceeding. Further this issue has
- been raised by UCS in its January 20. 1984 show-cause petition, and should be addressed in connection with that petition and not this proceeding. Hence the Commission has determined that there are no safety concerns within the scope of this proceeding about licensee's pro-posed solution.
j With regard to whether the Licensing Board improperl> delegated ap-
! proval of the long term solution to the staff, the Commission notes that long term solutions are not matters for adjudication in this proceeding.
The hearing did not have to be kept open to adjudicate the adequacy of a long term solution once it was finally proposed. The Licensing Board determined that a solution was needed in the long term. and no more was required for purposes of this proceeding.
Commissioner Zech did not participate in this matter due to a lack of j opportunity to familiarize himself with the issuet
- it is so ORDERED, r
For the Commission' 1
t 1
] S Ah!UEL J. CillLK j Secretary of the Commission 3 .
1 Dated at Washington, D.C..
j this 26th day of July 1984 4
i
'Corprmwonet /csN was not presem e PNrt this (BrJer ma affirmul !
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Cite as 20 NRC 21 (1984) ALAB 777 1 ;
5 UNITED STATES OF AMERICA j NUCLEAR REGULATORY COMMISSION 4
ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
I Alan S. Rosenthal, Chairman
, Gary J. Edles j Howard A. Wilber !
l j t i
In the Matter of Docket No. 50 322 OL 4 l
- j. (Low Power)
LONG ISLAND LIGHTING 1
COMPANY 5
(Shoreham Nuclear Power Station, Unit 1) July 20,1984 '
i
,. Acting on a referral by the Licensing Board of its ruhng denying inter-i senors' motion for disqualification of all three members of one of three Licensing Boards considering issues in this operating license proceeding. l l the Appeal Board finds the disquahlication motion both legally and factu-
- j ally insubstantial and affirms the Licensing Board's denial of the motion. '
4 i RULES OF PRACTICE: .\ LOTION FOR RECUSAL (OR DISQUALIFICATION) I A supporting affidasit is required to accompany a motion for disquali-l lication of an adjudicatory board member even where the factual under-pinnings of the motion are matters of public record.10 C.F.R. 2.704fe);
- Duquesne Light Co. (Beaser Valley Power Station Units 1 and 2),
ALAB-172. 7 AEC 42, 43 n.2 (1974); Octnni Edtwn Co. (Greenwood j
Energy Center Units 2 and 3), ALAB 225,8 AEC 379. 380 (1974). See i
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_____._________________.__.___1_______________
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also Pubhc Service Co. of New //arnpshire (Seabrook Station. Umts I and a 2), ALAB-749.18 NRC 1195,1l97 n.1 (1983L RULES OF PRACTICE: .\ LOTION FOR RECUSAL '
(OR DISQUALIFICATION)
Nfotions for disqualification or recusal must be submitted as soon as practicable after a part) has reasonable cause to behese that grounds for
, disqualification exist. Seabroo4. supra.18 NRC at i198. quotine / rom Starcus v. Director. Ottice of IVorkers' Compensation Proerann. 548 F 2d 1044,1051 (D.C. Cir.1976L DISQUALIFICATION: STANDARDS An administratise trict of fact (like a federal judge) is subject to dn-qualification if he or she has a direct, personal. substantial pecuniar)
- interest in a result; if he or she has a personal bias against a participant; if he or she has served in a prosecutise or msestigatise role with regard to the same facts as are in issue; if he or she has prejudged factual - as distinguished from legal or policy - issues; or if he or she has engaged in conduct which gnes the appearance of personal bias or prejudgment of factual issues. Pubhc Service Electise and Gas Co. (flore Creek i
Generating Station. Unit I), ALAB 759,19 NRC 13. 20 (1984); Con-sumers Poner Co. (Niidland Plant. Units I and 2). ALAB 101,6 ALC
- 60. 65 (1973). See alw //ouston Lightme and Pouer Ca (South Teus Project, Units I and 2), CLI-82 9.15 NRC 1363.1363 67 (1982); Cm-Jerella Career and Foushing S<hools. Inc. v. (TC. 425 V 2d 583. 591 (D C. Cir.1970).
DISQUALIFICATION: STANDARDS (PREJLDG\lEN T) in order to provide a basis for disquahfication on prejudgment grounds, the asserted prejudgment ior appearance of prejudgmenti must relate to factual, as distingunhed from !cgal or policy, nsues South-ein Pacrtie Comn umcatwns Co. v. .IT& T, 740 V 2d 480. 990 91 (D C. '
Cir.1984 ).
DISQUAI.lFICATION: STAN DA RI)S (PR E.lL DG TIEN il t i The fact that a member of an adjudicator) tribunal may base a crystal.
hted point of siew on questions of law or polic) n not a basa for hn or 22 i
rims ,*f-l fid4*tt 4e required be the Commagiron e regulapon goternm( disquahf 44torm niefume, 10 C r R j 2 7041 0 that dem41 met nummarily airrmed b, vs in an unpumisheJ order emered later mt ihe ume q day in reettmg the me.4nis' Si a.m that .ush 4n attiJain i, unnese,wri in sirsemiaansei .here the
- fatual underpinninst or the tration are '*m4ttere of putiin risord sontainea in N RC and other dO4 um(nt$.
- em g4lled ettentsoft to our 60ntrJry holdseg, $tt [hn(Hrtge tsWhf ($$ ll$ eager \AJg) P.$.er s
o rG.nnnurde i
i 23 l
4 1
i s
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reason of certain orders issued by that Licenung Board and the contest within which those orders were entered, a disinterested obserser might conclude that Judges Miller, Bright and Johnson hase "'in some meau ute adjudged the facts as well as the law of [ thal case in adsance of hear-ing it* " within the meaning of Cindcrc//a Carcer ar'd Tomhure Shan/t Inc. v. FTC 425 F.2d $83, 591 (0 C. Cir.197m, quo /vn: wth ar;m nal from Gilligan, Irill d Co. v. SEC. 267 F.2d 461, 469 (2d CirJ. icer, dented,361 U.S. 896 (1959L in a June 25 order, the three judges indniduall> and collectnely denied the motion on the dual grounds that it was untimely and lacked merit. As mandated by 10 C.F.R 2.704(c), the order went on to refer the matter to us.
Upon receipt of the referral, we invited the parties to submit their
- views either in support of or in opposition to the order. The mosants, the applicant and the NRC staff accepted the insitation. For their part, the movants maintain that the motion was timely and that, in determin.
ing that disqualification was not warranted, the Licenung Board im-properly had failed to apply the Cmdcrc//a standard? In contrast, both the applicant and the staff support the Board's order in full mea 3ure. '
For the reasons that follow, we conclude that the motion is of doubtful timeliness but, in any event, does not provide a sultleient basn for requirmg the disquahlication of the members of the Licensing Bo.ird.
We accordingly attirm the denial of the motion.
, I. HACKGROUND A. As earlier noted, at present three separate Licensing Boards base the responsibility of adjudicating one or more inues pending in thn es-tended and comples proceeding. The Board here insolsed. chaired by Judge Miller, came into custence most recently. It was estabinhed by the Chief Administratae Judge of the Licensing Board Panel, B l'aul s
stafson. Uru t I ana 2P. % L s B l ? 2. i AI C 42. 4) n 2 (19'46. and (k reos f./emne On f ( e ru ci+ +d Energy C ?nter. On 15 2 and b AL %8 j!$.1 4f C J N. jtil i14'46 b aha /%N bror(o o/ be
//aminhere Ise,$ rook sianon. Units I and D. 4L %H 144.14 NMC 1194. Ii D n I i tit)t The june 21 motion was anomp.imed bv an alf.datet I suffmh Couniy and state of New York Filmg in Responw to \ppeal H.urd order of junc 29 1944 ljuly 6.19 44) thereaf ter, suf fr ik artJ New inth Respeenvet f or sonserviense. ine sh.itt snip 43 tN term "L aen ang BoarJ" or "fbarJ" *hert referneg to the ihree Judges and their Jeuunnt ana noivie
+n this prmee img I LlLCo's brief an support o( the order or judges sl.iler 14r<ght and 1090,nn Dd> >"s me WfMk Count)/ N ew f urk state sIstade in (byuJhh Ihem f jub h. l9441 t here tet er. L lL( tl Hwil %Rc staff Ectg5005s (d sintiesi by suf frWh Counf t and stJfe of Nem sof t For llNaslan dt 0'l *if j tsdgg t sllllef, Oright . *nd Iohntert ljuh 6 l944l lhereJiler, staf f Me+onws rwe appu.-snt aw;rf oi genu %
for the derHal or she dsyuahfkal+nn rnounn Nuind Ihow releed uport by she i genug hiirJ s t edt he Wen. We dd fleul reA h thdW JddsismtJl grohftdg i
24
. - - - - - - .. _. - ..-__-_ - ~_ -~_ . - - - - - - .- . -._ _ _- - --
,i 4 h i
l t i !
l Cotter, on Starch 30, 1984 for the purpose of hearmg and deciding the f
! applicant's Niarch 20.1984 " Supplemental N10 tion for Low Power i f Operating License."' That motion raised the question whether low- '
I power operation of Shoreham (i.e., operation at levels up to 5 percent of ,
- rated power) might be permitted under 10 C.F.R. 50.57(cP in advance '
i of'the resolution of questions pertaining to the reliability of onsite i emergency power sources - questions arising, in turn, as a result of fail- ;
j urcs during operational testing of the diesel generators installed to pro- !
j vide such emergency power. According to Judge Cotter, he took the ;
{ step of creating a new Board to consider the motion because the Licens- l j ing Board then possessing " jurisdiction over non cmergency planning .
j matters" had advised him that "two of its members are heasily commit-
- .ted to work on another operating license proceeding."*
For present purposes, we need focus only on the rulings of the Licens-ing Board here invohed during the seven day petiod between Ntarch 30 .
j and April 6. Immediately upon its establishment on Starch 30, the j Board advised the parties by telephone that it would hear oral argument
- on the applicant's Starch 20 supplemental low power motion. This j advice was confirmed in a written order (denominated a " notice"). In it,
- the Board observed that responses to the motion or statements of pre-j liminary views had been filed by the other parties to the proceeding and that the " issues raised by the parties in their lilings as well as a j schedule for their espedited consideration and determination " would be heard at the same time.'
The argument took place on April 4 in Bethesda, Star > land. Two days i later, the Board issued a further order in which. "Iblased upon a consid-
. eration of the [ applicant'sl motion and the facts alleged in its attached l
4 affidavits, the matters contained in the responsive liiings of the other l 3
I
- 49 Fed Reg t) All (1994L
! -' in felevant 1%ft. wtbeft !0 Misi proudes I \n uphtaH man in a samt where a hearms es httd m conne uon *HN a pendmg pfeseedmg l under ihm sestmn make 4 motmn m enhng. puf%uJnt 40 thts pdf agtag n M. fof an operating i hun , aihnh,.ng e..pn..fi,umge m , ten nei me, ihanip m em nrruli .<,i~ im purpo,e of ieums in, rwing. and furthef mranons shori One pn. f neef an.,n unon ,m tuth 4 nWitOn by the pfttading OlUggf thd!l hf fat (ft metft Jug FigArd to th( fighlt Of the patists r
- to INC pruttedingt. mtludang thi hght Of Jn) pdf ty 10 he hCJfd 10 the stient ihdi his goni;msons [
j Aff PCittJC to the at;tivit) to be du?hof ffa Prmt 10 (Jhtng dny JVt10n On tugh a motion ehtsh I JMy pdfly 00pDW5. thf PffWdif'g DIhtf thJll MJkt Ondingt On the matters tptstfitd en paragrJph I JF Of Ihil GCstson J4 to ehnh thirt 114 40ntfnvert). Ifl thf (Orm of en snattal dCtiven erth ff-i tptEl 10 lbf COntChlfd WEtattip tought to hg Julhohttd
- e e
! " 44 Fed Reg IJ Al2 619945 The BoefJ 10 whsh Judge Cmtef attudeJ .h4. red hv Adenm*lr.aae judgf t.Jefffht Off entf. $tsll hJt If f0ft et thf 6t*VS Uf thf FChathist) Of tmgald (mtffgdth$ tvetr
- iOuft fl Iht ihsfd latnsang SO4rd J4W(etd to lht$ PfMffJmg. thJeffd by AJmemWfdtnf judge Jame 4 Laurensoft. is 6ofwerned casiumely with as yet unrc,ohfd emergefsy planning muet rht Jmu.sh+
! rnJupft moltoli Jppfatt in fif athtf td th09d 80dids i ' *,oine Or ofat Argumemi t 4taf.h 30 19548 f unpuhh+hedt at l l
l i 25 s
i l
1 i
I f
1 i
1 j parties and the arguments of counsel in depth." seseral conclusions 4
were reached? As the Board saw it, the appheant had made a sutlicient j prehminary showmg to justify the holding of a hmited hearing on the question of its entitlement to a low power license pursuant to 10 C F.R
! $0,57tc)
- The pisotalissue at the hearing would be whether reawnable 1 assurance existed that the "actisities associated with [ thel request for a j low-power license can be conducted without endangering the health and safety of the public, in the absence of resolution by another licensing j board li.e., the Board chaired by judge Brenner bec note 6. metall of j the emergency diesel generator contentions related to full power operation.""' In this connection. the Board stated that the provisions of i section 50.37 respecting low power operations had to be read in conjunc-tion with the requirements of General Design Criterion (GDC) 17 with i respect to emergency power needs for full power operations." The
, Board added:
Ir the culent'e shows that the proiciason afforded to the publes at low coact lesels without the diesel generator, required for full power operahous, n Nunaleni ns f or i grcaict than) the protektmet afforded to the pubh at fulltoner operanons with ar, prosed generators. then lihe appkant'51 rnotion shouta be granted 'I
- Expressing the behef that an expedited hearing should be held on the i
issues that it had identitled "to the extent that such matters are reasona-bly relevant to a low power license," the Board then estabhshed, in the j " exercise lof its! judgment." the following schedule.
i
\
l i
1 8 %lemorandum snd order hhedwting litaries t on llLCo e supriememai %tcoon for 1 o.-power i iIWrmung (mente t %pfd a 19447 tunpubinned> at $ IrwHnois omaleds thercefier \pril. A crdets
- '1%i I" M st h I U M al bi Gof 17. tound in Appenda s to 10 C f R Part M penu&s in retcom swt
%d unsde Cltklf14 pnW(F M43Cm and dM Of fillf fl(41f % PDef f 9)14(fft shall htl Prot 6d(a ld gPmie
- rom n .n.ng or suwu,,,. .i<m, .nd mn,pon.nn ,m ..,,.m ,,5 um r h, ,,nos ,,,eo.en -,
e exh pstem i <suming J the other u stem is not f unstionengt thill he o prm edg wifgedet gag,ig og Jnd 4JpdhtlH.V 10 J44Wff thJi t t I gpfulIV d e44(pldNd rg(l dCisgo bmOg Jftij ,fCtt(n gOnditiong et j thf ft'J410f u%ddm latessyf( fMundaf) afg 604 C etttWJ Jg J f(tvil of JalkepJidd o{%f f 4bosial g -
suresnies and t u ihe wee a weia .nd wmonmem im<groi mi a:hcr me euna.nn, se 3 memoned m the esem or p, .ius ied audenn . . .
sg Pf(t eouth nolgd. the detWI deferJtuf t innlJIlda 45 the hAhup on4Hd gitt tf% (tnugt en titm for shorcham isted dunny operational 6csong
' %pff0 6 ofdCf. Wrf87d el I 4
26 1
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L-
}
1
) Date Esent April 6 16,1984 Diseosery April 19,1984 N RC Staff Supplemental (Saf et)
Evaluation Reportl April 20,1984 All direct written testimon> tiled i April 24-28,30 flearing
through May 5.1984 i l
The Board opined that this schedule would not "preludice any party to
! this proceeding."
As it turned out, both the Board's ruling on GDC 17 and its hearing i
schedule were short lived. At the instance of the Gosernor of.the State of New York and Suffolk County, on April 25 the United States District Court for the District of Columbia issued a tempcrary restraimng order precluding, inter aha, any hearings before the Licensing Board on the ap-plicant's supplemental motion for a low power operating license."
l Thereafter, on April 30, the Commission entered an unpublished order in which it both vacated the Licenung Board's schedule and set down i
for oral argument (following bricling) the matter of the applicability of GDC 17 to the applicant's proposal to operate Shoreham at low power Subsequent to the argument,. the Commission ruled that 10 C F R.
50.57(c) "should not be read to make General Deugn Criterion 17 inap-plicable to low power operation" and, accordingly, sacated the Licenung Board's April 6 order to the estent that it held otherwise,
- Additionall).
, it provided a new schedule to the Licenung Board "as guidance in I
resuming the hearing." '
B. At the heart of the disqualilleation motion is the thesis that a dis-1 interested obserser might conclude that, apart from being unjustified.
13/d at 7, 16
14 at 16 j 'I Cwurs y sRC. 9eo 94 i24 T he teferwirary recrainmg order eat dur mpanied bi 4 menustdisdam opimon in *hesh the Lourt esprewed the nem4 f t lit th.n the pienoih hal ranca 1 suamnnal Ny st guestion regardmg the propriety or the beanns wNdue l'CLl 44-2.19 NRC 11$4 ll$3 18e841 Tbv Commwnn went on to more thal me app %m a or o argument had s%4 test an 4 ment to seet an enemi+iion from the (.rbC 17 reuvrer*$ ems /d at liii in INS regard 10 C F R N t 2f at proudes m fefe*4m part the Commmam me. apori appesanon bs 4m insertued Nren or en 'n own tninan *v grant sw h esewipoon, f rom rhe reurememe v me reguunon. :n im$ part 4. n ear we. m authU(tied b) f44 ans) will riot endar1ger hie or proppi) i+r tPte wittmon JefeHW aftd Wg uf m and are otherwne in the pubbs inttreu * =
- I?ClI 844 mera 19 *eRC as life that whedute oued for the wmmcmcmm os ihe heaf <ris n the f jth day fduems the fiong and wruge "I' the ar phont', reauot tnr a enoa $4 i288 viemr'vn from the GDC i7 #cauiremente l
d 27 i
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t J
f
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l l the Licensing Board's expedited schedule and GDC 17 ruhng were not the product of reasoned and independent judgments on the Board's part
! This is so, the movants insist, because the schedule and ruling q
" paralleled and furthered" objectives of NRC Chairman Palladino that I
had been " formulated outside the hearing process" and communicated "within the NRC."I' We now cansass those esents prior to the Licensing Board's April 6 order that are said to support this thesis "' '
3
- l. The movants point first to a meeting attended by Chairman Palladino, Judge Cotter and sescral other NRC officials on March 16
) 1984 - four days prior to the filing of the applicant's supplemental low-
! power motion. According to the Chairman's testimony before a congres.
1 sional committee, that meeting was initiated by him in the wake ofinds- '
i cations of increased delay in the progress (and therefore conclusion) of operating license proceedings insolving nuclear facilities that are near i i completion.M lts purpo3e was to discuss the status of a number of such '
i facilities "at which there were problems or potential problemv" Judge Cotter had been requested to attend because of his knowledge of the status of the operating license proceedings before beensing boards, the 1
possibility that he might have suggestions respecting how unnecessary delays in those proceedings could be avoided, and his ability to proside information respecting whether delays in their progress were attributable to the need for additional staff documents before hearings could begin32 '
I Although the brieling provided the Chairman at the meetng embraced
}' the Shortham proceeding among others, and inciuded tdentification of
- the issues pending in that proceeding, the Chairman does not recall the discussion of the merits of any of those issues and is confident that the l agency lawyers in attendance would have " raised a warning flag" had i any such discussion been initiated." For their part. two other attendees i at the meeting, the Esecutise Director for Oper.itions and the Esecutise Legal Director, hase supplied by ailldasit their own recollection of that ['
portion of the meeting desated to Shorcham-I i
18 June 2i dmiuahresanon monon et 24 i
i l'obviously, nmmeg tran,piring after Apr I 6 soutJ h4,e mlNensed the Legen..es OmrJ'e ,ation on i
that dare Nor Jo we undervand ime Jmau4hik4 hon monen to <ess to any seiene upon pou. 4cril e Board ruleegs
}
j M ind.*idual sistement or Nunno i Palladmn. Chairman,1,'s Nusitar Regulame, Commen un. i i
8efore see sutsomm rm Energy and ime Environmem, Comm on lmerme ana in s ular Waers U s House or Reprewntantes t%f at i', i94O at 3-4 the, statemem e4s arremtvJ in <>e Chairman e lung I i'
20,1944 %temor4rulum to ine Part.es in scenesnan with the request tracJ Pt soffon foumi and ind j siais or Nee Yort on June 6. i9444 ihaiine CM. rman recuse himwir trum further nvoi.emem in th.. i operaties tesenw praccJms i
U ndmdual I statement of chairman Palled.no, wiers at 9-9 j
l IE lJ st 4 2)(J at t0 I
i 28 i
r T
- -_ --., .- - --. . ._ ~ - _ , . - . - - - -
i i
1 1 % hen the questron of Shoreham came up the discumuun turned to the inipa6:
ofIhe diew: generator inue.
- 3. The Chairman raned the question whish we understood to be prosedural.
j whether the diesel generator nsue had to be resolsed prior to low tvwer operation lie was informed that the applaant sould, but had not yet done so, request low.
j rower authoritanon pursuant to 10 C F R 4 30 37M, and shal the appinant would at least have an opportunity to try to make a showing that some rewtuhon short of i that whnh would be required for f ull-power operahon. wnuld Jusul) low tmwer operation The Chairman then queshoned whether suth an appliubon would h.ne
] to be sonudered by a hearing board to whgh he was informed the answer was yes
- lie then inquired how long sush J proCCCding would lJke, whether it would be as
- long as a typial he.aring ' The General Counsel informed him that in the pau the Commtwon has requested espedited hearings on narrow issue proscedings in fast, 3 the Deputy General Counsel cited the cumple of a hearing that was held and
! sompleted in one day. The Chairman then asked questions as to whether an espedit-
! ed hearing (nuld be held on a reuuest from LILCO for a low power ancirwoon
] Inhesh the Sialf h.id enformed him was known to be forthcom ng) and the diwuv 1
von turned to a hypothetwal reasonJDIY CspCdited whedule. Most of the dinusuon f was between the Chairman and the Ollise of the General Counset, with osuuonal 1
input from other parucipants. At the consfuuon of the dewusuon. there was a son, j mensus thal it would be posuble to conduct an espedited proteeding m somether's on the order of us to eight weeks The Chairman requested the Office of the Gener.
j al Counset to prepare a more detailed anal)us of this subf est j 6 The Eseguine Legal Director pointed out to the Chairman thai er ennuderanon
{ were gnen to such an espedited proseeding, it should be kept in mind that the cur-
~
rent Shoreham Lnensing Board Chairman was also Chairman of another .istne use No suggesoon was m.de regarding what effett should be gisen to conudera.
q uon of thn factor. Speedically the 6reanon of a new board was not diwwwed. nor was the remoul of Judge llrenner for tashul f or any other) reawns denuwed l 7 In our judgment the dnsusuon was entirely procedural and hypothettui. and
} dealt with the matter of the posuble resolunon of an nsue in a umc frame conustent s with operahon of the plant at or near the d.ste requested by the appliant if the out-1 come of the proceeding were to fasor such J result At no Ome during the mechtig
, was there any sirsussion of any substantne matter at issue in the Strorrhom f or ans l
i otherl prosceding. No one in the room espressed any prejudgment. nor esinsed any indiutton of hasing a prcJudgment, of what the actual outcome would be The tosus was simply on how quiskly the nsue could be decided D i
- 2. The March 16 meeting left Chairmdn Palladino conectned that the (dte of the Shoreham facility might be determined not by the '
i i
N joint AlfIdant 01' WelilJrr j Darths affd Gut }l Cwnningham. ltl f july ),14sah at J.a Iheg alldo et j W AS qubmflled Jg an attagPrnent to th( NR( $1Mr RetrenW in $utrulk (punty JRd Wie al %0w Mk Roue.i tur itesuia os c hairman panana outy 4. em the reymn.e. won ine arr.aa.n. n .iereed
[ 10 $idi Re9 polite, wrW During ihe sour,e n( ihe %tarsh 16 meetmg, judge Coner tonk .s r.:= rougn mee W ah re,cest in
$I' pre'hd8M thDte notes were belih Drier Jnd tr1 PIN W e dt%uu their preWnt wgf*tlin' Ant e latef 4ft e h64 openren 29 i
i i
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.-..._,__.,..,_.---y-. ,, - . . . - - . , - , - , , - . - . ..m ., -- , - - - ,--,_~_..._r _.mw-__,m,n. . - - , . - . - x--m,--.-,-.-.-e---.w-- -
i l
l merits of the case, one way or the other, but instead by the NRC's ina-l bility to run its processes efnciently."25 For this reason, he requested his personal staff to prepare "a one page conceptual draft directive" from the Commission to Judge Cotter.26 in addition, on Starch 20, the Chair-man sent a memorandum entitled " Licensing Delays" to the other Commissioners. That memorandum alluded to the Starch 16 meeting and, with respect to Shoreham, speci6cally noted that he had asked the Office of the General Counsel to prepare a paper concerned with possible avenues for expediting the determination on low power operation.
On Starch 22, Chairman Palladino sent a " working paper" containing the substance of a possible Commission directive to Judge Cotter. ' It conveyed the thought that a low power decision should be rendered by 5tay 9 and, to that end, set out a suggested hearing schedule.28 Within a day or so, Judge Cotter responded with a draft order prepared by him for possible Commission issuance.2' That order would have had the Commission direct the conduct of an expedited hearing before a newly appointed Licensing Board.38 Judge Cotter also included in the draft a speciGc " recommended" schedule that called for (1) the hearing on the applicant's $1 arch 20 supplemental motion seeking a low-power operating license to commence thirty days after the Sling of responses to that motion; and (2) a Board decision in another thirty days - i.e., on or about June 7.)' In comments following the draft, Judge Cotter stated his opinion that the "Islixty day schedule is brutally tight. Dennitely not recommended but possibly achievable "32
- 3. On April 2, the Office of the General Counsel (OGC) furnished the Commission with the memorandum that the Chairman asked it to prepare on the matter of expediting the determination on low-power operation.') One of the options discussed in the memorandum was a di-rection to the Licensing Board to conduct an expedited hearing on the applicant's N1 arch 20 supplemental motion." In this regard, OGC set
!$ indmdual statement of Chairmart Palladino, supra at II.
26 /J. at 12
] 27/ w 28 A copy of this document was appended to an April 4 memorandum rrom the Chairman to his fellow Commissioners. discuued as p 31. m/ra 29 A copy of this document hkeetse was appended to the Chantman's Aprd 4 memorandum.
J0 Cotter draft order at 1.
M
/J. at 6 7 This schedule would have alto ed sateen days for discovery and seven de*s thereafter for the fihng of prepared tesornony The hearms would start in another five day 5 and consume ten days J2 fj_ as g 33 April 2.1984 memorandum from Herrel H E Plaine to Commmioners ennited 'shoreham Lo.
Power Pro 6eedmg "
M IJ at 2 The memorandum noted that a separate Lkensms Board had been created to hear and decide the motion. IJ at 2 n 2.
i J
30 t
l l
l out a possible schedule, which called for a Board decision within eighty days following issuance of the Commission order. OGC noted that
"[tlhe demands placed on the parties by this schedule will likely be viewed by some parties as unreasonable because of the technical com-plexity of the issues."33
- 4. On April 4, Chairman Palladino sent a memorandum to the other Commissioners on the subject of Shoreham, with a copy to, inter alia.
the "ASLBP" (i.e., Licensing Board Panel). Attached to the memoran-dum were both the " working paper" sent to Judge Cotter and the draft order prepared by him in response. The Chairman indicated that further action "on this or any other draft order" would await the comments of the Commissioners on the April 2 OGC memorandum.36 C. As earlier noted, the Licensing Board denied the disqualification motion on the dual grounds of untimeliness and insubstantiality. On the i former score, the Board expressed the belief that the " alleged facts" were known to the movants long before the motion was Gled.3' More-over, given the current established hearing schedule, the Board thought the June 21 Gling "to be productive of unnecessary delays.")*
With regard to the merits of the motion, the Board explicitly denied i that any of its orders had been "innuenced in the least by any of the Commissioners, including Chairman Palladino, or by Chief Judge Cotter, or by anyone else in or out of NRC,")* In addition, the Board ex.
{ plicitly represented (1) that its members "were not acquainted with any of the actions of the Commissioners alleged in the motion"; and (2) that "the Individual Statement of Chairman Palladino before the Sub-committee on Energ and Environment dated May 17,1984, is the only source of our information other than rumors, which we have disregarded."*o Still further, the Board stated that the expedited schedule adopted in the April 6 issuance was "the product of lits) own judgment, and was not in0uenced or caused by anyone else."*'
By way of summary, the Board had this to say:
i Each Board Member wishes to state, categorically, that there has been no outside in-fluence or " pressure" exerted on them indmdually or collectively. Every dectuon 3314 at 1 Je The Chairman requested that thow comments be rurmshed no later than Apnl 9 37 order Denying Intervenors' Motion ror Disqualineation of Judges %iler. Bnshe and Joh.imn (June 23,19841 (unpubhshed) at 4 38 164 Under that schedule, arguments on dimovery motions took plAs on June 22. disovery ended on June 29, the prepared testimony was to be Cled on July 16 and the heanns is to begin on July 30 3*IJ at S.
- l64 "I 14 at 6 31 i
l
i or action taken by the Board was by rull agreement among the three members, and we expect it to continue to be thus. We rurther reject any notion or bias either tot or against any party in this proceeding.
The Board, neither individually nor collectively, was privy to the actions or es-changes cited at length in both the Motion and Affidavit. since this information was not furnished to the Board, either in whole or in part, prior to the County's pleadings, et is simply not possible to have been induenced by it, The actions or this Board were dictated by no more than the simple, long standing directive or the Commission to discharge duties m an efficient and espeditious manner. CLI %I 8.
IJ NRC 452 (1981).42 II. TISIELINESS Within the past year, we had occasion to stress anew that motions for disqualification or recusal must be submitted " *as soon as practicable after a party has reasonable cause to believe that grounds for disqualifica-tion exist.'"" This is because "any delay in Gling a motion for disqualili-i cation or recusal necessarily casts a cloud over the proceedings and in-creases the likelihood of delay in the ultimate completion of the case in the event recusal or disqualification is warranted and a new decisional officer must be appointed.""
As earlier noted, the Licensing Board concluded that the movants failed to adhere to this admonition in the present case. Although not resting our disposition of the referral on that ground alone, we agree with the conclusion.
The movants point out that their acquisition under the Freedom ofin-formation Act of the notes taken by Judge Cotter at the Starch 16 meet-ing" did not take place until " late Slay "" But it scarcely follows, as they would have it, that the movants were not in a position to seek the Licensing Board's recusal at an earlier point. By their own admission, the " bases" of the motion "did begin to become known in early 1984."a And it would appear that, by April 27, the movants thought that enough of those " bases" had surfaced to support an assertion that the Licensing Board should step aside. For, on that date, Suffolk Coun.
ty's counsel wrote a Ictter to the counsel for the other parties in Cuomo
'814 at t.
48 JesbrooA. sa,sca.18 NRC at !!98, e me hem Llerrue v Dmrer. otAe e/ i+areers' Co=prawrm boersas, $40 F 2J 1044,10$1 (D C rir 1976)
- 1b4
'8 fra no'e 24, supre
- suffoik and New York Response. impre. at 2
', /64
'I 16 4 l
32 1
1
\
)
- v. NRC, the suit brought to enjoin the Licensing Board's hearing schedule.*'In that letter (at 2), counsel stated, inter alia:
The County will Gle additional requests with the Commission for disestablishment of the Licensing Board consisting of Judges Stiller, Bright and Johnson beyond the April It written request of the Sufrolk County Executive) and also for recusal of such Judges and Chairman Palladino and Judge Cotter.
Assuming, however, that the movants nonetheless were justified in resting on their oars until they received the Cotter notes, the question remains why they then waited until June 18 before Oling their Grst -
l albeit incomplete - motion to disqualify the Board.$4 On Stay 31, the I
Licensing Board issued its new hearing schedule to replace the one vacat-ed by the Commission on April 30." That schedule called for the discov-1 cry process to continue until June 29 and the hearing to commence on July 30. As such, it should have removed all possible doubt that any en-t deavor to disqualify the Board should be undertaken immediately.
Instead, on June 6 the movants Gled their request that Chairman Palla-dino recuse himsell'8 and then waited almost another two weeks before Sling the motion at bar, in this connection, it is noteworthy that (1) pre-cisely the same events undergird both the recusal request directed to the Chairman and the disqualincation motion addressed to the Licensing Board, and (2) as the movants might well have anticipated, the Licens-ing Board has been required to hear and act upon certain matters while the disqualincation motion still awaits ultimate resolution - precisely the situation that the prompt Gling requirement is intended to obviate."
III. SIERITS It is well settled that
"(Aln administrative trier of fact is subject to disquahneation if he has a direct, personal. substantial pecuniary interest in a result, if he has a ' personal bias' against a partwipant, if he has served in a prosecutive or investigative role with regard to
- see note 15, sure. and usompanyms tesi The letter is round at Aitashmene $ to the Litco ener, nere 58 see note I, sure 81 order Estabhshing sshedule for Resumed Heanns (unpublished) 12 3,e note 20, mere on June 22. these movents filed a motion seesics the disquahtication of Judge Cotier from any further participetion in this proseeding H For essmple, on June 21 (the day the motion oss rented with the neceitary artdavii) the Licenime Bostd issued an unpubhehed order otheduhng oral argument ror June 22 on varieve pendmg Jiicovery matters on June 27, too days after the moima oss demed by at and rererted to us. the Baard entered an unpubhthed ordet confirming oral ruhngs made on June 22.
33
i a
the same fasts as are an mue, if he has prefustged fastual - as datingunhed f rom legal or poho - inues, or if he has engaged in sondust whsh gnes the appe.irarke of personal bias or prcJudgment of fastual inues "'
In this instance, there is no claim that any of the Licensing Board mem- '
bers is biased against either of the movants. or that the actions of the Board created the appearance of such bias. Rather. it is plain from the content of the disqualification motion, and most particularly its reliance exclusisely upon the disqualification standard set forth in the District of Columbia Circuit's decision in Cindere//a. that the Board is charged solely with impermissible prejudgment (or at least the appearance thereo0.
A. l . We have just seen that, in order to provide a basis for disqualilb cation, the asserted prejudgment (or appearance of prejudgment) must relate to " factual - as distinguished from legal or policy - issues "
indeed, that distmetion was at the root of our rejection man) > cars ago l
of the attempt to disqualify a Licensing Board mem5er in the Midland construction permit proceeding on the ground that a law reuew article he had written reflected prejudgment of issues in that proceeding. We there obsersed; i
Messewing the entire law restew atta!c. insluding cash of the pawage to whsh the Imnsants] hase referred, we find no cudense of prejudgment of a n lasts in mue Nor do we find any appearance or prejudgment All that we find n art endnidual I
who may hase sertain trpialhted news - indeed whel may pones an "underhing philosophy" - on the apphcation of MPA to the Comminion s bsenung proseu Preuous deentons ut thn lloard and the Commmion have esphully rnogni/ed ihn '
situation as nondisquahfying Thus, in the Bd>Ih case. we referred h1 Profouir Dasn' ut*. based on his analysis of the Jurisprudence in ihn area, that "the f.nl that a member of an adjudaator) tribunal may have a crptalli/ed pount of uew on questions of law or polsy n not a h.ises bir ha dnqualentation.""
Interestmgly, and appropriately, Cinderc/la was one of the cases cited in Ed/and in support of the dichotomy between factual issues on tha one hand and legal and policy issues on the other. In that case. the Federal Trade Comrrission had charged the Cinderella Career and Finishing Schools with false and deceptise adsertising. While the matter i
k -
" /%M %mer lh rm w d n (un Cu. Iflope Creek Generahng statma l r* I8 \L %H 'O 11 NR( lI j
)O t l 9%II . (tpur#g ('osManHg Pt Parasv (d I\ tad!ana Plant. L'i It i and 21 ti. \H lut, h \l C fwl eii 4
I l Y I)) kt 4)rktetr%cd in f/0,W ('FfN th(%( Jf( N%KJlIs lh4 sdfhe slafsdirJ that p st 1 thir J.siciales 4 a.
j wn v6 feMrth nutges in ois aeoseon .n ll.msh.n i ee rnne ,and f%>mer t 'n t'wurns re s , pvga t ,a g A JI, (. Ll424 19 % RC ! .t43. g g y ? ,l9429. me Commnsion empN, ired the . set'huNhn er feArd
,ua,us anyuaunon muoo .n ihn mno s aa,uas mr> cnuaims j
P %L4H101 wert 6 4l C as on if =onules ormnedi IPc vid /Asah me >e Leihr ra im/wre /%A b rac t o f Haill, Osnerattg su'irm No 11. tl %R 'A ) %tt til ll)(14'2' 34
-- _ . _ - _ ~ _ ._. _ - , , , , . . , , , , _ _ . , . _ . - . _ _ . _ , _ , . _ .
. --- _._ _ .- - - - - - - . _ - _- - . - - - - _ . - - = .- --
)
i i I l 1
3, -
4 1
4 was pending before the full Commission on an appeal by the agency staff from a hearing examiner's decision in Cinderella's fasor, the FTC t i Chairman delivered a speech in which he alluded to the facts of that ad- '
l ministrathe proceeding as an example of deceptise adsertising. I j Thereafter, the FTC. with the participation of the Chairman in its 2
decision reversed the hearing esaminer on a Onding that Cinderella had engaged in unfair and deceptive advertising practices.
j lt was in this contest that, in the course of remandmg the case to the agency for reasons unrelated to the Chairman's public statements. the j court ruled that he was disqualiGed from further participation. And that i the District of Columbia Circuit adheres today to the principle that only i the prejudgment of factual issues is disqualifying is manifest from its I f scry recent decision in the Southern Pacvic Communkarmns antitrust j proceeding. As the court there stated' 1
j lt is well estabbshed that the mere fast that a judge holds stewi on law or polio rele-i sent to the deviuon of J sase does not disquJhly him f rom hearing ihc (aw. %v. ,
1 e ca Awvurunt of Aarremot tdwwwrs. (m. y I (C. 621 (LZd f I$1. ll 74 (0 C. Cir i j 1979) !"Admenntrators. and esen judges, may hold siews on queshons of Li* prmt !
j to partwipating in a prosccding "I, arrr drard. 447 U S 921 fl94 H. at at 1l77 1
j iltsenthal,1, sor. urringt ("even judges . ire not dnquahlied merets hesauw tho j have pressously J.inuunted their pounons on legal enues"): L unrd horn i j /laldemaar, $$9 f'2J )), 136 n )32 (D C. Car 197M ten hanst frer surnamt j ("although lised, an opinioti on the law n not dnquahfpngl trer dewed 43l L i i 933 (1977) Indeed, uc can barely conscise of a fudge soming u* a saw will'.out hold, j j ing at least scrtain preconsepoons that may allc6t hn approath to the saw 'The i human mind. even at infanty, a no blank piste or paper % e are born with t predispoutions. and the prWcu of edusabon lurmal and enformal, treate attitude
- in ait men whath alrett them in Judgmg utuations, attitudes whish presede reawnuy m particular instances and w hish, therefore, by definepon. are prejudiso " /* rr / /*
Imaha,r Im o 138 F.2d 650. 651 12J Cir 19438. If a judge arproahed oery saw completely free of prcsoncened uews conserning the relevam la* and poto. sc
, would be m(kned not to applaud his imparttahty, but to quohon N's quatelisation to
{ serie as a jud',e
- l 2. In light of the foregoing, it is immediately apparent that the pre. !
! judgment claim advanced by these movants must fail. For, despite the l insocation of the Cmderc#a standard, in sharp contrast to the situation j in that case the movants here have not identined any specine /intval l
I issue that a disinterested observer might conclude had been prejudged i l by the Licensing Board members. This is scarcely surprising. The floard 1 i did not consider, let alone decide, any fwualissues in its March 30 and l l !
4 staufhrte M r/is (ksweuegetmut Ds e frdr,idr)J'jj 95) 99o.qg g[y p [4 g9ggg e gggymng 1 m oca.
4 35 i
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+
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i l
r April 6 orders - i.e., those Board orders to which the mosants point as evidence of the appearance of prejudgment. As we base seen, the March j 30 order did no more than call for oral argument on the applicanti sup-plemental low power motion and the establishment of a schedule for the
]j " expedited consideration and determination" of the issues raised by the i parties in connection with that motion. For its part, and insofar as object-ed to by movants, the April 6 order provided the expedited schedule i and also ruled on the purely legal issue of the application of GDC 17 to j low power Shoreham operation."
l We need add on this score only that it makes no difference whether
, the Licensing Board might have been influenced in reaching its judgment on the scheduling and legalissues by what it perceived to be the thinking of Chairman Palladino on those issues." There is a wide variety of possi-ble sources to which an adjudicator might look in formulaimg an opinion :
on a particular scheduling or legal question. We know of no authority.
and the movants point to none, for the proposition that an adjudicatory body's entitlement to continue to participate in a proceeding hinges i
upon how its legal or scheduling conclusions happened to be shapedM j B. Were prejudgment of a legal or policy issue (or the appearance I thereoD a basis for disqualification, the mosants' claim here would rest i on no better footing. According to the movants. a disinterested obserser i
could justifiably conclude (whether such was the fact or not) that the Licensing Board was aware of the " chain of events" commencing with the March 16 meeting and that these esents led to a prejudgment on the 4
scheduling and GDC 17 questions? The Licensing Board, however, has i
i F
Su pp 2$47. mire we do not undersiand the mosants to 6tasm that the Wrs h Id and Wed e 1 orders greated the impresson IN the Lnensing Bodrd NJ prejudged the ultemare quemon of she act4 tant'e enuttemem to a loe power twense Be that as it may, neuber orJer is sustruhte of that l anterpretation 4
the Board s GDC IT ruhng did not, of itselr. determire the hie tm.er matter RatNr, es the Board noted. IN rubrig left for reelvieon verlain raoual issues Lv p R u.fu r ind. ehetNr or not unduly tight in the totahr, of uNumstantes. ihe BoarJ's mNdule for IN huing of uwwe nwo
(
i
- 4s not so p4:ertily uriteawriable as to permit an enterense irtai the Board had servade maJe isp its mina (Na too power operauori stiould be authurved
! 18 As sNil shurify be seen. howeser, there is no resord basis for aswiurns that the BoarJ *as esens deare of the CNarman's thoughts respesttog shoreharts j M j
Wnifeedy, a Lnens.ng Bodrd member wouid not he sustined in tahang a sue r*n IN visemate meriu j
of a controsersy from the Commission's cNirman - or from any other NMC orrhi41 for iNo niaiter indeed. such a torretture of the Board memeer's endependense - and deresard of the solemn unirption not to eNwate his or her ediudwatory respons.B. hues - would he estremefr serious nusoriduit in ihm y
instante there is neither en espinti dlleg4 hon INI ough megunduti lor >h plage nor any gontrett 04-defite from ehKh ll rthght lie enlerred.
j one other equally obvious point hhemise requires no more than pasces mennon Thai .in adludn4sor j
Is not substVt IG disquehb4Jhon for prejudgment on a legal or hheduleeg isme does not mean that, d I
erroneous, the kon61usson reathed on the issue gannot he sustestruil) 4tlaghed 4s Pfessovelt posed in this in%ldnte Doth the espfdeled thedule afid the Go( II ruling genf ained sa the 4 ped 8 order mere d suDie49ertlI) oserturfsed $7 p 2I sf8/8Pir Mjune 21 disquabihaliott Mrslion, uymt di 24
'e 4 36 4
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s (e-e l% , % '
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) " expressly disclaimed tiit it was aware of any of the'chnts prior to the is-y suance of its March 30 and April 6 orders."' Needless to say, if that dis-l claimer is truthful the Board could not have been influenced by what the i s <
movants choose to characterize as the " Chairman's MJrch 16 interven-
- tion"** or by the desclopments in the wake of the meeung on that date.
llence, in order to reach the movints' suggested conesusion, the disin-
/ terested observer would have to infer first that the Licensina Board's dis-claimer was not truthful. '
We find no possible flendation for a reasonable inference to that elTect. The movants point to the fact that, unon being constituted. the f Board immediately issued its March 30 orders.n which it referred to the N
"evedited consideration and determinatida of the matters before it. '
< I The movany would hase il thatUn such a short time period, the Board s could not conceivably have reached on its own the cor;clusion utat expe- %
i dition was warranted.** Wefisagree. For one thing, the Board members
. yuight well have"ceen infortned o.' their new assignment in advance of
)
I the issuance of the formal federal Regnrce notice" and promptly em-p/ barked upon a study of the papers then in the record. IV another, it may confidently be assumed that the Board members were generally fa- ,
l f
' .l
miliar with the fully constructed status of the ShorEham facilit)" and the generie interest of the Commission in avoiding unnecessary delays 3
i in the adjudication of license applications for 50 h facilities." Armed with that general knowledge', and the inference arising from its assign-
)'
i t
ment to the low power phasepf the proceeding," the Board quite under- 5e
) standably would hay; wished 'N oral argument 10 focus won tne possi-
\
3 bility of an citpedited schedule.
- s i The March 30 order did not, of course. ontain a proposed schedule.
And it was only after hearing from the part.i.s on April 4 that the Board \,
I established the schedUh of which rne movants complain." The mosants ;
y
.) . , s I, I *' %, p )?. oer w % E f J i "I june 21 anquahh6aten musen. wrm at 4 g i p
1 * ' l.1 as !
- j "sush advante notNe woutJ tme have been improper There is nn reawn who a Lsenweg Board Panet i , member shoulJ intarubty be kept in the JarI6 restwting . ne, awgnment unni Such hme a the an.
l,
- { nounsement of the awgnment M tent to the /cdcraf #rentre
"'Indeed. gnert the eilenute media attemian that shortham h.sf. nt tuted n$er a sonuderable pernd
- j of time. vt would hase been tertuali, imprm.bie for the Bra. sed memtwr5 not m hage been aware of
~
2 shoreham s utuation
} ** W e e , swwnw.ru .>I Yelu t nur Queden r al Lwesmt Whcrthern CLl,4I.4. i) % RC 491 t Vis H. oad B$ the Roard at 14 of he % mi 6 orJer. wrir
[ , "' we .sgree eith our comurnng solleague that tPere en Bred reawn for the Board to hat!, rt.uwd
) . hat at was greated to enaNe 4 more espedmous Jestuon on the 4celesant's suprMmd at lohe<r
/ Ptollon thJn sould hhely hate beeft forthtomseg from the Roard ghaired by judge Brenner %v p 40,
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q " tr rc 2546.mcm ,
- i
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, 37 ,
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-__ _ _ . . , , _ . _ _ , , . . _ - . _ . , . - . - . _ _ - . .. - . ---. .~ _ . _ _ - - - - - . . _ . . . ~ - . - -- ---h'
i would attach significance to the " striking" similarity they perceive" be-tween that schedule and the one set forth by Judge Cotter in his Starch 23 draft order? In our view, however, the two schedules are not sufli-i ciently alike that a fair minded disinterested person would likely jump to the conclusion that the Licensing Board misrepresented the facts when i
it stated in effect that it had not seen Judge Cotter's draft order.
(Among other things, the latter provided sixteen days for discovery for its part, the Licensing Board was prepared to allow only ten days for that i
purpose.) 71 Aforeoser, had the schedules been closer, an objectise ob-server might still have been hesitant to indulge in the conjecture that the Board members were untruthful.
Insofar as the Licensing Board's GDC 17 ruling is concerned, the i
movants endeavor to tie it to (1) the nc 's that Judge Cotter took at the N! arch 16 meeting;" and (2) the Cotter draft orderJ) The former i referred to a discussed " alternative solution for low power" in these words: "LILCO file proposal to get around dieselissue [andl hold hear.
- ing on operattorr at low power."'* The latter suggested that the Commis-sion direct the Licensing Board to hold a hearing on that proposal."
Even assuming that one or both of these documents could be taken as l
i communicating a judgment on Chairman Palladino's part respecting pre-
' cisely how the GDC 17 issue should be decided (a dubious assumption at best),4 it simply does not follow that the Board must have been both aware of that judgment and influenced by it. The short of the matter is there is absolutely nothing before us that lends any support to a reasoned j
challenge to the Board's e <plicit representation that the GDC 17 ruhng in the April 6 order reflected its independent thinking on the issue.
What remains for consideration is the movants' attempted reliance' 4
upon the separate opimon of Commissioner Asselstine in connection with the Commission's N!ay 16 order reversing the Licensing Board's GDC 17 ruling and providing a suggested hearing schedule.' in that f
H June 21 daqualitiution nwnmn. wra. at 1 S' %v p. 27 & rmte J f. u,pa
'I 1%I
} U L r note 24, wra
') June 21 dNualitiuuon motwn. wra. at 910 l Cutter note, at i 1ernphann in ureginali I
'9 Coster drait order. wra. at 4. 34 To us. the trypts Cotier nine quoted in the icia Joes not suggest that the Chairm an had alreada dmded that the applsant should pre 6441 on the GDC 17 mue ind sigmtiuntis, when the mue ulin-maiety ume before the Commmeon. the Chairman ynned hn solleague, in re eryng qNe L.unw g Board 3 ruling in the arcinant's rator CLI 84 8. mea
" June 21 dnyualesiution nmtmn, w/va, at it & n 2 Ct.l-84 4. wra 19 NRC at 1IM 7
38 f
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opinion, joined on the point by Commissioner Gilinsky in his own separ-ate opinion,' Commissioner Asselstine expressed his behef that this Licensing Board should be replaced.'" This was not, however, because the Commissioner thought that the Board had been guilty of prejudg-ment or, for some other reason, was subject to disqualification based upon its March 30 and April 6 orders. Indeed, the Commissioner did not mention either of those orders but instead referred specifically only to a subsequent Board order concerned with a quite different matter.5'
( In these circumstances, there is no substance to the movants' suggestion l
that Commissioners Asselstine and Gilinsky have demonstrated that the Cinderella disqualification standard has been satisfied."2 l
For the foregoing reasons, we hold that the disqualifkation motion is both legally and factually' insubstantial.*5 Accordingly, the Licensing i Board's denial of the motion in its June 25,1984 order is a//irmed.
It is so ORDERED. {
FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the r\ppeal Board Opinion of Mr. Edles, concurring in the result:
1 join the Board's result but wish to outline my slightly different path to decision. Because I do not believe that there is ample information to l
M (J.al11$9 so 14. at 1860 8' load The disquah6 cation motion at hand does not ailuJe to that order l 82 June 21 disqualiGeation monon, wpra. at 11 12 l 83 Beca*JW Mr. Edles concurs in this rewit. incre is no need to dwell ai icngth upon our ditierentes in l approach. s#ite it to say that, as indwated cartier in this opinion. *e do not sh.are his bebel that the dis-quah6 cation motion should be read 46 mphedly muerting tnat the Laenung Board has 6reated the an-pearante or prejudgment or "the dismate question of the apphwet's entitlement to a Io..ao er .
license.' See p 40. ,itra For oric thirig. had rnosanis' counse! intentcd to adtinse suth a staim. :: o accept their assertion that the expedited schedule was of their own making.
That is not to say, however, that the Stiller Board did not understand, or assume, that it was to move quickly on the low-power request. The Brenner Board originally handling the case, after all, had set a schedule looking toward a decision on the issue of a low power license by the end of 1984. Thereafter, it was decided that another board should handle the pending application. At a minimum, the Niiller Board must have rea-soned that it was created in order to decide the low-power application on a faster schedule than the Brenner Board.
I share the majority's view, however, that neither the Board's belief that expedition of the case was in accord with the wishes of someone in the hierarchy (if that was its belie 0 nor its decision to expedite, standing alone, constitutes a valid basis for disqualification. Court decisions indi-cate that only where outside agents attempt by procedural means to in-fluence the substantive outcome of a case through external pressure on a presiding officer might disqualification be in order.'
Suffolk County and the State allege more than imperrnissible expedition, however. As my colleagues note, the Licensing Board is charged with the appearance of prejudgment. The majority believes that the movants allege only prejudgment of discrete legal or policy issues I disagree. As I see it, the movants also claim that there is an appearance that the Licensing Board has in some measure prejudged the ultimate question of the applicant's entitlement to a low-power license. The clear import of the motion is that a disinterested observer would infer that the h1 iller Board's actions were part of its insolsement with the Chairman, Judge Cotter, and the NRC staff "in pursuit of aiding LILCO with an
' expedited' low power decision that 'got around' the diesel issue."2 The h1 arch 30 decision to expedite the application, the ruling on GDC 17,
' See P4 TCO e. federal Labor Retorums Justvern. 68$ F 2a 541. 504 nas (o C Ce 1911t. A,no r Cali/ar:J. 613 F 2a 1012d Cir.1980s; Gurf O,/ Corn r. frc. 561 F 2a 548. 610 Od Cer l 9 P ' . fniera t Bmadiostmx Sisarm v. TCC. 225 F 2d 560. 56% (D C. Cir ) (dsiumi. acre kned we mur. it //EC ,.
federal 8madcavms Ss stren. 354 U s 913 (l9$$L 2 June 21 dNuathauon monon 4: 11 40
.-- .,. ~- , .-
and the schedule outlined in the .\pril 6 order are not the esclusive sub.
jects of the motion. They are, the mosants beliese, also indicia of the Board's ultimate predisposition. The ultimate question on which the ap-pearance of prejudgment is alleged - i.e., whether a license should issue - is a mised question of fact, law and, perhaps, policy and discretion, that could justify disquali6eation.
Applying the Cmdcrcl/a standard, however, I think a disinterested obserser, familiar with the facts as now known, would conclude that no substantise judgment on the esentual outcome of the application, or any subsidiary factual determinations, has as yet been made. I do not suggest that the movant's theory underlying disqualiGeation - i.e., that the N! iller Boar!/ bas been in some measure coopted - might not be inferred by some cynical or skeptical observers despite the Board's assertions to the contrary. Such allegation may well also demand a more searching ap-pell ate esamination of any decision the Board may esentually reach on the merits. But, on the basis of present information, I think it is more reasonable to conclude simply that the N1 iller Board saw its role as get-ting the show on the road.
1 I
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i
4 Cite as 20 NRC 42 (1984) ALAB-778 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
Christine N. Kohl, Chairman Gary J. Edles Dr. Reginald L Gotchy in the Matter of Docket Nos. 50-352 50-353 PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2) July 23,1984 The Appeal Board affirms the Licensing Board's oral ruling denying the intervenor's motion for a hearing in connection with the applicant's revised request for authority under 10 C.F.R. Part 70 to ship, receive and store new fuel at the Limerick site prior to receipt of an operating license for the plant. The Appeal Board also denies the intervenor's re-quest for a stay of any movement of new fuel from the outdoor storage area to inside the plant.
I RULES OF PRACTICE: 13131EDI ATELY APPEALABLE ACTIONS A licensing board ruling that remoses any possible adjudicatory im-pediments to the issuance of a 10 C.F.R. Part 70 license by the Director of the Omce of Nuclear Ntaterial Safety and Safeguards (NSISS) is im-mediately appealable. Phdadelphia Electric Co. (Limerick Generating Station. Units 1 and 2), ALAB-765,19 NRC 645,648 n.1 (1984).
42
=
y - - .---m#;
SIATERIALS LICENSE UNDER PART 70: SCOPE A Part 70 materials license does not permit operation of a reactor at any power level, or esen foading of the fuelinto the reactor sessel.
RULES OF PRACTICE: PROOF OF SERVICE Proof of service should accompany all Glings with the Commission. A certiGcate of service should show the names and addresses of the persons served, the manner of sersice (e.g., deposit in the U.S. mail), the date of service, and averment of the person making service. See 10 C.F.R.
i is 2.712(e),2.701(b). All Glings must also be submitted to the Commis-sion's Public Document Room or Secretary.10 C.F.R. j 2.701(a).
i
, RULES OF PRACTICE: RESPONSlHILITIES OF PARTIES (LAY REPRESENTATION)
Even though represented in proceedings by a non lawyer, a party is expected to comply with the rules of practice. See Pennsyhania Power and Light Co. (Susquehanna Steam Electric Station, Units I and 2),
ALAB-563,10 NRC 449,450 n.1 (1979).
RULES OF PRACTICE: ISSUES ON APPEAL ~
An adjudicatory decision is usually the product of the arguments raised by the litigants. A party cannot be heard to complain later about a decisicr. that fails to address an issue no one sought to raise.
SIATERIALS LICENSE UNDER PART 70:
RESPONSlHILITIES OF NRC STAFF Notwithstanding the absence of a hearing on an application for a mate-rials license under 10 C.F.R. Part 70, the Commission's regulations re-quire the staff to make a number of Gndings concerning the applicant and its ability to protect the public health and safety before issuance of the license. See 10 C.F.R. 70.23, 70.31. Cf. South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-642,13 NRC 881, 895-96 (198l1. alfd sub noun. Fairfield United Action v. NRC.
679 F.2d 261 (D.C. Cir.1982).
1 43 4
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r
4 SIATERIALS LICENSE UNDER PART 70: APPLICATION FOR LICENSE (A31END31ENT)
An amendment to a Part 70 application gives rise to the same rights and duties as the original application.
SIATERIALS LICENSE UNDER PART 70: !! EARINGS A person whose interest may be atTected by Part 70 licensing action is entitled to some form of adjudication of that interest, though it need not be a formal hearing before a licensing board. See section 189a(1) of the Atomic Energy Act. 42 U.S.C. s 2239a(l). The consistent agency prac.
tice, however, is for licensing boards, already presiding at operating license hearings, to act on requests to raise Part 70 issues involving the
- same facility. Limerick, supra. ALAB-765,19 NRC at 651-52.
RULES OF PRACTICE: CONTENTION (AD.\llSSIBILITY) To be admissible for litigation in a licensing proceeding, the conten-tion and its bases must be set forth with reasonable specificity.10 C.F.R.
} 2.714(b).
TECHNICAL ISSUES DISCUSSED Handling and Storage of New Fuel at the Reactor Site, Fire Protection of New Fuel at the Reactor Site. APPEARANCES Robert L. Anthony, Stoylan, Pennsylvania, for intervenor Friends of the Earth. Troy B. Conner, Jr., Alark J. Wetterhahn, and Nils N. Nichols, Washington, D.C., for applicant Philadelphia Electric Company. Joseph Rutberg for the Nuclear Regulatory Commission staff. 44
AIEAIORANDUA1 AND ORDER Intervenor Friends of the Earth (FOE) appeals and seeks a stay of a June 19,1984, ruling from the bench by the Licensing Board during a hearing on the application of Ph,iladelphia Electric Company (PECo) for a license to operate the Limerick nuclear facility. See Tr. 12,057 64. Through a motion, Gled with the Licensing Board on June 18, 1984, FOE sought to submit unspeciGed contentions based on PECo's June 7, 1984 . revisions to its application, pursuant to 10 C.F.R. Part 70, for the shipment, receipt, and storage of r;ew fuel at Limerick. FOE also sought to stay mo\ement of the fuel from outdoors to the refueling Moor inside the plant. Relying principally on earlier decisions concerning PECo's Part 70 application, the Licensing Board denied FOE's motion. Sec LBP-84-16,19 NRC 857, a//~d, ALAB-765,19 NRC 645 t1984). As explained below, although we do not agree with all aspects of the Licensing Board's oral ruling, we Gnd FOE's appeal to be without merit.' I, The background of the instant appeal is re0ccted in two previous deci-sions by the Licensing Board and this Appeal Board. See LBP 8416, supra. and AL AB-765, supra. Brie 0y, PECo earlier applied under 10 C.F.R. Part 70 for authority to ship, receive, and store new fuel at Limerick, in advance of obtaining a 10 C.F.R. Part 50 license to operate the facility. FOE sought a hearing before the Licensing Board on the Part 70 application and tendered several contentions that it proposed to litigate. The Board dismissed each for lack of basis and specificity. Sec 10 C.F.R. ) 2.714(b). It also concluded that FOE had faiied to supply a credible scenario for either a criticality accident or the release of harmful radiation through some means not involving criticality. We affirmed the Licensing Board's decision.: In the absence of any litigable contentions, there was no need for a hearing on PECo's Part 70 application. Thus, the Director of NMSS was free to issue all or a portion of the Part 70 " materials license" sought by PECo's application. On April 3,1984, the i The Licenung Boardi ruimg remoted any powdie adiud<satory impediments to the ruuante of the Part 70 Iwense M ine Director os the or&c of Nuticar staterial safety and Safeguard,IN\tss Thus the ruling n immedwiciv appealable. L e Al \ B 7 6 4. wpta.19 NRC at 648 n i Our gradtttseri to pm Dft k(If. 4 appeal and MJy rCQuc48 il pur'u.th 10 COfPmt% Yon o? der of' \f arth 2. l%4 luppubHshell A L ave 5. wpeu.19 NRC at 6fd n a Ihe (JmfEn80n aegisned to rChiew AL T4763. ritJking el adfhaf'hlralne') final on jufic 4. 19814 Mof'Crt L. \ T1ori>. FOES em v representaine. ha pettiiorxd ror jud.s we rem = i ths new. 4 retien-mi P%ktrina Eh ria ('n.. No $4 3m (3d Ci> r;ted June 22 IM48 45
Director issued Staterials License No. SN>t-1926 authorizing PECo to receive, possess, and store a specified quantity of new fuel assemblies in their shipping containers in the designated outdoor New Fuel Storage Area at Limerick. Prompted at least in part by a request from the NRC staff for more in-formation about the remaining portion of its Part 70 application. on June 7,1984 PECo prosided that information and " revised" certain portions ofits earlier application. It also requested the staff to issue the remainder of the license authorizing mosement to the refueling floor for inspection and storage in the fuel pool. See Letter from B.L. Serini (NRC) to S. Payton (PECo) (April 25,1984h Letter from Gallagher/ Kemper (PECo) to R.G. Page (NRC) (June 7,1984) and Attachments [hereafter, " June 7 Application"). PECo's resisions to its Part 70 appli-cation and the request to mose the fuelindoors are the source of FOE's present concern.' Although FOE's June 18, 1984, filing with the Licens-ing Board was styled " Contentions Based on New Ntatter relating to the Part 70 application FOE in fact proposed no specific contentrons.
"reserv[ing) the right to submit these to the Board if and when revisions of the license in the proper form are submitted."
The Licensing Board found no need to await responses to FOE's June 18 motion and denied it summarily. The Board ruled that its previous decision, LBP-8416, supra, "linding no health and safety or an> other impact to the then proposed contentions . . under the proposed Part 70 licensel,1 . subsequently issued, still appl [iesl." Tr.12,058 The Board thus declined "to revisit the issue again," and suggested that, in any event, it did not have jurisdiction to do so. / bid. The Board also stated that "[t]he fact that there may be changes under the license or conditions does not affect the very basic findings which we made in rejecting the contentions [in LBP-84161." Tr.12.059. In the Board's siew "any further changes under the license" do not base "to come before and through the Board." Ibid. See a/So Tr.12.062. On appeal,' FOE argues that both the Licensing Board's earlier deci-sion in LBP-84-16 and our arTirmance of it in ALAB-765 are limited to
- foe has also riled motions before lhe Laenung Board, and argues here before us as =cti et orem tion to Ptco 3 Wy 9.144 moteon for an em% red pattui imtw! dects.on and low power Isense io lo.ed and tem fuel in the reador the t.itenung Booru has riot )ct ruled on the sartous motions sons ern.
Irtg afty low powCr authortlJiloft [ bug, thCfC as flo dectgeon in this FCgJrd that ,obtd N: appe.ded hLDrdir'gl). f ob4 lUw pi. wef nd FClJ ed strguments. spriMklcd 'MrOughout sis Part 70 api *ea are not pf0pCrl) DCiorC US dnd *dl FlOt De .iddrCsWd w e efMphaM/c that il Part N filatsf'al9 lgg'he de%'s efor peTrWt OperJilO*: of the rCJktof Ji Wn IViser IC4Cl. or e%Cn loJd.r's of 'he ruelirito the reattor seswl
' foe's appeal Jocs not sonta.1 pnet of serme. s rCuwred bv she cor""imo41
- Rule, o' Prat.se \
Lerdlitale Ol *Crvit e thOuld he th! nCC$ Cd .nkarew;g of the pecorg wrsed de r.unnst .4 wrs u ic ll . depw I *n the U.s rnail), the date of erw.c. and aserme'it of ;he persni taker s seis se b Iti f( a e e- x ,l! 46
storage of the new fuel assemblies outside the plant buildings, whereas its present concern is the mosement inside, uncrating, and indoor stor-age of the fuel. FOE also points to the revisions of PECo's Part 70 license application as new matter not encompassed in the earlier Board decisions. FOE concedes that it did not proffer any contentions based on this new matter, but claims it reserved a right to do so. In that connection, it presents four " contentions" to us in its appeal papers. Both the NRC staff and applicant oppose FOE's appeal. 11. FOE's argument that the two earlier Board decisions on PECo's Part 70 application concern only the outdoor storage of the new fuel assem-blies is without merit. To be sure, the principal focus of both LBP 84-16 and ALAB-765 is the temporary storage of the fuel outside the plant in the New Fuel Storage Area. But those decisions necessarily focus on the outside storage because that is the primary area to which FOE directed its arguments. PECo's original Part 70 applications clearly included a re-quest for authority to move the new fuel inside the plant for storage. See e.g., PECo Amended Application for Special Nuclear Material License for Limerick Generating Station Unit No.1 (attached to Letter from B.H. Vogler to Licensing Board (February 21,1984H [hereafter,
" January Application"! at 2, y 1.2.1; 3-4, s 1.2.3; 8 s 1.2.4.2; 17-18. } 2.2.4.2; 18-19, s 2.2.4.3; 20, s 2.2.5.2; 20-21, s 2.2.5.3; 23-24.) 2.3.2.
Thus, FOE could have raised contentions about indoor as well as out-door storage at the time of its earlier filing that led to the decision in LBP-84-16. In fact it did so, to a limited extent, and the Boards' deci-sions address those arguments accordingly. See, e.g., LBP 84-16 mera. 19 NRC at 871, and ALAB-765, supra.19 NRC at 655, concerning FOE's proposed contention on the overhead crane, which is inside the plant. Simply stated, an adjudicatory decision is usually the product of the arguments raised by the litigants. A party cannot be heard to complain later about a decision that fails to address an issue no one sought to C F R. 46 2.712(cp. 2 70ld b> FOEN appeal alus .bo not show that any sop.es were filed. .n rmmred. with the CommimonN Paci.e Docuntnt Raorn or setrctar) %r 10 C f R 4 2 'Ol f.es W e remino foe that esen though it as repre cnicJ in :h;s protecd,cy bs a non.l.iwser. d n enwed to u m,Hv with the Rules or Pract<c Scr Pennu nana ru*rr and Lntm On t su=4ucharna steam Hestr.t sanon. L rus I and ?! As. A B-M 10 NRC 449,450 n I (1979t
- We refer to PECo's Pari 70 apahcanon. as arneadet anJ wemitted to the surr m Januan 144 .n +a "or:gmal" apphunon hause ihat an ewennacy a.c scrunn under cenuderatuen 'n L dP.ilm amt AL AB.703 in f.wt. PECoN fint Part 'O1%ng w as m Jane 190 Sn \L\!!.7M. wna 19 N RC at b44 J7
l raise. Thus, the fact that the Licensing Board's and our earlier decisions speak principally to outdoor storage of the new fuel is a direct reDection of FOE's concerns, as expressed to us. Further, it is too late now for FOE to raise issues in connection with PECo's original Part 70 application. See p. 51, infra. FOE's earlier failure to propose any litigable contentions meant that no hearing was required for PECo's original Part 70 application. The Director of NMSS was therefore " authorized" to issue the entire special nuclear material license sought by the application as it was then worded. Notwithstanding the absence of a hearing, however, the Commission's regulations require the staff to make a number of Gndings concerning the applicant and its ability to protect the public health and safety before issuance of the license. See 10 C.F.R. {s 70.23, 70.31. C/: South Carolina Electric and Gas Co. (Virgil C. Summer Nuclear Station. Unit I ), ALAB-642,13 NRC 881, 895-9e (1981), a/j'd sub nom. Fair /le/d Umted Action v. NRC. 679 F.2d 261 (D.C. Cir.1982). Pursuant to those responsibilities, the Director issued only that part of the license that would permit outdoor storage of the fuel and requested additional infor-mation from PECo. PECo provided that information by revising its appli-cation on June 7. To the extent that PECo's June 7 revisions signi6cantly amend its ear-lier application, neither our earlier decisions nor FOE's earlier proposed contentions could have addressed those amendments.' We therefore agree with FOE that this is new matter, giving rise to the same rights and duties as the original application. In ALAB-765, supra 19 NRC at 651, we observed that a person whose interest may be affected by Part 70 licensing action is entitled to some form of adjudication of that interest, though it need not be a formal hearing before a licensing board.7 We also noted, howeser, that "[tlhe consistent agency practice
, is for licensing boards, already presiding at operating license hearings, to act on requests to raise Part 70 issues insohing tne same facility." /d. at 652. We thus went on to uphold the Licensing Board's as-sertion ofjurisdiction in this proceeding over PECo's Part 70 application.
In this circumstance, we think it was proper for FOE to return to the Licensing Board with its complaints about the June 7 revisions to PECo's materials license application. We therefore disagree with the Licensing Board insofar as its oral ruling here on appeal suggests that it
- The Lwenung Board's oral ruting and the picadings (iied by FOE ana PLCo refer to a ncenw amenJment'" A Imer arnendrnene. t'oweser. es not what n .es tuAly at sw e here - ar teier. an anw%
mem b c.. PECis June 7 resiueno io th.i pan m the Part 70 archiaw f ar ansh no hs-we h.a yet been .uued 7 This right is derned from wenon 189A IF of the Aion:ic F nergy Act. 42 L. s C 4 2234at l e 48
was without authority esen to consic e any contentions based on the ap-plication as recently revised." This ruling, however, constitutes harmless error, for FOE actually pro-posed im contentions to the Licensing Borrd based on the revised application. FOE's claim that it reserved a right to submit contentions at a later time must fail. FOE appears to base this claim on its view that the revisions to PECo's license application were not submitted to the Boant properly. But all that the Commission's regulations seem to require with respect to Part 70 applications is submission to designated NRC sta// offices. See 10 C.F.R. ss 70.5, 70.21. Compare 10 C.F.R. 4 2.101.* We need not determine, however, what constitutes " proper submis-sion" of Part 70 documents. Here, the important fact is that PECo sent copies of the revisions to its Part 70 application to FOE's representatise, the other parties, both the Licensing and Appeal Boards, and the Com-mission's Docketing and Service Branch on or soon after June 7,1984 Indeed FOE acknowledged its " receipt" of this document from PECo in its June 18, 1984, motion before the Licensing Board.8" Hence, there is no justification for FOE's failure to submit contentions to the Licens-ing Board along with its other more generalized arguments. FOE now attempts to cure this infirmity in its case by proposing four
" contentions" to us in its appellate papers." We would ordinarily remand such a matter to the Licensing Board, leaving it to determine whether the contentions are too late and, if not, whether they hase merit. But, as we explain below, the contentions are clearly without merrt. A remand in this circumstance would result in an unproductive use of both the Commission's and the parties' resources. For this reason 8 rhe Board's ruhng is wmewhat .imbiguout it could be understomi to mean (Nt the sef) DfCJdth M Hs earker opirhon in LBP.34-16 (60 sering bmh enuuhty and noncnnuhty ausdents) would netewanly Japow of anr sontennons tN: could arise from the Part 70 appliunon. Sw Tr 12.059,12.062 we would agree that the laws of phyms and the ph>wut propernes of the new fuel awembhes here insohed - whxh undcrgirded the Boardi opinion in LBP.8416. as well as ours in AL A B.765 - erect utstan-Hal obstattes to the formulauon of a htigabic contenuon. we are not prepared to assume, nomeser. int the) etrcci an abwiute prectusann of such a comennon in any event. as esplained above, a party is en-IH'ed to.n opnoriumoy to attempt the propod oran admissibic contenuon. 'In At AB 765. wfirrt 19 SRC at 651 n.10. 657 n 20. me noted the abscoce of any slearcut n.nne re, quirement for matcnals Ir;enses Le 10 C F a 4 'O 318d) tJocamems relaung to Part 70 apphunons "may~ be made available far pubhc enspecaons. we renew our wggesu< n in AL A3 '65 ihas she Cor:n mnuon consider estabhshing ticarer procedures for me Nndl ng of anateruls t.cenw sm N Thus, the probiem of PLCoi failure m not fy the dvd and parnes of .is orig nal Pare '9 appheanon - dacaswd in ALT 3 763. s.rors.19 VC at 6M - es not prewns here PtECa argues ihn .hese comenuens 'iltash could has been protT: red by FOE in its learlier) ino.
nons " to she u.enaang BJard and mes one esample Apphcant's Response i!uly 20.1914. at 12. b is down at pp 50-5 2, entra. apar: nom tnt one cumps e . Fof's tantennons e ern PtiCoi June 7 rese-woes and clurly (%IJ w. Nge beer proffered c.irher 49
alone, we take the unusual step of brie 0y discussing FOE's proposed contentions. FOE's first contention concerns s 1.2.4.2 of PECo's application, which has been revised to provide that "[ alt least one of two water sources
. and two fire pumps . will be available" for fire protection of the new fuel inside the plant. June 7 Application at 8, s 1.2.4.2. This section previously stated that "[allt fire protection systems . will be in place and operative . " January Application at 8, s 1.2.4 2. FOE claims that .
an explosion from a nearby pipeline or railroad accident would collapse the cooling towers, damaging the nonsafety pumphouse and disabling both fire pumps. Thus, " tire protection cannot be assured 'operatise' until mitigating measures against these explosion hazards have been car. ried out." FOE Appeal (July 3,1984) at 2. But as in the case of the con-tentions dismissed in LBP-84-16, FOE again fails to proside an adequate basis and specificity for its contention. See 10 C.F.R. 4 2.714(bl. j
' Indeed, the particular risk that is of concern to FOE is not even indicated.
Given that FOE's proposed contention is directed to the resision to
} 1.2.4.2 of the application," however, we assume that its basic concern is with the apparent lack of redundancy in tire protection We further assume that FOE is fearful that a fire (of unknown origin) on the refuel-ing Door might become uncontrollable in the absence of such protection and destroy the cladding and other shielding around the fuel, thereb) facilitating the emission of harmful levels of radiation. But even if such an unlikely destruction of the fuel cladding were to occur, we explained in ALAB-765, supra,19 NRC at 654, that unprotected ceramie uranium dioxide fuel pellets of the insolved enrichment "would emit radiation at levels well below the dose limits set by the Commission in 10 C.F R.
Part 20." See Affidavit of Norman Ketzlach (.\! arch 13,1984) at 2-3. Thus, even with our aid in fleshing out its contention, FOE has failed to posit a credible risk that warrants further consideration. FOE's second contention is based on PECo's resision to y 2.2.5.3 of its application. In response to the staff's request, PECo specified that the minimum distance on the refueling Door between (a) a pile of shipping containers loaded with new fuel and (ii) other fuel assemblies (e g., open containers and those at the inspection station) will be live feet. The minimum distance between a pile ofloaded shipping containers and
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4 the spent fuel racks will be 23 vertical feet. See Letter from B.L. Serini. supra. Enclosure at 2; June 7 Application at 21, s 2.2.5.3. FOE's conten-tion does not challenge the distances themselves as inadequate; rather, FOE complains that there is no mechanical means to assure that these distances will be maintained. FOE Appeal at 3. Presumably, FOE is con-cerned here about a criticality accident, though it does not so state. But FOE has failed to explain why such special assurance is necessary in this j instance. In the first place, FOE does not proside the elements of a credible sce-natio for a criticality accident involving these new fuel assemblies See ALAB 765, supra.19 NRC at 654. Further, if PECo's application is granted and a license based thereon is issued, the maintenance of the specified distances between groups of assemblies will necessarily be a condition of that license (just like many other aspects of the application). Failure to observe that required spacing would be a viola-tion of the terms of the license, subjecting PECo to NRC enforcement action and possible civil penalties. That provides the incentne to
" assure" maintenance of these distances, especially in the absence of any basis for requiring more.
FOE's third proposed contention concerns s 2.2.5A of the application and asserts that "[tlhere is no quali0 cation for auxiliary hoist or cherry picker . " FOE Appeal at 3. Apart from the fact that FOE again fails to explain what it means," s 2.2.5.4 was not revised by PECo's June 7 filing. Comparc January Application at 21, s 2.2.5.4, with June 7 Appli-cation at 2121 A, s 2.2.5.4. Thus, FOE is estopped from raising any new contentions on this matter, unless it satisfies the Commission's criteria for admitting late contentions,10 C.F.R. s 2.714(a)(l) - which FOE has made no effort to do. Finally, FOE refers to the revision of s 2.3.2, which gives PECo the option of storing the new fuel assemblies in the spent fuel pool either l underwater or dry. FOE argues that dry storage does not afford safe pro-tection against a criticality accident and that storage in borated water is
" required." FOE Appeal at 3. FOE provides no reference to such a re-quirement and we can find none. See, e.g.. NUREG-0800, NRC Standard Review Plan (SRP), s 9.l.l; American National Standard ANSI /ANS.
57.3-1983. Indeed, dry storage of these new fuel assemblies logically pro-vides more protection from a critica!ity accident because water acts as a
" moderator" necessary to achieve and to custain a critical chain 38 foe rerers io "FsAR Ifsnal safen anaims Regwn! T4Ne 21 %once net hean 1.wd mandling u sien *
- we can Ond na such referente we uil FOf % attenoon. however. to Fs gR. t 411. hnh disunes the quali6cton of the reador endo ure tranc 51-l 1
l t l
)
1
.~. - , , - .,- -
reaction. See ALAB-765, supra 19 NRC at 654. Thus, this contention as well lacks any basis. In sum, any significant amendment to a Part 70 appheation gises rise to the same hearing rights as the original application. Gisen the Licens-ing Board's previous assertion of jurisdiction oser PECo's original Part 70 application, it was reasonable here for FOE to return to that Board with its concerns about such amendments. FOE failed to propose any contentions to that Board, however, and those it seeks to raise before us are without merit. We therefore a/Jirm the Licensing Board's ultimate ruling denying FOE's June 18 motion and deny its request for a stay. It is so ORDERED. FOR Tile APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board v 4 I II i This s rKI to suggest that storage of new fuel m malet b not sJ!c Lther, let.: merJit sonJmons of the pool and contigurJtion of the fuct must be sush thJa scrtJin Commiumn standJ-ds foi prmei;ti m JgJinsi critwatcy are sJti<(<d Siv SRP. 4 9 I I, um . FOt hvre ranes no yMis sh41' erne so the sitii. cahy 6 akulJisons performed for the tsme"ith ruel pooi Lr FS \R. t 9 i 21 i W C J 10 DCTC thJl the tMrpn in thg tharsica 46al0r that rof glaims eu "regor,ca" W Jlrge preicm ir thC borJI pidic5 in thC l'Uci JMUIJ r' Lks %f } Jet Jar) \ pj'istJtton JL 4d,4 l 2 3 I,1419 42243 1 52 4
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1 l
t i Cite as 20 NRC 53 (1984) LBP 84-26 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges; i Sheldon J. Wolfe, Chairman Dr. George C. Anderson ' Dr. Hugh C. Paxton ) In the Matter of Docket No. 50 482-OL i (ASLEP No. 81 453 03-OL) KANSAS GAS & ELECTRIC COMP ANY, et al.
, (Wolf Creek Generating Station, Unit 1) July 2,1984 The Licensing Board issues an initial Decision authorizing the is-suance of an operating license for the Wolf Creek Generating Station.
Unit No.1, provided two conditions have been met prior to the issuance of the operating license. I RULES OF PRACTICE: STIPULATIONS
, Having accepted the benef'its of a stipulation, one is estopped from ; challenging it. To/cdo Edison Co. (Davis-Besse Nuclear Power Station).
AL AB-300,2 NRC 752,767-68 (1975). OPERATING LICENSE HEARINGS: ISSUES FOR CONSIDERATION At the operating license stage, a Licer: sing Board passes ont> tipon contested matters. While a Licensing tioard has the residual power to ' delve into any serious matter, even if ro party has put it into usue, here 53 l i l l r
_ - . - . _ __.,m - - - _ . _ - . _ . _- _ ._ _ _. ..-. _.. . .- s-i i i 1 a the Board determines that there were no serious matters which it should raise sua sportre, and thus, the decision as to all other matters which i need be considered prior to the issuance of this operating license is the i responsibility of the NRC Staff and it alone.10 C.F.R. ss 2.104tc), 2.760a; 10 C.F.R. Part 2, Appendix A. Vill (b); Corisohdated Eduorr Co. of New Fork (Indian Point, Units 1, 2 & 3), ALAB 319, 3 NRC ISS (1976). RULES OF PRACTICE: FINDINGS OF FACT 3 If the Licensing Board, pursuant to 10 C.F.R. s 2.754, directs that all j parties should file proposed findings of fact, conclusions of law and briefs, any party failing to file these submissions shall be deemed in default. Florida Power d Light Co. (St. Lucie Nuclear Power Plant, Unit
- 2), ALAB 280,2 NRC 3,4 n.2 (1975).
- 1 i'
J ESIERGENCY PLANS Emergency planning is a continuous process and a Licensing Board's findings are predictise. i 1 E31ERGENCY PLANS Niinor details, which are not set forth in the emergency plans, are a i proper subject for post hearing resolution by the NRC StalT. Lonniana Power arid Light Co. (Waterford Steam Electrie Station, Unit 31, , i ALAB-732,17 NRC 1076,1106 (1983). ' TECHNICAL ISSUES DISCUSSED
- Emergency Plans.
APPEA R ANCES Jay E. Silberg, Esq., and Delissa A. Ridgway, Esq., for the Applieunt> i' Alyron Karman, Esq., fcr the United States Nuclear Regulatory Commission j Brian Cassidy. Esq., for the Federa! Emergency Slanagement Agency John Al. Simpson, Esq., for the intervenors I i k 1-54 1 l I l l x . w- c ,--,- ,, .-,-.v-. ,. , _ , . . , , . . ,.,.-,,,,n - . , ,. - - - - .- - ---- , e-.. ,-. ,n-
i ,__2 1 i TAllt.E OF CONTENTS
- Page OPINION 56
- f. INTRODUCTION 56 A. Background 56 B. Content of Opinion and Findmg3 58
- 11. E.\lERGENCY PLANNING REGULATIONS 60
! 111. TiiE CONTENTIONS 61
- 1. Initial Notification and Official Communications 61
- 2. Coffey County Courthouse and EOC Communications 62
- 3. Sheritrs Communications Equipment 63
- 6. Emergency Response Command and Control 64
- 8. Esacuation Time Estimates 64
- 9. Esacuation Routes 65
! 11. Public Alert and Notification System 65
- 12. Public Emergency Planning and information 68
- 13. Evacuation of Pregnant Women and Small Children 69
- 14. Evacuation of Schools 69
- 15. Evacuation of flealth Care Facilities and Residents Needing Special Transportation Assistance 70
- 16. Esacuation of Persons Without Private Transportation 72
- 18. Tratlic Contros Access Control and EPZ Security 74
- 19. Radiation \lonitoring and Decontamination 75
- 20. Shelter Facilities and Services 79
- 25. County EOC Evacuation 81
- 28. Dose Control for Emergency Workers 82
- 29. Training . 83
- 31. Resource Availability and Allocation 86 IV. CONCLUSION 87 FINDING 5 OF FACT 87
- 1. Initial Notification and Official Co nmumcations 87
- 2. Coffe> County Courthouse and EOC Communications 89
- 3. Sherift s Communications Equipment 90 55
Page FINDINGS OF FACT (Connnued)
- 6. Emergency Response Command and Control 90
- 8. Evacuation Time Estimates 91
- 9. Evacuation Routes 91
- 11. Public Alert and Notification System 43
- 12. Public Emergency Planning and Information 9n
- 13. Evacuation of Pregnant Women and Small Children 97
- 14. Evacuation of Schools 97
- 15. Evacuation of liealth Care Facilities and Residents Needing Special Transportation Assistance 99
- 16. Evacuation of Persons Without Private Transportation 102
- 18. TralTic Control, Access Control and EPZ Security 104
- 19. Radiation Alonitoring and Decontamination 106
- 20. Shelter Facilities and Services til
- 25. County EOC Evacuation 113
- 28. Dose Control for Emergency Workers !!4
- 29. Training i15
- 31. Resource Availability and Al!ocation 121 CONCLUSIONS OF LAW 122 ORDER 122 INITIAL DECISION (Operating License)
Opinion I. INTRODUCTION A. Background On Niay 17, 1977, the Nuclear Regulatorv Commission ("NRC") issued a construction permit to the Wolf Creek G:nerating Station. Unit No.1 (" Wolf Creek"). Wolf Creek is located in CotTey County. Kansas. approximately 53 miles south of Topeka, 73 miles southwest of Kansas City, and 100 miles east-northeast of Wichita. On August 5.1930 Kansas Gas and Electric Company ("KG&E"). Kansas City Power & 56
Light Company, and Kansas Electric Power Cooperative, Inc. (collee-tively " Applicants") filed an operating license application for Wolf Creek. Wanda Christy and Stary Ellen Salava ("Intervenors") sought a hear-ing and were admitted as Intervenors based on a contention challenging the' workability of the emergency evacuation plan. Kansans for Sensible Energy ("KASE") was admitted as an Intersenor together with its con. tention on Applicants' financial qualineations.' Following the completion of initial and supplemental discosery, the parties negotiated, and the Atomic Safety and Licensing Board ("Licens-ing Board") ultimately adopted over 300 extremely detailed contentions on the workability of emergency evacuation, which were grouped under thirty-two headings. (Unpublished Order of July 28, 1983). Some of these were subsequently withdrawn, leasing 216 contentions admitted as issues in controversy. Evidentiary hearings took place on January 17 21,23-26 and February 14-16, 1984 in Burlington and Emporia, Kansas. Limited appearance statements were also taken. During the course of the hearings, the Federal Emergency N1anagement Agency (FENI A) tendered a document entitled " Interim Findings on the Adequacy of Radiological Emergency Response Planning by State and Local Governments at the Wolf Creek Generating Station, Buriington, Kansas (December 13, 1983, resised January 5,1984)." This document was admitted into evidence as FEN 1 A Exhibit 3. Also, the Coffey County Contingency Plan for Incidents In-volving Commercial Nuclear Power, Revision September 1983, and the State of Kansas Plan, Annex A, Nuclear Facilities incidents Response Plan, to Assistance R, Nuclear Emergencies of the State Disaster Emergency Plan, September 1983, were admitted respectiscl> as Appli-cants' Exhibits I and 2. I In an unpubinhed order of June 9.1%2. ine Baard damnied K AsE n a parts and ns mmenoon bCcJuSe. elIcC!ne klargh }\, l%2. the Commmmn had Jmerded tis regulabons un remme flat %ul quahlicatiors ames from, among other thmgs. proceedmgs insolung operahny hiense a;ytoimns bs electrie utilshes t, paa appea! by K ASE. the specA Board held the anneal in abeunte peens a deo-anon in 4 federal court upon a perrtre ler reuew of he amended fina%ul quahrecauons rule. t pn F.+ru-ary I lN h in vfir {4s'kt@el t"oQt: Inn OM .%us kWr fashsenine s' A AC '2? Y 20 l l2' 0190 ', ?nC ( Part M Appea $ for tl e District or e otumtm rarted the penbog. .id renunded :he rule to t9e C memsei 'or further prucci gs consate1: with its opinmn K AsE moseJ for remstatement. and. on 4 rril :H. I h the Appeat Bud ettended the ume ror the librg ot rc conses to 4 dan following the emm e of tN Com rawon's new poke) staternem. *h@. it understnod anuid be mued woh 1.i te
- d.in rt e i man +
ual Quahlication statement of Pohn, da:ed Jee
- IW4. 41 Fed Rcs 24.11I fIM4*. ute)iu te Comm suon% ' larch 31.102 rule 4hn anat.ng e. set m finaneat quantisanon re acw ream emer.*
for ciutr e aulmest mitt conunue m crTest uni i : nahnoon of inc Corie,-s,on , re p..nse ei che Co rrs remand. and direcie) ste hten .g .ind aree i Wres to proseed aimedmgh in addmon. *e wou o rote inat we are a.. ire of tr e oesmon .9 L um nr ( m mut b n e * \#t
?)5 F 2J I437 ID C. Cir IM4 w e unJerst md that Me Court's mandate wdt w w for +4 lau 57 l
The Applicants filed their proposed findings of fact, conclusion 3 of law and brief in the form of a proposed imtial decision on Ntarch 20. 1984. The Intervenors filed a similarly captioned submission on N1 arch 30,1984, and on April 9,1984, the NRC Staff and the Federal Emergen-cy Management Agency tiled a joint submission. Applicants filed a reply on April 19,1934. B. Content of Opinion and Findinsts The first part of this initial Decision begins with the Licensing floarJN Opinion, which encompasses an introduction, the text of an opinion by the Appeal Board addressing Emergency Planning Regulations, an anale sis of the Contentions, and a Conclusion ' The second part of the initial Decision consists of the Board's Findings of Fact. Conclusions of Law. and Order. It should be noted that all of the proposed findings of fact and conclu-sions of law submitted by the parties that are not incorporated directly or inferentially in this initial Decision are rejected as unsupported in law or fact or as unnecessary to the rendering of this initial Deession Further, it should be noted that, at this, the operating license tage of this proceeding we pass only on contested matters. While we base the residual power to delve into any serious matter, even if no party has put it into issue, we have determmed that there were no serious matters which we should raise sua sponte, and thus, the decision as to all other matters which need be considered prior to the issuance of this operating license is the responsibility of the NRC Staff and it alone.10 C.F.R. ss 2.104(c), 2.760a; 10 C.F.R. Part 2. Appendix A. Vill (bL ConsoMated Edison Co. o/ New York (Indian Point. Units 1. 2 & 31. AL AB-319, 3 NRC 188 (1976). Iwe relegJtC 10 J IootnOle J fUJller ratWd h Intert erph !n the'r brfel tithf !be nedr'g (*M s in contrOb eh)- " In a \lefitorarldum and orJi-r of Janu.ar) y.1 J4 4 IL HP 41.14 NRL 29 5, tne H.um Nd JdrfilltCJ J lJie fried 40filenhon thish Jlleged that the ro*n of wn er!) and sertml of 4= wnouh should be arkluded in tN plume espowr e patswa) emergeno planmng mne \ u a supulanon e.etuud
- % all the parnes. it was greed. among ottsr megs_ that lmers enors m eihdrew the wntcmmn.
- hat the espdflMon Of the EP/ to i,slude wneri) erd th who e would be snow, m iN With Counn PLn.
thJ1 %Jrious prnedurw n or tiems sot..d N propued Yr in ths C.. tim) Pf aa. e id 'hal oth. ts ms wmad be (urmhed to 4 nerty shools ard hou,eholds Tne B u d aucpved tha mpulsi.on on I corun 24 WH and it *n adrmsted inic cuderse a* nu Purei tshiba i rhe inursenoi, rou urre a1 rstr nrnt that the operairng ;stense shoulJ nor he niued artei ah the wndit. ens , pes ded en me sepaunen >re wt torth m the Counn Plan and urtii the \ppMnts and C r'c C ounu 'use denmn tras.J Mi a thes e n niet all iPe cettdehong m ihe tis.'ubben Itdensn' rs sJnnot N he.atj to .atsame su, h 20 ar gurnem the w JbCfly (Offl4*filtOf1 hd% DCert % tihdrJ% n a4 .cf! a%%ue 4f14 4'MirUt eh) . tnd the l3ter% Vf10rs ghd D44 rt'% fi e Irl thC %Opula4oll art) f 8ght to FJ8'ct th se reifSUdn* \I4 reOser. In hD **g .44ep.ed ' N nen.f$ l* 08 t he Sl'I'u'J40n. thC inter %Cn9f% .tre estopped ' rom Oh keng sa h an a rg on.en t rd in [ .r m n (i t Dnnhe % stear Power sianont \ L \ H040. 2 % R C H 2 'h th s i 19 's 58
Finally, it should be noted that, pursuant to the decision in Viremia E/cctric and Pmar Co. (North Anna Nuclear Power Station, Units I and 2), ALAB-491, 8 NRC 245 (1978), the NRC Staff stated in the Safety Evaluation Report of April 1982 (StalT Exhibit 2), that it would therein evaluate thirteen applicable unresolsed generic s..fety is3ues. With re-spect to twelve of these uncontested issues, the StalT esplained why op- , cration could proceed esen though an oserall solution had not been found - as to each of these the StatT concluded that Wolf Creek could be operated before ultimate resolution without undue risk to the health 4 and safety of the public. We conclude that the StalT has taken these issues into account and we are satisfied that the Staff has dealt appropn-ately with these generie safety issues. Iloweser, with respect to A-46 Seismic Qualification of Equipment in Operating Plants, the Staff stated that it had not completed the seismic review of equipment in the Wolf Creek plant and would report on its review in a supplement to the SER. Since Supplements 1-4 did not address this matter, in a letter of June 5. 1984, the Board requested that the StatT provide, in aflidavit form, a full and detailed explanation as to why it is acceptable to permit Wolf Creek to operate in the face of this safety issue under study, and, although this was an uncontested issue, insited comments by the other parties. The Staff attached to its covering letter of June 14, 1984, the aflidasits and 1 professional qualifications of two Staff members. The Applicants timely submitted their comments; however, FENIA and the Intervenors did not submit comments. On June 27. 1984, the Board reopened the record solely to admit (a) the Board's letter of June 5,1984, as Board Exhibit 1, (b) the Staffs submission of June 14, 1984, as Staff Exhibit 3, and (c) Applicants' letter of comments dated June 21,1984, as Appli-cants' Exhibit 7. One StalT member, the Task Nianager in the Generie issues Branch of the Division of Safety Technology, whom we deem competent to attest to the matters in his aflidasit, stated that unresolsed safety issue A-46 had been incorrectly included in the Wolf Creek SER because s 3.10 of NUREG-0800 requires that plants like Wolf Creek whose construction permit applications were docketed after October 27,1972, should be de-signed to meet the current seismic design criteria. After reading NUREG-0800, we agree. Apparently, in order to present a complete pic-ture to the Board, another cognizant Staff member, a mechanical engi-neer in the Equipment Qualification Branch, proceeded to state in sub-stance that the seismie qualification review team's site audit in Decem-ber 1983 showed that the seismic and dynamie qualificatier; program of equipment as installed at Wo!f Creek met the requirements of specilled current licensing criteria, and that the Staff anticipated by the fuel load 59 1 I
date of Wolf Creek in October 1984 that all open items related to the site audit will have been resolved. He also opined that that USI A-46 had been incorrectly included in the Wolf Creek SER smce it applied only to the seismic qualification of equipment in operating plants. We agree - A-46 redeets that its objective "is to establish an esplicit set of guidelines that could be used to judge the adequacy of the seismic qual-ilications of mechanical and electrical equipment at all operatinrt plants in lieu of attempting to backfit current design criteria for new plan t s. " (Emphasis added). Thus, we conclude USI A-46 is inapplicable as an unresobed generie safety issue in the instant case.
- 11. E31ERGENCY PLANNING REGULATIONS In Louisians Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,1093-94 (1983), the Appeal Board stated as follows:
in the wake of the Starch 1979 accident at Unit 2 of the Three Ntile Island facility. the Commission undertook "a formal reconsideration of the role of emergeno plan-ning in ensuring the continued proteenon of the pubhc health and safety m area, around nuclear power facilit:es." 45 Fed. Reg. 55.402 ( Aug.14.1980) \ccordingis , the Commission promulgated regulations requiring, prior to the issuanic of an operating bcense, a linding of " reasonable assurance that adequate protestne meau ures can and will be taken in the esent of a radiological emergency ' 10 C F R 4 50 47(a)(l). AdequJte protestive mCJsure$ for olfsite. as well Js onsite, are required. The Emergency Planning Zone (EPZ) concept, adopted as an added son-sersatism to the Commnsion's " defense-in-depth" philosophy. prosides the means ofimplementing olTsite emergency preparedness 45 Fed. Reg at 55.406 The regu-fations set forth 16 emergency planning standards and define the areas of responu-bility of the bcensee and state and local organgations concerned with emergeno re>ponses. (10 C F R. ) 50 47tb). See aho 10 C F.R. Part 50. Arpendn E ) in addition. NUREG-0654/FENI A REP 1, " Criteria for Preparation and Esaluanon of Radiological Emergenc> Response Plans and Prcparedness m Support of . Nuclear Power Plants." Res.1 (Nosember 1980), prepared jointly by the NRC and FESt-\. proudes guidance for developing and reviewing emergency pians. In the instant case, the Board took official notice of NUREG-0654, Rev.1 (November 1980) at transcript page 457. 60
III. TIIE CONTENTIONS'
- 1. InitialNotification and Official Communications (FJgs.1-5)
Contention 1(c) alleges that the County Plan does not make adequate provision as to how the Sheriff will notify the U.S. Corps of Engineers, U.S. Fish and Wildlife Service and the Kansas Fish and Game Commis-sion once the decision to evacuate has been made, and thus that the time estimated for esacuation will be longer. Changing and/or limiting the thrust of this contention, Intersenors argue that the Coffey County Contingency Plan for Incidents insolsing Commercial Nuclear Power (the County Plan) is deficient because the above identified three agencies located at the John Redmond Reservoir are not manned 24 hours a day to rece./e emergency telephone calls, and because, as of the date of the hearing, tone alert radios had not been installed in the agencies' headquarters. However, the record reRects that while, with one exception, the tele-phones at the headquarters of these three agencies are not manned around-the-clock, the SherifTs ofGce has the home phone numbers for at least one individual and an alternate employed in each agency. We conclude that this is an adequate arrangement. Moreoser, while tone alert radios, which are required by the County Plan, will not be delisered until the spring and will not be installed until the early summer of 1984, this does not mean the emergency plans are defective. Emergency plan-ning is a continuous process and our Gndings are predictive. We are satisGed that, pursuant to 10 C.F.R. s 50.47(a), the emergency plans are sufGciently detailed and concrete to provide us with reasonable assurance that they can and will be implemented in the event of an emergency. In addition, the plans must be completed and there must be a full scale ex-ercise before the NRC Staff can authorize full power operation per 10 3At the introducterm refleets. ufru, 216 cortentions atre adtr aited as issuo in sentroses Only the Appheants and FEM A presenteJ utrest tesiimcny w ib respert thereto - the f riersenors and 'N NRC st frcou.eurnmeG At the t: g:nmng or the hcanag and uton the W.smg ni the resord, resuant ta 10 C F R 4 2 754. the Bmrd dirated that at part'es should % aropwa (muscus os fiu. conovoons of law and &,:cfs and warred tPat. d the *as not S.ric by an3 party. wh a r. arts wouH % deemed art Jefaul. i Tr 150. U6CO' %twenwndmg thest ord2rs. t*te In'ersceurs ta, led to CW proro,M fled-1f165 u[ l4st, cortjuh0?s of l s e arid a Srtel wi h respr:ct 10 aap'os ritt4h j $l .st th; g tor tentsorg al J t are dee md to ue n Jefault fkeda Po = re J La** 0. is.. Luve Nurkar Power PMt. I n-' 21 AL A8 290. 2 MC 3. I t12 (lU5L tr.dceJ the ir enens rs otumn onii .ader6W hmet.d are ts of > the rerrum ,g Si contennons m ;Nnged the ihrusts incrent - *e deem e$at the inter caurs hate aban-dcried otne' .npecta of thrusts and tPus we .cnuder anj decide omv ins Loninted r. arrowed assst, or shorged .hrusts. 61
C.F.R. Part 50, Appendix E, s IV.F.I.b, and 10 C F R. t 50 47.* Loum-ana Power and Light Co. (Waterford Steam Electric Statmn. Umt 31 LBP-82-100,16 NRC 1550,1563 (1982), aFJ. ALAB-732.17 NRC 1076 (1983). Contention 1(i) alleges that the County Plan is deficient because it fails to specify whom the Fire Leader should notify when a Fire Chief at a particular tire department is unavailable. Such a specilie identification is unnecessary and the contention is thus without merit. Tce standard
" fire" notification procedure will be followed in the esent of an emergency at Wolf Creek; i.e.. the Fire Leader will dial the " tire num-ber" for each fire department which will automatically ring the tire phones of the Fire Chiefs and their alternates (as well as other firemen) in the various towns. This procedure will be set forth in the County Plan implementing Procedures.
The Staff is requested to confirm that the tone alert radios have been installed and that the standard " tire" notification procedure has been set forth in the County Plan implementing Procedures.
- 2. Coffey County Courthouse and EOC Communications (FJgs. 6-9)
Contention 2(b) alleges that ten or twelve people will be required to man the telephones at the County Emergency Operations Center, but that none are available. Intervenors argue that the County Plan is deficient in failing to identi-fy those individuals at the Emergency Operations Center (EOC) who will answer telephme calls. They also argue that key persconel will be di-verted from perfoi - > ; their emergency duties if required to answer the phones. There is no merit to these arguments. In addition to the eight-een or more key emergency response personnel at the EOC. there are the public information officer, some secretaries and other personnel to handle phone calls. Moreover, it is not anticipated that many phone calls will be made by the public because broadcasts at 30 minute intenals will update information and will advise that the EOC should not be contact-ed. Further, most of the EOC telephone numbers will be unlisted and thus unavailable to the public. Finally, even though State and County
' 'n ma ns rcmenavns disuwd ri"ra. it a s.mt:Jriv tentendest thJt ene smerg. no piam Jrc dehst se MLJ'J A .h I'd thqi time fd thC h4Jring. Ler'.in derh had Dot & teen m . iled, gef tJin ints Jnd trJenmg m>Ictish %d rot been $omp'eted serton perenel NJJ not set b:en ,cksted or (fened. Jnd that er.
IJIM litm1 hJd RO! Min PfepMilponed we all! not reiterd.c Our dns uwon, W'rd InsteJJ. oc airl f* ?f 6*!) Cutttlude. En 4UMIJnse, th41. W hlic IPe CmCigtnty plJ15 merc "0L l'flate.'t'd Ji Inc ' idle Ol' t he heJrmg. the were wi%iemly daci< ped tu permit us so nue the ~re.sv.nJ%e .u%rance ' finung pur. .uam to 10 C F.R 410 Mid) 62
emergency personnel will hase the uniisted numbers, most of their com-munications will be made via two-way radios. Contention 2(c) alleges that the telephone system of the County Courthouse and of the EOC is inadequate - i.e., more lines are needed in the event of an emergency. Intervenors, narrowing the thrust of this contention, argue that the operating license should not be granted until a second telephone line is installed in the County Engineer's OITice to accommodate telephone calls from those individuals needing emergency transportation. This argument is without merit. In the first place, it is the County Shop that will receive such calls for assistance. Second, in addition to an existing line, the County has already planned to install a second telephone line for this purpose. Third, indisiduals seeking this assistance will be assured of contacting the County Shop because, upon dialing the emergency number, the two phones will ring. We are reasonably assured that this protective measure can and will be taken in the event of a radiological emergency. (See note 4, supra). The Staff is requested to conlirm that this second telephone line has been installed.
- 3. Sheriff's Communications Equipment (fJgs.10-1D Contention 3(a) asserts that the Sheriff needs radio equipment that will enable him to talk to the Wolf Creek plant and to all of Coffey County.
Altering and/or narrowing the thrust of this contention. Intersenors urge that, although new radio equipment is to be installed, this capability did not exist at the time of the hearing, and thus that the operating license should not be granted until this new equipment has been both in-stalled and tested. The argument is without merit. The short of the matter is that this new equipment will be installed in the Spring of 1984 enabling the Sheriff to communicate directly with the Wolf Creek plant and to reach all of Coffey County. Further, emergency preparedness ed ercises to test this equipment are part of the operational inspection proc-ess and are not required for any initial licensing decision. (10 C.F.R. 4 50 47(a)(2)). Thus, while the Plan was not finalized at the time of the hearing, it was sufficiently developed to p:rmit es to make the " reason-able assurance" finding pursuant to 10 C.F.R. y 50.47(a) (See note 4 Supra). The Staff is requested to confirm that the radio equipment for the Sheriff has been installed. 63
I
- 6. Emergency Response Command and Control fFdgs.12-14)
Contention 6(g) contends that staf0ng will be inadequate during an emergency evacuation because the Sheriff, who is responsible for direct-ing and controlling evacuation from the Emergency Operations Center will not be relieved by the Under Sheriff since he will be in the Geld taking care of various traffic control and security matters. Intervenors suggest that the County Plan be revised to provide that the Under Sheriff will assist the Sheriff during emergency evacuation and that the former should be assigned no conflicting duties. This contention lacks merit. Sin.:e the maximum time for evacuating the plume exposure pathway Emergency Planning Zone (plume EPZ) is estimated at 2% hours, it is clear that a SheritT would not need the relief as proposed by the Intervenors. There is nothing in the record suggesting either that the incumbent (or his successor) would need assistance in carrying out these duties or that a problem might arise if the Under Sher-iff (or his successor), in the absence of the Sheriff, had to be called upon to be the Acting Sheriff.
- 8. Evacuation Time Estimates fFdgs. IS 16)
Contention 8(c) alleges that the County Plan does not contain an es-tima'ed evacuation time for individuals who do not have their own auto-mobiles for transportation. Narrowing the thrust of this contention, Intervenors argue that the operating license should not be issued until the County Plan is amended to reflect that the estimated evacuation of 2.5 hours encompasses all classes of the special population that need transportation. The current County Plan, revised in September 1983, in stating that the estimated time for evacuation of a nursing home and a hospital was 2.5 hours, did not specify that this estimate included the time for evacuating individuals needing transportation. Applicants agree that the Plan should be correct. ed to reflect that this estimate includes the evacuation time for all classes of the special population needing transportation. Since the Plan requires that the Emergency Preparedness Coordinator review it on at least an annual basis and requires that a certi0 cation that it is current be submitted to the County Commissioners, we see no justi0 cation from the standpoint of health and safety and have been given none for delay-ing the issuance of the operating license until September 1984. We are satis 0ed that the Plan will be so corrected. 4 64
Q s
's
[ r s ) 9. Evacuation Routes (Edgs.17 ??! , Contention 9(c) alleges that the Cm .ity Plan is deficient because the evacuation routes send evacuees downwind. It also alleges thatdic lhn \ needs to give adequate consideration to wiiid directions and to possidie changes in wind direction during an eucuation. - ' Changing the thrust of this contention, Intervenors argue either that the County Plan is deficient occause it does not predesignate alternate evacuation routes that might hpe to be used depending upon the w.1d condition at the time of tt e quency or that it is deficient in failing to require that, in advance or an emergency Emergency Broadcasting 1 System (EBS) announcements be drafted designating alternate routes which night be necessitated by the wind direction at the time of the 4, actual emergency. This contertion, as revised. is without merit. We con-clude that the Plan is adequw; because it designates evacuation routes which were predetermined upon the basis of predominant wind direc-tions at the Wolf Creek site. An emergenc'y planning document should
, be as clear and as simple as possible - it should not be burdened down with "what if" details, especially when, as here, the predominant wind 1 directions have been taken into account. N!oreover, our conclusion that the Plan is adequate in this regard is predicated on filSfNs witnesses' f testimony that none of the plans that they had worked upon previously had predesignated evacuation routes based upon ddTering wind condi-tions that might exist at the time of the evaeuation. Finally, we conclude, as does FEhf A, that it would be too cumberscme to draft EBS announcements predesignating the numerous alternate routes which >
might be necessitated by the wind direction at the time of the evacuation .f and that it would be too time-consuming to make a selection from these numerous announcements at the time an emergency arises. Contention 9(e) similarly contends that the County Plan,is deficient in failing to predesignate alternate routes in the event the designated routes are closed because of weather conditiot.s. This contention lach merit. The fact of the matter is that, with few exceptions, all of the , County roads are travelable year round. Further, because of the exten- ' sive road system in the County, it would be too difficult to predesignate - alternate routes. Finally, such predesignation would be unnecessary be-cause EBS announcements would inform the public to take an alternate \ route.
- 11. Public Alert and Notification System (Edgs. 23-32) ,
Contention ll(a) alleges that the County Dan is defluent because l under the Plan it is not possible to notify 100% )f the population within q b , I 1 .l 65 h ( il t i s s
T 5 miles of the site within 15 minutes and because it is not possible to assure 100% coverage within 45 minutes for those who did not recene the initial notincation and who are within the 10-mile emergency plan-ning zone. Altering and/or narrowing the thrust of this contention, Intersenors Orst assert that, while three lhed sirens have adequate range to alert the three agencies having jurisdiction over the John Redmond Resersoir, (1) a small portion ofland under the jurisdiction of one of the agencies, the U.S. Fish and Wildlife Service (F&WS), is not within that range, (2) the County Plan does not specify how visitors in that small area will be warned O) such visitors could not be warned within 45 minutes, and (4) that to date tone alerts had not been installed in the F&WS OfDee. After reading the County Plan, we are satisGed that, in following the procedures set forth therein, the F&WS will be able to notify visitors in all areas under its jurisdiction (including the small area not within range of a siren) that they should evacuate. Further, in light of FEM A's con-clusion that F&WS will be able to notify visitors in its jurisdictional area within 45 minutes, we have reasonable assurance that these protective measures can and will be taken within that time span in the event of radiological emergency. Finally, in our analysis of Contention 1(e). supra, we have already dealt with the argument that the County Plan is deficient because tone alert radios had not been installed as of the date of the hearing. In passing, we note that the County Plan prosided for the installation of one siren to serve this area. but that Applicants have committed to install two additional ones. The Staff is requested to con-Grm that these additional sirens have been installed. Second, Intervenors allege that a boater in the middle of the reserveir would be unable to hear the sirens and that such a person in a motorboat most certainly would not hear the sirens because of the engine noise. The record reDects that the ranges of the sirens do encompass the middle of the reservoir and the sirens can be heard, but that boaters do not venture into this area because of the shallow bottom. In any event, if a person in a motorboat did venture into this area, it is reasonable to assume that, because of the shallow bottom, he would soon move on to areas where the sound levels from the sirens are greater and could be heard over the noise of the engine. Third, Intervenors allege that farmers working in their Gelds may not receive direct notification through sirens or tone alert radios. However, the County has arranged for the Emergency Broadcasting System an-nouncements to remind people to go out into the fields to notify family members or friends who are farming and might not hear the sirens or the tone alert radios. 66 I I l
Fourth, intervenors allege that the County Plan is inadequate with re-spect to giving special warnings to the hearing impaired who can be identified in advance. However, the Plan does contain provisions for in-dividual alerting of persons who, because of drafness or other reasons, could not hear the sirens or tone alerts. Based on a County Survey, it is estima:ed that approximately fifty households may require such special notification, and, as stated in the County PI:.n and in testimony, the Fire Leader's personnel will individually alert forty and the County Engi-neer's personnel will so alert ten households. The County Engineer testi-fled that the ten households would be alerted within 45 minutes, and, by virtue of the numerous fire department personnel availabie to alert l the remaining forty households and because there is no evidence to the i contrary, we conclude that the Fire Leader's personnel can likewise com- l plete their mission within 45 minutes. Moreoser, in implementation of
'the County Plan, a list identifying these hearing-impaired persons will be prepared from the County Survey, and will be updated by the County Health Nurse, by family members, and by the return of the attachment to the public information brochure which is maikd annually to the public. While the County Plan was not finahm at the time of the hearing, it was sufficiently developed to permit us to make the " reason-able assurance" finding pursuant to 10 C.F.R. s 50.47(a). (See note 4 supra).
Finally, it is of no moment that, at the time of the hearing, the County Plan did not contain letters of agreement committing the Coun-ty's fire departments to make these special notifications. The Plan indi-cates that these letters will be inserted. In light of the above analysis, we conclude Intervenors' allegations are without merit. Contention ll(e) is concerned that the County Plan fails to proside for backup warning procedures and personnel in the event a siren should fail to operate. However, the record reflects that the sirens will be frequently used, tested and maintained and thus the likelihood of siren failure in an emergency is reduced. The contention in any event is without merit. NUREG-0654 does not require that backup procedures of this nature be set forth in emergency plans. We note that, should a siren fail to operate in an emergency, patrol cars and fire departmem vehicles would be sent to alert the affected public. Contention ll(j) alleges that the County Plan does not proside for the testing and maintenance of the tone alerts. The contention clearly is } in error. The County Plan specifically states that tone alert radios are to ) be tested weekly by the Emergency Broadcast System; thus this prosi-
}
} ston exceeds a FEMA guideline which states that tests are desirable on
)
l
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.g$
at least a monthly basis. Moreover, brochures accompanying the tone alert radios notify the recipients that the tone alerts will be tested weekly and that replacements will be available from the County's Emergency Preparedness Coordinator.
- 12. Public Emergency Planning and Information (Fdgs. 33-36)
Contention 12(e) contends that there is no detail about how the educational information would be provided to transients. Instead of ad-serting to the alleged absence of detail in the County Plan with respect to methods or procedures whereby educational information would be provided to transients, the Intervenors now argue that the operating license should not be granted until the County Plan is amended to speci-fy the exact location ofinformational signs at the John Redmond Reser-voir and until the information on them has been developed and ap-proved by FEM A. However,10 C.F.R. % 50.47(b)(7) and NUREG 0654 Criterion G.2, merely require that signs should be utilized to disseminate information to transients; s 5.4 of the County Plan meets this require-ment in stating that large public information billboards will be used to provide information for transients at the Redmond Reservoir. Thus. these arguments are without merit because the exact locations of the bill-boards and the wording which will appear on the billboards are not re-quired by the regulations to be set forth in emergency plans. The record does reflect that these billboards will be placed on access roads into the Reservoir and will instruct that, upon the activation of the sirens or other notification of an emergency, visitors should turn to identified EBS stations on their automobile radios. In addition, Gyers will be left on the windshields of unattended cars at the Reservoir, which will in-clude the basic information on the billboards plus a map showing the esacuation routes. While the County Plan does not specify the number of signs to be used or their exact locations on the access roads, these minor details are a proper subject for post hearing resolution by the NRC Staff. Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,1106 (1983). Contention 12(s) alleges that the County Plan is dencient because, al-though the Public Information Officer will advise parents where their children have been evacuated to, this information should be furnished at an earlier time. The contention is in error. The County Plan does identify the host counties' registration centers for the schools being evacuated. Moreover, the public information brochure will advise par-ents which host county facility their children will be evacuated to in an emergency, and this same information will be repeated to parents at the 1 68
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s-i i time of an emergency via EBS announcements, which announcements , are included in the County Plan. i 13. Evacuation ofPregnant Women and Small Children (Fdgs. 37-33) I l Contention 13(b) asserts that the County Plan is deficient because it [ fails to provide transportation for pregnant women (without their own ) automobiles) and young children if it becomes necessary to evacuate them earlier than other persons. While the County Plan does not ex-pressly provide for transportation in the early protective evacuation of pregnant women and small children, it is believed that there will be very i few pregnant women or families with small children who will not have their own vehicles, With respect to those 'very few, they can secure trans- .[ j portation from the County Shop by phoning the numbers listed in the ' j annually circulated public information brochure and announced in the ! emergency broadcasts. Further, if additional transportation is needed for protective evacuation during school hours, buses from one of the outly- ; 4 ing school districts (outside the EPZ) would be utilized. We conclude i that these protective evacuation procedures are adequate and need not be detailed in the Count'y Plan.
- 14. Evacuation ofSchools (Edgs. 39-46)
]. l Contention 14(a) alleges that sufficient training will not be provided ! to teachers, school administrators and children on "how to handle the evacuation." NUREG-0654, Criterion O.1, states that "[elach organiza-tion shall assure the training of appropriate individuals." FENIA has in-terpreted this guidance such that whether an individual is " appropriate" to receive training is dependent upon the function the individual as-i sumes in an emergency. { intervenors concede that school administrators will receive training but assert that the Plan does not provide for training teachers and children. As a part of their annual orientation, teachers will receive in-struction pertaining to their roles in assisting the evacuation of children. At that time they will be given copies of the Wolf Creek emergency public information brochure. This will provide teachers with the same in-1 formation provided to parents, including educational information on 4 l radiation. Although the FEh!A witness was in support of more extensive training for teachers, the Board relies upon the testimony of Applicants' witness, Dr. Dennis blileti, a sociologist specializing in areas dealing with complex organizations, hazards, policy and methods. Dr. Stileti testified that because the fun,ctions of teachers during an evacuation do 4 l 69 e 1 s 1
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not entail any decisionmaking responsibilities or specialized knowledge, no extensive training is required for them. The responses by the FEMA witness, during cross-examination, in support of her opmion that teatn-ers required more intensive training were not persuasive to the Board. Students have no response role, but will merely be evacuated upon boarding the school buses or teachers' vehicles Thus, they do not re-quire any training. The FEM A witness knew of no nuclear emergency plan that includes provisions for evacuation training for schoolchildren. The Board is satisfied that school personnel will receive adequate train-ing or instruction requisite to the performance of their emergency roles in assisting the evacuation of schoolchildren and that special training for students is unnecessary to protect the children's health and safety during an evacuation. Contention 14(b) alleges that there are not enough school buses available to evacuate schoolchildren. Intervenors have narrowed their concerns to the adequacy of bus capacity to evacuate the Burlington School District. They assert that sufficient transportation should be available to evacuate all of the Burlington students at the same time and that the County Plan should reflect the proposed procedures. The record indicates that public schools requiring evacuation could be evacuated in a single lift with the use of school buses and teachers' cars. If sufficient teacher cars were unavailable. Durlington school evacuation would be completed using the first buses arriving from surrounding schools. Inter-venors have not indicated any infirmity in the Plan for the use of teacher cars or for the use of surrcunding area buses if teacher cars were not available. Contrary to intervenors' implication. FEM A does not require that letters of agreement commit the usage of teachers' cars. The Board finds reasonable assurance that the transportation procedures to evacuate the Burlington School District are adequate and that the County Plan need not be burdened with the details of the arrangements.
- 13. Evacuation of flealth Care facilities and Residents Needing Special Transportation Assistance (Fdgs. H 56)
Contention 15(a) alleges that the County Plan does not detail what type of health services will be provided for persons who are in institu-tions or under care on an outpatient basis prior to the accident, that it does not specify which hospital they will be taken to, and that it does not consider the number of patients to be cared for, Intervenors have altered the thrust of the original contention as stated abose. Rather than challenging the availability and adequacy of health services to be provided. Intervenors limit their concerns to the lack of 70
signed agreements with hospitals about accepting patients from the Coffey County Hospital and the Golden Age Lodge Nursing Home and urge that the operating license not be issued until signed agreements are made a part of the Plan and approved by FENI A.
. Although signed agreements with health care institutions to accept pa-tients from the Coffey County Hospital and the nursing home do not exist, there are verbal arrangements with institutions in surrounding counties which have always been honored in past emergencies. The record contains no affirmation that signed agreements will esentually be obtained. We note in this regard that NUREG-0654, Criterion A.3, states that "[elach plan shall include written agreements referring to the concept of operation developed between Federal, State, and locai agen-cies and other support organizations having an emergency response role within the Emergency Planning Zones." Also, FENI A has stated a re-quirement for signed letters of agreement with the hospitals identiGed to
- receive patients evacuated from Coffey Ceanty. Accordingly, the Board directs that such letters of agreement be obtained and included within the County Plan. (See Order, infra).
Contention 15(c) alleges that Coffey County does not hase suf0cient transportation (ambulances, buses, etc.) to evacuate people from nursing homes and the Coffey County Hospital. Similar to Contention 15(a), supra, intervenors have altered the thrust of Contention 15(c) to the lack of signed agreements with the suppliers of transportation for nonambulatory patients rather than on the suf0ciency of vehicles to evacuate people from nursing homes and the Coffey County Hospital. Specifically, the Intervenors argue that there is no assurance that the ambulances and funeral directors' vehicles will be available unless that is detailed in a signed agreement. They fur. ther state that the operating license should not be issued until the signed agreements are included in the County Plan and that FENI A has senGed the adequacy of the vehicles. As we discussed in Contention 15(a), NUREG-0654, Criterion A.3, provides a requirement for written agreements with support organiza-tions having an emergency response role within the Emergency Planning Zones. The Board finds in this instance that although sufficient (nonmilitary) vehicles have been identified to evacuate nonambulatory patients from the plume EPZ, the arrangements described for these serv-ices are not in the form of specific written agreements. The Board directs therefore that written agreements be obtained for ambulances and funeral directors' vehicles and be included within the County Plan. (See Order, infra). Finally, we Gnd no merit to Intervenors' request that 71
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FEN 1 A verify the adequacy of the vehicles since the available ambu-lances are more than adequate to transport nonambulatory patients and funeral directors' vehicles provide additional capacity. Guidelmes for the use of funeral directors' vehicles for such emergency purposes have been developed by FEN! A. Contentions 15(n) and 15(o) allege that the County llealth Nurse has not compiled a list of County residents who are shut-ins or who may need special evacuation assistance and that the County Plan does not make adequate provision for preparing a list of County residents who are shut in or who may need special evacuation assistance, and does not make adequate provision for updating the list as changes occur. Intervenors' arguments have expanded the contention to include a re-quirement that the operating license should not be issued until the fol-lowing conditions have been met: (1) the Plan is revised to show how the list will be prepared; (2) the list is prepared; (3) the heari.ig impaired are identified on the list; and (4) FENIA has verilled that the list is up-to-date, and the Emergency Preparedness Coordinator has certified that the list is correct. We find no merit to the arguments. Those persons requiring special emergency transportation or other special evacuation assistance are identified by the County Sursey and by family members, in conjunction with the list of "home help" patients normally maintained by the County Health Nurse. The hearmg impaired will be identified. The emergency public information brochure will also include a request for updated information on such individuals, and new residents of the plume EPZ will be contacted to determine whether they would need special evacuation assistance. The list of individuals needing special assistance will be updated at least monthly, with an up to-date list maintained both with the County Engineer and in the EOC. Although all facets of the Plan for preparing, maintaining. and updat-ing the list of persons requiring special evacuation assistance hase not been completed, they were sufficiently developed at the time of the hear-ing to permit us to make the " reasonable assurance" finding. (Sa note 4, supra).
- 16. Evacuation ofPersons Without Private Transportation (Fdgs. 57-63)
Contention 16(a) alleges that the County Plan does not detail how many individuals will need transportation assistance that the County Engineer is to provide for an evacuation and that there is inadequate detail about how the Engineer will know whom to evacuate. 72
Intervenors argue that the County Plan does not proside procedures for estimating and updating individuals requiring special transportation and that provisions are not adequate for people without transportation to call in and request assistance. Contrary to these allegations, the County Survey has indicated that approximately 120 individuals may require transportation assistance in an evacuation. A list of those needing trans-portation assistance is being developed, and will be maintained and updated in the same manner and on the same basis as the list on indi-viduals needing special evacuation assistance. Those individuals needing transportation assistance may call the County Shop. Thus, while the Plan was not finalized at the time of hearing, it was sufGciently developed to permit us to make the " reasonable assurance" finding pursuant to 10 C.F.R. s 50.47(a). (Sce note 4, suptc). Contention 16(1) alleges that there are not enough vehicles available to provide transportation for those who do not have their own means of transportation. Revising the thrust of their. contention, Intervenors assert that if the individuals needing special transportation are to be evacua,ed in school buses within 2.5 hours, more vehicles will have to be assigned because the assigned number will not be available within the estimated time of 1.5 hours to begin the evacuation. The record reflects that an estimated 329 persons within the plume EPZ (other than public school students and other than those individuals whose vehicles, for example, are being repaired) will require school bus transportation, that school buses from the towns of Gridley, Lebo and Waverly, which are outside the EPZ. have a total capacity of 726, and that these buses could discharge their students at their homes and could be available within 1.5 hours to com-mence the evacuation from the EPZ of the 329 individuals. The Interse-nors have not cited any probative evidence to the contrary, and accord-ingly we conclude that this contention is without merit. Contention 16(m) alleges that the County Engineer has not arranged for school buses. Intervenors assert that letters of agreement to utilize school buses are not in the County Plan, that there is no signed agreement with the Bur. lington School District, and that some of the agreements may not in. clude the private companies which own some of the buses. Contrary to the allegations, arrangements for school buses have been made, including letters of agreement which have been or will be signed with school districts. We find no merit in intervenors' complaint that one of the letters is still to be signed and that the letters are not as yet in the County Plan. Furthermore, no evidence has been adduced which 73
would cause us to doubt the validity of the agreements with the school districts that contract with private companics. Contention 16(n) alleges that the County Plan is de6cient because school buses will be required for evacuation of schoolchildren and will not be available to provide the emergency transpo tation. Contrary to this contention, school buses will be available for emergency use after transporting their children out of the plume EPZ or to their homes. In-tervenors further allege that people waiting for buses to return to the EPZ for evacuation could be exposad to radiation. However, testimon> has shown that if an evacuation could not be accomplished prior to the release of radiation, sheltering would be the selected protective action. Furthermore, we Gnd no substance to the complaint that not all indi-viduals are evacuated simultaneously. Rather, we rely on the testimony which has shown that evacuation can be accomplished within the evacua-tion time estimate of 2% hours regardless of the order in which groups are evacuated.
- 13. Traffic Control, Access Control, and EPZSecurity (Edgs. M-70)
Contention 18(a) alleges that the County Plan does not proside for enough traffic control, and that there is too little traffic control prosision within the 10-mile EPZ. Intervenors challenge the adequacy cf provisions for traffic control in an evacuation, alleging particularly a need for traffic control in Burling-ton and in the vicinity of Redmond Reservoir. However, the Sheriff's uncontradicted testimony indicates that traffic control for Burlington and the vicinity of John Redmond is unnecessary. Intersenors also con-tend that additional traffic control is needed to keep drivers on evacua-tion routes. Area residents, however, can be expected to be familiar with the local road network, and therefore can be expected to select the most direct route out of the EPZ. With respect to Resersoir visitors who may be unfamiliar with the County roads, the key determinant of the route they use to exit the EPZ will be the information provided in the EBS announcements. FEMA will review the EBS announcements to ensure that they provide sufficient clear information for Redmond Reservoir visitors. The Board is satisfied that adequate traffic control is provided for the sparsely populated EPZ during an emergency evacua. tion. Contention 18(r) alleges that the County Plan is deficient because it does not provide that the entire evacuated area will be blocked. It only contemplates that it will be blocked as resources become available. 74
Intervenors concede that all roads into the EPZ will be barricaded. However, they argue that the operating license be withheld until the Plan is amended to reflect the fact that the National Guard or other workers will man the secondary roadblocks. Gisen the County Emergen-cy Preparedness Coordinator's responsibility to evaluate annually the Plan and certify its accuracy to the County Commissioners (see Opinion. supra, re Contention 8(c)), we conclude that it can be reasonably expect-ed that the County Plan will be amended to reflect the National Guard's rnanning of secondary roadblocks. Contention IS(aa) alleges that the SheritT does not hase enough per-sonnel to secure the evacuated area on a 24-hour-per-day basis. Intervenors present no arguments that challenge the sufficiency of staffing to secure the presently contigured 10-mile-radius plume EPZ. They do, however, argue that the access points may have to be mosed back if contamination reaches a high enough leve' resulting in an expan-sion of the plume EPZ and requirement for additional security person-net. Not only does their argument go beyond the scope of the contention but it also represents a challenge to the Commission's emergency plan-ning regulations which require only that a license applicant demonstrate the abi'ity to implement protective actions for an EPZ of approximately 10 miles in radius.5 (See 10 C.F.R. s 50.47(c)(2).10 C.F.R. Part 50. Ap-pendix E, n.2). We conclude that there is reasonable assurance that emergency plan-ning provides for adequate traffic control during an evacuation, sufficient access control to the evacuated area, and that the area will be adequately secured after it has been evacuated. We find no merit in intersenori arguments to the contrary.
- 19. Radiation Monitoring and Decontamination (Edgs. 71-84)
- a. Stajpng Contention 19(e) alleges that there is no person designated or trained to act for the Radiological Defense Officer (RDO) if he is not available or is to be relieved during an accident.
An alternate Radiological Defense Officer has been selected and will receive the standard FEM A training course. Intervenors' assertion that
'In deseloping the regulations on the ute ol' the plun e EPl. Islhe NRC/EP % rash Fors e wnstudea that et would be unbket) that any protestise ations for the plurne estmure rathway would be reauir J beyond the labout 10.rmie.radiusl riume espmure E Pl." The rask force further rs*wgri'ii J that. en any esent. '*detaded planmng within 10 mdes not,ld prmide a substantial pase ter espanuon et resronse ef forts in the esent that this prosed necewiry " WL REG iM4 al ID 75 l
the County Plan does not designate by title the alternate RDO and that i the alternate is not properly trained is without merit. Although the alter-nate RDO had not received his training at the time of hearing, the plan , to train him was sufficiently deseloped to permit us to make the "rea-sonable assurance" finding. (See note 4, supra). Contentions 19(h) and 19(i) allege that the County Radiation N1onitoring Team has not been selected and that the County Plan is deli-cient because it does net state how many members of the Radiation Nfonitoring Team will be required, and does not contemplate enough people to handle the duties of the Radiation N!onitoring Team. Intervenors assert that the operating licen;e should not issue until the County Plan is revised to list the members of the County Radiation N!onitoring Team by name and assignment. However, testimony shows that Coffey County currently has about forty-eight people who hase had the FENI A Radiological Stonitoring Training Course and 8 hours of classroom training in the use of radiation monitoring instruments. The County plans to train an additional twenty five people. Of this group, twenty-one will be selected for additional training, to qualify as . lembers of the Joint Radiation Stonitoring Teams. Identification and assignment of this group will be made prior to the full scale exercise. Contrary to in-tervenors' representation, FENIA did not testify that the roster of Team members, with assignments, need be included in the Plan. Rather, FEN!A testified that such a roster could be included in the implementing Procedures. Although the members of the Joint Radiation Ntonitoring Team have not as yet been selected or fully trained, we have " reason-l able assurance" that this will be done prior to the full-scale exercise. (See note 4, supra). Contention 19(k) alleges (1) that Coffey County will not be able to perform decontamination and radiation checks within the County and at evacuation centers, because it is not adequately staffed, and (2) that there is no provision in the County Plan for an adequate number of per-sonnel to supplement the County Radiation Stonitoring Team in order to check evacuees and vehicles at shelters for contamination. Intervenors assert that plant operation should not be authorized until it is shown that enough monitors (including relief monitors) will be available in the host counties to provide the monitoring for the evacuees and their vehicles, that the Plan should provide that there will be addi-tional monitors for rechecking evacuees after decontamination and for checking vehicles for contamination and after decontamination, and that women should be checked for contamination by women monitors. In cal-culating the number of monitors needed (forty nine), Intervenors have used a theoretical maximum for the number of evacuees to be momtored 76
in the host counties. The Board finds that the expected number of evac-uees (as utilized by FENIA) rather than the theoretical maximum is ap-propriate for determination of the number of monitors needed and that twenty-six host county radiation monitoring personnel will be suf0cient. Intervenors provide no evidentiary support for their position that pro-vision should be made for additional monitors for rechecking esacuees after decontamination and for checking vehicles. Also. NUREG-0654 does not specify any period of time within which vehicles must be moni-tored and decontaminated. This can be accomplished after monitoring and decontamination of evacuees has been completed and therefore does not require any additional monitors. Intervenors further urge that the Board require the training of addi-tional monitors to " provide relief for the monitors that start the proc-ess." However, Intervenors failed to elicit any evidence to support their assumption that the monitoring and decontamination process will con-tinue so long that " relief" monitors will be necessary. Storeover, the figure of twenty-six host county monitors is itself conservative smce it is unlikely that all persons in all directions within a 10-mile radius of the plant would be potentially exposed, and thus require monitoring. In addition, if necessary, additional monitoring personnel are available from the Kansas Department of Transportation, or the RDO could dis-patch reserve Coffey County radiation monitoring personnel to reliese host county personnel. Finally, Intervenors urge the Board to require that provisions be made for women evacuees to be checked for contamination by women moni-tors. However, there is no regulatory basis for such a requirement, and we conclude that the subject need not be addressed in either the Plan or procedures. Contention 19(l) alleges that the Fire Leader does not have enough personnel to conduct the decontamination activities. Intervenors have altered the thrust of this contention whereby they assert that the operating license should not be issued until the agree-ments with the Gre departments are modified to guarantee that workers will be made available at access control points and until the modined agreements are made part of the Plan. The apparent source of Interse-nors' concern is the language of the letters of agreement indicating that the fire departments will provide equipment and workers that can be " mustered." There is no evidence in this proceeding to support Interve-nors' suggestion that insufficient numbers of fire personnel might " muster." The Gye Gre departments have 110 personnel and about 24 vehicles to man up to six access control positions. There is obviously more than enough personnel and equipment to respond to the six access 77
control positions. Thus, based on the abose, we conclude that there is no need to modify the letters of agreement as Intervenors suggest. There is also no need to order that letters of agreement be included in the County Plan since the Plan indicates on its face that they will be included.
- b. A vailabdity of Equipment Contention 19(r) alleges that the Coffey County Radiation N!omtoring Team does not have proper radiation monitoring equipment to momtor radiation in the event of an evacuation. Intervenors narrowed their con-cern to air sampling equipment. They maintain that the operating license should not issue until air sampling equipment is available and the Plan has been revised to describe the equipment. It is undisputed that seven air samplers will be provided by KG&E and are now on or-der. The State Plan will describe this new equipment when it becomes available prior to the full-scale exercise. While the emergency plans t
were not finalized at the time of the hearing, they were sufficiently de-veloped to permit us to make the " reasonable assurance" finding pur-suant to 10 C.F.R. ) 50.47(a). (See note 4, supra). Contention 19(aa) alleges that the Coffey County Radiation N!omtor- _ing Team does not have the communications equipment it needs to keep in touch with the County Emergency Operations Center and oth-ers. Intervenors have limited their concerns on this issue to an assertion that the Joint Radiation Stonitoring Teams should be in direct radio con- , tact via portable radios with the County EOC. They further assert that the operating license should not be issued until the Plan is revised to show this change and until the radios are available. Intervenors have ad-duced no affirmative evidence to indicate why direct contact should be with the County EOC. To the contrary, the EOF serves as the base of op-erations for the Joint Radiation Stonitoring Teams. Pertinent informa-tion is supplied to the EOC by the EOF via radio and/or telephone. There is no requirement that there be direct communication between the EOC and the teams. The contention is without merit.
- c. Alonitormg/ Decontamination Procedures Contention 19(hh) alleges that although the State Plan does not assume all evacuees will be checked for contamination, the Coffey County Plan does so and is deficient because it does not require that all evacuees go to the designated shelter area outside the evacuation zone for a contamination check. Intervenors assert that the emergency public information brochure and the EBS announcements must indicate that all 78
evacuees are to go to registration centers to be checked for contamina-tion. The EBS announcements will instruct all evacuees to proceed to registration centers and will, in addition, be expanded to explain the nature of the hazard occasioned by radiation and the availability and ef-licacy of contamination checks. This additional information will proside a'ssurance that the public will availitself of radiation monitoring sersices at registration centers. Similar information will be incorporated into the public information brochure. Thus, the contention, as modified, is with-out merit. Contention 19(kk) alleges that the County Plan is deficient because it does not provide for disposal of contaminated equipment, vehicles, decontaminated wa ter, or any other materials that might be contaminated. Intervenors assert that the operating license should not be issued until provisions are made for the disposal of radioactive wastes at other sites, and that letters of agreement with those sites must be incorporated into the Plan. In addition, intervenors assert that the County should obtain letters of agreement with the host counties indicating that they will permit the disposal of contaminated water through their waste systems. The record evidences that, if KG&E could not process the contaminat. ed materials itself, it could either contact another utility and process the material at that location, or it could contract with a local vendor special-izing in decontamination services, and arrange for the use of a portable decontamination unit. There was no direct or cross-examin' tion to establish, and thus there is no evidence in the record, that the plant site would be inaccessible for the decontammation of these materials. Letters of agreement with commercial enterprises are unnecessary. Intervenors failed to elicit on the record any foundation in fact for their apparent assumption that letters of agreement with the host coun-ties are necessary for the disposal of contaminated water, nor is there any indication that the host counties would object to the disposal of such water. The State does not believe that the water would present a public health and safety problem but to provide assurance to the host counties, the State plans to monitor the disposal of this water in the host counties. Thus, the record here is devoid of support for the letters of agreement Intervenors would require.
- 20. Sheiter facilities and Services (Fdgs. 33 93)
Contention 20(d) alleges that no people are available to provide management at the evacuation centers, and that 180 people are required for this purpose. 79 J r . . . -.
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^
The record reGects that an estimated mnety-sesen school personnel or service club members will be required to handle registration in the
, host counties. While the Intervenors do not dispute this number direct.
ly, they contend that it has not been conGrmed by FEh!A, and that the workers are not available because they have not been named and there are no letters of agreement with the organizations providing them. Al-though FENIA has not confirmed the number of registration workers required, there is no evidence that the stated number is insufGeient. If more registration help should be desired, the record shows that assist-ance could be provided by evacuees themselves. With respect to the Intervenors' argument that letters of agreement must be executed, the Coffey County Shelter Systems OfGeer believes that school personnel can be relied upon in the absence of written agreement, and a FENI A witness conGrms that letters of agreement with schools are unnecessary for registration workers. Further, the Crisis Relocation Plan for three of the four host counties already provides for the use of school personnel for registration services. Lyon County, which relies upon service club members for registration, has verbal agreements with the service clubs, which have been honored in the past. In light of the above, we are reasonably assured that the requisite number of registration workers will be available and we conclude that it is of no moment that the school personnel and service club members have not been named.
- intervenors, further, propose a Onding that there are no written agree-ments with agencies and organizations that are to provide workcrs to assist in the management of the shelters in host counties. This is ad-missible under the contention only if there is a very liberalinterpretation of " evacuation centers," i.e., to imply more than " registration centers."
Nevertheless, we consider it as follows. A FEh!A witness expressed the opinion that guidelines of NUREG-0654 Criterion A.3, apply to support organizations but do not apply to either service organizations or to volunteers who would man shelter facilities. We concur. In their brief, Intervenors go beyond any of their proposed Gndings in arguing that there is no evidence showing that there are adequate num-bers of workers who have been recruited and trained to provide shelter-ing and feeding in the host counties, in arguing that there is no evidence showing that registration workers have been trained, and in contending i that written agreements should be executed with those agencies provid-ing food services. We do not consider these unsupported arguments. Accordingly, we find reasonable assurance that registration centers
- will be staffed adequately in the event of evacuation.
1 MO 1 l
Contentions 20(k) and 20(m) allege that the County Plan does not provide details showing that the shelter centers base adequate facilities to provide for the sleeping, feeding, medical, sanitation, communica-tion, and religious needs of evacuees, and that there is no provision to pay shelter owners for their sites or services. Changing the thrust of these contentions, the Intervenors now claim that there should be signed agreements for the use of registration centers, shelters and food services, and that these agreements are required by NUREG-0654. The need for written agreements to provide for facilities and seruces is not supported by FESIA experience and local experience. We were particularly impressed by Applicants' expert witness, Dr. 31ileti, who testified that he was unaware of any case where shelter and food had been denied during emergencies because written agreements had been lacking. There are verbal agreements for the use of identified shelter fa.ilities that are not licensed federally. The Coffey County Shelter Systems Offi-cer believes that these agreements are binding. Similarly, the Emergency Preparedness Coordinators for the four host counties are conlident that they have binding verbal agreements with potential food suppliers. FEh!A agrees that writNn agreements are unnecessary. We do not dis-cuss Intervenors' claim with respect to registration centers which im-properly ranges beyond the scope of these contentions. Contrary to these contentions as revised, we conclude that written agreements for the use of shelters and food services are unnecessary. H. County EOC Evacuation (FJgs. 94-96) Contention 25(a) alleges that the County Plan is deficient because it does not provide for relocation of the EOC if evacuation should become necessary because of unacceptable radiation levels. The intervenors en-large the thrust of this contentior in alleging that the County Plan .., deficient because it does not contain a written agreement rellectin3 that Lyon County has agreed to permit ti.e use of its EOC as an alternate, and in alleging that there is no provision for evacuation of the Coffey County EOC and of the Sherif!'s office which might be necessitated in the event of a fire. The contention, as expanded, is without merit. Neither NUREG-0654 nor any other regulation requires that an emergency plan proside for a q backup EOC, and thus there is no legal basis to support the argument that the relocation agreement with Lyon County could be in written form. N!oreover, we see no necessity for such a provision. The present County EOC has, and the new one will hase, an adequate " protection 81 2 w w -- v - - - . gm- - - w - ,,--p---
factor " If radiation levels were to exceed that " protection level, there would be no need for the EOC to continue operating since the public in the plume exposure pathway EPZ would have been evacuated by that time. In the event relocation became necessary (for example. m the event of a Gre rendering the EOC and the SherilTs ofHee inoperable). Coffey County's EOC personnel could perform their duties from radio-equipped vehicles, or could utilize the Lyon County EOC which Coffey County considers as having adequate facihties, or could use the State of Kansas' EOC.
- 23. Dose Controlfor Emergency Workers (Edgs. 97 l(12)
Contentions 28(a), (b), (d), and (e) assert (1) that the County Plan does not specify that dosimeters will be issued to County emergency workers, and does not specify how many dosimeters will be needed and the kind that will be used (2) that the number of dosimeters to be fur-nished to workers is inadequate, and (3) the County Radiological De-fense Officer has not developed a system for controlling radiological exposure of emergency workers. While now agreeing that each of the 225 Coffey County emergency workers will be issued a self reading dosimeter and a thermoluminescent dosimeter and thus not challenging either the availability or the adequacy of the numbers of dosimeters to be furnished, the Intervenors urge that the County Plan should be amended to reDect a breakdown, by class and by number, of the County workers who will be furnished with dosime-ters. FENIA concurs that either the County Plan or its Implementing Procedures should be so amended. Rather than further enlarge the Plan, which NUREG-0654 at page 29 states should be as concise as possible, we request that the Staff conGrm that the implementing Procedures have been so amended to redect this information. The intervenors also urge that the Coffey County Plan be amended to specify where the dosimeters will be prepositioned or where the County workers in each class will be able to pick up their dosimeters. FENI A concurs to the extent that it states that the implementing Procedures. rather than the Plan itself, should be amended to specify the preposi-tioned locations, and the number and type of dosimeters to be furmshed to the workers. The Staff is requested to conGrm that the implementing Procedures have been amended to specify where the dosimeters will be prepasitioned or where the County workers in each class will be able to secure their dosimeters, and the number and types of such dosimeters. There is no support in the record for the Intervenors' concern that the twenty six individuals, who will carry out radiation monitoring and 82 r
decontamination for the four host counties at the registration centers, will not have dosimeters. In the aggregate, the host counties hase 1056 self-reading dosimeters. Howeser, while the record reflects that Kansas Fish and Game Commission personnel will have prepositioned dosime-try furnished by the State of Kansas and that the Applicants hase com-mitted to furnish dosimetry to personnel of the U.S. Fish and Wildlife Service for prepositioning, there is nothing in the record indicating that the U.S. Army Corps of Engineers will have dosimetry. Since the Corps of Engineers is obviously a federal military agency, we have no concern that it does not know how many dosimeters it will require or that it will not make its own arrangements for prepositioning; howeser, the Staff is requested to confirm either that the Corps will provide its own dosime-ters or that KG&E will provide them. We see no reason to oserburden either the County Plan or its Implementing Procedures to proside for the matters encompassed in this paragraph. Each of these jurisdictions has the responsibility to establish procedures for their workers to follow in measuring and recording radiation levels. Finally, while the record reflects that, after furnishing Coffey County with 250 thermoluminescent dosimeters, KG&E will hase a reserse of 5750 TLDs at the plant site, the Intervenors argue that any replacements needed thereafter by the County might not be accessible if the radiation levels at the plant precluded access and thus that the County Plan should specify a different storage site. However, in the event of a high level of radiation at the site, there would be adequate time to secure re-placements from neighboring nuclear plants or from commercial sources, or the Applicants could devise some method to transport the re. placements away from the site.
- 29. Training (Fdgs. 103 123)
Contention 29(c) states that training programs needed to implement the County Plan and to familiarae County personnel with their emergen-cy responsibilities have not been developed by the Coffey County Emergency Preparedness Coordinator. in their proposed findings, Intervenors limit this contention to a com-plaint that the course content of the Joint Training Program is not fully developed at this time. They further allege that the initial training of emergency response workers cannot be done until the training program is completed and that the operating license should not be issued until the details of the program have been completed and adopted by the Cou nty. 83
, . . - --. , - - - . , . , . . ~ . ._,
The record shows that initial training under the Joint Training Pro. gram will be completed prior to the full scale esercise, which satisfies FENI A requirements. Consequently, while the Joint Training Program was not fully developed at the time of the hearing, it was sufficiently de-veloped to permit us to make the " reasonable assurance" finding pur-suant to 10 C.F.R. y 50.47(a). (See note 4, supral Contention 29(g) alleges that the County Plan should specify in detail the type and amount of training that individuals listed on a Table in the Plan should receive. The Intervenors have altered the thrust of this contention. They argue that the operating license should not be issued until the revisions on the type and amount of training to be provided, as described during the hearing, appear within the County Plan, that workers at John Redmond Reservoir be listed within the training matrix, and that the Plan be revised to include certain host county officials. FEMA is satisfied with the revisions to the County Plan describing the Joint Training Program as recommended by the Emergency Pre-paredness Coordinator and the Manager, Radiological Environmental Assessment, KG&E. Given the County Emergency Preparedness Coor-dinator's responsibility to evaluate annually the Plan and certify its accu-racy to the County Commissioners (see Opinion, supra. re Contention S(c)), we have reasonable assurance that these revisions will appear in the emergency plans for Wolf Creek. The Staff is requested to confirm that the County Plan and Implementing Procedures appropriately refleet these revisions. With respect to Intervenors' second argument, although traimng of John Redmond Reservoir workers does not appear within the trainirg matrix of the County Plan (they are not County workers), the training modules that they will receive have been specilled on the record. Finally, Intervenors assert that the County Plan must make prousion for training for County Commissioners, sheriffs, and emergency pre-paredness coordinators of the host counties. We note that neither this nor any other of Intervenors' contentions questions the training of these host county officials and that these officials are not listed in Table 5-1 of the County Plan. Intervenors have exceeded the scope of Contention 29(g) and we therefore do not consider these arguments. Contention 29(h) states that County personnel in a lengthy list lack sufficient training to perform emergency functions. Intervenors have narrowed the scope of this contention. Rather than questioning the sufficiency of training including certain specific areas which the contention alleges should be included within the traimng pro-gram for County emergency response personnel, intersenors now assert H4
merely that these workers have not yet been trained. Additionally, they complain that the Joint Radiation Nfonitoring Team has not been select-ed and together with other radiation monitors have not yet receised training. Contrary to Intervenors' objection that training is not >ct complete, including special training of Joint Radiation N!onitoring Team members. FEN!A is satisfied with the Plan to complete all initial training that is ap-propriate before the full scale exercise. The special training for Joint Ra-diation 51onitoring Teams has been described. While training of County emergency workers was not completed at the time of the hearing, training plans were developed sufficiently to permit us to make the " reasonable assurance" linding pursuant to 10 C.F.R. s 50.47(a). (See note 4, supra). Contention 29(k) alleges that the training program does not adequate-ly address changes in emergency personnel. The Intervenors argue that the details of the retraining program are not developed and do not appear in the County Plan, that materials for training new people are not in the Plan and that replacement workers need comparable training to those they replace. Again, there is neither a requirement that detail of this sort appear in the County Plan nor that training plans (including retraining) be complete at this time. The gener-al plans for retraining and training new personnel have been described to the satisfaction of FENI A. Training of replacement workers will be comparable to that of the workers replaced. Thus, while the plans for retraining and training of new personnel were not finalized at the time of hearing, they were sufficiently devel-oped to permit us to make the " reasonable assurance" linding pursuant to 10 C.F.R.150.47(a). (See note 4, supra). Contention 29(q) alleges that the State plans for training its personnel with emergency responsibilities are inadequate, particularly with respect to radiological emergency response training. The scope of this contention has been narrowed to the subject of pro-posed revisions to Table 0-1 of the State Plan. This Table shows the training matrix for emergency response workers. Intervenors argue that the operating license should not be issued until the revisions indicated by Applicants' witness have been made to the Table. Similar to the County, the State also reviews and updates its Plan annually. The Board, therefore, is reasonably assured that the proposed changes will be incor-porated in Table O 1 of the State Plan. Contention 29(s) alleges that listed State personnel lack sufficient training to perform emergency functions. 85
Intervenors argue that State workers have not yet been trained in all of the appropriate categories listed under Table 0-1 of the State Plan. Again, they wish to go beyond FE.\l A requirements in claiming that training of State emergency workers should be completed before the operating license is issued. They fail to recognize the signiGeance of the commitment to complete initial training under the Joint Training Pro-gram prior to the full-scale exercise. Based on this commitment, we Gnd that the plans for training State personnel were sufGeiently deseloped at the time of hearing to permit us to make the " reasonable assurance" Gnding pursuant to 10 C.F.R. s 50.47(a). (See note 4, supra). Contention 29(u) states that federal personnel at the John Redmond Reservoir lack sufficient training to perform their emergency functions. The Intervenors claim that personnel of the U.S. Army Corps of Engi-neers and U.S. Fish and Wildlife Service who are assigned to the John Redmond Reservoir have not received training under the Joint Training Program and therefore the operating license should not be issued until those personnel have received the training prescribed for them in Table 5-1 of the County Plan. The record shows that their training will be completed before the full-scale exercise. Consistent with Intervenors' further desire, these personnel will receive the same training as Kansas Fish and Game personnel with the exception of training in radiation survey techniques. Although training of federal personnel at the John Redmond Reser-voir was not completed at the time of the hearing, plans for such training are sufficiently developed to permit us to make the " reasonable assur-ance" Gnding pursuant to 10 C.F.R. } 50.47(a). (See note 4, supra).
- 31. Re. source A vailability and Allocation (FJgs. 121 123)
Contentions 31(c) and 31(d) allege that Coffey County Gre depart-ments and vehicles of the Road Department do not have adequate radio equipment for communication with the Sheriff's Office. The Intervenors do not dispute that a new radio system on order will provide the fire departments and Road Department with adequate com-mur.ication to the Sheriffin his ofGee or in the EOC, but claim that the equipment should be installed before the operating license is issued. The argument is wit!.out merit. Items for the new communication system are on order with delivery scheduled for Spring 1984, which is before the full-scale exercise. Thus, the plans for installing adequate radio communication equip-ment were sufGciently developed to permit us to make the " reasonable assurance" finding pursuant to 10 C.F.R. ) 50.47(a). (See note 4, 86
supra). The Staff is requested to conGrm that the radio equipment has been installed. Contention 31(0 alleges that " protection gear against radiation" is needed by all workers involved in the evacuation plan. Intervenors restrict their arguments to the need for protectise clothing for-the lleld radiation monitoring teams. They claim that the operating license should not be issued until the Plan is revised to show the availa-bility of protective clothing to the field monitoring teams, that the cloth-ing will be stored other than at the plant site, and that the clothing will be prepositioned and available for use. The contention is without merit. It has been clearly demonstrated that KG&E has 100 sets of protective clothing available for emergency work-ers and an additional 1900 sets if the need arises. Since NUREG-0654 re-quires only that protective clothing and provisions for its use be asailable on site, Intervenors' arguments for prepositioning cic hing at offsite io-cations are rejected. Firially, Intervenors assert that protective clothing stored at the plant site may not be available due to "the nature of the accident at the plant," and therefore should be stored off site. Iloweser, there was no direct or cross-examination to establish, and thus there .s no evidence in the record to establish, that an accident at the plant might preclude securing the protectise clothing. We conclude that the plans for supplying protective c;othing to field monitoring teams in case of a radiological emergency at Wolf Creek are sufficiently well deseloped to permit us to make the " reasonable assurance" finding pursuant to 10 C.F.R. j 50.47(a). (Sce note 4, supral IV, CONCLUSION The Board concludes that the emergency plans subject to the condi-tions set forth in the Order, mfra, comply with 10 C.F R. ) 50.47, with Appendix E to 10 C.F.R. Part 50, and with the criteria in NUREG 0654 Findings of Facta
- 1. InitialNotification and Official Communications Contention Ife). The County Plan does not make adequaic provrsion for how the Sheriff will notify the U.S. Army Corps of Engineers. U S Fish and Wildlife
" The fastual batyrourtd of the case is set forte in the introdutrinn in our opinion irwa i urther. ,
nlated in note j above. serwe the Intersennrs hase narrowed sarious aspetis or 6 hanged Ibe ihrmis of rnans of these contentions. the BoarJ's findir'gs are addrewed onh to Ine tonienisons as m remed 87
Service and the Kansas Fish and Game Commission when the warning function is actnated. The evacuation time will therefore be longer than estimated I. Section 50.47(b)(6) of 10 C.F.R. requires that offsite emergency plans provide for prompt communication among principal response or-ganizations to emergency personnel. Criterion F.I.a of NUREG-0654 states that such plans should provide for backup means of communica-tion by these organizations and should provide for 24-hour-per day man-ning of communications links by the emergency personnel.
- 2. The Coffey County Contingency Plan for incidents insolving Commercial Nuclear Power specifies by title those individuals and or-ganizations that the Sheriff's Office is responsible for notifying. Amongst these organizations are the three agencies named in this contention.
( Appis.' Ex.1, Table 3 l; Appis.' Test., fol. Tr.194, at 2). The Count) Plan implementing Procedures include call lists which provide for both primary and alternate contacts. (Appls.' Ex. 5). FESIA will review the call lists prior to the full scale exercise to ensure that the names of the individuals to be called and their phone numbers base been inserted. (Tr.1738-40,1752-53,1760). Storeover, while only the Corps of Engi-neers has someone manning its telephones 24 hours a day during the summer months, the SherilTs Office has also the home phone numbers for at least one individual and an alternate employed in each of these agencies. (Tr. 940,1150).
- 3. During business hours, the Sheriffs dispatcher will communi-cate with these three agencies by telephone, and, if unsuccessful in con-tacting them, will resort to backup radio communication. These agencies already have two-way Sheriffs frequency radios, and, pursuant to the County Plan, will be provided also with commercial grade tone alert radios. (Appls.' Ex.1, } 3.2; Tr. 939,1149). While the tone alert radios had not yet been installed at the time of the hearing, they were sched-uled for delivery in the Spring and for installation in the early Summer of 1984. (Tr. 938 40, 942,1149 50). FESI A concludes that this is adequate, reliable primary and backup communication. (FESIA Test.,
fol. Tr.1731, at 6; Tr.1741-42). Contention Ifit The County Plan does not speofy whom the Fire Leader is to notify if a Fire Chiefis not available 4 Criterion E.2 of NUREG 0654 prosides that each response or-ganization should establish procedures for alerting and notifying emergency response personnel. 88 i
- 5. The County Plan provides that in an emergency, the Fire Leader will notify all Fire Chiefs in the County. In the event of fires, each town has a lire phone number - when that fire number is dialed, automatically telephones (varying in number from town to town) will ring in the homes and businesses of the principal tiremen and their alternates. The County Sheriff confirmed that this procedure would be followed in the esent of an emergency at Wolf Creek in that the Fire Leader will call the " fire number" for each lire department which will automatically ::ng the fire phones of the Fire Chiefs and alternates (as well as other firemen) in the various towns. This procedure will be set forth in County Plan Implementing Procedures. ( Appis.' Test., fol. Tr.
194, at 7; Tr. 942-44,1229-30).
- 2. Coffey County Courthouse and EOC Communications Contention 2(bt Ten or twelve additional people will be required to handle tele.
phone calls at the Coffey County Emergency Operations Center None of these people are available.
- 6. Criterion A of NUREG-0654 and 10 C.F.R. } 50.47(b)(1) pro-vide that each principal response organization should have s'aff to re-spond and to augment its initial response on a continuous basis.
- 7. There will be at least eighteen County emergency response per-sonnel (plus federal and State personnel) in key positions available to answer telephone calls at the Coffey County EOC. ( Appis.' Test., fol.
Tr.194, at 11; Tr. 946; FEMA Test., fol. Tr.1731, at 13). The public in-formation officer, some secretaries and other personnel would also be available to handle phone calls. The County Plan will not specifically designate those individuals who will man the phones. Howeser the Emergency Broadcast System (EBS), broadcasting at 30-minute inter-vals, will not only keep the public updated but will advise the pubhc not to call the EOC. Moreover, since most of the telephone numbers in the EOC will be unlisted, it is unlikely that members of the public will be able to contact key County personnel. Finally, while State personnel. monitoring teams, response teams and emergency workers will have the unlisted numbers, most of these communications will be via two way radios. (Tr. 945 48). Contention 2fct The telephone system will not be adequate There will not be enough lines in the event of an emergency 89
- 8. Criterion J.10.g of NUREG-0654 states that plans to implement protective measures for the plume exposure pathway should include means of relocation.
- 9. Currently, there is one telephone line in the County Shop for normal, everyday calls. A second line is to be added to receise calls from persons needing emergency transportation. In the event of an emergency, individuals needing emergency transportation can secure the emergency phone nurnber from the public information brochure, which is circulated yearly, and from emergency broadcasts; when that emergency number is called, the two phones, manned by two Shop per-sonnel, will ring. (Tr. 733, 759; Appis ' Test., fol. Tr.194, at 83; Tr.
I 145-46; Tr.1286).
- 3. Sheriff's Communications Equipment Contention 3(a). The Sherift needs radio equipment that will permit him to talk to the Wolf Creek plant Jnd all Of Cofrey County
- 10. Criterion F.1.d of NUREG-0654 states that communication plans shall provide for communications between the nuclear facility and the local emergency operations center.
I 1. New radio equipment will be installed in the Spring of 1984 which will enable the Sheriff to talk directly to the Wolf Creek plant and to reach all of Coffey County. The County Plan provides for such direct radio coverage. ( Appis.' Test., fol. Tr.194, at 13; Tr. 644-46, 678-81; FEM A Test., fol. Tr.1731, at 15; Tr.1773; Appis.' Ex.1, s 4 2.3).
- 6. Emergency Response Command and Control Contention 6(g). Due to insuf0cient stamng. Coffey County cannot aacquaiety direct the evacuation. Although two personnel are required to perform this function. Only the Sheriffis presently asailable
- 12. See Finding 6, supra.
- 13. The County Plan assigns responsibility to the SherilT to direct and control evacuation. (Appis.' Ex.1, p.1-16). The Sheriff testified that he, acting alone, can direct the evacuation and that, in the event of his absence for some reason, his Under Sheriff would be available to take over his duties in the Emergency Operations Center. While the Sheriff is present and carrying out his duties in the EOC, the Under Sheriff would be in the field taking care of traffic and security matters and would not be utilized to relieve the Sheriff. ( Appis.' Test., fol. Tr.
194, at 20; Tr. 647 50). 91)
- 14. The County Plan estimates that the plume exposure pathway Emergency Planning Zone (plume EPZ) can be evacuated within 2%
hours. ( Appls? Ex.1, p. 3-5).
- 8. ' Evacuation Time Estimates Contention 8tc). The County Plan does not proude an estimated eucuanon time for individuals who do not hase their own private automor t'es im transportation. There is no estimate of evacuation time for them.
- 15. The current version of the County Plan, revised in September 1983, reflects that "[ flor the nonambulatory occupants of the Golden Age Lodge and the Coffey County Hospital, an evacuation time of 2.5 hours is estimated using area resources. " ( Appls? Ex.1, at K-lo.
This estimate of 2.5 hours included the time for evacuating those indi-viduals who lack transportation. The County Plan should be corrected to reflect that this estimate includes the evacuation time for all classes of the special population needing transportation. ( Appis.' Test., fol. Tr. 194, at 34; Tr.1675 77,1703,1706-07).
- 16. The County Plan requires that, at least once a year. the Emergency Preparedness Coordinator review the Plan and certify to the County Commissioners that it is current. ( Appis? Ex.1, ) 5.3).
- 9. Eracuation Routes Contention He). The County Plan is deficient because the esatuation route 3 send the evacuees downwind and create greater risk to them in many instantes The Plan needs to gne adequate consideration to wind direstions and romble thanges in wind direction during an evacuation
- 17. Criterion J.10.k provides that plans to implement proteetne measures for the plume exposure pathway should include identification of and means for dealing with potentialimpediments to the use of evacu-ation routes.
- 18. A table and a figure in the County Plan identify recommended evacuation routes for subzones within the 10 mile plume EPZ, and an appendix contains the route descriptions which will be read oser the Emergency Broadcast System in the event of an emergency. ( Appis.'
Ex.1 Fig. 3 2. Table 3-4, App. L; Appis.' Test., fol. Tr.194, at 35. FEM A Test., fol. Tr.1731, at 39). County emergency planning officials. with some assistance from KG&E, taking into consideration the pre-dominant wind directions for the Wolf Creek site, selected those speettie 91
routes. (Tr. 1686 88). The County Plan is designed so that if evacuation is necessary, people will be moved out before any significant release of radioactivity occurs; however, if there is a likelihood that a substantial release will occur prior to or during an evacuation, sheltering in the downwind sectors would be the appropriate protectise action to take. (Appis.' Test., fol. Tr.194, at 36).
- 19. The County Plan's pre-emergency designation of evacuation routes serves to facilitate public response during an accident in that the i public understands speciGcally which routes to take in the event of an emergency. (Appis.' Test., fol. Tr.194, at 36; Tr.1690 91,1693). The two FESIA witnesses testiGed that, based upon their experience, none of the plans which they had reviewed designated alternate evacuation routes based upon differing wind directions at the time of the evacuation. (Tr. 1842-43).
- 20. In the event it becomes necessary to direct the use of different evacuation routes at the time of the emergency, alternate routes could be readily selected and would be conveyed to the public over the Emergency Broadcast System. (Appis.' Test., fol. Tr.194, at $8, Tr.
954-56,1714; FE5fA Test., fol. Tr.1731, at 40). It would be too cum-bersome to draft EBS announcements in advance of an emergency situa-tion designating the numerous alternative routes which might be l necessitated by the wind direction at that time, and it would be too time. consuming to make a selection from numerous announcements during the emergency. (Tr. 1843-46). Coniention 9f et The County Plan does not provide for alternate evacuation . routes that will be necessary if there is heavy snow, rain, Gooding. or rog. 1'
- 21. Stost of the County is ! aid out in square mile sections in a grid-i like manner, with roads running along these section lines every mile.
(Tr. 961,1693). Because of this extensive road system. the County t Emergency Preparedness Coordinator testiGed that it would be difficult ' to predesignate alternative evacuation routes. lie also testiGed that such predesignation would be unnecessary - i.e., if a particular designated road was blocked or Gooded, sia the Emergency Broadcasting System, the public would be notified to take an alternate route. ( Appis? Test., fol. Tr.194, at 37; Tr. 965 66).
- 22. With rare exceptions, all of the roads in the County are travela-ble year round. (Tr. 96162).
92
4 2 1 1
- 11. Public Alert and Notificction System s
Contention t Ha). The County Plan is dc6cient because it is not powbi,: under the Plan to notiry 100% or the popuhtion within 5 miles of the s te witmn .t 15- s minute period, and it is not possible to assure 10tA coverage with:n 45 minutes for i those persons who do not recene the initial notiGeation and are within the ld. mile
. EPZ. The evacuation time will therefore be longer than estimated. N
- 23. NUREG-0654, Appendix 3, provides that (a) the notification system have the capability for providing within 15 minutes an alert signal and an informational or instructional message throughout the 10-mile EPZ. (b) the initial notification system will assure direct coser-s '- age of essentially 100% of the population withinj miles of the site, and that (c) special arrangements will be made to assure 100% coserage within 45 minutes of the population who may not have received the ini-tial notification within the entire pitme exposure EPZ. Said Appendix also states that this design objective does not, however, constitute a guarantee that early notification can be provided for everyone with 100% assurance.
- 24. The three agencies having jurisdiction over the John Redmond Reservoir are the U.S. Fish and Windlife Service, the Kansas Fish and Game Commission, and the U.S. Army Corps of Engineers. ( Appis.'
T:st., fol.194, at 92). Initially, one lixed acoustical siren was planned to s serve this recreational area. However, as stated at the beginning of the hearing, the determination was made and Applicants have committed to add two more sirens. ( Appis.' Ex. 3 A; Appis.' Test., fot (Tr.194, at 43; Tr. 203, 209). All areas of the Redmond Reservoir withm the plume EPZ under the jurisdiction of these three agencies will be covered by s these sirens, except for a small portion of land to the extreme west of 2 the recreation area, under the jurisdiction of the U.S. Fish and Wildlife Service. (Appls.' Ex. 3B; Tr. 2138-40). The Fish and Wildlife Sersice will use its siren equipped vehicles to cover its jurisdictional area. v111 personally contact individuals where possible, and will put preprinted warning flyers on unattended, parked cars. (Tr. 115153,1252 54). The notification and evacuation procedures for Fish and Wildlife Service are set forth in the County Plan. ( Appis.' Ex.1. App.1). Since the Coffey County Plan Implementing Procedures provide that the Sheriffs use of the telephone will be the primary means of notification to the three agencies, with tone alert radios as backup, the Fish and Wildlife Sers-ice's e<timate of 45 minutes within which it would be able to notify the public is acceptable to FEN! A. (Tr. 374-77).
- 25. People do not senture out into the middle of the Redmond Res. ,
ervoir, known as the Niud Flats, because their boats would become s 2 93 y (.
stuck in the shallow, silted bottom. (Tr. 1296-97, 1300, 1381, 2162). Esen if a person in a boat ventured into the middle of the resersoir, he would be able to hear sirens but it is quite possible he would not hear the siren signal if his motor was running. (Tr. 2144-45). The sirens will be activated for a period of 3 5 minutes. (Appls.' Ex. I, s 3.2). The Emergency Response Organization of the Fish and Wildlife Service will continue to monitor the area until it has confirmed that the esacuation is complete. ( Appis.' Ex.1, App.1).
- 26. The siren system is designed to cover areas of moderate to-high population density. All 750 residences outside the range of the lixed sirens and within the plume EPZ will be furnished by the Applicants with tone alert radios, and twenty commercial-grade tone alert radios will be furnished to similarly sited recreational, educational, and institu-tional facilities. (Tr. 212; Appis.' Test., fol.194, at 42-43, 49, 50. Tr.
201, 220, 274 75, 277, 383). FESIA approves of this arrangement. (FESI A Test., fol. Tr. 286, at 9).
- 27. The County has made provision for Emergency Broadcasting System announcements to remind people to go out into the fields to notify family members or friends who are farming and may not hear the sirens or the tone alert radios. (Tr. 1254-55, 1275).
- 28. The County Plan contains provisions for individual alerting of persons who, due to deafness or other reasons, cannot hear the sirens or tone alerts. ( Appis.' Ex.1, at H 8, s 1.2.3(4), s 1.2.5(I and 6),
j 1.2.6(1), f 3.2, } 5.4). Based on a County survey, it is estimated that approximately lifty households may require special notilication. As the County Plan states, personnel under the direction of the Fire Leader will carry out these notifications in Burlington and LeRoy. (There are ap-proximately forty such households). The Plan also states that personnel under the direction of the County Engineer will carry out these notilica-tions in other areas of the plume exposure pathway EPZ. (There are ap-proximately ten such households). (Appis.' Test., fol.194, at 48, 53; FENI A Test., fol. Tr. 286, at 8,11; Tr.1908). The County Engineer has assigned four people to make these notifications and concludes they could complete their assignment within 45 minutes. (Tr. 2318). The Fire Leader will be able to call upon lifty seven members of the Burling-ton and LeRey fire departments to make these notifications. (Appis.' Test., fol.194, at 48).
- 29. In implementation of the County Plan a list identifying hearing-impaired persons in the plume EPZ has been prepared from the County survey, and will be updated by the County Health Nurse, by family members and by the return of the attachment to the emergency pubiic 94
~
l 1 I information brochure which is :naHed annually to the public. ( Appis.' Ex.1, f 3.2; Appis.' Test., fol. Tr.194, at 53).
- 30. Letters of agreement have been signed by the County's Ore departments of Lebo, Waverly, LeRoy, Gridley and Burlington wherein they commit themselves to provide personnel for noti 0 cation, as well as for decontamination functions. (Tr. 2359). The County Plan indicates that such letters of agreement will be inserted therein. ( Appis.' Ex.1.
App. D). Contention ll(e). There is no provision about how to make the warning if one or more sirens fa;l to operate. The evacuanon time will therefore de longer that estimated.
- 31. The County's program for frequent testing, and its frequent usage of the sirens makes it unlikely that the sirens will fail to operate in an emergency. The two Burlington sirens and the LeRoy siren will be used for Gres and will be activated daily for morning and noon whistles.
All sirens will be used for tornado alerts. All will be routinely maintained and tested in accordance with regulatory guidance. (Appis.' Test., fol. Tr.194, at 47; Tr. 329 31,1251). If a siren should fail to operate during an emergency, the Sheriff's patrol cars and fire department vehicles on an ad hoc basis would be sent to notify the residents in that area; however, NUREG 0654 does not require that such a redundant means of notification be set forth in the County Plan. (Tr. 968-69; Appis.' Test., fol. Tr.194, at 226; Tr. 345-46). Contention li(j) There is no provision for testing or maintenance of the tone alerts. The evacuation time will therefore be longer than estimated
- 32. While FE51A's Standard Guide for the Evaluation of Alert and Notification Systems states that at least monthly testing is desirable, the County Plan specifies that tone alert radios are to be tested by the Emergency Broadcast System on a weekly basis. (FE51 A Ex.1, at E-II; Appis.' Ex.1, at H-8). A brochure, acccmpanying each of the tone alert radios to be furnished by the Applicants, informs the recipient that the radio will be tested once a week, and instructs that, if there is a malfunction, the recipient should obtain a replacement from the Emergency Preparedness Coordinator. That County of0cial's department will have approximately 300 spare replacements. (Appis.' Test. fol. Tr.
194, at 52; Tr. 261-62,264. 976-77). I l 95 L
- 12. Public Emergency Planning and Information Contention 12ie) There is no detail about how ine education information will be provided to transients.
- 33. Section 50.47(b)(7) of 10 C.F.R. states that emergency re-sponse plans must establish procedures for the coordinated dissemina-tion of information to the public. NUREG-0654, Criterion G.2, prosides that signs shall also be used to disseminate appropriate information to any transient population within the plume exposure pathway EPZ.
- 34. Large public information billboards will be placed on the access roads to the Redmond Reservoir to provide emergency information to transients, but the number and exact locations of the billboards have not been linalized. The billboards will instruct the visitors that upon the acti-varion of the sirens or other notification of an emergency, they should turn to identified EBS stations on their automobile radios. The EBS an-nouncements will identify the evacuation routes and the registration cen-ters for the transients at the Reservoir. (Appis? Test., fol. Tr.194, at 57; FEMA Test., foi Tr.1731, at 49; Tr.1333,1376 77,1652,1918-19 Appis.' Ex.1. ( 5.4). Further, flyers will be left on the windshields of unattended vehicles at the reservoir, which include the basic information on the billboards plus a map of the evacuation routes. (Tr.1326).
- 35. A supply of emergency public information brochures will be provided to area motels for their guests. (Appis? Test., fol. Tr.194, at 57). Area telephone books will contain information summarized from the public information brochures. (Tr.1316). The EBS announcemen:s will advise transients that emergency information is contained in tele-phone directories. (Tr.1344).
Contention 12(s). The County Plan is dencient because in y 3 3.1 the Public In-formation OfGcer will advise the parents where children hase been evacuated to. This mformation should have been supplied to the parents at an earlier time The Pl.in does not make prosision for providing such information.
- 36. The County Plan identifies the host counties' registration cen-ters for schools being eva:uated. (Appis.' Ex.1, Table 3-6). The emergency public information brochure (annually distributed to area residents) will tell parents which host county facility their children will be evacuated to in an emergency. This same information would be repeated to parents at the time of an emergency via the EBS announce-ments, which announcements are included in the County Plan. ( Appis
- Test., fol. Tr.194, at 66; Tr.1373-74; Appis.' Ex.1. App. L-13). The 96
County Plan also identiGes the host counties' registration centers for schools being evacuated. (Appts.' Ex.1, Table 3-6).
- 13. Evacuation ofPregnant Women and Small Children Contention IMbL The County Plan does not provide for transportation for the evacuation of pregnant women and small children if they are eucuated before others. If buses or other means of transportation are used for them, then that trans.
portation might not be available to others w hen there would be a full evacuation-
- 37. The County Plan reRects that following a nuclear incident in-volving a release to the atmosphere, while evacuation for the general population may not be recommended, monitoring of the whole body and thyroid dose may prompt the early initiation of protectise evacuation of pregnant women and small children. ( Appis.' Ex.1, s 3.3 and App. E, at E-9). While it is believed that there will be very few pregnant women or families with small children who will not have their own vehicles, if emergency transportation is needed, as renected in Finding 9, supra.
they may call the County Shop for assistance. ( Appis.' Test.. fol. Tr. 194, at 69; Tr.1138; FENI A Test., fol. Tr.1731, at 60; Tr.1921-22).
- 38. If additional transportation is needed for the protective evacua-tion of pregnant women and their pre-school children during school hours, buses from one of the outlying school districts (outside the EPZ) would be utilized. Neither Burlington nor LeRoy buses would be utilized for this purpose. They would be held in standby because, if an evacua-tien of the general population was subsequently mandated, they would be needed to evacuate the Burlington schools. (Tr. 1140,1285).
- 14. Eracuation ofSchools Contention 14(at The teachers, school administrators. and children base not been trained about how to handle the evacuation. and there are no plans in the County Plan to specify how they will be instructed to deal with an emergency evacuation.
- 39. NUREG-0654, Criterion 0.I, states: "Each organization shall assure the training of appropriate individuals."
- 40. The determination of " appropriate" is dependent upon the '
function the individual assumes in an emergency. (FENI A Test., fol. Tr. 1731, at 61). Individuals with speciGc emergency response roles to fill in an evacuation should be informed of their roles prior to an emergency. (Tr. 417, 435, 439, 486, 488-89, 510). In addition, those who are 97
charged with making the decision to evacuate need to be informed about the nature of the risk attendant to radiation. (Tr. 510-11).
- 41. School administrators will receive training under the Joint Training Program. Specifically, superintendents and principais will be trained in an overview of the State, County and KG&E emergency plans, their position role in the emergency plans, and basic radiation ef-fects and protection. (Tr.1259).
- 42. Teachers will receive the instruction needed to perform their role in an evacuation. In particular, teachers' roles in an evacuation (e.g., boarding students on buses and possibly accompanying them. or driving them in cars to a registration center) *ill be discussed with them as part of teacher orientation, conducted by school administrators at the beginning of each academic year. In addition, at the orientations, all teachers will receive copies of the Wolf Creek emergency public informa-tion brochure, which will include educational information on radiation.
(Tr. 417, 434 35, 438-39, 486-89, 510.1257-58). Because teachers' roles in an evacuation generally parallel their normal activities, and be-cause they are not charged with making the decision to evacuate the schools, teachers need not receive other special training. (Tr. 417, 434-35,438-39,486-89,510,1257 58).
- 43. Schoolchildren have no special response role in an evacuation.
They carry out those actions required in an emergency on a routine daily basis: e.g., how to stand in linc and how to board buses. (Tr. 416-17, 1284-85). Pre-emergency instruction about matters such as destination will not enhance their safety in an emergency. (Tr. 440-42). Similarly, their health and safety in an evacuation will not be affected by their knowledge of the nature of radiation, because the decision to evacuate is made by others - whether they are at home or at school at the time of , the emergency. Therefore, no special training is necessary to protect the children's health and safety in an evacuation. (Tr. 416-17, 439-40, 488-89, 510-11, 1284-85). The FESIA witness did not know of any nuclear emergency plan that includes provisions for evacuation training for children. (Tr.1924). Contention 14(bl. There are not enough sdool buses audable to c6acuate schoolchddren. 44 NUREG-0654, Criterion J.10.g, calls for the Plan to implement protective measures for the plume EPZ, including means of relocation.
- 45. The Burlington school district has a current enrollment of ap-proximately 750 and has ten buses and three smaller sehicles. At maxi-mum bus capacity, 659 Burlington students could be evacuated by bus 98
.- - . .- - . . , . -.- - . . . . . - = - __ _
1 in a single lift. About thirty teachers' cars would be used to transport the f remaining Burlington students. (Appis.' Test., fol. Tr.194, at 27, as cor-rected at Tr. 694-96; Tr. 724-25, 784-85, 798-99,1928). With sufficient , teachers' cars available FEh1A approves of these plans for the evacua-
- tio.n of the public schools. (FESI A Test., fol. Tr.1731, at 62; Tr.
j 1926-27). While the County Engineer could not personally attest to the 1 availability of teachers' cars for evacuation, the record indicates that the j Superintendent of the Burlington schools has made the decision to use j teachers' cars to transport students who could not be accommodated on i buses. (Tr. 785). A FE51A witness testified that teachers could be in- < formed at the beginning of the school year or when they are hired that their cars may be used during an evacuation and that letters of agree-
- ment are unnecessary. (Tr. 1926-27).
- 46. .If, for any reason, suf0cient teachers' cars were not available, I
the Burlington school evacuation would be completed using the first buses arriving from surrounding school districts. (Tr. 798-99). These buses would be available to provide transportation for evacuating stu-j dents and other special populations as soon as their own students were
- taken home (sooner if school were not in session). (Appis.' Test., fol.
. Tr.194, at 27, as corrected at Tr. 694-96; Tr. 722,1928). Letters of j agreement for school buses have been signed with the school districts for Lebo, Waverly, LeRoy and Gridley. The agreement for the Burling-i ton district was to be signed shortly after the close of the hearing. (Tr. j 2358-59). I
- 15. Evacuation ofHealth Care facilities and Residents Needing Special Transportation Assistance I
Contention 15(a). The County Plan does not detail what type of nealth seruces wi.ll be provided for persons who are in institutions or under care on an outpatient j basis prior to the accident. It does not specify which hospital they will be taken to l The Plan does not consider the number of patients to be cared for. i
- 47. NUREG-0654, Criterion J.10.d, prescribes planning to protect persons "whose mobility may be impaired due to such factors as institu-1 tional or other confinement."
i 48. There are existing unwritten arrangements between Coffey County Hospital and hospitals with available beds in surrounding counties. These arrangements provide for the transfer of patients from Coffey County in emergency situations and have always been honored. i ( Appis.' Test., fol. Tr.194, at 73; FESI A Test., fol. Tr.1731, at 67; Tr. i 99
- l 1
i . I i l l l
812-16, 841, 851). FENIA requires signed agreements with hospitals that will receive patients. (Tr.1941).
- 49. The hospitals and numbers of beds available to Coffey County patients in an emergency are as follows: Newman Hospital, Emporia -
100 beds (Tr. 813, 815, 847 48); St. Stary's Hospital, Emporia - 40 to 45 beds (Tr. 815-16); Anderson County Hospital, Garnett - 25 beds; Allen County Hospital, Iola - 10 beds (Tr. 816); Ransom Niemorial Hospital, Ottawa - 42 beds; Greenwood County Hospital, Eureka - 20 beds (Tr. 850-51). In addition, in an emergency, Ransom would make available another fifteen to twenty beds that are normally reserved for medical students or staff who are " sleeping over." (Tr. 850).
- 50. The Golden Age Lodge Nursing Home has a capacity of 102 and, at the time of the hearing, had a census of 91 residents. (Appis.'
Test., fol. Tr.194, at 74, as corrected at Tr. 809, 813, 819). There are unsigned agreements with the hospitals in the surrounding counties to receive the nursing home residents during an evacuation. (Tr. 851). Flint Hills Stanor nursing home in Emporia with an average available capacity of thirty-five beds has also agreed to accept nursing home pa-tients from Coffey County. (Tr. 851). Contention 15(c). Coffey County does not have sufficient transportation Gmbulances, buses. etcJ to evacuate people frorn nursing homes and the Coffey County Hospital.
- 51. The Coffey County Hospital has two critical care beds.
However, it has been conservatively assumed that four hospital patients would require evacuation by ambulance or other stretcher-carrying vehicle. (FESTA Test., fol. Tr.1731, at 68; Tr. 854; Appis.' Ex. I, at K-6). The nursing home estimates that about 25% of the residents (approximately twenty-five patients) would need to be transported by ambulance or other similar vehicle. (Appis.' Test., fol. Tr.194, at 74; Tr.824).
- 52. Coffey County has two ambulances with a total capacity of eight. Under existing arrangements with surrounding counties, Coffey County can, and regularly does, call on their ambulance resources.
These ambulances are in Anderson County (two), Lyon County (three), Woodson County (two), Humboldt (one), N1oran (one), fola (two), Franklin County (three), and Osage County (two). Also, St. Ntary's Hospital in Emporia has two ambulances. The combined capacity is about fifty patients. (Appis.' Test., fol. Tr.194 at 74, as corrected at Tr. 809,828,846). The County Plan includes signed $1utual Aid Agree. ments with Allen, Lyon, Anderson, and Franklin Counties which, among other provisions and upon request, will send assistance in the 100
i I l form of equipment as it can muster during an emergency. ( Appls? Ex. .
; 1, at D-3-D 10). !
- 53. Funeral directors' venicles and ambulance helicopters would
- also be available to assist in an evacuation. The head of the Kansas Funeral Directors Association (KFDA) and another representative from (
]- the State of Kansas attended a FEMA course in 1983, in which FEM A ! ) presented guidelines on the use of funeral directors' vehicles (station I i' wagons, hearses, etc.) in an emergency. Through the KFDA. funeral ) home directors in the Wolf Creek area have agreed to provide vehicles
- with a combined capacity of forty-six stretchers. to assist with evacuation in an emergency. (Appis.' Test., fol. Tr.194, at 74; Tr. 821-22,852-53).
4 The Military Assistance to Safety and TrafGc program based at Fort Riley, Kansas (approximately 70 air miles from Coffey County) has six ambulance nelicopters with a combined capacity of eighteen litters. (Appis.' Test., fol. Tr.194, at 74-75). Conte'nuon 15(n). The County Health Nurse has not compiled a hst of County residents who are shut. ins or who may need special evacuation assistance. Contention 15(o). The County Plan does not make adequate provision for preparing a list of County residents =ho are shut in or who may need special evacua- , tron assistance. and does not make adequate provision for updating the hst as changes occur. i 54. NUREG-0654, Criterion J.10.d indicates that State and local governments should provide means for protecting those persons whose mobility may be impaired due to such factors as institutional or other conGnement. i 55. Persons requiring special emergency transportation or other spe- ! cial evacuation assistance are identified by the County Survey and by family members, in conjunction with the list of "home help" patients j normally maintained by the County Health Nurse. This responsibility of - j the County Health Nurse is stated in the County Plan. (Appis.' Test., j fol. Tr.194, at 82: Appis.' Ex.1, at 1-9; Tr.1939-40). j 56. A list of those who may need special notification, including the i hearing-impaired, is being compiled. (See Finding 28 supra). The list of persons who may need transportation assistance in an evacuation is i being developed, and will be maintained and updated in the same [ manner and on the same basis as the list of individuals needing special
! notification. (Appis.' Test., fol. Tr.194, at 83). Using information ob-tained monthly from the County Treasurer, the County Appraiser, and from the utilities, new residents of the plume EPZ will be contacted to i j determine special needs if any. The annual mailing of the emergency l l- ~ ! 101 i
i i
=
E 5
,----.---ae.- . -.
e - , - - ~ , - , . - e, ,w--- ~,--~w- - . . ., . - - , ,- , ,--w
public information brochure will include a request for updated informa. tion on individuals requiring special assistance. At least once a month, the list will be updated based on all available information. ( Appis.' Test., fol. Tr.194, at 82; Tr.1143-45). The procedure for updating the list meets with FENIA's approval. (Tr.1953). The provisions for main-taining the list are specilled in the County Plan. ( Appis.' Ex.1, at 1-5, 7,8,9).
- 16. Evacuation ofPersons Without Private Transportation Contention 16(at The County Plan does not detail how many individuals will need transportation assistance that the County Engineer is to provide for an evacuation. There is inadequate detail about how the Engineer weil know who to evacuate.
- 57. It is estimated from the County Survey that approximately 120 individuals may require transportation assistance in an evacuation.
( Appis.' Test., fol. Tr.194, at 83, 85; Tr.1147,1979). A list of those in-dividuals is being developed, and will be maintained and updated, in the same manner and on the same basis as the list of individuals needing special notification. The County Engineer will have this list and its updates. (Appis.' Test., fol. Tr. i'4, at 83; Tr. 732).
- 58. At the time of an evacuati n, some people who normally have private transportation might need ransportation assistance (e g., their cars are being repaired, etc.) (FENIA Test., fol. Tr.1731, at 83; Tr.
730). They may call the County Shop to secure emergency transporta-tion. (See Finding 9, supra). The County is unable to estimate with rea-sonable accuracy the number of persons who might need to callin to re-quest transportation at the time of an emergency. (Tr. 1147, 1983). FENIA is satisfied that the County has met this concern with the availa-bility of excess bus capacity. (Tr. 1981, 1983-84). Contention 16W. There are not enough vehicles available to provide transporta-tion for those who do not have their own means of transportation.
- 59. It has been estimated that 329 persons within the plume EPZ, other than public school students and other than those indisiduals whose vehicles, for example, are being repaired, will need school bus transportation. This estimate includes children in private schools and day care centers, ambulatory hospital patients and nursing home residents, and members of the general public who do not have access to private transportation. Not including Burlington and LeRoy, the towns 102
of Gridley, Lebo and Waverly have in aggregate eighteen school buses and two vans with a nominal capaciiy of 726 to evacuate these individ-uals. (Tr. 2017-19). As confirmed by the County Survey, evacuation for those without their own means of transportation willin most cases be by relatives, neighbors and friends. Thus, the available bus capacity has been identified and exceeds the estimated needs. (Tr. 1678-81, 1983-84). Excess bus capacity will meet the demands of those individu-als who normally would have their own transportation but for various reasons may be without it during an emergency. (See Finding 58, supra). FEMA is satisfied that there are enough vehicles available to pro-vide transportation for those who need special transportation or do not have their own means of transportation. (Tr. 1979-81).
- 60. The Coffey County Engineer testified that, while it might take 2 hours (or . little longer if there were delays at the registration center or delays due to traflic conditions) for the Burlington school buses to evacuate their students to Emporia and return to the plume EPZ, buses from schools outside the plume EPZ (Gridley, Lebo, and Waverly) could take their students home and be available within 1% hours to com-mence the evacuation from the plume EPZ of these persons needing spe-cial transportation. (Tr. 705-07, 777-79). The Coffey County Plan esti-mates that it would take a maximum of 2.5 hours to evacuate this special population, which includes the 1.5 hours discussed above. ( Appis.' Ex.
1, at 3-5; Tr.1948-49).
- 61. There is no probative evidence that the Gridley, Lebo, and Waverly buses could not load their students, unload them and be availa-ble within 1.5 hours to begin the evacuation of those needing special transportation and obviously these buses coming into the plume EPZ would not be delayed in order to be decontaminated. Reduced speeds for school buses and the effect of adverse weather conditions have been considered in the County Plan's evacuation time estimate. ( Appis.' Ex.
1, 3.3, and Table K 7; Appis.' Test., fol. Tr.194, at 32; Tr.1664 65. 1700-01, 1997). Even if a half hour was needed for loading, these buses would be able to effect the evacuation within the estimated 2.5 hours. (Tr.1996). Contention 16(m). The Engineer has not made arrangements to obtain school buses.
- 62. Coffey County has signed letters of agreement with Unified School Districts 243 (Lebo/Waverly) and 245 (LeRoy/Gridley) which provide for the availability of school buses for emergency transportation needs. A corresponding letter of agreement with School District 24 103
l (Burlington) was scheduled to be signed shortly after the close of the evidentiary hearings. The School Board attorney assured the County Emergency Preparedness Coordinator that there were no substantive im-pediments to its approval. (Tr. 721-22, 795-96, 2358-59; Appis.' Test., fol. Tr.194, at 90). School Districts 243 and 245 contract with private companies for their buses, while all buses in School District 244 are owned by the District. (Tr. 776-77). Contention 16(nt The County Plan is de0cient because the school buses listed in Table 3-8 will be required for evacuauon of schoolchildren and will not be avaita. ble to provide other emergency transportauon.
- 63. If school is in session, the school buses from School Districts 243, 244 and 245 will be available for emergency transportation after they have taken their school populations out of the plume EPZ or home.
If school is not in session, the buses would be available sooner. ( App!s.' Test., fol. Tr.194, at 91, as corrected at Tr. 696-97: FENI A Test., fol. Tr.1731, at 87; Tr. 704-05, 707, 722). Individuals, other than schoolchildren, dependent upon the buses for emergency transporta-tion, are ambulatory patients from the hospital and nursing home, child-ren at private schools and day care centers and other people who do not have transportation. (See Finding 59, supra).
- 18. Traffic Control, Access Controland EPZSecurity Contention 18(at The County Plan does not provide for enough trafGc control There too little trarfic control provision within the 10. mile EPZ
- 64. Because of the large number of roads and the relatively low population in the plume EPZ, little, if any, traffic control will be necessary. ( Appis.' Test., fol. Tr.194, at 99). The Evacuation Time Esti-mate Study indicates an average vehicle speed and an average inter-vehicular distance sufficient to allow traffic to merge from the spaisely populated rural areas into the outgoing traffic pattern without the assist-ance of extensive traffic control. ( Appis.' Test., fol. Tr.194, at 99100 Appis.' Ex.1, at 3-9). The Federal Highway Administration concurs in the route capacities used. (FEN!A Test., fol. Tr.1731, at 90).
- 65. Five traffic control positions are contemplated. (Appis.' Test..
fol. Tr.194, at 99,101; FEN! A Test., fol. Tr.1731, at 90; Tr. 655-56). Three positions are outside the plume EPZ at locations suitable for turn-around of tractors / trailers and are not required for control of auto traffic. 104
( Appis.' Test., fol. Tr.194, at 99; Tr. 652, 2036). Traflic control in Bur-lington and in the vicinity of John Redmond Reservoir is unnecessary. (Tr. 681-82, 685). The identified traffic control positions are adequate. (Tr.2037).
- 66. Area residents are familiar with the local road network and may select other suitable routes out of tra plume EPZ. (Tr. 656-57). The key determinant of the route used to (xit the plume EPZ by Redmond Reservoir visitors will be the informatioc provided in the EBS announce-ments. (Tr. 468). FENI A will review the CBS announcements to ensure clarity ofinformation to Reservoir visitors. (Tr. 1337-38, 1376-77).
Contention 18(r). The County Plan is deficient because it does not provide inat the entire evacuated area will be blocked. It only contemplates that it will be blocked as resources become available.
- 67. All roads can be barricaded within 4 hours. ( Appis.' Ex.1, at 3-8,3 9; Appls.' Test., fol. Tr.194, at 109). Four of the six priority road-blocks will be manned 24 hours per day for the duration of the emergen-cy by County Engineer personnel. The other two will be manned for a short period (about I hour) by County Sheriffs deputies, and will be permanently relieved by Kansas Highway Patrol (KHP) officers.
(Appis.' Test., fol. Tr.194, at 103). National Guard personnel as they become available will man all secondary roadblocks. This meets with FEhlA's approval. (Appis.' Test., fol. Tr.194, at 109; FENI A Test., fol. Tr.1731, at 99; Tr. 2030).
- 68. See Finding 16, supra.
Contention 18(aat The Sheriff does not have enough personnel to secure the evacuated area on a 24-hour-per-day basis,
- 69. The County Sheriff has primary responsibility for providing 24 hour-per-day security for the evacuated areas. ( Appis.' Test., fol. Tr.
194, at 115; FESI A Test., fol. Tr.1731, at 106; Tr. 668; Appis.' Ex.1. at 1-4). Additional security for the evacuated area would be provided by manned roadblocks and roving patrols. (Appis.' Test., fol. Tr.194, at 116. Tr. 668-71).
- 70. Priority roadblocks will be maintained by the KHP (two road-blocks) and County Engineer personnel (four roadblocks). All secondary roadblocks will be manned by the National Guard. ( Appis.' Test., fol.
Tr.194, at 116; FEhl A Test., fol. Tr.1731, at 106). In addition. Sheriff's deputies would patrol around the evacuated area. (Appis.' Test., fol. Tr. 194, at 115,116; Tr. 669). KHP will station three officers with vehicles 105
at the State Forward Staging Area in New Strawn. The KilP officers will be available to assist the Sheriff's deputies in controlling unauthorized entry into the plume EPZ. ( Appis.' Test., fol. Tr.194, at 115,116) FESIA is satisfied with the provisions for 24-hour-per day plume EPZ security. (Tr. 2031-32). s
- 19. Radiation Monitoring and Decontamination
- a. Sta))Ing Contention 19(e). There is no person designated or trained to act for the Radi-ological Defense OfDcer if he is not available or is to be relieved during an accident.
- 71. An alternate Radiological Defense Officer has been selected.
The County Plan provides for the alternate to carry out the Radiological Defense Officer's (RDO) functions if the RDO is unavailable or must be relieved during an accident. (FENt A Test., fol. Tr.1731, at 109; Appis.' Test., fol. Tr.194, at 118; Tr.1410-11; Appis ' Ex.1, at 1-11). The alternate RDO will receive the standard FE51 A training course. (Tr. 1411, 1566-67). Contention 19(h). The County Radiation Monitoring Team has not been selected. Contention 19(i). The County Plan is deGcient because it does not state how many members of the Radiation Monitoring Team will be required, and does not contemplate enough people to handle the duties of the Radiation Monitoring Team.
- 72. Coffey County currently has about forty-eight people who hase had the FENIA Radiological Stonitoring Training Course and 8 hours of classroom training in the use of radiation monitoring instruments. The County plans to train an additional twenty-five people. From the total group, twenty-one will be selected for additional training to qualify them i
for offsite monitoring and sample collection, as members of the Joint Radiation 5fonitoring Teams. ( Appis.' Test., fol. Tr.194, at 121, as cor-rected at Tr.1395A,1409,1413-15,1537-39,1561-63,1565-66, 2050-51).
- 73. Fourteen persons from the County are required to meet the County's radiation monitoring duties for the Joint Radiation Stonitoring Team. Twenty-one will be available. ( Appis.' Test., fol. Tr.194, at 122, as corrected at Tr. 1395-96; see Finding 72, above). Their assignments l will be made prior to the full-scale exercise. (Tr. 2051). The roster of 106
I team members may be included within the implementing Procedures. (Tr. 2031, 2050-52). 74 Six monitors per shift (12-hour shifts) will be needed for the access control positions. These would be chosen from the trained moni-tors not involved in the Joint Radiation Nlonitoring Teams. ( Appis? Test., fol. Tr.194, at 122). FENI A has determined that the Plan satis 0es the provisions of NUREG-0654. (FENI A Test., fol. Tr.1731, at 113, as corrected at Tr. 2053). Contention 1Hk). Coffey County will not be able to perform decontamination and radiation checks within the County and at evacuation centers. because it is not adequately staffed. There is no provision in the County Plan for an adequate number of personnel to supplement the County Radiation Monitoring Team in order to check evacuees and schicles at shelters for contamination. The Co!Tey County Plan shows 104 people will be needed at the evacuation centers for coritami-nation checks (at 3-8). None of these are available. At least 150 will be needed for this. The Plan does not specify how they will be recruited Also, there are no people available at the evacuation centers to handle decontamination. It is possible that as many as 100 people will be required for decontamination.
- 75. NUREG-0654, Criterion L12, specifies that radiation monitor-ing personnel at registration centers "should be capable of monitoring within about a 12-hour period all residents and transients" from the plume EPZ. This 12-hour period is neither a precise upper limit, nor a guarantee that all monitoring will be conducted within 12 hours. Rather, it is guidance as to the expected capability of the monitoring orgamza-tion. (Tr. 2053). Decontamination need not be performed within any speciGed time period. (Tr. 2073-74).
- 76. Radiological monitors from the four host counties are responsi-ble for the monitoring and decontamination of evacuees and sehicles at registration centers. Based upon the expected number of evacuees and a 2%-minute time to monitor each evacuee, the following number of monitors will be needed in each host county: Franklin County - 4 (1000 evacuees); Lyon County - 12 (3700 evacuees); Allen County -
4 (1200 evacuees); Anderson County - 6 (1600 evacuees)J The moni-tors will be selected and trained before full-power operation at Wolf Creek. ( Appis.' Test., fol. Tr.194, at 123, as corrected at Tr.1396; FENI A Test., fol. Tr.1731, at !!516; Appis.' Ex.1, at 3-13; Tr. 1417-26, 1567-68, 1574, 2070). FENtA has determined that twenty sis
?
The Co:Tey County shelter systems ofther has estimated ine maumum number of endaidu h loorst case) that could evacuaic to each host coum> Franklin Count > t 1770s. L>on Coum) iMh3 t. Allen County (12478. Anderson Coum) 13873) To be consenatne. cach number was innaied b> 2th tTr $24-251 107
host county radiation monitoring personnel will be sufficient. (Tr. 2070-73). A 2%-minute time to monitor each evacuee is very conserva-tive. (Tr. 1418 19). There is no regulatory basis that requires women evacuees to be checked for contamination by women monitors and the subject need not be described in the Plan. (Tr. 2076-77).' If necessary, additional radiation monitoring personnel are available from the Kansas Department of Transportation, or the Radiological Defense Ofneer could dispatch reserve Coffey County radiation monitoring personnel to registration centers to assist host county personnel. (Appis.' Test., fol. Tr.194, at 123; Tr.1568).
- 77. Should evacuees need decontamination, the host county radia.
tion monitoring personnel would explain the process to each, and the evacuees would decontaminate themselves. Assistance would be availa-ble for small children and those physically unable to decontaminate themselves. After decontamination, the evacuees would again be monitored. This procedure is satisfactory to FENI A. (Tr. 1424 26. I431-33, 2101-02).
- 78. NUREG-0654 does not specify any period of time within which vehicles must be monitored and decontaminated. This could be accom-plishea after monitoring and decontamination of evacuees have been completed. (Tr. 1543-44, 2075).
Contention 19m. The Fire Leader does not hase enough perwnnel to conduct the decontamination activities
- 79. Letters of agreement for decontamination services at access con-trol positions have been signed with all fire departments in Coffey County - Lebo, Waverly, LeRoy, Gridley and Burlington. (Tr. 2359).
The County Plan indicates that such letters of agreement will be inserted therein. ( Appis ' Ex.1, App. D). The County has agreed to make the letters of agreement available to FENI A for review at any time. (Tr. 2361). The live fire departments have adequate personnel (approximate. ly 110 members) and equipment (about 24 vehicles) to conduct decon-tamination activities while carrying out any other activities. ( Appis.' Test., fol. Tr.194, at 124; FENI A Test., fol. Tr.1731, at 117-18; Appis.' Ex.1, at 3-10, 311; Tr.1160 62). FENI A is satisfied that sufficient fire department personnel and equipment will be made available for decon-tamination at access control positions. (Tr. 2055, 2079, 2103).
" The stee Plani disuwon of p<ne for indmduA being wreened for 6nniarnination indures inat emergency workers eould Ise senvine in ine verwnai need, and con <ern, or e,4cuee, i s Appi, ' t.
L 4 K.7. K RI 108 l l l
I I l Furthermore, historical experience shows that County Gre department personnel are dedicated to the fulGilment of their community obligation and that they would respond in an emergency. (Tr.1287). b; A vailabihty of Equipment Contention 19(rt The Coffey County Radution Monitoring Team does not hase proper radiation monitoring equipment to monitor radutton in the esent of an evacuation.
- 80. Seven air samplers, to be provided by KG&E, are on order and will be available before the full-scale exercise. The State Plan will de-scribe this new equipment. ( Appis.' Test., fol. Tr.194, at 126; Tr.
866-67, 1574-75). Contention 19(aat The Coffey County Radution Monitoring Team does not have the communications equipment it needs to keep in touch with the County Emergency Operations Center and others. The ColTey County Plan is derkient where it prc~ ides that the Radiation Monitoring Team will communicate with the County EOC t y telephone. In all likelihood. there will not be enough telephone lines avatlable so that prompt communkation can be accomplished
- 81. Each Joint Radiation Nfonitoring Team will be in direct radio communication with the KG&E's Emergency Operations Facility (EOF) via portable radio. The EOF serves as the base of operation for the Joint Radiation Nfonitoring Teams. Information on team progress, summary data, dose projections, and plume direction will be supplied to the Radi-ological Defense OfGcer at the EOC via the radio and/or telephone links i
between the EOF and the EOC. County radiation monitoring personnel assigned to access control positions will have radio communication to the EOC or State Forward Staging Area through the County Engineer personnel or law enforcement personnel stationed at each access control position. No additional communications equipment is needed for County radiation monitoring personnel. ( Appis.' Test., fol. Tr.194, at 132-33; Appls.' Ex.1, at 3-13; FENI A Test., fol. Tr.1731, at 131-32; Tr. 1435-37, 1569-70). There is no requirement that there be direct com-munication between the EOC and the monitoring teams.'
'Craienon F I d of SU R EG.0654. ciied b, intersenors' opinion 4: 4L does noi cauire diresi communwations. but only that comn'unications be provided between the piani. ine LOF and Li< and Radasuon Momtofing TeJms FEM 4 dces noi require direct communw.suom bei.cen ine f OC and the teams. (FEM A Tesi.. rol Tr 1731. 4i 131:
109
- c. Monitoring /Decontaminetton Procedures Contention 19(hht The State Plan does not assume all evacuees will be checked for contamination. The ColTey County P!an does so. The County Plan is de6cient because it does not require that all esacuees go to the designated shelter area outside the evacuation zone for a contamination check. Once the evacuees are out of the area, it will not be possible to adequately notify them to go for a contami.
nation check. It must be clear in the plans that all evacuees will be checked for contamination.
- 82. EBS announcements will direct all evacuees to proceed to regis-tration centers. The announcements will be expanded to explain the nature of the hazard posed by radiation and the availability and efficacy of contamination checks. These revisions will provide assurance that the public will avail itself of radiation monitoring services at registration centers. (Appis.' Test., fol. Tr.194, at 137; Tr. 461, 513-14, 570-71L Similar information will be incorporated into the public information brochure. (Tr. 1373-74).
Contention IHkkL The County Plan is dcGeient because it does not provide for disposal of contaminated equipment, vehicles. decontamination water. or any other materials that might be contaminated.
- 83. The Radiological Defense Officer, with the assistance of KG&E, will retrieve any contaminated material from the registration centers for subsequent disposal. Clothing can be washed and returned, or disposed of, if necessary. KG&E could process contaminated materials at the plant site, could contact another regional utility and process mate-rial at that location, or could contract with a local vendor specializing in decontamination services, and arrange for the use of a portable decon-tamination unit. (Appis.' Test., fol. Tr.194, at 140; FEMA Test., fol.
Tr.1731, at 138; Appls.' Ex.1, at 3-13; Appis.' Ex. 2, at K-8-K-12; Tr. 1570-71, 2069 70, 2091-92, 2096-97). There, however, is no evidence in the record that the plant site would be inaccessible to provide the necessary decontamination services.'8 Letters of agreement with com-mercial enterprises are unnecessary." N Contrary to Intervenors' represeniaisons. %tr. Leon Mannell did noi tesiify that the plant mighi not be available for decontammation servwes or waste disposal. due to coniammation on sue R4ther. Inter. wenors' counsel inquired. "lwjhat it we had an accideni thai
- made it not possible to uw Wolf Creet. what would happen'" Ntr Mannell responded. "I do not have that mformaison " (Compare IPF 41 with Tr 14456 18 Intervenors cite the testimony of Mr. Raymond Lewis. for the propostion ihai th-re are no letters of agreement with commerual seruces. However. they 4gnore his testimony that such letters of agreement are unneseswry idue to the ommerical nature of the servecer (Compare IPF 41 wish Tr 1578 6 110 i
i l l t I
84 Vehicles can be decontaminated by washing. Water would be re-leased but is not likely to be a public health or safety problem - person-al health and safety of evacuees would be the initial concern. (Appls.' Test., fol. Tr.194, at 140; Appis.' Ex. 2, at K-12; Tr.1441.1449-50, 1570). The State would, however, monitor the disposal of decontamina-tion water in the host counties. (Tr. 1443, 1450).
- 20. Shelter facilities and Services Contention 20(d). There are no people available to provide man.tgement at the evacuation centers. Llp to 9.000 people would be evacuated One person for cAh fifty people evacuated will be needed Therefore.180 people are required
- 85. Section 50.47(b)(1) of 10 C.F.R. reflects that principal response organizations shall have the staff to respond to emergencies. NUREG-0654, Criterion A.3, provides that "[elach plan shall include written agreements referring to the concept of operations developed between Federal State, and local agencies and other support organizations having an emergency response role within the Emergency Planning Zones."
- 86. The estimated numbers of people required to handle registration in the host counties are eleven school personnel for Franklin County, forty-eight service club members for Lyon County, twenty-eight school personnel for Anderson County, and ten school personnel for Allen County. (Tr. 583-84, 594-95, 599-600). If sufficient numbers of host county personnel were unavailable to handle registration, the evacuees themselves could provide assistance. (Tr. 568-69, 635).
- 87. The Crisis Relocation Plan (developed in the event of a nuclear war) already calls for manning registration centers in Franklin, Anderson, and Allen Counties with school personnel. (Appis.' Test.,
fol. Tr.194, at 153; Tr. 599-600, 603-06). The Coffey County Shelter Systems Officer testified that, in the absence of written agreement, there is nothing to indicate reluctance of school teachers to assist in emergencies, under the direction of the School Board and the Superintendent. (Tr. 634). A FEMA witness believes that letters of agreement with school personnel and teachers are unnecessary for the provision of registration services. (Tr. 2108).
- 88. While there is no written agreement with the Lyon County serv-ice organizations that would assist with registration, there are serbal agreements that have been honored in the past, and are expected to be honored in the future. (Tr. 604-05).
111 l l
- 89. The Coffey County Shelter Systems Officer, whose testimony was based on local emergency response experience, and Dr. Stileti (a sociologist with expertise in the study of public emergency response),
whose testimony was based on studies of disasters, agree that the ab-sence of written agreements has never resulted in the lack of sufficient personnel to stalT registration or public shelter facilities. (Tr. 566-68).
- 90. Shelter facilities in the host counties will be staffed by volun-teers from service organizations. Those organizations have assured the host county Emergency Preparedness Coordinators that they have suffi-cient personnel to discharge their responsibilities under their verbal agreements. (Tr. 558-60). The Kansas Department of Social and Reha-bilitation Service (SRS) is also available to assist with registration and sheltering in an emergency. (Appls.' Ex. 2, at B-17). Because SRS is a State agency, no letter of agreement is necessary. (FEhtA Test., fol. Tr.
1731, at 145). A FEhfA witness expressed the opinion that letters of agreement are not required of service organizations who will provide volunteers; these volunteers, like teachers, are outside the scope of NUREG-0654, Criterion A.3. (Tr. 210815). Contention 20(k). There are not enough facilities for 9.000 evacuees at the shel-ter center. This will require siceping, food preparation, medical. sanitation. and other facilities if the shelter needs are met. The County Plan does not provide details about the extent of the resources required for food. sleeping, safety. health and sanitation. communications. recreation and religious affairs. Contention 20(m). There has been no provision made about paying shelter owners for use of their site or sertices.
- 91. See Finding 85, supra, for wording of NUREG-0654, Criterion A.3.
- 92. The shelters to be used are public/ community facilities such as armories, schools, churches and a university. (Appls.' Test., fol. Tr.
194, at 151, FESt A Test., fol. Tr.1731, at 152). It has been FE51 A's ex-perience that such facilities have willingly been made available for shel-ter during emergencies, even in the absence of prior arrangements and FENIA agrees that letters of agreement are not required. (Tr. 2097-98). This has been confirmed by local experience. (Tr. 566). The federal government has entered into agreements to secure the use of some shel-ters identified in Crisis Relocation Plans; for the others there are verbal agreements that, according to the Coffey County Shelter Systems Offi-cer, have always been honored. (Tr. 531).
- 93. The Emergency Preparedness Coordinators for the four host counties have contacted food suppliers, who have agreed to provide 112 1
i 1 1 1
food on request and arrange for payment afterward. All of the four coor-dinators are confident that they have bindmg verbal agreements with their suppliers and that written agreements are unnecessary. (Tr. 537-38, 540-41,552, 556). FE31 A agrees that such letters of agreement are not required since food suppliers are not support organizations in the sense of NUREG-0654, Criterion A.3. (Tr. 2114-15). Further, Apph-cants' expert witness testified that, based upon his experience and studies, he was unaware of any case where shelter or food has been denied because there were no written agreements to proside them (Tr. 567), and his opinion was confirmed by local experience (Tr. 366). 2L County EOC Evacuation Contennon 25(a). The County Plan is deficient because it does not provide ror relocanon of the CotTey County Emergency Operanons Center in the event that it becomes necessary to evacuate it. It is unlikely that people will want to rem in in the Emergency Operanons Center when other otTices in the Courthouse hase radia-tron levels that are unacceptable 94 NUREG-0654, Criterion H.3, states "[elach organization shall establish an emergency operations center for use in directing and con-trolling response functions."
- 95. The present County EOC is located in the basement of the County Courthouse, is totally below grade, and has a " protection factor" of 100. (FENIA Test., fol. Tr.1731, at 167; Appis.' Ex.1, s 4.1; Tr.1174,1287-90). ( A protection factor of 100 means that an individual is 100 times as safe in the EOC as he would be if he was out of doors (Tr.1289)). The new EOC (to be built adjacent to the present EOC) will have the same protection factor. (Tr. 678,1289). This is an adequate
" protection factor." (Tr. 1289, 2128). If radiation levels exceeded this " protection factor" and necessitated evacuation of the Coffey County EOC, everyone else in the plume exposure pathway EPZ would have been evacuated by that time, and thus there would be no further need for the EOC to continue operating. ( Appis.' Test., fol. Tr.194, at 164; Tr. I172,1174).
- 96. There is no requirement for a backup EOC either in NUREG-0654, or elsewhere. (FEST A Test., fol. Tr.1731, at 167-68; Appis.' Test., fol. Tr.194, at 163; Tr. 2125-26, 2177-78). How es e r.
Coffey County and Lyon County, at the invitation of the latter, have orally agreed that Coffey County could use the EOC in Emporia if it became necessary to evacuate the Coffey County EOC. Since the State of Kansas has designated the Lyon County EOC as the alternate to its 113 e
r own EOC, Coffey County considers the Lyon County EOC adequate in the event it had to utilize it. (Tr.1172). N!oreover, if necessary, Coffey County could use the State's EOC in Topeka or its personnel could go mobile and operate from radio-equipped vehicles. (Appis.' Test., fol. Tr. 194, at 163; Tr.1172,1175).
- 28. Dose Controlfor Emergency Workers Contention 23(a). The County Plan does not specifically detail how many dosimeters will he needed and what kind will be used.
Contention 2S(b). There are not enough dosimeters for emergency personnel. Contention 2S(d). There is no plan specified for issuing dosimeters to County emergency workers. Contention 28(e). The Radiological Defense Officer has not developed a system for controlling radiological exposure of emergency workers.
- 97. Coffey County currently has 314 self-reading dosimeters and will be provided with 250 thermoluminescent dosimeters (TLDs) by KG&E. Each of the approximately 225 Coffey County emergency work-ers (identified during the hearing by categories or classes and enumerat-ed in each category) will be provided with dosimeters.'2 (Appts.' Test.,
fol. Tr.194, at 176, as corrected at Tr. 1396-97; Tr.1454-55). FENI A be-lieves the County Plan or the County Plan implementing Procedures should categorize the emergency workers and set forth the numbers of workers in each category.. (FESI A Test., fol. Tr.1731, at 173, as modi-fled at Tr. 2193).
- 98. Currently the County Plan Implementing Procedures state that the County Radiation Defense Officer will issue self-reading dosimeters.
TLDs and' monitoring equipment to members of the Radiation N1onitor-ing Team.upon their arrival, and that the Shop Foreman should issue self-reading dosimeters and TLDs to emergency workers (the road and bridge crew) dispatched from his Shop. (FESIA Test., fol. Tr.1731, at 176; Appis.' Ex. 6; Tr.1500). However, the County Plan does not pro-vide for the prepositioning of enumerated dosimeters for all the catego-ries or classes set forth in note 12, supra, and it is uncertain whether this 12 These etasses or catesones of emergency workers and the number or personnet in each are: the shentTs Department On the Engineenns Department (49h the EoC (114 the County Commmioners (5n the shcher systems ofrecer lit the County Attorney (14 Pubhc informanon 001ce (It the Health and Medical Team (4h the CorTey County Hospital (17); the Golden Age Lodge (2lt the Joint Radiauon Monitonng Team IID. ambulance dnvers (164 runeral coach drners 024 l' ire Leaders and firemen (18n school bus drners (29t iTr.1455L 114 9
information will be set forth in the Implementing Procedures. (Tr. 1500-03, 1507 10). FEMA will be satisfied if the implementing Proce-dures, rather than the Plan itself, specified the prepositioning location, and the quantities and types of dosimeters. (Tr. 2198 A-99A).
- 99. The twenty-six indisiduals, who are needed to conduct radiation monitoring and decontamination for the host counties at the registration centers, should be provided with dosimeters. (Appis.' Test.. fol. Tr.
194, at 123 and corrected at Tr.1396; Appls.' Ex.1, s 3.10; Tr.1416-26, 2070-71,2195-96). The four host counties have 1056 self-reading dosim-eters. (Tr.1571). 100. As reDected in Finding 24, supra, three agencies have jurisdic-tion over the John Redmond Reservoir. Kansas Fish and Game Com-mission personnel will have prepositioned dosimetry furnished by the State of Kansas, and KG&E will provide dosimetry to personnel of the U.S. Fish and Wildlife Service for prepositioning. (Tr. 1560, 1571-72). The record does not reRe'et either that the U.S. Army Corps of Engineers will provide its own dosimeters or that KG&E will provide them. 101. It is not known if the host counties and the three agencies in the Redmond Reservoir have established procedures for their workers to measure and record radiation levels. The Coffey County Radiological Defense Officer stated that these jurisdictions had this responsibility. (Tr.1536-37). Upon issuance, self-reading dosimeters are accompanied by a record card and instructions for recording exposure. (Tr.1514). 102. KG&E has TLDs stored at the plant site and, after supplying the County with 250 of them, will have a replacement reserve of 5750 TLDs. In the event of a high level of radiation at the site, there would be adequate time to secure replacements from neighboring nuclear plants or from commercial sources, or the Applicants could devise some method to transport the replacements away from the site. (Tr. 1522 24).
- 29. Training Contention 29(c). The Coffey County Emergency Preparedness Coordinator has not developed the training programs needed to implement the County Plan. and has not made adequate plans to familiarize Coffey County personnel with the Plan and the:r responsibihties.
103. NUREG-0654, Criterion O.l. advises "[elach organization shall assure the training of appropriate individuals. 104. NUREG-0654, Criterion O.4. provides that "[elach organiza-tion shall establish a training program for instructing and qualifying per-sonnel who will implement radiological emergency response plans. I15
105. Both State and County Plans provide for a Joint Training Pro-gram for emergency personnel, to be carried out by KG&E, the County and State. (FENIA Test., fol. Tr.1731, at 181,184 85; Appis.' Test., fol. Tr.194, at 180). The course content is being developed and will be reviewed by the County, State, and KG&E. ( Appis.' Test., fol. Tr.194 at 182). 106. The County Plan contains a training matrix that identifies topics for each class of emergency worker. (Appts.' Ex.1. Table 5-1 as modified at Tr. 1276-79). Two modules of the Joint Training Program will familiarize County personnel with the County Plan and their respon-sibilities under it. (Appis.' Test., fol. Tr.194, at 182). Initial training under the Joint Training Program, including these two modules, will be completed prior to the full-scale exercise. (Appis.' Test., fol. Tr.194, at 189). FENIA finds that the County Plan meets the requirements speci-fied in NUREG-0654 for development of training plans. (FENI A Test., fol. Tr.1731, at 184-85; Tr. 2243-44). Contention 29(g). The County Plan should specify in detai' the t>pe and amount of training that individuals will receive. The training to be provided to the positions hsted in Table 5-1 should be specified in detail. 107. See Findings 103 and 104, supra. 108. Table 5-1 in the County Plan presents a matrix describing the Joint Training Program. ( Appis.' Ex.1, Table 5-1). The Coffey County Emergency Preparedness Coordinator and the Nfanager, Radiological En-vironmental Assessment, KG&E have recommended certain revisions to the matrix involving type and amount of training for emergency workers. (Tr. 1276-79, 1629-35). FENIA is satistled with these revisions to the County Plan. (Tr. 2243-44). 109. See Finding 16, supra. I10. The U.S. Corps of Engineers and U.S. Fish and Wildlife Service employees at the John Redmond Reservoir will receive training in basic radiation effects and protection, overview of the State, County, and KG&E emergency plans, self-protection radiation monitoring, and the position role in the emergency plan. Kansas Fish and Game employees at the reservoir will receive the same training plus training in radiation survey techniques. (Tr. 1635-36). Contention 29fh). The following local personnel lack suf6cient training to per. form their assigned functions and should be trained in the ident:0cd areas. (1) The Coffey County Emergency Preparedness Coordinator Adsice to Sheriff about protective action to take. locating, storing, and distribution of emergency 116 1
equipment; trainmg personnel about evacuation duties and emergenc) equipment; have knowledge about radiation monitorms, decontamination processes, and use of protective gear; understanding dut cs of each person m- - volved in the Plan; conductmg evacuation drills; trainmg public about how to respond to an emergency; evacuation of people who lack transportation' imple-menting the guidelines to be used to determine when emergency workers should conduct activities that will result in esposures m escess of 25 rem (2) Coffey County Commissioners. (3) Coffey County Clerk. (4) CotTey County Sheriff. Coordination of evacuation process. knowledge of Plan to advise peopic about duties and how to implement their duties; trammg of personnel to conduct evacuations; conduct of esacuation plan drills; notiGea-tion of radiological emergency; management of roadblocks and trafGc control. security of evacuated ares; eva;uation of persons without transportation. (5) CofTey County Sher #s Department personnel. (6) Coffey County Engineer. Cleaning and maintaming of roads in bad weather. operation of roadblocks and trafGe control. (7) Coffey County Engineer's statT. Rescue functioni (8) Personnel of the CotTey County Road Department. Management and assistance at roadblocks. (9) The Burlington City Police Department and other police departments within
- Coffey County. Givmg of imtial warnings; security of area after evacuation.
l trame control, and management of roadblocks. (10) Personnel of the City of Burhnston Fire Department and the personnel of ! other Gre departments within Coffey County. Decontammation process at road. blocks and checkpomis; use of protectisc gear durmg the evacuation process. (11) Traffic control personnel. (12) Coffey County Health Omcer. (13) Volunteer teams to provide medical care and first aid (to be trained by the County Health OfGcer). (14) Coffey County Health Nurse. (15) Nursing home administrators and statT. (16) Coffey County Hospital staff. Evacuation of patients at hospital-(17) Coffey County Ambulance Service. Evacuation of patients at hospital and coordination of that duty with treatment of individuals mjured m an emergency. (18) Radiological Defense OfGcer. (19) CofTey County Radiation Monitoring Team. Takms an evaluation of radiation levels; operation of radiological monitoring equipment; knowledge about allow-able radiation dosages; use of protective gear. (20) Personnel assistmg the Radiation Monitorms Team with radiation monitormg checks. (21) Shelter 1.cader. (22) Temporary Shelter Managers. (23) Shelter Managers. (24) Bus drivers. To assure that they will respond. (25) Personnel to periorm conGrmation of evacuation. (26) Volunteers and other personnel yet to be recruited who will have responsibili-ties under the Plan. I17
I11. See Finding 104, supra. 112. Training identified in the County Plan is under development and will be completed prior to the full-scale exercise. The following indi-viduals will be trained in accordance with NUREG-0654 requirements. (Appis.' Test., fol. Tr.194, at 189-90 Appis.' Ex.1, Table 5-1, as modi-fled at Tr. 1276-79). (The following numbering system is similar to that utilized in the contention). (1) Emergency Preparedness Coordmator (FESI A Test., fol. Tr.1731, at 192-93L (2) County Commissioners. 42 at 194 95). (3) County Clerk. Ud. at 196-97). (4) Sheriff. Ud. at 198-99). (5) SheritTs Department. Ud. at 200-01). (6) County Eng:neer. Ud. at 202-03). (7) County Engmeer's Staff. Ud. at 204-05). (8) The Coffey County Road Department. These individuals are part of the County Engmeer's staff. Ud. at 206-08). (10) Fire Department personnel. Ud. at 211-12; Tr. 2219). (11) Traffic control personnel. (FESI A Test.. fol. Tr.1731, at 213. Tr. 2220 2225 26). (12) The County Health OfGcer. (FESI A Test., fol. Tr.1731 at 214; Tr.1276L (13) Volunteer teams for medical care and Grst aid. (FEstA Test. fol. Tr.1731, at 215 16. Tr. 2227). (14) County Health Nurse. (FEM A Test. fol. Tr.1731, at 217). (15) Nursing home personnel. Ud. at 218-19. Tr. 2227-28). (16) Hospital Staff. Ubid.; FENI A Test., foi Tr.1731 at 220-21) (17) County Ambulance Service. (FEAf A Test., fol. Tr.1731. at 222 23) (18) Radiological Defense Officer. Ud at 224). (19) Radiation Monitoring personnd Ud. at 225-26). (20) Personnelassisting the Radiation Monitoring Teams. Ud at 227-28). (21) Shelter Systems OfGcer. Ud at 229 30). 123) Host County Reception and Care Coordinators and staff. Ud at 232). (24) School bus drners. Ud. at 233; Tr.1630. 2228). (25) County Engmeer and staff performing evacuation confirmation. (FENtA Test , fot Tr.1731 at 234-35; see Nos. 6 and 7, supra). (26) Volunteers and other personnel who will have responsibilities under the Plan but have not yet been recruited. (FEM A Test., fol. Tr.1731, at 236 37). 113. The following individuals will not receive training: (9) Police Departments within CotTey County. These individuals have no responsi-bihties in the County Plan. Ud. at 20910; Tr. 661,221819). (22) Temporary Shelter Managers. The County Plan does not mention such mdi-viduals nor is it required to do so (FEM A Test., fol. Tr.1731, at 231). 114. Members of the Joint Radiation Monitoring Team and other ra-diation monitors will be selected and trained, including additional train-ing for the Joint Radiation Monitoring Team to qualify them for offsite 118
monitoring and sample collection, prior to the full-scale exercise. Gee Finding 72, supra). Contention 29(k). The training program does not adequately consider how to deal with changes in personnel and in volunteers who ate trained. There will be a very substantial turnover that must be dealt with. I15. See Findings 103 and 104, supra, 116. Both the County and State Plans provide for training of new emergency response personnel. ( Appis.' Ex.1, at 5-1; Appis.'. Ex. 2, at 0-2). They will be trained using videotapes of appropriate portions of the Joint Training Program, and self-study materials, and will also be re-trained periodically in the Joint Training Program, drills and exercises. l (Appis.' Test., fol. Tr.194, at 193; Tr. 891-92,1182,1640). Replace-ment personnel will receive substantially the same training as those trained originally. (Tr. 892, 1184, 1641). FEhf A has found that these l plans are consistent with the requirements of NUREG-0654. (FENI A Test., fol. Tr.1731, at 240). Contention 29(4). The State does not hase adequate plans to train State person-nel having emergency responsibdities. The Bureau of Radiation Controlis responsi-ble for supporting and developing conduct of radiological emergency response train-
- .ng but has not established plans or courses for providing such training.
I17. See Findings 103 and 104, supra. 118. NUREG-0654, Criterion 0.5, states "[elach organization shall provide for the initial and annual retraining of personnel with emergency response responsibilities." 119. Applicants' witness testified that several changes will be made which will require additional training of State workers as listed in Table 0-1 of the State Plan. (Tr. 887-88, 918 19, 2266). The State reviews and updates its Plan annitally, including procedures. (Appis.' Ex. 2, at P-1). FEhlA finds that State training plans are consistent with the criteria of NUREG-0654. (FEhl A Test., fol. Tr.1731, at 249-50). Contention 29(s). The following State personnel lack sufficient training to per-form their assigned functions and should be trained in the identified areas' (1) State Department of Emergency Preparedness personnel. Training of people in-volved in the Plan and the conduct of emergency planning drills. (2) Kansas Department of Health and Environment personnel Famtlurity with State and Coffey County Plans. so can meet its primary and support responw bdities as specified in the State Plan i19
(J) Kansas Biareau of Radiation Control personnel. Determining esistence of otT. site contamination. (4) Kansas Natiorial Guard Unit in Burlington, Kansas. Management of roadblocks and trafnc control; evacuation of nursmg homes and others, use of protectne gear. (5) Kansas Highway Patrol personnel. Responsibilities speciGed m the State Plan
- 16) Kansas Departrnent of Transportation personnd Responsibilities spec Ged in the State Plan.
(7) Kansas Department of Social and Rehabiliti en Services. (8) Kansas Fish and Game Commission personn:1. 120. See Findings 103,104 and 118, supra. 121. The State Bureau of Radiation Control personnel have been trained and certified in the skills required for determining the existence of offsite contamination. (Appis.' Test., fol. Tr.194, at 201-02). Otherwise, all initial training of State emergency workers, as specified in the Joint Training Program, will be completed prior to the full-scale exercise. ( Appis.' Ex. 2, Table 0-1; Tr.1623). As under Contention 29(q), the State training plans are consistent with the criteria of NUREG-0654. (Sce Finding 119, supra; FENI A Test., fol. Tr.1731, at 253-67; Tr. 887-88,1636, 2231-36). Contention 2Hul. The follo*mg federal personnellack sufGeient traimng to per. form their assigned functions: (1) U.S. Army Corps of Engmeers personnel. (2) U S. Fish and Wildlife Service personnel. 122. See Findings 103 and 104, supra. 123. The U.S. Army Corps of Engineers and U.S. Fish and Wildlife Service emergency workers will receive training as part of the Joint Training Program. (Appis.' Test., fol. Tr.194, at 204). Training will in-clude basic radiation effects and protection, overview of the State. County and KG&E emergency plans, self protection radiation monitor-ing, and position role in the emergency plan. (Tr.1635). This provision removes concern that FENIA had about training of these personnel. (FENIA Test., fol. Tr.1731, at 270-72; Tr. 2236). This training will be d completed before the full-scale exercise, which is consistent with the re-
+ quirements of NUREG-0654. (Tr.1623). In addition to the training
' provided these agencies, Kansas Fish and Game Commission personnel, who may be involved with field sampling during emergencies will re. ceive training in radiation survey techniques. (Tr. 1635-36). 120 i
s
- 31. Resource Availability and Allocation '
Contention 31(c). The Fire Department of Burhngton and other e ties in Cotrey County do not have radio equtpment wnich is needed to communicate with the Sheriffs Omce. Contention 31(d). The Coffey County Road Department needs radio equipment for its vehicles to communicate with the Sheriff and others in the event of an
, emergency.
124 ~NUREG-0654, Criteria E.2 and F.1, require that each organiza-tion shall establish procedures for aieriing, notifying, and mobilizing emergency response personnel and shall establish reliable primary and backup means of communication. 125. Radio equipment that would allow the Gre departments to com-municate with the Sheriff's OfGce and EOC is on order, and delivery is scheduled for Spring of 1984. (Appis.' Test., fol. Tr.194, at 212; Tr. 644, 1188-91, 1206-09, 1280). The proposed arrangements will sat;sfy the requirements of NUREG-0654. (FEMA Test., fol. Tr.1731. at 282-83). 126. Radio equipment allowing Road Department vehicles to com-municate with the Sheriff's Office and EOC is on order, and delivery is scheduled for Spring of 1984. (Appis.' Test., fol. Tr.194, at 213: Tr. 644, 746-48). This plan will satisfy the requirements of NUREG-0654. (FEM A Test., fol. Tr.1731, at 284-85). Contention 31(f). Protection gear against radiation is : eeded for all workers who are involved in the evacuation plan. Three hundred fifty people will be invohed in three shifts. If so,116 sets of protective gear are required. 127. NUREG-0654, Criterion H.9, states "[elach licensee shall pro-vide for an onsite operations support center (assembly area) which shall have adequate capacity and supplies, including, for example, respiratory protection, protective clothing, ." Criterion H.li advises that each plan shall, in an appendix, include identification of emergency kits by general category (protective equipment, communications equipment, radiological monitoring equipment and emergency supplies). 128. Protective clothing only protects against contamination, not radiation. (Tr. 2289). Consequently only Geld radiation monitoring team members, who could contaminate themselves while collecting environ-mental samples, might require protective clothing. (Tr. 1530, 2286. 2292, 2296-97). KG&E has 100 sets of protective clothing set aside for emergency workers whereas only 21 sets might be needed for the Geld 121
monitoring teams. ( Appis.' Ex.1, } 3.10 Appis.' Test., fol. Tr.194. at 214). Approximately 1900 additional sets are available at the plant site. (Tr. 2363! Criteria H.9 and J.6.b of NUREG-0654 require an onsite support ccnter that would have protective clothing and provisions for use of protective clothing by individuals present or arriving on site during an emergency. There is no requirement that protectise clothing also be available off site. Conclusions of Law The Board has considered all of the evidence submitted by the parties. Based upon a review of the entire record in this proceeding and the foregoing Findings of Fact the Board concludes that:
- 1. The emergency plans meet the requirements of 10 C.F.R.
j 50.47, and Appendix E to 10 C.F.R. Part 50, as well as the criteria of NUREG-0654, and provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency;
- 2. the issuance of an operating license to the Applicants will not be inimical to the common defense and security or to the health and safety of the public; and
- 3. pursuant to 10 C.F.R. } 2.760a and 10 C.F.R. } 50.57, the Director of Nuclear Reactor Regulation should be authorized to issue to the Applicants, upon making requisite findings with respect to matters not embraced in this initial Decision, and subject to the satisfaction of the conditions set forth in the Order, infra, a license authorizing operation of Wolf Creek Generating Station. Unit No.1.
Order WHEREFORE, IT IS ORDERED, in accordance with 10 C.F.R. } 2.760a and 10 C.F.R. } 50.57, that the Director of Nuclear Reactor Regulation is authorized to issue to the Applicants, upon making requi-site findings with respect to matters not embraced in this initial Decision, a license authorizing the operation of the Wolf Creek Generat-ing Station, Unit No.1, provided that the following conditions have been met prior to the issuance of the operating license:
- 1. Letters of agreement shall be signed by Coffey County with hospitals in surrounding counties providing for the acceptance of patients from the Coffey County flospital and the Golden 122
Age Lodge Nursing Home in the event of an emergency evacu-ation occasioned by an accident at the Wolf Creek plant. These l executed letters of agreement shall be submitted to the NRC Staff and shall be included in the Coffey County Plan.
- 2. Letters of agreement shall be signed by Coffey County with ambulance services and with funeral directors in surrounding counties providing for the transportation of nonambulatory pa-tients from the Coffey County Hospital and from the Golden Age Lodge Nursing Home in the event of an emergency evacu-ation occasioned by an accident at the Wolf Creek plant. These executed letters of agreement shall be submitted to the NRC Staff and shall be included in the Coffey County Plan. {
l Pursucnt to 10 C.F.R. s 2.760 of the Commission's Rules of Practice, i this initial Decision will constitute the final decision of the Commission f forty-five (45) days from the date of issuance, unless an appeal is taken in accordance with 10.C.F.R. s 2.762 or the Commission directs otherwise. (See also 10 C.F.R. (( 2.764,2.785 and 2.786). Any party may take an appeal from this decision by filing a Notice of Appeal within ten (10) days after service of this Initial Decision. Each appellar.t must file a brief supporting its position on appeal within thir:y (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 l the filing and service of the briefs of all appellants (forty (40) days in ( the case of the Staff), a party who is not an appellant may file a brief in l support of or in opposition to the appeal of any other party. A responding party shall file a single, responsive brief only regardless of the number l l l l l l l 123
-__.__-_.___________m._ ..
of appellants' briefs filed. (See 10 C.F.R. s 2.762 as amendea December 19,1983,48 Fed. Reg. 52,283 (1983)). THE ATOMIC SAFETY AND LICENSING BOAllD George C. Anderson ADMINISTR ATIVE JUDGE fiugh C. Paxton l I ! ADMINISTRATIVE JUDGE Sheldon J. Wolfe, Chairman ADMINISTR ATIVE JUDGE i Dated at Bethesda, Maryland, this 2nd day of July 1984. I 124
Cite as 20 NRC 125 (1984) LBP-84 27 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Sheldon J. Wolfe, Chairman Dr. George C. Anderson Dr. Hugh C. Paxton
'n the Mabr of Docket No. 50 482 OL (ASLBP No. 81 453 03-OL)
KANSAS GAS & ELECTRIC COMP ANY, et al. (Wolf Creek Generating Station, Unit 1) July 26,1984 Pursuant to Applicants' Motion for Clarification, concurred in by all parties, the Licensing Board clarifies its Initial Decision (LBP-84-26,20 NRC 53) issued on July 2,1984. MEMORANDUM AND ORDER (Re Applicants' Slotion for Clarification of Initial Decision) On July 2,1984, the Board issued its initial Decision authorizing the issuance of an operating license for the Wolf Creek Generating Station, Unit 1, provided two conditions were met prior to the issuance of the operating license. LBP-84 26,20 NRC 53. On July 17,1984, Applicants , filed a Motion for Clarification. Therein, Applicants request (1) that the l wording of the Board's Order in the initial Decision, which specifies that i the two conditions related to the offsite emergency plans must be " met ! 125 I 1 i l
_ m_ _ ._.- _ ___ . - _ _ _ __ . _ . . _ t prior to the issuance of the operating license," should be changed to specify that these two conditions must be " met prior to the authorization > ! of operations of greater than 5% of the rated power". (2) that the word-i ing of the first license condition be modified by substituting the words
" health care facilities" for " hospitals"; and (3) that the Board's Finding .
of Fact 24 be modified to read that the U.S. Fish and Wildlife Service (USFWS) will use its siren-equipped vehicles to notify only that small portion of the USFWS territory within the EPZ which is not without acoustical siren range. Counsel for Applicants advise that counsel for the Intervenors, the ! NRC Staff and for FEAIA have authorized them to state that they concur in this motion. 1. r Satisfaction of Conditions Prior to issuance ofan Operating License Our Order in the initial Decision is not inconsistent with 10 C.F.R. f 50.47(d). That Decision addressed the application by KG&E for a full-power license only, and the " operating license" we conditioned in our Order referred to that full-power license. Applicants state that this ex- ) a planatory language would satisfy their concern that the effect of the condition, if interpreted literally, would prevent fuel loading and low-j power testing prior to the satisfaction of the specified conditions.* A L
- similar clarification was made by a Licensing Board in Louisiana Power 1
and Light Co. (Waterford Steam Electric Station, Unit 3), LBP-82-!!2, 16 NRC 1901 (1982); there as here, such clarification should resolve 4 any such concern.- Also, we decline to amer.d the language of the Order 2 lest it be misinterpreted as authorizing a low-power license. Absent a motion filed pursuant to 10 C.F.R. j 50.57(c), the issue whether fuel loading and lower power should be authorized is not before this Board.
- 2. Letters ofAgreement with Host Health Care facilities The first license condition directs, in part, that "llletters of agreement shall be signed by Coffey County with hospitals in surrounding counties providing for the acceptance of patients from the Coffey County ifospital
, *smce Apphcams state that this esplanatory lariguage would satisfy their concern, we neither need to j modtry tt'e wording of our Order. nor do we have to determine whether. in citirig oniv one operaisns a bcense ror the susquehanna stean* Elecinc station. Umt 2. Apphcants have estabhshed that it is cus-I tomary NRC practice to issue operating hcenses which "pendmg Commission approvar* are "restncted j - to power kvels not to exceed Ove percent of full power." esen m the absence or a monon Gled pursuant to 10 C.F R. ) 50 57(cf. (See Appbcants' Motion at 2 n 11. t i 1 126 i l l.
., , .. .--- , - - - - - . . - ~ , , - , . . .a-.--- - v.,-.,- ,v-- +
;V4,. a na - b.- mM w - n>w i.
i l' 4 and the Golden Age Lodge Nursing Home in the event of an emergency ! evacuation occasioned by an accident at the Wolf Creek plant. A p-1 plicants request that the words "and nursing homes" be added to this condition in order to give local authorities maximum flexibility in alloca-tion and utilization of health care resources in emergency preparedness. i This is a reasonable request. Thus, as modified, the first sentence of the
'first condition provides that "[lletters of agreement shall be signed by I Coffey County with hospitals and nursing homes in surrounding counties providing for the acceptance of patients from the Coffey County Hospital and the Golden Age Lodge Nursing Home in the event of an emergency evacuation occasioned by an accident at the Wolf Creek plant." Further, lines 6-8,20 NRC at 71, of LBP-84 26 are amended to read: " Accord-ingly, the Board directs that such letters of agreement with hospitals and nursing homes be obtained and included within the County Plan. (See Order, htfra)."
- 3. USFWS Notification ofSmall Portion of Redmond Reservoir Applicants' request for a modification of the Board's Finding of Fact 24 is well-taken and supported by citations to the transcript.
, Accordingly, the sentence in Finding 24,20 NRC at 93 of the Initial De-j cision which states that "[t]he Fish and' Wildlife Service will use its siren-equipped vehicles to cover its jurisdictional area, will personally contact individuals where possible, and will put preprinted warning flyers on unattended, parked cars," is modified to read: "The Fish and Wildlife Service will use its siren-equipped vehicles to cover this small ! pcrtion of land, will personally contact individuals in that small area where possible, and will put preprinted flyers on unattended, parked cars." Also, lines 13-16,20 NRC 'at 66 of the Initial Decision are modi-fled to state: "After reading the County Plan and hearing the testimony, we are satisfied that the F&WS will be able to notify visitors ! in all areas under its jurisdiction (including the small area not within j range of a siren) that they should evacuate." Order 1- Applicants' Motion for Clarification of Initial Decision is granted to the extent discussed above. j 127 i J 4 I,- -- , , ._ - -.- . , , _ , , _ . . . _ - ,-
- . ~ . _-.. _ .- , .- , . _
Judges Anderson and Paxton join but were unavailable to sign this issuance. FOR TFIE ATONilC SAFETY AND LICENSING BOARD Sheldon J. Wolfe, Chairman ADMINISTRATIVE JUDGE Dated at Bethesda, Nfaryland, this 26th day of July 1984 128
Cite as 20 NRC 129 (1984) LBP-84-28 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Peter 8. Bloch, Chairman Dr. Jerry R. Kline Mr. Glenn O. Bright in the Matter of Docket Nos. 50-440 OL 50 441-OL CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al. (Perry Nuclear Power Plant, Units 1 and 2) July 26,1984 The Licensing Board, having admitted a broad emergency planning contention prior to the completion of State and local plans, grants Appli-cants' motion to require intervenors to " particularize" its contention by providing specificity and bases. RULES OF PRACTICE: CONTENTIONS (SPECIFICITY AND BASES) When a broad contention has been admitted at an early stage in the proceeding, intervenors should be required to provide greater specificity , and to particularize bases for the contention when the information re-quired to do so has been developed. i
)
4 129 g-, - m
AIE310RANDU31 AND ORDER (Particularization of Emergency Planning Contention) Cleveland Electric illuminating Company, et al. (Applicants) tiled their Ntotion for Particularization of Issue No.1 (5folion) on June 26, 1984. The Slotion is opposed by Sunflower Alliance Inc., er al. (Sunflower) and by Ohio Citizens for Responsible Energy (OCRE) but it is supported by the Staff of the Nuclear Regulatory Commission (Staf0. Issue #1, on emergency planning, was admitted to this proceeding in 1981, prior to the completion of any local plans. We considered the con-tention to have an adequate basis in part because those plans were not completed and were, therefore, inadequate to assure the adequacy of off-site emergency planning. The contention we admitted was: Applicants' emergency esacuation plans do not demonstrate that they provide rea. sonable assurance that adequate protectne measures can and will be taken in the event of an emergency.' At the time, we considered the contention to be broad but not vague. We also recognized that it would be necessary to narrow this issue prior to trial and we indicated that intervenors would have the burden of going forward to show that factual issues exist which require a hearing. Our ruling on the pending motion is controlled by our commitment to using the hearing process as a way of protecting the public health and safety rather than as a sterile adversary process. Since intervenors filed their motion the entire emergency planning context has shifted. Before, when the contentions were admitted, there were no plans. Now, as Ap-plicants have asserted in their Slotion without direct disagreement from the intervenors, evacuation planning for the Perry Nuclear Power Plant is well advanced: Emergency plans for Lake, Ashtacula and Geauga counties emt in revised form. and hase been asailable in public libraries in their respectne counties for as long as a year and a half. . . Further, the Federal Emergency .\f anagement Agenc> t-FEM A") Region V has completed its informal reviews of the county plans and I LBP 8124.14 NRC l'5.199119818, at mmt.fc/ b> L BPJI.lf.14 N RC h42. 646 8199 t h Sutf has 6errectly pointed out that the contenteon is erroneoush worded unte it shallenges the Staie and lout plans rainer than Applicants' " plan lienseforth. the words "suse and Ims'should he substituted for the word " Applicants'" m the worJmg of thw mue 1IJ 130
1 l l l l has issued an intertm report concluding that there is reasonable usurance that ap-propriate protectise measures can be taken in the event of a radiological emergency at (Perry!.3 We are convinced that our action in admitting this contention was cor-rect - although other Boards faced with similar situations have deferred acting on the contentions at all until after the emergency plans have been drafted. However, we also are convinced that the underlying factual situation has shifted so dramatically that the original basis for the conten-tion has been undermined. Consequently, a motion for reconsideration might be in order if there were no other remedy to force Sun 0ower to make its contention relevant to the current situation. The principal remedy provided for in the rules for paring down a broad contention is a Motion for Summary Disposition. We consider Ap-plicants' present motion for "particularization" to be partly in the nature of a motion to reconsider the admission of the contention aad partly in the nature of a generalized motion for summary disposition.10 C.F.R. }} 2.714(b) and 2.749. In either case, this is the type of motion that we invited as a condition of admitting this broad contention. LBP-81-24.14 NRC 175,189 (1981). Because of the changed circumstances, which we anticipated. it is now appropriate that the intervenors place a new set of cards on the table. It is time for the intervenors to state with specificity, and with bases, the particular deficiencies that currently exist in the draft plans. See 10 C.F.R. } 2.714(b). Or, if they do not Gnd such deficiencies, they may withdraw their contention. It does not do for intervenors to argue that the emergency plans are not Snished. Yes, there are additional steps being taken to modify and further improve those plans.* However, the plans have reached a mature state of development and it is time for intervenors to state their objec-tions so that meritorious objections may be met. This is not a game. If there are problems intervenors know of, those problems should be remedied. It is not appropriate to lie in wait, stalking the plan like prey in the jungle. It is the nature of emergency planning that it is an evolving process. The fact that plans are not "Gnished" is not ground for avoiding the re-sponsibility for specifying the grounds for a contention, if there be such grounds. Similarly, the fact that flaws in the plan may show up during an 3 Applicants' Motion at 3-4 !at,irig its discovery response and a statiletter as authoniy for tite factual statementst
- Emergency plans are r.ever " final." smce they must be reueseJ. updated and amended annually 10 C F R ) 50 47tbH41.10 C.F R. Part 50. Append s E e IV G. WREG.0634. Craermn P 4 131
- .. .. . ~. . .. - . .. . - - .
d 7 1 i l ) emergency planning exercise is not an excuse for deferring litigation of the adequacy of:he plan until the exercise is conducted.5 Nothing in any 4 court decision suggests otherwise. 4
. Order For all the foregoing reasons and based on consideration of the entire record in this matter, it is, this 26th day of July 1984 ORDERED
' Sunflower Aliiance Inc., et al. shall, prior to August 22,1984, specify in a written filing the specific inadequacies alleged to exist in the draft local and State emergency plans and shall provide a reasoned basis for
; believing that the allegations concerning inadequacies are true. If there -
are relevant sections of the applicable plans or of applicable regulations
! or guidance documents, those sections must be cited to support the 1.
claim of inadequacy. THE ATOMIC SAFETY AND s LICENSING BOARD Peter B. Bloch, Chairman i ADMINISTRATIVE JUDGE 4 l j Jerry R. Kline i ADMINISTRATIVE JUDGE 5 Glenn O. Bright ADMINISTR ATIVE JUDGE a i Bethesda, Maryland r i I
- j.
- A recent Court of Appeals' decasson istill subject to a motion ror rehearmg) that the emergency pl.in.
ning esercise must be subject to litigation is irrelevant to a decision concermng whether sittervenors must update their contentrons now so that they reflect the current state of the record Ser (innm of Con. , arened surnrisis r. NRC, 735 F 2d 1437 (D C. Cir.1984p. i 132 i i _ . . , . . - _ , , - . . . . _ - _ . .,m . _, . _ . , , . . _ . . . . - . , ' . , , _ . . _ . . _ . _ .
Cite as 20 NRC 133 (1984) LBP 84-29 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: John H Frye,Ill, Chairman Glenn O. Bright Emmeth A. Luebke in the Matter of Docket No. 50-142-OL (Proposed Renewal of Facility License) THE REGENTS OF THE UNIVERSITY OF CALIFORNIA (UCLA Research Reactor) July 17,1984 Licensing Board reviews allegations of misconduct made against technical members of the NRC Staff and concludes that, although the in-formation available to the Board does not conclusively show misconduct, that information does raise concerns for the integrity of the adjudicatory process. These concerns are brought to the Commission's attention for whatever action it deems necessary. Additionally, the Board recommends that the Commission take up a Staff proposal for rulemaking which it had earlier declined to entertain. MEMORANDUM On December 23,1983, this Board referred two charges of misconduct leveled against NRC Staff technical members to the Office of Inspector 133 , l l l
and Auditor.' These charges were made by the intervenor in this proceeding, the Committee to Bridge the Gap (CBG). Additionally, be-cause these charges raised questions concerning the credibility of these Staff members whose afDdavits supported Staffs motion for summary disposition of CBG's Contention XX, we required Staff to file an expla-nation with us. We also required Staff counsel's explanation of a charge made against her by CBG, although we did not refer that matter to the Inspector and Auditor. Responses to all these charges were filed by Staff counsel on January 10,1984 On February 24,1984, after reviewing UCLA's security plan and the security inspection reports of the NRC Staff, we raised questions regard-ing the accuracy of representations made by both UCLA and StatT counsel. In that connection, we inquired whether these representations had been reviewed by each counsel's client, and if so by whom. Staff and UCLA counsel responded to this inquiry on Starch 9,1984. On April 13, we issued a 5femorandum and Order in which we concluded that no basis existed to impose sanctions against Staff counsel and pro-posed to reprimand UCLA counsel. However, we withheld any review of the representations of the technical Staff because Staff counsel, in a Starch 16 letter, notiGed us that she had on that date been advised of certain Staff practices which were inconsistent with Staff s position as it had been conveyed to her and was investigating these practices. UCLA's counsel responded on Stay I to our April 13 hiemorandum and Order. On June 5 we dismissed the charges pending against him and refused to institute action against UCLA pursuant to 10 C.F.R.
} 50.100, again withholding any review of the technical Staffs represen-tations pending Staff counsel's investigation.2 On June 12, Staff counsel filed the supplemental information which had been promised in her Starch 16 letter. We must now consider the conduct of the NRC technical Staff called into question by our February 24 Memorandum and Order (unpublished) and the charges leveled by CBG which we discussed in our December 23, 1983 Niemorandum and Order (unpublished). We discuss these matters in detail below.
I We understand that the office or inspector and Auditor has made a report to the commission on these charges wehave not received or reviewed a copy or this report 2 Our June 3 \temorandum and Order is pubbshed as LilP 84-22.19 NRC 1383, with our Aprd 13 \femorandum and Order as an assachment i34
BACKGROUND All of the alleged misrepresentations at issue here insols e CBG's Con-tention XX which concerns physical security at the Nuclear Energy Laboratory (NEL) where the reactor which is the subject of this proceed-ing is located. In order to understand the charges, some background is necessary. We begin by noting that 10 C.F.R. Part 73, which states the Commission's regulatory requirements for physical security, sets out three categories or levels of protection which must be implemented by nonpower reactor licensees. The particular category an individual licen-see falls into depends upon the amount of special nuclear material (SNNI) it possesses. The first, or highest category (Category 1) applies to licensees who possess a formula quantity) of strategic special nuclear material (SSNNI). These licensees must implement the most stringent protective measures.* The second category (Category !!) applies to licensees who possess less than a formula quantity of SSNNI, but whose inventory of SNN! is deemed to be of moderate strategic significance.' The third category (Category !!!) applies to licensees who possess less than a Category !! amount of SNNI. Licensees in this category are deemed to possess SNNI of low strategic significance and must imple-ment the least stringent security measures.6 Licensees are exempt from the regulatory requirements laid out to the extent that they possess SNNI which is not readily separable from other radioactive material and which emits a dose in excess of 100 rems per hour at a distance of 3 feet from any accessible point without intervening , shielding.' Such fuel is deemed self-protecting. Additionally, f 73.40(a) directs all licensees to protect against both theft of SNNI and radiological sabotage. We held in LBP-83-25A,17 NRC 927 (1983), and LBP-83-67,18 NRC 802 (1983), that this provi-sion required UCLA to initiate some measures to protect against sabotage. The alleged misrepresentations here involved concern: (1) whether Staff misrepresented the regulatory requirements concerning protection J Although the derinition or *rormula quanbry~ is more comphcated. for purposes of this Jmumm o may be considered to be 5000 grams or more of UN 410 C F R (( 73 40(bl. (c) and (dt. 73 60. 7J 67 I i0 C F R. t 7) 67(di
- 10 C F R 173 67(rt
?
10 C F R (( 73 60. 73 67(bHlH0 135
against sabotage; (2) whether a Staff affiant improperly stated that a por-tion of the SNN! was self protecting when it was not; and (3) whether Staff counsel misrepresented the amount of SNN! on hand by stating that it was less than a formula quantity of SSNNI. We deal with the last charge first. ALLEGATION TIIAT STAFF COUNSEL NIISREPRESENTED TIIE ANIOUNT OF SNNI ON IIAND in its December 13, 1983, Niemorandum on the status of Con:ention XX (at 10), CBG asserts that at a prehearing conference held early in 1981 Staff counsel stated that UCLA had less than a formula quantity of SSNN1 on hand. CBG points out that this statement came shortly after Staff had written UCLA indicating that more than a formula quantity was present. CBG's allegation is spelled out in more detail at page fise of its February 8,1983, supplemental response to Staff's motion for summary disposition of this Contention. There, CBG asserts that on January 12,1981. James R. Niiller of the Staff wrote to UCLA informing the latter that, because more than a formula quantity of SSNN! was on hand at the NEL, UCLA would have to either: meet the criteria of 10 C.F.R. (( 73.67 and 73.60; operate the reactor so as to meet the self-protection exemption; or ship a quantity of fuel off site so as to retain less than a formula quantity of SSNNI.* CBG alleges that at the February 5,1981, prehearing conference, Staff counsel argued that UCLA possessed less than a formula quantity of SSNN1, citing lines 22 and 23, Tr.388. This matter is easily dispatched. In the February 5,1981, transcript (at 388 89), Staff counsel makes two arguments: first, that the irradiat-ed fuel in the core, "somewhere around 4000 grams . . ." emits more than the 100 rems per hour required for the exemption to be applicable, and second, that the amount of unitradiated fuel "is less than 500 grams
. ." or less than a formula quantity of SSNNI. It is obvious that the figure "500 grams" is a typographical error. Staff counsel corrected that error in her April 13, 1981, motion for summary disposition of Conten-tion XX at page 10, noting that the correct ligure was "5000 grams."
This correction was necessary because UCLA had approximately 4700 grams of unitradiated fuel at that time. No dispute between CBG and a The %Her lener n E nhibil C to Eth4 bit E attahed to CBG's september 7.1942. responw to staffi mmten for Summary dapounon 136
Staff as to the amount of fuel on hand is revealed by the discussion re-flected in this portion of the transcript, and no basis exists to accuse Staff counsel of having misrepresented that amount. This accusation is groundless. CHARGES AGAINST JAalES R. AllLLER hfore difficulty is presented by CBG's charge that James R. N1 iller made a materially false statement in an affidavit supporting Staffs motion for summary disposition.' In this affidavit, Mr. Niiller asserted that he had verified that the irradiated fuel in the reactor core met the IOC-r ms per-hour exemption criterion of 10 C.F.R. s 73.60. CBG claims that this was false. We referred this matter to the Inspector and Auditor. At the time it was made, Mr. Miller's statement was material because, if the fuel was not self-protecting, UCLA would have had to comply with the Category I requirements which it did not meet. In order to understand this matter, one needs to begin with the lan-guage of the exemption for self protecting fuel. That exemption states: that a licensee is exempt from the requirements of this section () 73 60) to the extent that he possesses or uses special nuclear material which is not readily separa-i ble from other radioactive material and which has a total esternal radiaison dose rate in excess of 100 rems per hour at a distance of three feet from any accessible j surface without intervening shielding (10 C.F.R. } 73.60) in making the charge CBG refers to two letters from UCLA which state that UCLA cannot meet this exemption. These are an August 15, 1979, letter from Brown of UCLA to Miller," and an August 29, 1979, letter from Catton of UCLA to Reid of the Staff." CBG also points out that in SECY-79187C'2 (at 3) the Staff informed the Commission that UCLA could not meet the 100 rems per hour exemption. CBG then points out that Mr. Miller executed the affidavit in question in April 1981, asserting that the exemption was met. CBG asserts that it
'This charse is made at page 11 or CBG's December 13. 1993. memorandum on Contennon x 4 li is spelled out in more detail in eBG's February 8,1983, suppicmental response to stafTs motion t'or sum-mary disposition. When he esecuted this afndavii. Mr \ filler was Chief. standardisation and speaat Projects Branch. Division or Li6cnsing. ofDce or Nuclear Reactor Regutanon i W CBG's February 8.1983. supplemental response to siafra maison for summary disposition. E thit96 H il M. E xhibii C.
12
/4. Exhibit D Exhibit D comains only pages 13 of sECY.79-187C. Attachment K to c BG's sf a, 9 1994 response to Mr Cormier's and LCLA s response to our April 13.1984 \femorandam and Order supplied pages I and 4.
137
demonstrated in its September 8,1982, submission that UCLA's fuel falls below this standard within 8 hours of reactor shutdown. CBG fur-ther asserts that it demonstrated this using UCLA's formulae. CBG's arguments summarized above are set out in its February 8,1983, supple-mental response to Staffs motion for summary disposition. In response, Staff correctly asserts that the correspondence cited by CBG all predates a January 1981 exchange of correspondence between N! iller and Dr. Wegst of UCLA. In Niiller's January 12, 1981, letter to Wegst," Staff informed UCLA that it possessed more than a formula quantity of SSNN1 and consequently would have to take action to meet the applicable Category I requirements, qualify for the self-protecting exemption, or ship some fuel off site. In Wegst's January 29 reply," UCLA informed Staff that it was scheduling reactor operations to meet the self protecting exemption pending arrangements to ship sulTicient fuel off site so as to fall into Category II. It was following this advice that Nir. Niiller, assisted by Nfr. Carter of his Staff, performed certain calcuta-tions which indicated that the UCLA core would meet the self-protecting exemption given certain operational assumptions.u On the surface, this would appear to end this inquiry. flowever, as noted above, CBG asserts that UCLA's calculations were wrong. Niiller and Carter's calculations for the Staff determined the dose rate for the entire core, as did UCLA's.'* CBG maintains that the dose rate for each individual fuel bundle must be calculated. Thus the question prescrited 4 to the Board was whether Stafrs and UCLA's interpretation of the self-protecting exemption was correct. This question became moot because UCLA reduced its inventory of SNNI in August 1982. Staff and UCLA never responded to CBG's position," and we never decided this
- question.
In the context of CBG's charge against Str. N! iller, the pertinent inqui-ry becomes whether Str. Niiller, in calculating the dose rate for the core rather than each individual fuel bundle, knowingly departed from a StalT position that, for purposes of the self protecting exemption, the dose from each fuel bundle rather than the core must be calculated. Such a U See note 8. wpre.
" Exhibst 8 to Ethibit E to CBG's september 7.1982. response to staff's monon ror summary dispouuon 15 Those calculations are round in the January 9.1984, alTidants or Miller and Carter atta6hed to SialTs January 10. I984. response to CBG~s alleganons of misrepresentation '* See Exhibit H to CBG's september 9.1983. response to siaff's motion for summary dapouuon l' See CBG's seriember 4 response to starr's monon ror summary onposuon at 15 la The wesuon of the arnount or sNM remainmg at the NEL aner thm sniemeni was resobed b> us in L BP 83 67. wra 18 NRC at 803 05 There we concluded that the amount remaimr'g fell within Catega.
ry 11 138 l i s _o_ ._-- _ . ,
position would be in accord with the language of the exemption itself which states that the SNNI must not be "readily separable" from other radioactive material. We have no basis on which to assess Mr. Stiller's knowledge of any such Staffinterpretation. Ilowever, there is some indi-cation that such an interpretation existed and that his treatment of this problem may not have been in accord with it. This indication is furnished by the following documents.
- 1. On August 27,1979, the Staff held a meeting with nonpower reac-tor licensees to discuss the impact of the safeguards upgrade rule. A review of the transcript of this meeting reveals the following exchanges ofinterest.
M R. FU R R: Keith Furr, Virginia Tech. I'd hke to address a question to Mr. Burnett (Robert Burnett, Director, Dmsson of Safeguards). Since me have MTR-type fuel rather than the rod type fuel, what is going to be considered the basic thing that has to meet t1e 100R rule? An element or a plate within that element? MR. RAMOS (Steve Ramos Project Manager. Dnision of Project Managementi-At the present time,it's a fuel element which can be anywhere from 10 plates to 18 plates, depending on the configuration. M R. FURR: Okay. Then you have an answer. MR. CARLSON [ Donald Carlson, Reactor Safeguards Analysil: ' One single c!cment. M R. R AMOS- An element. Not a plate, now; an element. MR. CU RTN ER: Alan Curtner, Virginia Tech. Our questicft, that MTR fuel, all you would need is one pair of heavy tin. snips and you could break a - MR. RAMOS. I'm aware of how your fuel's put together.1*ve seen a lot of it i reahre that with a good sledgehammer, you'd probably need a tin. snip, but you know, that is considered not readily separable. The trigger is<c TRIG A?) peorle have a bigger problem because they're just really screwed down It's easy to knod that one off. I almost demonstrated it the other night. (Meeting Tr.10102.)M MR. RAMOS: . there's a lot of things that have to go into that 100R per hour, how you take the measurements.
- hat do you consider a mast, you know, we l' The transcript or this meeting .4s furnished bv staff counsel with her responw of knuary 10. IM4 to CBG's allegations. See rewonse as 14 n 24 M it should be noted that (JCL A aim employed M TR-type ruel 139 4 l
\
l l l l
consider a single fuel element as the lowest common denominator Now, when we're done with the study,it may be a difTerent sae. (Nieeting Tr.129.) M R. KACHEL: Pete Kachel from General Electric. Is there gomg to be any credit given for comingling ofirradiated fuel above 100R per hour with those who would be somewhat less? MR. R AMOS: I can't answer that yet because we haven't finished deciding how we're going to handle that yet. (Nieeting Tr.132.)
- 2. Exhibit J to CBG's September 9 response. This exhibit purports to be a summary at a "Special Nuclear Staterial Self Protection Criteria Investigation" conducted by Los Alamos National ScientiSc Laboratory.
CBG dates this summary December 27, 1980.2' Paragraph 2 of the sum-mary estimates the range of doses likely to be received by an adversary attempting to remove irradiated fuel. One of the assumptions on which the estimate is based is that each fuel element has a dose rate of 100 rems per hour. Paragraph 4 evaluates the physical separability of fuel ele-ments for various nonpower reactor fuels. It did not consider plate type fuel bundles of the kind used at UCLA separable into individual fuel plates. One assumes from this paragraph that the authors were consider-ing the smallest umts into which fuel is "readily separable" and that they would have considered a fuel bundle readily separable from other fuel bundles.
- 3. A proposed rule published by the NRC: " Safeguards Require-ments for Nonpower Reactor Facilities Authorized to Possess Formula Quantities of Strategic Special Nuclear Staterial," 46 Fed. Reg. 46,333 (1981). This proposed rule states that, after consideration of whether safeguards credit should be given to certain design features, the Staff concluded that "[a} TRIGA FLIP type fuel cluster may be considered a discrete unit in determining external radiation dose rates for exemption purposes ." It may be inferred from this statement that, because of the fuel clusters design, it was not necessary to compute the radiation dose rate of each individual fuel unit within the cluster for exemption purposes.22 It should also be noted that Staff concluded that some safe-guards credit could be given to Argonaut reactors because their design makes it difficult to gain access to the reactor core. The appropriate Il See CBG s september 9 response at 16 22 This infereNe n renfirmed at 2 nr 5ECY 41UC (ice note 12. woral 140
credit is not indicated, but the proposed rule indicates that the Commis-sion determined that the level of protection alTorded by the proposed rule was adequate in light of the credits Staffidentified.
- 4. Exhibit I to CBG's September 9 response. This exhibit is the declaration of Daniel O. Hirsch, President of CBG, reciting a telephone conversation between Hirsch and C.K. Nulsen of the Staff. According to the declaration, Nulsen informed Hirsch that the StalTs position was that the dose from each fuel element (i.e., bundle) must meet the self-protecting standard. The declaration also recites that, in the future on adoption of a new rule on the subject, it might be possible to average the dose for all the fuel elements in the core in order to meet the 100-rems-per hour standard, but that at the time of the conversation (August 13,1982) the dose from each element must meet that standard.
- 5. A proposed rule published by the NRC: " Physical Protection Re-quirements for Nonpower Reactor Licensees Possessing Formula Quantities of Strategic Special Nuclear Ntatertai," 48 Fed. Reg. 34,056 (1983). The statement of considerations accompanying this proposal took into account a number of comments made on the earlier proposal described in 13, above. Some of these comments noted that the 100-rems-per-hour dose rate may be difficult for some licensees to maintain and that it could encourage reactor operations simply to meet that standard. As predicted by Str. Nulsen, the response to this comment stated that "the Licensee will be allowed to average its irradiated fuel to meet the 100 rem per hour exemption so long as no single fuel unit drops below 50 rem per hour at 3 feet." The response speaks in the future tense; it does not state that licensees at that time were permitted to adopt this approach.
While Staff has not indicated what position, if any,it took with regard to this aspect of the self-protecting exemption, the above materials allin-dicate that its position was that each "readily separable" fuel unit (in this case, fuel bundle) must emit 100 rems per hour in order to qualify. If this is so, then Str. Stiller departed from that position in determining that UCLA's irradiated fuel was exempt on the basis of the dose rate emitted by the entire core. Str. Stiller's April 1981 affidavit in question states that he had: verified that the irradiated fuelin the UCL A reactor core emits radiation such that the dose at three feet will be in excess of 100 rem per hour and that the design of the reactor makes accessibihty to that fuel very difficult. In addition. UCL A ha committed to schedule reactor operations to maintain the self protection of the fuel in the reactor core 141
The afSdavit does not indicate whether the dose was calculated for each fuel bundle or the entire core. The January 9,1984, afGdavits furnished by h! iller and Carter:2 indicate that the dose rate was in fact calculated for the entire core. In light of the above materials and the wording of the self-protecting exemption, the possibility exists that UCLA received more lenient treatment on this score than other licensees. Indeed, some justiGcation exists for treating UCLA's situation more leniently in the circumstances. In his January 29, 1981, letter,
- Dr.
Wegst indicated that, while UCLA would conform to the self-protecting standards, scheduling reactor operations to keep the fuel self-protecting was a " temporary arrangement" and that UCLA had already identified two possible recipients who had tentatively agreed to take the fuel sub-ject to approval of the Gnal plans. If the fuel were not self-protecting, UCLA would have been required to implement the additional security precautions mandated for Category 1. We assume that these would have involved considerable expense and that practical considerations would have precluded their immediate implementation. In light of the forthcoming shipment of fuel, imposition of Category I requirements on a temporary basis may well have seemed unreasonable. Thus hfr. Niiller may have been motivated to depart from the Staff position (assuming one existed) in making his calculations. Or it may have been Staffs prac-tice to treat such situations more leniently. Indeed, in view of the fact that f 104(c) of the Atomic Energy Act:5 directs the Commission to impose on nonpower reactor licensees "only such minimum amount of regulation as will permit the Commission to fulfill its responsibilities, some justification for leniency exists. To conclude that Nir. Stiller's statement was false, it must appear that there was no justiGcation under Staffs practices for the approach utilized by hir. Stiller. Given the wording of the statement and our lack ofinfor-mation with regard to Staffs practice, we cannot conclude that it was false. Furthermore, considering the temporary nature of UCLA's reli-ance on the self-protecting exemption and the provisions of f 104(c) of the Atomic Energy Act, we do not believe that such an ironclad rule should have been enforced in this case. Nonetheless, Nir. Niiller should have stated in his afGdavit that he had computed the dose rate for the entire core and why he believed this approach was justiGed. Had this issue not become moot, he would have been required to do so.
- 2) See note 15. sopra 14 See note 14, wpra 254211 s C 4 204fcl I42
CIIARGES AGAINST DONALD CARLSON CBG alleges that, in his affidavit supporting Staffs motion for sum-mary disposition, Str. Carlson made a material false statement? The statement in question asserts that "[tlhere are no explicit NRC regula-tions for the protection of nonpower reactors against radiological sabo-tage . "2' CBG's allegation appears on page 11 of its December 13. 1983, memorandum on the status of Contention XX. It is set forth in more detail in CBG's February 8,1983, supplemental response to Staffs motion for summary disposition? In our April 13 hiemorandum and Order, we did not reach the ques-tion of StalTs candor regarding the regulatory standards applicable to UCLA's reactor. On N! arch 16, 1984, Staff counsel had advised that she had learned that I&E was enforcing a requirement to protect against sab-otage and promised to provide further information. That information was submitted on June.12,1984, and consists principally of the affidavit of Loren Bush of the Operating Reactor Programs Branch, Office of in-spection and Enforcement. CBG's allegation that Str. Carlson's statement quoted above is mate-rially false and our concerns over the truthfulness of the representations made to Staff counsel are closely interrelated. In our discussion of these matters below, we have not considered whether these statements and po-sitions are consistent with 10 C.F.R. Part 73. In LBP 83-25 A, supra. and LBP-83-67, supra, we concluded that 10 C.F.R. j 73.40(a) does require that some steps be taken to protect against sabotage. To the estent that StalTs position is to the contrary, we conclude that it is in conflict with Part 73. We have qualified our last statement because we have not explored in an evidentiary hearing the exact nature of the Division of Safeguard's position. This Division apparently believes that protection against theft 28 At the nme the alTidavit was eiiecuted. Mr Carison was a Plant Proiection Anahsi in the Puut secunty Licensms Branch. Dms on of safeguards. Of fke of Nustear Wienals safet) and safegu.eds 2? sev Carlson affidavit accompanyisig staffs motion for summary dnpoution of April IL ICI at 4 n 1. revewd and resubmitted August 27.1982. 28 in this document. CBG also accuses StafT counset. Coireen P w oochead, of a task of candor in rerre. senting staffs view that LCL A *as not required to the measures to present whatage. This allqawn need not be dowuswd here A similar ailegation was made bs this Board in its unpublisted Februars .'4 1994 Memorandum and order in that document. e raiwd the question whetner sounwf s reprewnfa. bons had been raise in tight of evidence that the staff en, in fact. entorung sush a reqwrement fonow. mg counsel's responn of Marsh 9. Id4. *e found in our Memorandum anj OrJer of Arni l L 1%4 Isre note 2. suprol, that counsel's reprewnianons accurJtely reflected the pnution of the saiquards Dmvon. Mtss. as it had eeen conseyed to her consequenov *e conauded inai ihere n no ham in Ifnpose 5Jncitons The d Kussion Or slair sounsel'd represenlauens an that document es equalb appmaNe 10 CBo's acCulations. me contlude that siatrcounscis gondust en lhe, regard ed nos improper 143 r l f l
inherently provides some protection against sabotage? We beliese that this Division would not quarrel with the provisions of the UCLA Securi-ty Plan which were designed to protect against sabotageM llowever, to the extent that StalT maintains that no such provisions are required by the regulations, we have concluded that it is plainly wrong. Regardless of whether Staff s position is contrary to the regulations, the question which confronts us here is whether that position was misrepresented. In other words, was StalT lying to its counsel and this Board in representing its position. We conclude that it was not. These representations appear to have accurately reDected the position of the Division of Safeguards NNISS, at the time they were made. However, it also appears that this organization's position, to the extent that it was binding on the rest of the Staff, was not fully communicated to and im-piemented by the Office of Inspection and Enforcement. The latter office appears to have continued to enforce a requirement that steps be taken to protect against sabotage. In order to understand what transpired, we have outlined in chrono-logical order the important events of which we are aware which bear on this issue. This chronology is attached to this Niemorandum. The chronology makes it clear that Staff was considering the matter of the need to protect against sabotage from at least January 1979, when it ad-vised the Commission that the subject was under study, until no later than August 1981, when it adsised the Commission that in its view such protection was not required. Indeed, in June 1979 the Commission spe-cifically asked for Staffs review of this subject. Although Staff now takes the position that the adoption of } 73.67 in 1979 superseded the sabotage protection requirements of f 73.40(a), the chronology reveals that StalT continued for some period after } 73.67 was promulgated to telllicensee3 that they must protect against sabotage under } 73.40(a). At some point during this period, Staff apparently reached the conclusion forwarded to the Commission in August 1981. We cannot be sure when that oc-4 curred, but we are told by Str. Kasun, who in June 1981 was Section Chief of the Section in which NIr. Carlson worked, that he believes Ntr. Carlson's statement in his April 1981 affidavit to accurately represent the collegial position of the Headauarters Safety Staff during the 1980-81 time period.)' In view of its proximity in time to Staffs memo-4 randum to the Commission of August 1981, we conclude that Str. Carl-N Le stairs Desemiser iJ.19%). responw to ten Board s order concer+cg contention 4 \
'" These are ideniihed in Appendit B t ah*tn contain, proiccied enformaisons to e*ur \prit 13.1994
\f emorandum and Order 4
% e af fidaut of Donald J Kasun attathed tv, Stall 7 \lJrth 9. l%4 response to lhe Haard's aikga.
wns of moreprewntat,on 1 14
i son's statement accurately reDected the Safeguards Division's position at the time it was made. Similarly, we conclude that the representations made to counsel with regard to Contention XX accurately redect the po-sition of the Safeguards Division.
. We are compelled to note the unfortunate consequences which the Staff's approach to the sabotage issue has caused. It is clear that, esen following the promulgation of } 73.67, Staff recognized that j 73.40(a) required protection against sabotage. Mr. Carlson said so in the August 1979 meeting with nonpower reactor licensees. He was not corrected.
The August draft physical security plan which was circulated by Staff recognized the requirement, and it was specincally mentioned in the letter transmitting this plan for comment, Both of these events occurred after the promulgation ofl 73.67 and Regulatory Guide 5.59. Staffs sub-sequent position that j 73.67 states the only applicable requirements amounts to a repeal of the applicability of f 73.40(a) to nonpower reactors. Such a repeal cannot properly be made by Staff acting unilaterally. Sec-tion 73.40(a) re0ccts Commission policy that all licensees must protect against sabotage. It codined two decisions to the same effect: Florida Power and Light Co. (Turkey Point Nuclear Generating Station, Umts 3 and 4),3 AEC 173 (1967); and Trustees of Co/umbia University, 4 AEC 349 (1970). While we assume that Staff took its position that sabotage protection was not required only after due study and deliberation, the fact remains that Staff may not unilaterally repeal the Commission's policy expressed in its regulations. That may be accomplished only by following :he rulemaking procedures set out in the Administratise Procedures act (APA).22 Indeed, the APA defines " rule making" as an
" agency proc ess for formulating, amending, or repealing a rule ""
Consequently, the rulemaking provisions of the APA)* must be followed. See Environmental Defense Fund v. Gorsuch, 7l3 F.2d 802. 815 (D.C. Cir.1983); cf Union of Concerned Scientists v. NRC, 7II F.2d 370 a (D.C. Cir.1983). Further, had Staff proposed that the Commission amend s 73.40(a), the Commission would have expressly indicated whether sabotage pro-tection was to be required and I&E would undoubtedly have "gotten the word" and conformed its own operations. As things happened,it appears that l&E, perhaps unwittingly, continued to follow the policy expressed JI$ U s C H 551559 il 5 U.s C, t 55t(5) J45 U s C.6 555 145
in ) 73.40(a) while Nh1SS did not. In short, we believe this situation it-lustrates the pitfalls of failing to act in a straightforward manner to change the regulations to reflect changes in StatT and Commission polic). Two remaining matters which are related to the StalTs position on pro-tection against sabotage remain to be discussed. The first of these in-volves our concern, expressed in footnote 4, of our April 13, 1984 N1emorandum and Order,3$ that Str. Carlson should have informed StatT counsel that the UCLA Security Plan did contain provisions aimed at protection against sabotage. We voiced this concern because we believed that Str. Carlson had reviewed the Security Plan and the response proce-dures attached to it which were furnished to us by UCLA. However, in his affidavit of Ntay 1,1984,36 Nir. Carlson states that such was not the case. While 51r. Carlson did review the Security Plan, the response procedures were not submitted by UCLA.2' Hence he did not review them and was unfamiliar with the details of those procedures which are aimed at sabotage rather than theft.38 However, two provisions of the Plan itself which are aimed at sabo-tage" and a listing of the response procedures were contained in the Plan reviewed by Str. Carlson. Hence he was aware that these provisions existed." We believe plain common sense would have dictated that he inform Staff coursel of their existence so that they could be brought to the Board's attention. In light of our holding in LBP-83-25A, Supra, that measures such as these were required, we are frankly amazed that Nir. Carlson did not flag them to counsel. The fact that the technical Staff considered them not to be required at all*2 is irrelevant. We held them to be required but were uninformed of their existence until we reviewed the Security Plan and Response Procedures far ourselves. Staff failed in its duty to fully inform the Board in this regard.*J M See L8P 84 22. wra.19 SRC a 148D n 4 I* This al0daut. whech contams prote ted mformation. was wemisteJ with stafri \tay 1.1944 re. sponse to our questrons concernmg the Security Plan , l' /d at 12.137 38 These procedures are identined in Appendes B ewhnh contains proicsted informations to our Aprd I).1984 Ntemorandum and order H These are aho ident 6ed in Appendis B i ser note 38. wrat 4 ser T 6 of Afr Carlsoni alTidavit accompanying staffs motion for summary disposaloon of \rril 13. 1981. reused and rewbmitted August 31.1942
'lin her afEdaut of 41 arch 9.1944. aanmpar+png staff's response of the same date to our alleganone of fnestepresentation. stati counwl iutes that she was unaware of any sush prousions in the sesurii>
Plan untes readirig our Februar> 24.1%4 4f emorandum and Order iSer 9 4 7 4 Ser Carlson's affidaut of \ larch 9.1944. awompanung stati's \f arch 9.1944 response to the Board s allegations of misreprewnusson O Our disusen of the obbgation of parues and sounwl to keep Boards mtormed of relesant and mate, real infoemation in our \prit 1) 1984 \f emorandum and Order is fuity aprimat*te to the techneul Sulf
\<r LBP 44 22. wra 19 NRC ai 140101 146
The second matter which we must address involves two affidavits which accompanied Staft's Starch 9,1984, response to our February 24 1984 Niemorandum and Order. These affidavits were executed by Leroy R. Norderhaug, Chief, Safeguards and Emergency Preparedness Branch. Region V, and Matthew D. Schuster, Chief, Security Licensing and l Emergency Preparedness Section, Region V. Both allidavits indicate 1 that, following the adoption of j 73.67 in 1979, inspection of nonpower reactor licensees for protection against sabotage ceased." We bring this matter up because it seems inconsistent with the inspection procedures which have been in use for nonpower reactors." While there may be an explanation for this inconsistency, it is not apparent from the materials which have been furnished us. CONCLUSIONS AND RECO3151ENDATION TO Tile COSI3IISSION An Atomic Safety and Licensing Board has no direct authority over the technical Staff. While the regulations do empower us to discipline counsel, including counsel for the Staff," they contain no such authority l with respect to other Commission employees. We believe that the improper practices outlined in this Niemorandum must be brought. to the Commission's attention. While we have described areas of concern with respect to specific aflidavits executed by Staff members, the infor-mation which has been made available to us does not conclusisely show misconduct. The information does, however, raise concerns for the in-tegrity of the Commission's adjudicatory process. These concerns may be summarized as fo'iows:
- First, when an affidavit stating a conclusion is furnished that affidavit must state precisely what the conclusion is and on what basis it is founded. Str. Niiller's affidavit executed in sur-port of Staffs motion for summary disposition did neither. It did not clearly inform us that Str. Stiller had determined '4 Ser 16. Norderhaus afnda,it. and 13. schuster ar'idaset H
Ser 114. 7-8 or Loren Bush's %tay 10.1994. 4fridam accompanving 5 tarts June 12. Ive4 suhnuttal or supplemental information the.e. \f r Bush inJuates that IPti4 H. -Protecoon Against Radwepal sabotage.' has apparently beeft in use in the riend ut*<e 1977 w hile we hase not resiewed ins in,iw uon protedure, we note that eis eusseence. Juor$ng to \f r Bush. apparentis led to the insorp,,rai.cn of latiguage on radiological sabotage in \tc 2341, which was adopted on Januari 1.1994 and man ha,e been responsibse for the langu. ige in recent inspesuon repnris ahnh in4 cates inai nongener rexmr Nensees were insoested to esatuate their measures to protect against Weave the %rdernaus amt schuster af6daviis therefore appear on she surfxe to me iticor. sient wein ne inscession prmedure
*hnh were in use. ** 10 C F R ) 2 71) 147
UCLNs irradiated fuel ta be self-protecting based on the dose rate of the entire core. Nor did it inform us why Mr. Miller adopted that approach rather than computing the dose rate for each individual fuel bundle. Had this issue not become moot, we would have required this explanation. Staffs failure to fur-nish this sort of information in the Grst instance certainly re-suits in delay and a waste of time at a minimum and, at most, a loss of conGdence in the licensing proceeding and a board deci-sion which is not well founded. AfGdavits should only be executed after the afnant has care-fully ascertained the facts sworn to. Obvious, unexplained in-consistencies between an affidavit and established Staff procedures, such as are presented by the Norderhaug and Schuster afGdavits, cannot be tolerated. Boards must to be able to rely absolutely on Staffs representation of factual matters There is simp.y too much at stake in our adjudications to permit mistakes of fact, particularly by the NRC Staff. Staff af-fidavits which are ambiguous or incorrect force boards to engage in time wasting inquiries to determine the facts or risk rendering a decision based on ambiguous or incorrect information. Cf Carolma Power & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2,3, and 4), CLI-7818,8 NRC 293 (1978).
- Second, Staff has an ironclad obligation to bring relevant and material information to the attention of boards. Mr. Carlson's ; failure to advise Staff counsel of the provisions in the UCLA Security Plan of the very sort we had held to be required pre-
{ sents a situation that cannot be tolerated in NRC adjudication. I Staff, as the keeper of the public trust, mest be particularly sensitive to this obligation.
- Third, while we cannot know speciGcally what may have led to the concerns we have identined above, we fear that a contribut-ing cause may have been Staffs embroilment in this 1
proceeding. It is understandably hard to remain detached when one's positions are attacked. However, Staffs obligation is to the public interest, and its members should take care that their actions are directed toward that end rather than toward basting an adversary. Fourth, we have already indicated the unfortunate state of af-fairs created by Staffs failure to seek Commission approval of j an amendment to j 73.40(a) upon concluding that protection against sabotage need not be required. We would be surprised 143
if the decision to proceed as Staff did could be laid at the doorstep of any individual whose conduct we have reviewed. However, while Staff is certainly free to interpret the rules, those interpretations must stop short of repealing the applica-bility of rules. Just as anyone else, Staff is bound by the rules. Until such time as they are amended Staff must follow the
- i. rules.
1 By means of this Niemorandum, we are bringing these concerns to the Commission's attention for whatever action it deems appropriate. Finally, we wish to address the need for rulemaking to correct the situ-ation created by Staffs treatment of } 73.40(a). We had earlier suggested s to the Staff that, in light of its conclusion that sabotage did not pose a risk to Argonaut university training reactors, it should seek Commission approval of an amendment to j 73.40(a) which would exempt these reactors.*? Staff took our suggestion and submitted SECY-83 500 and SECY-83-500A to the Commission. The Commission, in CLI-84-10 " rejected this approach apparently out of a concern that it might somehow com-promise the adjudicatory process. This proceeding is in the process of termination.'* Consequently the Commission's concerns expressed in CLI-84-10 no longer appear valid. Storeover, while appellate consideration of our decision would resiew the correctness of our holding that } 73.40(a) requires protection against sabotage, it would not reach the crucial question whether such protection is technically necessary. Indeed, under our holding, Staffs position that protection against sabotage is not necessary for these reactors constitutes a clear attack on } 73.40(a) which is prohibited by 10 C.F R. j 2.758. As a result, we have not considered the merits of Staffs position and do not believe that it would be open to consideration on appeal. Consequently, we lind ourselves in substantial agreement with Chair-man Palladino's dissent in CLI-8410, supra. We view the essential ques-tion for the Commission to be not whether we were correct, but whether % Staffs technicaljustification for its position is correct. If the Commission agrees with Staff, it should amend } 73.40(a) so that no ambiguity will exist with respect to what is required of nonpower reactor licensees. If the Commission does not agree with Staffs technical position, then it should instruct the Staff to modify its position accordingly. We believe 47 See LBP 83-67. mpre.18 NRC at 808 48 19 NRC 1330 il984L d'on June 14.1984 UCLA riled a request to withdr4* Hs Jephunon and a nmuon to suspend proceedings in a letter of even date. OCLNs Charsettot infarmed the C hairman that L CL A *ould seek pet isuon to decommiwon the reactor e 149 i l I 1 1 s 1 l q \- 4
that this can best be accomplished through rulemaking, and therefore recommend that the Commission take up Staffs proposal to amend
. } 73.40(a).50 THE ATOMIC SAFETY AND LICENSING BOARD Glenn O. Bright I
AD511NISTRATIVE JUDGE
; Emmeth A. Luebke ADMINISTRATIVE JUDGE John H Frye, !!!, Chairman ADMINISTRATIVE JUDGE I
Bethesda, Maryland July 17,1984 4 4 i 50 ln makies this recommendation. we of necessaly empress no view on staffs techn. Gal povison However. e do wish to note that. assuming the statT is corrett that unotage does not pow a risk. l.CL A s approach to this matter, in *%h it recognited that ubotage might he attempted and must be met with a response, makes good sense and is nfa necessaniv inconsistent with the poutien that uhotage could not resait in radsological consequences After ati. esperience could prose that pr>ution wrong it appears foolish to simply ignore the possibihty of sabotage. The Commiswon may *ish to conudet requirms the kind of planning which UCL A voluntanly undertook even if is agrees with statithat uno. tage would nos pow a radiological hazard 9 150 i ? I
- ., -- . . - , - - . . _ , . e.-.. -m.
CilRONOLOGY l Staff Consideration of Sabotage at Nonpower Reactors 11/4/73 Sections 73.40, 73.50, and 73.60 adopted, requiring all licensees to protect against sabotage and setting specific j requirements for protection of formula quantities of SSNNI. (See 38 Fed. Reg. 30,537.) 1977 I&E adopts inspection procedures 81405, " Security Plan," and 81455 " Protection Against Radiological Sabo-tage," both of which deal with sabotage at nonpower reactors. In his affidavit accompanying Staffs June 12. 1984, submittal of supplemental information, Loren Bush of .* tE states that these proc:deres were designed to obtain information useful in evaluating the threat of sabotage at nonpower reactors (see pp. 2 3). 8/9/78 Revised proposed rules governing protection of formula quantities of SSNNI were published (see 43 Fed. Reg. 35,321). The revisions in the proposed rules were prompted by comments on an earlier version (see 42 Fed. Reg. 34,310). In responding to the comment of nonpower reactor licensees that the cost of the proposed safeguards enhancements might be prohibitive. the Com-mission stated the proposal was not intended to apply to such licensees with less than a formula quantity of SSNNI, noting that they would continue to be cosered by } 73.40. 1/16/79 SECY.79 38, " Physical Protection of Category 11 and til Niaterial." This paper forwarded the Staffs recommenda-tion that the Commission publish amendments to Parts 70. 73, and 150 dealing with protection of SNNI of moderate and low strategic significance against theft. The recommen-dation notes an earlier proposed rule on the same subject (see 43 Fed. Reg. 22,216 (1978)) and reacts to the signiti-cant public comments on that proposed rule. The recom-mendation further states that its purpose is to protect against theft and states on page 5: 151 r
Sabotage at .\on-power Reanors The proposed amendments. that are the subject of this paper. are limited to consideration or theft of SNM and do not instude sabotage protection. The NRR Staff as currently esamining the neces<.ity to re. Quire additional physical protection measures at non power reattors thJL hate the potential for etCeeding Pari 100 reiease iimits as a result of sabotage. If this proves to be necessary. NRR plans to pro-pose a new separate section of Part 73 to deal with this inue Pre-liminary investigation indicates that these added requirementt il necessary. would be applicable to a sery small number of non power reactors. For that reason. tne Staff recommends that Commmion approval of the proposed new Section 73 47 not be delayed pending resolution of this issue. 6/79 " Consequences of Sabotage at Nonpower Reactors," NUREG/CR-0843. This study, conducted by Los Alamos National Laboratory, concluded that only one nonpower reactor had the potential to release significant amounts of Gssion products in the event of sabotage. 6/28/79 Commission directs Staff to identify for Commission con-sideration alternative approaches to further strengthen the security of licensees with SNh1 in Categories il and III. Staff was directed to consider protection against sabotage as one of six identified topics. (See N!emorandum for Gossick, et al. from Chilk of June 28, 1979, attached to Staff's hlay 21, 1984, response to CBG's estimate of threat, at 4.) 7/24/79 Section 73.47 (subsequently redesignated E 73.67 at 44 Fed. Reg. 68,198 (1979)) adopted (see 44 Fed. Reg. 43,280). This represents the Commission's decision on SECY-79 38. Consistent with the Staff's representation that it was studying the question of sabotage, the statement of consideration nr ,es that the new rule deals only with theft of SNht. 7/79 Regulatory Guide 5.59, " Standard Format and Content for a Licensee Physical Security Plan for the Protection of Spe-cial Nuclear Niaterial of htoderate or Low Strategic SigniG-cance," issued for public comment. This document does not mention sabotage. 8/9/79 A draft " Sample Physical Security Plan for Non Power Nuclear Reactor Facilities Possessing Special Nuclear Material of Stoderate Strategic SigniGcance" was forward-152 _u. . _ _ _
ed to several selected licensees for review and comment. This draft provided that a purpose of the plan is to pro-tect against sabotage. Although followed by UCLA, the draft was never formally issued by the Staff. (See Carl-son affidavit,13, accompanying Staff's March 9,1984, re-sponse to the Licensing Board's allegations of misrepresen-tation.) The draft plan also appears to have contained prosi-sions designed to protect against sabotage. (See, e.g., the sections of the plan labelled Vital Areas and Response Procedures, the latter calling for resps qses to bomb threats, civil disorders, fires or explosions, and industrial sabotage. The plan is attached to the Carlson affidavit referred to immediately above.) Frank R. Pagano, Chief, Reactor Safeguards Development Branch, Division of Operating Reactors, wrote the University of Missouri at Columbia enclosing the plan and indicating that the Com-mission had added j 73.47 (now 73.67) to its regulations so as to require detection of theft of SNM from Category 11 and III licensees. This letter also states "[alpplicable non-power reactor licenaces must meet these requirements for detection of theft in addition to previous regulatory require-ments for protection against sabotage." (This letter is also attached to the Carlson affidavit referred to above.) 8/27/79 Staff meeting with nonpower reactor licensees at Glen Ellyn, Illinois, on the subject " Impact of the Safeguards Up-grade Rule on Nonpower Reactor Licensees." CBG relies on Mr. Carlson's statements reported in the meeting tran-script for the proposition that his alTtdavit in support of Staff's motion for summary disposition was materially false when it stated that there was no explicit requirement that UCLA take steps to protect against sabotage. Two portions of the meeting transcript are relevant. M R. D AVIS: Stonte Davis, Georgia Tech. I have some trouble with some of your comments. Mr. Burnett. It sounds hke theft and sabotage are being used interchangeabh. M R. BU RN ETT (Robert Burnett. Director. Division of Safeguards. NMSS]: Negative. M R. D AVIS- Because throwing a bomb is - ahhough I don't know of any kind of a nuclear facihty that's been bombed I wnuid hke to know about that. I 153 I
MR. BURNETT: Well, it depends on what we call the facility. but the visitor center on the West Coast, the Trojan was bombed. but to answer your Grst question no, theft and ubotage are not the same. and in the upgrade rule that is bemg pubbshed. I thought it had gone out, we hase moved away from indnidual threats to facili-ties, and we hase deGned two types of threats in this country, pos-tulated threats, one being a threat (theft?l r nd one being a sabotage. Some facilities would have to meet both threats, like a high-enriched uranium facility that has greater than trigger quantities avJilJbic. They have both a sabotage and a theft potential. whereas a nonpower reactor, if it's below trigger quantity, most probably, it has a single threat, that being sabotage. Now, if they have unirradiated cores sitting on hand. then that could put them into the threat, I mean a theft, I meant theft, that could put them into the theft scenario, but no, they're both being treated totally different. MR. CA RLSON [ Donald Carlson, Reactor Safeguards Analystl Wh.t I might add, you hase to protect against sabotage under the provisions of 73.40. (Meeting Tr. 55-563 M R. BURN- Bob Burn, Unnersity of Michigan This is perhaps an extension, but I'd at least hke to knnw your feelings on this. This sabotage aspect of things, that is, right now, we could say well, we could limit our controlled access area to just our fuel sault or may be also to the pool core or the pool surface if some of the ele. ments are not self protecting, but then I think to myself, well, some-body could conceivably come down and rupture a bean port, drain the pool, commit sabotage down there so even though thing wouldn't De stolen, they could cause a horrible damage. MR. NULSEN [ Robert Nulsen, Project Manager Di'.ision of Safeguards. NMSS): Category !!/111 rule does not protect ag inst sabotage M R. BU R N: I was goms to ask you,is sabotage coming? MR. CA RLSON (Donald Carlson, Reactor Safeguards Analnt): Sabotage has always been here. In 1974 your mitial plans were submitted to protect against ubotage. You hase to follow the provi. sions of 50 35 C which tells you that you have to follow 73, Part 73, and in there. in 73 40. it says you have to protect against sabotage. Now, the plan that NRR put together to meet a Category 11laulili encompanes sabotage and protectise measures. It protects the reac. tor as well as the fuel in the reactor, sital equipment. if you ws!I. or 154
l J i I the old term of essentui equipment whith the Stall used in 1974 ISteeting Tr.142-43 P 9/80 Draft inspection procedures 81N22 " Security Organiza-tion," and 81N38, " Records and Reports" were put into use by !&E on an interim basis. Procedure 81N22 paraphrased 10 C.F.R. s 73.40(ah procedure 8t N38 was designed to check compliance with 10 C.F.R. p 73.71(bL 3/20/81 Contention XX admitted. (See unpublished Board Order subsequent to second prehearing conference at 12.) 4/13/81 Staff moves for summary disposition of Contention XX. relying on the Carlson and N1 iller atTidavits. 8/13/81 Staff informs the Commissioners of its conclusion that sab-otage of nonpower reactor fuel would create only minimal problems. ISee Stemorandum for the Commissioners from William J. Dircks dated August 13, 1981, attached to Staffs Stay 21,1984, response to CBG's estimate of threat. At page four of his affidavit accompanying Staffs June 12. 1984, submittal of supplemental information, Loren Bush notes that I&E was omitted from the distribution of this Niemorandum.) 1/27/84 I&E promulgates Stanual Chapter 2545 in order to restore the safeguards inspection program at nonpower reactors which had been discontinued in 1980 for budgetary rea-sons. htC 2545 listed IP81455, " Protection Against Radi-ological Sabotage " as an applicable inspection procedure. (Bush affidavit accompanying Staffs June 12.1984. sub-mittal of supplementalinformation at 3,5.)
* %PP#cntly, the plan referred Ic n the IJ%I PJrJ$rJPh is the plan Jewuwed in the g*rNeJing (niry 155 9
Cite as 20 NRC 157 (1984) DD 84-15 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF INSPECTION AND ENFORCEMENT Richasd C. DeYoung, Director in the Matter of Docket No. 50 293 (10 C.F.R. I 2.206) BOSTON EDISON COMPANY (Pilgrim Nuclear Power Station) July 3,1984 1 The Director of the Office of Inspection and Enforcement denies the remaining portion of a petition under 10 C.F.R. p 2.206 which requested that the Nuclear Regulatory Commission take action to remedy alleged serious deficiencies in the offsite emergency response plans for the Pil- , grim Nuclear Power Station. On February 27,1984, the Director issued an Interim Decision, DD-84-5,19 NRC 542, which denied relief on all issues except potential traffic bottlenecks to evacuation of the area sur-i rounding the Pilgrim facility. The remaining issue was referred to the i Federal Emergency Management Agency (FEM A) for evaluation. Based on FEMA's evaluation that traffic management issues base been ade-quately addressed by the Commonwealth of Massachusetts, the Director denies the remainder of the petition. LOW POPULATION ZONE: EVACUATION Traffic management issues related to potential bottlenecks to evacua-tion have been adequately addressed by the Commonwealth of Massachusetts. ' 157 I c
l l 1 l FINAL DIRECTOR'S DECISION UNDER 10 C.F.R.12.206 INTRODUCTION in its " Petition of the $1assachusetts Public Interest Research Group for Emergency and Remedial Action" (Petition) dated July 20, 1983, the N!assachusetts Public Interest Rese:rch Group (hereinafter referred to as Petitioner) requested that the Nuclear Regulatory Commission (NRC) take action to remedy alleged serious deficiencies m the offsite emergency response plans for the Pilgrim Nuclear Power Station in Plymouth, Niassachusetts. On February 27, 1984, I issued an " Interim Director's Decision Under 10 C.F.R. s 2.206" examining a number of issues raised by the Petition and denying the relief requested with re-spect to those issues.' However, the Petitioner's concern regarding potential bottlenecks to evacuation of the area surrounding the Pilgrim facility was noted to be still under consideration. The Petitioner was in-formed that the NRC had formally requ:sted the Federal Emergency Nianagement Agency (FENIA) to evaluate the potentia: bottlenecks in the area near the Pilgrim site which may impede effective evacuation of the plume exposure pathway Emergency Flanning Zone (EPZ). FENIA has now responded to the NRC's request and a final decision in this matter is now possible. DISCUSSION The Interim Decision noted that, in its review of the Petition, the NRC staff considered information available to it concerning evacuation planning and determined thct, as the Petitioner had suggested, potential bottlenecks to effectise evacuation of the EPZ may exist on the periph-ery of the EPZ.2 The Interim Decision noted that it would be important to control traffic beyond the EPZ so that such traffic, e.g., on Route 3, did not lead to evacuation traffic congestion. Two notable points beyond the plume EPZ which could cause congestion are Route 3 at Route 128 and Route 3 at the Sagamore Bridge. Consequently, the NRC staff for-mally requested that FEN!A review these traflic issues for the Pilgrim i Bosn.e E.bwe Co (Pilgnm Nuclear Power stations. DD-84 5. 4 NRC 542 f l094e. hereinalter re(crred to as the Interir:1 Decis.on 2 Intenm Deciuom. wpra 19 NRC at 552 158
facility and I deferred resolution of that portion of the Petition until after the staff received FESI A's response. On h!ay 15,1984, FEhlA responded to the NRC request. Its "Re-sponse to January 20,1984, Request for Assistance on Evacuation Time Estimates for Pilgrim Nuclear Power Station" and the attached "A'nalysis Report on issues Related to the Pilgrim Evacuation Time Estimate, Pilgrim Nuclear Power Station, Plymouth, N!assachusetts" dated Stay 1,1984 (hereinafter referred to as the FENIA Analysis) are attached hereto as Exhibit A (not published). The FENIA Analysis notes that the bottlenecks at issue had previously been identified in the NRC's " Safety Evaluation Report related to the construction of Pilgrim Nuclear Generating Station Unit No. 2, ' NUREG-0022, Supplement No. 5 (hereinafter referred to as NUREG-0022). NUREG-0022 indicated that the Evacuation Time Estimates (ETEs) did not adequately reflect the two potential impediments to evac-uation located outside the 10 mile EPZ discussed above. These potential impediments were identified by Dr. Thomas Urbanik, II, of the Texas Transportation Institute who, as a consultant to the NRC, conducted the review of the ETEs discussed in NUREG-0022. As is set forth in the FESt A Analysis, FENI A has reviewed this matter by consulting with Dr. Urbanik, reviewing the pertinent plans and documents developed in response to NUREG-0022, and consulting with the State agencies responsible for implementing evacuation plans. The FESIA Analysis revealed that, following the issuance of NUREG-0022, impediments to evacuation were carefully studied by the Boston Edison Company, operator of the Pilgrim Nuclear Power Station, and a traffic management plan was developed to eliminate the problems identi-fled in NUREG-0022. FENIA concludes that, after extensise analysis. the traffic management issues raised in NUREG-0022 have been ade-quately addressed by the Commonwealth of 51assachusetts in accordance with proper emergency management standards and the evacuation time estimation methods now available. CONCLUSION in summary, the single issue remaining after issuance of my Interim Decision in this matter was the existence of potential bottlenecks to ef-fective evacuation of the EPZ for the Pilgrim facility. This matter has been examined by FESIA and it has been found Inat the traftie manage-ment issues have been adequately addressed by the Commonwealth of Niassachusetts. Consequently, I conclude that evacuation planning. 159
including the associated traffic management, is adequate for the Pilgrim facility. Accordingly, the remaining portion of Petitioner's request for action pursuant to 10 C.F.R. } 2.206 is hereby denied. As provided by 10 C.F.R. s 2.206(c) a copy of this decision will be filed with the Secretary for the Commission's review. - Richard C. DeYoung, Director Office ofInspection and Enforcement Dated at Bethesda, Maryland, this 3rd day of June 1984. (The attachments have been omitted from this publication but may be found in the NRC Public Document Room,1717 il Street, NW, Washington, DC 20555.1 160
Cite as 20 NRC 161 (1984) D D-84 16 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OFINSPECTION AND ENFORCEMENT , Richard C. DeYoung, Director in the Matter of Docket Nos. 50-413 50-414 (10 C.F.R. I 2.206) DUKE POWER COMPANY, et al. (Catawba Nuclear Station, Units 1 and 2) July 6,1984 The Director of the Office of Inspection and Enforcement denies a pe-tition filed by the Government Accountability Project on behalf of the Palmetto Alliance which requested initiation ofindependent design, con-struction and management audits of Duke Power Company's construc-tion of the Catawba Nuclear Station. In denying the requested relief, the Director determined that the quality assurance program for Catawba had not suffered a serious breakdown. RULES OF PRACTICE: SECTION 2.206 PETITIONS Although licensees are not required to respond to petitions under 10 C.F.R. i 2.206 in the absence of a formal request by the staff under 10 C.F.R. } 50.54(0 of f 182 of the Atomic Energy Act, licensees may re-spond to such petitions at their own volition. RULES OF PRACTICE: SECTION 2.206 PETITIONS A request for an investigation, particularly for an investigation of in-ternal NRC personnel matters, does not fall squarely within the class of requests contemplated by 10 C.F.R. s 2.206. 161
l ATO311C ENERGY ACT: SAFETY FINDINGS Neither the Atomic Energy Act nor the Commission's regulations mandate error-free construction. What is required is a finding of reasona-ble assurance that the facility, as built, can be operated without undue risk to public health and safety. TECHNICAL ISSUE DISCUSSED: QUALITY AS** DANCE PROGRA31 Acceptability of licensee's quality assurance pro! ram under 10 C.F.R. Part 50, Appendix B, is discussed. 4 NRC ENFORCE 31ENT POLICY A Notice of Violation under 10 C.F.R. 2.201 is the primary enforce. ment tool used by the NRC to document noncompliance and to ensure corrective action and compliance with regulatory requirements. Under
' the enforcement policy, the Commission generally does not issue Notices of Violation in cases involving violations of lesser significance i
which the licensee has identified and has corrected or will correct. DIRECTOR'S DECISION UNDER 10 C.F.R. @ 2.206 I. INTRODUCTION On behalf of the Palmetto Alliance, his. Billie Pirner Garde of the In-stitute for Policy Studies' Government Accountability Project (GAP) requested in a letter dated September 14, 1983, that the Commission initiate various " independent" reviews of the construction, design, and management of Duke Power Company's Catawba Nuclear Station. The petitioner asks that the Commission modify the construction permits so as to require "a mandatory review by an independent contractor of: the actual as-built condition of the Catawba facility through a 100% reinspection of the safety-related areas of the plant.
"the design deficiencies and the breakdown in the design change control systems which render the design, as approved in the Final Safety Analysis Report (FSAR], inaccurate and incomplete," and '
162
~
1 _ _,w ,,. - - . z- m~ '
I l d I i
- e the quality assurance and quality control program "which has existed with major weaknesses at the Catawba facility since the beginning of construction."
Petition at 1. In addition, the petitioner asks that the Commission order "a management audit of the Catawba upper- and mid level managers re-sponsible for both design and implementation of the Catawba quality
; control / quality assurance program." /d. The petitioner contends such i relief is warranted because the available evidence demonstrates a con- t i tinuing and pervasive breakdown in the quality assurance program for I design and construction of Catawba.
] The petitioner also asks that the Commission's Office ofInvestigations i
+
investigate harassment and intimidation of Catawba workers and that [ ] the Ofnce of Inspector and Auditor's pending internal investigation in- , clude alleged improprieties by NRC Region Il personnel in maintaining , the confidentiality of NRC informants and in executing the Commis-sion's regulatory program. In accordance with ustral Commission practice, the petitioner's request i was referred to the staff for consideration under 10 C.F.R. ( 2.206. See Lorion v. NRC, 712 F.2d 1472,1474 (D.C. Cir.1983), cert. granted on
< 'ter grounds sub nom. Florida Power & Light Co. v. Lorton, 52 U.S.LW.
3.11 (U.S.1984). The Director of the Ofnce of Inspection and Enforce-me.it acknowledged receipt of the petition in a letter dated October 14 i 1983. In this letter, the Director also denied the petitioner's request for immediate implementation of the proposed relief, because no imminent ! danger to public health and safety warranted such action, nor was such ! action required to ensure adequate consideration of the petition. A notice was published in the federalRegister that the petition was under consideration. 48 Fed. Reg. 48,882 (1983). In deciding this petition, the staff has considered the petition and its various attachments as well as other relevant information. G AP respond- ) ed by letter dated December 2,1983, to staff questions concerning the j 2.206 petition. Duke Power Company (DPC) submitted a response to the petition on January 5,1984.8 The results of the NRC inspection pro-
- gram at Catawba were also reviewed in reaching this decision. The perti-l nent inspection reports containing those findings are referenced in this
^ decision and provide greater detail regarding the basis for this decision. i I Letter to Richard C. DeYoung from W H. owen. Esecutive Vice President for Engineerins and Constructeon, OPC Uan. $,19841 thereinarter "DPC Responw"). Ahhough heenwes are not required to respond to ) 2 206 petitions in the absence of a rormal request pursuant 1010 C F R. 6 $0 344 0 or I 4182 or the Atomic Energy Act. hcensees may respond to sinh pennons at their own vahtion. as wai the saw here.5n LeBoueur. Lamb. Leiby & Alac Rae. 41 Fed Reg 335941976 l 163 i i r I I
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i 4 Additionally, the staff has reviewed the record developed before the Atomic Safety and Licensing Board in the operating license proceeding for the Catawba Nuclear Station. Among other issues, the Licensing Board has held hearings on the adequacy of the quality assurance and quality control program at Catawba.2 As noted in several instances in this decision, the petitioner has advanced before the Licensing Board much of the evidence on which it relies in its request under s 2.206. ' While this j 2.206 decision was in final preparation, the Licensing Board ! issued its " Partial Initial Decision," LBP 84-24,19 NRC 1418 (1984), , in the operating license proceeding. Subject to certain stated conditions, the Licensing Board authorized issuance of a low-power license for Catawba Unit 1. Partial Initial Decision,19 NRC at 1585-86. The Licens-
, ing Board's decision is generally consistent with the staff's view of the facts concerning the common issues regardir}g quality assurance which i
were raised in both the operating license proceeding and the } 2.206 4 petition. The Licensing Board found "no pervasive failure or break-i down" of the quality assurance program for Catawba; to the contrary, the Board found that, "on the whole, the Duke QA program at Catawba I worked well." Partial Initial Decision,19 NRC at 1434. Upon the stalTs review of information pertaining to the petitioner's 4 request, I have determined that modification of the Catawba construc-
- tion permits to compel the independent reviews requested by the peti-
! tioner is not required to ensure adequate protection of public health and safety. Consequently, for the reasons stated in this decision, the petition-
! er's request for such action is denied.) 4 I 2 The ulumate issue before the Licensing Board is of course, whether operating heenses for the Cata*- ba umis should be issued. The Licensing Board does not have jurisdiction to modify the construcuon permits as the peuuoner requests be done in its 6 2.206 peuuon. See Censumers Poe Co Bladland ' Plant. Umts I and 21. ALAB-674.15 NRC i101.1102 03 (1982L 3 As noted at the outset of this decision, the peutsoner also requested investiganons by the NRC's i office of Inspector and Auditor (o!A) and the Office of Invesusations (olt A request for an investigation, particularly one for an savestiganon by otA o(internal NRC personnel matters. does not fall squarely within the class of requests contemplated by 6 2.206 secuon 2.206 contemplates requests to insatute enforcement proceedings with respect to any bcense. In all events both Of and olA have im. i nated investigations related to matters raised in the persuon. 1 of has initiated an invesagation of harassment and inumidanon issues raised in the peution and in an April 21.1983 letter from GAP to Ben B Hayes. Director of of. and James P, o'Reilly. Region 11 ,1 Admimstrator. See Board Notecanon Memorandum (Nov 1.1983) from T. Novak, office of Nuclear
' Reactor Regulanon. GAP considers its request for an 01 invesuganon to have been granted, Letter from Bilhe P. Garde to Richard C. DeYoung (Dec. 2.1983), at 3.
olA was provided a copy of the peutron for its use in connection with its investiganon begun as a result of G AP's April 21st letter to Messrs. Hayes and o'Reilly As discussed in the latter poruon of this decisaon, the Office of inspecuon and Enforcement has reviewed the allegations of e usconduct by re. gional personnel raised in the pennon It Joes not appear that Region il personnet revealed confidenual sources or informanon in their commumcanons with hcensee personnel, or that the region's review of DPC's weldirig inspector task forces or other aspects of the construction of Catawba was mappropriate k 164 l I i i
t II. THE NRC INSPECTION PROGRAM Because of the asserted deficiencies in deQn and construction of the Catawba plants, the petitioner contends that the NRC's inspection pro-gram has been incapable ofidentifying problems at Catawba and ensur-ing necessary corrective action. By way of background, the inspection . program is described below. Additional details are contained in Appendix A to this decision with respect to the inspection program at Catawba. The NRC inspection program, as applied to reactor facilities under construction, utilizes ' sampling inspection techniques to determine
- whether there is reasonable assurance that the plant is constructed and tested according to the requirements of the construction permit and NRC regulations, and the commitments made by the licensee in its Pre-liminary and Final Safety Analysis Reports (PSAR and FSAR) and in various correspondence with the NRC. These techniques are also used i to establish whether the licensee's quality assurance and quality control (QA/QC) program is effective in inspecting, correcting and documenting activities in a way that assures protection of public health and safety.
3 Furthermore, beyond the construction phase, the NRC inspection pro-l gram is applied to plants undergoing startup testing after they are licensed for operation, and for plants already in routine operation, to provide this same assurance. The NRC inspection program is designed as a preventive program and is applied to structures, systems, components, and activities that are im-portant to safety. This preventive objective is achieved by examination i of management controls, quality assurance and quality control manuals. procedures and records, and observation of work in progress. Work in progress is inspected by experienced engineers in various technical disci-plines for quality of workmanship, conformance to codes and standards and the licensee's established QA/QC program requirements. Records are examined to verify that purchased equipment meets quality standards and that quality control inspections are implemented throughout the construction and preoperational test phases. Enforcement action is taken for violations of NRC requirements in accordance with the Commis-l- sion's enforcement policy. - 1 As described in this decision, the overall NRC inspection and enforce-ment program has been identifying problems in the Catawba plant and
' requiring corrective action. More fundamentally, the petitioner has not demonstrated why its concerns cannot be adequately addressed through ! implementation of the NRC inspection program. In short, no adequate justification for the proposed extraordinary independent review efforts has been shown.
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l III. CONSIDERATION OF PETITIONER'S BASES FOR RELIEF The thrust of the petition is that the quality assurance program for Catawba has broken down in a pervasive way. The petitioner asserts that i this breakdown is reflected in these major respects:
- 1. Failure to assure that the "as-built" conditjon of the plant re-flects the final version of an acceptable design,
- 2. Failure to maintain an adequate quality assurance program or-ganization to identify and correct construction deficiencies,
- 3. Failure to maintain adequate controls to process and respond to nonconforming conditions,
- 4. Failure to maintain adequate material traceability to identify and document the history of all material, parts, components, and special processes, and
- 5. Failure to maintain an adequate quality assurance program for vendors.
Each of these alleged failures is addressed in turn below. Additional sup-
- porting details are discussed in the decision's appendices.
Before turning to the petitioner's arguments regarding the sufficiency of DPC's quality assurance program, it is important to note that the peti-tioner has not provided substantial new information in support of its request. The petitioner relies primarily on the findings of DPC's Self-Initiated Evaluation (SIE) conducted for Catawba and on allegations related to welding inspectors' concerns and DPC's treatment of those l concerns. These issues as well as other aspects of design and construc-tion of the Catawba plant have been reviewed by the staff as part of the NRC's inspection program and, as noted above, many of these issues have been aired in the Catawba operating license proceeding. The Commission recognizes that ceficiencies will be found as a result of its inspections. Corrective action is required for every violation of NRC requirements. See 10 C.F.R. } 2.201. Inevitably, in any project ap-proaching the magnitude and complexity of a nuclear power plant, some construction defects will occur and, therefore, it would be unreasonable to expect error free construction. See Union Electric Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343, 346 (1983). Neither the Atomic Energy Act nor the Commission's regulations mandate such a result. What is required is a finding of reasonable assurance that the facility, as built, can be operated without undue risk to public health and safety. See Citizensfor Safe Power. Inc. v. NRC,524 F.2d 1291,1297 (D.C. Cir 1975) Petition for Shutdown of Certain Reactors, CLI~73 31, 6 AEC 1069, 1070 (1973), affd sub nom. Nader v. NRC, 513 F.2d 1045 (D.C. 166 w - Fem m t- +.-r-y - y-- - s - pg w -- um-- 9 s y*,er r
4 4 1 I J J Cir.1975). The best alternative to error-free construction is an effectise i- quality assurance system that detects problems, evaluates them and veri- t j fies that appropriate corrective action has been implemented to handle , j them. In the staff's view, DPC's quality assurance program for Catawba is adequate to provide the requisite assurance under the Commission's i requirements. ,
. i L Assurance That the As-Built Condition of the Plant Reflects the i
- Final Version of an Acceptable Design
, The petitioner contends that design control is lacking at Catawba be-
- j. cause design documentation does not redect the plant as designed and
{ may not reflect the as-built condition of the plant. The petitioner points i to the findings and observations of the SelfInitiated Evaluation (SIE), i and DPC's alleged lack of an appropriate response to the recommenda. tions which emerged fro,m SIE, as the "best argument" in support of the petitioner's request for an independent design and construction verifica-i tion program. The petitioner further contends that DPC's use of"Varia-l tion Notices" for controlling Geld variations between the specific design and as built construction does not comply with 10 C.F.R. Part 50, Ap-pendix B, Criterion Ill. 4 The SIE uses methodology developed by the Institute of Nuclear i Power Operations (INPO). The SIE evaluations conducted at Catawba l and other plants are designed to examine and evalua:e site activities in 1
. order to make an overall determination of plant safety, to evaluate management systems and controls, and to identify areas needing im-i provement. The goal of the program evaluation is to assist the utility in '
j achieving the highest standards of excellence. The recommendations in
- each area are based on best practices, rather than minimum ac.eptable standards or requirements. Accordingly, areas where improvements are
! recommended by the SIE team are not necessarily indicative of unsatis-factory performance. A detailed discussion of the SIE methodology and
, the NRC's review and evaluation of the SIE findings for Catawba is con-
! tained in Appendix B to this decision.' l j 4 The sIE report is entitled "Construcuan Project Evsfuarion ror Caiawba Nuclear station Unit 12."
- and is attached to both the petition f Attachment 18 and DPC's Response ( Attachment 6L As a result of a request by Palmetio Alliance, the petitioner here, to reopen discovery based on findings in the stE
] report, the Licensms Board determined that a number or the authors or that report should appear before i
.the Board in order ror the Board to determine if there were suiTicient bases for the motion The siE ii.
nesses were questioned by the Board and parties Tr 10.05bl0.276 (DPC Response. Attachmens 11 ' Based upon the testimony. the Board decided not to reopen discovery. In Camera Tr 948-54 (DPC Response. Attac% ment 2L I i 167 i i ? 1 + l 1
~ . - - - . , _ . _ . - . . - _ __ . . - . . _ - . , . - . ~ . __ _-_. . _._ - ._
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l i i The Catawba SIE was conducted from September 27 through October 14,1982. The staff was kept informed of the outcome of this evaluation. It Region II, a team composed of the Catawba Resident insoector and experienced regional management personnel was established to perform tt e onsite SIE review. Team members and other regional specialists per-fo*med a comprehensive review of the SIE report and selected items for i further review and followup with the licensee. The team performed a comprehensive onsite review of the DPC status report on corrective ac. 3-tions and comparison with the SIE report. Tire review team concluded that the licensee's proposed actions and schecules were appropriate for the nature and safety significance of the issues. The team concluded that the SIE findings were appropriately.
' evaluated for reportability in accordance with 10 C.F.R. l 50.55(e) and 10 C.F.R. Part 21. Several items in the design control area noted in the
~ petition are among those that the review team identified for further evaluation. NRC has completed its review of the completion and timeli-ness of the licer:see's actions in response to the SIE report. The staff j
findings do not ider.tify any practice which would have led to poor quali-i ty construction or unsafe operation of the plant. 3 Based on NRC inspeedons and review of the SIE findings and recom-mendations, including those which the petitioner identified as examples supporting its concerns, the staff believes that the recommended im-I provements would enhance the licensee's QA program, but the SIE find- ! ings regarding design control are not indicative of a failure by DFC to - ' } meet NRC requirements, much less a significant quality assurance
- breakdown.5 Inasmuch as DPC's actions in response to the SIE consti-j tute improvements to its program and are not required to ensure mini-mal compliance with NRC requiiementa, there is no basis to the peti-j tioner's charge that DPC's response to the SIE has been inadequate or tardy. ,
j Beyond its review of the SIE, NRC Region II inspections of DPC l design activities indicate that there is rearonable assurance that Cataw-ba's design meets regulatory requirements. 3 The petitioner, as noted earlier, presents several concerns relative to i the Variation Notice (VN) system used by DPC at Catawba. Utilities, l architect / engineers and construction organizatior.s throughout the nucle-ar industry commonly utilize various systems to issure that field varia-tions are approved by the proper organizational element and that the I 5 j The slE team members who testaried before the Licensing Board on vhe petitioner's moton to reopen discovery did not believe that their findings indicated a signdicant quiity assuran6e breakdown
- at cata br See Tr.10.13b$5 (Attachment I to DPC Responset i
168 4 l l t
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proper changes appear as revisions to the design drawings, specifica-tions, or other documentation as required by Criterion til of 10 C.F.R. Part 50, Appendix B. This criterion requires control of design changes commensurate with those controls applied to original design activities. At DPC, one form of such a field change request is called a " Variation Notice." The detailed staff review of the petitioner's concerns relative to the handling of field-initiated design changes is contained in Appendix B to this decision. The staff concludes that DPC has developed a system which controls design and meets regulatory requirements. The inspec-tions of this area during the construction of Catawba included review of the Variation Notice procedures and their implementation by DPC. Those inspections show that the Variation Notices have been controlled within the DPC design control system as required by 10 C.F.R. Part 50, Appendix B, Criterion Ill.* In addition, it should be noted that prior to full-power licensing of hicGuire Unit 2, a comprehensive DPC self-audit was performed of ac-tivities related to seismic design at the Catawba and NicGuire units within the DPC Design Engineering Department. NRC Region !! reviewed the subject report, examined some of the audit findings to verify performance of corrective actions, and found the activity to be acceptable. Region II's review of DPC's seismic design audit is docu-mented in NRC Inspection Report No. 50-370/83-18. Furthermore, due to DPC's broad nuclear design and construction experience, and demon-stration of adequate performance at Oconee, the staff concluded that an independent design verification program was not needed for NicGuire Unit 2. Since Catawba's design is practically identical to that of hicGuire, the staff has concluded that an independent design verification was also not warranted for Catawba. , In summary, based on the inspection findings to date and the staff's ' review contained in Appendix B, it is concluded that the design control system at Catawba is acceptable, the Variation Notice system has not been abused, the findings of the SIE were appropriately handled within the DPC management control systems, and the findings were properly reviewed for reportability to the NRC. 6The concerns of Mr. Ronald M.wfee, referenced by the petitioner with respect to alleged design con-trol deficienctes, were included in the review by the staff in reac5ng the eose conctuvons on desgn control. Mr. McAfee was a witness in the Catawba licenung proceeding where his concerns with respert to the correct use of procedures involung documentation of dericiencies and design changes were presented. In the staffs view. Mr. McAfee's testimony does not raise substantial doubt as to the effec-tiveness of the hcensee's quahty assurance program or the adequacy of the Catawba riant. See rencra% NRC staffs Proposed Findings of Fact and Conclusions of Law in the Form of a Partial Initial Decision. at 15-26. 4146 (March 8.1984). ser also Partial Initial Decision.19 NRC at 1532 41. 169
l f
- 2. Maintenance ofan Adequate Quality Assurance Program to Identify and Correct Construction Deficiencies The petitioner alleges that the DPC organizational structure and Quali-ty Assurance Program do not meet the independence and organizational freedom requirements of 10 C.F.R. Part 50, Appendix B, Criteria I and II. The petitioner charges that the DPC Construction Quality Assurance Program is not and has never been independent of construction, thereby restricting the quality controlinspectors' ability to determine the quality of construction, to implement approved QA procedures, or to identify and correct construction deficiencies.
NRC and its predecessor, the Atomic Energy Commission, have reviewed the Catawba QA program and organization routinely since DPC applied for construction permits for Catawba on July 24,1972. Ap-pendix C to this decision contains a chronology of the development and NRC's review of the DPC quality assurance and quality control (QA/QC) program at Catawba from 1973 to 1983. The NRC staff found
- that the DPC organization for QA and QC met the requirements of 10 l C.F.R. Part 50, Appendix B, in 1973, about 2 years before the construe.
tion permits were issued for Catawba. The initial acceptability of the DPC QA program in 1973 was predicced on DPC's commitment to fill the position of Corporate QA Manager by July 1974. This commitment was met in February 1974. The overall QA program and QA orgat;ization for design and procurement were inspected by the NRC Region !! staff during 1973,1974, and 1975 prior to the issuance of the construction permits.' 4 Before the construction permits were issued, the Design Engineering Department (DED) " Design Engineering QA Plan," the DED proce-dures (including procedures for engineering calculations, engineering drawings, SAR commitment control, variation notices, nonconforming item reports, specifications and procurement), the divisional QA proce-dures for the internal audits of civil, electrical, and mechanical-nuclear 4 design work, and various appendices were examined to determine the ) state of readiness for start of construction. The Catawba construction permits were issued in August 1975. In au-j thorizing issuance of the permits, the Atomic Safety and Licensing Board found that DPC's quality assurance program met the Commis-l sion's requirements. Duke Power Co. (Catawba Nuclear Station, Units I i 4 ) 7 4 See NRC Inspection Reports 50-413/73 01. 73-02. 73-03, 73 4 4. 74-01. 74 02. 74-03. 75-01. 75-02. 75-03. 75 04. 75-05. and 75 06. 170
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4 and 2), LBP-75-34,1 NRC 626,650 (1975), affd. ALAB-355,4 NRC 397 (1976).
! Since issuance of the construction permits in 1975, NRC inspection findings have confirmed that DPC has developed and implemented an acceptable QA/QC organizational and functional alignment. No viola-i tions or deviations have been identified related to the organizational
. freedom and authority aspect of the DPC QA/QC organizations as ap-proved by the NRC. Thus, DPC reatignment of QC administrative func. 1 tions in 1981 was not designed to " cure" any prior noncompliance. Con-trary to the petitioner's suggestion, the SIE did not find a lack of inde-pendence in DPC's QA/QC program. Rather, the SIE report states,
" Quality Assurance and Quality Control functions were performed ade-quately and independently to support and control the quality of the facility." SIE Report at 2a. The allegations in the petition that the DPC Quality Assurance Program is not, and never has been, independent of construction have not.been substantiated. Compare Partial initial Decision,19 NRC at 1458-60.
a On pages 16-18, the petition cites complaints expressed by welding inspectors as evidence of pressure from constructian. In addition to the , routine inspections, the Region II inspection staff started in 1979 to con-duct special inspections designed to detect whether undue pressure, j harassment, or intimidation was present ' hat could be detrimental to quality of work at Catawba. These inspections and the inspection results are descrioed in Appendix A, pp.185-87, to this decision. In addition to these special inspections, the NRC Region 11 staff monitored the DPC Task Force efforts and conducted an assessment of the concerns which included interviewing the involved welding inspectors, review of the task force reports, and other documentation. The Region II inspection efforts regarding the welding inspectors' complaints are described in Ap-pendix D, pp. 207-08, to this decision. As further detailed in staff tes- ) timony in the operating license proceeding, NRC review of the welding ! inspectors' concerns and DPC Task Force response to those concerns did not reveal any programmatic breakdown or harassment of welding inspectors which adversely affected the overall operation of the QA
- program.' The problems seemed to have stemmed primarily from poor communication between site supervision and the welding inspectors.
None of the welding inspectors acknowledged knowing of any poor work j that had not been found by QC and properly corrected. It was unlikely d
- NRC start Testimony or P K. van Doorn on Palmetto Alhance Contention 6 Regarding W eiding Inspector Concerns, received into evidence in the Catawba operateng license proceeding as statT Eshibe
- 7. Tr. 9206 (December 2.1983L See also Partial Inital Decision.19 NRC at 1504-05,1530-32.
171 1
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that harassment detrimental to quality developed under the conditions observed. The Licensing Board has reached similar conclusions. While finding that harassment of welding inspectors by craft workers and fore-men occurred on occasion, the Board concluded that the incidents did , not deter the inspectors from performing their job nor was the freedom 'l of the QA program restricted. Partial Initial Decision,19 NRC at 1531-32. The Licensing Board did find, however, that DPC's policy against harassment could be improved, and the Board has directed that the policy be revised. Id. at 1532,1585.
- 3. Maintenance ofAdequate Controls to Process and Respond to Nonconformine Conditions j
The petitioner identifies a number of concerns regarding this subject. i Details concerning DPC's Nonconforming Item (NCI) system, NRC's review of that system, and a discussion of the petitioner's specific con- ! cerns about the system are contained in Appendix D. The alleged defi-ciencies at the Catawba site regarding DPC's management control system for identifying, documenting and correcting a broad spectrum of construction-related problems, appear to be based primarily on the peti-tioner's review of the SIE and comments provided to GAP by several present and former DPC employees. A review of the information pertinent to concerns noted in the peti-tion leads to the conclusion that DPC has developed and implemented an adequate control system for identifyir.g, documenting, and correcting a broad spectrum of problems. Each revision of the DPC system for 5 controlling, dispositioning and correcting nonconforming conditions (NCIs) ha 5een reviewed by the NRC Region IIinspection staff. In the staff's view, the control and evaluation of NCIs have been improved 4 - with each revision of that system and its implementing procedures. The l NCI system, and NCIs related to defects in specific components and J systems, have been routinely inspected as part of the NRC inspection , program. DPC has implemented needed corrective actions to the NCI system that have been identified by NRC inspection findings, by the licensee's QA audit program, and by the SIE. The deficiencies to which the petitioner refers do not, in the staff's view, suggest a significani,
" decade long" breakdown in the entire QA program. The allegations i
i i 172 f l
. made by the petitioner do not provide a basis for technical conceT for safety of the plant.' The petitioner alleges that Catawba's nonconformance procedure ("Q-1") violates 10 C.F.R. Part 50, Appendix B, Criterion X for the fol-lowing reasons: e The procedure bears a striking similarity to a situation at Niid-land Nuclear Plant that resulted in a Severity Level III i violaticn. i e Catawba QC inspectors by procedure were shackled to the Senior Engineer in that they no longer had authority to write NCIs without first getting approval.
; e It was improper for Document Control to issue sequential i
serial numbers only for approved NCIs. : i The comparison between Catawba and hiidland regarding the handling ) ofin-process inspections at Midland is not valid. At Midland, QC inspec-
! tors stopped their inspection activities when an excessive number of
, deficiencies became apparent. When this occurred, the system being in-spected was returned to the crafts for rework. The crafts corrected only the reported deficiencies, and upon reinspection by QC, only the report-ed deficiencies were reinspected. In some cases at Midland, this practice
, led to a situation where complete system inspections were not per-formed, and some systems contained deficiencies even though final QA 1
inspection and acceptance had been indicated. At Catawba, however, work on nonconforming work activities was stopped and documented
! while QC inspections continued for those work activities which were al-lowed to proceed.
The sietition quotes the following from Catawba's " Control of Non- , conforming items," Procedure Q-1, Rev. 9, dated June 11, 1976
, (Petition, Attachment 14), and contends that it allows for suspended in-spections and, consequently, the undesirable consequences at Midland could also occur at Catawba:
i 1 j 'It should be noted that dunng the Catawba licensing heanngs, the DPC QC inspectors consistently
~
stated that the hardware problems they identified were always corrected. Their stated concerns were dis-
, agreements with handling of the resolution or nonconformances. See generoth NRC staff's Proposed t-Findings of Fact and Conclusions or Law in the Form of a Partial Initial Decision, at 46 51. 74 76 (March 8.1984); compare Partial Initial Deciseon,19 NRC at 1497-94.1530.
NRC stafr testimony presemed at the Catamba licensing hearios on Contention 6 regarding welding inspector concerns shows that DPC recosmzed these problems, made a proper mvesngation mio these 4 concerns, and implemented appropriate corrective action to handle these concerns and any programmat. j ic or hardware problem so idenuGed that needed attention. See NRC stafT Tesumony of Peter K. Van Doorn, supra note 8. at 42 50. Tr. 9679-81. 9875 76. 9897 98 See alsa NRC starts Proposed Findings, supra, at 68-77; compare ParnalImtial Decision.19 NRC at 1492 98.1504-05.1583-84 t i " 173 i t i I i
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+
i If a nonconformance is identified on material, equipment, or actisities in the course of installation or construction, the nonconforming activities or activities which affect the resolution of the nonconformance shall be stopoed and not resumed until the resolution of the nonconformance is identified. Activities involving the material, equipment, or item which do not atTect the resolution of the nonconform-ance may continue. The Project QA Staff shall be responsible for determining which activities may proceed. Where necessary, these activities shall be described in the statement of the nonconformance. However, this mode of construction nonconformance control is in ac-cordance with NRC requirements. Section 16 of ANSI N45.2, accepted by NRC in Regulatory Guide 1.28, states that " measures which control further processing, delivery, or installation of a nonconformance or defective item pending a decision on its disposition shall be established and maintained." The petitioner implies that Catawba QC inspectors per-formed limited inspection of items after an NCI was issued but provided no examples to substantiate its claim. The NRC believes, based on in-spections and investigations into employee concerns to date, that ade-quate inspections were performed. This procedure, as written, does not violate 10 C.F.R. Part 50, Appendix B, Criterion X. There is no meaningful basis on which to evaluate the petitioner's claim that violations of Criteria X and XVI increased after 1978. NRC experience indicates that as more construction work disciplines become involved, or as each discipline approaches peak activity, more construc-tion problems may occur, Such problems do not pose a safety problem as long as adequate measures exist to identify and correct problems. Ad-equate measures exist at Catawba. The petitioner believes that the procedure for controlling NCis has been deScient in other respects. See Petition at 21. The petitioner con-tends that Revision 12 to Procedure Q-1 " completely shackled" QC inspectors to the Senior Engineer. Additionally, the petitioner implies that obtaining serial numbers only for approved (valid) NCIs is improper. NRC inspection Sndings do not indicate that the DPC inspector's free-dom and independence to identify quality problems, and verify correc-tive action, was denied. The corrective action system described by Revi-sion 12 to Procedure Q-1 met NRC requirements. Subsequent r visions of this procedure have helped to remove any real or perceived uncertain-ties by a QC inspector as to their freedom and independence. In addition to the routine NRC inspections at Catawba, the NRC staff conducted two special inspections, specifically focused on interviewing DPC employees, to determine the extent of cooperation between work groups, management support, and whether pressures, harassment or in-timidation were present at Catawba that could be detrimental to perform-174
ance of their functions. The details of these inspections are described in Appendix A. The NRC inspection staff has found no problem with the licensee issu-ing serial numbers only for valid NCIs. As discussed more fully in Ap-pendix D, not every construction deGeiency requires handling as an NCI under Catawba's program for controlling deficiencies. Deficiencies de-clared to be nonvalid NC!s were corrected on another type QA record certifying their acceptability in accordance with existing QA procedures. There is no NRC requirement to keep record copies of nonvalid NCis. but the NRC stafT encourages licensees to keep any documentation that the licensee feels may help verify the quality ofits plant. NRC testimony relative to Palmetto Alliance Contantion 6 in the Catawba operating license proceeding provides the stats position con-cerning alleged misuse of the Catawba NCI system." That testimony ad-dresses each specific allegation for merit and safety significance and clari-fies the NRC requirements concerning corrective action systems. Based on the staff's review, the NCI system and its implementation at Catawba generally have met regulatory requirements. To be sure, the NRC staff has not found the corrective action system and its implementation at Catawba to have been consistently effective; however, no major QA breakdown has occurred in this area as alleged by the petitioner. The Licensing Board has reached similar conclusions regarding the NCI system. See generally Partial Initial Decision,19 NRC at 1437-38, 1439-40, 1460-1505. Violations in this area have been identified by the NRC. DPC has recognized those problems and has been cooperatise in making appropriate evaluations and taking proper corrective actions. The evaluations and actions by DPC have been reviewed by NRC. The licensee has been responsive to the need for improvements in the NCI system identified by the NRC. The licensee's internal audit program has focused on this area from time to time; corrective measures were taken in response to the audit findings. Therefore, no additional enforcement measures appear warranted at this time based on findings to date. The petitioner also raises concerns relative to the handling of DPC's R-2A system. The concerns raised by the petitioner are: e The R-2A system being used to report inspection deliciencies at Catawba is deficient (inferior) when compared to the NCI (Form Q-1 A) system used. 10 5cc NRC stafr Tesumony or Peter K Van Doorn, mera note 8. iesomony or Ntessrs Brynt. 4f auwell. and Van Doorn. Tr 9197 10.002. pasum t December 2,5 and 6.19%D See aho NRC suff's Proposed Findmgs. wpra noie 6. at 68111 175
- The SIE report identified areas of weakness with the R-2A con-struction corrective actions.
- In the past, Catawba has been criticized by NRC for having "too many NCIs." ,
- Workers have reported to G AP that the R-2As are used liberal-ly by both QA and construction to legitimize construction that pushes ahead of QA/QC inspection.
- The R-2A (Inspection Discrepancy Report) governed by the R-2 procedure is used on the bulk,of nonconformance items.
- R-2As remain under the control of construction, corrective ac-tions were not required to be documented and an indetermi-nate number of nonconforming conditions may have been cor-rected without trending of appropriate reviews.
The R-2A, Inspection Discrepancy Report," is a quality control mechanism utilized to document and correct identified deficiencies that do not rise to the level of significance of a nonconforming item. Part 50, Appendix B, Criterion XVI of 10 C.F.R. requires that conditions adverse to quality be promptly identified and corrected. Catawba's Procedure R-2 was written to meet a selected element of this requirement. Form R-2A, which is a part of Procedure R-2, is utilized at Catawba to docu-ment the identification and correction of minor deficiencies found by the QC inspectors as a result of preplanned inspections, which are thought to be readily correctable and require no additional engineering design evaluation. Other, more serious deficiencies, that qualify as sig-nificant conditions adverse to quality, are required by Criterion XVI of Appendix B to be documented, to be given an extensive review to deter-mine the cause, identify appropriate corrective actions to prevent recur-rence and to be reported to the appropriate levels of management. Catawba's Procedure Q-1 was specifically developed to document NCis, the more serious type of deficiency. Forms R-2A and Q-l A (NCI) are two of the mechanisms utilized by Catawba to report deficiencies and, when implemented properly, these procedures meet NRC requirements. The petitioner's assertion that the R-2A system is " inferior" to the NCI system reflects a misunderstanding of the corrective action system and has no real bearing on the accepr.oility of Catawba's corrective action program. A detailed discussion of the weaknesses the petitioner per-ceives in the R-2A system is contained in Appendix D. As noted above, NRC staff testimony summarizes inspection findings concerning alleged misuse of the Catawba corrective action system." nu 176
NRC routinely addresses deGciencies as they are identined by or to NRC inspectors. Deficiencies are classiGed according to safety significance, and priorities and remedial actions are guided by that classification. As noted above, at Catawba the more significant type defi-ciencies are classified as NC!s. The NRC inspection Gndings show that construction deficiencies at Catawba have been generally classified appropriately. The ratio of NCis to R 2A-type deficiencies at Catawba has been small. Although there were examples identified in the SIE where R-2A-type deficiencies were improperly dispositioned, these were few in number and represented a small percentage of the thousands of R-2As recorded at Catawba. In the past, some NRC inspectors have been critical of Catawba QC inspectors for writing too many NCis for problems which could rightfully have been resolved as minor deficien-cies under other QA procedures. In NRC Inspection Report 50-413/81-02, it was noted that an apparently large volume of NCis had been generated at the site, averaging nearly 300 per month over a 7-month period. The subjects covered by these NCIs ranged from relatively minor documentation problems to major problems with safety related hardware. The processing of such a wide range of problems in the same manner was brought to DPC's attention as a possible contributor to generic items or trends apparently going unnoticed. Several NCis were cited as an example of the condition, and the licensee was cited for a vio-lation for generic items or trends being neither recognized nor forwarded to management. The DPC corrective actions on this matter were evaluat-ed and found to be acceptable by Region 11 staff. Followup by the staff verified implementation of the corrective actions. The SIC findings, in light of the results of NRC inspections, show that the DPC system for control of construction deficiencies has functioned adequately with a few minor exceptions. Therefore, it is the NRC staff's view that the DPC QA/QC program is continuing to function adequately in the area of nonconformance and corrective action in that:
- The NCI system is the appropriate system to be utilized for sig-nificant deficiencies; however, the R-2A system is not inferior to it because its intended function is also accomplished. Cataw-ba's corrective action system satisfies 10 C.F.R. Part 50, Ap-pendix B, Criterion XVI requirements.
- The SIE correctly identified two minor weaknesses in construc-tion trending but in general QA trending overlapped these defi-cient areas. One R-2A appears to have been inappropriately closed out but had no safety signiGeance nor was any hardware 177
-. . . ,~ . _ . . .. . - ._ . . . ... .
t s ) affected. Considering that 20,456 R-2As have been written at
! Catawba as of October 7,1983, these findings do not indicate a programmatic breakdown.
- Some Region 11 inspectors, after examining Catawba's NCis for adequacy, informed the licensee that some DPC QC inspec- ,
j tors were being overly conservative and were writing too many i NCis which could have been appropriately handled by other ap-proved QA mechanisms such as R-2As, M-4s or M 51Cs.'2 Proper utilization and trending of these other QA mechanisms does not violate NRC requirements.
- Proper utilization and implementation of the R-2A system 1
would not permit construction to push ahead of QA/QC inspec-tions. Alleged misuse of the R-2A system has been investigated and problems identified were found to have no safety { significance.'3 , i In summary, DPC has developed and implemented an adequate cor-rective action system (which includes the NCI and the R-2A system) that meets NRC requinments, and one which has been appropriately revised, updated and improved over the years. The reviews conducted by the NRC staff provide sufficient assurance that there has not been, i nor is there now, a breakdown in the QA program at Catawba as alieged j by the petitioner. i~ a
\ 4. Measures Established to Provide Adequate Material Traceability l The petitioner contends that DPC failed to maintain adequate material j
traceability to identify and document the history of all materials, parts, components, and special processes as required by 10 C.F.R. Part 50, Ap-pendix B, Criteria Vill and IX. See Petition at 26-27. The petitioner j relies on findings from the SIE as the basis for lack of traceability. These j specific items are discussed in Appendix E to this decision. NRC inspections have revealed relatively few violations or deviations in this general area of concern or the specific areas di.scussed in the SIE i- report. The SIE findings do not reflect a severe breakdown in DPC's i quality assurance and control program for material traceability at
- Catawba.
1 I i I 12i nspection Report No. 50 41J/8102. 33 As stated by NRC staff wunesses P K. van Doorn. J C. Bryant and G F. Nf anwell dunns the Catawba heannss, the DPC quality assurance program included vanous methods of reporting deficiencies,includ. ! ing R.2As and there was no evidence that DPC was not generally following the appropnate procedures. Tr. 9776 78 and 9806 Compare PartialInitial Decision.19 NRC at 1504-05 1 ' 178 a o i 1 I l
i 4 S. Measures Established to Maintain an Adequate Quality Assurance Programfor Vendors The petitioner alleges that DPC has failed to maintain an adequate quality assurance program for vendors. To illustrate this concern, the petitioner repeats the observations and recommendations of the SIE report to show alleged weaknesses in the heating, ventilation and air con-ditioning (HVAC) contractor's welding program. The specific items and the NRC evaluation are discussed in Appendix F. NRC inspection findings relative to the alleged weaknesses in the HVAC contractor's onsite welding program do not support the conten-tion that serious weaknesses exist in the contractor's program. NRC in-spections indicate that the site contractor has fabricated, inspected, and erected the HVAC system consistent with applicable codes, specifications, and NRC requirements. Although deficiencies have been identified in the areas of QC inspections and QA/QC records, these were, in the staff's view, isolated cases. NRC inspections of onsite weld-ing activities revealed no evidence of unqualified welders performing safety related welds, or examples of flawed welding procedures being used to perform this work.
- 6. Summary As shown in the foregoing discussion and the supporting appendices.
the design and construction of the Catawba plant has not suffered the severe quality assurance breakdown that the petitioner believes has occurred. To the contrary, the licensee's quality assurance and quality control program has generally satistled the Commission's requirements with respect to the structure and implementation of the program. The re-
. suits of NRC inspections do not provide a basis for concluding such a substantial breakdown has occurred, and the petitioner's reliance on the SIE's findings is misplaced. The welding inspectors' concerns and the related DPC task forces have been examined extensively by the staff through the inspection program and in the operating license hearings for Catawba. While DPC's performance at Catawba has not been perfect, the design and construction of the plant has been adequate to provide
[ reasonable assurance that operation of the plant will not pose an undue risk to public health and safety. [ IV. ADEQUACY OF REGION It'S PERFORMANCE The foregoing analysis of the alleged quality assurance breakdown is the best answer to the petitioner's charge that NRC Region 11 and its 179 J r 4'- .
management have failed to detect serious problems at Catawba and to ensure the licensee's adherence to the Commission's requirements. As indicated at numerous points in this decision, Region II has examined, through the inspection program, DPC's organization and implementa-tion ofits systems to control design and construction of Catawba. The re-gional office has also followed such matters as DPC's handling of the welding inspectors' concerns and the findings or the SIE to ensure the licensee satisfied the Commission's requirements and took appropriate corrective actions. Region 11 and other responsible staff offices continue to initiate appropriate action to deal with new issues that may arise bear-ing on the adequacy of the plant. As noted in Appendix A to this decision, the region has identified a number of violations at Catawba, but on balance DPC's program for design and construction of Catawba has been adequate. Nonetheless, the petitioner suggests on the one hand that enforcement action has been lacking at Catawba, but the petitioner notes on the other that a "large number" of Notices of Violation at low severity levels have been issued to Catawba. A Notice of Violation is, however, the primary enforcement i tool used by NRC to document noncompliance and to ensure corrective action and compliance with regulatory requirements. See General Policy and Procedure for NRC Enforcement Actions,10 C.F.R. Part 2, Appen-dix C, y IV (1983), as revised, 49 Fed. Reg. 8583 (1984). Far from in-dicating weak enforcement, identification of a large number oflow-level 1 violations may well indicate an enforcement program that vigorously en- l sures compliance and identifies problems at an incipient stage. In view of the general sufficiency of DPC's construction activities, the extent of enforcement action to date seems appropriate at Catawba. Civil penalties and olders for construction-related violations often indicate longstanding problems which have remained undetected or which have grown more significant by virtue ofinadequate corrective actions. Although the peti ' tioner criticizes Region Il for not issuing Notices of Violation for welding deficiencies identified in the SIE, the Commission does not generally issue Notices of Violation in such instances involving lower level viola-tions which the licensee has identified and has corrected or will correct. See id. The NRC follows this policy to encourage self-inspection activi-ties such as the SIE and correction of deficiencies identified through such programs. In sum, Region II's inspection and enforcement activities appear ade-quate and, thus, do not ir.dicate a failure to come to grips with alleged 180 ______________.__________A- - - - - - . _ ^
l
'I safety problems at Catawba.'4 Along these lines, the Licensing Board remarked, "[sluffice it to say that while we may not agree with every-thing the Region 11 personnel did at Catawba, we believe them to be conscientious and men of integrity. On the whole, we think they did a good job." Partial Initial Decision,19 NRC at 1499 n.19.
V. CONCLUSION For the reasons stated in this decision, the petitioner has not demonstrated that Duke Power Company's quality assurance and quality control program for the Catawba Nuclear Station has suffered a serious breakdown. From :he staff's review, it appears that the program has , been adequate to ensure acceptable design and construction of the facility. See Callaway, supra. ALAB 740,18 NRC at 346. In view of f ' these findings, the petitioner has not demonstrated a substantial safety issue that warrants initiation of enforcement proceedings to mandate the extraordinary " independent" reviews requested by the petitioner. See Consolidated Edison Co. o/New York (Indian Point, Units I, 2 and 3), CLI 75 8,2 NRC 173,176 (1975). Accordingly, the petitioner's request is denied. This decision is made without prejudice to the Licensing Board's Par-tial Initial Decision and any appeal of that decision. The staff will,'of course, follow up the items identified by the Licensing Board as condi-tions of its authorization of a low-power license and the statT will pursue the resolution of other safety issues that may come to the staff's atten-tion during the course of its inspections and further licensing review of Catawba. The staff will take appropriate action on the results of the Office of Investigations' examination of alleged harassment and f intimidation. At thisjuncture, however, the available evidence - includ-ing earlier inquiries by Region 11 on this issue (see Appendix A) and the record in the licensing proceeding - do not suggest a need for the I extraordinary remedies that the petitioner requests.'s 14 Although these questsons are subject to inquiry by the NRC's office of Inspector and Auditor. it does not appear that regional personnel revented the identity of confidentn! sources or veotried NRC suft policy concerning release of draft inspection reports. See Petition at 29-33. 44 Whde NRC will protect the identity o(confidential informants to the entent permitted by law and NRC prohib ts release of draft agency reports, the NRC will bnns safety informauon promptly to the attention of lisensees to ensure appropriate actions are taken to cure noncorripliance and a* sate ary hazard to public heal h and safety. Il See "NRC stafr Testimony of P K. van Doorn.' supra note 8. NRC st:Fs Proposo Tindmss of Fact and C4nclusions of Law in the Form of a Partial Initial Decision, at 35-64h ser also Partut initut Decision.19 NRC at 1519-20,1530-32.1546-48. To correct any misunderstanding on this point. it should be noted that. contraqr to the petitioner's impression.10 C F R. Part 19 is not the regulatory f(OMleMinedl 181 m
N A copy of this decision will be filed with the Secretary of the Commis-sion for the Commission's review in accordance with 10 C.F.R. j 2.206(c). As provided in j 2.206(c), this decision will become the final
- action of the agency 25 days after issuance, unless the Commission determines to review the decision within that time.
i e Richard C. DeYoung Director Ollice ofInspection and j Enforcement i Dated at Bethesda, hlaryland, J this 6th day of July 1984. APPENDIX A NRC INSPECTION AND ENFORCE 31ENT PROGRA.Tl FOR , PLANTS UNDER CONSTRUCTION i General
- The purpose of the NRC inspection and enforcement program is to ensure that facilities and materials under NRC jurisdiction are constructed, operated, and used in a manner which protects the public health and safety and the environment, and to take prompt and vigorous enforcement action against licensees who do not comply with NRC requirements. .
Implementation of the NRC inspection program is generally conducted under two basic formats: (1) scheduled inspections designed to eval-uate the licensee's routine activities, recognizing that the licensee has primary responsibility for protection of the public health and safety; and (2) unscheduled, reactive inspections to assure the adequacy of licensee i
' response to incidents and accidents or to assess licensee compliance with special NRC requirements.
n basis for NRC actions to prevent harassment and discnmination against workers at nuclear reactor ron. .
- tructme sites. See Cne,r Elertne Co ICallaway Plant, Units I and D. ALAB 527,9 NRC 126.136-37 (1979L Currenity, such wrcngful conduct may be reached under 10 C F R. 6 50 7 or 10 C F R. Part 50.
Appendit B, Cntenon I. section 210 of the Energy Reorganuation Act provides workers a direct - remedy against disenmination for en6agicg in the *' protected actmtres" de6ned by the statute. 182 i
,- . , - - -- + , - - . - - ,n-. n n,. - - ---
NRC resident inspectors provide a substantial increase in serification of licensee performance through direct observation and independent measurements. Region based inspections consist ofin-depth, specialized technical inspections and followup activities relative to allegations. Inspections at Catawba Region 11 inspections at Catawba began in February 1973, before the NRC granted the limited work authorizations for both units on .Nfay 16. 1974 (construction permits for Catawba Units I and 2 were issued on August 7,1975). Inspections vere conducted in accordance with the Commission's inspection program. Inspections covered design, procurement, construction and vendor QA programs. Subsequent to the issuance of a construction permit, inspection actisi-ties are accom;lished in accordance with the inspection program applica-ble to the construction and preoperational phase. The quality assurance and quality control (QA/QC) programs for the DPC Engineering and Construction Departments, and portions of the QA/QC program were inspected during each inspection at the construction site. Ongoing con-struction inspections included detailed examination and inspection of licensee and contractor safety related activities and the associated QA/QC procedures, work in progress, and records. The following fanc-tional areas have been inspected during the construction and pre-operational testing phases at Catawba:
- QA Program
- Design Control
- Procurement
- Receipt inspection, storage and handling of material and equipment
- Site excavation and foundations
- Structures and supports
- Concrete operations
- Containment erection
- Piping systems installation
- Electrical / Instrumentation and control systems installation
- QA/QC documentation and records
- Operational staffing and training
- Comparison of as-built plant to FSAR description
-- Preoperational test program, implementation and verification
- Operating, maintenance and emergency procedures
- Fuel receipt and storage
- Fire presention/ protection 183 i
l
9 4
- Technical specification review
- Environmental protection
- Emergency plan
- Radiation protection
- Radioactive waste systems NRC Enforcement Program Enforcement isjointly carried out by IE Headquarters and the Regions (a) to ensure compliance with NRC regulations and license conditions; (b) to obtain prompt correction of noncompliance; (c) to deter further noncompliance; and (d) to encourage improvement oflicensee perform-ance. The enforcement program employs a series of sanctions that esca-i late according to the seriousness of the noncompliance and the past his-t tory of licensee performance. Sanctions available to the NRC include
' notices of violation, civil monetary penalties, orders to cease and desist,
+
and orders to suspend, modify or revoke construction permits or licenses. NRC Construction Permit Nos. CPPR-il6 and CPPR-il7 were issued on August 7,1975, for the Catawba facility. Since that time, NRC enforcement actions have been taken in accordance with the NRC enforcement policy in effect at the time. Between August 1975 and Octo-ber 1980, the effective policy was the one issued on December 31,1974 and implemented through the Office of Inspection and Enforcement Stanual Chapter 0800 (Enforcement Actions). Between October 1980 and Starch 1982, a revised Interim Enforcement Policy was in effect. 45 Fed. Reg. 66,754 (1980). Since hfarch 1982, the General Policy and Procedure for NRC Enforcement Actions (10 C.F.R. Part 2, Appendix C) has been in effect. Revisions to this policy were issued on N! arch 2, 1984.49 Fed. Reg. 8583(1984).. Review of the enforcement history of Catawba reveals that through April 1984, 108 violations were identified at Unit I and 76 violations were identified at Unit 2. Sixty-seven violations, already included above, were common to both units. The majority of these violations were of minor significance and, in all cases, the licensee addressed the violation with corrective actions acceptable to , the NRC. Specialized Inspections at Catawoa
~
In addition to routine NRC inspections, NRC has conducted special inspections at Catawba where particular emphasis was placed on inter-viewing QA/QF craft, engineering, support, and management personnel 184 i i I.
to determine the extent of cooperation between work groupst manage-ment support, supervisory and technical assistance to the craft and QA/QC; and whether pressures, harassment, or intimidation were pres-ent that could be detrimental to quahty work. The first of these special inspections was conducted in 1979, in re-sponse to a suggestion by the General Accounting Office. This specialin-spection was conducted as part of a plan to conduct one special inspec-tion at one construction site in each of the Ove NRC Regions. The pur-pose of these inspections was to privately interview craftsmen and craft foremen involved in safety-related work to determine if they were aware of any nuclear safety related problems at the site that should be brought to the attention of the NRC. Confidentiality of the participants was main-tained by several methods. Interviewees were randomly selected, and the interviews were held where they could not be overheard, A mini-mum of three persons was chosen from each craft and each interviewed separately. None of the information received was identified with any person interviewed. Management was informed that no discriminatory or personnel action was to be taken against those interviewed should management become aware of an individual's identity. This inspection' was performed at Catawba on November 1316, 1979. The two primary reasons for the choice of Catawba were that the site was in the mid-construction phase at that time, and DPC was its own architect / engineer and constructor. Questions asked of the inter-viewees included:
* "Do you have any outstanding concerns about the quality of construction?"
* "Are you aware of any instances where construction did not meet prescribed specifications, codes, standards, or other requirements, and corrective actions were not taken?"
* "Are you aware of any day-to-day problems or irregularities af-fccting quality that you believe the NRC should know about?"
Twenty eight persons were selected for interviews. After DPC management announced the purpose of the inspection to the work force, an additional twenty-nine persons expressed interest and were in-terviewed also. No specific allegations of wrong-doing were receised from the interviewees.2 8 Reportea in Inspetoon Report No 50-413. 414/'9-21 2 The rollowing charwentes the tspe or findings whan rc6ened followup .nvetimn erfori, ni the
. RC waft N
several persons said that concrete placement eas ruined. obietts suth as sofi Jr r'k sans and rieses or wood were left in the torms, and vibratmn wat not twf All of them stated that prohicms found were IGnnmwdf 185
None of those interviewed expressed negative opinions about DPC's intent or ability to build a safe plant. Most said they felt free to express opinions to foremen and some said they felt sure management would listen to them. Another special inspection) was conducted about 2 years later on Janu-ary 26-February 6,1981. This special inspection was one of a series con-ducted by the Regions to test inspection methods and procedures which eventually resulted in the NRC Construction Assessment Team (CAT) inspection program. The inspection involved 45 man-days of direct in-spection activity at the site. During this inspection at Catawba, in addi-tion to DPC management, the NRC inspectors held discussions with twenty-five engineers, construction supervisors, and foremen; forty-seven construction craftsmen; thirty-eight technicians (QC); and sixteen oflice personnel. Objectives of the inspection were:
- An evaluation of implementation of the DPC/QA program for control of construction activities.
- An evaluation of methods used by management to ensure that a quality product is produced, and an evaluation of the degree of management and supervisory staff participation in the han-diing of site problems.
- An evaluation of the competence of craftsmen and QC inspec-tors and their perception of the DPC commitment to quality; availability of technical assistance; relationship between work groups; accessibility of management; freedom to express opinions; and protection from harassment.
inspections were performed in the areas listed below both at the Catawba site and at DPC corporate offices. The objectives identified above were pursued in each of the following areas:
- Site QA program implementation
- Site project management and control
- Site procurement, receiving, and storage
- Electrical equipment and installation
- Instrumentation and control always corrected thoroughly NRC inspectors looked at one void identified b) an interuewee and agreed there was more voiding than normal. All soid areas esamineJ during the inspection were marked by QC. cleaned. and repaired. This matter was discus ed with site management and was subsequently rein.
spected by NRC Report No 50 413. 414/79-21 orie employee questioned vendor torqueing I,.nd otherl procedures and wanted to know more abnut requirements He was re ontacted the week of November 19. 1971 several rerson were conserned about the attitude or personnel safety inspections This informanon was pa sed on to DPC projei.t management m a general way which protected t'ie identity of the indmdual
) Reported in Inspection Report 50-41). 414/11 02 186
T
- Pipe support and restraint system
- Mechanical equipment
- Nonconforming item report evaluation
- 10 C.F.R. } 50.55(e) and 10 C.F.R. Part 21 reporting Five violations of regulatory requirements were identiGed. See NRC In-spection Report 50-413/81-02. These violations were primarily related
, to procedural problems and were not significant. Tha inspection findings and conclusions resulted in a complete review by DPC of their handling of approximate;y 10,000 nonconforming item reports (NCD with respect to description of the problem, evaluation, corrective actions, generic issues,' reportability, and programmatic improvement. Subsequent to this special inspection and special NCI review by DPC, the NRC Resident inspector has received all NCis. The Resident inspector has reviewed all NCis generated during the 2 years subsequent to this special inspection. The review of the NCis was to ensure proper description of the problem, appropriate evaluation, and adequate corrective actions by DPC. The Resident also reviewed the- ' NCIs for generic concerns, verification of corrective actions, and ap-propriate programmatic changes to minimize future occurrences. The Resident has identined several minor violations during the Grst year of his reviews. Since DPC instituted an NCI review task group in Septem-ber 1982, no violations have been identified. Generally, the NRC inspection findings at Catawba reDect that the 4 QA program is working; site management is informed and involved; and 4 technical assistance is readily available in problem areas. The inspectors believe that there is good cooperation between work groups; that management and supervision are available to employees at a low threshold; and that it is unlikely that harassment detrimental to quality has developed under the conditions observed. I Inspections Related to Allegations Procedures are in place in the NRC Regional offices to process allegations, complaints, or other concerns which some to the attention i of the staff. This function is centrally coordinated and controlled within each Regional office. Allegations are evaluated by appropriate technical
- staff including any necessary site inspectiori activities. Where appropri-ate, allegations are referred to the NRC's OfRce of Investigations. Alle-gations pertaining to licensed activities have been received by telephone, letter, news media reports, and direct contact. NRC employ.
, ees who receive allegations are aware that it is essential to protect the , identity of adegers. ! ) 187
The NRC draws a distinction between providing information about safety problems, which require prompt resolution to assure public health and safety, and the source of that information. Safety problems will be brought to the attention of the proper licensee organization which can correct those problems and, es such, the disclosure of this information does not constitute a breach of confidentiality. NRC procedures are de-signed to protect the identities ofinformation tources rather than the in-formation itself.
, Inspections Resources Expended at C:stawba inspections performed at the Catawba site April 30, 1984 are docu-mented in 475 NRC inspection reports (Unit 1-257, Unit 2-218). These reports document approximately 17,683 hours of direct inspection by a
forty-nine inspectors. s APPENDIX B d ASSURANCE THAT THE AS-BUILT CONDITION OF THE PLANT REFLECTS THE FINAL VERSION OF AN l ACCEPTABLE DESIGN i Petitioner's Allegation The petitioner alleges that there is a lack of design control at the Catawba site, that design documentation does not reflect the plant as designed, and that it is unclear whether that documentation reflects the as-built condition of the plant. The petitioner further contends that the findings and observations of the SelfInitiated Evaluation (SIE), and DPC's lack of appropriate response to the recommendations which emerged from the SIE, form the best argument in support of the peti-tioner's request for an independent design and construction verification program. The petitioner alleges that the system of Variation Notices used for controlling variations between the specific design of a system or structure and its actual construction in the field does not comply with 10 C.F.R. Part 50, Appendix B, Criterion !!!. l i 188 1 4 ) J' 'dP--r +e g &+- g-py ' swy --w - t"* -
- P
- g
i 7 Utility Self-Initiated Evaluation (SIE) General i
- ' The petitioner cites recommendations and findings from the SIE as the major basis to support its assertion regarding a lack of design control at t'he Catawba site. Petition at 6-8.
l By way of background,- the SIE methodology was specifically devel- ! oped by the Institute of Nuclear Power Operations (INPO) for nuclear power-plants under construction. The SIE evaluations are performed
- and managed by licensees. The evaluations are designed to examine and j - evaluate site construction activities in order to make an overall determi-
- nation of plant safety, to evaluate management systems and controls, 4 and to identify areas needing improvement. As a basis for the evalua-tion, the programs used performance objectives and criteria relative to j each of the areas examined. These are applied and evaluated in light of i
the experience of the team members, members' observations, and in-
- dustry practices. The expressed goal of the SIEs was to assist the affected
! utilities in achieving the highest standards of excellence. The recommen-dations in each area are based on best practices, rather than minimum
+ acceptable standards or regulatory requirements. Accordingly, areas where improvements are recommended are not necessarily indicative of unsatisfactory performance. The SIE program was carried out during } 1982 at all nuclear power plants under constrt'ction. The Oflice of in-spection and Enforcement issued special instructions to ensure an order-ly and thorough review process by the regional and headquarters' staffs.' Catawba SIE The Catawba SIE was conducted from September 27 through October j 14, 1982. Personnel conducting the Catawba evaluation were employed
. by Duke Power Company and the Tennessee Valley Authority. The .
I team leader for the SIE was e cerresentative from INPO. The SIE team j members were selected on tae basis of their experience in design, construction, and quality assurance. TVA personnel assumed lead re. sponsibilities for the review and evaluation of DPC activities. The team members from DPC had limited direct responsibilities for ongoing con-
- struction and design activities at the Catawba site. The areas to which
. they were assigned to review were those for which they had no direct in-
- volvement in ongoing activities. To prepare the team members for the l I Temporary instrucuon 2510/10
- Review and Followup of Untity self Evaluauon (Using INPO i Cntenal at Nuclear Faatines Under Conuruchon" ( Apnl 21.198h.
i 189 4 4 I 4 i I 1 . ?
evaluation, INPO trained key team members in the methodology of the SIE review. These key members then trained the other team members. The evaluation consisted of field observations, interviews, and review of supporting documentation. The licensee submitted the Gnal SIE report to INPO for review and evaluation; the NRC has complete access to the SIE findings. NRC was kept informed of the outcome of the evaluation performed at Catawba. The NRC Resident Inspector was fully aware of the SIE ac-tivities and was briefed regarding the results.2 A Region II-based inspec-tor was also briefed on the SIE findings during a design engineering in-spection on January 24-28, 1983.3 On March 1,1983, DPC briefed Region 11 management relative to the findings and recommendations of the Catawba SIE. On March 11,1983, INPO briefed the Commission on the results of the SIEs conducted at various plants. A Region Il team, composed of the resident inspector and experienced management personnel, was established to perform the onsite review of the SIE at Catawba. Region II Inspection Report Nos. 50-413/83-20 and 50-414/83-18, dated August 16, 1983, addressed the first special inspec-tion of the Catawba SIE. The review team, following a comprehensive examination of the licensee's status report on corrective action in com-parison with the SIE report, obtained further clarification and confirma-tion from DPC of the status of numerous selected items. In particular, the team stressed to licensee personnel the necessity for timeliness in completing the corrective actions, QA monitoring, and management review of the effectiveness of actions that were implemented. A number of specific items were identified to the licensee for followup by the review team.' NRC Region Il review team inspection followup activities have been completed. The team findings do not identify any systematic breakdown in the QA program at Catawba nor do the findings point to any practice which would have led to poor quality of construction or unsafe operation of the plant. The Region 11 review team concluded that proposed actions and schedules were appropriate for the nature and safety significance of the issues and that the SIE findings were evaluated appropriately for reporta-bility in accordance with 10 C.F.R. f 50.55(e) and Part 21. Several items 2 S,e inspection Report Nos 50 413/82 30 and 50 414/82 23. 3 See inspection Report No. 50-41). 41 t/83 02 4 see NRC Inspection Report Nos 50-413/83 20 and 50-414/8318. These items from ine slE report for Cata*ba were selected for followup action by Region II. DC.I.1. DC.I 3. DC 15. DC 4-2. CC 1 1. CC 3 I. CC.3 5. DD 3-6. CC.4-l. CC 51. CC 5 .1. CCJ 1. QP.4-1. TC 12. TC 2.3. and TN l 1. subsequent Region 11 reports that address followup of specific slE-identiried devgn and construction items are 50 413/8319. 83-35. 83-37. 8t.23 and 50 414/8317,83 30,83 32 and 84-14 190
N j-t I i , a l i , in the design control area, that were identiGed in the petition as problem
' areas, were among those identified for inspector followup.
i i Review ofSpecific Petition Concerns t l .The petitioner relies on a number of recommendations and findings i from the SIE report pertaining to design in support of the petition. Sec j Petition at 6-8. These findings concerned primarily such issues as track-ing PSAR commitments, defining responsibilities for providing design input, control of design information, maintenance and use of current,
; accurate system descriptions and diagrams, and correct application of seismic response spectra. DPC's evaluations and corrective actior:s ap-plicable to the SIE recommendations and findings are contained in the l SIE report, which is attached both to the petition and the DPC Response
{ to the petition. The DPC Response (at 5-18) also contains a summary of j DPC's position and actions regarding the SIE findings cited by the petitioner. J As noted above, Region il reviewed the SIE recommendations and , findings, including those specifically referenced in the petition. In sum, j the staff's review confirms the initial inspection findings that the SIE-
- recommended improvements would enhance the licensee's QA program i but were not indicative of any failure to meet NRC requirements. The !
l following information was established during NRC inspections of the . j SIE and highlights the staff's views on the items identiGed by the peti- ! i tioner in support ofits request. With respect to tracking PSAR commitments (SIE finding DC.1 1), i DPC had been informally tracking SAR commitments prior to the SIE.
- DPC has since developed and formalized a program for tracking all
, PSAR/FSAR and other regulatory commitments. A sampling of quarter-j' Iy SAR commitment listings issued by the licensee's design division d
licensing staff was inspected and confirmed the informal tracking of L SAR commitments. A computerized listing of all regulatory commit-ments has been developed. In the staft's view, there is reasonable assur-ance that licensee commitments have been and are being complied with. ,
- j. The NRC agrees that formalization of a tracking system for DPC Design l_ Division commitments would enhance the DPC QA program for design .
l control. { . The petitioner also cited SIE findings (DC.12 and DC.13) related to 7 l responsibilities for control of design information. During inspections in '
- 1983 related to the Design Engineering Department staff performance,
- Design Engineering Department personnel were found to be knowl-l edgable regarding their responsibilities for providing input information I-191 I
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4 i i to other Design Division departments. Similarly, they were also aware ! of the appropriate source ofinput information needed for their respective t { tasks. DPC Design Engineering Department document " Responsibility ' } Statements" defines organizational responsibilities including design 3 input responsibilities. The Design Engineering hianual contains design j input and interface responsibilities. The Design Engineering Department i- QA Nfanual contains procedures for controlling design information and ' transmittal of data. These procedures have been further enhanecd, sub-sequent to the SIE, to further strengthen the controls. j A number of the 'SIE findings (e.g., DC.1-4, DC.2-1, DC.3 3, } DC.4-3, DC.51) concern the currency of system descriptions. An in-i spection of design calculations and design documents in 1983 did not j identify the use of out-of-date system description information. During the inspection, it was determined that the licensee had verified the accu-j racy of thirty two system descriptions and was in the process of verifying j 'the remaining eight. To ensure that design calculations are not based on system descriptions, the licensee is instructing all mechanical system de-
- scription holders not to use it as a design basis. In addition, the licensee
{ surveyed various Design Division organizations to ascertain that out. of date system descriptions were not used as a primary design docu-ment. The statT concludes that there is reasonable assurance that out-of-date system descriptions were not used as primary design documents ] With respect to proper application of seismic response spectra (SIE j finding D.1-5), NRC inspections included verification'of correct applica-j tion of seismic response spectra.5 In addition, the licensee's activities regarding SIE corrective action in the seismic design area were inspected
- . and results documented. DPC originally had several procedures for vari-
! ous applications of the seismic response spectra. Subsequent to the SIE, f the licensee compiled all the spectra and all the procedures into one j design specification. An inspection of the licensee's Catawba structural design specification and specification for the response spectra and seismic I displacement for Category I structures confirmed the compilation of various existing design information and documents into a comprehensive specification. It should be noted that this compiled specification was j issued concurrent with the end of the S!E onsite efforts which indicates i that the revision to the specification had been initiated independent of i the SIE findings. It is the staff's view that the licensee previously had reasonably acceptable documented procedures and has further enhanced l its program by compiling them into one design specification. Verification i 4
$ jMDCCt Ort iteports. 50 413/83 02,83 22. 8).35 and 83 5t.
' 192 i I 1 4 f i t
4 4 1 I 1 of the correct use of the seismic response spectra is required by the inde-
; pendent design document verification requirements of the DPC Design Department QA Manual. Further verification is provided by the supervi-sor during the design approval process.
Summary ofNRCFindings Regarding SIE Region 11 inspections of DPC design activities provide reasonable assurance that Catawba's design meets the applicable regulatory require-ments. Where violations have been identified by NRC Region 11 or the licensee, NRC inspections have provided assurance of corrective action. The SIE findings related to the Design Engineering Department resulted in enhancement of several DPC Design Engineenng Department proce-dures and programs. The SIE did not identify any violations or deviations . from regulatory requirements. The licensee's Design Division management, including the Vice President for Engineering, has exhibit-ed an understanding of the SIE items and has been involved in the en-hancement programs. The DPC Vice President for Engineering has monitored the progress on these continuing actions. The NRC inspection of the licensee's design activities is a continuing i effort. NRC audits of DPC's design activities will be conducted, as it has in the past, on a periodic basis in accordance with the NRC inspection procedures. The adequacy of selected aspects of the Catawba design will 4 be further verified during preoperational testing. The Catawba preepera- ! tional test program is being monitored by the NRC. Lastly, certain other ! specific inspections of design-related activities, such as those for IE Bul-1 letir 79-02 and 7914, are continuing. Appropriate completion of these
; P :ommitments is required prior to fuel load Based on the above i n , inspections and evaluations, the NRC staff concludes that the
' .s from the SIE, relied on by the petitioner, do not justify the ac-i tions requested.
Variation Notices ! The petitioner alleges that Variation Notices (VNs) have been im-properly used from the beginning of construction as the method of con- ] trolling field variations from Design Engineering drawings and , specifications. The petitioner further alleges that no meaningful QA/QC revi-w of design changes evidently occurred until May 1.1974, when the ?roject Senior Quality Assurance Engineer became responsible for approving the QA aspects of variation notices; that design control proce-dure, remained inadequate throughout the decade; and that Variation ! 193 i a I 4
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Notices did not comply with 10 C.F.R. Part 50, Appendix B for design changes. By way of background, various utilities, architect / engineers, and con-struction organizations throughout the nuclear industry utilize a " Field Change Request" type of document as one of the methods to assure that Geld variations are approved by the proper organizational element and that the approved changes appear as revisions to the design drawings, specifications, and appropriate other documentation. NRC ex-perience shows that there is no uniform organizational and functional alignment throughout the industry that accomplishes this field change review, approval, and document change control process. Design changes must be controlled as required by Criterion III of 10 C.F.R. Part 50, Ap-pendix B. Many types of documents, by name or function, company or-ganization or contractual arrangements, are utilized to accomplish the re-quired control of design changes. The NRC monitors the process fre-quently to ensure an adequate understanding of the process and its effectiveness. NRC Review ofDPC Variation Notice System At DPC one form of a " Field Change Request" is called a " Variation Notice" (VN). DPC Construction Department QA Procedure R-3, "De-sign Drawing and SpeciGcation Variation," establishes the method for ensuring that field variations are evaluated and appros :d or reworked and that they appear as revisions to the design drawing, specifict. tion, or other documentation. Form R-3 A, " Variation Notice, is the form that is used to document the problem, control distribution, document the action to be taken, document completed action inspection, and assure engineering document update. The Project Manager, or his designee, is responsible for approving the technical portion of the VN for field use and assuring that the use of the VN requirements in the approval chain include reaching agreement with appropriate Design Engineering Depart-ment personnel and identifying the name of the design engineer giving this approval on the VN form. The petitioner's apparent objection (Petition at 11) that "all the paper-work from engineering to QA could be done in the convenience of office " fails to recognize that "in the office" is where the specifications, drawings, and records of design criteria, design changes and, possibly other VNs are available to the " design engineering con-tact" and the " responsible construction engineer" (terms used in the VN). The DPC Construction Engineer is responsible for initiation of VNs involving problems under his or her purview. The Construction 194
4 i i 1 i Department is responsible for distribution and logging of VNs. The Design Engineering Department is responsible for assuring that all i design changes meet design requirements and for properly making all re-quired revisions to specifications, drawings, or calculations. I DPC Construction QA Procedure Q-1 " Control of Nonconforming
- Items," referenced in Procedure R-3, establishes the method to report work which has been ;ompleted and is in violation of the approved j design drawing or specification effective at the time. Previously complet-
; ed work which varies in some respect from later revisions to design i- drawings or specifications may be reported on a VN in accordance with j Procedure R-3. The DPC procedure clearly distinguishes a VN from a Nonconformance Item Report (NCD. The licensee procedures in this ) area have been reviewed routinely during NRC inspections and found 1 generally acceptable.
J NRC inspections
- have confirmed that VNs have been controlled within the design control system by DPC. Prior to establishing the office i
of the Corporate QA Manager on February 1.1974 DPC had QA managers within the Mechanical Nuclear Division, the Civil-Environ-mental Division, the Electrical Division, Purchasing Department, Steam Production Department, Construction Department, and QA Division.
- The QA review of design changes was conducted within the appropriate design divisions and audited by the QA department. The overall QA pro-l gram and QA organization for design and procurement have been j regularly monitored and inspected by NRC for the Catawba project since
, 1973. The implementation and control of VNs, with respect to drawings l and specifications, have not been fo.M to be a significant problem i during NRC inspections. The change from having the " Project Engineer" (or others) responsi-ble for controlling VNs (or several other functions), as stated in Revi-i sion 7 to Procedure R 3 (April 21,1975), to the " Project Manager or
- his designee in writing" as stated in Revision 9 (September 17, 1976)
- was acceptable to NRC based on the designee being responsible and i qualified. A review of revisions to Procedure R 3 and the frequency of
} revisions indicates that the project was responsive to a need for maintain-ing quality control and did not restrict the Project Engineer.
; Copies of VNs have been sent to Design Engineering Department or
, the Vice President, Engineering, per 14.4 of each issue of R-3 refer-
- The followmg NRC Inspection Reports. for Catamba only. redect Region 11 reuew of deogn. NCI j and variation Notice control procedures and implernentation. 30 413 and/or 30-414. Report Nos
> 73 01. 76-3. 78-4. 7812. 80-09. 81 10. 80-12, 80-14. 80 23. 8101. 81-02, 8 t 03. 8100. 81 11. 81 14 81 15. 81 17. 81 22. 81 25. 81 28. 82 03, 82 06, 82 07,82 09.82-10. 82 12, 82 13. 82 24.82-23. 82 26. ', 82 27.82 29.82 31. 83 42, 83 44.83-17.83-18.83 19.83 20. 83 22.83 24.83 30.83 32. 83-35, 83 37 4 l 195 i 1 Y i i -
_ _ . __ -. _. ._ . . . _ _ _ m _ _
}
I
!- enced in the petition (Revisions 5, 7, 8, 9, 13, 17). The NRC staff has j
no objection to DPC assigning the responsibility to the Design Engineer-ing Department to evaluate problems for reportability as required by 10 C.F.R. Part 21 and { 50.55(e) or performing trend analysis of VNs. The l deletion of the requirement for reportability review by the DPC Con-struction Department by Revision 17 of Procedure R-J is acceptable to I the staff because R 3 is a Construction Department QA Program proce-dure and is not applicable to the Design Engineering Department. Design Engineering Department Procedure PR-290 and QA Procedure QA-121 control the items to be reviewed for reportability to NRC. Thuc, the petitioner's contention that DPC procedures did not adequate-Iy cover reportable items is not well taken. l The NRC is continuing to review the effectiveness of the DPC imple-j mentation of their procedural controls over VNs, NCIs, review and reportability of 10 C.F.R. Part 21 and f 50.55(e) items, QA approval of VNs, and design control activities. During the ongoing review of these items since 1973, the NRC has concluded that adequate measures hase been established and imamented to control these aspects of their program.' Staff Conclusions Based on the results of the implementation of the NRC inspection
~
, program, the staff concludes that the design control system at Catawba is an acceptable system, and the Variation Notice system meets regula-i tory requirements and has not been abused. Applicable findings of the i SIE were appropriately handled by DPC management. The SIE findings j were properly reviewed for reportability to the NRC. The SIE findings I and the results of the NRC inspection program do not indicate that j there has been a design control or QA breakdown at Catawba. ' 4 l 4 t i I i
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i P i APPENDIX C CHRONOLOGY OF SIGNIFICANT EVENTS Quality Assurance (QA) and Quality Control (QC) Organization l Development for Catawba Nuclear Power Plant ; 1 j The following is a chronology of significant events regarding NRC's ! review of the Quality Assurance and Quality Control Organizations of the Duke Power Company. Chronology of Events i ! February 1973 The initial NRC pre-construction QA inspection for Catawba resulted in a finding that the Con-struction Department QA manager is not suffi-ciently independent of construction costs and
, schedules as required by 10 C.F.R. Part 50, Ap-pendix B, Criterion I.'
I May 29,1973 NRC meeting with Duke Power Company (DPC) I to discuss the DPC QA program which shows QA
- personnel reporting administratively to a line or-i ganization and functionally to the QA organization. It was also noted at this time that l the Senior VP of Engineering and Construction was the aning Corporate QA Manager.
July 1973 NRC cor.pleted evaluation of the DPC QA pro-gram f. Catawba. NRC received a commitment j by DPC to fill the position of Corporate QA
- manager no later than July 1974. With this j commitment, the NRC found the DPC QA pro-i gram acceptable.
October 12,1973 The Safety Evaluation Report was issued by NRC. Section 17 discusses DPC's QA program and its organization to meet the program objec-tives. It recognizes the combination of Senior VP
- of Engineering and Construction and the Corpo-rate QA Manager into one position. It discusses i
IInspechon Report No $0-413. 41443.l. l 197 i s
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the distinction between the administrative and functional reporting relationships of DPC's QA managers. Pertinent conclusions are that: (1) "The DPC organizational structure
. complies with the requirements of Criterion I of Appendix B to 10 C.F.R.
50 and is acceptable." (Page 17-13) (2) "A QA st ff has been provided with ad. equate authority and guidance fcr the implementation of the DPC QA pro-gram." (Page 17-13) Additionally, the Safety Evaluation Report dis-cusses DPC's QC organization and states: "In the area of construction, we have reviewed the independence, responsibilities, authorities, and specific duties of the QC inspectors in the electrical, mechanical, welding, and civil disci-plines. Figure 17.6 shows additional details of the Construction Department QC organization. DPC has stated that these inspectors perform objective acceptance inspections and are full-time mspec-tors who are independent from the construction 4 and production craftsmen and foremen. DPC states that these inspectors have clear stop-work authority and the responsibility to refer problems to their supervision." (Pages 17 10, 17-12) The NRC staff concluded that DPC's organiza-tional structure was acceptable. The NRC inspec-tion program monitors and verifies that these commitments have been implemented. February 1,1974 The roles of Senior Vice President of Engineering and Construction and Corporate QA Slanager separated with the Corporate QA Slanager report-ing to the Senior VP of Engineering and Con-struction. April 2,1974 DPC reported restructuring ofits QA organization planned for Ntay 1974, with the QA organization reporting directly to the Corporate QA Nianager. 198
.- - . . . . - - . _ - - - - - .- -.. ~ ~ .__- - -_~ -, . -
i i l October 1,1974 DPC Topical Report DUKE-l on QA reDects the 1 QA organization established on April 2,1974, ! with the QA organization reporting to the Corpo-l rate QA Manager and the Corporate QA Manager reporting to the Senior VP of Engineering and Construction. { That DPC Topical Report on QA indicates that the QA organization reviews and approves QC in- { spection procedures and records. The pertinent i organization chart shows the site QC staff report-l ing directly to a Senior QC Engineer who is shown with a " functional" reporting relationship to the Project Senior QA Engineer within the . DPC QA organization. February 14,1975 DPC Topical Report on QA adds the commitment that QC inspector certification procedures and cer-tifications are approved by QA. , _ April 17,1975 NRC afGrms acceptability of DPC Topical Report on QA - Amendment 2 dated February 14
- 1975 - which continues to show the QA organi-zation reporting to the Corporate QA Manager
! who continues to report to the Senior VP of Engi-
- neenng and Construction I
- August 7,1975 Construction Permits issued for th: Catawba facility.
{ ! With respect to DPC's QA Program, the Atomic j Safety and Licensing Board states: After a careful consideration of the written and oral testimony and the replies to the Board's own questions i in this record, the Board finds that the QA program ] of the Applicant meets the requirements established ! by the Commission and that the full record shows i that the Apphcant is technically qualified to design and ! construct the Catawba facihty, i Duke Power Co. (Catawba Nuclear Station, Units - ! I and 2), LBP-75 34. I NRC 626,650 (1975). i } February 9,1981 DPC informed the NRC that the site QC stalT : ^[ was being brought into thd QA organization for both functional and administrative controls. , 199 ! i i l i 1
- - - _.= - . - . - - -- - - -- . - - - ..- .
i July 14,1981 NRC staff, by letter of July 14, 1981, reports ac-r ceptability of having DPC construction QC includ-t ed in the DPC QA organization. February 3,1983 NRC, in a letter responding to DPC's Amend-ment 6 to the QA Topical Report, continues to j affirm acceptability of DPC organization which continues to show QA organization reporting to < the Corporate QA Manager who continues to { report to the Senior VP of Engineering and a
? Construction.
4 , J APPENDIX D i EVALUATION OF CONTROLS TO PROCESS AND RESPOND
- TO NONCONFORMING CONDITIONS
{ Background This Appendix discusses the staff's review of the Duke Power Compa-
- ny's (DPC) management control systems used at the Catawba site to 1
identify and control deficiencies detected during the construction
- l process. Before proceeding, it is important to understand the distinction i drawn by the NRC between " deficiencies" and "significant deficien-cies." Appendix B to 10 C.F.R. Part 50 does not require the same level of consideration for all deficiencies that are identified by a licensee. Cri-l terion XVI of Appendix B requires the determination and documenta-i tion of the cause, corrective action, and management attention given to j those deficiencies only in the case where there are significant conditions adverse to quality. Criterion XVI requires that other conditions adverse j to quality [ note the omission of the term "significant") are promptly
) identified and corrected. I Also, because the petition raises issues specifically related to noncon-
! forming items, and to better understand NRC actions with respect to the measures established to control and respond -to nonconforming
} conditions, the American National Standards Institute (ANSI) Standard i N45.2.10 definition of a "Nonconformance" should be understood. The l ANSI definition describes a nonconformance as a deficiency in character- } istic, documentation, or procedure which renders the quality of an item
- unacceptable or indeterminate. This does not mean that all identified j problems are nonconformances or reportable to NRC. If the identified i
i 200 i 4 l I
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I e problem is of such a nature that it is judged to be correctable through j the use of the licensee's established QA program for corrective measures to bring the item back into specification, the item is not considered unac. , ceptable or indeterminate. Under these circumstances, minor problems i may be documented and corrected via an alternative mechanism as op-posed to declaring the item nonconforming. NRC has accepted this defi-nition and approach to problem resolution. See Regulatory Guide 1.74,
" Quality Assurance Terms and Definitions."
Typically, licensees constructing nuclear power plants establish several J management control and record systeras to report, monitor, and achieve correction of conditions adverse to quality, including significant i conditions. These control systems usually are multiple level systems and { can originate in several construction-related organizations depending on . the origin, nature and significance of the identified problem. In many
- cases, licensees use terms such as "Nonconformance Report" or "Non-
- conforming item Report" to describe that system which is used to manage the identification and correction of significant conditions adverse to wality.
i QA Procedure Q 1, " Control of Nonconforming Items (NCD," estab-lishes the DPC mechanism for documenting, control:ing, evaluating, 1 correcting and inspecting identified NCis. NCI reports are a part of the
- QA record files. The site records vault is under the management and i
control of the QA Department. Procedure Q-1 is one of approximately 166 QA procedures that implement the DPC QA program described in the DPC Topical QA Report, DUKE l. The Construction Department : 1 has ninety-one QA procedures, the Design Engineering Department has thirty two QA procedures, and the QA Department has forty-three QA ' procedures. Procedures similar to Q 1 are also used to document defi-i ciencies for specific work areas and related corrective action programs
- for construction, design, and QA work. The NCI system is one of the i mechanisms that has been used by DPC to document field-initiated j design changes since before the Catawba ce;,struction permits were issued in August 1975.
- For deficiencies that qualify as significant conditions adverse to
- quality, Criterion XVI of Appendix B requires that they be documented, j
a review be performed to determme the cause of the condition, correc. tive action be taken which prevents recurrence and that the issue be i reported to appropriate levels of management. Catawba's Procedure Q 1 i (Form Q l A or NCD was specifically developed to deal with this type of j significant deficiency. 1 As noted previously,10 C.F R. Part 50, Appendix B, Criterion XVI requires that conditions adverse to quality be promptly identitled and s 4 201 4 4 I l ] l . 4 f
i i corrected. Catawba's Procedure R 2 was written to meet the abose requirement. Form R-2A (Inspection Discrepancy Report) from Proce-dure R-2 is utilized at Catawba to document the identilication and cor-rection of minor deficiencies which are readily correctable, require no additional engineering design evaluation, and are found by the QC inspectors as a result of preplanned inspections. The licensee through its QA program conducts planned and docu-mented audits of all aspects of the Catawba QA program, including the several deficiencies control systems, to verify compliance with its program. NRC Review of DPC's Deficiency Control Systems Forms R-2A and Q-1 A are only two of the mechanisms utilized by Catawba to report deficiencies. When implemented properly, these mechanisms meet NRC requirements. The fact that the petitioner con-tends that the R 2A system is inferior to the NCI system has little, if any, bearing on the acceptability of Catawba's corrective action program. The R-2A system meets the requirements of Criterion XVI and the staff is satisfied that the Appendix B requirements are being met. NRC inspections at Catawba begani with a review of the QA programs for Design, Construction, and QA. Activities related to design control, design changes, QA organization and independence, QA manuals and procedures, quality of construction, vendors, document control, records, audits, corrective action systems, and other 10 C.F.R. Part 50, Appendix B criteria have been routinely inspected since 1973. The DPC QA Topical Report DUKE 1, was reviewed and approved by NRC as ap. plicable to Catawba Project prior to issuance of the construction permit. This has been discussed in detail elsewhere in this response.2 NRC has also reviewed and accepted six revisions to DUKE l over the years it has been in use. The NCI system and the NCis related to defects in specific compo-nents and systems have been routinely examined as part of the NRC in-spections implemented during the construction phase. The licensee has upgraded Procedure Q-1 at least fourteen times as of November 1,1983. Each revision has been reviewed by the NRC, and the control and evalu-ation of NCis by DPC have been observed to improve in some respect due to the revision of Q 1. DPC has made improvements to the NCI I See NRC inspecuon Report No 50 41). 414d31 2 se, Appen4, c, 39,. 202
= . . - - - - - .. - _- -. - - .- .,- .. .
i s
+
system based on findings by the NRC, by DPC's own QA audit pro-gram, and by the Self-Initiated Evaluation (SIE). In addition to determining whether the licensee's procedures are adequate, NRC inspectors routinely review nonconformance or deficien-cy reports to determine whether the subject records are complete, j legible, retrievable, and properly closed out. In conjunction with the rou- ' tine inspection program, a special regional Construction Assessment Team inspection was conducted at the Catawba facility on January
; 26-February 6,1981. This inspection is described in detail in Appendis A to this decision. The purpose and findings of this special inspection
- are also applicable to the concerns being addressed here.
j NRC inspectors are sensitive to licensee activities to ensure that QA functions are kept separate from line responsibilities of the Construction i Department. These inspections indicate that the Construction Depart-
- ment at Catawba generally performs the functica of correcting the defi-ciencies in the field. The Design Department evaluates and approves the
! corrective action when corrective actions go beyond Construction's au-j thority and capability. The DPC QA organization approves the adequacy i of the description of the deficiencies, the corrective action program, and
- the implementation of the corrective program, including the DPC rein-i spection program. Trend analysis is performed by Construction, Design, l and QA, each to meet its own responsibilities. The logging of NCis and l maintaining the status of Construction NCis is a function of the Con-
, struction Department. QA audits Construction *s work, deficiency correc-i tive actions, documentation, and trending. QA/QC verifies the corrective action taken by Construction. Verifica-tion by the QA inspector usually involves a hardware inspection. NRC inspectors have verified the adequacy of the files of completed and in-1 complete NCis and inspected to assure that the NCI system has been ad-equately maintained. These inspections indicate that the review and ap. 1 i proval role of QA over the NCI system has been maintained. j Staff Review of Petitioner's Concerns Relative to NCis The petitioner's view that QA violations were identified on "more in. formal substitute forms such as R 2As. M-4s, M 51s, VNs, and fre-quently mere interoffice memoranda . . ." is unfounded and inaccurate. The staff has found that the use of each of these forms (R 2As, M 4s, l M 51s, VNs) is controlled by a DPC procedure and the necessary correc-tive actions are documented through a controlled system. NRC review indicates that it is a practice at Catawba for interoffice memoranda, pre-pared by responsible engineers, to be attached to the above forms to ? J 203 i i i 4 !
t supply or refer to supplementary information. The above forms are not viewed as " informal substitute forms," since they are part of the management system to correct danciencies. As stated above, the DPC system meets Appendix B criteria. The petitioner believes that use of NCI trending lists (probably a refer-ence to status printouts) for "CONST [ Construction] Engineers to expe-dite the completion of their responsibilities for resolving the noncon-formance," provides a " chilling insight" into construction practices at Catawba. Based on NRC staff inspection Ond;c.gs, use cf ech lists has not been found to be detrimental to the adequacy of tr.: corrective action work, the inspection of the work, or the documentation of the NCIs. The specific concerns identined on page 22 of the petition regarding various heat numbers on pipe material and the apparent misunderstand-ing, or lack of communication, between the inspector and management have been reviewed by NRC inspectors. The NRC staff has reviewed the relevant QA records at Catawba and has found that the material was correct for the application. It should be noted that the pipe involved was a non-ASME Code piping system, and thus did not require heat number traceability. This matter was properly documented and corrected by DPC and the QC inspectors retrained. It was found to be an unfortunate circumstance that the two parties involved did not have a common un-derstanding of the problem and resolution. This lack of common under. standing resulted in further discussions that led to the comment "that the resolutions on NCIs were no concern of mine." The NRC staff has determined that the problem with heat numbers on the pipe was evaluat-ed and resolved appropriately and there was no effect on the plant hardware. See NRC Inspection Report Nos. 50 413/82 21, 82-32, 82 33, and 50-414/8219,82-30,82 31. The petitioner suggests, erroneously, that Revision 17 of Procedure Q-1 contains "the Grst requirement for a 10 C.F.R. Part 50, Appendix B, Criteria [s/c) XVI evaluation of each NCl." See Petition at 22. The re-quirement to document nonconformances under Criterion XVI, so that they are properly identified, evaluated and corrected, and receive review for significance for 10 C.F.R. } 50.55(e) reportability, has been in the DPC QA program procedures for Design and QA since 1974. This re-quirement and its implementation have been verified by NRC on a regu-lar basis. The Catawba site QA engineer is trained to review NCis and route potentially reportable items to Design if the NCI was not routinely marked to be routed to Design. Also, an NRC inspector has veriGed that procedures appropriate for 10 C.F.R. Part 21 reporting requirements were in the QA manuals for the Design Engineering Department, the 204
l Construction Department, and the QA Department and that appropriate training of the DPC staff was to be conducted with the annual training for the requirements of 10 C.F.R. } 50.55(e).) DPC implementation of NRC evaluation and reporting requirements have been periodically reviewed by NRC Region II inspectors during the course of normal in-spection efforts. The petitioner alleges that DPC technical supervisors took authority from the QC inspectors when the Q-1 procedure was revised from Resi-sion 11 (approved July 18,1977 - Petition Attachment 14) to Resision 12 (approved June 27, 1978 - Petition, Attachment 15). Sce Petition at 21, 42. Revision 12 is more definitive in its general and specific instructions; however, the responsibilities for technical duties by QC technicians is unchanged. Although the petitioner contends that the QC inspector was unrightfully " shackled to the Senior Engineer," NRC in-spection findings do not indicate that the inspector's freedom and inde- { j pendence to identify quality problems and verify corrective action to I those problems, was denied. The QC inspector is, however, required to use the proper procedural reporting mechanism. The corrective action system as described by Revision 12 to Procedure Q-1 is acceptable under NRC requirements. In the staff's view, technical supervisors did not take authority from the QC inspectors. With respect to petitioner's concerns (Petition at 21, 43) about QC inspectors being told what "not to write up" as a NCI and what to " sign off," it should be noted that the supervisor's normal responsibilities in-clude instructing and training QC technicians to provide a uniform, corporate interpretation of specifications and commitments being in-spected against. The concerns relative to NCis not being written up, as described in the petition, illustrate the occasional problem that occurs when QC inspectors provide their own individual interpretations of specifications, drawings, and procedures Occasionally, the supervisors may find it necessary to provide uniform interpretation of design, con-struction and QA requirements when such problems are encountered. NRC requirements and industry standards do not require QC inspec-tors to have the qualifications of graduate engineers, and the staffs ex-perience shows they seldom possess a strong technical design back-ground. Quite often the technical significance of deficiencies found during their inspections may not be clearly established without engineer-ing assistance whereby the appropriate identification and documentation method is selected (i.e., NCI systems for significant conditions adverse I 3 Sec NRC Inspecuon Report No 50 41). 4:4/731 (January 24.19781 205
to quality as opposed to 51-51C, N1-4A, R-2 A, etc., for other condi-tions). In the staff's experience, QC inspectors are conscientious indi-viduals who generally err on the side of conservatism (and are encour-aged to do so). Consequently, they may occasionally write NCIs for defi-ciencies oflesser significance which do not need to have a design evalua-tion and should have been classified as a minor deficiency, i.e., one that l is readily correctable with no additional engineering evaluation needed. l To provide better control of these unwarranted NCis,' DPC implement-l ed Revision 12 to Procedure Q-1 that required a Senioc Engineer review I all NCis to determine if the reported deliciencies were valid for reporting under the NCI format or if they were problems of lesser significance that could be handled by other existing in-process QA inspection procedures. As required by procedure Revision 12, the first review was initiated by the Senior Engineer (Supervisor or site QC) and,if he deter-4 mir'ed the NCI to be invalid, the reason for that determination was noted on the NCI form. This method of screening NCis to reduce un-warranted NCis and control the resolution of identified problems through other mechanisms has been reviewed by the NRC and found ac-ceptable. In NRC inspections, the staff found that the DPC QC inspectors at times were uncertain if their findings merited an NCI report and sought guidance from the Senior Engineer. If, after discussion, the QC inspec-tors could accept the Senior Engineer's rationale, the QC inspectors would often withdraw their written NCI and redocument the tinding by other appropriate QA mechanisms.5 By procedure, the valid or nonvalid NCI report was then forwarded to the Senior QA Engineer for his re-view. If the report was determined to be invalid, it was filed with no fur-ther action taken. Valid NCis were signed and dated, then sent to the document controllers for assignment of a sequential serial number. The petitioner implies that it is improper for Document Control to j issue sequential serial numbers only for approved NCIs. The staff finds no problem with the licensee issuing serial numbers for only valid NCis since those minor deficiencies initially reported as NCis but later de-clared to be nonvalid will be corrected through other QA procedures. l l l
- Wssive numbers of unnecessary NCis can mask important items. as was pointed out in Inspection Report Na 50 411 414/81 02. W hether as a direct resu't of this comment or for wme other reawn.
the imensee began to use R-2As more freauently for deficences not requiring eag neenng reuew 5 The NRC acknowledges there was testimoay presented at the hearmgs that enterned wme invahd weldtrg NCis *hich were not formally docur'ented by other appropriate Q A mechaetsms Testimony alw revealed that a DPC task force (accepted and momtored by NRC) imoroughty evaluated all sush concerns that were specific in nature for technical adequacy arid whether specific cntena were violated Although prrxedural uolanons were identified. no technwal inadequacies were found that affected the safety of the plant 206
There is no NRC regulation requirement to keep record copies of nonva-lid NCIs. Additionally, the licensee's QA program requires the conduct of planned and documented audits of all aspects of the Catawba QA program, including nonconformance control to verify compliance with the QA program. The NRC has determined that DPC has conducted trend analysis on NCIs in accordance with DPC procedures QA-150, QA-304, and CDA-9. DPC has not identified to NRC any reportable items as a result of this program. Several task forces were created by DPC in 1981 and 1982, to resiew the concerns expressed by DPC welding inspectors to which the petition-er refers. The Region 11 stalT and management monitored tre task force efforts and conducted an independent assessment of the concerns which included interviewing the welding inspectors, review of the task force reports, and reporting documentation. A more detailed description of the review process and findings are contained in the "NRC Staff Tes-timony of Peter K. Van Doorn on Palmetto Alliance Contention 6 Regarding Welding Inspector Concerns," which was Gled in the Catawba operating license proceeding. See also NRC Staffs Proposed Findings of Fact and Conclusions of Law in the Forra of a PartialInitial Decision, at 46-147 (March 8,1984). With respect to DPC's task forces, the petitioner suggests that it was inappropriate for NRC to allow DPC to address the issues raised by the welding inspectors through the task forces. In the Grst instana, the con-cerns of the welding inspectors were first brought by the inspectors to DPC management which, appropriately, instituted the welding task forces and retained the services of an outside consultant to enhance the objectivity of the review. The NRC expects licensees to identify and cor-rect problems and to respc.nsibly address any others brought to their attention. Indeed, the various regulations involving reporting require-ments make licensee identiGcation and evaluation of problems manda-tory in many instances. See, e.g.,10 C.F.R. s 50.55(e), Further, the NRC enforcement policy encourages licensee identiGcation and correc-tion of problems. For example, the policy provides for reduction of civil penalties for unusually prompt and extensive corrective action and the Commission will not cite a licensee for self identified and corrected sio- !ations of lesser severity. See 10 C.F.R. Part 2. Appendix C, ss IV.A. IV.B.1 & 2. Consistent with this regulatory practice, there is nothing inappropriate about allowing a licensee to conduct its own investigations into matters of concern and to develop and implement corrective actions on issues it has identified. 207 I
In connection with the above concerns, NRC inspection activities during the period referenced above included determining whether work-ers at Catawba knew of QA problems which had not been corrected. This inspection is described in detail in Appendix A. Workers were asked if they had any concerns relative to the quality of construction at Catawba; if they were aware of any instances when construction did not meet specifications, codes, or standards and corrective actions were not taken; or if they were aware of any day-to-day irregularities affecting quality that NRC should know about. Several of those interviewed men-tioned occasions where extra work was required to repair poor work caused by haste or improper planning. None of those questioned indicat-ed they had knowledge of any poor work that had not been found by QC and properly corrected. Two areas of concern were developed, however, neither dealt with welding problems as implied in the petition. Both were subsequently inspected and resolved by the licensee and serilled by the NRC. It has been made known to DPC employees, dunng numerous NRC inspections conducted since 1978 and via bulletin board postings, that NRC inspectors were available to discuss problems either on site or off site. The Region !! telephone number has been permanently posted to facilitate reporting safety concerns or allegations. The first NRC Resident inspector was assigned to the Catawba site in February 1981, and has been available to receise concerns or allegations from DPC and contrac-tor personnel. Staff Resiew of Petitioner's Concerns Relatise to the F 2 Systems The petitioner raises specific concerns relatise to the s anu handhng of R-2As. These concerns are:
- The R-2A system being used to report i.isp- .m defic:encies at Catawba is deficient (inferior) when compared to the NCI (Form Q-1 A) system.*
- The SIE report found areas of weakness with the R-2A con-struction corrective actions.
- In the past, Catawba has been criticized for having "too many NCis" by the NRC.
- Althoug'1 the pentioner ulis the R-2 4 sv stem IPrmedure R 21 deferior to the Nci ostem IProcedure Q 18 for handlics nonconforming condenons, the peonocer appears to users a saouactory ihe measures provided bv Procedure R.2 On page 26 the pention wates it]he ictit6m20 of Ibc R-2 %
as a subsatute for NCis depends not so much on its proudural flaws but en its implementanon
- 208
- Workers have reported to G AP that the R-2As are used liberal-ly by both QA and Construction to legitimize construction that pushes ahead of QA/QC inspection.
- The R-2A (Inspection Discrepancy Reports) goserned by the R-2 procedure is used on the bulk of nonconformance items.
R-2As remain under the control of Construction correctise ac-tions were not required to be documented and an indetermi-nate number of nonconforming conditions may hase beea cor-rected without trending or appropriate reviews. The following discussion should clarify the areas of the R-2A process that the petitioner alleges are deficient when compared to the NCI system. The areas in which the petitioner contends that the R-2A is deti-cient compared to NCis are listed below with the staff's response. e NCis identify the cause of the problem. Part 50, Appendix B, Criterion XVI requires that the cause of the problem be identified for sigmfcant conditions adverse to quality. However, R-2A-type problems, which do not rise to the level of significance described by Procedure Q-l. do not necessarily require cause determination and documentation. R-2As are reviewed to determine if they should be elevated to NCI status. e NCis cannot be closed with an informal undocumented Jesan change. By Procedure R-2, any deficiency that requires design evalua-tion, other than interpretation, classification or editorial changes, must be elevated to an NCI. Therefore, an R-2A should not be written for any deficiency requiring a design evaluation. The NRC inspection findings hase not identified an abuse of the R-2A system in this respect. e NCis give inspectors the abHirv to stop work on a nonconformmy item that needs to be isolated. This statement is true, and the practice is necessary because. by definition, an NCI may be an unacceptable or indeterminate item requiring design resolution which generally takes some time to resolve. An R 2A, however, is to be used for minor deficiencies (whict are, by definition, readily correctable) that are found during in-process inspections and that can be brought back into conformance with codes and specifications by existing site QA procedures. If a stop-work action should be necessary for an R-2A deficiency, the R-2A item should hase been elevated to a NCI. 209
e NCis are sent to the NCI (sic)for renew. The petitioner contends that the R-2A is delicient from NCis in that NCis are sent to the "NCl" for review. We pre 3ume that the petitioner intended to say "NRC" instead of "NCl.' It must be clearly understood that NCis are not required to be sent to the NRC. This was a special arrangement that the NRC Senior Resident Inspector requested and to which DPC agreed The requirement is that DPC have a nonconformance contrci program, implement that program and that the program be available for NRC review. Special arrangements for the R 2As were not requested. NRC inspection program tindings reflect that DPC has satisfactorily implemented the R-2A program.
- NCis are trended in QA.
R-2As were trended in accordance with Procedure QA-304 from September 12, 1977 to December 8,1982. Construction was given the responsibility to trend R 2As (Procedure R 2, Revision 8) on June 22,1982, and is now trending them. DPC QA audits Construction's trending actisities.
- NCis have control numbers (once issued).
R-2As have had control numbers (serial numbers) since November 25,1974 to the present.
- NCis require aritten resolution.
Any documented R-2A condition also requires written resolu-tion; it is true, however, that any minor R-2A-type deliciency identitled during an inspection, that is immediately corrected when pointed out and corrected in the presence of a QC inspector, need not be documented on Form R-2 A. "Undocu-mented" R-2As, which are immediately correctable by eusting site procedures, are documented to the extent that the final signed QC inspection record indicates acceptance of the item in question. The petitioner quotes from page 43 of the SIE report which identities live areas of weakness with respect to the R-2A system. See Petition at
- 23. These areas are listed below along with applicable clarifying comments.
- Construction has not performed any trend analysis durme the periodJune 1,1982 through August 23.1982for R-2As.
This was a valid finding of the SIE. The responsibility for per-forming certain trend analyses changed from QA to the Con-struction Department in June 1982. The Construction Depart-ment tock time to develop a satisfactory implementing proce-dure (CDA-9 Trend Analysis Procedure) to conduct its trend-210
I ing. Construction now trends NCis (Q I As), inspection deG-ciencies (R-2As), component support information records (SI-51Cs) and other items deemed necessary by management. These de6ciencies are analyzed to detect generic problems and the results are forwarded to the Catawba Project Nianager. NRC inspections show that DPC QA continues to trend NCIs and they did trend R-2As up until December 8,1982. There is some trending overlap in these areas. e Construction has not performed any trend analysis of QA surred-lance reports. The licensee's QA program requires that the QA surseillance group report its problems as either NCis, R-2As or as a prob-lem area requiring further evaluation. As mentioned above, both R-2As and NCis are trended by Construction. The third category of problems either gets resolved with further evalua-tion as not being a problem or eventually ends up being trend-ed by Construction as an R-2A or NCI problem. In etTect, Con-struction does trend QA Surseillance Reports. Additionally, al-though not formally identiGed as a trending mechanism, the DPC Surveillance Supervisor has been preparing monthly Sur-veillance Summary Reports since February 1982, which are dis-tributed to the Project QA Nianager, the Senior QA Engineer, and the inspection Superintendent. These reports, some et which have beca reviewed by NRC inspection personnel, sum. marize the Gndiags of I month's accumulation of surseillance activities, highlighting problem areas, discrepancies noted, and followup action required as needed. Additionally, the reports list the status of previous monthly surveil lance open items that required followup action. e Construction has not performed any trend analyses on nonconform-ing items reports. While Construction did not perform NCI trend analysis during the period of change in responsibility, the DPC QA Depart-ment continued to perform this function and still does for NCis, independent of Construction trending. It is the NRC staff's view that the licensee had adequate control and access to trend behavior during the transition period.
- Statement of action on R-2A No. 5677 Joes not address all areas of concern. Pipmq system nas pressurt:ed prior to release to hydro 211
group. R-2A Jid nor address procedure violation or safety implications. DPC Construction Procedure CP-201, " Transfer of System to the Systems Group for Cleaning, Pressure Testing and Control of Work," was not complied with in this case. The subject ' R-2A concerns work which was performed on a nonsafety-related section of a fire protection system. Esen though the system was not safety-related, if QC nnds any requirements not being followed they will write it up as they did in this case. CP-201 required various construction checks to be performed and documented as acceptable by the crafts (primarily for per-sonnel safety) prior to the system being turned oser to the Sys-tems Group for pressure testing. QA/QC does not inspect pres-sure testing of nonsafety fire protection systems; however, QC does perform a general configuration verification of such systems. Apparently, while performing the configuration system inspection, the QC inspector discovered the system had already been pressure tested by the System Group without ob. taining a CP-201 release for the system. This is a siolation of a DPC internal construction procedure, but it is not otherwise a violation of any code or NRC regulatory requirement. e Action required on R-2A No. M5350, although cleared by Q4 has not been completed. In this case, an auxiliary feedwater How diagram (which is the basis for design but not for construction of a system) and the pertinent design isometric (the basis for construction of the system) disagreed as to the position of piping taps for instru-ment connections. When the construction technical support staff contacted Design for a clarification as to which drawing was correct, Design stated that they had already diseosered the subject flow diagram was in error and had issued a change order to revise the flow diagram drawing. As it turned out, the system had been constructed properly but, based on the tele-phone conversation, QA had inappropriately closed this R 2 A without verifying that the subject flow drawing corrections had indeed been incorporated on the drawing.
- The R-2A system allowed construction to push ahead of construc.
tion Q 4IQC inspections. If properly implemented, the R-2A system would not permit construction to push ahead of QA/QC inspections. The R 2A form requires initials and dates for the indisidual who specifies the corrective action the person who completes the correctise action, the QC inspector who reinspects the correctise action. 212
l i The system also requires Gnal review, approval, signature, and date by project QA staff. Without these authentications (initials, signatures and dates) being completed, any construc-tion that pushed ahead of documented R-2A Ondmgs would be discovered and elevated to an NCI condition. (This discrepancy would represent a bypassed inspection hold point.) For a non-documented minor R 2A-type discrepancy the correction action must be completed immediately under the obsersation of the QC inspector. Therefore, unless the crafts and/or QC knowingly circumvents the R 2 procedure, construction should not push ahead of QA/QC inspection. The NRC inspec-i tion program Gndings do not substantiate that there base been signincant violations of the R-2 system. The SIE Ondings on the R 2A system are, in the stalTs view, of minor importance. The findings and recommendations of the SIE were ap-propriately handled by DPC and the matters identified have not had an impact on plant hardware. I The petitioner also alleges that the R-2A (inspection deficiency reports) governed by the R 2 procedures is used on the bulk of noncon-4 forming items. Until the implementation of Revision 12 to the Q-1 procedure (June 22, 1978) and its required review of NCIs for validity, the vast majority of discrepancies (minor and major) were reported. i evaluated and processed under the NCI format. Just prior to implemen-tation of Revision 12, there were reportedly 3287 NCis issued sersus 52 R 2As, or a 63:1 ratio. In February 1981 (NRC Inspection Report No. 50-413, -414/81-02), NRC inspectors noted that a large volume of NCis had been generated as of that date even though the NCI to R-2A ratio had been reduced to approximately 8:1. This ratio was obsersed by the NRC to have further declined to about 0.3:1 during the period between February 1981 and October 7,1983. While the petitioner claims correctly 1 that R 2As were used on the bulk of deGeiencies identined during the February 1981 to October 1983 time frame, a ratio of 3 minor deGeien-cies (R-2As) to 1 major deficiency (NCI) is not inappropriate in light of ; NRC experience with other facilities under construction. It is true that, in the past, some NRC inspectors have been critical of Catawba for writing "too many NCis" for problems which could have been resolsed as minor deGciencies under other existing DPC site QA 4 procedures. In NRC Inspection Report 50-413, -414/8102, N RC inspec-tors noted that an apparently large solume of NCis had been generated i at the site, averaging nearly 300 per month over a past 7 month time frame from July 1980 to February 1981. The subjects cosered by these i 213 i
NCIs ranged from relatively minor documentation problems to major problems with safety related hardware. This large volume of all types of problems being handled in the same manner was pointed out to DPC management by the NRC as a possible contributor to the reason why some generic items and/or trends were apparently going unnoticed. Several NCIs were cited as an example of the condition, and DPC was issued a Notice of Violation for generic items (trends) being neither recognized nor forwarded to management. In response. DPC performed an extensive review of past NCis to check for missed trends, proper definition, and appropriate corrective actions. NRC finds the DPC cor-rective action on this matter to be adequate. Generally, the vast majority of deliciencies recorded by licensees and those observed by NRC inspectors are of minor safety significance. DeG-ciencies are usually correctly classiGed according to safe:y significance and priorities, and remedial actions are generally guided by the classifica-tions of the deliciencies. The staff concludes that construction deficien-cies at Catawba are generally classified appropriately. Although there ware examples identified in the SIE where R 2A-type discrepancies were improperly disposed, these were few in number, representing a small percentage of the total R 2 As recorded at Catawba through mid-1983. The NRC staff has found, with few exceptions, that the DPC system for control of construction deficiencies has functioned adequate-ly. NRC inspections of construction activities will continue throughout the remainder of the construction period; where appropriate, the re-quired evaluatior.s will be made and, if necessary, enforcement actions will be taken to ensure compliance with NRC requirements. Staff Review of Petitioner's Compathon of Catawba to Midland On page 20 of the petition, the petitioner asserts that the nonconform-ance procedure (Q-1) for Catawba, Revision 9, dated June 11, 1976, bears a striking similarity to the situation discosered at Slidland. NRC staff review of tais matter has determined that there is no parallelin the handling of nonconformances at Slidland Nuclear Plant and the Catawba facility. At Niidland, QC stopped inspection activities while permitting work to continue, whereas under Catawba's Procedure Q-1, work on nonconforming activities was stopped and documented while QC inspec-tion continued for those activities allowed to proceed. In October 1982, the NRC Region III issued Consumers Power Company a Severity Level 111 violation for QC inspectors not document-ing as nonconformances all deficiencies which they obsersed c the Slid-land Plant based on information developed by NRC inspectors and f 214 4
i t investigators. In this case, Niidland QC supervisors instructed thetr QC inspectors to suspend an inspection if an excessise number of deficien- . cies was observed. Consequently, measures were not implemented at i Niidland to prevent the continued installation or the use of these non. conforming items. Storcoser, when an inspection was suspended before its ' completion, there was no assurance that a subsequent complete QC inspection was eser performed on the defective item, component, or structure involved. NRC inspections at Slidland indicate that reexamina-tion of suspended Niidland inspections disclosed that for a period of time some of these QC inspections received final QC acceptance and clo-sure based only on reinspection and acceptance of those limited deficien-cies identified prior to suspending the inspection. The petition quotes the following section taken from Procedure Q 1, Revision 9, dated June 11,1976 (Petition Attachment 14h if a nonconformance is adentified on materut, equipment, or activtties in the course of installation or construction, the nonconforming activities or activities which alTect the resolution of the nonconformance shall be stopped and not resumed until I the resolution of the nonconformance is identined. Actmties involsing the material, equipment, or item which do not affect the resolution of the noticonform. ance may continue. The Project QA Staff shall be responsible for determining whwh , activities may proceed. Where necessary, thew actmtics shall be described in the T statement of the nonconformance. l The petitioner states that the procedure allows suspended inspections t and that the undesirable consequences that happened at blid!and could also occur at Catawba. The NRC staff has reviewed this procedure and finds it to be an acceptable mode of construction nonconformance con-trol and is in accordanc with NRC requirements Further, j 16 of ANSI N45.2, applicable to Catawba, states " measures which control further processing, delivery, or installation of a nonconformance or defectise item pending a decision on its disposition shall be established and maintained." The petitioner contends that Catawba QC inspectors base performed limited inspection of items after in NCI was issued but has provided no examples to substantiate the contention. NRC does not believe, based on inspections and investigations into employee concerns to date, that inadequate inspections (similar to Alidland) were per-formed. At Catawba, work on nonconforming work activities was stopped and documented while QC inspection continued for those work . activities which were allowed to proceed. f i 215 l
.- _ _ _ . _ - , _ . - . _ - --. . _ . . - _ . - . ~.
i 5 A 1 j APPENDIX E ANALYSIS OF SIEASURES ESTABLISHED TO PROVIDE ADEQUATE SIATERIAL TRACEABILITY TO IDENTIFY AND i i DOCUSIENT THE HISTORY OF ALL SIATERIAL, PARTS. j COhlPONENTS, AND SPECIAL PROCESSES 1 I General ; I' Relying on findings from the Self Initiated Evaluation (S!E), the peti-tioner alleges that Duke Power Company (DPC) failed to maintain ade-
; quate material traceability to identify and document the history of j materials, parts, components, and special processes as required by 10 j C.F.R. Part 50, Appendix B, Criteria Vill and IX. Petition at 26 27.
At Catawba, procurement, reedving and storage, identification and i control of special processes, and QA records have been periodically in-spected in accordance with the NRC inspection program by the NRC Region II inspection staff since the beginning of NRC inspection of con-i struction activities.' These routine inspections covered veri 0 cation of ; DPC's QA program for control of the abose areas as required by 10 C.F.R. Part 50, Appendix B, Criteria Vill and IX. The NRC inspections covered, in addition to verification of the QA program, the implementa-j tion of the control program through work observation and review of completed records. The NRC inspections encompassed the major site ac. } tivities of the licensee and other site contractors. The NRC staff has also reviewed and evaluated the complete SIE report for Catawba, including } those items specifically identified by the petitioner. i NRC Staff Review of Specific Concerns by Petitioner i i The petitioner points to six findings and one questionable area from I the SIE report.2 The following is a summary of the staff's review of the , significance of each SIE finding referenced by the petitioner. The correc-j tive actions proposed by DPC relative to each SIE finding are contained
- in the SIE report appended to the petition, i
i i i See NRC Inspection Reports $0 II) 4 8 4/ 79 6.10 41). 4 f 4/'6 7. 30 4l). 414/ *6 $. !0 4 t ) 414/?6 4. 30.41), 414/7719. 30 41). 414/77.11. 50-41) 414/1710, 50 413/'l-11 anJ $0-414/7010, , 10-41). 414/?9J)$. $0-41). 414/79 04 50-41), 414/7912. $0 48). 414/?916. 50-41). 414/20 l). f
$0 41). 414/$102. 30 41). 414/8123, $0.41)/8318 and 50 414/8216 !
i The referenced sir findmss are numNred cc 3-1. Cc 3 2. CC 31. (C 14. CC ).$. cc 14 and r mav be found in the slE report si 30 and the queumn4tHe area may be (wml at 12. item $ i [ t 216 1 1 J
I l
- Site receipt inspection dxs not ensure that material and equipment receised on site are evaluated against the requirements of the procurement spcotica-tions. Examples of the problem may potentially result in dela>s, *aste of matertals, additional time spent on disposition of desiations from prosurcJ materials and work stoppage.
(Finding CC.31.) The petitioner infers from this and other SIE Ondings that materials traceability has broken down "on a massive scale ' Peti-tion at 26. This particular SIE finding renects matters of primarily economic concern, i.e., the efGeiency with which DPC handles receipt of materials. The SIE finding does not indicate that substandard material has been used or installed at the plant, and NRC inspectors hase not de-veloped information that DPC's material receiving practices hase led to problems that would alTect hardware quality, personnel safety, or safe operation of the plant.
- A consistent method for material identincation was not in effect in the warehouse. Several instances were noted
- here i D tags had falten otr equip.
ment was marked with ink. and when material was being sestionalized to start fabrication, a means for maintaining the identiGeation was not Scing done (Finding CC.3 2.) Safety related equipment is marked in accordance with Stanufacturers Standardization Society Practice 25 (StSSP25), American Society of Testing and Staterial ( ASTN1), or American Society of hfechanical Engi-neers ( ASSIE) requirements. The paper tags which had fallen off of electrical equipment were not being used for material traceability. Also, as identiDed in the SIE, the galvanized angle material being sectionalized by the fabricator contained the proper ASTSI color code. Part 50, Ap. pendix B, Criterion Vill, allows ident:0 cation of the item either on the item or on records traceable to the item. NRC staff esaluation found that no material had lost its traceability. Therefore, no violation or desia-tion occurred in the incident cited.
- Proper protectne measures were not taking place for environment tiv senvine equipment that was '* robbed'* for spare parts Some parts were being store j in an open door instrument cabinet.
(Finding CC.3 3.) The particular item of concern identined by the SIE inspection team was a 24 kV circuit breaker. The circuit breaker was not a safetprelated item and had been ordered as a spare circuit breaker for the SicGuire facility. This circuit breaker was later transferred to Catawba and dis. anembled by the Transmission Department and the parts placed in their 217
warehouse. These breaker parts were not intended for use at Catawba. The NRC has verified adequate warehouse and in place storage facilities throughout the Catawba construction period for equipment important to safety. The NRC has also verilled that effectise measures base been es-tablished and implemented to environmentally protect equipment in the warehouse and power block.) No violations or deliciencies were identi-lied in this area during these inspections.
- Procedure QFP.8 002 C.NS. Rev 1 A. does not indicate the disposition or unused filler material. Confusion appears to esnt regarding handhng or unused filler mater:3i and adherence to A% $ sude requirements could not be determined.
(Finding CC.3 4.) NRC has reviewed Bahnson Procedure QFP 8 002 CNS. Ret IA, which controls the issue of welding material in the HVAC fabrication shop. Almost all weldmg in the fabrication shop is performed by the Nietal Inert Gas (NilG) process. This type welding filler material does not contam a low hydrogen coating, and therefore, rebake requirements are not applicable. The NRC resiew of procurement, receipt inspection, review of certilled material test reports, issue, and control of welding filler material has serified compliance with DPC approsed procedures
- Correction of the SIE identitled weakness observed in the referenced procedure and appropriate instructions to DPC personnel hase been JC-complished by DPC.
e Nf aterials are not being maintained or stored eifectnely as work site insations seseral eiampics were noied w hwh reflected improper control (Finding CC.3 5.) This concern, insohing in place storage, was identified during the l SIE. It dealt with a single piece of 4 inch stainless steel pipe in contact with rusty carbon steel rollers and end caps missing from pipe spool ', CT SSt 73 in the Catawba turbine building. Aho, during a walkdown of the turbine buildmg, it was observed that three salves were welded up on one side and left uncapped on the other. The cumple of end capt missing from pipe spool CT SNI.73 is normally outsnie the pursiew .if the NRC in that the turbine building piping is not required to corrrily 8 w sat immimn mm.ri <o 4:><ts.is ana us sis,i in. so ai3 si.:1,,a io ai .e.i.:i 4 w s p c gyp,,,,, gggg, 9, 4; jf g j 1, ,,3 g4 4 g 4,q g, g i 21M
with 10 C.F.R. Part 50 Appendix B, because it is not a safety related structure. The staff has concluded that the other examples discussed in the SIE report are isolated instances. This view is based on a lack of simi-lar problems being discovered during NRC inspections in the same area outside of the SIE followup effort. in view of the inspection findings,' which indicate a relatively small number of violations or delicienenes in this area, there has not been a massise breakdown in this area e Scheduled preventive maintenance activities on installed equipment are noi always assured throughout th* entire period of Construstion Department ca.itrol Equipment was identified for which presentne maintenance 'us been cancelled up to 21 moniht ago, and there was not evidente that compensatory requirements had been established (Finding CC.3-6.) NRC inspectors have reviewed the Catawba storage and presentne maintenance activities.' These inspections indicate that an adequate maintenance program has been established to present equipment deterioration. The NRC belieses the examples identified during the SIE are isolated cases and are not of sufficient dimension to raise serious doubts as to the overall integrity of safety related structures and components. DPC has performed a review of its presentne maintenance program in view of the SIE lindmgs to ensure that plant equipment is ad-equately maintained during construction. Additionally, a comprehensac preoperational test is conducted on safety systems prior to plant opera-tion to help serify that components base not experienced unacceptable deterioration during the construction phase. I e During a review of So 10 Cadeeld opersison in the Auuliary Itudding. is *as j icarned that the Cadweld sleeses and powder het not been retencJ by QC Receiving These items were received from another une as nonauiar aemt i and the QC intrestor nas not aware of the litteen $l144 sleeves until nonfied by his superusor The work was stoppeJ l l (SIE at 32. item 5.)
- NRC inspections' confirm that written procedures were placed into effect and measures established to control materi,,. transfers from other DPC sites. In addition to receipt inspection, other measures were estab-l lished to control the acceptance of material used in Cadweld spin,es
< v, n,ae i . . n *u
- 1s 9sitC (*spes hon ile;*oni M 41)tta il a4 3u die to l) to 4 i J < t 1. ) ? a u m 4 l 4< t 1. i }
219 l
- _- .. . __. _ = .__ ____ . .-. . _.
3 i l l' Catawba Procedure M 14. "Cadweld Splice Inspection Testing." Revi-sion 6. covers control of materials receised from another DPC site by virtue of its requiring QC to verify that qual:Ged materials were used subsequent to the fabrication of the Cadweld splice. The QC inspector is required to compare the Cadweld sleese t>pe, size, and the powder batch type with the release log information developed for the specilie type of Cadweld. The NRC inspections do not indicate that there has been a massive breakdown in the Cadweld operation at Catawba. l
, Based on a resiew of the NRC inspection program undings, the eum-plcs presented in the petition and discussed above do not indicate a mas.
sive breakdown in QA relatise to materials traceability at Catawba. l t i APPENDIN F ' I ADEQUACY OF QUALITY ASSURANCE PROGRAM FOR VENDORS j The petitioner alleges that DPC has failed to maintain ,in adequate quality assurance program for sendors. To support this position, the pett-tioner references Ondings and recommendations included in the DPC j Self Initiated Evaluation (SIE) report These findings and recommenda. tions are given as cumples to illustrate serious weakneues in the sendor program. -j Hackground The licensee contracted with Bahnson Service Company Wahnson) to provide the heating, sentilating, and air conditioning system filVAC) j for the Catawba auxiliary building, reactor building and other facilities i on site. DPC prosides for the general arrangement - i.e., location eleu- < l tion - of the equipment and duct work, installs the major equipment, i i performs the seismic analysis of the Bahnson designed duct work and l ) supports,. approves the Onal design, and provides QA surveillance of I i Bahnson's work. Bahnson provides project management, shop and Geld i drawings, fabricated duct work and supports, and QA/QC for the fabrica. tion and installation work. The contractor will also conduet the startup, testing and balancing of the installed llVAC system. The controlling document of the llVAC contract is DPC Specification No. CNS 12 tl.00 05, "lleating, \ entilating and Air Conditioning for l ) 220 I 1 i k
Catawba Nuclear Station." Quality assurance requirements for ' Sis eon- , tract are implemented tnrough policies delineated in Bahasctn QA Stanual. Quality control is implemented through procedures contained in the Bahnson's Quality Field Procedures (QAF) Stanual. The American Welding Society Structural Steel Code (s) DI.I and DI.3 are applicable to fabrication and inspection of flVAC duct work and supports. Welders are qualified in accordance with j IX of the ASSIE Code. Other related commitments applicable by reference include j Appendix B to 10 C.F.R. Part 50 and ANSI N45.21971, " Quality Assur-ance Program Requirements of Nuclear Power Plants." Surveillance of Bahnson is conducted by DPC IIQ Vendors Division. Prior to Augast 1981, surveillances were performed by th: DPC site QA organitation. The Catawba !!VAC system has been inspected at various times by Region 11 inspectors. These inspections have insolved system hardware, interviews with contractor personnel, observation of work m progren and other areas such as purchase orders, QA/QC program implementa-tion, QA surveillance, record review and esaluation.' Three violations, involving r,2 cord discrepancies and inadequate QC procedures were identified. The resolution of two violations identified in Inspection Report 50 413/S3 36 is still pending. These siolations are considered to have minor safety significance. The licensee has submitted and the staff has reviewed the proposed actions for correcting and presenting the recurrence of the violations. Preliminarily, the proposed actions appear to be technically sound and appropriate. While the NRC staff has not yet performed the necessary followup inspection required to close out these items, inspections are scheduled and will be completed in accordance with programmatic requirements. j Review of Specifle SIE Concerns identified in the Petition The following discussion addresses these SIE findings cited by the petitioner; i
- No wekter knew the eeld proseJure under whi6h he was worus (CC 44 si
- All me!ders knew required evid ute and to(4 tion, but did not know how they acquired that information ICC 4dBi
- No protest control was avaiidhle to speufy the *cidmg prosedare for plenum erection (from Dr3*mt CN.1644.% &rmit Res On ICC 4dCl
- Welder was makirig weids eithout ter%=mg galvanisms m.iterial ICC 4dD#
' Details of these inscestmns are humenieJ in %1tr in,pestmn fler..ri %s 40 di) t+0A id-4:li40.l j, 90 411/42 l), lo di),82 f t.10 41)/12 II. and 40 41),1).36 I
221
e llVAC support Lil VC-4999 had unaereut in esecss or that aito*cd f*y Aw s D t.I code. ICC.4 5E) DPC's evaluations and corrective actions associated with the recom-mended improsements associated with the abose SIE findings are con-tained in the SIE report appended to the petition. NRC inspection Ond-ings regarding DPC's esaluations and correctise actions are summarized in the following paragraphs. NRC inspection activities at Catawba have included the reuew of per-formance qualificat;on records of welders. Performance qualification records of welders, selected at random for review in accordance with NRC inspection procedures, were found to comply with applicable code requirements. The stalT belieses there is reasonable assurance that the weldmg on the HVAC system at Catawba was performed by quali0ed welders. This Onding is consistent with the Ondings of the SIE report. Appendix A, at 167, j lit. A. The NRC has resiewed the Onding that no welder knew the weld procedure under which he was working and that all welders knew the re-quired weld size and location, but did not know how they acquired that
- information. This finding may be true and to some estent understand.i-ble when the nature of the fabrication of the HVAC system is taken into consideration. For the most part, the llVAC duct work is fabricated in the fabrication shop from 16 gauge, galvanised sheet steel The material is formed into the desired shape and subsequently welded, inspected and then taken to the plant for installation. The abose process is con-trolled by approsed design drawings, speci0 cations and procedures, con-sistent with applicable code requirements. This uniformity of material t)pe, size and the repetitiseness of the product shape is almost identical to production line-type welding where a single repetitive, routine weld-ing process is used and the difficulty of joint fabrication is minimal.
Under these circumstances it is not uncommon for a welder w ho is quali-Ged to that single process, and uses it regularly, to not be fully informed about the procedure reference information. It is recognited that, ideally, each welder should be fully knowledgeable about the weld procedures he or she is working to help ensure that procedure process parameters are mam'ained. The NRC staff has also reviewed the finding that a " welder was making welds without remosing galvanizing material." This action did not conform to applicable specification requirements, but in the stall's view, it did not constitute a stolation of applicable welding code requirements. On this latter point, ) 4 of AWS DIJ permits welding without the galvanize being removed, however, it is recognited that 222
1 I removal of galvanizing material is the preferred process. Inspections per-j formed by Region 11 statT found no evidence of welding being performed under the stated conditions. The staff believes that the SIE obsersation I was an isolated case rather than a routine practice.
! .The NRC reviewed the concern that weld undercut in excess of that j allowed by AWS Dl.1 Code was found on liVAC support 2 it VC 4997.
l This concern may be correct. DPC's evaluation of the concern for under-l cut shows that undercut is primanly related to fatigue considerations ap-l plicable to components and structures under high stress. Fatigue is not a j concern in the llVAC duct support systems and stresses for all loading conditions, other than seismie, are relatively low in the llVAC system.
, DPC's evaluation on this concern was issued by memorandum dated October 29, 1982, by the DPC Chief Engineer of Slechanical/ Nuclear j Division. Accordingly, the contractor has resised the applicable welding specification for the llVAC supports to take into account the abose in-formation and remose overly restrictive undercut requirements.
The petitioner also cites the following SIE findings: 4 e There is no traceability or meld procedures to the finished weid (QP.l) l
- Procedures did not meet code requirements. IQP.1)
} * % ciderhupervisor picks welding proseJure from all auitaNe weldtrg prose.
dures Superusor indicates weidts procedure (si used on a surport alter the support is complete (CC 4.$F) The NRC has reviewed the finding that " welder / supervisor pieks welding procedure (s) from all available welding procedures and indicates procedure (s) used on a support after welding is completed." The weld i foreman maintains up to date lists of qualified welders, whch are used to assign welders to work. Assigninent of weld procedures for duct work fabrication is controlled by instructions on Bahnson Drawing No 2682 8-l 20 " Typical Duct Details," and for scismic support / hanger fabrication by Procedure AFP CNS 5.001, Revision 5. Stost of the material used on safety related duct work is on the order of 16 gauge or 0 0635 inch-thick, galvanized sheet steel. The material used on seismic hangers /sup-ports is also limited in th.ckness range, i.e., '4 inch to W inch thick. ASThl, AJ6 or A500 GrB mild steel. Stost of the duct work is welded in l sections in the site fabrication shop with the gas metal are process while the scismic supports are welded in the field with the shielded metal are process. llaving this information, the foreman selects one or sescral welders qualilled to fabricate the required welds, and communicates to them the information necessary to perform their assignment. The requirement and responsibility for preparing and maintaimng records subsequent to work completion is es'ablished by appheable code 223
i I, ! requirements and standards. Also, regarding the matter of no traceability } of weld procedures to the finished weld of IIVAC supports and duet work, the applicable Code, AWS DI.177, does not require such infor. 1 ' mation to be retained after weld completion and/or weld acceptance. llence, the contractor's practice is consistent with Code requirements. j Beyond the issue raised in the petition, the stalT has been pursuing l concerns with Bahnson supplied equipment at a number of nuclear ! plants, including Catawba. NRC Region II was informed of Bahnson
- equipment problems through the NRC vendor inspection program. Sec
- Inspection Reports 99900791/82 01 and 50 400/84-05. From these in-i spections, it was determined that Bahnson manufactured two safety-related flVAC air handling units that were supplied to the Catawba
, plant. A special Region 11 inspection was performed on these two units See Inspection Reports 50-413/84 28 and 50 414/8416. Bahnson was j performing a reinspection, at the plant, of these air handling units at the i time of the NRC special inspection. Welding discrepancies, similar to ; j those identitled in previous NRC vendor inspections, were identified on , j the Catawba units by both Bahnson and Region 11 inspectors. DPC has i since reported that the identitled weld deficiencies have been evaluated , ] and represent no safety problem. DPC has determined that the units are i j to be used in the "as is" condition. Region 11 identified one violation in-l Solving failure to establish adequate procurement controls. The resolu- ! j tion of the violation identitled in inspection report 50 413/84 28 and l l 50 414/84 16 is still pending. The licensee has submitted and the
] Region !! staff has reviewed the proposed actions for correcting and pre-l 1 venting the recurrence of this violation, The submittal appears to be j
! technically sound and appropriate. While the Regional staff has not >ct '
- performed the necessary followup inspection required to close this item, 3 those inspections are scheduled and will be completed in accordance ,
! with programmatic requirements.
- l l Conclusions I The results of Region !! inspections indicate that there is no substan.
i tial evidence to support the contention of an inadequate quality assur-
- ance program for vendors which could preclude the system from per.
forming its intended function and thus compromise plant wrety. The results of NRC inspections performed between the ) ears 1980 and 1983 show that the llVAC contractor is fabricating, inspecting and ; erecting the llVAC system consistent with applicable code and specifica. tion requirements and NRC commitments. Although certain deficiencies have been identitled in the area of QC inspections and QA/QC records, 224 ; ) i l l t I
i I these appeared to be isolated cases. These inspections found no evidence of unqualified welders fabricating safety related welds or flawed welding procedures being used to perform this work. The staff finds no basis for requiring additional measures other than those planned during imple-mentation of the routine NRC inspection program. Based on review of the NRC staffinspection program Gndings, review of the SIE report and subsequent review of the petitioner's identified SIE findings, the staff concludes that DPC has deseloped and imple-mented an acceptable vendor control program. i i i 225 P
f 1 4
+
i i ) i Cite as 20 NRC 226 (1984) DD 84-17 i
- UNITED STATES OF AMERICA j
NUCLEAR REGULATORY COMMISSION 1 2 I
' I OFFICE OFINSPECTION AND ENFORCEMENT !
Richard C. DeYoung Director 4 '. In the Matter of Docket Nos. 50 329 1 4 50 330 (10 C.F.R. I 2.206) I s CONSUMERS POWER COMPANY I (Midland Plant Units 1 and 2) July 24,1984 1
.I l The Director of the Office ofinspection and Enforcement denies a re- !
[ quest by Billie Pirner Garde of the Government Accountability Project ] on behalf of the Lone Tree Council and others requesting that the Com-i mission take action with respect to the Slidland Plant. I 1 TECilNICAL ISSUE DISCUSSED: QUALITY ASSURANCE ' ! PROGRAal 1
- The Commission requires all licensees to develop and implement a I l quality assurance program to be applied to the design, fabrication, con- !
struction and testing of the structures, systems and components of its l facility. i I TECilNICAL ISSUE DISCUSSED: RESIEDIAL PROGRAals i i The requirements imposed on licensees by Appendix B. together with the licensee's own quality assurance program, are usually sufficient to j ensure that a power reactor is constructed in accordance with NRC ' requirements. Ilowever, in certain cases, construction quality weakness-l ! es have been of such magnitude that the NRC has found that it needs to impose additional controls to ensure that the facility is being constructed j in a quality manner. Under such circumstances, the NRC has required
- l 1
1 i 226 [ i1 i i i i
licensees to undertake a remedial program to ensure that the construc-tion of the facility is in accordance with NRC requirements. DIRECTOR'S DECISION UNDER 10 C.F.R. @ 2.206 By letter to the Commissioners dated February 10, 1984, Billie Pirner Garde of the Government Accountability Project, on behalf of the Lone Tree Council and others (hereinafter referred to as the petitioners), requested that the Commission take three actions with respect to the Slidland Plant.' The petitioners asked that the Commission: (1) require all ongoing work at Slidland, including the soils warA, be included in the Construction Completion Plan (CCP) required by the ConGrmatory Order for StodiGeation of Construction Permits issued on October 6. 1983; (2) remove the Slidland licensee, Consumers Power Company, from managerial responsibility for quality assurance and quality control at Slidland, to be replaced by an independent third party reporting simul. taneously to the NRC and Consumers; and (3) increase the stafGng for the Sfidland Section of the NRC Region ill Office of Special Cases. The Commission has referred the petitioners' letter of February 10,1984 to the staff for treatment as a request for action pursuant to j 2.206 of the Commission's regulations. The petitioners' present request is similar to relief they sought in a pe-tition submitted on June 13, 1983. I issued two Director's Decisions with respect to that petition which granted in part and denied in part the I W Me this decistoft was in IIftal preparauon. Consumer 1 Power Company announted that the \f,d'and projett eould be shut doen. Thus it may be that this matter is noe m.wn However. sinte the (oncew-tion permits are still tre effect for the plant,it it appropriate to complete action on this petition 2 The petitioners initially requeued that the stafr of the Midland secison of the orTse of speaal Cases be increased in a petinon filed esih the Commisuon on June 13,193) la my decimon on that petiten DD 4).16.18 NRC ll2) U99D. I noted that the pentioners' request to entrease the nummer of NitC personnet awsned to the Midland section did not fall eithin the mope of requests coniemplated bi 10 C F R 4 2 206. as tne request related to a matter or internal Comminon organsration and catf ed l Likewise. I melt not conseder the reneeed request in this deumon settion 2 206 of the Commism n i regulations permits any member of the puhnc to petitson direc0y to the Diretters of Nudear Iteauar Regulation, Nuclear Material safety and Safeguards, or inspection and Enforcerneni, as appropriaie. ia institute a proceeding "to m(4fy. revote or suspend a license. or for such other action as mas ne proper " In essense. 4 2 206 permits interested mem5ers of the puhhc to request initiat un of 4 proceeding, as contemplate + by 10 C F R 6 2 20Ma) Reucus to augment region 41.nspewrion perwn. net. however meritorious, do not f all eithin that s' ass of requests for rehef pro ='deJ for eder 6 2 20M al in any event. I am estest;ed that. given ageAy remurces. sufbent inscestion effort is aeses espefided on the Midlaad pro,pect ll should *ie noted that the Ofri6e of speo4l Cases eas d:WC t ed 9% Region lit in Maroi 19H The Midland sett:on oss transferred iniast io the Dmmon of Proiecs amt Rewdent Programs and reporis to the Conuruction Branch Chief in that Jiviuon The Midland Sestmn consetts of a secion Chief, a peryct inspettor. a soil s inspestor. a remdent sie surer,isor 4 wnmr rew Jent inspettor and a resident inspettor in addition. other Region.DawJ inspectors aid sensu:tants from national lahoratories pr9 tide techn8(JI ansi 464e to ihe M414nd seglion as negessary 227
I requested relief. See DD-83-16,18 NRC 1123 (1983), supplemented m DD 84-2,19 NRC 478 (1984). Issued concurrently with each decision l was a confirmatory order, the first permitting the licensee to continue construction only in accordance with its construction completion pro-l gram (see 48 Fed. Reg. 46,673 (1983)), and the second requirmg the license to obtain an independent evaluation of its management of the Niidland project (see 49 Fed. Reg. 2562 (1984)). To support their pres-ent request, the petitioners have " updated" the factual bases of their previous petition. The petitioners point to "a series of financial.
- construction, legal and regulatory setbacks" at Slidland in recent months which are offered in support of the requested relief. These set-backs include (1) litigation brought against Consumers Power related to the cancellation by Dow Chemical Company (Dow) of a contract to pro-vide steam; (2) stockholder suits against the licensee; (3i slippage of the scheduled completion date for Niidland; (4) results of a Brookhaven Na-tional Laboratory study of the Niidland diesel generator building; (5) fail-ute of the licensee to " map" all cracks in the Niidland Auxiliary Building; and (6) the licensee's violation of the Slidland construction l permits in excavating soil from a deep-Q duct bank without prior NRC l authorization. Although this new information appears to have little bear-ing on the relief requested in the petition, the staff has nevertheless care-fully considered the information in the course of its review. However, i
the information, which is well known to the staff, is not of sufGeient weight to persuade me to grant the requested relief. The Grst and second developments cited by petitioners relate to allega-tions made by various parties in litigation against the licensee. Among these allegations is the assertion that Consumers Power representatives "made fraudulent misrepresentations and nondisclosures" to Dow, made false statements, and omitted and concealed information regarding the cost and completion schedule of the Slidland Plant which deccised potential investors about the stability of the project. See Petition at 2 3. As acknowledged by petitioners, these allegations are the subject of j ongoing litigation to which the licensee is a party. It would be inappropri-ate at this time for the staff to take action on the basis of allegations raised but as yet unproven with respect to the licensee *s representations to Dow. It should also be noted that the Niidland Atomic Safety and Licensing Board has admitted two contentions based on Dow's complaint l into its proceeding. The Grst contention concerns whether the licensee misrepresented its time schedule for completion of N!idland to the NRC, including the NRC staff and the Licensing Board. The second con-tention goes to whether the licensee relied on test results it knew to be invalid to fulGli NRC regulatory requirements. The Board also denied a 9 i 22M
.. - --+ - -
motion without prejudice by one of the intervenors to hold open the record pending completion of the Dow lawsuit to enable renewal of the motion to supplement or reopen the record should the Dow lawsuit uncover information of significance to that proceeding not otherwise de-veloped in the record. See Consumers Power Co. (Niidland Plant, Units 1 and 2), LBP-84-20,19 NRC 1285 (1984). Likewise, should information be developed in the course of the Dow litigation which might bear on the licensee's ability to construct a nuclear facility in accordance with NRC regulations, the NRC staff would evaluate such information and take appropriate enforcement action at that time. The petitioners call attention to an incident they term as "the Caseload Forecast Panel Controversy" as further support for their request. Of con-cern to the petitioners was the timing of the staft's release in December 1983 of its estimate of September 1986 as the planning date for comple-tion of the Slidland Unit 2 licensing review process. In addition to accus-ing the staff of " impropriety . in withholding significant information regarding the incredulity of CPCo's completion schedule estimates
. . ." petitioners argue that, had the staffs Caseload Forecast Panel dis-closed its estimate earlier, particularly in Stay 1983, the licensee would not have been able to " portray false and misleading information to potential investors." Petitioners also allege that the licensee had knowl-edge of the Caseload Forecast Panel's hiay estimate and "successfully managed to get NRC release of the information quashed." See Petition at 3 4.
Preparation of forecasts by the Caseload Forecast Panel is used by the NRC as a method ofinternal resource allocation. The Slidland Licensing Board has stated that: " Scheduling per se is not an issue in the [hlidiand] proceeding. Nor, standing alone, would it properly be an issue. It has neither safety nor environmental significance." Consumers , Power Co. (Stidland Plant, Units 1 and 2), unpublished Stemorandum and Order (Stay 25,1984). The staff takes a similar view with respect to this issue in considering whether to grant the requested relief. Scheduling, in and of itself, has no safety or environmental significance, and petitioners have not set forth any facts which would indicate that scheduling has safety or environmental significance such that the requested relief should be granted. The petitioners also pomt out that, subsequent to the submission of their June petition, a Brookhaven National Laboratory study, conducted at the request of the NRC concerning the structural integrity of the Niid-land diesel generator building, concluded that "the DGB could not meet federal regulatory standards for the Slidland project, but it would proba-bly be acceptable." Petition at 4. The petitioners also note that there ap-l 229 t i e w -g,. - ----- g - - - , ,
pears to be a "seeming!y unresolvable controversy between numerous professionals" as to the conclusion of the Brookhasen study. /d. The structural integrity of the Slidiand diesel generator building has been the subject of extensive litigation before the Atomic Safety and Licensing Board. Currently pending before the Licensing Board is a motion to reopen the record based upon the results of the Brookhaven review. Consumers Power Co., Nos. 50-329/50-330-OS1/OL, Transcript at 22,679 (December 3,1983). The adequacy of the diesel generator building is a matter which bears on the decision to grant an operating license for the hiidland facility. Accordingly, the issue is more appropri-ately addressed in the ongoing' operating license proceeding and not as a request for enforcement action under 10 C.F.R. j 2.206. Paci/7c Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), CLI-81-6,13 NRC 443, 446 (1981). Cf RocAford League of Iromen Voters v. NRC,679 F.2d 1218,1222 (7th Cir.1982). It should be noted that while the Board does not have the authority to take enforcement action against the licensee, it does have the ability to deny Consumers Power an operating license for the Slidland plant.3 Should testimony be developed which would indicate that enforcement action might be appropriate, the stalT would consider such action at that time. The petitioners call the stalTs attention to the licensee's failure to
" map" all of the cracks in the Auxiliary Building as new information which would support petitioners' present request. See Petition at 5. In-adequate compaction of soil at the Niidland site has caused a problem with the settlement of soil, and cracks have been observed in several buildings on site, including the AuxiFary Building. The licensee became aware of the cracking several years ago, and undertook a program to chart or " map" those cracks in order to evaluate the condition of, among other things, the Auxiliary Building. Accordingly, the licensee committed to develop a monitoring plan to detect differential settlement of the structure and the propagation and enlargement of new and exist-ing cracks, along with an independent evaluation of conditions exceeding predetermined limits as set by the staff and a crack monitoring program acceptable to the staff. See Safety Evaluation Report, Slidland Plant, Units 1 and 2, NUREG-0793, Supp. No. 2,13.8.3.5 (October 1982).
Discussions between the staff and licensee in late 1983 and earlier this year indicated that the licensee had not undertaken the extensive crack mapping that NRC staff members had understood would occur for the 3 See Commers Po=cr Co Rf 4ted Plant, t,nds I and 2), ALAB474.15 NRC l101,11024) I1992) 230 l
Auxiliary Building. Instead, the licensee had only mapped cracks located in the calculated high-stress areas of the Auxiliary Building. An agree-ment was reached between the staff and licensee wherein the licensee would expand its crack-mapping program based upon a survey of the entire Auxiliary Building. See Letter to J.J. Harrison, NRC Region ill from J.A. Slooney, Consumers Power Co. (February 8,1984). Unlike petitioners, who characterize the licensee's failure as demonstrating a lack of regulatory responsibility, the NRC staff considers the crack-mapping episode to be the result of a miscommunication between the y staff and licensee as to a difficult technical issue for which enforcement i action would be inappropriate. The sixth development the petitioners view as supporting their request concerns the enforcement action taken against the licensee for violating its construction permits by allowing excavation of a deep-Q duct bank without prior approval from the statT. Petition at 5-6. Rather than impos-ing a civil penalty for the violation, as petitioners would have preferred. the licensee was ordered to obtain an independent appraisal of its site and corporate management organizations for the Slidland project. See 49 Fed. Reg. 2562 (1984). The choice of a remedy for a violation is "within the sound judgment of the Commission, and not forcordained." See Pen. rion for Emergency and Remedial Action, CLl 78 6, 7 NRC 400. 406 (1978). The NRC Enforcement Policy describes the Enforcement sanc-tions available to the Commission and specifies the conditions under q which each may be used. Among the available sanctions are both civil
- penalties and orders. See 49 Fed. Reg. 8583 (1984). To have imposed a I civil penalty for the construction permit violation at hiidland may hase
! avoided a pessible underlying problem involving the adequacy of the s
project's management. By requiring an independent management appraisal, the licensee is subjected to a critical evaluation of its project i and may, depending on the findings, be required to implement appropri-ate changes to its management system. It is to be noted that although the staff considered the possiotitty ot a civil penalty, I determined, on balance, that a management appraisal would more readily address the root causes of the violation and achieve the corrective action needed to prevent similar violations at Slidland in the future.This decision certain-ly did not undermine NRC Region Ill, as petitioners infer, and the Re-gional Administrator for Region (!! concurred fully in the management appraisal order. Although petitioners may not agree with my judgment in this regard, no factual basis has been provided for concluding that i 4 l 231 l l l
.I F l I abused my discretion in issuing the order requiring the licensee to con- i , duct an independent management appraisal.' ' Beyond these six factual developments, the petitioners also set forth additional information in support of their specific requests for relief. In . l this regard, petitioners contend that occurrences at the Slidland site sub-l sequent to issuance of the October 1983 Director's Decision demonstrate f L that the position taken by the staff in the decision with respect to the CCP was premature and that the scope of the CCP should include "all , ongoing activity" at the blidiand site. Petition at 6 7. The petitioners ; i also contend that the results of two NRC investigations completed subse-j quent to the submittal of their June petition provide justification for j removal of the licensee from managerial responsibility for quality assur-ance activities at Slidland. See Id. at 7 8. However, none of the informa- l tion cited by the petitioners in support of their present request provides
; the staff with substantially new information such that institution of the ; reliefis warranted. Accordingly, for the reasons set forth below, the peti-I tioners' specific requests are denied.
J 4 j INCLUSION OF ALL ONGOING ACTIVITY AT allDLAND UNDER CONSTRUCTION COhlPLETION PROGRATI 1 On October 6,1983, a Confirmatory Order for hlodification of Con-struction Permits was issued for the Slidland Plant which required the I licensee to complete construction of the hiidland facility in accordance I with its Construction Completion Program (CCP), dated August 26, i 1983. See 48 Fed. Reg. 46,673 (1983). The CCP was prompted by the ! discovery of construction deficiencies in equipment and components j within the Slidland diesel generator building in conjunction with earlier quality implementation problems in which corrective actions had raised expectations of performance improvements. Accordingly, the CCP was ; developed to address the deficiencies in those areas of the Niidland facili-j ty for which the Bechtel Power Corporation, the hiidland architect. i engineer and constructor, exercised quality control and quality assurance j responsibility. See DD 8316, wpra,18 NRC at 1127. The CCP re- . quires, with the exception of four principal areas, reinspection and neces-
- sary work or rework of the blidland facility. Id. at 1126 28. Petitioners >
I' i 's i ! 'Nor are petitzners assnewed by the deciseen against issuance or a civd penalty in fut. the petenon -
! ers' representative has encouraged the start to identity the underivmg causes of the problems at the %d. !
j land prosect. fee. e-s . statement or Billee Pirner Garde (submitted es NRC Commmeort Meenns. 1 wnhmston, D C-. April 25.19448 at 4 l ! 232 i i ! l i
- - , - w -,r m, . . . - .~+ ,~.,-- ~,-,----,~.-munv.,,-.r,--- ---mm,,~,-m, ,.m..-~-1 --m-m_,m-~,.,.~,r--,----,~-,,,,-- --
now request that "all ongoing activity" at Midland, including the reme-dial " soils work," be included in the CCP. See Petition at 6. In support of their request that the CCP be expanded to include all ongoing activity at the site, petitioners point to the following factors: e "recent disclosures and identified problems (such as the identification of cracks in the Ausliliary] Building)" which allegedly indicate that the hcensee cannot be taken at its word; e information supphed to G AP [the Gosernment Accountability Project) but not yet provided to the NRC, which allegedly indicates that the hcensee actise'v
" covered up" problems with installation of the HVAC system instead of repair.
j ing the items; and
- failure of the pipe hanger and electrical inspections to disclose information l
given to the NRC by other sources including several G AP witnesses l
/d. at 7.
From the examples cited in support of their request, it appears that petitioners view the CCP as a defect reporting program. While some of the deficiencies discovered at Midland may indeed be reportable to the l NRC under 10 C.F.R. { 50.55(e) or other applicable reporting require-ments, the primary purpose of the CCP is to ensure the licensee applies sufficient attention to the quality of past and future construction at the Midland site. The Commission requires all licensees to develop and l implement a quality assurance program to be applied to the design, fabrication, construction and testing of the structures, systems and components ofits facility. See 10 C.F.R. Part 50, Appendix B. The Com-mission defines quality assurance as: all those planned and systematic actions necessary to provide adequate con 6dence that a structure, system, or component will perform satisfactorily in service. Quahty assurance includes quahty control. which comprises those quality assurance actions related to the physical characteristics of a material. structure. component or system which provide a means to control the quahty of the material, structure. component. or system to predetermined requirements. 10 C.F.R. Part 50, Appendix B, Introduction. T he requirements imposed on licensees by Appendix B, together with the licensee's own quality assurance program, are usually sufficient to ensure that a power reactor is constructed in accordance with NRC requirements. However, in certain cases, construction quality weakness-es have been of such magnitude that the NRC has found it needs to impose additional controls to ensure that the faci!ity is being constructed in a quality manner. Under such circumstances, the NRC has required 233
licensees to undertake a remedial program to ensure that construction of the facility is in accordance with NRC requirements. See, e.g., Cincmnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station), CLl-82-33,16 NRC 1489 (1982); Public Semce Co. of /ndiana (Niarble Hill Nuclear Generating Station, Units I and 2), CLl-80-10,11 NRC 438, 442-43 (1980). Because the problems discovered with the N!idland diesel generator building indicated a significant breakdown in the quality assurance pro-grams of Consumers Power Company and Bechtel, the NRC strongly suggested that the licensee develop a remedial program to verify the ade-quacy of Bechtel's past work, and ensure that any necessary rework, as , well as new work, meets the Commission's quality assurance standards. l The licensee agreed to develop such a program. The CCP is an extraordi-nary remedy meant to give the NRC additional assurance that adequate remedial action is being taken to identify existing problems in past con-struction and to ensure that future construction conforms to Commis-sion requirements. The CCP does not relieve the licensee from responsi-bility for implementing the quality assurance program the licensee was l required to develop in accordance with Appendix B. The licensee's ap. l proved quality assurance program remains in effect for all work, includ- I ing Bechtel activities,5 undertaken at hiidland. Of the work presently in progress at hiidland, four principal areas are unaffected in whole or in part by the CCP: (1) installation of the nucle-at steam supply system (NSSS), (2) installation of the heating, ventila-l tion and air-conditioning (HVAC) system, (3) performance of the reme-dial soils work, and (4) reinspections of pipe hangers and electrical cable. As explained in my earlier decision, separate remedial programs had been developed for the soils work and reinspections of pipe hangers } and electrical cable. See DD-83-16, supra,18 NRC at 1127. The diesel generator building inspection findings, which prompted development of 1 the CCP, were not applicable to other principal areas of ongoing actisity ' at hiidland, such as the installation of the NSSS and HVAC systems. See id. at 1127-28. The petitioners have not provided additional information which would persuade me to broaden the CCP beyond its present scope as a program to remedy the quality assurance deficiencies of the licensee and Bechtel. Each of the excluded systems, and the reasons for this determination, are more fully described below. Petitioners have not provided the staff with information which would demonstrate such serious problems in the HVAC area to require imple-3 The Bechtel quahty assurance program has been integrated into the hcensee's quahty assurance program. 234
J b i 1 I mentation of an extraordinary remedial program such as the CCP. As a ,
. result of problems found in the HVAC area in 1980, the licensee as-
{ sumed the HVAC quality control inspection function from the HVAC contractor. Subsequently, the staff has generally been satis 6ed with the
- licensee's performance in this area. In addition, a special safety inspec-tion was performed by members of the Region ill staff and the NRC Office of Nuclear Reactor Regulation from May 10,1983 through Febru-
, ary 19,1984, to evaluate technical allegations relating to HVAC design 4 and construction activities at Afidland. See Inspection Reports 50 329/83-08; 50 330/83 08 (March 7,1984). Consumers Power Company provided 1tn adequate response to the NRC on June 8,1934. Assuming that the corrective action associated with the identified viola-tions is effective, the NRC will be able to conclude that the installed HVAC systems and components at Midland are acceptable and that an adequate qu?tity assurance program is being implemented with regard to ongoing HVAC activities. Petitioners also state, without further amplification, that the pipe hanger and electrical cable inspections, currently in progress have failed to identify construction deficiencies reported to petitioners by their
" sources." See Petition at 7. As explained in the previous Director's Decision, reinspection of pipe hangers and electrical cable were not included in the reverification phase of the CCP because reinspection was being accomplished under a separate commitment to the NRC. DD-83 16, supra,18 NRC at 1127. In October 1982, the licensee began to rein-spect all previously installed Class IE cables. The electrical cable rein-spections were performed by Midland quality control personnel who had completed training on all aspects of cable pulling. An anonymous allega-tion made in a television interview was also taken into account in plan-i ning the reinspections. As a result, additional inspection criteria relating
! to cable coding were added. All personnel assigned to participate in the reinspections received training on the additional reinspection criteria j relating to cable coding. On May 19, 1983, the licensee completed the
; reinspections of all previously installed Class IE cables. To date, defi- ;
ciencies identified as a result of the cable reinspection program have l been documented and will be remedied by the licensee. Since petitioners l have not identified those elements of the cable reinspection program j they view as inadequate and, based upon NRC inspections, the program i appears to be working, inclusion of electrical cable reinspection in the CCP is not necessary at this time. l The pipe hanger reinspections are still in progress with approximately 30% having undergone reinspection. The licensee has developed a spe-4 cial quality control instruction which is being used by quality assurance 235 1 1 4 l i I i
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personnel who have received training pertaining to that instruction. To date, no deficiencies in the hanger reinspection program have been identiGed which would warrant reinspection of the hangers beyond that required by the current reinspection program, and petitioners have not identified any aspects of the reinspection that they view to be inade-quate. Since the existing reinspection program appears to be accomplish-ing the same results as it would ifincluded in the CCP, no beneGt would be gained by including the pipe hanger reinspections in the reverification portion of the CCP. In any event, the NRC plans to perform followap m-spections to assess the adequacy of the hanger, as well as cable reinspec-
. tion programs. All repairs, modiGeations, and new work involving safety-related electrical cables and pipe hangers will, however, be accomplished in accordance with the second or construction phase of the CCP.
The remedial soils program, which prohibits the licensee from per-forming certain specified activities without explicit prior approval from the NRC staff, was incorporated into the hiidland construction permits by amendment dated 51ay 26,1982 in accordance with an order of the Atomic Safety and Licensing Board. See Consumers Power Co. (htidland Plant, Units I and 2), LBP-82-35,15 NRC 1060,1072-73 (1982); 47 Fed. Reg. 23,999 (1982). Successful implementation of both the CCP and the remedial soils program are conditions of the hiidland license. Accordingly, enforcement action can be taken for violation of either program. The remedial soils program implements the philosophy behind quality assurance in ensuring that soils work activities are identiGed and well documented, that training has been provided to the personnel in-volved in implementing the program, that inspections of all work have been accomplished by trained personnel, and that ongoing work is con-trolled by written procedures and instructions. Since both the soils pro-gram and the CCP are programs closely monitored by the NRC, no sub-stantial purpose would be served by including the remedial soils work as part of the CCP. Nuclear steam supply system installation was initially excluded from the CCP because there nad been no indication from NRC inspections that significant quality assurance problems existed with those systems. See DD-83-16, supra,18 NRC at 1127. The NSSS was designed and con-structed by Babcock and Wilcox pursuant to its own quality assurance and quality control programs. NRC inspections of the NSSS have not identified problems that would indicate Babcock and Wilcox's work 236 l l
4 t t i should be reinspected, and petitioners have raised no facts in their pres-l ent petition to support inclusion of thil system in the CCP.* i Upon a consideration of the bases stated by petitioners, I find no reason to require that the CCP be expanded to include those ongoing ac-4 tivities at Slidland not presently encompassed within the program. REMOVAL OF THE LICENSEE FROSI SIANAGERIAL I RESPONSIBILITY FOR QUALITY ASSURANCE AND !
- QUALITY CONTROL ;
l In response to the discovery of implementation weaknesses, the licen- ) see has restructured its quality assurance program over the past several years. In 1980, the licensee reorganized its quaSty assurance department into the 51 dland Project Quality Assurance Department (51PQAD) and
, increased the involvement of high-level Consumers Power Company ! management in onsite quality activities. StPQAD took over the quality j control function for HVAC installation from the Zack Company follow. ; ing the identification of Zack quality problems in 1980 and NRC's is-1 suance of a civil penalty for the Zack quality problems. In September i 1982 the quality control functions of Bechtel were integrated into i SIPQAD at the suggestion of the NRC, Store recently, the licensee has j instituted the CCP, which includes an extensive reinspection of con-1 struction work to verify the quality of the work. These changes have in-creased the licensee's involvement in assuring the quality of plant j construction.
2 The petitioners continue to be skeptical of the licensee's ability to manage the 5fidland quality assurance and quality control programs. As i a result, petitioners renew a request raised in their June 1983 petition to j 1. 4 During the review process for my previous decision, it was noted that a QC Activines Hold was placed on the CPCo Hanger Reinspection Program on June 29.1983, because of problems detected with 2 the Bechtel drawmg and design change control system. As a result of this problem, a nonconformance report was later issued that directly impacted Babcock and Wilcon Nsss construcuon acuvines, causing ! them to be stopped Also, concurrent with issuance or my decision a similar problem was idenufied on October s,1983, and a stop-Work Order was issued by Consumers Power Company regardmg Bechtel drawing and design change documents. Agam the Babcock and Wilcom construction acuvines were af-4 fected and construction was halted. See Board Noufication 83162. subsequent to my decision an adds-l uonal stop Work Order was issued on October 22,1983, that halted d sale construction work because
; of additional problems that were found relaung to the Bechtel design documentauon system. As a result 1
of the stop Work Order Babcock and Wilcox work again had to be disconunued See Board Notificanon l 83167 and 84483 Problems were property identified and adequate correcove actions were taken. The NRC and the independent third-party overviewer (stone & Webster) reviewed the problem idenufga-1 tron and corrective action. The pornon of the stop Work Order pertainmg to Babcock and Wikon con-strucuon activiues was released on February 8,1984. The Babcock and Wilcos Nsss construction work i resumed shortty thereaftcr. This stop Work Order was tota!!y hfted on March 23.1984 i i ! 237 i i 4
-, . , . . , , , - . , nn.n--. ,,e--n-, ,.,_ ,n n ,u w.- ,,w- , .., .- ,n,, ..n-,_ . , , ,, . - .-- , , - -- mn., -
remove the licensee from responsibility for the quality assurance pro-gram at Slidland, to be replaced by an independent third party which would report simultaneously to the licensee and the NRC. In support of their present request, petitioners reference the results of two investigations. The first investigation 7 concerned whether false state-ments were made by an employee of Bechtel to the NRC staff during a meeting and in a subsequent telephone call. See Petition at 8. A second investigation, conducted by the NRC OfSce of Investigations (OI) into the events surrounding digging below a deep-Q duct bank without prior NRC authorization, concluded that the licensee had violated its con-struction permits. The petitioners rely on these investigations, and an ongoing OI investigation into an allegation that information concerning soils settlement was withheld from the NRC, as well as the licensee's lack of knowledge as to the extent of the cracks in the Auxiliary Building, and the litigation the licensee is presently involved in as fur-ther justification for removal of the licensee from quality assurance responsibilities. /d. The first investigation " failed to provide conclusive evidence that a material false statement was made . " and no enforcement action was taken. See Letter to J.W. Cook, Consumers Power Co. from J.G. Keppler, NRC (January 18, 1983); inspection Report Nos. 50-329/82-13, 50-330/82-13. The Regional Administrator did, however, urge the licensee to emphasize to its personnel and contractor personnel the importance of providing accurate information to the NRC and in-dicated that strong enforcement action would be taken should a material false statement be established. The staff has not identified any pattern of this type of conduct on the part of the licensee and does not consider this incident of such significance to warrant removal of the licensee from managerial responsibility for the Slidland quality assurance program. In view of the history of quality assurance problems at the Slidland site and the results of the deep-Q duct bank investigation referenced by petitioners, a Confirmatory Order was issued on January 12,1984 which found that the licensee had not met the terms of its construction per-mits. The order requires the licensee to obtain an independent appraisal of site and corporate management organizations and functions at 5fidland. The appraisal is to evaluate the licensee's current organization-al responsibilities, management controls, communications systems and 7 Pennoners refer to the invesosanon as one conducted by the ofTice of Invesuganons toD The in-vesuganon was actually conducted by Region Ill's enforcement and invesoganon stafY. since 01 had not been created at the hme the invesoganon was commenced 238
practices, both on site and between the licensee's corporate offices and the site. The appraisal will also include a review of the licensee's site and corporate construction management involved in the Slidland project to determine their capability and competency for managing construction ac-tivities consistent with regulatory requirements. The appraisal is also ex-pected to develop recommendations where necessary for improvements in management communications, controls and oversight. 49 Fed. Reg. 2562 (1984). The licensee's appraisal plan was recently reviewed by the staff and approved by the Regional Administrator of NRC Region III.' The hiidland management appraisal is expected to identify any orga-nizational deficiencies which necd to bc corrected. Upon rcccipt of the results of the appraisal, the Confirmatory Order required the licensee to consider the appraisal's recommendations, if any, and provide to the Region Ill Administrator an analysis of each recommendation, the action to be taken in response to each recommendation and a schedule for accomplishing such actions. The management appraisal should ad-dress the concern raised by petitioners. At the time the petitioners' request was filed, the NRC staff had not yet completed its special inspection into allegations regarding the imple-mentation of the quality assurance program with respect to the Zack Company's work on the Slidland HVAC system. That special inspec-tion, which involved five Region Ill inspectors, three representatives of the Office of Nuclear Reactor Regulation, and 1142 total inspector-hours, has now been completed. Of particular concern to the petitioners was the licensee's failure to notify the NRC of deficiencies in Zack's material certification records. The NRC inspection team concit.ded that inadequate procedures for the identification and evaluation of deficien-cies to determine reportability under 10 C.F.R. } 50.55(e) very likely contributed to the licensee's failure to report the deficiencies. See in-spection Report Nos. 50-329/83-08 and 50-330/83-08, at 8. Enforcement action was taken against the licensee through issuance of a Notice of Vio-lation for failure to report Zack deficiencies under 10 C.F.R. f 50.55(e). See Letter to J.W. Cook, Consumers Power Co., from J.G. Keppler, NRC Region 111 (hf arch 7,1984). The licensee has instituted corrective action. 51ajor revisions have been made by the licensee to its program for identifying and evaluating conditions for reportability under { 50.55(e). Region ill will continue to evaluate the licensee's perform-ance to determine the adequacy of the revised procedures. In view of 8 See Letter to J G. Keppler. NRC Region 111. rrom J W. Cook. Consumers Power Co (Marsh 7 1984) (enclosing independent Management Appraisal Plan of Cresap. McCormkk. and Paget and TERAh Letter from J G. Keppler (May 11. 1984) (approving management plans of Cresap. + McCormsk. and Paget and TER A) 239 I
-a- - w -4
the licensee's actions, and the relatively less serious safety implications of the HVAC systems, the violation is not of such significance as to war-rant removal of the licensee from responsibility for its quality assurance program. Petitioners also point to the " multiple" investigations conducted into the activities of the licensee at hiidland as justiGcation for requiring the licensee to retain an ot.tside organization to manage the quality assur-ance program. As precedent for their request, petitioners reference the staff's action with regard to H.J. Kaiser at the Zimmer plant. The two situations, are not, however, comparable. At Zimmer, the question before the staff was whether to approve a proposed Course of Action for verincation of the quality of construction and for completion of construc-tion should Kaiser continue as constructor of the plant. Based upon in-vestigative information, the staff advised Cincinnati Gas & Electric Company that the staff would not approve the Course of Action should Kaiser be retained as constructor.' In Zimmer, retention of the constructor, not the licensee, as in Niidland, was at issue. At no time was serious consideration given to removing the licensee, Cincinnati Gas & Electric Company, from responsibility for the Zimmer quality assurance program. Strong action was taken at Zimmer as deemed neces-sary. Similarly strong action, albeit different from Zimmer, in the form of the CCP, has been taken at Niidland. The staff has observed that the licensee's performance at Slidland has improved in recent months. Following the NRC's identincation of prob-lems within the diesel generator building in late 1982, the licensee took positive management action to resolve NRC concerns and to strengthen its management to improve its capability to assure the quality of con-struction of the Niidland facility. Work was stopped in most areas, per-sonnel changes were made, additional staff were hired, and inspectors were retrained. Through implementation of the CCP, work is t;eing reinspected, and future construction work will be overviewed by an inde-pendent third party. Storeover, an independent party, the TERA Corpo-ration, is conducting a design verification program. The licensee is making progress in the remedial soils area and the soils overview group has expressed satisfaction and confidence in the soils work being accom-plished. Likewise, the NRC has not identified recent quality problems in the soils area. Despite this improved performance. intense overview of the soils work will continue. The staff's close inspection scrutiny will
+ Sn Leuer to w H DKkhoner. Cancinnau Gas & Electnc Co , rrom J G Keppler. NRC (November 21.19th 240
continue until confidence in the licensee's abilities to implement its quality assurance program are fully restored.io Should their request to remove the licensee from quality assurance control responsibilities be denied, petitioners argue that there is an im-mediate need for removal of the licensee from managerial responsibility for the quality verincation portion of the CCP pending the completion of the management appraisal. Sce Petition at 9. The petitioners base this request on the preliminary findings of nonconformances by the Stone & Webster Engineering Company, the third party retained to overview the implementation of construction under the CCP. The staff has reviewed the Stone & Webster Nonconformance Identification Reports v.hich document identified nonconformances in the quality verification portion of the CCP. Based on this review, the staff has concluded that the non-conformances identified to date do not support the petitioner's state-ments that there is an immediate need for removal of the licensee from managerial responsibility of the CCP. Indeed, a properly planned and executed, independent third-party overview program will and should identify a certain amount of problems, in all events, a properly planned and executed quality assurance program will and should identify most, if not all, problem ;. See Union Electric Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343,346 (1983). The success of a quality assurance program lies with the program's ability to promptly identify and correct conditions adverse to quality. See 10 C.F.R. Part 50, Appendix B, Crite-rion XVI. The CCP is designed to remedy the licensee's past problems with implementation of its quality assurance program. The management ap-praisal is designed to identify weaknesses in management. Additional ac-tions may be taken based upon the recommendations of the independent management appraisal. The expansion of the licensee's responsibilities by MPQAD and the employment of an overviewer to monitor imple-mentation of the CCP actions have improved the licensee's capabilities in the quality assurance area. In view of the remedial programs currently 10 The followmg esample is ndicat we or the licensee's improved performance in the area of quahty assurance, and provides evidence that the hcensee's program is working on october 22.1983. Consum-ers Power Company's audit program identMed problems with the control ordes.gn changes The hcensee issued nine stop-work orders halting nearly all safety-related work. The hcemee's correctne actions included an in-depth review or all Field Change Requesis. Field Changs Notices, document control reg:sters and afTected drawmss and specMcanons Controlhng procedures were also remed and each control station was then updated with the most recent revision of ontrolled documems. The entire proc-ess was reviewed by MPQAD stone & w bster e Eng:neerms Company, the CCP overviewer, also audit. ed the process to assure that proper problem ident4 cation, resolution, and correctne action *as taken. Although the NRC has not mspected this work, the hcensee reported that the nonconformances identi-fied durmg the docurnent review have no sign 4 cant impact on hardware The stop-*ork orders were hrted between January 19 and March 23.1984. and or rk has resumed on site. 241
in place at the 51idland Plant, removal of the licensee from quality assur-ance responsibilities is not necessary to ensure safe construction of the facility. Accordingly, removal of the licensee from any of its quality re-sponsibilities is not warranted at this time. Should Consumers Power Company fail to rehabilitate itself under the CCP and the management appraisal, it may face revocation of its con-struction perrnit and denial of an operating license. CONCLUSION Based upon the staff's review of the matters set fcrth in the Lone Tree Council's petition, I find that there is no adequate basis at this time to expand the scope of the CCP to include all ongoing work at Slidland or to remove the licensee from managerial responsibility for quality assurance activities. The petitioners' request is therefore denied. A copy of this decision will be filed with the Secretary for the Commission's review in accordance with 10 C.F.R. f 2.206(c). Richard C. DeYoung, Director Office ofInspection and Enforcement Dated at Bethesda,5f aryland, this 24th day of July 1984. 242
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Cite as 20 NRC 243 (1984) DD 8418 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OFINSPECTION AND ENFORCEMENT i I 4 Richard C. DeYoung, Director ) In the Matter of Docket No. 50-289 ] (10 C.F.R. I 2.206) METROPOLITAifDISON COMPANY, et al. (Three Mile Island Nuclear ] Station, Unit 1) July 27,1984 } The Director of the Office ofInspection and Enforcement denies a pe-tition filed by the City of Harrisburg. Pennsylvania requesting the insti-tution of proceedings pursuant to 10 C.F.R. } 2.202 to suspend indefi-nitely the license of GPU Nuclear to operate the Three Mile Island Nuclear Station, Unit No.1. f LOW POPULATION ZONE: SIZE Petitioner's request pursuant to 10 C.F.R.12.206 is denied in the ab-sence of any substantive information calling into question the adequacy of the plume exposure pathway Emergency Planning Zone (EPZ) as cur-
- rently configured or the emergency evacuation planning efforts within the EPZ.
EMERGENCY PLAN: CONTENT To the extent that various municipalities located in counties involved with emergency planning have not adopted and approved emergency plans, such action on their part is not necessary for arid does not consti-tute an impediment to adequate emergency planning. 243
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DIRECTOR'S DECISION UNDER 10 C.F.R. 9 2.206 INTRODUCTION On Stay 30, 1984, the City of Harrisburg, Pennsylvania (Petitioner) filed a Petition pursuant to 10 C.F.R. j 2.206 requesting the institution of proceedings pursuant to 10 C.F.R. j 2.202 to suspend indefinitely the license of GPU Nuclear to operate the Three Stile Island Nuclear Station, Unit No.1 (T511-1) facility.' The Petition was based upon al-leged inadequacies in the emergency evacuation plan for the City of Harrisburg, specifically, a concern that the emergency evacuation plan did not adequately provide for the evacuation of the City of Harrisburg in the event of an incident at the TS111 facility. The Petitioner further requested that the TN!!-l facility not be permitted to restart unless and until all municipalities located in the counties surrounding the facility have adopted and approved emergency plans. For the reasons given below. I decline to grant the relief requested and deny the Petition. DISCUSSION At the outset, it must be said that Petitioner's compliance with 10 C.F.R. j 2.206, the provision of the Commission's regulations under which the Petition was submitted, is questionable. That regulation re-quires that requests made pursuant to it shall " set forth the facts that constitute the basis for the request." See 10 C.F.R. j 2.206f a). See alm Pub!Ic Service Co. of New Hampshire (Seabrook Station, Unit 2), CLI-84-6,19 NRC 975,979 (1984). The Petition is essentially desoid of any factual information other than that the radiological emergency re-sponse plan (referred to by the Petitioner as the emergency evacuation plan) currently in place with respect to the Thil-l facility for the City of Harrisburg has been rejected by the City Council in Resolution No. 59-1984 passed on Starch 6,1984. The only suggestion in the Resolution itself regarding a deficiency with respect to emergency planning for the City of Harrisburg is the allegation that, in December 1981, the State emergency planning agency, presumably the Pennsylvania Emergency Slanagement Agency (PESIA), revised its plan for future evacuation of Harrisburg to eliminate 85% of the City's population from the emergency plan. It is this allegation that comprises the sum and substance of Peti-tioner's request. ' GPU Nuclear is the successor m amerest to Metropoutan EJisce Company, rt al, the former operator oi the TMI ! facility 244
1 In essence, the Petitioner questions the adequacy of the plume expo-sure pathway Emergency Planning Zone (hereinafter referred to as the plume exposure pathway EPZ or EPZ) required by the Commission's regulations and for which evacuation planning is required. See 10 C.F.R. f 50.47(c)(2) and Appendix E to Part 50. The Commission's regulations require generally that the plume exposure pathway EPZ for nuclear power plants shall consist of an area about 10 miles in radius. < with the exact size and conGguration of the EPZ to be determined in re-lation to local emergency response needs and capabilities as they are af-fected by such conditions as demography, topography, land characteris-tics, access routes and jurisdictional boundaries. It appears from the Peti-tion that the City of Harrisburg is discontent with the EPZ currently in-corporated in the radiological emergency response plans associated with the Thil 1 facility in that the EPZ does not include all of the City.2 The adequacy of the EPZ for the TNil-1 facility has already been deter-mined by this agency. The EPZ for the TN!! l facility was litigated before an Atomic Safety and Licensing Board in the restart proceeding.' There the Board considered a number of issues related to the adequacy of the EPZ adopted for use around Tall 1. Among the issues considered by the floard was a contention seeking to extend the size of the EPZ boundar/ to include the cities of Harrisburg and York and the urbanized areas surrounding those cities.* In its decision, the Licensing Board recognized that the EPZ for T511 had been deGned by the Pennsyhania l Emergency hianagement Agency, the agency responsible for assuring emergency preparedness for the Commonwealth of Pennsylvania. The Board found no evidentiary basis for disagreeing with the judgments
- reached by PESIA in this regard.5 These Gndings by the Licensing Board have been afGrmed on appeal' and these determinations were not disturbed by the Commission.' Since those determinations were reached, no significant new information has developed which would call them into question. The Commonwealth of 2 Emergency planning for the TMI-I racihty is an integrated etTort involung an onsite utility developed radiological emergency response plan and orfsite emergeng plafts iricluding the Commoneestih of Pennsylvania emersency response pian and supporurig county and mumcipal piarts 3.4ferropohras EJesos Co (Three Mile Island Nuclear station. Unit 17. LBP 8159.14 NRC 1211.
1553-69 (1981).
' IJ. at 15 5 7.
I1b4
- Aterropohta= EJaos Co. (Three %Ie island Nw! ear station. Unit I). ALAB 64?. 16 NRC 1265 (1982). .tferropokra= EJoo, Co. (Three Mile Island Nuc: car station. Unit 1). AL AB4911.16 NRC 1290 (1982).
T The Commission dechned to renew ALA8 697 and its reue= of AL AB 691 did not encompau the ad-equacy or the EPZ ror the TMI.I facihty. See Atereopo6 tan EJao, Co iThree %Ie islanJ Nxicar station. (l nit 1). CLI 83 22. II NRC 299 (1983) 245 i i l
i Pennsylvania has submitted the State radiological emergency plan and supporting county and municipal plans to the Federal Emergency Ntanagement Agency (FENIA) for review and formal administratise ap-provat under 44 C.F.R. Part 350 of FENI A's rules. FEht A's review to date as well as the testing of the plans during emergency preparedness exercises has not resulted in any negative linding regarding the appropri-ateness and adequacy of the plume exposure pathway EPZ for TN!! l.' Consequently, based on the above, I have concluded that the Petition-er has failed to present any substantive information calling into question the adequacy of the plume exposure pathway EPZ as currently contig-ured for T5111 of the emergency evacuation planning efforts within the
, EPZ undertaken by the Commonwealth of Pennsylsania and the affected counties and municipalities. To the extent that various municipalities located in counties involved with emergency planning for TNil 1 hase not adopted and approved emergency plans, such action on their part is , not necessary for and does not constitute an impediment to adequate f emergency planning for Thtl l. The municipal plans have been incor-t porated into the State and county plans for TSt! 1. The submission of I the plans to FESIA for review and administratise approval under 44 l C.F.R. Part 350 of FEhtA's rules indicates that the Commonwealth of l Pennsylvania belieses that the municipal plans in concert with the State j and county plans are adequate to protect the health and safety of the public in the event of a radiological incident at T5t!-1. Neither the regu-lations nor the guidance criteria' applicable to emergency planning re-quire that local plans be adopted and approsed by local goserning bodies as a condition for a finding of adequacy.
Notwithstanding the above, there has been movement to address the concerns of the City Council of Harrisburg. It is my understanding that discussions have been held between representatives of PESIA, Dauphin County and the City of Harrisburg regarding the development of an "all-hazards" emergency plan for liarrisburg which would provide pro-tection for a variety of natural and man made emergency situations, and that favorable progress toward this end has been made. 8 As a result of the full scale emergency preparedness enerose conj mted on Novemner 16,198L FEM A did identify four dennences whwh require correcion in order for FEM A to provide % tc .un an acceptable 6nding on olTwo preratedness Three of these concerned sornmunicanons in Daurnin and Lancaster Counties and the fourth concerned stafring of the Daupnin Couniv Emersensy operanons Center PEM A has desetoped a n6hedale or correttise actions including remeJidl dnlis to demonstrate that the identined dereenoes have been correcteJ F EM A will oeserse these drills and report sin nnd-sets to the NRC None of the de6cienoes are related to the inue raised in the Cei, of Herrneurs petiinin. namety, that f$e ernergency plan has been revised to ehlude a large portion of the City i
' Pnncipany. NLRE04654/ FEM A. REP-l. Revsion 1. -Critena of Preparation and f satuanon of Radi.
olognal Emergency Resporne Plans and Preparedness in support n( Nucicar Power Plants," Nmemt'er 1940 246 f
1 i l CONCLUSION i in summary, the plume exposure pathway EPZ for the TNti 1 facility has been given close review by the affected Pennsylvania counties, PENIA, the NRC, and FEh! A. The EPZ associated with the TNil 1 facili-ty has been found acceptable by these entities. Consequently, I conclude that the currently conligured plume exposure pathway EPZ is in con-formance with emergency planning requirements and is adequate to pro-vide a basis for emergency response efforts including evacuation in the event of an emergency at the T511 1 facility. Accordingly, Petitioner's request for action pursuant to 10 C.F.R. j 2.206 has been denied for the reasons described in this decision. t As provided by 10 C.F.R. } 2.206(c), a copy of this decision will be filed with the Secretary for the Commission's review. 3 Richard C. DeYoung, Director Office ofinspection and j Enforcement 1
- Dated at Bethesda, Staryland, this 27th day of July 1984
) l 1 l i I 4 i i 2J7
1 l Cite as 20 NRC 249 (1984) CLl 84-12 ( UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION J )' COMMISSIONERS: $' Nunzio J. Palladino, Chairman Thomas M. Roberts i James K. Asselstine l Frederick M. Bernthat - Lando W. Zech, Jr. j i in the Matter of Docket Nos. 50 275 OL , 1 50 323 OL PACIFIC GAS AND ELECTRIC j COMPANY l (Diablo Canyon Nuclear Power i Plant, Units 1 and 2) August 10,1984 1 1 The Commission determines that the circumstances in this case do j not provide a basis for departure from its decision in Southern Caherma Edison Co. (San Onofre Nuclear Generating Station. Units 2 and 31 CLI 8133,14 NRC 1091 (1981), that (1) NRC regulations do not re-i quire consideration of the impacts of earthquakes on emergency plan-l ning, and (2) the determination of whether to amend the regulations to j include the consideration of earthquakes should be addressed as a gener-ic matter. The Commission decides to initiate such a rulemaking and. further, determines that the issuance of a full power operating license in j this proceeding need not be delayed untilits conclusion.
; e i r j OPERATING LICENSE: HEALTH AND SAFETY STANDARD I l The Commission will not license a nuclear power plant unless it can
- make the statutority required finding that operation of the plant will not result in undue risk to public health and safety.
'49 ,
2 h i
DECISION In CLI-84-4 (19 NRC 937 (1984H, the Commission requested the parties' responses to seseral questions bearing on whether the circum-stances in this case warranted some speciGe consideration of the effects of seismic events on emergency planning. Responses were recence from Paci6c Gas and Electric Company (PG&E), the NRC statT, and Joint Intervenors. After considering these responses, the Commission has determined that the information before it does not warrant departure from the deci-sion in San Onofre that the NRC's regulations "do not require consider-ation of the impacts on emergency planning of earthquakes wnien cause or occur during an accidental radiological release," and that the determi-nation of whether to amend the regulations to include the consideration of earthquakes should be addressed as a generic matter. Somhcrn Cah/or-nia Edison Co. (San Onofre Nuclear Generating Station, Umts 2 and 31 CLI-8133,14 NRC 1091,1091 (1981). Accordingly, for the reasons discussed below, the Commission has decided to initiate a rulemaking and has determined that the issuance of a full power operating license need not be delayed until the conclusion of any such proceeding. I. The Commission's first question was whether emergency planning regulations can and should be read to require some review of the com-plicating effects of earthquakes on emergency planning for Diablo Canyon. A. Parties' Views PG&E and the NRC staff believe that the Commission should not read its emergency planning regulations and implementing guidance in NUREG-0654 so as to provide for any specific consideration of the com-plicating effects of earthquakes on emergency response, even in Califor. nia. For the NRC staff, this appears to present a change from its previous view, expressed most clearly in 1981 in the San Onofre proceeding, that some limited consideration of the effects of earthquakes on emergency response was warranted in areas of high seismic activity, especially Califorma. 250 1 1 l I l 1
PG&E's essential argument is that the Commission's emergency plan-ning regulations implicitly include the complicating etTects of earth-quakes as part of the overall consideration of four classes of Emergency Action Levels established in NUREG-0654. In PG&E's siew, considera-tion.of the elTects of earthquakes on emergency planning is subsumed within the consideration given to the effects of other natural phenomena having similar effects on emergency planning. PG&E is concerned that the explicit consideration of the effects of earthquakes on emergency planning will distort or preferentially align emergency plans to cancen-trate on earthquake-related emergencies. Therefore, PG&E belieses that it would be redundant and contrary to established planning guidance to require an emergency plan to include consideration of specific accident sequences such as those associated with earthquakes. The essential argument of the NRC statT is that there is an acceptably low risk to public health and safety associated with not requiring i emergency plans to explicitly consider the complicating effects of earthquakes. This staff position is based on its belief that contemporane-ous occurrence of an earthquake and a radiologic release has too low a probability to warrant mandatory consideration.' Joint Intervenors take the contrary view that the NRC's regulations and implementing guidance require some consideration of the complicat-ing etTects of earthquakes on emergency response for the same reasons that the NRC statT has considered the effects of other natural phenome-na on emergency plans. B. Analysis The Commission agrees with the NRC staffs analysis in this case. The focus of the emergency planning controversy among the parties is on the possible need to consider the contemporaneous occurrence of an earthquake and radiologic release from the plant. For earthquakes up to and including the Safe Shutdown Earthquake (SSE), the seismic dasign of the plant was reviewed to render extremely small the ptobability that such an earthquake would result in a radiologic release.: While a radio-logic release might result from an earthquake greater than the SSE, the probability of occurrence of such an earthquake is extremely low.) In ' IThe detads of the stafrs posmon were desenbed m its memorandum to the Commission or January 13.1984ahnh was incorporated in CLi 84-4. supra. 2 Indeed. Diablo Canyon has been subjected to special unprecedented revices of this issue. 3 Jomt Intervenors have recently mosed the Appeal Board to reopen the record on the seisrme design bases ror Diablo Canyon to consider ne* seismic mfor nanon PGAE has oppowd that request Bath IContmurd) 251
s addition, as the NRC staff noted in its January 13, 1984 memorandum to the Commission on the generic subject of earthquakes and emergency planning, for those risk-dominant earthquakes which cause sery severe damage to both the plant and the offsite area, emergency response l would have marginal benefit because of its impairment by offsite dam-age. Thus, the Commission agrees with the NRC staft's conclusion that the expenditure of additional resources to cope with seismically caused offsite damage under those circumstances is of doubtful value consider-ing the modest benefit in overall risk reduction which could be obtained. There remains only the possibility of a contemporaneous occurrence of both a radiologic release from the plant caused by an event other than an carthquake, and an carthquake that would compiiuile emeigeno response. NUREG-0654 does call for some consideration of site specific adverse or emergency conditions on emergency response, in prior cases, such frequently occurring natural phenomena as snow, heavy rain, and fog have been considered. With one exception, the focus has always been on frequently occurring natural phenomena.4 The Commission j believes, based on the infosmation provided by the parties, that earth-quakes of sufficient size to disrupt emergency response at Diablo Canyon would be so infrequept that their specific consideration is not warranted. The Commission's view that it need not give specific consideration to the complicating effects of earthquakes on emergency planning in this case is bolstered by the following consideration. Specific consideration has been given in this case to the effects of other relatively frequent natural phenomena. The evidence includes the capability of the emergency plan to respond to disruptions in communication networks and evacuation routes as a result of fog, severe storms and heavy rain. In the extreme, these phenomena are capable of resulting in area wide disruptions similar to some of the disruptions which may result from an earthquake. Testimony in the Diablo Canyon record indicates that ad-verse weather conditions such as the effect of heavy fog could increase evacuation time to approximately 10 hours. Thus, while no explicit con-j sideration has been given to disruptions caused by earthquakes, the parties re!y on conthering empert opimons The Commmion has considered in CL14413. 20 NRC 2td 0934), whether this ne* informaison *arrants a stay and for the reasons stated there. has concluded that the new information Joes not require a reusion of the seismic des.gn basis of Dianlo Canyon at this time The Commission beheses that the hcense condition requinns PG&E to compicte a seismic esatua. tion of the site by 1988. as new scientirie data become available, is the appropnare method for consider-ing such new triformahon.
- The one esception is Tropn. ror which consideration has been given to the effects or sokanic eruchon due to the espectation that another esplosion is immir'ent at Mt st Helent 252
emergency plans do have considerable Gexibility to handle the disrup-tions caused by various natural phenomena which occur with far greater frequency than do damaging earthquakes, and this imphcitly includes some Dexibility to handle disruptions by earthquakes as well. II. The Commission's second question was whether, even though the regulations do not require it, there are special circumstances for the pur-poses of 10 C.F.R- } 2.758 that would permit consideration of the effects of earthquakes on emergency p!anning for Diab!o Canyon. A. Parties' Views Joint Intervenors argue that this case does present special circum-stances. They rely on the proximity of the plant to the llosgri Fault, the seismic redesign of the plant to accommodate earthquake induced ground motion which may result from an SSE on that fault, and the con-clusion by the Advisory Committee on Reactor Safeguards (ACRS) that the plant is designed to less conservative criteria than would have been applied to a new plant at that site. The NRC staff and PG1E respond that Diablo Canyon has been rede-signed to take into account its proximity to the flosgri Fault, and, thus, l is no different from any reactor which has been designed to accommo-date its seismic environment. ! B. Analysis The Commission notes that the important safety issue for any plant located in a region potentially affected by seismic activity is not the loca-tion of the facility per se but the probable consequences of such location for the plant in question. The Commission will not license a plant unless it can make the statutorily required Onding that operation of the plant will not result in undue risk to public health and safety. Necessarily, this includes a determination that the seismic design is adequate. Such a Ond-ing is not undermined by the circumstances that more conservative crite-ria might have been applied to a new plant. The issue is whether opera-tion of the plant as designed will result in undue risk to public health and safety. The Commission's seismic design criteria hase been fully ad-dressed for Diablo Canyon and the Commission has determined that the seismic design of the plant presents no undue risk. ALAB 644,13 NRC 903 (1981). 253
What remains is the argument that the likelihood of the simultaneous occurrence of an earthquake and a radiologie release from other causes is especially high for this site. The Commission must disagree. The resources, time, and attention desoted to seismie design in this case have been unprecedented, and the information before us does not sur-port the conclusion that the chance of such a simultaneous occurrence is substantially greater than for numerous other nuclear plant sites. In particular, the Commission takes note of its Appeal Board decision. ALAB-644, supra, which concluded that the record does not bear out the claim that the Diablo Canyon site is one of "high seismicity." i.e., an area having a high frequency of seismic esents. This conclusion was ! based on record evidence by Drs. Anderson and Trifunac who plotted for the years 1950 through 1974 the known epicenters in the central i California coastal region, centered around Diablo Canyon, between 33' ! and 37' north latitude and 119' to 123* west longitude. That plot, and the calculated low recurrence rate of an earthquake of the magnitude a3-signed the operating basis earthquake (OBE), indicate that the region is at most one of moderate seismicity. Earthquakes of greater magnitude than the SSE would occur with much lower frequency than the OBE. Thus, there has been no showing by Joint Intersenors of special circum-stances warranting waiser of the regulations to allow specific considera-tion of the effects of earthquakes on emergency planning at Diablo Canyon. I lit, The Commission finds that the information and argument presented by the parties in response to the questions posed in CLI 84-4, supra, lead to the conclusion that there is no present need to reconsider the San Onope decision.' Nevertheless, we believe that further generic rulemaking esplormg the effects of earthquakes on emergency planning could be useful. In particular, the Commission believes that it will be useful to address whether the potential for seismic impacts on emergency planmng is a sig-nificant enough concern for large portions of the nation to warrant the amendment of the regulations to specifically consider those impacts. The chief focus of the rulemaking proceeding will be to obtain additional information to determine whether, in spite of current indications to the I in wew of the anseert to the first two 49ewons the imid quewon regarding the speuro of any f ur. ther codisideration or the ef fetts of earthquates on emergst s y planning aced not he 443rtwd j 254
contrary, cost-effective reductions in overall risk may be obtained by the explicit consideration of severe earthquakes in emergency response plan-ning. In addition, rulemaking would allow a greater spectrum of public participation in the resolution of this matter on a general, as opposed to plant specific, basis. We previously indicated in San Ono/re that this matter would be con-sidered on a generic basis. Some time ago the NRC staff advised us that, in its view, generic consideration was not necessary. Ilowever, we were diverted from this issue by the press of other important Commission business, and we took no action in response to that advice. In retro-spect, since we disagree with the NRC stalTs siew, we should have acted sooner and initiated rutemaking. Tne need to address this issue in this case has again focused our attention on this matter. By this order we are indicating our desire to initiate rulemaking shortly, and directing the NRC staff to give priority attention to the matter. Commissioner Zech participated only in the portion of the order which concerns the initiation of a rulemaking proceeding. The additional views of Chairman Palladino and Commissioner Bernthat and the dissenting views of Commissioner Asselstine are attached. It is so ORDERED. For the Commission SAMUEL J. CillLK Secretary of the Commission Dated at Washington, D.C., this 10th day August 1984. ADDITIONAL VIEWS OF CilAIR.%IAN PALLADINO I agree with the Commission's opinion. I believe that the Commission has adopted a reasonable approach to the question of earthquakes and emergency planning, one which will produce an informed Commission consideration of the policy issue, will not prejudice procedural rights, and will not pose undue risk for the health and safety of the public iri the vicinity of Diablo Canyon, as well as other potentially affected plants 255
( i Although the question before the Commission in this case might be characterized as a question ofinterpretation of NRC emergency planning regulations, I view the issue as a policy question that has generic dimensions. NRC regulations simply do not address earthquakes and emergency planning. Further, at least two other plants in California (San Onofre and Rancho Seco) could be affected by the answer to the out-come of our consideration and other plants outside of California might be alTected. NRC can address a policy question by either adjudication or rulemaking. In this instance, rulemaking offers the opportunity for broader and deeper public input. I believe that the Commission could benefit from public comment on issues such as the following. what is the range of probabilities of a coincidental earthquake and radiological emergency and how does this range compare with that for other natural phenomena that could affect emergency response? To what extent does emergency planning under current NRC regulations provide a sullicient j planning base to handle the complicating effects of earthquakes? What i benefits of significance for emergency preparedness would be expected to result from the consideration of the complicating effects of earth-t quakes? Further, if the outcome of the rulemaking is that more should be done, then the new requirements can be applied to Diablo Canyon. It appears to me that the essential arguments in the dissenting opinion are pertinent to the policy question we will address by rulemaking, and 4 have application to all California plants (and possibly to plants elsewhere) and not just Diablo Canyon. The assertions (and counteras-sertions) of facts and their significance for the policy question can also be examined in the rulemaking and, thus, need not be accepted or 4 argued solely on the basis of the assertions alone. All Commissioners 1 have approved this rulemaking and I, for one, have not "already decided j the issue. I Rulemaking does not assure Joint Intervenors in this case an oppor-tunity for a formal adjudicatory hearing, but it does provide them an ade-quate opportunity to be heard. Further, the Joint intervenors had no assurance of a formal hearing in the Diablo Canyon operating license proceeding. Their hearmg rights depended upon their raising an issue l that was cognizable in an NRC hearing. The Commission ruled in San l Onope (CLI 8133,14 NRC 1091 (1981)) that the matter of complicat-ing effects of earthquakes on emergency planning could not be raised in individual cases, and it reaffirmed the San Onohe ruimg in this case after providing all parties, including the Joint Intervenors, with an op-portunity to submit written briefs. I d 256 1
. , - - . _ , , . . - - . .+ _ . . - . . _ -, ._,n., -. - , , , - - - - . . -
While the delay on the Commission's part in addressing the generic policy question is regrettable, it would be speculative to conclude that the delay prejudiced the rights of the Joint Intervenors in the Diablo Canyon proceeding. The outcome of a more timely generic proceeding might have been a final rule that the complicating elTects of earthquakes need not be considered. Operation of the Diablo Canyon plant during the interim while the Commission conducts rulemaking does not, in my judgment, pose a sig-nificant risk to the public. The probability of an earthquake that would impede emergency response action is exceedingly small for that period of time. CO31311SSIONER BERNTHAL*S ADDITIONAL VIEWS (Revised August 13, 1984) The Commission has been remiss in not dealing with this issue earti-er, as it had indicated 3 years ago it would. Be that as it may, the ques-tion today is how best to proceed, in a manner that assures adequate pro-tection of public health and safety, and is equitable and fair to the parties concerned. Sly support of the Commission's order rests on a massive record com-piled by the Licensing and Appeal Boards. That record includes the technical judgment of the best seismologists in this country. Their judg-ment is that the seismic design basis of this facility is adequate to present a radiological release from the most severe earthquake that could rea-sonably be postulated in the vicinity of Diablo Canyon. The complex basis for this conclusion is entirely consistent with the simple, factual, 200-year recorded history of seismic activity in the vicinity of the plant. As for the probability of a random simultaneous occurrence of (1) an , earthquake which could disrupt emergency planning, and (2) an accident severe enough to result in a radiological release from other causes, the comments of the parties in response to CLI-84 4 provided no basis for the notion that such an eventuality ought to be taken into account in l emergency planning either generically or for Diablo Canyon specilically. l Sly judgment in this regard is supported by the 200-year record of seis-mic events in the Diablo Canyon area which indicates that there base been only two events in all of that time which had the potential for any, let alone major, disruption of emergency response activities.' I -Earthquake Kuory of the United siates," Pubhution 41 1.1912 Repnnt with wpriement 257
Common perceptions and " gut" feelings might seem to argue that, be-cause a plant is located in California, it must be unique. But the numbers for actual California sites, and for the seismic design bases required of all plants to deal with their particular seismic environments, require us to move beyond subjectivity and to consider the facts. The Appeal Board's conclusion, based on a careful examination of the record, that this particular EPZ area is of " low to moderate seismicity," was not casually derived, and is consistent with the history of recorded seismic activity in this limited geographical area. It clearly makes sense to consider, in emergency response planning, hurricane-type events and fog conditions in California or blizzards in the northern half of the United States, since these events occur on at least an annual basis and have widespread and certain etTects on road systems and other facilities which must be utilized should an emergency occur at a nuclear facility. But the actual record of seismic actisity in the vicinity of Diablo Canyon, at least, convinces me that earthquakes need not be similarly treated in this case. Nor do I find, from all of the information before me at the present time, any basis to reconsider the San Ono/re decision. The hazards of earthquakes, tornados, hurricanes, and fogs rarely choose to conform themselves to State boundaries. California has no monopoly on seismic activity. Three of the four most severe carthquakes ever recorded in the continental United States occurred in the eastern half of the country. Further, there may be reasoned arguments whrch are possible, but which have not been made by the parties to the Diablo Canyon proceeding, to support the specific consideration of seismic ef-fects on emergency planmng in the areas surrounding nuclear facilities. Therefore, out of an abundance of caution, I have agreed that the Com-mission should get on with the generic proceeding it committed to initi-ate in the San Onofre decision so that this issue may finally be laid to rest. DISSENTING VIEWS OF COMMISSIONER ASSELSTINE The Commission's performance in its handling of this issue - the complicating effects of earthquakes on emergency planning - is most disappointing. In its apparent determination to avoid adjudicating an issue that the agency itself has acknowledged to be material to emergen-cy planning, the Commission has repeatedly changed its mind about how to treat this issue only to end up right back where it started 3 years 258 l
ago - promising a generic rulemaking. In the meantime, the Commis-sion's only accomplishment has been to deny parties the right to adjudi-cate the issue and to delay any action on this issue until the only two plants, Diablo Canyon and San Onofre, for which this issue probably has any real significance have been licensed. I cannot agree with the Commission's decision or its reasons for reach-ing that decision. The Commission's decision ignores fundamental principles of emergency planning, offends common sense, and abuses the legal process. I would recognize the obvious - that earthquakes ought to be considered for plants located in areas of high seismicity such as California, and let the parties adjudicate the specifics in individual cases. I would provide the parties to the Diablo Canyon proceeding an opportunity for a hearing and let them litigate whether the Diablo Canyon emergency plan is flexible enough to deal with the complicating effects of earthquakes on emergency planning. History The history of the Commission's handling of this issue shows exactly why the Commission's decision today is so disturbing. Rather than simply allowing the issue to be considered by a licensing board, a step that probably would have added about a week of hearing time to the San Onofre and Diablo Canyon proceedings, the Commission has instead fol-lowed a tortuous path from adjudication to generic rulemaking to case. by-case consideration, to generic adjudication, only to end up right back at generic rulemaking. In early 1981 the stalT took the position in the San Onofre proceeding that consideration of the complicating effects of earthquakes up to the Safe Shutdown Earthquake (SSE) was appropriate. The staff disagreed, however, when the Licensing Board tried to raise sua sponte the issue of the effects of earthquakes exceeding the SSE. The Commission on its own motion ordered the Licensing Board not to consider "the impacts on emergency planning of earthquakes which cause or occur during an accidental radiological release." Southern Cahfornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI 81-33,14 NRC 1091,1091 (1982). The Commission determined that its regulations did not require such consideration and concluded that whether the regula-tions should require such consideration was a generic issue to be decided by rulemaking. Id. at 1091-92. Based on the San Onofre decision, the Licensing Board in the Diablo Canyon operating license proceeding refused to allow any consideration of the effects of earthquakes on emergency planning at the Diablo 259 1
Canyon site. There was, therefore, no opportunity to litigate any issue connected with the complicating effects of earthquakes on emergency planning. After the Diablo Canyon Board's decision, the statT on June 22,1982, issued a memorandum which stated that it was the staft's technicaljudg-ment that a generic rulemaking was not necessary because of the sery low likelihood of earthquakes in most parts of the country. However, the staff took the view that for California and other areas of high seismic risk in the Western United States explicit, site-specific consideration of the effects of earthquakes on emergency planning is necessary. As the stalT explained: It is the judgment of the stalT that for most sites carthquakes need not be esplicitly considered for emergency planning purposes because of the very low hkelihood that an earthquake severe enough to disturb onsite or offsite planned responses wdl occur concurrently with or cause a reactor accident. Planning for earthquakes which might have implications for response actions or initiate occurrences of the " Unusual Event" or " Alert"' classes in areas where the seismic risk of earthquakes to offsite structures is relattsely high may be appropriate (e g.. for California sites and other areas of relatnely high seismic hazard in the western U.SJ. Stemorandum to the Commissioners from William Dircks, Executive Director for Operations, dated June 22,1982, entitled " Emergency Plan-ning and Natural Hazards," at 1. The staff went on to say that it requests applicants for licenses for California facilities and the Federal Emergency Stanagement Agency WENIA) to consider earthquake etTects in their emergency planning and review. 51emorandum of June 22,1982, Enclo-sure at 3-4. In fact, at both San Onofre and Diablo Canyon the staiT re-quired the license applicants to specifically consider this issue. The Commission realized that this position by the stalT seemed to con-tradict the Commission's San Onofre decision and thus cast doubt on ' the validity of the Licensing Board's ruling in the Diablo Canyon case. The Commission asked the staff to elaborate and in a further memoran-1
' dum, the staff repeated its conclusion that " planning for earthquakes which might have emergency preparedness implications may be warrant-ed in areas where the seismic risk to offsite structures is relatisely high (e.g., California sites . .)." Stemorandum to Chairman Palladino from William Dircks, Executive Director for Operations, dated January,11 1984, entitled " Emergency Planning and Seismic Hazards," at 2 n.2.
The staff also stated that it thought current emergency planning'teview criteria were adequate for this. Al. '/, Given this position by the staff, the Commission decide 1 to a's'< the parties to the Diablo Canyon proceeding whether and uitder what c r-
, 1
?"
260 [
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cumstances the effects of earthquakes on emergency planning should be considered for the Diablo Canyon plant. Pacvic Gas and Electric Co (Diablo Canyon Nuclear Power Plant, Units I and 2), CLI-84-4,19 NRC 937 (1984). The Commission, referring to the staffs January 1984 memorandum, noted that the staff appeared "to beliese that some specific consideration of the effects of seismic events on emergency plan-ning may be warranted for plants located in areas of relatively high seismicity." CLI-84-4, supra.19 NRC at 938. In its response to the Commission's order, the staff attempted to reverse course. Staff counsel explained that while staff stated in its Janu-ary 13,1984 memorandum that " seismic events are considered and eval-uated to a limited extent as part of our current emergency planning reviews, those staff reviews are informal and do not reflect a required licensing element which must be satisfied in order to warrant issuance of a license."' "NRC Staffs Memorandum Regarding Consideration of Ef-fects of Earthquakes on Emergency Planning (CLI-84-4)," dated May 3, 1984, at 3 n.2. Commission Decision In its decision today, the Commission has concluded that there is no reason to depart from its decision in San Onofre that the NRC's regula-tions "do not require consideration of the impacts on emergency plan-ning of earthquakes which cause or occur during an accidental release," for Diablo Canyon and that the determination of whether to amend the regulations to include the consideration cf earthquakes should be ad-dressed as a generic matter. See p. 250, supra. There are se,veral prob-lems with the Commission's decision and its underlying rationale. The cornerstone of the Commission's decision is the Commission's conclusion that the probability of an earthquake disrupting an emergency response is so low that it need not be considered in emergency planning. The basis for the Commission's conclusion is its determination that for various reasons there is unlikely to be a radiological release and an earth-quake at the same time. The Commission's arguments on this score ignore one of the fundamental precepts of emergency planning: we plan for low-probability occurrences because no matter how safe we try to make nuclear power plants there is always a possibility that some I The Oaw in the staffs argument is obvious Having acknowledged that it is conserned enough anout the issue to require licensees to consider it, the stafr cannot now argue that " informal" reseew by the stafr is a satisfactory substitute for formal review in indmdual licensing proceedings If the issue es mate. rtal to the Commission's !scensing decision as the statTs own statements and actions concede, then the agency must admit that satisfactory resoluuon of the issue is a required licensing element-261 I 1
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event will occur which will require use of one or more aspects of emergency planning. The probability arguments used by the Commission are really arguments that we do not need any emergency planning,
' rather than that we need not coo. sider earthquakes in emergency plan-ning. The Commission simply asserts that there is a low likelihood of a release and an earthquake at the same time and assumes that that ends the inquiry.
Unfortunately, the Commission ignores the fact that safety calcula-tions are subject to some uncertainties. The philosophy behind emergen-cy planning is to recognize this uncertainty and to provide defense in depth in protecting the public. Indeed, the Commission's emergency planning regulations are founded on the judgment that adequate emergency planning is an essential element in protecting the public health and safety independent of the Commission's other regulations and safety reviews focusing on the design of the plant itself. Obviously, we do not plan for every conceivable but highly unlikely event. We should not, for example, waste resources planning for the effects of hur-ricanes on emergency responses in Kansas or for snow in Southern California. Instead, we plan to take into account the natural phenomena which present the mere likely risks for a particular area. Thus, we con-sider hurricanes for plants in Florida, tornados for plants in the Midwest, and volcanic eruptions in the Pacific Northwest. By the same l- token, we should consider the complicating effects of earthquakes for plants m high-seismic-risk areas such as California. I t The Commission tells us, however,-that the probability of an earth- l quake disrupting an emergency response in an Emergency Planning Zone (EPZ) is too low even to be considered. To apply this argument to California,'where almost 90% of the seismic activity in the United States occurs and where earthquakes which damage, obstruct or disrupt roads, buildings, bridges and communications networks occur with some regularity, simply ignores common sense. In support of this assertion, , the Comrnission contends that the Diablo Canyon site is located in an I area of low-to-moderate seismicity. This argument is based upon an anal-ysis in the record of the recurrence rate for earthquakes in.the central California coastal region for the years 1950 through 1974. What the Commission does not mention, however, is that the onlyi plant in the country with a comparable SSE and OBE (Operating Basis Earthquake)
- the key bases for the seismic design of the plant - is San Onofre (0.67g and 0.34g, respectively). In fact, the SSEs and OBEs for plants in other parts cf the country are significantly lower (for other plants the SSE is typically 0.25g or less and the typical OBE is 0.ll-0.12g, ,sith the highest being 0.13g) than those for Diablo Canyon (SSE of 0.75g and 262
OBE of 0.20g). Clearly, by requiring the plant to be designed to with-stand an earthquake with ground motions almost twice those of other plants in the country, the Commission explicitly made the technical judgment that the earthquake risk for the Diablo Canyon area is not comparable to other areas of the country, and is, in fact, much higher.2 Further, the Commission's argument must be considered in light of the other natural phenomena the Commission includes in its considera-tion of emergency planning. If the probability of an earthquake disrupt-ing an emergency response in an EPZ in California is too unlikely to be considered, that probability must by definition be much lower than the probability of disruption caused by the other natural phenomena which the Commission does consider. It must, for example, be less likely than the probability that a tornado will disrupt an emergency response in an EPZ in the Midwest or that a hurricane will disrupt an emergency re-sponse in a California EPZ. The probability that a tornado will travel through a particular 10-mile area and thereby initiate or disrupt response to an emergency at a nuclear plant must be quite low; yet, the Commission requires consideration of that issue for certain plants. Similarly, the probability of a hurricane striking the San Luis Obispo coastal area and initiating or disrupting an ) emergency response must also be quite low; yet, the Commission con-sidered that very issue in the Diablo Canyon case. I see no factual basis for the Commission's assertion that earthquakes in California are so much more unlikely than either of these events that earthquakes need not be considered. The Commission's order also misses another very important point. Emergency planning is not relevant only to accidents resulting in the off-site release of radiation. Emergency planning is also relevant for re-sponses to emergencies which do not result in a radiological release, including emergencies initiated or complicated by earthquakes below the SSE. For example, whether or not an earthquake results in the offsite ( 2 Pubhcty available informauon compiled by the U s Geological survey (UsGs) would seem to indsate that earthquakes of sufrecient magmtude to cause posuble damage, obstruction or disruption to roads, buildings. bridges and commumcanon networks occur throughout many parts of Cahforma, mcluding the san Luis Obispo area with some regulanty. " Earthquake History of the Umted states, Pubheauon 41 1.1982 Reprint with supplement. A6 cording to this informaison. four earthquakes have occurred in the immediate san Luis obispo area smce 1830. and at least one or these earthqu4kes has been of magmtude 7 8 on the Modified Mercalk scate. Id at I)3.140.141.156.162,164 In addition, two other earthquakes, of magnitudes 6 5 and 7 5. have occurred withm 50 miles of the Diablo Canyon site unce 1922. -Earthquate Epicenter Map of Cahforma.1900 through 1974.* state of Cahforma. the Resources Agency. Department of Conservauon 1978 This pubhcty available informanon. although not m the record of the Daablo Caevos proceeding. would also appear to contradict the Commiscon's assertions regarding the frequency of occurrence of earthquates m the vwimty of the D'ablo Canyon ute whwh are sufreciemly severe to cause damage to structures and disrupt communicauons. Mah of this same infor-manon is also m the FsA R for Diablo Canyon.
- hich is a part of the record m this proceeding 263 l
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release of radioactivity, an emergency plan must take into account the assurance of continued communication between a plant and offsite emergency response agencies, the ability to obtain damage estimates for the plant and the otTsite transportation and communication facilities to provide data for decisions on appropriate responses, the asailability of backup facilities to ensure continued functioning of an emergency re-sponse capability, and the ability to transport necessary personnel to a plant to deal with the emergency. In its June 22,1982 memorandum to the Commission, the NRC staff recognized this: There is no explicit guidance in Ithe Commission's regulations) as to the estent to which adverse carthquake conditions are to be taken into account in emergency planning at particular sites. . . The occurrence of eartnquakes of a nature that could have implications for onsite or offsite response actions or initiate occurrences of the
" Unusual Event" or " Alert" class is an adverse characteristic of the type discussed above.
Memorandum at 3-4. The staff went on to note that it asks applicants for licenses for California facilities and FEMA to consider such earthquakes (smaller than the Safe Shutdown Earthquake) in their emergency plan-ning for this very reason. The Commission simply ignores the fact that the staff has been requir-ing licensees for plants located in California to consider the effects of earthquakes on emergency planning. The staff has stated that while it does not think such consideration is necessary for plants in most areas of the country, " planning for earthquakes which might have emergency preparedness implications may be warranted in areas where the seismic risk to offsite structures is relatively high (e.g., California sitesL"3 Memoranda of June 22, 1982, and January 13, 1984. The complicating effects of earthquakes on emergency planning were formally considered by the staff in the San Onofre proceeding, and were informally consid-ered by the staff for Diablo Canyon. By their own actions, the agency's technical experts have demonstrated that they consider this issue to be material to the Commission's licensing decisions in these two cases. Given the fact that the staff experts on this issue have been concerned 3 In its response to the Commission's order, stafr counsel attempted so withdraw this concluuon The fact remains. however. that stafr has indeed been conudering the comphcahns effects or earthquakes on emergency planmrg at Cahforma plants. includ2ng Diablo Canyon staff required PGA E io prepare a report on this issue. Presumably, the stair does not ask Imense appucants to look at inues ehwh it thinks are irrelevant. Perhaps the staffs new poution has something to do niin the fact that for the only two plants located in "high sessms aress." the stafr has now completed its review of seismic effects on emergency planmns This appears to be the only plausible reason for such a radical char se in staffs poution Further, stair explaened that what it really wanted was to conuder this issue. but only "snformally." Ser 261, supra. 264
enough to consider it. I see no basis for the Commission's argument that in the cases of Diablo Canyon and San Onofre, seismic effects on emergency planning are irrelevant. Since the issue is clearly material to the agency's licensing decision in those two cases, the Commission is re-quired by law to grant the parties an opportunity to litigate that issue. See Union of Concerned Scientists v. NRC, 735 F.2d 1437 (D.C. Cir. 1984.) Apparently recognizing the weaknesses in their low probability 4
, argument, my colleagues have also attempted to support their decision by arguing that the disruptions to emergency response caused by fog, hurricanes and heavy weather are similar to the disruptions which may result from an earthquake.- Thus, the Commission argues, emergency plans implicitly have enough Dexibility to deal with earthquakes as well.
This is an interesting argument. Unfortunately, the Commission cannot point to any evidence in the record of this proceeding to support such a factual finding. Although the Diablo Canyon record includes information on natural phenomena other than earthquakes, there was no discussion in that record of earthquake effects, or whether the plans for dealing with other natural phenomena are Dexible enough to implicitly include the effects of earthquakes. The Commission's conclusion seems, there-fore, to be based on the Commission's intuitive feeling that the finding 3 ought to be true rather than on any kind of factual record. This is pre-cisely the type of factual question that should only be decided based upon a site-specific, factual record, developed and tested in a hearing (or at least after consideration ofinformation in the record of a rulemak-ing specifically addressing this issue). Finally, the Commission has decided that the regulations are not suffi-ciently clear on whether earthquakes must be considered in emergency planning and so intends to conduct a generic rulemaking on the issue. The Commission disagrees with the staff's view that a generic rulemak-ing is not necessary, although it offers no persuasive reason for rejecting i the staff's technicaljudgment on this question. Unfortunately, the Com-l mission's belatedly renewed promise of a generic rulemaking appears to be little more than window dressing. The Commission's justification for , not considering seismic effects on emergency planning at Diablo Canyon l clearly shows that it has already decided the issue. If the Commission will not require the consideration of earthquakes for plants located in an > area of the country where 90% of the seismic activity occurs, it is unlike-ly to conclude that they must be considered for plants elsewhere. Since the Commission appears to have already decided this fundamental issue, it is unclear what it hopes to accomplish with such a rulemaking. I have 4 agreed to the Commission's decision to conduct such a rulemaking, but 265 o
l l i only because some consideration of this issue is better than no consider-ation at all. It is absolutely amazing, the lengths to which the Commission will go to avoid finding that a party is entitled to a hearing on an issue. In this case, the Commission has constructed an elaborate, but flaw ed, rationale in an attempt to explain why earthquakes need not be consid-ered in emergency planning for Diablo Canyon. The Commission has then proceeded, as a factual matter, to consider the effects of earth-quakes on emergency planning. As a last resort, the Commission has again promised to conduct a generic rulemaking on this issue, a promise that it made 3 years ago but did not keep. The unfortunate consequence of this delay has been to put the issue olT until the two California plants have been licensed. l i J f l i 266 1 i
b t Cite as 20 NRC 267 (1984) CLI-84 13 , UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1 COMMISSIONERS: Nunzio J. Palladino, Chairman
- Thomas M. Roberts James K. Assefstine j Frederick M. Bernthat Lando W. Zech, Jr.
I A in the Matter of Docket Nos. 50 275 OL 50-323 0L i PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power i Plant, Units 1 and 2) August 10,1984 1 l The Commission determines to make effective, without prejudice to i the pending appeals and petitions for review of the various licensing and appeal board decisions in this proceeding, the Licensing Board's fourth 4 and Gnal PartialInitial Decision authorizing the issuance of a full power I license for the Diablo Canyon Nuclear Power Plant Unit 1. LBP 82 70, 16 NRC 756 (1982), and, further, concludes that the license conditions imposed by the Board have been fulGiled and all other matters resolved so that the license may be issued. i MEMORANDUM AND ORDER I INTRODUCTION This order concludes the Nuclear Regulatory Commission's process for determining whether to make effective the Atomic Safety and 267 l I
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r Licensing Board's (" Licensing Board") fourth and final Partial Initial Decision (PID), LBP 82-70,16 NRC 756 (1982) authorizing the is-suance of a full-power license for the Diablo Canyon Nuclear Power Plant, Unit 1 ("Diablo Canyon" or " plant"), to Pacific Gas and Electric Company ("PG&E"), subject to the satisfaction of certain license < conditions. Formal appeals and petitions for Commission resiew of the merits of various Licensing Board and Atomic Safety and Licensing Appeal Board (" Appeal Board") decisions for Diablo Canyon are still pending. This efft.ctiveness decision is without prejudice to those appeals and petitions.10 C.F.R. } 2.764. In addition to reviewing the Licensing Board's decision and determin-ing the status of the license conditions imposed in it, the Commission has considered several other issues, some of which arose as a result of the unique circumstances associated with this plant. The other matters considered by the Commission are: licensing issues which were not placed in controversy in the formal licensing hearings, including review of the concerns of Nir. Isa Yin regarding small-bore piping and pipe sup-ports (Str. Yin is an NRC inspector who was assigned to review some of the allegations regarding Diablo Canyon); issues related to the Independ-ent Design Verification Program (IDVP) and determined by the NRC staff to require resolution prior to full-power operation: NRC statTevalu-ation of training and qualification of operators and shift supervisors; pendmg petitions for enforcement action pursuant to 10 C.F R. y 2.206; allegations determined to require resoluticn prior to full power operation; investigations by the Office of Investigations (01) and the Office of Inspector and Auditor (OIA); recent Appeal Board decisions on motions to reopen the record, and on design quality assurance (DQA) and construction quality assurance (CQA); consideration of the effects of earthquakes on emergency planning; and Joint intervenors' re-quest for a stay of this licensing proceeding. CONCLUSION The Commission's decision on these issues is discussed below. In sum, the Commission has determined: (1) to make effective, without prejudice to the pending merits reviews, the Licensing Board decision authorizing issuance of the full-power operating license for Diablo Canyon; (2) that the license conditions imposed by the Licensing Board have been fulfilled; and 0) that all of the other matters listed above have been resolved adequately to authorize issuance of the full-power license for Diablo Canyon Unit 1. However, this Order shall not become effective, and no full power license may issue, until 5:00 p.m., Eastern 268 l l l I
Daylight Time, August 17, 1984. This delay is to allow orderly process-ing of any request for expedited judicial review. DISCUSSION
- 1. Licensing Board Decision
, in LBP-82-70,16 NRC 756 (1982), the Licensing Board detcrmined that a full power operating license for Diablo Canyon could be issued upon the satisfaction of certain license conditions. Presious decisions by the Licensing Board and Appeal Board resolved other contested matters. The two remaining issues decided by the Licensing Board in LBP 82 70 were: (1) the adequacy of the Diablo Canyon cmergency plan; and 1 (2) whether the plant's pressurizer heaters, block valves and pow-er-operated relief valves were requireu to be classi0cd as safety-grade and provide adequate protection to the public health and safety as installed. The Licensing Board fourid that PG&E's emergency plan would satisfy i Commission regulations and be adequate upon completion of the follow-I ing license conditions by the Director of Nuclear Reactor Regulation:
- a. verification that deSciencies identiGed by FEMA in the San Luis Obispo County emergency plan have been corrected;
- b. receipt of written acquiescence by the appropriate State jurisdic-tions binding them to participate in the Standard Operating Procedures required to be followed by Federal Regulations;
- c. receipt of FEM A findings on the adequacy of the State Emergency Plan; and
- d. veriGeation that tone alerts or equivalent warning devices are operational in schools, hospitals and other institutions.
On August 2,1984, the Director informed the Commission that all these license conditions were satisGed.' As for the pressurizer heaters, power-operated relief valves and their associated block valves, the Licensing Board found that: (1) pressuriter heaters were not required to be safety grade; (2) two of the three 3 In ALAB.776.19 NRC 1373 (1994L the Appeal Board maled the hsense condition requer og the
, Director to obtain FEM A Ondings on she adequacy or the state emergency plan. insofar as that laew
, condition may have been interpreted to regaire compfesion or the tormal FEM A reuew process under 4 44 C F R. 6 350. To the extent that she L4enung Boa rd may hase had a less tormal FEM A reuew in j mind, the Board's condition has been satnsCed by FEMCs letter or July iI,1994 The merits reue= or ALA8 776 is pending before the Commmmn. and the Commmion does not. at t%s pmnt, eipreu any new on the correctness of ALA8 74 i 4 269
PORVs and associated equipment are safety grade; and (3) adequate pro-tection of public health and safety is providea by this equipment as installed. These decisions obviously support the issuance of a full-power license. The Commission finds nothing in the pending appeal which would support a stay of license issuance.
- 2. Uncontested Licensing Issues
- a. Conditions on the Low-Power License The low-power license for Diablo Canyon contained several license conditions required to be satisfied by PG&E prior to a full power license decision. Seven of these conditions were a direct outgrowth of concerns raised by Str. Yin. In response to his concerns, the NRC staff formed the Diablo Canyon Peer Review Group (Peer Review Group), which included senior staff engineers expert in piping, piping supports, and quality assurance. After meeting with Afr. Yin and PG&E, and aster examining areas of the plant of concern to Str. Yin, the Peer Resiew Group formulated the seven license conditions.
The license conditions addressed the following issues:
- 1. review of all computer calculations of small bore piping supports;
- 2. review of rigid supports placed in close proximity to each other to assure that 'oad sharing results in acceptable piping and sup-port stress;
- 3. review of snubbers in close proximity to rigid supports to ensure adequate snubber function;
- 4. development of a periodic inspection program to ensure the maintenance of thermal gaps included in thermal analysis of piping;
- 5. establish procedures and schedules for the hot walkdown of the main steam piping system and document the results of such walkdown;
- 6. review, resolve and document certain piping design changes; and
- 7. demonstrate by report to the Commission that certain technical issues in the design of supports for small-bcre and large bore piping have been addressed.
After a thorough review, the Peer Review Group and the Advisory Committee on Reactor Safeguards (ACRS") found that PG&E had analyzed and resolved the issues in the license conditions adequaten to permit full power operation. These conclusions are set forth in staff's 270 i
i l l 4 ! Safety Evaluation Report Supplement ("SSER") 25. SSER 25 is dis-cussed further under j 3. below. l At the August 2,1984 public Commission meeting, Str. Yin expressed j his professional disagreement with the Peer Review Group's report on j the adequacy of the resolution of certain design issues. The Commission l explored with Str. Yin and other members of the NRC staff the details j of this differing professional judgment. Based on these discussions and
- the analyses in SSER 25, the Commission believes that the collective judgments by the Peer Review Group and ACRS are deserving of more weight than the views of hir. Yin. Accordingly, the Commission accepts j the judgments of the Peer Review Group and ACRS and believes that l these matters have been resolved adequately for issuance of a full-power ,
! license.
Staff concluded in SSER-23 that PG&E had satisfied its requirements
- related to fire protection. Staff also reported in SSER 21 that PG&E'sjet i
impingement evaluation, conducted in response to a condition imposed by the Appeal Board in ALAB-763,19 NRC 571 (1984), was acceptable. i , b. Otherissues i As with any full-power license, the license for Diablo Canyon contains
- several technical conditions which reflect the NRC staff's prelicensing
- technical review of issues relevant to full-power operation. For Diablo Canyon, the license conditions and the technical bases for them are con-tained in SSER 27. The Commission believes that SSER 27 adequately addresses the full-power issues considered by the staff.
f 3. Independent Design Verification Program
- a. Large- and Small-Bore Piping j In SSERs 18,19 and 20 the staff identified issues regarding the
- IDVP's review of the design of small- and large bore piping and stated j
} that those issues should be resolved prior to full-power operation. Those ~
! issues arose out of inspections performed in response to allegations con-
! cerning the control of design of pipes and piping supports. The principal } issues identified by the staff were: (1) adequacy of the size of the j sample used to determine the acceptability of small bore piping designed in accordance with " span-rules"; (2) apparent inconsistencies between alleged deficiencies in Interim Technical Reports and the decision not to - expand the IDVP; and (3) adequacy of the sample size and distribution
; used to analyze large-bore piping and its supports.
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The NRC stafrs procedure for resolving these issues is described in SSER 25. The Peer Review Group determined that piping designed using span-rules was acceptable, that well-founded judgmental factors had been applied to select the size and distribution of samples for review, that the number and types of samples were adequate to verify design methodology, that apparent deficiencies in the ITRs were found
- nsignificant to the IDVP when viewed in light of the backup material, and that review of all small-bore, computer-analyzed supports showed i that input errors had no impact on satisfying the licensing criteria.
Accordingly, the Peer Group reaffirmed the IDVP's conclusion that the design of large- and small bore piping had been verilled. The Commis-sion finds that the issues regarding the IDVP's review of large- and small-bore piping have been adequately resolved to permit full-power operation.
- b. Other issues Supplements 18,19 and 20 to the Safety Evaluation Report for Diablo Canyon also identified a number of other items requiring resolution prior to full-power operation. In Supplement 24 to the Safety Evaluation Report (SSER 24) the staff has reported that all these items have been resolved. The Commission has no reason to disagree with the stalTs analysis.
- 4. Training and Qualification of Operators and Shift Supervisors On July 13, 1984, the NRC staff reported to the Commission on the performance of operating crews and shift advisors 2 during startup and low power testing. SECY-84-283 (1984). The report was based on obser-vations and evaluations by various teams composed of members of the NRC staff expert in operator licensing, license qualification, and license examination The teams concluded that:
- 1. PG&E has provided shift advisors that meet the Commission requirements for qualifications, training and experience;
- 2. the shift advisors are successfully working with operating shift crews;
- 3. operator crew performance during startup and low power test-ing has been above average; and 2 shirt admors expenenced with Pw Rs comparable to Diablo Canyon were prouded for each operating shirt to provide operating support until the operating crews attained cupenence with operating the facility.
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- 4. licensee management is adequately involved in day-to-day op-erations.
On the basis of this report, the Commission concludes thTt the operat-ing staffis capable of operating Diablo Canyon at full power. S. Petitions Under 10 C.F.R. I 2.206 in recent months several petitions for enforcement action related to Diablo Canyon were Gled. Essentially, these petitions were based on various allegations regarding construction practices and plant safety. These allegations are discussed below. At the August 2,1984 public t Commission meeting, the staff reported that it found nothing in the peti-tions that would warrant deferring the authorization of full-power opera-tion.
- 6. Allegations Relevant to Full Power l
As of July 8,1984, there were over 1400 allegations regarding Diab;o l Canyon, although many (some 400) were duplications or small varia-i tions of others. All these allegations were Gled since early 1983, some 4 10 years after PG&E Gled its operating license application. In SSER 26. the staff reported that it considered 581 allegations formally resolsed, and that in its view none of the other allegations required formal resolu-tion prior to full-power operation. i All allegations were handled by the Diablo Canyon Allegation 51anagement Program (DCAN1P) described in SSER 21 and SSER 22. Under that program, the NRC staff has pent thousands of hours inves-tigating and evaluating those allegations. All allegations were screened using criteria set out in SSER 22 for determining which allegations re-quired resolution prior to full power operation. As a result of this screening, seven areas were identiGed in SSER 22 as requiring resolution prior to exceeding low power:
- 1. Operational Limits for the Component Cooling Water System.
- 2. Replacement of Welded High Strength Bolts;
- 3. As-Bui:t Drawings for Operations;
- 4. Completion of Systems Interaction Program and Stodi0 cations;
- 5. Evaluation of Coating Concern;
- 6. Piping and Supports and Related Design issues; and
- 7. Residual Heat Removal Low Flow Alarm.
The detailed evaluations and resolutions of these allegation areas are contained in SSER 26. In addition, SSER 26 resolves a subsequently de-veloped allegation area regarding bolted connections. 1 273
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i At the August 2,1984, public Commission meeting, the staf f reported that approximately 300 of the remaining allegations had been resolsed satisfactorily and that the documentation of these resolutions would be available shortly. The staff also reported that resolution of all of the alle-gations required only iery few (less than ten) physical changes to the
- plant. Some 500 allegations remain which have not been formally re- ,
solved. Ilowever, each of these has been resiewed under the SSER 22 screening criteria, and it has been determined that full power operation can be authorized pending formal resolution. Allegations of harassment or intimidation receised special Commis-sion attention. Relatively few (eight) individuals have made such charges, and staff concluded, based on its resiews, which included inter-views of approximately 250 individuals on site and hundreds of interac-1 tions with others in the course of reviews of allegations, that there was no widespread pattern of harassment or intimidation suflicient to call , the quality of the plant into question. ' Based on our review of the information contained in SSER 26 and the information described above, as well as the other information provided 1 at the August 2 meeting, the Commission belieses that a full power license need not be deferred pending the formal resolution of the out-standing allegations. EITorts to resolve all remaining allegations l'ormall> will continue-t
- 7. Investigations i The Office ofInsestigations is still pursuing a number of allegations of 3 wrongdoing related to Diablo Canyon, some related to harassment or in-I timidation of PG AE contractor quality inspectors. Staff informed the Commission at the August 2 meeting that these pending matters need not delay full power authorization because, based on its screening of the
! allegations against the criteria of SSER 22, it found no significant techm-
- cal problem or pervasive pattern of purposefulintimidation. At the ume meeting, the Omcc ofInspector and Auditor (Ol A) reported that allega-2
., tions of wrongdoing by the staff had not been substantiated. The Com- t mission also discussed with Mr. Ronald Smith, the OIA investigator, allegations regarding his conduct of the investigation.
Based on the written and oral report by the stalf, the Commission con. cludes that authorization of the full power license need not await resolu-tion of pending investigations and that there is no reason to pursue fur-ther the allegations of staff wrongdoing. 27.1 i l l i
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.-.n.,, - ,, . . - , -- - . , . - - . , - - - , ., .. --. , - - ,-.-- - .-n, . , ,- . ,,--
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- 8. Adjudicatory Decisions in ALAB 756.18 NRC 1340 (1983), the Appeal Board determined i that Joint Intervenors and the Gosernor of California had failed to carr) the heavy burden of showing thx the formal adjudicator > record on con-struction quality as<urance should be reopened. Petitions for Commis-sion resiew of this dechion were then filed A majority of the Commis-sion not having soted to review this decision, the petitions for resiew were deemed denied.
In ALAB 763, mera the Appeal Board estensisely resiewed conten-tions regarding alleged deficieneses in the design quality anurance pro-gram as reviewed by the Independent Design Veritieation Program (IDVP). The Appeal Board found that the IDVP had not uncoscred any uncorrected deficiencies in design quality assurance requiring a reversal of the Licensing Board's pressous decision on the adequae) of design quality assurance. The Commission is considering the petitions for review of this decision and the responses thereto. The decision in ALAB 763 obviously supports issuance of a full power license, and the , Commnsion sees nothing in the petitions for resiew that would warrant a stay of the full power license pending further review. In AL AB 775,19 NRC 1361 (1984), the Appeal Board denied addi-tional petitions by the Joint Intervenors and Gosernor of California to reopen the record on design and construction quality .issurance The Comminion has not yet determined whether that Appeal Board decision warrants review. ALAB 775 also supports inuance of a full power license, and the Commission sees no reason to stay the inuance of the full power license rending further review, l
- 9. Effects of Earthquakes on Emergency I'lanning in a separate Decision, CLl 8412,20 NRC 249 (1984L the Commis-sion concluded that its regulations do not require specilic consideration of the effects of earthquakes on emergency planning, and that there are i no special circumstances warranting waiser of the regulations to allow such consideration for Diablo Canyon Rather, this inue would be pur-sued on a generic basis by rulemaking.
- 10. Stay Requests 1
- a. New Seismic Irtformartoot By letter dated July 17, 1984, joint intersenors requested the Com. l minion to del.i) Indefinitely any vote on whether to authorite a full-l 27$
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4 i l i t i 1 power operating license for Diablo Canyon. The bases for joint Interse-l nors' request were recent desclopments regarding the geology of the , I site at Diablo Canyon and new data associated with recent carthquakes in central California. This information has also been supplied to the j Appeal Board in Joint Intervenors' motion to reopen the senmic record J in this proceeding. i Subsequently, on July 25, 1984, joint Intersenors mosed the Appeal , Board to stay the Diablo Can>on proceeding. That stay request incor- l ! porated Joint intersenors' previous request of July 17,1984, and raised l { other issues. By Order of July 27,1984 (unpublished), the Appeal Board ;
! directed that stay request to the Commission. j i The Commission has reviewed the parties' tilings and determined, for l i the reasons discussed below, that a stay of the licensing proceeding is !
I not warranted. l' Before addressing the stay criteria, the Commission notes that it has } recognized the growth of scientific knowledge in seismology and geolog) ; and the resulting potential need to reassess the seismic design basis of
, Diablo Canyon. The license for Diablo Canyon is conditioned on l PGAE's completion of a scismic reevaluation by 1988. Of course,if new i j mformation developed in the interim requires more prompt action, that i j action will be taken. But the information presented now by Joint interse. ,
i nors does not warrant a stay. [ j Traditional stay analysis requires a movant to address sescrat factors t i including, in particular, a demonstration of irreparable injury and proba. ! j bility of success on the merits. As applied to the new seismic informa. I j tion, this requires loint Intervenors to demonstrate that the new infor-l 1 mation requires the conclusion that there is no longer reasonable auur- !
- ance that the seismic design of Diablo Canyon is adequate, and that !
loint Intersenors will be irreparably injured by permitting the plant to ! I operate before the plant is abandoned or rebuilt in accordance with ! , some modified design. A resiew of the information presented by Joint I j Intervenors shows that it does not meet the stay requirements. ! l joint Intervenors rely on new data from the Morgan flill carthquake of April 24, 1984 Thn earthquake resulted in the highest horizont,il ! I ground acceleration ever recorded,1.29s, at a site on an abutment of i the Coyote Dam near the southeast end of the rupture tone. Joint Inter. = venors contend that measurement of such a high ground acceleration for l
- an carthquake of magmtude 6.1 shows that the anchor acceleration of !
j 0.75g, taken ,is an important element of the seismic design bam for i Diablo Canyon, is much too low for the Safe Shutdown Earthquake ) (SSE) of magnitude 7.5 auigned to the llosgri Fault. ' l i l f 1 276 l t . ! f i ! I . 4 i t i
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i f l t i This conclusion does not necessarily follow from the data. As joint in. I tersenors acknowledge, there is evidence in the record that two other
, carthquakes smaller than the SSE, the San Fernando Valley earthquake 3
of 1971 and the Imperial Valley earthquake of 1979, both resulted in i ground accelerations substantially higher than 0.75g. An acceleration of j l.25g was measured at the Pacoima Dam in 1971 and an acceteration of { 0.81g was measured at Bond's Corner in 1979. The Appeal Board, in , j ALAB 644,13 NRC 903 (1981), found that in both cases these anoma- i
- tously higher acceleration salues were distorted responses related to sin-l gularities in site geology. PG&E notes in its response to the stay motion i i that the acceleration at Pacoima Dam was almost as great as the accelera-tion measured at Niorgan Hill and, thus, that the Appeal Board already
- took such high values of the acceleration into account when reviewing 1 the seismic design basis of Diablo Canyon.
The Commission finds that the Storgan flill data do not undermine the Appeal Board's analysis. As PG&E and the NRC staff point out, the new high value of ground acceleration observed at Storgan Hill was measured at a dam abutment, thus presenting a situation similar to that
- at the Pacoima Dam. Storeover, as discussed below, the " focusing" i effect beliesed partially responsible for this high value of ground acceler-ation has already been found not to be present at Diablo Canyon. Under j these circumstances, the Joint Intervenors base not established that (
they are likely to demonstrate a lack of reasonable assurance that the r seismic design is adequate. i joint Intervenors also rely on the conclusions of the United States i l Geologic Survey that the Storgan 11:11 earthquake demonstrated " focus- i ing" and "high stress drop." These findings, joint Intervenors contend, { contradict the Appeal Board's conclusions that focusing and high stress ; i drop were speculative phenomena. But the Appeal Board did not merely dismiss focusing and high stress drop as speculative phenomena. For example, focusing was dismissed in part for Diablo Canyon because of site geology. The Appeal Board found
) that focusing would not be expected because the Diablo Canyon site had
- the wrong orientation to the llosgri Fault and was too far from the source of the focussed motion. By contrast, the high ground acceleration associated with the Niorgan flill carthquake was measured at a site l
aligned with the unilateral rupture espansion and close to a secondary r energetic source of seismic radiation. Thus, the Niorgan flill data do not
- undercut the Appeal Board's discussion of focusing.
j As for high stress drop, there too the Appeal Board found that there were no indications of high stress drop regions on the llosgri Fault, not that a high stress drop phenomenon does not exist. The Appeal Board's < 1 I .' 277 t l j k
1 l conclusion is based in substantial part on the determination that the Hosgri Fault would exhibit strike slip / dip-slip motion rather than thrust motion. Joint Intervenors point out that recently published esidence by Crouch and others indicates that the llosgri Fault may be a thrust fault and may be closer to the plant than previously believed. 1 The Commission was briefed on the Crouch data at a public meeting on whether to authorize the low-power license for Diablo Canyon. At that meeting, Mr. James Devine of the USGS expressed the opinion that even if the Hosgri Fault were a thrust fault, the seismic design basis for Diablo Canyon was probably adequate. As he put it, the new data were not "stop the presses"information. PG&E notes that at the Licens-I ing Board hearings several experts testified that the flosgri Fault had a component of reverse faulting and that expert testimony included a dia-gram showing the fault plane in the position predicted by the new information. PG&E also presents expert opinion that the llosgri Fault is not substantially closer to the plant than previously believed. The NRC staff notes that the Newmark Spectrum for Diablo Canyon already ae- }
> counts for the type of motion associated with a thrust rupture at depth which propagates up-dip.
At this point any uncertainty concerning the character of the llosgri Fault should be resolved through the normal scientific peer resiew proc-ess) Indeed, in a letter of June 20, 1984, the ACRS stated that the new data on the character of the Hosgri Fault do not require "immediate revi-sion of the seismic design basis for Diablo Canyon." Finally, Joint intervenors contend that recent earthquake activity in California's central coastal region contradicts the Appeal Board's conclu-l sion that the plant is situated in an area of low to-moderate seismicity. i PG&E has provided contrary expert opinion, and the staff notes that the , six earthquakes referred to by Joint Intervenors occurred over a widely scattered area. Under these circumstances, Joint intervenors base not ] l demonstrated the necessary probability of success on the merits on this point. I b. Other issues Joint Intervenors' stay request of July 25, 1984, raises five other issues which have been raised before the Commission in earlier stages } 3 This would irxlude a reesalvation or the Safe shuidoen Earthquake should the sharnter nr the rault
. be defituuvely determined to tMr or the thrust variety Pending suth a reevaluation. IMere is no basis for
! the Joent Interwriors' assempt on that an ssE of magnaude 15 would still be appropreare for a differant type or rault motion 1 278 4 i _ _ . _ . . .~ _. , ___ ,._ _ . . _ . . _ . . _. _ . - . _ . - __ __
of this proceeding. Because Joint Intervenors present no new perspec-tives on these issues, the Commission responds to them briefly below. (i) Class Nine Accidents - Once again Joint Intersenors contend that the Commission violated the National Environmental Policy Act of 1969 and its own regulation by not explicidy con- i sidering class nine accidents in the Final Environmental State-ment for Diablo Canyon. The Commission has replied to this argument most recently in its brief filed in the U.S. Court of Appeals in the D.C. Circuit in reply to Joint Intervenors' peti-tion for review of the Diablo Canyon low power license. San Luis Obispo Mothersfor Peace v. NRC (No. 81-2034 and consol-idated cases). Joint intervenors have added nothing new to their argument that they are likely to prevail on the merits on this issue. The Commission finds that this issue does net war-rant a stay of the full power proceeding. (ii) Earthquake Emergency Preparedness - As stated above in
% 9, the Commission has addressed this issue by a separate decision.
(iii) Operator Training and Experience - As with Jomt Interve-nors' argument on class nine accidents, nothing new is present. ed on this issue. And as with class nine accidents, the Commis-sion addressed this issue in its brief on the petition for review of the low-power license. In any event, the circumstances regarding this issue have now changed radically su as to render it moot. By virtue of their operating the plant at low power, the operators now have extensive actual operating experience at the facility. Storeoser, the staff has reported that the oper-ators have discharged their responsibilities competently and safely and are capable of continuing to do so. (iv) FENIA Finding on state Emergency Plan - As discussed above in i i regarding the Licensing Board's decision in LBP-82 70, the Director, NRR has reported that FEN! A has made a finding that the California State Emergency Plan for Diablo Canyon is adequate. Accordingly, this issue cannot sup-port a motion for a stay. (v) Quality Assurance - Joint Intervenors' arguments here essen-tially repeat the arguments in their petitions for review of ALABs 756, -763 and 775. A Commission majority does not favor the petitions for review of ALAB 756. As for the peti-l tions for review of ALAB-763 and ALAB-775, this is no dif-ferent from the pendency of any exceptions before the Appeal Board when the Commission conducts an effectiveness review j l 279 I 4 1
of a Licensing Board's decision. While 'he Commission has determined that the petitions for review of ALAB-763 and ALAB-775 do not raise issues warranting a stay, this determi-nation is without prejudice to the Commission's ultimate dispo-sition cf the petition. Joint intervenors have also made no showing of irreparable injury. Their contention that operation of the plant will create a substantial risk is based on their conclusion that there is no longer any reasonable assur-ance that the seismic design of the plant is adequate. As discussed above, this conclusion is not supoorted. CONCLUSION For the reasons set out above, the Commission has determined that the full-power license for Diablo Canyon Unit I may be issued by the Director, NRR. However, this Order shall not become effectise until 5:00 p.m., Eastern Daylight Time, August 17, 1984, to allow for the orderly processing of any reques; For expedited judicial review. Until then, no full-power license will be issued. Commissioner Zech did not participate in this decision. An explana-tory statement by Commissioner Zexh is attached. Commissioner Assel-stine dissents, and his separate staternent is also attached. It is so ORDERED. For the Commission SAhlUEL J. CillLK Secretary of the Commission Dated at Washington, D.C., this 10th day of August 1984 EXPLANATORY STATE 3 TENT OF COSISIISSIONER LANDO W. ZECil The history of the licensing of the Diablo Canyon Nuclear Power Plant is complex and protracted. The record of the proceeding is volumi-nous. I have reviewed a considerable part of the record. I have visited 280
f the Diablo Canyon plant. I have talked to the utility management personnel, including some of the operators, flowever, the time available to me as a Commissioner has simply not been sufficient for me to satisfy myself that I have read, analyzed, and adequately reflected upon all the relevant material. If my vote were needed, either yea or nay, I believe I would need several more weeks before I could come to a decision. Therefore, I have concluded that I cannot vote today on the full power license decision for Diablo Canyon. DISSENTING VIEWS OF CO31311SSIONER ASSELSTINE I am unable to vote in favor of the issuance of a full power operating license for Diablo Canyon Unit I at this time because of the Commis-sion's treatment of two issues: the complicating effects of earthquakes on emergency planning, and the reevaluation of the adequacy of seismic design for small and large bore piping in the plant. The Commission's i decision regarding the effects of earthquakes on emergency planning is being addressed in a separate order, and my views on the Commission's handling of this issue will be set forth in detail there. Suffice it to say here that this issue is material to the Commission's licensing decision in the Diablo Canyon case and that the Commission is compelled as a matter of law and logic to afford the parties to this proceeding an oppor-tunity to litigate the issue prior to authorizing the issuance of a full-power license for the plant. With regard to seismic design, the record of this proceeding, allega-tions filed by former workers at the site and subsequent NRC inspec-tions, including those performed by NRC Inspector Isa Yin, all docu. ment a widespread quality assurance breakdown in the seismic design work for small bore piping in the plant. This quality assurance break-down raises serious questions regarding both the adequacy of quahty assurance for other design activities for the plant and the adequacy of the Independent Design Verification Program (IDVP). Those questions i are of special importance for the IDVP, which was established to verify that the seismic design problems that led to the Commission's suspen-sion of the Diablo Canyon low power license had been identified and corrected. These questions existed at the time that the Commission authorized the reinstatement of the low power license for Diablo Canyon Unit 1. When i voted to permit low power operation, it was with the under. standing that Mr. Yin and other elements of the NRC staff were in 281 i
4 0 I l 5 agreement on the measures needed to resolse those questions prior to a . Commission decision authorizing full power operation. I am particularly disappointed in the staft's subsequent handling of Mr. Yin's concerns. -
- Given the special signi0cance of seismic design for this plant and the j extent of the quality assurance breakdown in the seismic design program ;
; for portions of the plant, it was incumbent on the NRC stati to make j ! every effort to verify that all signiGeant design errors had in fact been
! identined and corrected. Based upon the cor.tinuing concerns espressed , l by Mr. Yin regarding the adequacy of the stalTs seri6eation efforts and the extent of the seismic design quality assurance breakdown in the
- case, I am not yet satis 6ed that the Commission has the information i needed to conclude, with a high degree of confidence, that all significant !
i seismic design errors for this plant have been identified and corrected. j The Agency's handling of these questions is particularly unfortunate j since the adequacy of the seismic design of the plant is a matter of public concern and since it appears that an adequate design scrilication program to resolve Mr. Yin's concerns could be completed in a matter of a few weeks. , i 1 , e I h i ! t i 1 i - 1 l l ( i h j i
- 2n .
i a i i I i i 1 ii i
i. f f f l i Cite as 20 NRC 283 (1984) CLI.84 13A i I I UNITED STATES OF AMERICA - I I NUCLEAR REGULATORY COMMISSION I 5 COMMISSIONERS: f I I Nunale J. Palladino, Chairman
; Thomas M. Roberte James K. Asselet6ne ,
f Prederick M. Sernthat L Lando W, Zech, Jr. -
?
i j in the Matter of Docket Nos. 80 2T5 0L j S0 323 0L ( i ; PACIPIC OAS AND ELECTRIC I COMPANY (Olabio Canyon Nuclear Power : Plant, Unite 1 and 2) September 12,1884 , I ORDER ; Attxhed is an additional Statement of Comminioner L.indo W /cch, Jr., dated September 11,1984 in this matter. For the Commission f l SAMUEL J ClllLK l } Secretary of the Commaston i I Dated at Washington, D C., f l
; this 12th day of September 1994 j l .
i , f 2M3 l l i 1 k I
._____.m._ _ -
. _ . .- . - __ _ . _ _ . -- - - ~ _ _ _ _ _ . . _ _ - _ - - _ -- .-
STATE 3 TENT Ol' CO.\l.illSSIONER LANDO W. ZECil. JR. (September it,19N4)
- 1. On August 17, 1984, a divided panel of the United States Court of Appeals for the District of Columbia Circuit ordered that the NRC's August 10, 1984, Order authorizing full power operation of the Diablo Canyon Nuclear Power Plant (Unit I) be stayed pending the Court's review. The Court's order cited one clause from my explanatory state.
ment for not participating in a sote on the NRC's August 10, 1984, Order (CLI 8413,20 NRC 267). It appears that the Court's order may have misinterpreted the basis for my not participating in this decision in I view of the estreme importance of this matter to all of the interests insolsed, and to my personal responsibilities as a Commmioner, I want to leave no doubt at all on my position in this matter on August 10, f 1984.
- 2. I did not participJle in the Diablo Canyon vote in CLt.8413 I i
was sworn in as a new Commissioner on July $,1984, a little more th.in
! month prior to the August 10 decision. I espl. tined in my statement.
ihe time steilable to me at 4 Commisuoner hat umpty not been wf foent for me to satisfy miself that l have re44, analued. And adequalcly refleued upon 41: the rele-vant material it my vote mere neetted. either ped or nay. I behete 1 *ould need several more weeks before l wuld u>me ia e Jeouori therefore. I h4*e gunsiuded that 1 onnut sote iml4r on the ruli r=.aer twente Jeosion for (b4 bin ran,nn CLI 8413. mrra,20 NRC at 281.
- 3. I did not say, and did not intend to say, that the mu6h longer t period of time to review the DinNo Canpor matter whith was asadable I to my colleagues prior to July S.1984, was not adequate. t hey all had much more than the "several more weeks" which l, as the newest Com.
mmioner, said th.it I would need "before 1(ould come to a deauon " 4 I had absolutely no basis on August 10,1984, to question the cor- l rectness of the decision reached on that date by a majority of my col. leagues to authorite the full power operation of Diablo C,inton Nuclear Power Plant (Unit I). Any different interpretation of my explanatory statement by the Court in its August 17,1984, order umpty does not ac. curately reflect my roution on August 10,1984. l l 2N4 l
i I ) , i i Cite as 20 NRC 285 (1984) CLI 8414 i i UNITED STATES OF AMERICA { NUCLEAR REGULATORY COMMISSION t COMMISSIONERS: i Nunaio J. Palladino, Chairman i Thomas M. Roberts 1 James K. Asseletine Frederick M. Bernthal Lando W. Zech, Jr. ' i 1 [ in the Matter of Docket Nos. 50 275 OL 50 323 0L , e PACIFIC OAS AND ELECTRIC f l COMPANY (Olabio Canyon Nuclear Power Plant, Units 1 and 2) August 20,1984 l The Commission decides not to review the Appeal Board's conclu. I sions contained in ALAB 763,19 NRC 571 (1984), conecrning the ade-
) quacy of the operating license applicant's quahty assurance program, .
1 except for a matter relating to the propriety of the Appeal Board's exclu. , sion of certain contentions from the reopened hearing that was the sub.
- ject of ALAB 763. The Commission indicates its agreement with the f Appeal Board's exclusion of those contentions, but modifies the lloard's reasoning for that action.
1 ORDER ) . The Commission has reviewed the petitions for review of the Atomic j Safety and Licensing Appeal Board's decision in ALAB.763,19 NRC l $71 (1984), and has determined not to revic* that decision, subject to i the following reservation. This reservation rel.nles to the Appeal lloard's l 2#5 t 1 1 I , i
4 i 1 y rationale for excluding from the reopened hearing contentions by the t Joint intervenors and Governor of California on whether PaciGe Gas and Electric (PG&E) has a quality assurance program for the design of structures, systems and components that are "important to safety" within the meaning of Appendix A to 10 C.F.R. Part 50. The record clearly shows that as early as 1974, PG&E's Final Safety
.',nalysis Report (FSAR) publicl> disclosed PG&E's classification of equipment for the purposes of complying with the NRC's quality assur-ance requirements. Moreover, it has been several years since the possi-ble distinctions between " safety-related" and "important to safety" were fully aired by NRC staff. Nothing in the events which have transpired since then constitutes new informatinn regarding PG1E's scheme for
, classifying equipment for the purposes of complying with NRC regula-tions on quality assurance. Accordingly, as contended by the NRC stafT below, the proposed contentions on PG&E's compliance with Appendix A were proffered grossly out of time, i The record also shows, as argued by the NRC staff below, that the i proffered contentions lack the requisite specificity. See 10 C.F.R. I j 2.714(a). The contentions do not identify any particular structures, sys-tems or components for which it is claimed that the quality assurance l program was not commensurate with their safety function.' Under these circumstances, the Commission Onds that the record clearly shows that the proposed contentions regarding PG&E's compli-ance with Appendix A to Part 50 were raised far too late and without the i requisite specincity for their admission into the reopened proceeding. Accordingly, the Commission Onds no reason to review the Appeal. Board's determination not to admit those contentions, but deems the Appeal Board's decision to be modined to the extent necessary for con-4 sistency with this Order, I a i ) l i i fu long / tared L.getmg Co f %horeham % fear Power sunon. t; nit II. CL144 9.19 NRC 432) (19448 j 2H6 i f i
Commissioner Asselstine disapproved this Order. Commissioner Zech did not participate. It is so ORDERED For the Commission SAhlUEL J. CillLK j Secretary of the Commission Dated at Washington, D.C., this 20th day of August 1984 I i; 287 l } \ r
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4 UNITED STATES OF AMERICA ] , NUCLEAR REGULATORY COMMIS310N. , , 1 r e
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, ,i i
COMMISSIONERS: ., I *
< V , Nunzio J. Palladino, Chairman
,1
> 1
- Thomas M. Roberts i
/ James K. Asselstine s
[, Frederick N. Bernthal ,
, . 4 Lando W. Zech, Jr. -q - f n f6 in th2f f atter of "' Docket Nos. PR 50 j '
f*A ~. PR 51 i i44 Fed. Re'; 61,377) 6 i MULEMAKING ON THE STORAGE ' [
; AND DISPOSAL OF NUCLEAR .,
WASTE J
, (Weste Confidence Rulemaking) , August 21 1984 i ,
, t
! The Commission sets. out its findings in tbs waste nfidence rulerneMdg prou: ding called for by the Court of Appeals f& the District of C6tu'ebia r Circuit in Minnesora v. NRC.- 642 FJd 41?i (1979). In gen-eral, t!5 Cor.i mission finds that it can, with reasontble assuran.e, reach favorable cor ck.sions with respect to the , safe storagd and :lisposal of high level radioa.:tive waste and p:nt fuel. Spdicaliy the Commission finda reasonable as?u ance that: !!) safe dispFul of high level radioac-tive^yaste and spht fuel in a mined geolog.( repasitory is technically fed 3Me,12) one he more mined geologic reperitohs for commercial high-level raJiractise uaste and spent fuel will tn avshble tv tt years
'2007 09, and that. 4sflicient repository capacity will be avahafat within
' 30 years be:'ond expirat.on of cny reactor operaim ticense r/disms of j ^ existing cornTercial hi';h level r:(ioactive waste upd spent fuel o'riginat-4
, ing in such reactor and generated up to that timer 13) high level rjdioac-the waste a'nd spent luel will be managed in a' safe manner unni suffi.
j I icient repository capan ty is available to assure the safe disposal of all s. p
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high-level radioactive waste and spent fuel; (4) if necessary, spent fuel generated in any reactor can be stored safely and without significant en-vironmental impacts for at least 30 years beyond the espiration of that reactor's operating license at that reactor's spent fuel storage basin, or at either onsite or offsite independent spent fuel storage installations; and (5) safe independent onsite or offsite spent fuel storage will be made available if such storage capacity is needed. DECISION
1.0 INTRODUCTION
1.1 Initiation of the Waste Confidence Rulemaking Proceeding in response to the remand of the U.S. Court of Appeals for the District of Columbia Circuit (Minnesora v. NRC. 602 F.2d 412 (1979)), and as a continuation of previous proceedings conducted in this area by NRC (44 Fed. Reg. 61,372), the Commission initiated a generic rulemaking pro-ceeding on October 25,1979. In its Notice of Proposed Rulemaking, the Commission stated that the purpose of this proceeding is solely to assess generically the degree of assurance now available that radioactise waste can be hfely disposed of. to determine when such disposal or offsite storage will be available, and to determine whether radioac. tive wastes can be safety stored on site past the espiration of esisting facihty licenses until offsite disposal or storaga is asailable. The Commission also stated that in the event it determined that onsite storage of spent fuel would be necessary or appropriate after the expira-tion of facility licenses, it would propose a rule addressing the ensiron-mental and safety implications of such storage. The Commission recog-nized that the scope of this generic proceeding would be broader than the Court's instruction, which required the Commission to address the questions of whether offsite storage for spent fuel would be available by the expiration of reactor operating licenses and if not, whether spent fuel could continue to be safely stored on site (44 Fed. Reg. 61,373). However, the Commission believed that the primary public concern was whether nuclear waste could be disposed of safely rather than with an offsite solution to the storage problem per se. Moreover, as stated in the federal Register Notice on October 25,1979, the Commission com-mitted itself to reassess its basis for reasonable assurance that methods 289 l . .
.)
? . L of safe permanent disposal of high-1 vel waste would be available when j iney are needed. In conducting that reassessment, the Commission noted that it would " draw upon the. record compiled in the Commis-s sion's recently concluded rulemaking on the environmental impacts of
. the nuclear fuel cycle (44 Fed. Reg. 45,362 74 (Augu:n 2,1979])" (44 Fed. Reg. 61,373).
The Department of Energy (DOE), as the lead agency on nuclear ! waste management, filed its statement of position (PS) on April 15, 1980. Statements of position were filed by thirty participants by June 9, l_ 1980, and were followed'by cross-statements (CS) from twenty-one of the participants by August 11,1980. I f. [ 1.2 Establishment of the Working Group ' On May 28,1980, the Commission directed the staff to form a Work-ing Group to advise the Commission on the adequacy of the record to be compiled in this proceeding, to review the participants' submissions and identify issues in controversy and any areas in which additional in- ) formation would be needed. The Working Group submitted a report to j the Commission on January 29, 1981. The report summarized the rec-ord, identified key issues and controversies, and commented on the ade-quacy of the record for considering the key issues. The participants were invited to submit comments on the adequacy of the Working Group's summary of the record and its identification and description of the issues. Such comments were made by twenty participants by March 5, 1981. 1.3 Commission's Order for Oral Presentations I l The Commission found additional limited proceedings to be useful to allow the participants to state their basic positions directly to the Com-missioners and to enable the Commissioners to discuss specific issues with them. In addition, the Commission invited comment on the follow-ing policy developments: (1) the Administration *s announcementi of a policy favoring commercial reprocessing of spent fuel and instructing l the Secretary of Energy to proceed swiftly toward deployment of a . I means of storing and disposing of commercial high level radioactive waste, and (2) the submission of information to the Presiding Officer in i Presidential . Nuclear Pohey statement. october 9.1981. o - 290
;w e
l this proceeding by DOE on Starch 27,1981, concerning the DOE deci-sion to " discontinue [its} efforts to provide federal government-owned or -controlled away-from-reactor (AFR) [ spent fuell storage facilities." The participants were asked to comment on the significance to the pro-ceeding of issues, particularly institutional concerns, resulting from these policy developments and to comment on the merits of DOE's new projection of spent fuel storage requirements and on the technical and practical feasibility of DOE's suggested alternative storage methods. To implement the additional limited proceedings, the Commission consolidated the participants into the following identifiable groups: (a) Federal government, (b) State and local participants, (c) industry, and (d) public interest groups (Second Prehearing 51emorandum and Order, November 6,1981 (unpublished)). Prehearing statements (PHS) were provided by the consolidated groups, as well as by individual participants. The oral arguments were presented to the Commissioners on January 11,1982. The extensive record, comprised of all written and oral submissions, provides the primary basis for the Commission's decision regarding the safe storage and disposal of spent fuel and nuclear waste. However, while the Commission was preparing this Waste Confidence decision, the Nuclear Waste Policy Act of 1982 (NWPA) was enacted. The Com-mission found that this Act had a significant bearing on the Commis-sion's decision, and the Commission has considered the NWPA in reaching its conclusions. The Commission believes that the NWPA had its most significant impact in narrowing the uncertainties surrounding in-stitutional issues. htoreover, although the NWPA is intrinsically incapa-ble of resolving technicalissues, it will establish the necessary programs, milestones, and funding mechanisms to enable their resolution in the years ahead. The Commission's preliminary decision in the Waste Confidence pro-ceeding was served on the consolidated participants on Stay 17, 1983. However, the parties to this proceeding had not yet had an opportunity to comment on what implications, if any, the NWPA had on the Com-mission's decision. Further, the Commission's discussion of the safety of dry storage of spent nuclear fuel, in its prehminary decision, relied substantially on material not yet in the record. Therefore, the prelimi-nary decision was issued as a draft decision. The Commission requested the consolidated groupings of participants to comment on either or both of these issues. In addition, the Commission found that onsite storage after license expiration might be necessary or appropriate, and there-fore, in accordance with its notice initiating this proceeding, it proposed 291 l
a rule to establish how the environmental effects of extended onsite stor-age would be considered in licensing proceedings (48 Fed. Reg. 22,730 (1983)), as amendments to 10 C.F.R. Parts 50 and 51. Subsequently, in response to public comments on the proposed amendments to 10 C.F.R. Part 51, the Commission reopened the com-ment period to address the environmental aspects of the fourth Gnding of the Commission's Waste Confidence decision, on which the proposed amendment to Part 51 is based (48 Fed. Reg. 50,746 (1983)). Public comments were requested on: (1) the environmental aspects of the fourth finding - that the Commission has reasonable assurance that, if necessary, spent fuel can be stored without significant environmental ef-fects for at least 30 years beyond the expiration of reactor operating licenses at reactor spent fuel storage basins, or at either onsite or otTsite independent spent fuel storage installations; (2) the determination that there are no significant nonradiological consequences which could ad-versely affect the environment if spent fuel is stored beyond the expira-tion of operating licenses either at reactors or at independent spent fuel storage installations; and (3) the implications of commen s on items (1) and (2) above for the proposed amendment to 10 C.F.R. Part 51. After reviewing these additional comments, the Commission found no reason to modify its fourth finding or the supporting determination. The analysis of comments, together with the Commission's response is summarized in the Addendum to the Commission's decision. The Commission notes that two relevant developments have occurred subsequent to the closing of the record in the Waste Confidence proceeding. They are the publication of DOE's draft 51ission Plan for the Civilian Radioactive Waste 51anagement Program (April 1984) and the Commission's concurrence in DOE's General Guidelines for Recommendation of Sites for Nuclear Waste Repositories (July 3, 1984). These developments are a matter of public record, and in the case of the Commission's concurrence was the conclusion of a separate public proceeding. The Commission has considered the effects of these developments on its previously announced decision in this proceeding and determined that these developments do not substantially modify the Commission's previous conclusions. The decision is summarized as five Commission findings in j 2.0. The detailed rationale for these findings, including references to the record developed in this proceeding, is contained in the Appendix to this document. The Commission considers these five findings to be a re- I sponse to the mandate of the U.S. Court of Appeals for the District of i Columbia Circuit and, in addition, a generic determination that there is I 1 292 l
reasonable assurance that radioactive waste can and will be safely stored and disposed ofin a timely manner. In keeping with its commitment to issue a rule prosiding procedures for considering environmental effects of extended onsite storage of spent fuel in licensing proceedings, final amendments to 10 C.F.R. Parts 50 and 51 are being issued simultaneously with this decision. 2.0 COMMISSION FINDINGS:
- 1. The Commission finds reasonable assurance that safe disposal of high-level radioactive waste and spent fuel in a mined geologic repository is technically feasible.
- 2. The Commission finds reasonable assurance that one or more mined geologic repositories for commercial high level radioactive waste and spent fuel will be available by the years 2007-09, and that sufficient repository capacity will be available within 30 years beyond expiration of any reactor operating license to dispose of existing commercial high-level radioactive waste and spent fuel originating in such reactor and generated up to that time.
- 3. The Commission finds reasonable assurance that high level radi-oactive wa3te and spent fuel will be managed in a safe manner until sufli-cient repository capacity is available to assure the safe disposal of all high-level radioactive waste and spent fuel.
4 The Commission finds reasonable assurance that, if necessary, spent fuel generated in any reactor can be stored safely and without sig-nificant environmental impacts for at least 30 years beyond the expira-tion of that reactor's operatmg license at that reactor's spent fuel storage basin. or at either onsite or offsite independent spent fuel storage installations.
- 5. The Commission finds reasonable assurance that safe independent onsite or offsite spent fuel storage will be made available if such storage capacity is needed.
2All 6ndings by the Commission in this proceeding are limited to the storage and disposal of hig*:-lesel radicactive maste and spent fsel generatcJ by nuc! car poner textors required to be h6enxJ under H 103 or 104b of the Atomic Energy Act of 1954 (42 U.s C. H 2133 and 2134164, and to facilioes in-tended for suth storage or disposat. The Cornmission's Gndings in this proceedirig do not address the storage and dispowl of high-level radioactive maste or spent fuel resulting from atomic energy defeng activities, research and desetopment actevities of the Department of Enersy. or both This is conmtent enh the Nuclear waste Policy Act of 1992 t 8(cl 293 l l
b i 3.0 FUTURE ACTIONS BY TIIE CO31311SSION .~ The Commission's Waste Confidence decision is unavoidably in the nature of a prediction. While the Commission believes for the reasons j set out in the decision that it can, with reasonable assurance, reach favorable conclusions of confidence, the Commission recognizes that
; the possibility of significant unexpected events remains open. Conse- ! quently, the Commission will review its conclusions on waste confidence l should significant and pertinent unexpected events occur, or at least every 5 years until a repository for high-level radioactive waste and spent fuel is available.
4.0 FOR FURTHER INFORSIATION I Contact Dennis Rathbun or Clyde Jupiter, Office of Policy Evalua-tion, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, telephone (202) 634-3295, or Sheldon Trubatch, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555; telephone (202) 634-3224 Commissioner Zech did not participate in this action. l For the Commission i Samuel J. Chilk Secretary of the Commission
- Dated at Washington, D.C.,
this 22nd day of August 1984 Addendum to the Commission's Waste Confidence
- Decision t
INTRODUCTION 4 i i On May 17,1983, the Commission issued its proposed decision in the j ' Waste Confidence proceeding, and asked the consolidated groups of par-ticipants to comment on two aspects of the decision: the implications of the Nuclear Waste Policy Act (NWPA) for the decision and the Com-mission's discussion of the safety of dry storage of spent nuclear fuel, i i , l 294 l ? i 1 _ - c,--_____wy ._, -,.. ~y.,m -m, - - . , . - . . , , , _.%_ y y .y__. yp--w, , , - +3 . r,m 9
which relied substantially on material not in the record. The analysis of these comments is subdivided into several issue categories and present-ed, with NRC's responses, in Part I below. The membership of the con-solidated groups responding to the Commission's request as well as the abbreviations used to identify the groups are provided in } 3 of Part 1. Subsequently, in response to public comments on the Commission's proposed amendment to 10 C.F.R. Part 51 (48 Fed. Reg. 22,730 (1983)), the Commission reopened (48 Fed. Reg. 50,746 (1983)) the comment period to address the environmental aspects of the fourth find-ing of the Commission's proposed Waste ConGdence decision on which the proposed amendment to Part 51 is based. Public comments were requested on: (1) the environmental aspects of the fourth finding - that the Commission has reasonable assurance that, if necessary, spent fuel can be stored without signincant environmental effects for at least 30 years beyond the expiration of reactor operating licenses at reactor spent fuel storage basins, or at either onsite or offsite independent spent fuel storage installations; (2) the determination that there are no signiG-cant nonradiological consequences which could adversely affect the envi-ronment if spent fuel is stored beyond the expiration of operating licenses either at reactors or at independent spent fuel storage installations; and (3) the implications of comments on items (1) and (2) above for the proposed amendment to 10 C.F.R. Part 51. The analysis of public comments and NRC's responses are presented in Part 11 of this addendum. The list of respondents to this reopened comment period and the abbreviations used to identify them are given in j 4 of Part !!. The Commission notes that two relevant developments have occurred subsequent to the closing of the record in the Waste ConGdence pro-ceeding. They are the publication of DOE's draft 51ission Plan for the Civilian Radioactive Waste 5fanagement Program (April 1984) and the Commission's concurrence in DOE's General Guidelines for Recom-mendation of Sites for Nuclear Waste Repositories (July 3,1984). These developments are a matter of public record, and in the case of the Commission's concurrence was the conclusion of a separate public proceeding. The Commission has considered the effects of these devel-opments on its previously announced decision in this proceeding and determined that these developments do not substantially modify the Commission's previous conclusions. 295 i l l l
~
l
1 PART I: ANALYSIS OF Tile CONSOLIDATED GROUPS
- COhl31ENTS ON THE CO31311SSION'S WASTE CONFIDENCE
- DECISION AND NRC RESPONSES
- 1. Effect of the Nuclear Waste Policy Act on the
, Commission's Decision 1 l A. General (1) Summary of Comments The Consolidated Industry Group agreed with the Commission's view i that the NWPA contains provisions pertinent to all of the major ele- , ments relevant to mined geologic disposal of high-level radioactive j wastes (Industry at 3). The Industry Group called attention to the com-prehensive nature of the NWPA which authorizes DOE to undertake steps leading to the construction, operation and maintenance of a deep 4 geologic test and evaluation facility; requires DOE to prepare a waste management mission plan; establishes a prescribed schedule for reposi-tory siting, construction and operation; deGnes the decisionmaking roles of affected States and Indian tribes in repository site selection and t evaluation; provides for the continuity of Federal management of the i nuclear waste program and continued funding; and facilitates the estab-lishment of an overall integrated spent fuel and waste management sys-tem. The Industry Group suggested that these features of the Act should increase the Commission's con 0dence that waste can and will be disposed of safely. The Group pointed out that the Act also contains spe-cial procedures to facilitate the licensing of spent fuel storage capacity ex-pansion and transshipments; directs DOE research, development and cooperation with utilities in developing dry storage and rod compaction;
- and provides for federally supplied interim storage capacity to supple-ment that ofindustry (Industry at 4-8).
4 The Industry Group believed that the NWPA's enactment - in and of itself - provides a sound basis for conndence that institutional difG-culties can and will continue to be resolved. At the same time, Industry stated that the NWPA's enactment was not essential for the Commission ' to reach an afHrmative decision in this proceeding (Industry at 9). In contrast, the Consolidated Public Interest Group (CPIG) believed that the NWPA provides an insufficient basis for the Commission's deci-sion in this proceeding with respect to the availability or timing of a nuclear waste repository. The CPIG contended that the NWPA contains many areas of ambiguity, and gave as examples: 1 1 a 196 i I e
(i) Section ll4(a) of the NWPA requires DOE to make a recommendation to the President for the Orst repository site. accompanied by the preliminary com-ments by the Commission concerning the suitability of three alternative candi-date sites for licensing under 10 C F R. Part 60. DOE interprets this section to require such prehminary comments before site characterization begins The Commission staffinterprets that section . . to require a judgment of suitabihty under 10 C.F.R. Part 60 after site characterization has occurred. (ii) DOE origmally interpreted f 112(f) to permit continuation of ongomg site char-acterization at Hanford before completion of the DOE siting guidehnes DOE now concedes that such site characterization work must await completion of an environmental assessment prepared in accordance with Snal DOE siting guidelines. (CPIG at 2 3). (2) NRC Response The Commission has considered the effect of enactment of the Nucle-at Waste Policy Act of 1982 and concludes that the Act provides support for timely resolution of technical uncertainties and reduces uncertainties in the institutional arrangements for the participation of alTected States and Indian tribes in the siting and development of repositories and in the long-term management, direction and funding of the repository pro-gram. The bases for the Commission's conclusion are set forth in the de-cision and will not be repeated here. The passage of the Act provides evi-dence of a strong national commitment to the solution of the radioactive waste management problem. The Commission recognizes the possibility of differing interpretations regarding the implementation of the NWPA. With respect to CPIG's dis-cussion of j ll4(a), the Commission is unaware of any differences be-tween DOE and NRC in the interpretation of this section of the Act. We note that DOE's recommendation of a repository site to the President would necessarily be made after DOE's preliminary determination that three sites are suitable for development. DOE and NRC now agree that the preliminary determination of site suitability for the alternative sites should be made following site characterization (Commission's Final De-cision on the U.S. Department of Energy's General Guidelines for the Recommendation of Sites for Nuclear Waste Repositories (July 3, 1984)). Concerning j 112(0, DOE has continued site characterization at Han-ford during formulation of the siting guidelines; in accordance with the views of the States and environmental groups, DOE has deferred drilling of the exploratory shaft pending the completion of the guidelines, sub-297
1 4 i l Y 4 mission of the site characterization plan to NRC and preparation of an i
; environmental assessment of site characterization activities.
4 ) B. TechnicalAspects (1) Summary ofComments , The Conselidated Industry Group believed that the Act contained pro-visions pertinent to all of the major elements relevant to disposal (Industry at 3). The Consolidated Public Interest Group, on the other hand, contended that the NWPA did not resolve technical uncertainties 4 concerning repository development and safety (CPIG at 5). The Consoli-dated State Group did not believe that the NWPA supported a 6nding of confidence because it failed to resolve technical questions and merely set target dates for deciding on the site of the Orst waste repository. The State Group noted that if technical problems are not resolved by the t dates proposed by Congress, the milestone dates will have to be post-poned. The State Group contended too that, although the Act authorizes DOE to conduct research on unresolved technical issues, the research could uncover additional problems (States at 2). However, DOE pointed
- out that the NWPA provides for a focused, integrated and extensive re-search and development program for the deep geologic disposal of high-l level waste and spent fuel. DOE believed that } 215 of the Act enhances i
confidence in the timely availability of disposal facilities by authorizing a research facility to develop and demonstrate a program for waste dispos-al. DOE also stated that the schedule for a Test and Evaluation Facility would require the in situ testing described in j 217 of the Act to begin not later than May 6,1990, thus allowing for research and development i results to be incorporated in the repository which is scheduled to open I in 1998 (DOE at 11,12). 4
' 0) NRC Response As the record of this proceeding shows, there are no known technical problems that would make safe waste disposal impossible. Clearly, fur-ther engineering development and site specific evaluations will be re-quired before a repository can be constructed. The Commission did not propose to rely on the NWPA as the basis for resolving technical uncer-tainties. Rather, the Commission found that the NWPA provides a framework for facilitating the solution of the remaining technical issues.
Title II of the Act authorizes DOE to undertake steps leading to the construction, operation and maintenance of a deep geologic test and i 298 1
L T t i i 4 evaluation facility and to conduct the necessary research and develop-ment as well as to establish a demonstration program. The schedule set forth in the Act is consistent with the objective of assuring repository op-eration within the time period discussed in the Waste Confidence deci-sion. The " Mission Plan" which is required by the Act wi!! provide an
~
> effective management tool for assuring that the many technical activities are properly coordinated and that results of research and development , projects are available when needed. i C. Institutional Aspects ~ (1) Summary of Comments The Consolidated State Group believed that the NWPA failed to resolve institutional questions. The States argued that their cooperation 7 cannot be assumed in the event that the general public in the vicinity of
- a proposed site is opposed to the location. Further, the States contended that, if a site is vetoed by a host State or Indian tribe, there is no assur-j ance that Congress will vote to override the veto. Moreover, if the veto is overridden, a legal challenge is likely and the outcome is uncertain (States at 3).
The Consolidated Public Interest Group also believed tha, the NWPA has not significantly reduced institutional uncertainties regardu.g partici-pation and objections of affected States and Indian tribes. As examples
; of institutional difficulties, CPIG pointed out that State officials and ! Indian tribes still have concerns regarding the adequacy of time to moni-tor and comment upon agency proposals, the lack of agency response to j their concerns, and inadequate funding to support their full participa-J tion. Further, CPIG noted that the Act (f 115) provides States and Indian tribes with strong new authority to veto the siting of a repository within their borders (CPIG at 5). . DOE, on the other hand, believed that j 116 and 117 of the NWPA would reduce Federal-State institutional uncertainties (DOE at 9).
(2) NRC Response it would be unrealistic to expect that the NWPA will resolve all in-stitutional issues. However, it does provide specific statutory procedures and arrangements for accomplishing such resolution. The right of affect-a ed States and Indian tribes to disapprove a site designation under the NWPA might create uncertainty in gaining the needed approvals. Never-theless, the NWPA's establishment of a detailed process for State and i ! 299 t I
i 4 e T E tribal participation in the development of repositories and for the resolu-tion of disputes should minimize the potential for substantial disruption
- of plans and schedules. The Commission does not expect that the NWPA can eliminate all disagreement about development of waste repositories. However, in providing for information exchange, financial and technical assistance to affected groups, and meaningful participation 1
of affected States and tribes in the decisionmaking process, the Act should minimize the potential for direct confrontations and disputes. ! D. Funding Aspects (1) Summary of Comments The Consolidated Industry Group expressed its general belief that the NWPA assures adequate funding for interim storage and disposal of radi-
, oactive waste (Industry at 6,7). Similarly, DOE believed that the fund-ing mechanism provided by the NWPA should largely remove uncertain- '
i ' ties in assuring adequate resources to complete the program (DOE at 10,11). On the other hand, the Consolidated States Group contended
, that, since the law can be changed at any time, the NWPA assures nei-ther an adequate level of funding nor a prolonged congressional commit-j ment (States at 4).
- (2) NRC Response l The Commission believes that the general approach prescribed by the NWPA is to operate DOE's radioactive waste program on a full-i cost-recovery basis. It seems clear that Congress intended to establish a long term program for waste management and disposal, with built-in reviews and adjustments of funding as necessary to meet changing z requirements. In this regard, the Act provides that DOE must annually review the amount of the established fees to determine whether collec-tion of the fees will provide sufficient revenues to offset the expected l costs. In the event DOE determines that the revenues being collected j are less than the amount needed to recover costs, DOE must propose to Congress an adjustment to the fees to ensure full cost recovery. The Act also provides that, if at any time, the monies available in the waste fund are insufficient to support DOE's nuclear waste program, DOE will have the authority to borrow from the Treasury. The Commission believes that the long-term funding provisions of the Act will ensure adequate financial support for DOE's nuclear waste program for FY 1984 and beyond.
i 300 l 1 1 e$ g- + g y-=> y.i We -i--p y.- r.,.' s--w p r4,-p rw.w . er .-%r 9-y-m a- --- a-w-e
The Commission believes that uncertainties regarding the adequacy of financial management of the nuclear waste program have also been re-duced by the NWPA requirement that an Office of Civilian Radioactive Waste Management be established within the Department of Energy. This Office is to be headed by a Director, appointed by the President with Senate confirmation, who will report directly to the Secretary of Energy. Further, the Act stipulates that an annual comprehensive report of the activities and expenditures of the OfGce will be submitted to Con-gress and that an annual audit of the Office will be conducted by the Comptroller General, who will report the results to Congress. Some concern has been expressed that the Congress may amend the funding provisions of the NWPA and thereby undermine the Gnancial stability of the Federal radioactive waste management program. Com-menters have not provided any basis for this belief. The Commission considers this possibility to be most unlikely. It is reasonable to assume that the long-range public health and safety and political concerns which motivated the Congress over the past several years to pass the NWPA will continue to motivate the Congress in considering amendments to the NWPA. E. Schedule (1) Summary of Comments DOE contended that the NWPA provid'es additional assurance that a repository will be available by 1998. As the basis for this belief DOE stated that }} 111 through 125 of the NWPA provide specific schedules and reporting requirements for the timely siting, development, construction, and operation by 1998 of a repository for high-level waste and spent fuel (DOE at 6). DOE believed that these schedules and reporting requirements will ensure that deadlines are met. The Commis-sion notes that DOE recognizes that there has been a delay of about 1 year in its schedule for meeting early milestones such as publication of its siting guidelines; nevertheless, DOE continues to maintain that its date for completion of repository development will be met (DOE draft Mission Plan for the Civilian Radioactive Waste Management Program, April 1984). The Consolidated Public Interest Group, however, did not believe that the provision of specific dates in the NWPA gives assurance that they will be met. CPIG cited, for example, the delay in preparing L OE's site-selection guidelines, which were due by June 1983, and were expect-ed to be delayed further (CPIG at 4). 301
-+
. _ - - .. -_ . _ . . . - - -- - _.= _ . .. -
Further, the CPIG contended that a date for the availability of a repository is not certain since both the President and the NRC hase explicit authority to reject any or all site proposals that are submitted to them (CPIG at 4). Also, CPIG believed that the legislation contemplates the possibility of delay beyond statutory deadlines and NWPA's legista-tive history indicates that the timing of repository availability remains uncertain (CPIG at 5). Q) NRC Response One of the primary purposes of the NWPA is "to establish a schedule for the siting, construction, and operation of repositories that will pro-vide reasonable assurance that the public and the environment will be adequately protected from the hazards posed by high-level radioactise waste and such spent nuclear fuel as may be disposed of in a reposito-ry." (f Ill(b)(1)). The Commission believes this purpose will be ! achieved. As the Commission noted in the proposed decision, the Congress would not be able to legislate the schedules for the accomplishment of fundamental technical breakthroughs if it believed that such break-throughs were necessary. They are not necessary. Rather, it is the Com-J mission's judgment that the remaining uncertainties can be resolved by I the planned step-by step evaluation and development based on ongoing
- site studies and research programs. The Commission believes the Act
. provides means for resolution of those institutional and technical issues i most likely to delay repository development, both because it provides an assured source of funding and other significant institutional arrange-ments, and because it provides detailed procedures for maintaining prog-ress, coordmating activities and rectifying weaknesses.
j The Commission believes that the milestones established by the Act are generaity consistent with the schedules presented by DOE in the Waste Confidence proceeding and that those milestones are generally ,
- reasonable. Achievement of the scheduled first date of repository opera-tion is further supported by other provisions of the Act which specify means for resolution of issues most likely to delay repository comple-tion. One of the earlier milestones - publication of DOE's general guidelines for the recommendation of sites for a repository - was about a year behind schedule and the Commission was concerned that this delay could result in corresponding delays in DOE's nomination of at least five sites for characterization work. However, DOE has indicated in its draft Mission Plan (April 1984) that the subsequent milestones have been scheduled to provide completion of the first repository by 1998.
r 302
- _ _ ~_ ,, . , - -
The Commission believes that the timely attainment of a repository does not require DOE's program schedule to adhere strictly to the mile-stones set out in the NWPA o er the approximately 15 year duration of the repository development program. Delays in some milestones as well as advances in others can be expected. The Commission has no evidence that delays of a year or so in meet-ing any of the milestones set forth in the NWPA would delay the reposi-tory availability date by more than a few years beyond the 1998 date specified in the NWPA. The Commission found reasonable assurance that a repository would be available by 2007-09, a decade later than that specified in the NWPA, and a date which allows for considerable slippage in the DOE schedule. The Act also requires that any Federal agency that determines that it cannot comply with the repository development I schedule in the Act must notify both the Secretary of Energy and Congress, provide reasons for its inability to meet the deadlines, and ; submit recommendations for mitigating the delay. The Commission notes that the Act also clarifies how the requirements of the National Environmental Policy Act are to be met. These provisions of the Act, as well as the provisions for research, deselopment and demonstration ef-forts regarding waste disposal, increase the prospects for having the Grst , repository in operation not later than the Grst few years of the next century. The repository development schedule may have to accommodate such contingencies as vetoes of proposed repository sites, prolonged public hearings, protracted litigation, possible project reorientation, or delay in promulgation of siting guidelines. The schedule now incorporated mto l the Act allows substantial time for these possibilities.
- 2. Discussion of the Safety of Dry Storage l A. Summary of Comments DOE believed that the availability of dry storage techniques provides further reasonable assurance of the ability to safely store nuclear wastes
! at least 30 years beyond the expiration of reactor operating licenses. I DOE stated that the citations quoted in the Commission's rationale are reliable and representative of the literature in the area, and that the Commission's technical judgment on dry storage conforms with DOE's expenence and is accurate and correct (DOE at 10. The Consolidated Industry Group also stated that the pertinent points in the Commission's discussion appear to be adequately supported with appropriate references (Industry at 10,11). 303 , 1 1 I
in further support of the safety of dry storage, DOE cited the following:
- Extensise worldwide experience shows that dry fuel handling and storage is safe and efficient. Irradiated fuel has been handled, shipped, and safely stored under dry conditions since the mid 1940s. All types of irradiated fuel have been handled dry at hot cells, where a variety of phenomena have been ob-served in detail The passive nature of most dry storage con-cepts contributes to the safety ofinterim storage by not requir-ing active cooling systems involsing moving parts (DOE at 16).
- Regarding specific experience, DOE stated that reactor fuel has been successfully stored in dry vaults licensed under Part 50 at the Hallam sodium cooled graphite research reactor in Nebraska and the Fort St. Vrain HTGR prototype facility in Colorado. In addition, dry storage of zircaloy clad fuel has been successfully conducted in drywells and in air-cooled vaults at DOE's Nevada Test Site. There is fasorable foreign experience with dry storage at Wylfa. Wales in Great Britain, at Whitesell in Canada, in the Federal Republic of Germany, in France where vault dry storage of vitrified waste is routine.
and in Japan, where a dry storage vault has been recenti; con-structed (DOE at 17).
- To date, all dry storage tests have indicated satisfactory storage of zircaloy-clad fuel without cladding failure over the tempera-ture range of 100*C to 570*C, in inert atmospheres. Existing data which support the conclusion that spent fuel can be stored safely in an inert atmosphere for at least 30 years is being aug-mented by additional ongoing research (DOE at 17,18).
None of the consolidated groups of participants olTered comments which were critical of the Commission's discussion of the safety of dry storage. B. NRC Response The Commission is confident that dry storage installations can provide continued safe storage of spent fuel at reactor sites for at least 30 years after expiration of the reactor operating licenses. 304
- 3. List of Respondents J
CONSOLIDATED PARTICIPANTS AS RESPONDENTS TO TiiE CO31311SSION'S WASTE CONFIDENCE DECISION
- 1. Department of Energy (DOE)
- 2. Consolidated States Representative' (States)
- 3. Censolidated Public Interest Representativer (CPIR) 4 Consolidated Industry Representative) (Industry)
PART II: CO31311SSION CONSIDERATION OF ADDITIONAL CO313 TENTS ON ITS FOURTil FINDING
- 1. Introduction On November 3,1983, the Commission reopened the comment period in this proceeding to receive comments on: (1) the environmen-tal aspects of its fourth finding - that it has reasornbie assurance that, if necessary, spent fuel can be stored without significant environmental ef.
fects for at least 30 years beyond the expiration of reactor operating licenses at reactor spent fuel storage basins, or at either ons;te or olTsite independent spent fuel storage installations; (2) the determination that 6 there are no significant nonradiological consequences Which could ad-versely affect the environment if spent fuel is stored beyond the expira-tion of operating licenses either at reactors or at independent spent fuel storage installations; and (3) implications of comments on items (1) and 8 The Consolidated states Group sensists or the Attorney General of the state of New York. \linnesota (by its Attorney General and the %I nnesota Pollution Control Agencp. Ohio. South Carchna and
% esconsin The remaming partseipants preuously conschdated in the states Group have not joined in these comments 2 The Consohdaied Pubhc interest Group is represented here by the Natural Resourses Defense Counal. Inc., the New England Co4tiuon on Nuclear Pollution. the sierra Club, the Environmental Coahuon on Nuclear Power. Wisconsin's Environmental Decade. Misussippians Againu Dnposal, safe Haven. Ltd . John o'Neill. Jr . and Nlarvin Lewis i i The Consohdated Industry Group is represented by American Institute of Chemical Ensincers.
American Nuclear sauety; Associstion of Engineering Geologists. Atomic Industrial Forum. Bechtet National; Consumers Power. General Electric ^. Neighbors for the Enuronment, scientius and Ecsincers for secure Energy'. Tenneswe valley A uthority. the Uuhties group INiagara nloh4=it Power Corporation. Omaha Pubhc Power District. Power Authority of the state of New iork, and Puenc serv. ice Company of Indiana. Inc 1. and the Utihty Nuclear w aste 414nagement Group-Edaon Electrie Insutute. In orJer to emphasue the independent nature of its partwipation. the American Nuclear socie-i ty has chosen to proseed wparately A Ns continues to protest its awgnment in the Conehdaied ladus-try Group and has offered wperate comments on the Commission's W'aste Confiden.e decevon sinu only the consohdated groups of peticipants were inuted to comment on the proposed decnion, the ANs's separate corirnents are not discussed here. Further. TvA, as 4 Federal agency, wishes to stress the mdependent nature orits partsupation 305 ) l
(2) above for the proposed amendment to 10 C.F.R. Part 51 (48 Fed. Reg. 50,746). The Commission has considered those comments and, for the reasons discussed below, finds no reason to substantively modify its fourth Gnd-ing or other related aspects ofits decision in this proceeding. The Com-mission has, however, made revisions in its fourth Gnding to clarify its original intent. Thirteen comments were received. Seven commenters identiGed vari-ous reasons which they believed argued against the finding.' Six com-menters supported the Gnding.5 In addition to the issues on which the Commission specifically requested comments, some commenters raised additional issues regarding the Commission's compliance with the Na-tional Environmental Policy Act (NEPA). L Environmental Aspects of Extended Storage of Spent Fuel A. Radiological Consequences ofSpent Euel Storage The Commission's proposed fourth Gnding stated: The Comr.ussion finds reasonable assurance that, if necessary, spent fuel can be stored safely without significant environmental effects for at least 30 years beyond the expiration of reactor operatmg licenses at reactor spent fuel storage basins, or at either onsite or offsite independent spent fuct storage installations. The public was invited to submit additional comments on the environ-mental aspects of this Gnding. Those comments, and the Commission's responses to them, are set out below. The State of Minnesota (" Minnesota"), through its Attorney Gener-a!, and the Sierra Club believe that an event at the spent fuel pool for Prairie Island Nuclear Generating Station (" Prairie Island") indicates that irradiated spent fuel assemblies are degrading rapidly with time. In December 1981, during a fuel transfer operation at Prairie Island, the top nozzle assembly separated from the remainder of a spent fuel assem-bly due to stress corrosion cracking of the spent fuel assembly while it was in the spent fuel pool. Minnesota and the Sierra Club acknowledge i that this separation was an isolated event; over 5000 similar spent fuel 8 Department or Law or the state or New York. Marvin Lewis, sierra Club. safe Haven. Ltd.. Attorney General of the state or Minnesota. Department or Justice of the state of wisconsin and Natural Resources Derense Council. Inc. I scientists and Engineers for secure Energy. Inc.. Amencen Institute orCPemical Engineers. Amencan Nuclear society. Utihty Nuclear Waste Management Group-Edison Electric Institute, and U s Depart. ment or Energy 306
assemblies have been moved successfully at other plants. These com-menters also acknowledge that television examination showed no corro- , sion cracking of similarly designed fuel assemblies at other nuclear , power plants: Zion, Trojan, Kewanee and Point Beach. They also ac-knowledge that even though the water contaminant contributing to stress corrosion cracking has never been identiGed, the possibility that it may have been sulfates has led the Commission to suggest that Prairie Island monitor the sulfate levels ofits spent fuel pool. However, the Sierra Club contended
- that the NRC staff essentially ig-noted the opinion of h!r. Earl J. Brown, an NRC engineer, that sulfate contamination is a generic problera at pressurized water reactors (PWRs). The Sierra Club also believes that television inspection of spent fuel assemblies in spent fuel pools cannot reveal the initial signs of stress corrosion cracking. For these reasons, the Sierra Club and Slin-nesota believe that there is no assurance that spent fuel can be stored l
safely in spent fuel pools for 30 years after reactor shutdown or for 60 years after irradiation. The NRC investigated the Prairie Island event and found it to be an isolated event without generic impact. The staff also concluded that if a fuel assembly were to drop due to top nozzle failures, such an event would not lead to a criticality hazard in a spent fuel pool and that such an accident would result in radiation levels at the site boundary well within the limits in 10 C.F.R. Part 100. The NRC StalT Assessment Report ("SAR") and associated memoranda, although already publicly available in the Commission's Public Document Room, have been added to the docket of this proceeding. That SAR concluded that the event was caused by intergranular stress corrosion cracking due to an unidentified corrodant temporarily present in the spent fuel pool. As for the Sierra Club's speciGc comments, the staff recognized that sulfate contamination was suspected to have contributed to the corrosion and recommended that licensees administratively control sulfate level concentrations in spent fuel pools. Such monitoring had been recom-mended by hit. Brown as the only action that should be taken in re-sponse to the incident. Although Nir. Brown stated that in his opinion the event was a " potential" generic issue for PWRs, subsequent staffin-vestigation revealed that the event was an isolated incident. The staff
- sierra Club also stated that the stalT did not cof! sider an oak Ridge report (ORNL.M84. Noternber 1964) which edentt0cd water upor as contribunng to corrosson of the type of steel used in spent (uct assemblies. That report is not germane to Osht water reactor fuel because it addressed the sensituation of stainless steel n a higit. temperature gas-cooled feactor environment. which is very afferent from the environment of a hght water reactor. Refer to the discussion m ) 2 4A of the Appendis to the Com.
mission's decision. 307 ) 1 1 l l
also considered the properties of the steel used in the spent fuel assem-blies and acknowledged that they could have contributed to the event. However, the absence of any similar events for 5000 other spent fuel as-semblies indicated that the type of steel was not critical. Accordingly, the Commission Gnds no basis for reconsidering the Safety Assessment Report's Gnding that the Prairie Island event was an isolated incident and recommendation that sulfate control was an adequate response, or for altering its conclusion concerning the potential environmental im-pacts of stored spent fuel. Wisconsin, Safe Haven, Ltd., and NRDC contended that the environ-mental effects of extended spent fuel storage are site-spuiGc and should be considered on a case-by-case basis.7 Safe Haven believes that the indi-viduality of each plant and its environmental surroundings necessitate separate evaluations of extended storage of spent fuel, but identined no j site-specific factors which would result in signincant environmental impacts. NRDC listed some site-speciGc factors: geology, hydrology, seismicity, ecological factors and individual proposals for spent fuel management and storage. However, NRDC did not suggest how these factors could lead to signiGeant site-specine environmental impacts that would preclude the Commission from making a generic finding. Similar-ly, Wisconsin listed as relevant factors proximity to population centers, highways, geologic faults, dams, Goodplains or shorelines affected by erosion, but offered no suggestion of how these factors could affect the Commission's generic determination. For example, there has been no discussion of why the Commission's seismic design requirements, though site-specific, are not generically adequate to assure that spent fuel can be stored for up to 30 more years in a spent fuel pool designed to withstand the largest expected earthquake at each reactor site. N!r. N!arvin Lewis contended that the fourth Gnding had no basis because the Commission had little or no experience with storing spent fuel for 30 years or with storing fuel that could be up to 70 years old. Nlr. Lewis also asserted that the pyrophoricity of the zircaloy tubes containing spent fuel for 30 years presents an unknown Gre danger. This comment is based on a private communication to Str. Lewis regarding the condi-tion of the spent fuel at Three Niile Island, Unit 2. By the terms of that letter, any fire danger associated with pyrophoricity of zircaloy arises from the accident conditions at TNII-2. NRC has previously studied the 7 safe Haven also suggested that a full environmental and safety review should accompany any utthty's proposed plans submitted pursuant to 10 C F R. Part 50 4 50 54(aan (or estended storage of speni fuel The Commission will treat its review of any such utshty proposat in accordance with the estabinhed procedures for considering any apphcation for a heense amendment. 308
effects of loss of water from pools on the temperature of stored spent fuel (NUREG/CR-0649, " Spent Fuel Heatup Following Loss of Water During Storage," Starch 1979). While this study noted that oxidation could become self-sustaining for temperatures in the neighborhood of 850-950'C (NUREG/CR-0649, at 13), the study shows that such oxida-tion can only occur for extreme temperature conditions and for spent fuel that has been stored for a relatively brief storage period. In order for rapid oxidation to occur, the age of the spent fuel (30,000 SlWD/ SIT burnup) would have to be in the range of less than 10 days to less than 2 years, depending on the density at which it is stored (see NUREG/CR. 0649, Figure 17, at 55). Storeover, one must assume a continuing oxygen supply adequate to sustain the oxidation. Any damaged spent fuel such as that from TNil-2, would be canned to avcid particulate loss and would have already aged several years. Neither the heat load leading to temperatures capable ofinitiating rapid oxidation nor the presence of an adequate supply of oxygen to sustain a pyrophoric reaction would seem to be present in any storage configuration or under conditions that would receive NRC approval. While it is correct that spent fuel has not been stored for over 30 years, the record shows that utilities have suc-cessfully stored spent fuel for over 20 years, and that there are no known physical processes which would indicate that it is impractical to extrapolate that experience to make predictions about the behavior of spent fuel for 70 years of storage. The Utility Nuclear Waste Stanagement Group - Edison Electric In-stitute and the U.S. Department of Energy referred to several documents in the record which show that the relatively low energy content of spent fuel and the relatively benign static ensironment of spent fuel storage render insignificant the radiologic impacts arising from the extended storage of spent fuel. As discussed in more detail below, these docu-ments also show that there are no significant nonradiologic environmen-tal impacts arising from such extended storage. Under these circum-stances, the Commission finds that it has sufficient experience with spent fuel storage to predict spent fuel behavior during 70 years of stor-age and to find that such storage will not result in significant environ-mental effects. B. Nonradiological Consequences ofSpent FuelStorage The Commission's fourth finding rested in part on the Commission's determination that there are no significant nonradiological consequences due to the extended storage of spent fuel which could adversely affect the environment. The public was invited to comment also on this finding 309
and to provide a detailed discussion of any such environmental impacts. Str. Starvin Lewis asserted that the continuous storage of spent fuel under water for 30 years or more requires unprecedented institutional guarantees. He also noted that there had been no consideration of financial, economic and security implications of storage for 30 or more years. Str. Lewis did not expand upon these assertions to explain how they would result in significant nonradiological environmental consequences. In any event, the more than 20 years of experience with storing spent fuel demonstrates that storage of spent fuel for 30 years or more does not require unprecedented institutional guarantees or raise unique questions regarding finances, economics or the security of ex-tended spent fuel storage. Further, the Commission will require all reac-tor licensees,5 years before expiration of their operating license, to pro-vide a plan for managing the spent fuel prior to disposal. Sforcover, the record documents referred to by UNWh!G-EEI, DOE and AIF show that there are no significant nonradiological environmental impacts asso-ciated with the extended storage of spent fuels. The amount of heat given off by spent fuel decreases with time as the fuel ages and decays radioactively. No additional land needs to be devoted to storage facilities because reactor sites have adequate space for additional spent fuel pools or dry storage installations. The additional energy and water needed to maintain spent fuel storage is also environmentally insignificant. No commenter has challenged these assessments of environmental impacts and the Commission has no reason to queshon their validity. Under these circumstances, the Commission has no reason to reassess its prior determination that extended storage of spent fuel will present no signifi-cant nonradiological consequences which could adversely affect the environment.
- 3. Commission Compliance with NEPA Several participants challenged the Commission's compliance with NEPA. The States of New York ("New York") and Wisconsin contend that since its inception, this proceeding has focused on the availability and safety of spent fuel storage, and has been conducted outside the scope of NEPA. New York supports this contention with the following quote from the First Prehearing Conference Order (February 1.1980)
(unpublished): This rulemaking proceedirig does not involve a major federal action having a signifi-cant impact on the environment. and consequently an environmental impact state-ment is not required by NEPA . 310
l l New York asserts that this statement caused the participants not to con-sider NEPA in their Glings. Accordingly, New York believes that the Commission cannot now transform the Waste Con 6dence Proceeding i into a NEPA proceeding. In New York's view, joined by the Natural Resources Defense Council, Inc. ("NRDC"), NEPA required the Com-mission to prepare an environmental impact statement ("EIS") or envi-ronmental assessment to consider the ensironmental impacts of spent fuel storage at reactor sites beyond the expiration dates of reactor licenses. The Utility Nuclear Waste Slanagement Group-Edison Electric Institute ("UNWMG eel") believes that it has been clear from the < outset of this proceeding that the Commission intended to develop ensi-ronmental regulations appropriate to the issues considered here. I UNWMG EE! cites several factors in support of its position; (1) this proceeding was the direct outgrowth of a NEPA case,3/intresota v. NRC, t 602 F.2d 412 (D.C. Cir.1979); (2) the Notice of Proposed Rulemaking l explicitly stated a Commission intent to deal with environmental aspects , of spent fuel storage; (3) the proceeding was docketed under Part $1, the Commission's regulations implementing NEPA; (4) the Commission stated that it would draw on the record of the rulemaking on environ-mental impact of the nuclear fuel cycle (Table S 3) and included in the NRC Data Bank for this proceeding sources ofinformation on the ensi-ronmental impacts of spent fuel storage; and ($) sescral participants ' included in their statements information pertaining to the enuronmental impacts of spent fuel storage. The Commission believes that from the sery beginning cf this proceeding, participants were on notice that environmental aspects of spent fuel storage were under consideration. The notice initiating this proceeding stated, in pertinent part: l If the Commission Onds reasonable assurance that safe, ofTsite disposal for radioac-tive wastes from hcensed facihties will be avanable prior to espiration of the facili-ties' licenses. it will promulgate a nnal rule providing that the tswronmental a=J
$Qft*y implXQtt0Ms Of contiMurd OM$ilt storaet efter rht terminal'OM Of twtNsts netd not be considered in individual hcensing proceedings. In the event the Commission determines that onsite storage after bcense espiration may be necessary or l appropriate. It will tssue a proposed rule providing how that questros m/l tv QddresstJ Based on the material received in this proceeding and on any other rc'evant infor. l mation properly available to it, the Commission will pubbsh a proposed or Gnal rule in the /tdtral Register. Any such Gnal rule will be effective thirty days after pubhcation 44 Fed. Reg. 61,372,61,373 74 (1979). (Emphasis supplied.)
311 r
It is cicar from this notice that if the Commission found that onsite storage after termination of reactor operating licenses would be necessary or appropriate, then it would propose a rule for dealing with the question of environmental and safety implicati0ns of continued onsite storage. New York's reference to the statement in the First Prehearing Confer-ence Order is inapposite. That statement addressed the issue of whether a decision in this proceeding would be a proposal for major federal action hasing significant impact on the environment so as to require an EIS. The Presiding 001cer found that the decision itself would not re-quire an EIS, llis decision in no way imphed a change in the scope of the proceeding as announced in the notice initiating it. j There is also nothing about the Commission's fourth Gnding which re-i quires an EIS. Neither New York nor NRDC has explained how this finding is a major Federal action having a significant impact on the i human environment. The finding provides a basis for a rule that pro-i vides that ensironmental impacts from extended storage of spent fuel are so insignificant as not to be required to be included in an impact
; statement. The validity of such a rule depends on the procedures used to promulgate it and the record supporting it. An EIS is not required be-cause such a rule itself has no environmental impacts. significant or otherwise.' To require an EIS here would be essentially to require an
- EIS to show that no EIS is required. Clearly such a result would be
- incorrect. Accordingly, the Commission Onds that NEPA does not re.
quire an EIS to support the fourth finding. i l 4. List of Respondents RESPONDENTS TO TiiE CON 1511SSION'S NOVEstBER 3.1983 ORDER (48 FED. REG. 50,746) TO REOPEN Tile PERIOD FOR i
' LINilTED CONIN!ENT ON Tile ENVIRONStENTAL ASPECTS OF Tile CONIN!!SSION'S FOURTil FINDING IN Tile WASTE i CONFIDENCE PROCEEDING j
j l. Attorney General of the State of New York (N.Y.) i 2. Nfarvin Lewis (Lewis) ! 3. Sierra Club Radioactive Waste Campaign (Sierra) 4 Scientists and Engineers for Secure Energy. Inc. (SE2)
* $re. ror tumpte. %aruvat Rewurs es Detrow Coun,rt. Ier e %RC $41 F 2a M3. s51 n s' to C C,r 1976s. rev J on wher grouan seh nm Verever heere % wer Po.r* Coop w sRC. 435 V s 5l9 419'll 312 l
. _ . - , . , . . _ _ ~ - - - . , _ - , -
. ~ - - - - _ - - - _ _- _ . . . - .- ._ __ __
l l 1
- 5. Safe liasen, Ltd. (S.II.)
- 6. American Institute of Chemical Engineers ( AICE)
- 7. Atomic Industrial Forum, Inc. (AIF) l S. Utility Nuclear Waste Stanagement Group-Edison Electrie Institute (UNWNtG-EEI)
- 9. Natural Resources Defense Council, Inc. (NRDC)
- 10. Attorney General of the State of Wisconsin (Wis.)
- 11. U.S. Department of Energy (DOE)
- 12. American Nucicar Society (ANS)
- 13. Attorney General of the State of.\linnesota (N! inn.)
APPENDIX RATIONALE FOR COSI.NilSSION FINDINGS IN TiiE SIATTER OF Tile WASTE CONFIDENCE PROCEEDING Table of Contents Page l.0 INTRODUCTION 314 2.0 RATIONALE FOR C051511SSION FINDINGS 315 2.1 First Commission Finding . . 315 A. The Identification of Acceptable Sites 316 B. The Development of EITectise Waste Packages 320
- 1. Waste Package Considerations 320
- 2. EITect of Reprocessing on Waste Form and Waste Package , . . 323 C. The Development of Effective Engineered Barriers for Isolatmg Wastes from the Biosphere 326
- 1. Backlill Staterials 326 I 2. Borehole and Shaft Sealants .. . 328 I D. Summary of Views on the Technical Feasibility of i Safe Waste Dispmal . . 330 2.2 Second Commission Finding . . 331 A. Technical Uncertainties . 332
- 1. Finding Technically Acceptable Sites in a Timely Fashion . . .. 332
- 2. Timely Development of Waste Packages and Engineered Barriers . . . 336 313 l
l
Page 2.2 Second Commission Finding (Continued) B. Institutional Uncertainties . 339
- 1. Steasures for Dealing with Federal State-Local Concerns . .. . 339
- 2. Continuity of the Stanagement of the Waste Program . . . 342
- 3. Continued Funding of the Nuclear Waste blanagement Program . .. . . 344
- 4. DOE's Schedule for Repository Development 345 2.3 Third Commission Finding 350 2.4 Fourth Commission Finding . 353 A. Long Term Integrity of Spent Fuel Under Water Pool i Storage Conditions . . . . . . . . .. 354 B. Structure and Component Safety for Extended Facility Operation for Storage of Spent Fuel in Water Pools . . . 357 C. Safety of Dry Storage of Spent Fuel 359 D. Potential Risks of Accidents and Acts of Sabotage at Spent Fuel Storage Facilities 363 E. Summary . . 366 2.5 Fifth Commission Finding . 367 REFERENCE NOTATION .. . 372 f
1.0 INTRODtJCTION I The rationale for the five Commission findings resulting from the i Waste Confidence proceeding is summarized below. This rationale is I based principally on the record of the proceeding which includes partici. pants' position statements, cross statements. prehearing and oral state-ments (in the discussion below, the participants are identified by the ci-tations defined in the Reference Notation at the end of this document). i The Commission also relied on the provisions of the Nuclear Waste Policy Act of 1982 (NWPA), and other substantive material not original. ly included in the record relating to the discussion of the safety of dry storage of spent nuclear fuel in the Commission's Fourth Finding; the NWPA and the dry storage material have now been incorporated into the record along with the relevant comments of participants in this ( proceeding. 4 314
1 i i } The Commission notes that two relevant developments have occurred subsequent to the closing of the record in the Waste Confidence i proceeding. They are the publication of DOE's draft htission Plan for the Civilian Radioactive Waste Stanagement Program (April 1984) and g the. Commission's concurrence in DOE's General Guidelines for
- Recommendation of Sites for Nuclear Waste Repositories (July 3, j 1984). These developments are a matter of public record, and in the case of the Commission's concurrence was the conclusion of a ieparate public proceeding. The Commission has considered the effects of these i developments on its previously announced decision in this proceeding
- and determined that these developments do not substantially modify the .
; Commission's previous conclusions.
T l j 2.0 RATIONALE FOR COht3tISSION FINDINGS 2.1 First Commission Finding 4 l - The Commission finds reasonable assurance that safe disposal of radioac-
; tive waste and spentfitelin a mined geologic repository is technicallyfeasible.
1 The Commission finds that safe disposal of high-level radioactive waste and spent fuel is technically possible and that it is achievable using l existing technology. Although a repository has not yet been constructed 1 and its safety and environmental acceptability demonstrated, no funda. mental breakthrough in science or technology is needed to implement a successful waste disposal program. Those participants who questioned the availability of a repository did not contend that fundamental scientific breakthroughs were required, but questioned whether technical prob-i lems could be resolved in a timely manner. The record supports the con- i i clusion that the safe disposal of high level radioactive waste and spent j nuclear fuel from licensed facilities can be accomplished. l The Department of Energy's (DOE) position is that disposalin mined geologic repositories can meet the goal of providing safe ,and elTective l isolation of radionuclides from the environment (DOE PHS at 2,4; Tr.
, at 11). A number of participants stated that waste containment and isola ~ ;
tion from the biosphere are scientifically feasible (USGS PS at 4; NRDC PS at 9; UNW5fG-EEI PS, Doc. I at 22 Doc. II at II 6; Consolidated In- ; l, dustry Group Tr. at 16; Consolidated States Group Tr. at 98). This view l ! is consistent with the conclusions of the Report to the American Physical j Society by the Study Group on Nuclear Fuel Cycles and Waste Management
; (50 Rev. Stod. Phys. (No.1, Pt. II), S6 (January 1980)) and the
" Report to the President of the Interagency Review Group on Nuclear Waste hianagement" 38 (Final Report, Starch 1979).
j 4 4
, 315 i
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The conclusiJ.1 t;at safe radioactive waste disposal is techt ically feasi-ble is based il sonsideration of the basic hatur:s of reoositbyZsign and the proble ns to be solved in developing thE 9naldesign. A rr31eb geologic repository for disposal of high level radioactivenw i, ... w . oped during the past three decades, will be based on application of the multi-barrier app:oach for isolation of radionuclides. The high-leses radi-oactive waste or spent fuel is to be con.ained in a sealed package and any leakage from the package is to be retarded from migrating to the bio-sphere by engineered barriers. These eagineered barriers include back-fillint and sealEy of the drifts andph@ of the mined repository. We be-lieve that _the isolatiott :apabilityji.j : leng-term stability of the geologic 7 setting provide a final $arrier to n;igrar;pp to the biosphere. The selection of a suitable geologichtiing is one of the key technical problems'duch DOEinustwive.fther problems include deselopment of waste packages that can syain the waste until the fission prod act hazard is ireatly reduced andbgineered barriers that can effectiiel> retard trigration of radionudides'out of the repository. The Comm;.ssion recognizes thatJhese three problems are not the only ones which DOE's program must solve, but they are critical components of the multi-barrier tpproach for nuclear waste isolation. Much of the discussion in this proce; ding ras focused on these problems. We have reviewed each of these iss'us ead base concluded that they do not present an insoluble prob,tgra wbich will prevent safe disposal of radioactive waste' and spent fuci; h I'
- 2. The identification of Acceptable Sites There is general greement among the participants that the period during which the wastes must be isolated from the biosphere is at least several millenia arc that such ?rolonged isolation can be achieved i t a deep mined repository provided the geologic setting is suitable. The geo-
, logic setting isjhe " final" isolating barrier. If the waste package ar.d en-gineered tarriert, fail to perform as expected, the geologic barrier must prevent I: armful.pantities of radioactiss riaterials from enter ng the m human environinent
- The Commnsion believes tb21 technied.'h acceptable sites exist and can be identified. In many locations in the continental United St_tes tbere are geologie media pot *A*ially SJi'able for a wa.ste repository.
These media occur in large, relatively' homogeneous and tufaulted for-mations and have properties (e.g., mechanical strergth, ne mal stabili ty, imper 71eab'lity to water) which qtdify them as potent g hut rocks
. r s
316 i. [ [ , . a f
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for radioactive wastes. The potential host rocks include those being in-vestigated by DOE - that is, domed salt, bedded salt, tuff, basalt, gran-ite, and shale (DOE PS at 11-70 to 11-80). Thousands of square miles of the United States are underlain with formations containing extensive masses of such potential host rocks. Storeover, more than one-half of the United States is underlain with rock that has been stable against sig-nificant deformation and disruption for over 10 million years. The poten-tial sites being investigated by DOE are in regions of relative tectonic stability (USGS PS at 19,23,24,25,26,28; Tr. at 236). Host rock suitability and formation stability are not the only relevant technical factors to be considered in repository site selection. Geohydro-logic conditions - particularly the absence of significant groundwater flow from the repository to the biosphere - must be favorable for effec-tive isolation of the wastes (USGS PS at 11). DOE's investigations reveal that the hydrologic characteristics of a major portion of the sites underlain with stable formations of potential host rock appear to be uitable for repository location (Tr. at 236; DOE PS at !!-77). These general conclusions about the extent of potential repository sites are based on the results of DOE's site exploration program (DOE PS, Appendix B) and the extensive body of earth sciences information available at the United States Geological Survey - the Federal agency principally concerned with earth-sciences issues and, under a DOE-USGS hiemorandum of Understanding, a primary source of geologic, hydrologic and mineral resource data for the National Waste Terminal Storage program (USGS PS at 2 and Appendix A; DOE PS at 111-44). DOE's site exploration efforts are focused on four host rocks (domed salt, bedded salt, basalt, and tufD in six regions (Gulf Interior Paradox Basin, Permian Basin, Salina Basin, DOE Hanford Site, DOE Nevada Test Site). (DOE PS, Appendix B). Although investigations of granite sites in the U.S. have been limited, DOE is developing data on the potential of granite as a host rock in collaboration with foreign investiga-tors. A Swedish-American cooperative program (DOE's Lawrence Ber-keley Laboratory is the U.S. principal in the program) has involved a series of in situ tests in a granite formation conducted at the Stripa mine in Sweden. The investigations included determinations of thermally in-duced stresses and deformations in the granite rock mass. Another cooperative study at Studsvik in Sweden involved experiments in nuclide migration in fractured subsurface crystalline rocks (DOE PS at !!-258). Some participants objected to the fact that most of DOE's site explora-tion involved federally owned or controlled areas, arguing that this would result in ignoring sites that were technically better (NRDC PS at 17; Tr. at 206). This objection, apparently based on the assumption that 317 e p
l Federal lands investigated were limited in area and geologic diversity, is not supported by the record. The Federal lands being investigated by
- DOE are extensive and geologically diverse; moreover, they are more readily accessible to DOE and some of them, such as the Nevada Test Site, have been previously subjected to extensive geologic assessment.
These latter factors are signiGeent advantages (DOE PS, Appendix B; UNWMG-EEI CS at IV.B-4). Although, as the United States Geological Survey pointed out, there may be advantages from a purely earth-science viewpoint in examining all parts of the country for their potential as re-positories, time and resource limitations require that site exploration ef. forts be concentrated in limited regions fairly early so that detailed site-specific characterization efforts can be undertaken in a timely way (USGS PS at 17). A specific site has not yet been identiGed as technically acceptable, and investigations of potential sites have shown some to be unsuitable. This does not necessarily mean that DOE's site-selection program will be unsuccessful in identifying technically acceptable sites. The elimina-tion of some sites is to be expected in a pursuit of the site selection pro-gram and is not, as some participants implied, an indication that suitable sites cannot ultimately be found. Although the record of this proceeding does not show that DOE has progressed far enough in site characterization to conGrm the existence of an acceptable site, the record does indicate that DOE's site characteri-zation and selection program is technically sound. The data obtained in each stage of the screening process are analyzed and compared against criteria that must be satisGed for adequate performance of the totalisola-tion system. DOE's program is providing information on site characteris- I tics at a sufGciently large number and variety of sites and geologic media to support the expectation that one or more technically acceptable sites will be identiGed (DOE PS at III-8 to 111-24; CS at 11-140). As discussed above, DOE's site-screening efforts have concentrated on a diverse set of potentially suitable geologic media and are directed to an examination I of large areas of the country on both federally owned and nonfederal lands (USGS PS at 17). The technology for site identiGcation is particularly well advanced l (UNWMG EEI PS at Ill.A-1). The record describes numerous site char-acterization techniques, both remote sensing and in situ, which are being used to evaluate sites (DOE PS at 1184 to 11103). The location and ! demonstration of acceptability of repository sites are problems which can be solved by the investigative and analytical methods now available l l (AEG PS at 1). Site-selection criteria are being reGned (DOE PS at 11-80 to 11-83; 48 Fed. Reg. 5671 (1983)) and the technology exists for 318
- - ' ^ - - - - ' - - "
site characterization (DOE PS at 11-84 to 11-103). Areas have been found where most natural geologic and hydrologic processes operate at rates favorable to long-term containment in a mined repository (DOE l PS at 11-128; Consolidated Industry Group PHS at 9). The Commission recognizes that there are gaps in the current state of knowledge about potential repository sites and geologic media, and about geochemical processes which affect radionuclide migration (e.g., CEC PS at 17,54; NRDC PS at 18,50,64; NY at 38,80; USGS CS at 5, 6). The gaps include a lack of a detailed understanding of such relevant processes as sorption of radionuclide-bearing molecules by the geologic media, leaching of the wastes by groundwater, and radionuclide migra-tion through subsurface formations. Some participants contend that these gaps and uncertainties in knowledge make it difficult to predict on the basis of any effort less than a detailed onsite investigation whether a candidate repository site will be technically suitable (e.g., NRDC PS at 18,50, 53; ECNP PS at 3,4; NECNP PS at 20, 21, 22). The Commission recognizes that detailed site characterization is
]
necessary to confirm that a proposed site is indeed suitable. The Com- I mission does not believe, however, that all uncertainties must be re-solved as a precondition to repository development. The performance of a repository may be bounded by using conservative values for controlling parameters, such as waste form solubility, groundwater travel time and retardation of radionuclides. Furthermore, bounding analyses can be useful to take residual gaps in knowledge and uncertainties into account. If it can be established that a repository can perform its isolation function using established, conservative values for the controlling parameters, then it is not necessary to resolve uncertainties in the range of values these parameters may exhibit (DOE CS at 11-83, 11-84, 11-130, !!I-9, 111-1 2). The statements of those participants who are pessimistic about timely accomplishment of disposal tend to assign equal importance to all areas of uncertainty. Hence, they contain few attempts to assess the conse-quences of gaps in knowledge or to project the benefits of expected re-sults from ongoing research anr; development efforts. It is the Commis-sion's belief that the waste isolation system elements are adequately un- ' derstood so that major unforeseen surprises in results of research and de-velopment are highly unlikely. This view is supported by USGS (USGS CS at 1-2). A further concern of some participants is that, even if DOE were to identify a potentially acceptable repository site, the m-siru testing re-q aired to determine acceptability would breach the integrity of the candi-date site (NY PS at 59, 63-65). If, for example, boreholes essential to 319
I l characterize a potential site result in penetration of aquifers which are not amenable to effective sealing, this might make the site unacceptable (DOE PS at !!-161 to 11-164). However, no persuasive evidence was pre-sented in the record to support the position that in-situ tests for site characterization work are likely to compromise the integrity of candidate sites. The Commission believes that in-situ tests can be successfully ac-complished without adversely affecting site integrity for the following reasons. Many nondestructive, remote sensing methods are available for determining site characteristics. Further, boreholes can be located in shafts or pillars of the future repository to minimize the possibility of leakage through them. As discussed later, borehole sealing methods are expected to be ade-quate The number of boreholes necessary to adequately characterize a site can be minimized by careful planning and by use of remote sensing methods in conjunction with the drilling program (DOE PS at 1184 to 11-103, 11 181). Finally, the Commission believes that if a site is found to be sufficiently sensitive to the testing program that its integrity would be destroyed, then that site would necessarily be found unacceptable. In summary, the Commission believes that technically acceptable sites for disposal of radioactise waste and spent fuel exist and can be found. There are a number of suitable host rock types to select from; many areas are underlain with massive, stable formations containing these host rocks; the areas being investigated by DOE contain such rock formations; and the uncertainties in knowledge of the earth and material sciences relevant to the identification of an acceptable repository site are not fundamental uncertainties that would prevent the identification of technically acceptable sites. Further, in situ testing required to character-ize a candidate site would not necessarily compromise its integrity. B. The Development of Effective Waste Packages
- 1. Waste Package Considerations An important technical aspect of safe waste disposal is to assure that the waste form and the balance of the waste package, including the pri-mary container and ancillary enclosures, are capable of containing the radioactivity for a time sufficient for the hazard from fission product ac-tivity to be significantly reduced (e.g., DOE PS at 118). Decay heat, groundwater and nuclear radiation could cause the waste package compo-nents to interact with each other or with the host rock materials in such a way as to degrade the ability of the package to contain the radionu.
clides. These items are discussed below. 320
To assure long-term containment, DOE's conceptual design of a waste package is based on a defense in-depth approach and involses a number of components including spent fuel, stabilizer (or tiller), waste canister, oserpack, and an emplacement hole sleev'e. The stabilizer is in-tended to improve heat transfer from the spent fuel, to proside mechani-cal resistance to possible canister collapse caused by lithostatic pressure, and to act as a corrosion-resistant barrier between the spent fuel and the canister. Selection of canister overpack and emplacement hole sleese materials will be based on tests of their chemical and physical integrity at various temperatures and levels of radiation and under various condi-tions of groundwater chemistry, as well as tests of their compatibility with each other and with the host rock materials under repository condi-tions. The canister, overpack, and sleeve should constitute relatively im-permeable elements of the waste package. A variety of candidate mate-rials is being considered for these elements. The various waste package components are to be combined in a conservative design that will com-pensate for the overall technical uncettainties in containment capability. The requirement for retrievability during some specified period after em-placement places conditions (e.g., ruggedness) on waste package design I which are added factors to be considered in its development (DOE PS at 11-129 to 11 152,11282). It is apparent from the foregoing that the development of an effectise waste package depends on obtaining engineering data on those materials that appear to be promising candidates for package components. DOE is studying over twenty eight candidate materials for canisters and over-pack (DOE PS at 11143). The DOE evaluation program indicates that many of these materials' are promising. For exampic, iron alloys have demonstrated long term durability (DOE PS at 11144 Ref. 38D. and titanium alloys and nickel alloys show high resistance to corrosion (DOE PS at 11 144, Refs. 315, 338, 342). Ceramics are resistant to chemical degradation and have many other desirable properties (DOE PS at
!! 145, Refs. 337,347,348 and 349). Preliminary analysis indicates that i mild steel canisters with an appropriate backfill material would be a feasi-ble waste package for either a salt or hard rock repository. For more demanding requirements, such as brine applications, the alloys of titanium, zirconium or nickel appear to represent alternate choices (DOE PS at 11150, Refs. 337,382). The DOE program also includes ed i perimental studies of the release of radioisotopes from spent fuel cd i posed to simulated repository conditions (e.g., salt brine and fresh water
- with varying dissolved oxygen content). The studies are being conducted
- under temperature and pressure conditions that bound and exceed l repository conditions (DOE PS at 11 139 to !! 141).
321 i i i l
\
l
Not all participants were optimistic about waste package development. One participant asserted that in spite of DOE's efforts to develop a pack-age that would remain inert and stable under repository conditions, none had yet been found and the DOE program would not succeed in 6nding one (NRDC PS at 46). Other participants pointed to the limits of present knowledge, particularly about the leaching of radioisotopes from spent fuel in a groundwater environment, and concluded that it is not possible to select a waste form which will prevent radioisotopes from migrating to the biosphere (e.g., CEC PS at 51). They also pointed out th n chemical and physical properties of spent fuel varied widely and depended on burnup, location within .he reactor core, age, and physical integrity; design of a system of barriers to accommodate this heteroge-neity within the context of a given geohydrologic environment would be a major undertaking (NY PS at 83). The Commission recognizes the difnculties which must be osercome in developing a suitable waste package. A large body of experimental data must be accumulated and applied to a variety of candidate arrange-ments of waste package components. Suitably conservative assumptions must be postulated to define the repository conditions. Data from experi-ments of relatively short duration have to be used to predict behavior for much longer periods. It is common practice in materials research to perform short-duration experiments under physical or chemical condi-tions much more severe than those expected for the longer duration and, from known fundamental properties of the materials under investi-i gation, to extrapolate the experimental data to predict long term behav-ior. Conservatism can usually be assured by making the experimental conditions sufficiently severe. The complex composition of the mixture of radionuclides in fission products and their basic chemical properties are known and have been the subject ofinvestigation for more than three decades. The large body of published data on fission product chemistry and experience with fis-sion product mixtures should provide considerable support for predicting ' the behavior of spent fuel and high level radioactive waste in waste pack-age designs.1 The Commission, therefore, concludes that the chemical and physical properties of spent nuclear fuel and high level radioactive waste can be sufficiently understood to permit the design of a suitable waste package. I Published compilanons or such data, although not specifically included in the record of this proceeding. are mell known to the nuclear science and engineering community Esamp!es are the three volumes or the Nanonal Nuclear Energy series. C D Coryell and N susarman. "Radiolossat studies. The Fisamn Prodacts." McGraw Hill (19$l1. " Fuel Reprocesuns." in practor Hamrtw4. s M stoller and R B Richards. Eds (Interscience Publishers. Inc . New York.1961L voi !!. 2J ed. 322 i I a - , . - -
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The Commission also concludes that the DOE program is capable of developing a suitable waste package which can be disposed ofin a mined geologic repository. This conclusion is based upon the large number of candidate materials being considered by DOE, the detailed evaluation of these materials to be conducted as part of the DOE program and the re-sults of DOE's preliminary analysis of candidate materials, as described above (see { 2.1 B.1). The Commission's conclusion that the develop-ment of a suitable waste package is technically feasible is also consistent with other material in the record. For example, a study sponsored by the National Academy of Sciences (NAS) concluded that no insurmountable technical obstacles were foreseen to preclude safe disposal of nuclear wastes in geologic formations (UNWSIG EE! PS, Doc. 2, at !! 6). The United States Geological Survey stated that a long lived canister is within the capability of materials science technology to be achieved in the same time frame as repository site identincation, qualification and development (USGS PS at 11). The National Research Council, after reviewing the Swedish waste disposal work (DOE PS at 11335, Ref. 380), concluded that the Swedish waste package could contain the
; radionuclides in spent fuel rods for hundreds of thousands of years 1
(DOE CS at 1198).
- 2. FJfect of Reprocessing on FVaste Form and Waste Package The waste form itself (spent fuel or other high-level waste) serves as 3
the Grst barrier to radionuclide release and thus supplements the con-tainment capability of the other components of the waste package as well as the repository's natural isolation capability. Throughout this pro-ceeding it has been assumed that the waste form would be spent fuel dis-charged from light water reactors, with mechanical disassembly for volume reduction and packaging in a canister as the only potential modincations. The relevant properties of the spent fuel (irradiated urani-
! um dioxide pellets and zircaloy cladding) are known. DOE's program has been directed toward providing data to determine the behavior of i spent fuel as a waste package component under repository conditions. In i its Position Statement DOE stated that the " representative case" to be
! considered in this proceeding is the disposal and storage of spent fuel from commercial reactors and that this does not foreclose "other approaches, such as the reprocessing of spent fuel and solidi 0 cation of resultant nuclear wastes" (DOE PS at I 2). i On August 27, 1981, the Natural Resources Defense Council Gled a l Slotion for Judgment requesting a prompt ruling that, on the basis of j the present record, there is not reasonable assurance that offsite storage i j 323
l or disposal will be available by the year 2007-09. NRDC stated that, be-cause the present Administration: had changed Federal policy towards a commercial reprocessing of spent fuel (reprocessing was deferred "indef-initely" in April 1977 by the previous Administration), the disposal of spent fuel would be contrary to the present Administration's policy, and thus spent fuel was no longer a valid " reference waste form" for this 4 proceeding. As a consequence, according to NRDC, DOE schedules and timetables, which were based on spent fuel storage and disposal, were , irrelevant. The NRDC view was challenged by DOE as well as by seven participants representing utilities and the nuclear industry. The Commis-sion took note of the NRDC Slings and the responsive Glings by other participants, considering them part of the record, and in its November 6,1981 Second Prehearing Memorandum and Order asked the partici-pants to address the significance of commercial reprocessing to the Com-mission's decision in the waste conGdence proceeding. In response, the participants addressed this change in government policy in their prehear-ing statements Gled in December 1981. In response to those who argued that the change of reprocessing policy invalidated DOE's position, DOE stated that the program for de-velopment of the technology is not dependent on the waste form. More-over, DOE pointed out that the purpose of this proceeding "to deter-mine whether there is at least one safe method of disposal or storage for high-level radioactive waste" is not changed by this Administration's support of reprocessing of spent fuel (DOE Pils at 2-3). Some partici. pants who agreed with DOE commented that spent fuel disposal involves greater difHculty than disposal of solidiGed reprocessing waste because ofits higher radioactivity and less easily handled form; in addition, they asserted that the removal of the uranium and most actinides by reproc-essing would ease the requirements for safe long term storage and sim-plify the waste disposal problem (UNWMG eel PilS at 16; SE2 PilS at 4). Others contended that spent fuel is a more difncult waste form be-cause heat dissipation and packaging problems involved in disposal appear to be more severe than in disposal of solidiGed reprocessing waste (AIF PflS at 6; ANS PifS at 5). The Commission recognizes that the proceeding has been primarily concerned with storage and disposal of spent fuel. flowever, the Com-mission does not believe that the possibility of future reprocessing, and th: potential need to dispose of high level radioactive waste resulting from reprocessing, significantly alters the technical feasibility or the , 2 The NRDC statement was based on doe tesnmony before a congresuonali;ommittee The Preudenis Nuclear Pohcy statement of october 8. IMI, connrmed the doe iesumony. 324 r -,- ,,, - ,- 3 ,- -7
schedule for developing a mined geologic repository and the design of its multiple barriers. With regard to technical feasibility, the effect of spent fuel reprocess-ing on the commercial radioactive waste disposal problem is not a new co,nsideration. The disposal of waste from reprocessing spent fuel has been studied for a longer time than the disposal of spent fuel. Until 1977, the commercial waste management program was directed primarily toward disposal of waste from spent fuel reprocessing, and those efforts have continued. A variety of waste forms has been studied (DOE PS at 11-153 to 11160). Thus, considerable information is already available on the technical feasibility of developing a suitable waste form for reproc-essed high-level radioactive waste. In fact, there is evidence that the dis-posal of reprocessed high level waste may pose fewer technical chal-lenges than the disposal of spent fuel (Tr. at 29). N!oreover, commercial reprocessing of spent fuel cannot be undertaken in this country in the absence of a full NRC licensing review. That review will consider, among other things, the waste form to be produced by the reprocessing method and its implications for waste disposal. Unless the Commission determines that commercial reprocessing and management of its prod-ucts assure adequate protection to the public health and safety and the I common defense and security, spent fuel will continue to be the pre-dominant commercial waste form available for disposal in a repository. With regard to the impact on DOE's repository schedule, the Commis-sion recognizes that DOE's waste package development program will eventually be affected to some extent by the nature of the waste form under development. However, the direction taken in research and evalu-ation of materials being conducted in the DOE program is expected to produce results which would be relevant to the waste package design, regardless of which waste form is used (DOE PS at 11-141 to 11152, CS at 1196 to 11-100). Storeover, the choice of waste form will not signili-cantly affect other elements of the DOE repository program. The storage and disposal of reprocessed wastc would involve substantially the same problems as those being addressed for spent fuel, and a change in waste form would not alter the site-selection program or the program for devel-opment of suitable engineered barriers (DOE PHS at 3). Thus, DOE's program is proceeding on a basis that would permit the disposal of either high level waste or spent fuel. This approach is consistent with the recommendations of the Interagency Review Group in its Starch 1979 report to the President (IRG Final Report at 73) and with the direction in the Nuclear Waste Posy Act of 1982 (l til(a)(2)). Finally, as noted above, any decision to permit the commercial reprocessing of spent fuel 325 f
will include consideration of the reprocessed waste form and its implica-tions for waste disposal. For these reasons, the Commission concludes that the possibility of commercial reprocessing does not substantially alter the technical feasibility of, or the schedule for, developing a suita-ble waste package. The Commission concludes that the basic knowledge of spent fuel and high-level waste and its behavior in a repository environment, together with DOE's ongoing development and testing program, are sufficient to provide assurance that a waste package can be developed that will pro-vide adequate containment until the potential hazard from the fission product activity is sufficiently reduced. C. The Development of Effective Engineered Barriers for Isolating Wastesfrom the Biosphere
- 1. Backfill Materials In DOE's conceptual design, one engineered barrier consists of backfill materials for filling voids between anister, overpack, sleeve and host rock. The materials are chosen to retard radionuclide migration. The task is to design and test barrier materials which will be effective for very long periods of time. Candidate materials include bentonite, zeo-lites, iron, calcium or magnesium oxide, tachyhydrite, anhydrite, apa-tite, peat, gypsum, alumina, carbon, calcium chloride, crushed host rock, and others (DOE PS at 11-147). Host rock or other materials would also be used to backfill drifts and shafts within the repository.
The California Department of Conservation (CDC) contends that repository shaft and borehole backfill material performance may be degraded as a result of increased temperature and other factors (CDC PS at 19-22). However, the expected temperature rise in the shaft back-fill material will be only about 10*F, and will cause no significant degra-dation of the shaft backfill material (DOE PS at 11-347, Ref. 527 NUREG/CR-0495). Otner participants believe that there is inadequate information to permit development of long lived engineered barriers that will effectively contain high-level radioactive wastes (NRDC PS at 18, 32; Ill PS at 3-4; NECNP PS at 18). CDC further contends that at this time, no information appears to have been developed that specifies the best type of backfill material to be used in particular geologic media (CDC PS at 19-22). However, the choice of backfill must take into ac-count the rock media at the selected site as well as the waste package material. Thus, the backfill cannot be selected until a repository site has 326
been selected. The NWTS program has as its objective, providing infor-mation on a practical range of options for backfill materials. Although a considerable amount of work remains to be done, an active research and development program on backfill materials is under way (DOE PS at 11-147). Further, that program is providmg information to evaluate the backfill material options, as well as to establish a basis for selection of a suitable material for the geologic media being considered. The Commis-sion believes that this approach provides an adequate basis for conclud-ing that effective backlill materials will be identified in a timely fashion. In the National Waste Terminal Storage program, a wide range of can-didate backfill materials has been and is continuing to be evaluated (DOE PS at 11-129 to 11-152). The DOE studies include measurements of.the appropriate properties of backfill material including nuclide sorp-tion capacities, capability to prevent or delay groundwater flow, thermal conductivity, mechanical strength, swelling, plastic flow and methods of backfill emplacement. Data on available candidate materials show signifi-cant radionuclide sorption capabilities, and sorptive properties can be maintained at elevated temperature and in the presence of radiation (DOE CS at 11-98. 11 99). Analyses indicate that several of the materials could proside adequate performance characteristics (DOE PS, Part II, Refs. 339, 340, 346, 372, 374, 376). As an example of the development of effective engineered barriers, the results of Swedish studies on radionuclide release in a repository were cited. The studies showed that a bentonite clay backfill, in conjunction with a thick copper canister (with spent fuel inside) could prevent the release of radionuclides to the host rock in the presence of granitic groundwater for thousands to hun-dreds of thousands of years. In the Swedish experiments, the clay barrier provided sorptive properties which were predicted to delay the break-through of various radionuc! ides for thousands of years and also served to chemically condition the groundwater, reducing its corrosive effect on the canister (DOE PS at 11-145, 11-148). The use of certain clays to retard the transport of radic>nuclides released by the waste package is ap-plicable to repository designs here in this country. While DOE has not proposed using thick copper canisters as employed in the Swedish stud-ies, this example of a durable combination of waste package and backfill material, which was demonstrated to be effective in isolating radionu-clides for very long times., indicates that the basic approach is reasona-ble. The use of clays, combined with other appropriate materials, could provide an effective means for radionuclide retardation and corrosion control. In sum, the Commiss on believes that DOE's ongoing developmental studies reported in this proceeding (DOE PS at 11129 to 11-152) are 327 i i l
i technically sound and provide a basis for reasonable assurance that engi-neered brriers can be developed to isolate or retard radioactive material released by the waste package.
- 2. Borehole andShaft Sealants A major factor in repository performance is the effective sealing of boreholes and shafts during repository closure operations. All penetra-tions provide potential pathways for radionuclides to reach the biosphere or for groundwater to enter the repository. The penetrations must be sealed for an extended period of time. Further, the geology and hydrolo-gy at a particular site, as well as the expected temperature and pressure conditions during repository lifetime, must be understood in order to make a proper choice of the borehole and shaft sealing materials and to develop effective borehole and shaft seals.
Some participants concluded that current information concerning the technology for the sealing of the boreholes and shafts is inadequate. They also questioned the capability of the DOE program to develop suffi-cient information to allow effective seal design (CDC PS at 19 22; NRDC PS at 5). The views of several participants who expressed con-cern about sealing were reflected in the comments of CDC. The Com-mission's response to each of the points raised by CDC on borehole and shaft sealing issues is discussed below. CDC indicated that since long-term elTects of heat and radiation on seal materials were not a factor in past oil and gas borehole sealing experience, such experience is not applicable to repository sealing? However, at distances of more than several feet from waste canisters em-placed in a repository, radiation exposures are small and the temperature rise at seals in the shafts and boreholes is insignificant for sealing pur-poses (DOE CS at II 108). CDC also believes that the tests of cement seals with epoxy resins in bedded salt deposits discussed by DOE are insufficient to provide assur-ance of seat stability over a period of 10,000 years, especially when the effects of higher temperature and radiation are not included. As noted above, temperature and radiation effects on seals are expected to be negligible. 3 The corrimission notes that the citenuse o.I and sas borehole seahns esperience has not been son. cerned with very.long-term seahng. Therefore. doe's seakes research and development musi proude a bass to attend that esperience for the development of long-term scals ror a repostory 328
While these tests may not provide conclusive proof of performance for 10,000 years, they are expected to provide useful information for seal development. CDC states that the results of field tests described by DOE as continu-ing over the next few years will not be completed in time to contribute to seal design criteria which are to be completed
- in 1982. flowever, the final seal design for the selected site is scheduled for 2 years after a site is selected (DOE PS at !! 184). Testing up to that date is expected to be useful in designing an effective seal.
CDC questioned whether tests of waste package system component in-teractions with the surrounding media in bedded salt described by DOE will be completed in time for location of a repository. liowever, the Commission finds no basis for this assertion in the record. The DOE program appears to be adequately addressing this issue. Studies are in progress to characterize further the interactions between candidate back-fill getter materials and waste container alloys. These studies include in-vestigations of dry rock salt / metal interactions and high intensity radia-tion / salt / brine / metal interactions. (DOE PS at 11 149,11 150). CDC asserts that DOE has not discussed designing backfill material and penetration seals to allow for safe reentry if retrieval should become necessary. liowever, the provision to retrieve high level waste and spent fuel for a number of years after the repository is filled has been ad-dressed by DOE (DOE PS at 11280 to 11283). Although it has not yet been established whether backfilling and sealing will be conducted before repository closure, these operations may be reserved until a final decision for closure is made. In any event, CDC provides no basis for concluding that providing for retrievability will necessarily create any major difficulties for the design of backfill material and penetration seals. According to one participant, (tlhere is no estabbshed way to seal a reposstory so as to prevent radionuchde release to the biosphere for the necessary period of tirne. DOE has termed the seal. ing problem a " key unknown" but there is no consensus that the technology whwh is currently anticipated will provide adequate seals for eve.: 4 few decades (Consolidated States Group PilS at 8). Other participants maintained that seals must perform as well as the host rock in preventing radionu-clide migration (NRDC PS at 55). The DOE position is that the seal should provide a barrier with sufficient integrity to ensure acceptable 4 Dot has pubhsbed ' schemata: Dewsrie ror Penetranon seals for a Referente Repnutory m Bedded salt." oN% l-40$. November l'HL J29 i
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consequences, and sealing adequacy should be determined only on a site specific basis (DOE CS at 11-106). DOE asserted that its program will successfully resolve remaining uncertainties in repository sealmg technology (DOE CS at 11 106 to !!.109). DOE has been studying cement based borehole plugging and has examined use of grout materials for application to the Waste Isolation Pilot Plant (WIPP) and other potential repository sites. Earth melting technology for plugging in salt and use of compacted natural earth mate. rials are also being investigated (DOE PS at !! 183, CS at 106 09L There is a considerable body of experience in scaling subsurface forma-tions in the oil, gas, and other mi'1eral extraction industries. Howeser, related industrial experience and requirements for sealing a repository difTer in one important respect: repository scaling must be effective for a very long time while most other scaling applications are for relatively short time periods (DOE PS at 11182). Future DOE effort will be needed to verify borehole seal performance and durability for each candi-date medium. An important aspect of DOE's work is to determine the rate of degradation of seal performance as a function of time. DOE plans to determine seal performance specifications for a particular site on the basis of calculated predictions of radionuclide release and transport to the accessible environment (DOE PS at 11182). These predictions are expected to indicate that a site whose characteristics for waste isolation are clearly superior may not requite scaling performance specifications as stringent as those for a less favorable site. Based upon the extensive experience with shaft and borehole sealing in other industries and DOE's detailed program for evaluating the long-term performance of seals, the Commission believes that there is a rea-sonable basis to expect that long term effective borehole and shaft seals can be developed. D. Summary of Views on the Technical feasibility ofSafe Waate Disposal The Commission notes that participants in the Waste Confidence Rulemaking proceeding have generally agreed there are no known fundamental technical problems which would make safe waste disposal impossible. Where they differ is the extent to which the technical prob. tems of disposal technology and siting have already been solved and the capability of DOE to solve them, and particularly to solve them by 2007 09 or by the expiration date of reactor operating licenses (e s., NY PS at 3; NECNP PS at 171; Minn PS, Enclosure at 13 20), 330
t 1 i i I The Commission belieses that the record provides a basis for reasona-ble assurance that the key technical problems can be sobed. Technically i acceptable sites exist and can be found among the various types of geo-i logic media and locations under investigation by DOE. Currently devel-i oped geophysical methods for site evaluation appear capable of adequate-ly characterizing the site, and the residual uncertainties in earth sciences ' i data do not seem to be an insurmountable impediment. Further, the Commission believes that the multi barrier approach to waste pack. ige design is sound and that package development is being adequately ad- , dressed by DOE. DOE's development work on backfill materials and t scalants provides a reasonable basis to expect that back0ll materials and ' long term seals can be developed. Reprocessing of spent fuel would only become a licensed commercial aethity if disposal of reprocessing waste < in a mined repository would be established as technically feasible. While . ' the Commission recognizes that more engineerin; development and site-speciSc work on disposal technology will have to be conducted before a waste repository can be constructed and operated, the Commission con-cludes that it is technically feasible to safely dispose of high level radi-osctive waste and spent fuelin a mined geologic repository. t i 2.2 Second Commission Finding i i i The Commission pnJs reasonable assurance that one or more mined geo. i logic repositories for commercial high level raJtoactive maste and spent floel
- wdl be aradable by the years 200709 and that sufpcient repository capacity i
ndi be avadable withm 30 pars beyond expiratton of any reactor operating \ license to Jspose of commercial high. level radioacthe waste and spentfleel i originating in s:tch reactor and generated up to that time. l l While the record of the proceeding supports a Onding that disposalis i 1 technically achievable, the Federal government has, in the past, made inadequate progress in developing sound waste management policies and programs. The Commission notes that DOE has stated in its April i' 1984 draft Mission Plan that the Grst repository will begin operations in 1998, and that the second will start up in 2004, llowever, it is recognized that both technical and institutional issues contribute to uncertainties j concerning DOE's ability to complete one or more mined geologic repos-i Itories for high level radioactive waste by those dates The technical l Issues concern DOE's ability to Ond technically acceptable sites in a i timely fashion and the timely development of waste forms, packages, , i and engineered barriers. The institutional issues concern primarily I'ederal State relations and the management and funding of the Federal l program. i 331 I ! i 1, f
j i r l The Commission has considered the effect of enactment of the Nucle-ar Waste Policy Act of 1982 and concludes that the Act helps to reduce j these scheduling and institutional concerns. The Act provides support l for timely resolution of technical uncertainties by: (1) establishing specific milestones for all the key tasks; (2) coordinating the activities of i all the involved Federal agencies; (J) providing for time schedules and a mission plan for the accomplishment of the tasks; and (4) providing a mechanism for monitoring progress, for identifying failures to meet the ; schedules and the milestones, and for adjusting the future elements of the program in the event that such failures occur. In orcer to further en-l hance the resolution of technical uncertainties regarding rock thermal- l { geomechanies the Act provides for the establishment of a Test and Eval-
, uation facility to carry out in stru studies of rock at repository depth The Act also reduces uncertainties in the institutional arrangements for i the participation of affected States in the siting and development of re-positories and in the long term management, direction and funding of the repository program. The Commission's assessment of both the ;
J technical and institutional factors is discussed below. j i
.4. Technical Uncertainties t The ability to construct and operate a mined geologic repository that l will provide for the safe dispos.il of high level radioactive waste and ;
spent fuel by the years 2007 09 has been challenged by several partici. j pants. In addition to the institutional issues which must be resolved. in-l terrelated techmcal problems have to be solved in a coordinated and timely fashion. The Department of Energy is con 0 dent the technical problems can be solved as scheduled in the National Waste Terminal { Storage Program plans (DOE PS at !!! 86 CS at 11113; DOE draft N! 5 1 sion Plan, April 1984). Other participants conclude that because of unre-solved technical problems, DOE's schedule cannot be met (e.g , Consol-i idated Public Interest Group Pil5 at 2 7; Consolidated State Group Pils l at 1 13), For convemence, we consider the technical controversy in two j categories: (a) Unding technically acceptable sites in a timely fashion, { and (b) the timely development of waste packages and engineered !
! barriers.
i
- l. Fmding Technically .4cceptable Sites in a Dmely fashion To assure the adequacy of a candidate site requires estensive onsite in-vestigations including drilling or excavating, as well as analyses and
! technical evaluations. Although DOE has not yet begun subsurf.ne site 1,
l i 332 1 h 9 3 1 1 3 N i i
I i ] characterization to enable identification of an acceptable site, the record does indicate that DOE's site screening and selection program is provid-ing information on site characteristics at a sufficiently large number and variety of sites and geologic media to support the expectation that one or more technically acceptable sites will be identified. DOE is investigating four geologic media at a number of sites: domed i salt (Gulf Interior Region); bedded salt (Paradox Basin, Permian Basin, J Salina Basin); basalt (DOE's Hanford Site), and volcanic tuff (DOE's j Nevada Test Site). Investigations in a fifth media (granite) are planned, i but sites have not yet been determined (DOE PS, Appendix B). Explora-J tory shaft excavation at three sites in different geologie media was to begin for basalt in April 1983, for volcanic tuffin October 1983, and for
; salt in December 1983 (Tr. at 24142), llowever, the Nuclear Waste l
Policy Act of 1982 (NWPA) imposed new conditions which made it necessary to revise this schedule. The NWPA v.ecified that DOE had to ) prepare environmental assessments for each of live nominated sites, i from which three sites would be recommended to the President for characterization. DOE's preparation of ensironmental assessments and I recommendation of three sites were to be accomplished in keeping with the provisions of the repository siting guidelines required by the NWPA. The Commission's concurrence in DOE's siting guidelines on bly 3. l 1984, enables DOE to proceed to nominate and recommend repository sites for characterization. DOE has recently published a revised schedule for site selection milestones in its April 1984 draft Slission Plan. As de-1 l I scribed in its Slission Plan, the current status of DOE's site selection schedule calls for the issuance of environmental assessments for five nominated sites and the recommer dation of three of those sites for char. ! i acterization by December 1984. DOE's schedule for work in the various l geologic media is summarized below. 1 Sa/r Resolution of the identitled key screening issues in FY 84 is ex-i pested to permit nomination of a candidate salt dome site in December ' i 1984. DOE is still choosing from among several salt domes in the Gulf I Coast interior region (Tr. at 24J 44, DOE draft Slission Plan, April 1984). For bedded salt, primary effort has been focused on the Palo Duro Basin in Texas, the Paradox Hasin in Utah, and the Permian Ba- , sin, particularly the Delaware Basin in the Los hledanos area, the site l l considered for the proposed WIPP. The Bureau of Land blanagement l issued the report " Environmental Assessment of DOE Proposed 1.oea. tion and Baseline Studies in the Paradox Basin, Utah Final" UT.060 51 j 211, in July 1982. Each of the seven potentially acceptable salt sites has
; been evaluated for environmental conditions, and a site characterization j plan is expected to be issued for salt in September 1985. DOE will start i
1 i 333 1 i 1 i i i
!and access and permitting activities for salt after negotiating agreements l with affected States and Indian tribes (DOE draft Slission Plan, April 1984).
Basalt: The basalt formations at the Hanford Reservation in the center of the Pasco Basin (Columbia Plateau, central Washington) are prime candidates for repository sites. DOE expects to issue a site charac-terization plan for basalt in January 1985 and start drilling for the es-pioratory shaft in blarch 1935 (DOE draft Stission Plan, April 1984). Volcanic Tu/A The Nevada Test Site offers several suitable candidates for waste repository siting. The primary focus is welded tuff on Yucca Siountain, where DOE has begun a program of drilling and geophysical evaluation. DOE expects to issue a site characterization plan for tuff in Nfarch 1985 and begin shaft work in September 1985 (DOE draft Niis-sion Plan, April 1934). Granitet Oranite and other crystalline rock media are being consid-cred for the second repository (DOE draft Slission Plan, April 1984L DOE has conducted only limited investigations of granite at the Nevada Test Site (DOE PS at B 66, B-72), but is desetoping data on the poten-tial of granite as a repository medium in collaboration with Swedish in-vestigators (DOE PS at 11258). This project has already produced a large amount of rock thermal mechanics data at repository depth for use in repository designs in granite media in this county (DOE PS at 11258 to!!260). As indicated in our discussion of technical feasibility, the identilication
! of technically acceptable sites is a key problem and the date of successful ' l solution of this problem is a critical milestone in the repository program.
Those participants who believe DOE could not meet its site selection schedule asserted that determination of the acceptability of proposed l repository sites requires information that will not be available when needed. They maintained that DOE's knowledge is seriously incomplete i with respect to all of the potential sites considered to date. Further, they asserted that because new information could disqualify any of the poten-tial sites, as it did at the Palestine dome, there is, as yet, no basis for rea-sonable assurance that an acceptable repository site will be available in the time period under consideration (NRDC PS at 44, NECNP PS at 24). The Commission recognizes that if the DOE program were further along, e.g., in the middle of exploratory shaft work, there would be much more site specific information available (including the results of in situ tests) and a firmer basis for assessing whether DOE's revised schedule can be met. Ilowever, the Commission can make a reasonable prediction with the information now before it. 334 l
l I Underlying the pessimism of some participants is apparently a belief that DOE's past record in solving technical problems undermines the possibility of Gnding confidence in DOE's ability to solve the waste dis-posal problems in a timely way. The Commission acknowledges that in the past the waste programs of DOE and its predecessor organizations have experienced difficulty in making timely progress toward a solution of the nuclear waste problem. However, the Commission need not rely on this past record in making its conndence determination. The DOE program is now adequately addressing the issues yet to be resolved in identifying an acceptable site, and DOE's schedule is a reasonable one (see the discussion in i 2.2-B.4, below). The qualifications and profes-sional experience of the many scientists and engineers on the overview committees and peer review groups who advise and consult on the DOE program should provide confidence in DOE's efforts (DOE CS, Appen-dix D). The support of the USGS in the earth sciences field (USGS PS, Appendix A) clearly contributes to confidence that the technical prob-lems associated with identifying an acceptable repository site will be solved. As noted before, no fundamental technical breakthroughs are necessary. Rather, completing the program is a matter of step by step evaluation and development based on ongoing site studies and research programs. The Commission believes that the enactment of the Nuclear Waste Policy Act of 1982 provides impetus to that program and helps ensure that it will be completed on a schedule consistent with the Commission's findings. The Nuclear waste Policy Act establishes a detailed step-by step plan for developing a waste repository. The Act directs DOE to prepare a comprehensive Mission Plan which will establish programmatic milestones for research, development, technology demonstration and systems integration. The Act also requires the various Federal agencies involved in the program to coordinate their activities, involved agencies must report their progress, or lack thereof, to Congress, explain any slip in schedule and set a new schedule for activities. Thus, the Act provides a framework and schedule for developing a repository. The schedule set forth in the Act calls for the identification of ade-quate sites in time to meet the final decision date on construction au. thorization by the NRC and well before the time at which such action would be necessary to assure repository operation within the time period discussed in this decision. The time between sinking of an exploratory shaft and the completion of site characterization contemplated by the Act (l) 112,114) is 26 months, with an extension to 38 months under ' certain conditions; the DOE schedule for these activities is generally j compatible with this schedule (see i 2.2.B.4, below). l I ( 335 l l t
The Nuclear Waste Policy Act also puts in place procedures (ss 115, 116, 117, 118, 119) which the Commission believes will help to resolve potential institutional problems that might affect the schedule for site selection. These are discussed in detail hereafter. The Commission be-lieves that the provisions of the Act should also provide resources (5) 302, 303) to adequately fund the site selection and characterization work. Given all of these considerations, the Commission concludes that there is reasonable assurance that technical uncertainties - unsolved technical problems and information gaps - will be removed in time for DOE to meet its proposed schedule. DOE's program is adequate and its schedule is reasonable. The Act provides a greater degree of con 6dence than existed previously that site selection will proceed within the general time frame that DOE has described in its position statement.
- 2. Timely Development of Waste Packages and Engineered Bamers Some participants have expressed strong reservations concerning DOE's ability to develop waste forms, packages, and engineered barriers in a timely fashion. The DOE technical effort to solve problems was characterized as only just being defined in many signiGcant areas, includ-ing the prevention of corrosion of waste canisters (NRDC PS at 18).
Other participants contended that: the design and evaluation studies of penetration seals and backGil material might not be completed soon enough to meet the goal of achieving an operational repository by 1997 to 2006; the long term efTects of heat and radiation on the integrity of the seal materials are not known; tests of cement seals with epoxy resin in bedded salt deposits are insufficient to assure stability of such seals over a period of 10,000 years; and field tests of liquid permeability during a period of 3 months cannot provide confidence concerning the stability of seals during a period of 10,000 years. Participants also con-tended that no information had yet been provided which specified the type of backGli material most suitable for speciGc geological media and capable of withstanding thermal stress (CDC PS at 19 22). Although technical problems associated with the development of waste packages and engineered barriers could delay DOE's schedule. DOE believes that the uncertainties surrounding the waste package would be resolved or bounded as a result of implementation of its pro-gram (DOE PS at !! 160, CS at 1196). The DOE Waste Package Program Plan (ONWI 96) which was issued in August 1980, updated in June 1981 (NWTS 96) and updated further in DOE's April 1984 draft Mission Plan, sets forth details of DOE's program. Waste package performance 336
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1 I l l i I l criteria will be developed in the near future. Final action on the criteria j will be contingent upon the final issuance of NRC's technical criteria (10 C.F.R. Part 60, Subpart E), the publication of the relevant regulatory guides on waste packages, and the ONWi-33 series of criteria docu-ments, i.e., the reports DOE /NWTS-33(1), (2), (3), "NWTS Program Criteria for Mined Geologic Disposal of Nuclear Wastes." Earlier, DOE had planned to complete the waste package preliminary designs for salt in September 1982, for basalt in June 1985, for tuff in June 1984, for granite in September 1984, and for argillaceous rock in December 1984, and to establish a baseline for waste form specifications by June 1983 (ONWI-96). According to DOE's April 1984 draft Mission Plan, the current reference canister material for basalt is carbon steel. Alternative materials include an iron chromium-molybdenum alloy, j copper and a copper nickel alloy. On the basis of preliminary corrosion
- test results, carbon steel has also been selected as the reference canister
' material for salt. The titanium alloy Tricode 12 has been designated as an alternative material. Type 304L stainless steel has been identified as the reference container material for tuff; other austenitic stainless steels,
] Inconel and copper are alternatives. Waste package conceptual designs j have been developed for basalt, salt and tuff. (The conceptual design for l tuffis based on saturated conditions; a conceptual design for the unsatu-1 rated zone will be available in late FY 84 (DOE draft Mission Plan, l April 1984)). i Tests with spent fuel and borosilicate glass have been initiated under site specific conditions for basalt, salt and tuff. Preliminary waste accep-tance requirements have been developed for basalt and salt. In addition, [ for salt media, interim waste-acceptance requirements for borosilicate glass and draft waste acceptance requirements for spent fuel were pre. pared in FY 83. Preliminary requirements for tuff will be prepared in FY
- 84. DOE intends to submit the baseline waste form specifications devel-
- oped during the conceptual design studies for acceptance by NRC. The l specifications will be subjected to configuration control for application throughout the waste processing and disposal program.
4 According to the DOE draft Mission Plan the complete waste package i performance model will be verified and validated by September 1989. l Further, the program plan calls for completion of the waste package final ! design that takes into account the selected site environmental condi. I tions, after completion of in sim testing in FY 89 and FY 90. Packing j material is included in the reference waste package only for basalt. The ] reference packing material for basalt is a mixture of crushed basalt and sodium bentonite clay. Ongoing physical property testing of reference q, packing material is expected to be completed in FY 87 and ongoing 1 4 i 337 t i l 1 4 1 4 e g f
+
l radionuclide sorption, solubility and diffusion testing are to be completed by September 1989. Some participants' statements are pessimistic assessments based on the fact that the DOE program has not yet reached the critical milestones
- e.g., establishment of waste form speciGcations, completion of waste package preliminary designs, verincation of a waste package performance model, and quali6 cation of barrier materials. flowever, the Commission believes that these technical problems will be solved without delaying a repository schedule. DOE has put in place an extensive nuclear waste re-search program that addresses each of these technical problems. Re-
- search results already reported on waste form packaging and barrier j materials indicate that these research efforts, although not yet complet-ed, can reasonably be expected to provide solutions to those problems
; when those solutions are needed to meet the DOE schedule (DOE PS at 11 129 to 11 197, CS at 1193 to 11 100).
The Commission's positive assessment is strengthened by provisions in the Nuclear Waste Policy Act of 1982. Title 11 of the Act authorizes DOE to undertake steps leading to the construction, operation and main. tenance of a deep geologic test and evaluation facility and to establish a focused and integrated research, development and demonstration program. In the area of waste package design, the Act directs that . DOE's Mission Plan identify a process for solidifying high level radioac-tive waste or packaging spent fuel with an analysis of the data to support selection of the solidincation process or packaging technique. The Act calls for a schedule for implementing such a plan and for an aggressive research and development program to provide a high integrity disposal package at a reasonable price () 301(a)(8)). The Commission notes that DOE's published draft Mission Plan (April 1984) addresses these issues in detail. Congressional authorization of those programs, together with the assurance of necessary funding, provides the Commission additional confidence that the required research work will be done in a timely manner. The Commission also notes that the programs to solve the major technical problems relating to the timely development of waste forms, waste packages, and engineered barriers can proceed in parallel. Because the waste repository must be designed as a system, the problems are interrelated; however, the relationships are such that solving one prob. lem need not await the solution of another. DOE could proceed for a number of years on waste package development before making a deci. sion on the form of the waste, without affecting the repository availabili. i ty schedule. 338
B. Insrirutional Uncertainties The principal institutional issues that affect the schedule for availabili-ty of a mined geologic repository include: measures for dealing with Federal State disputes; an assured funding mechanism that will be suffi-cient oser time to cover the period for descloping a repository; an orga-nizational capability for managing the high lesel waste program, whether l this be DOE or a successor organization; and a firm schedule and estab-lishment of responsibilities which will lead to repository desclopment in a reasonable period of time. Each of these is discussed in turn. j l. MeasuresJbr Deahng mrh Federal State Local Concerns The President and Congress have recognized the need to insche State and local governments in the decisionmaking process and have taken steps, including enactment of the Nuclear Waste Policy Act of 1982, to establish an institutional framework to accomplish this end. DOE pointed out that Presidents Carter and Reagan hase considered State involvement in site selection an important aspect of the high level radioactive waste disposal program. President Carter, in his message to Congress, directed "the Secretary of Energy to provide financial and technical assistance to States and other jurisdictions to facilit.ite the full participation of State and local gosernment in review and licensing pro-l ceedings." lie committed the Federal government to work with State, tribal and local governments in the siting of high fesel waste reposito-ries. Within a framework of " consultation and concurrence " a host State would hase a continuing role in Federal decisionmaking involving the siting, design and construction of a high level waste repository (DOE CS at 1111,1113 to !!.14). President Reagan's statement of Octo-ber 8,1981, similarly instructed DOE to work closely with industry and State governments in developing methods of storing and disposing of commercial high level waste. Although industry groups beliesed that DOE had made substantial ! progress in cooperating with State and local authorities by encouraging their direct participation in planning and preliminary site selection actist. ties (UNWNIO ELI CS at V 27 V 28) States and environmental groups were skeptical that the mechanisms proposed by DOE for incor. porating State and local views (c g., consultation and concurrence) would work satisfactorily. Niany States asserted a lack of confidence in DOE's claims that it would be able to gain agreement from States by per-suashe measures (e g., Ohio PS at $; NY PS at 74, Wis PS, Kelly, at $) and noted that information sharing was inadequate to reduce or over-come a State's resistance to a repository (e g., NY PS at 74; NRDC PS l 3.19
I at 69). The States also believed that DOE had underestimated potential State and local opposition to the siting of a repoutory (CEC PS at 27 Ohio PS at 12) and that consultation and concurrence must include a , mechanism for resolsing intergovernmental disputes (Vt PS at 3). Other participants argued that many States had alre.idy imposed bans on waste disposal (NECNP PS at 32) and that DOE had presented no means for resolving State nonconcurrence (NRDC PS at 69). Still others claimed that the State's role in the site selection process must be specifically defined (Del PS at 6), but that DOE had prosided no basis for optimism that this could be done (NECNP PS at 69). Some participants suggested that local opposition to waste repositories could be overcome by proud-ing financial compensation to nearby communities ( AIChE PS at 6) but that DOE had not adequately considered compensation to host com-munities for socioeconomic impaets (Ohio PS at 14E The recently enacted Nuclear Waste Policy Act of 1982 defines the roles of the States and Indian tribes in repository si e selection, and thereby reduces some of the uncertainties in settling disputes between the Federal gasernment and atfested States .ind Indian tribe, By prowd-ing for information etchange, for financial and technical asuit.ince, and for processes of consultation, cooperation, negotiation and binding writ-ten agreement, the Act should help to minimite the potential for more formal objections and confrontations. Specifically, the Act requires DOE to identify the States with one or more potentially acceptable sites for a repository and to notify the govermns bodict of the affected States or Indian tribes of those sites () 116(41). The Act establishes detailed procedures for consultation with the States and Indian tribes regarding repository site selection () 117), DOE, NRC and other agencies invohed m the construction, op-eration, or regulation of any aspect of a repository in a State must pro-vide to the State and to any alfected Indian tribe, timely and complete information regardmg plans made with respect to the site charactertra-tion, development, design, licensing, construction, operation, regula. tion, or decommisuomns of such a repoutory It il7(a)(l)L If DOE fails to provide such information requested by the State or affected ! Indian tribe in a timely manner, it must cease operations at the site i () Il7(a)(2)). The Act also proudes that DOE must consult and cooper. ate () ll7(b)) with the affected St.ites and Indian tribes and must enter into a binding written agreement (i ll7(c)) setting forth the procedures l under which information transfer, consultation and cooperation is to bc l conducted. i Following consultation with affected States and Indian tribes, the Secretary of Energy is to recommend to the Preudent three utes suitable l 3 41)
i for characterization as candidates for selection as the first and second re-positories (by July 1, 1985, and July 1, 1989, respecthcly) () ll2(b)(B), (C)). The President must then submit to Congress his recommendation of sites quali0cd for construction authoritation for a l Orst and second repository (no later than March 31, 1937, and March ' 31,1990, respectively) () !!4(a)(2)( A)), Following subminion by the ; President of a recommended site to Congress, the Gosernor or legisla- i ture of the State, or the Indian tribe in which such site k located, may , disapprove the site designation and submit (within 60 days) a notice of disapproval to Congress ($ ll6(b)(2)) The site is disapprosed unless - Congress passes a joint resolution within 90 days to override the State or Indian tribe disapproval (i ll5(c)). The Comminion recognites that the latter provision may create uncertainty in gaining the needed approv. als of repository sites from the affected States or indian tribes. Nesertheless, the Commission believes that, on balance, this congres-sional action to establish a detailed proccu for State and tribal insolve- i ment in the development of repositories will reduce overall uncertainties by encouraging Federal State cooperation and by limiting the potential for formal State or indian tribe objections that could lead to disruption of project plant and schedules. This concluston is consivent with the views espressed by State participants in this proceeding that a mecha-nism for State participation, includmg the resolution of State objections and nonconcurrences,is necessary for State cooperation and for progress in repository development (Tr, at 117, 119, 120). Further, the Act Oses the point in time at which a State may rahe formal objectiorn Once that time has paned, thn should reduce uncertainties at later stages. The Act stipulates that DOE will reimburse costs incurred by affected States and Indian tribes in participating in the aethities identined abme The Act provides that the Secretary of Energy shall make unancial grants (il 116, 118) to each State or affected Indian tribe notined by DOE that a potentially acceptable repository site esists within its jurisdiction. These grants are m.ide to enable the State or affected Indian tribe to participate in the review and approval activities required by the . Act (il 116,117), or authorized by written agreement entered into with DOE. Further, DOE is to make Gnancial grants (){ 116, 118) to each , State or affected Indian tribe where a candidate site for a repository is approved, to enable the State or Indian tribe to conduct the following activities: (a) review aethities taken for purposes of determining im. { pacts of such a repository, (b) develop a request for impJet anislJnce, I (c) engJge in site monitoring, testing or evaluation. (d) provide informJ. tion to its residents, and (c) request information. In addition, the Act i speciflev that financial assistance will be provided to mitigate any ! I 341 l l I
i i l economic, social, public health and safety, or environmental impacts of the development of a repository. The Act also provides that State and local government units shall receive payments equal to the amount they would receive from taxing such site characterization and repository de-velopment activities in the same manner that they tax other real property and industrial activities ({ !!6), By prosiding a tangible benefit to those localities or Indian reservations where repository sites are being insesti-gated, this provision should address one concern frequently expressed by State and tribal organizations, and may result in a more willing accep-tance of a repository site. In sum, the Commission believes that the provisions of the Nuclear Waste Policy Act of 1982 reduce uncertainties regarding the role of af-fected States and Indian tribes in repository site selection and evaluation, and minimize the potential for direct confrontation between the Federal government and the States or tribal organizations with re-I spect to the disposal of commercial high level waste and spent fuel. By ! reducing these uncertainties, the Act should help minimize the potential i that differences between the Federal government and States or Indian [ tribes will substantially disrupt or delay the repository program. Further, l as discussed previously in this section, the decisionmaking process set up by the Act provides a detailed, step by. step approach wh.ch t'uilds in regulatory involsement. This should also provide confidence to States and Indian tribes that the program will proceed on a technically sound and acceptable basis.
- 2. Continurry of the Afanagement of the IVasre Progrant The Commission recognires that the waste disposal program insolses activities conducted over a period of decades. Thus, rnere is a need for long term stability of management and organitation. The Commission's Second Prehearing Memerandum and Order of Nosember 6,1981, sought comments on the implications of the possible dismantling of the DOE and assignment of its functions to other Federal agencies in response. DOE stated:
The stulity of the Federal Government to implement the weite isolation program would not be arrected by the Pteindent's September 24,19si proposal to dismanite DOE As demonstrated by his Nuclear Polen Statement or Odober 8,1991 the i President is committed to the swin deployment of means of storms and dispoims or commercul high.lesel nustear weite Thus, some goternmental unit will sentinue the program aggreimely if DOE in dismantled t l l 342 l I l \ l
l (DOE PilS at 8), The DOE statement was ampliGed by the Deputy Secretary of Energy in the oral presentations on January 11, 1982: [A's far as the reorganization is concerned, the plan is not, I think, to do away with the actnities of the Department of Energy. The plan as it has been announced 50 far, is to in fact merge the actaities, in particular, these actnities into the Depart. ment of Commerce. And we do not mualue at this time any signiGeant changes in the way in which the programs relating to waste management would be altered, either techmcally or from a management point of view. (Tr. at 13), The nuclear industry participants agreed with DOE's siew on this l' question (Consolidated Industry Group Pils at 18; AIF PilS at 7; SE2 PilS at 6; ANS PilS at 8; UG at 2). However, State participants and in-tervenor groups disputed the DOE view. They saw the potential dis-mantlement of DOE as leading to further delay in resolution of the radi-oactive waste disposal problem and asserted that DOE's possible aboli-
; tion made representations regarding the future success of its waste pro-gram useless (Consolidated State Group PilS at 2,9; Slinn Pils at 6 8).
The Commission does not beliese that the Administration's proposal to transfer the activities of the Department of Energy to the Department of Commerce introduces substantial new uncertainties regarding the con-l tinuity of Federal management of the nuclear waste program. As the Department of Energy stated, the Administration's proposal, if adopted, , would simply transfer the nuclear waste program functions from one Federal agency to another. Nforeover, congressional action is needed to adopt the Administration *s proposal. Yet, in the 3 years since the Ad-ministration *s proposal to dismantle DOE was made, there has been no discernible action by the Congress to proceed with adoption of the proposal. Because the Congress has not taken action toward adoption of the Administration's proposal, and because the proposal, even if adopted, would consist of only a transfer of ti.e program from one agency to another, the Commission does not believe that the Adminis-tration's proposal constitutes a significant source of management uncer-tainty for the nuclear waste program. The Commission believes that residual uncertainties regarding the continuity of Federal management of the nuclear waste program hase also been reduced by the Nuclear waste Policy Act of 1982. The Act provides for the establishment of an Office of Civilian Radioactive
; Waste Management within the Department of Energy. This Ofnce is to j be headed by a Director appointed by the President, with Senate conGr.
mation, who will report directly to the Secretary of Energy 4 304). 343 1
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Further, the Actyim the activitdA of this. Office M a high level of visi-bility and ackountior'ir by stipdLting,t:iat an annual comprehensne report of the activities arid expendi.ures of the Office will be scbmitted to Congress and tte; an annual audit of the Office wi.! be conducted by the Comptroller,Ot neral, who wir repd t the results to Congress The Act also requires two additionat (? emery.s'that provide added assurance af continuity: a ".\tission Plan" and a schedule of act Cties for DOE. The hiission Plan is a detailed and comprehensive reph t which is in-tended to provide "an informational basis sufficient to permit informed decisions to be made in carrying out the repository prograto and the re-search, development, and demonstration programs reqaired under this Act." The Secretary of Energy hc.s already submised a draft $1ission Plan to the States, the affected Ir.lian tribes, the, Commission and ap-propriate government agencies for their comments; after revising tne plan, DOE must submit it to.the appropriate con ;essional committees (f 301(a) and (b)). The schedule of DOE's activit , program was discussed in i 2.2 A.1, above, together, Taker} yn conducting the provi- this sions of the Nuclear Waste Policy Act establish a octried nianagement framework for the conduct of the repository progrbfl that should help ensure both sound managemf at'and cortinuity - whether the regonsi-bility for the repository program is rethned in DOE or is transfew.:d to another Federal ager.cy. t l .f. Continued Funding of the Nuclear Waste Management Program i TheWis general agrcament among all participants tha the piogram to deyelop a mined geologic repository for n'uclear wastessig require more than a heade of' effort at a':otal cwt of%cveral billion dollars A steady so,urcy gt tviding will 'oe.i.eeded to assure the timely success af the
,1t it would request an adequate le"el of progr.rt.
funchit fc; the. dot.Lionali minted yas put g'te istminal Storage (NWTS) Program as stated in the Doa;tmet:j s Position Statement (DOE CS at 1130). In additica, DOE 1)tated that Congrod commitment to the commercial ute dispesal progranpas demonhrated by the continuous increae in the level of funding since 1776. The funding level wa increased by more than a factor of 10 between 1976 and'i980 (DOE CS at li 30). Some, particiir.is disagreed with DOE's opt,ihism concerning the future availadlity of funds and pointed out that copipeting priorities for Federal fun /s could der ive DOE of the necesstry resources (CDC PS al 7 Lews PS at 9; NRDC PS at 28; Tr. at 203). t' Cordress passr.d a continuing resolution for FY 83daoding of DOd's nuclear waste program at the Te el pf $259.4 million.' (hh is about $10
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million more than DOE's earlier FY 83 request of S249 million. Addi-tionally, the Nuclear Waste Policy Act authorizes the Secretary of Energy to enter into contracts and collect a fee of 1 mill per kilowatt-hour of electricity generated by nuclear reactors in return for the Federal government's acceptance of title, subsequent transportation, and dispos-al of high-level radioactive waste or spent fuel (s 302(a)(2)). In order to be able to use a Federal repository, the Act required the generator or owner of such waste or spent fuel to enter into a contract by June 30, 1983, or the date on which generation is commenced or title is taken, whichever occurs later ( 302(b)(2)). The Commission must require the negotiation of such contracts as a precondition to the issuance or renewal of a license () 302(b)(1)(B)). The Commission notes that all such contracts have been executed. DOE testified in the January 11, 1982, hearing that it expected the funds collected under such a program would allow support of the DOE waste program at an initial level of $185 million. Under the program subsequently adopted by the Con-gress, these funds are to be placed into a nuclear waste fund to support DOE's repository program. The general approach prescribed by the Act is to operate DOE's nuclear waste program on a full cost recovery basis. In this regard, the Act provides that DOE must annually review the amount of the fees established to evaluate whether collection of the fees will provide sufGcient revenues to offset the costs expected. In the event DOE determines that the revenues being collected are less than the amount needed in order to recover the costs, DOE must propose to Con-gress an adjustment to the fee to ensure full cost recovery. The Act also provides (f 302(e)(5)) that, if at any time, the monies available in the Waste Fund are insufficient to support DOE's nuclear waste program, DOE will have the authority to borrow from the Treasury. The Commis-sion believes that the long term funding provisions of the Act should provide adequate Gnarmal support for DOE's nuclear waste program.
- 4. DOCS Schedulefor Repository Development The DOE reference schedule described in its April 1984 draft Mission Plan establishes the earliest date of repository availability as 1998 and delineates the logic and the period of activities that are deemed achieva-ble under current program assumptions. While DOE acknowledges that contingency time is required in the schedule to accommodate such fac-tors as institutional uncertainties, public hearings, or possible project reorientation, it believes that an appropriate amount of time has, in fact, been allowed in the reference schedule. Under the reference schedule, DOE expects that disposal facilities will be operational in 1998 (DOE 345
draft Slission Plan, April 1984). DOE's updated repository development schedule speciGes the critical milestones prior to commencing construc-tion of the first repository as: Starch 1985 (basalt) Commencement of exploratory shaft September 1985 (tufD work
- at three sites (three different (salt) media: salt, basalt and tuf0" August 1990 Submission of application for authorization to construct the Grst repository August 1993 Construction authorization for the i first repository
- Including borehole drilling
**An october 1982 update of this information endicated that a pilot borehole was Started in Septem-ber 1992 for an emptoratory shaft m tufr at the Nesada Test stie In \tay 1982. doe initiated work on surface preparation, construction of dnlling pads and support buildmgs for the dri!!mg operauon at the BWIP basalt site. In January 1982, a borehole was begun at a point MO feet from the BWIP planned emploratory shart location to proude data for planning the sh4ft exCJtJhon. ho etpioratory shaft work has begun at the Parados Basin bedded salt site. As noted in the satmg docuwon under the second Commission Finding. the Nuclear Waste Policy Act of 1982 requires DOE to compleie certain actions before site characterization These mclude iswance of sitmg guide!mes soncur.cd m I j by NRC preparation of environmental assessments. notifkation of state and arTected indian tribes l l
where sites are located, and holdmg of public hearings m the viemity of e.ich site The Commission concurred m doe's repository uttng guidelmes on July L 1984, enabhng DOE to proceed to complete the other site selection taus The Commission notes that DOE's draft \tm sion Plan ( April 1984) anticipated the completion of the stung guidelmes by n' d-summer 1944 and doe revised its site selection schedule accordingly. Fmal enuronmental anessme is for the nominated sites hncluding salt, basalt and tuff media) are to be completed m December 1984. 4: which time three of the fhe setes will be recommended for characterization. NRC's construction authorization (under 10 C.F.R. Part 60) would mark the end of the site-selection process. Some participants believe that DOE cannot have a waste disposal facility available by 2007. These participants concluded that DOE's slow progress in the past suggests that DOE may be unable to solve the many problems that will arise in the future and that DOE's schedule for reposi-tory development is unduly optimistic (e.g., Niinn PS at 6; 111 PS at 2; OCTLA PS at 8-9; CDC PS at 7). One of the primary purposes of the recently enacted Nuclear Waste Policy Act of 1982 is "to establish a schedule for the siting, construction, and operation of repositories that will provide reasonable assursace that the public and the environment will be adequately pro-tected from the hazards posed by high-level radioactive waste and such spent nuclear fuel as may be disposed ofin a repository." (j 111(b)(1)). The Commission recognizes that, if fundamental technical break-throughs were necessary, it would not be possible for Congress to legis-346 x m,e - g . - . _ _ _ _ _ _ _ _ _
1 9 late their solution or specify schedules for their accomplishment. However, as discussed previously, such breakthroughs are not neces-sary. Rather, the remaining uncertainties are reDected in the need for step-by-step evaluation and development based on ongoing site studies and research programs. The Commission believes the Act provides means for resolution of those institutional and technical issues most likely to delay repository development, both because it provides an as-sured source of funding and other signi0 cant institutional arrangements, and because it provides detailed procedures for maintaining progress, coordinating activities and rectifying weaknesses. For these reasons, the Commission believes that the selection and characterization of suitable sites and the construction of repositories will be accomplished within the general time frame established by the Act, or within a few years there-after. The provisions of the Nuclear Waste Policy Act of 1982 that establish schedules for repository development are elaborate and allow for various contingencies. A number of steps are involved before NRC considers au-thorization of construction. DOE is to nominate Ove sites it believes suitable for site characterization for possible repository deselopment (s ll2(b)). DOE is to recommend for site characterization three candi-date sites to the President (s 112(b)(1)(B)); the President is to recom-mend one of the characterized sites to the Congress (} ll4(a)(2)(A)); the affected State or Indian tribe is given an opportunity to submit a notice of disapproval to the Congress (f} ll5(b), (ll6)(b)(2), ll8(a)); the Congress may overturn a State or Indian tribe's disapproval of the site by passing a resolution of approval (s 115(c)); and, if Congress ap-proves or no notice of disapproval is submitted by a State or Indian tribe, then DOE is to apply for construction authorization (} ll4(b)). DOE's revised reference schedule (DOE draft Mission Plan, April 1984) states that the application for repository construction authorization will be submitted to the Commission in August 1990. Under the terms ' of the Act the Commission is expected to reach a decision within 3 years of the apphcation date, or by August 1993 (s 114) (under certain condi-tions, extension by 1 year would be permitted). If the NRC decision is favorable, the repository would be constructed and would begin opera-tion, according to DOE's " reference schedule, in January 1998. Earlier dates can be achieved if the Presidential review time is reduced, if DOE promptly files the construction authorization application, if NRC pro-vides a construction authorization in less than 3 years, or if DOE con-structs the repository in a shorter period than provided in its estimated schedule. However, it is prudent to assume that such a contraction of the schedule will not be realized. 347
The Nuclear Waste Policy Act of 1982 establishes "not later than January 31, 1998" as the date when DOE is to begin disposal of high-level radioactive waste or spent fuel () 302(a)(5)(B)). This is consistent with the current dates of the DOE schedules discussed above and with the detailed step-by-step milestones established by the Act. The schedule established by the Act would assure the operation of the first repository well before the years 2007-09, i.e., the period of concern in the present proceeding. Despite the delays in DOE's earlier milestones, the Commission be-lieves that the program established by the Act is generally consistent with the schedule presented by DOE in this proceeding and that DOE's milestones are generally both realistic and achievable. Achievement of the scheduled first date of repository operation is further assured by other provisions of the Act which specify means for resolution of those institutional and technical issues most likely to delay repository completion. In addition to those provisions discussed previously, the Commission notes that the Act clarities how the requirements of the Na-tional Environmental Policy Act are to be met (e.g., }} ll3(c), (d); ll4(a), (f); 119(a); 121(c)). The Act also requires that any Federal agency determining that it cannot comply with the repository decision schedule in the Act must notify both the Secretary of Energy and Con-gress, explaining the reasons for its inability to meet the deadlines. The agency must also submit recommendations for mitigating the delay ( ll4(e)(2)). These provisions of the Act, as well as those that support the technical program - the provisions for research, development, and demonstration efforts regarding waste disposal (Title II of the Act), in-crease the prospects for having the first repository in operation not later than the first few years of the next century. The Commission also finds reasonable assurance that sufficient reposi-tory capacity will be available within 30 years beyond expiration of any reactor operating license to dispose of commercial high-level radioactive waste and spent fuel generated up to that time. The Nuclear Waste Policy Act of 1982 establishes Federal responsibility and a clearly defined Federal policy for the disposal of such waste and spent fuel and creates a Nuclear Waste Fund to implement Federal policy. The Act es-tablishes as a matter of national policy that this responsibility is a con-tinuing one, and provides means for the Secretary of Energy to examine periodically the adequacy of resources to accomplish this end. The Commission notes that as of September 30,1982, the generating capacity of all commercial nuclear power plants in the U.S. with operat-ing licenses or construction permits was 131 electrical gigawatts (GWe) and the capacity of those under construction permit review was about 5 348 l l
i 1 i . GWe (NUREG-0871, Vol. I, No. 4, at 2, 8). DOE, in its letter of March 27,1981, to the Presiding Officer of this proceeding. provided an ! estimate of 180 GWe for the capacity of operating LWRs in the year j 2000. This value is significantly lower than the value (276 Gwe) pre-sented in DOE's 1980 position statement (DOE PS at V-4) and lower
- than that (202 GWe) presented in the NRC's Generic Environmental l- Impact Statement on spent fuel handling and storage (NUREG-0575,
{ Vol.1, at 2-4). The validity of the latter predictions has been affected by the cancellations of a number of proposed units during the past 2 years. l The DOE 1981 estimate of 180 GWe in the year 2000 appears to be a reasonable estimate of the likely installed capacity at that time. On this 7 basis, during the 40 years of operation of each plant, using as a realistic assumption a 60% capacity factor, the electrical energy generation would be about 4300 GWe-years. Assuming 38 metric tons of heavy metal I (MTHM) are discharged for each gigawatt-year (IRG Final Report at D-6; NUREG-0575, Vol.1, at 2-4)-the total discharged spent fuel from ! ] , these plants would likely be about 160,000 metric tons. The capacity of j each proposed repository will depend on such factors as the thermal load-ing limit in waste emplacement, space limitations within the host rock,
, nuclear power generation capacity in the region to be serviced by the j repository, and economy of scale considerations (DOE PS at 111-70 to 11179; IRG Final Report at D-21). In its cross-statement, DOE's esti-mate that three to six repositories might be needed was based on the as-sumption that nuclear power generation capacity grows to 250 GWe by the year 2000 and remains at that level tintil 2040 (DOE CS at 11-53).
The representative characteristics of each repository used by DOE were 2000 acres and a 40- to 100-kW/ acre loading, corresponding to a reposi-tory capacity of about 70,000 to 170,000 metric tons of uranium, respec- , tively (DOE PS at 111-76). Reflecting the reduction in nuclear power pro- '
, jections DOE estimated in the January 1982 hearing that the ultimate i
reactor capacity would be about 200 GWe (Tr. at 236). DOE then as-sumed a repository capacity of 100,000 metric tons and concluded that !
"between two and three" repositories would be needed (Tr. at 237). To accommodate the 160,000 metric tons we have assumed, two reposito-l ries, each with 100,000-metric-tori capacity, would appear to be suffi- ; cient.
Repository completion and operation at 3-year intervals would result in having adequate capacity about 3 years after initial operation of the first repository (DOE PS at 111-86). As noted earlier, emplacement of spent fuel in the first repository should begin not later than the first few years of the next century. Thus, if the first repository begins to receive spent fuel in the year 2005, the second may begin operation as early as i 349 , l I .g 4 4 t
2008, in which case all spent fuel would be emplaced by about 2026, assuming DOE's estimated receiving rates (DOE PS at 111-71) and oper-ation of each repository as completed. Because the rate of waste emplace-ment during the first 5 years of operation would be about 1800 metric tons per year (DOE PS at 111-71), only 5400 metric tons would be em-placed in the first repository by the time the second began operation. This would satisfy the requirements of f 114(d) of the Nuclear Waste Policy Act, i.e., the prohibition of emplacement of more than 70,000 metric tons in the first licensed repository before the second repository is in operation. If the DOE estimated emplacement rates (which would increase to 6000 metric tons / year after the first 5 years) are realized, it will take about 15 years to emplace 70,000 metric tons in the first repository. For the foregoing reasons, the Commission finds reasonable assurance that one or more mined geologic repositories for commercial high level radioactive waste and spent fuel will be available by the years 2007-09, and that sufficient repository capacity will be available within 30 years beyond expiration of any reactor operating license to dispose of commer-cial high-level radioactive waste and spent fuel originating in such reactor and generated up to that time. 2.3 Third Commission Finding The Commission finds reasonable assurance that high-level radioactne waste and spentfuel will be managed in a safe manner until su)]icient reposi-tory capacity is available to assure the safe disposal of all high-level radioac-tive waste and spentfuel. Nuclear power plants whose operating licenses expire after the years 2007-09 will be subject to NRC regulation during the entire period be-tween their initial operation and the availability of a waste repository. The Commission has reasonable assurance that the spent fuel generated by these licensed plants will be managed by the licensees in a safe manner. Compliance with the NRC regulations and any specific license conditions that may be imposed on the licensees will assure adequate protection of the public health and safety. Regulations primarily address-ing spent fuel storage include 10 C.F.R. Part 50 for storage at the reactor facility and 10 C.F.R. Part 72 for storage in independent spent fuel stor-age installations (ISFSI). Safety and environmental issues involving such storage are addressed in licensing reviews under both Parts 50 and 72, and continued storage operations are audited and inspected by NRC. NRC's experience in more than eighty individual evaluations of the safety of spent fuel storage shows that significant releases of radioactivity 350
from spent fuel under licensed storage conditions are extremely remote (see discussion in f 2.4, belowL Some nuclear power plant operating licenses expire before the years 2007-09. For technical, economic or other reasons, other plants may choose, or be forced, to terminate operation prior to 2007-09 even though their operating licenses have not expired. For example, the exist-ence of a safety problem for a particular plant could prevent further oper-ation of the plant or could require plant modifications that make contin-ued plant operation uneconomic. The licensee, upon expiration or termi-nation of its license, may be granted (under 10 C.F.R. Part 50 or Part
- 72) a license to retain custody of the spent fuel for a specided term (until repository capacity is available and the spent fuel can be trans-ferred to DOE under i 123 of the Nuclear Waste Policy Act of 1982) subject to NRC regulations and license conditions needed to assure ade-quate protection of the public. Alternatively, the owner of the spent fuel, as a last rescrt, may apply for an interim storage contract with DOE, under f 135(b) of the Act, until not later than 3 years after a repository or monitored retrievable storage facility is available for spent fuel. For the reasons discussed above, the Commission is confident that in every case the spent fuel generated by those plants will be managed safely during the period between license expiration or termination and the availability of a mined waste repository for disposal.
To assure the continuity of safe management of spent fuel, the Com-mission, in a separate action, is preparing an amendment to 10 C.F.R. Part 50 which would require licensees of operating nuclear power reac-tors to submit, no later than 5 years before expiration of the reactor operating license, written notification to the Commission, for its review and approval, of the actions which the licensee will take to manage and provide funding for the management of all irradiated fuel at the reactor site following expiration of the reactor operating license, until ultimate disposal of the spent fuel in a repository. The licensee's nottfication will be required to specify how the licensee will fund the financial costs of ex. tended storage or other disposition of spent fuel. It is possible for the funding of the storage to be provided by an internal reserve fund or spe-cial assessment during that 5-year period to cover the costs of storage of the spent fuel after the expiration of the reactor operating license. The storage costs are not large relative to power generation costs. A repre-sentative figure is $1 million/ year for storage of spent fuel in reactor basins beyond the operating license expiration (NUREG/CR-0130,
" Technology, Safety and Costs of Decommissioning a Reference BWR Power Station," Addendum 2, July 1983; NUREG/CR-0672, "Technol.
351
ogy, Safety and Costs of Decommissioning a Reference PWR Power Sta-tion," Addendum I, July 1983). Additional assurance that the conditions necessary for safe storage will be maintained until disposal facilities are available is provided by the Commission's authority to require continued safe management of the spent fuel past the operating license expiration or termination (10 C.F.R. } 50.82). If a utility should have technical problems in continuing its commitment to maintain safe storage of its spent fuel, NRC as the cognizant regulatory agency would intervene and the utility would be re-quired to assure safe storage. If a licensee fails financially, or otherwise must cease its operations, the cognizant State public utility commission would be likely to require an orderly transfer to another entity. The suc-cessor would take over the licensee's facilities and, provided the condi-tions for transfer of licenses prescribed in NRC regulations (10 C.F.R. f 50.80) were met by the succeeding entity, operation of the original licensee's facilities would be permitted to continue. Moreover, an order-ly transfer to a successor organization would be mandatory to protect the substantial capital investment. Further, the Commission believes that the possibility of a need for Federal action to take over stored spent fuel from a defunct utility or from a utility that lacked technical competence to assure safe storage is remote, but the authority for such action exists (lj 186c and 188 of the Atomic Energy Act of 1954, as amended,42 U.S.C. (( 2236,2238). Interim storage capacity may be required for plants whose operating licenses expire or are terminated before sufficient repository capacity is available. As discussed in the rationale for the lifth finding, the Nuclear Waste Policy Act of 1982 includes a number of provisions to assure the availability of interim storage capacity for spent fuel during the period before repository operation (il 131 through 137). Provisions are made for Federal government-supplied interim storage capacity (up to 1900 metric tons) for civilian power reactors whose owners cannot reasonably provide adequate storage capacity.
- In all cases where the interim storage is at a licensee's site, safe management will be assured by compliance with NRC regulations and specific license conditions. Where DOE provides the interim storage capacity, except in the use of existing capacity at Government owned fa-cilities, DOE is to " comply with any applicable requirements for licens-ing or authorization" (} 135(a)(4)). If existing federally owned storage facilities are used, NRC is required to determine "that such use will ade-quately protect the public health and safety" (f 135(a)(1)). Thesc provi-sions of the Act would assure that spent fuel will be managed in a safe manner until repository capacity is available. Facilities for reprocessing 352
high-level waste, should any be constructed or become operational-before a repository is available, would be licensed under 10 C.F.R. Part 50, and solidiGeation and interim storage of high level waste would be provided for at such facilities. For the foregoing reasons, the Commis-sion finds reasonable assurance that high-level waste and spent fuel will be managed in a safe manner until sufficient repository capacity is availa-ble for its safe disposal. 2.4 Fourth Commission Finding The Commission finds reasonable assurance that. V necessary, spent Jiiel generated in any reactor can be stored safely and without significant ennron-mental impacts for at least 30 years beyond the expiration of that reactor's operating license at that reactor's spentJiiel storage basm, or at either onsite or offsite independent spentfuel storage installations. Although the Commission has reasonable assurance that at least one mined geologic repository will be available by the years 2007-09, the Commission also realizes that for various reasons, including insufficient capacity to immediately dispose of all existing spent fuel, spent fuel may be stored in existing or new storage facilities for some periods beyond 2007-09. The Commission believes that this extended storage will not be necessary for any period longer than 30 years beyond the term of an operating license. For this reason, the Commission has addressed on a generic basis in this decision the safety and environmental impacts of ex-tended spent fuel storage at reactor spent fuel storage basins or at either onsite or offsite spent fuel storage installations. The Commission Gnds that spent fuel can be stored safely and without significant environmental impacts for at least 30 years beyond the expiration of reactor operating licenses. To ensure that spent fuel which remains in storage will be man-aged properly until transferred to DOE for disposal, the Commission is proposing an amendment to its regulations (10 C.F.R. Part 50). The amendment will require the licensee to notify the Commission, 5 years prior to expiration of its reactor operating license, how the spent fuel will be managed until disposal. The Commission's finding is based on the record of this proceeding which indicates that significant releases of radioactivity from spent fuel under licensed storage conditions are highly unlikely. It is also supported by the Commission's experience in conducting more than eighty indi-vidual safety evaluations of storage facilities. The safety of prolonged spent fuel storage can be considered in terms of four major issues: (a) the long-term integrity of spent fuel under water pool storage conditions, (b) structure and component safety for 1 353 : 4 l l l i i
extended facility operation, (c) the safety of dry storage, and (d) poten-tial risks of accidents and acts of sabotage at spent fuel storage facilities. Each of these issues is discussed separately below, in light of the infor-mation provided by the participants in this proceeding, and NRC experi-ence in regulating storage of spent fuel. A. Long-Term Integrity ofSpent Fuel Under Water Pool Storage Conditions The Commission finds that the cladding which encases spent fuel is highly resistant to failure under pool storage conditions. As noted by DOE in its Position Statement, there are up to 18 years of continuous storage experience for zircaloy-clad fuel and 12 years continuous storage experience for stainless-clad fuel (DOE PS at IV-73). Corrosion studies of irradiated fuel at twenty reactor pools in the United States suggest that there is no detectable degradation of zircaloy cladding. Data from corrosion studies of spent fuel stored in Canadian pools also support this finding (A.B. Johnson, Jr., " Behavior of Spent Nuclear Fuel in Water Pool Storage" (UC-70), Battelle Pacific Northwest Laboratories, BNWL. 2256 (September 1977), at 10-11,17). The long-term integrity of spent fuel in storage pools, which has been confirmed by observation and analysis, was cited by industry participants (e.g., Consolidated Industry Group PHS at 3-6; UNWMG-EE1 PS, Doc. 4, at 8; UG at 2). No degradation has been observed in commercial power reactor fuel stored in onsite pools in the United States. Extrapola-tion of corrosion data suggests that only a few hundredths of a percent of clad thickness would be corroded after 100 years (A.B. Johnson, Jr.,
" Utility Spent Fuel Storage Experience," PNL-SA-6863, presented at the American Nuclear Society's Executive Conference on Spent Fuel Policy and its Implications, Buford, Georgia (April 2-5,1978)). The American Nuclear Society cited a study (G. Vesterbend and T. Olsson, BNWL-TR-320, May 1978, English Translation of RB78-29), which concluded that degradation mechanisms such as general corrosion, local corrosion, stress corrosion, hydrogen embrittlement, and delayed hydro-gen cracking are not expected to produce degradation to any significant extent for 50 years (ANS PS at 34).
Canadian experience, including occasional examination during 17 years of storage, has indicated no evidence of significant corrosion or other chemical degradation. Even where the uranium oxide pellets were exposed to pool water as a result of prior damage of the fuel assembly, the pellets have ben inert to pool water, an observation also confirmed by laboratory studies (" Canadian Experience with Wet and Dry Storage 354 l i
Concepts," presented at the American Nuclear Society's Executive Con- , ference on Spent Fuel Policy and its implications, Buford, Georgia 1 (April 2 5,1978)). Another Canadian study concluded that "50 to 100 years under water should not significantly affect their [ spent fuel bundles) integrity" (J.F. Walker, "The Long Term Storage of Irradiated i CANDU Fuel Under Water," AECL-6313, Whiteshell Nuclear Research
' Establishment (January 1979)). This appraisal was based on findings
- such as no deterioration by corrosion or mechanical damage during 16 years of storage in water, no release of fission products from the uranium l dioxide matrix during 11 years of storage in water, and no fission prod-
- uct-induced stress
- orrosion cracking anticipated during water storage at .,
temperatures below 100*C (C.E.L. Hunt, J.C. Wood, and A.S. Bain, l "Long-Term Storage of Fuel in Water," AECL 6577, Chalk River Nuclear Laboratori:s (June 1979)). The ability of spent fuel to withstand extended water basin storage is also supported by metallurgical examination of Canadian zircatoy clad i fuel after 11 years of pool storage, metallurgical examination of zircaloy-clad PWR and BWR high-burnup fuel after 5 and 6 years in pool storage, and return of Canadian fuel bundles to a reactor after 10 years of pool storage. Periodic hot-cell examination of high-burnup PWR and BWR bundles'over 6 years of pool storage at the WAK Fuel Reprocess-ing Plant in Germany has also confirmed that spent fuel maintains its in- 2
- tegrity under poc.I storage conditions. Other countries having favorable 1
experience with pool storage of zircatoy-clad spent fuel include: the ! United Kingdom,13 years; Belgium,12 years; Japan,11 years; Norway, ;
- 11 years; West Germany, 9 years; and Sweden, 7 years (Johnson,
- " Utility Spent Fuel Storage Experience," supra, at .7). Programs of j monitoring spent fuel storage are being conducted in Canada, the i United' Kingdom and the Federal Republic of Germany (DOE PS at IV-59 to IV-61; UNWMG eel PS, Doc. 4, at 23).
j The only fuel failures which have occurred in spent fuel pools in-l volved types of fuel and failure mechanisms not found at U.S. commer-j cial reactor facilities, e.g., degradation of zircaloy-clad metallic uranium { fuel from the Hanford N Reactor as a result of cladding damage in the
- fuel discharge system. The system differs from the fuel discharge sys-
!- tems of com nercial reactors. Moreover, metallic uranium fuel is not used in com nercial power reactors. NRDC cited some conclusions j drawn by Mr. Justice Parker regarding his lack of confidence in long- ! term storage of spent fuel, based on the Windscale Inquiry in Great Bri- i ) tain in 1978,' which involved stainless-steel-clad, gas cooled reactor fuel
- (NRDC PS at 92). This is not pertinent to pool storage of commercial spent fuel since the high temperature conditions in a gas-cooled reactor i t
i
- 355 l 1
( i } i 1
._ _~ _ _ _ _ . _ _ _ _ _ _ _ _ _ . _ _ . , _
which can cause sensitization of the cladding are not experienced by fuel in boiling or pressurized water reactors (Johnson, " Utility Spent Fuel Storage Experience," supra, at 17-18). Some participants did not agree that there is an adequate basis for confidence in safe extended-term spent fuel storage. Although agreeing with the extent of experience cited by DOE and other participants, the Natural Resources Defense Council, for example, stressed that more ex-perience is needed before one can be confident of safe extended storage. NRDC considered the length of storage experience cited by DOE as in-sufficient to establish that spent fuel can be stored safely for periods well in excess of 40 years (NRDC PS at 88 92). A similar position was taken by the State of hiinnesota (Alinn PHS at 8-9). NRDC referred to the problem of the long term storage of spent fuel reported in the Windscale Inquiry Report by the Hon. Nfr. Justice Parker, Vol.1, at 29-30. However, the conclusion quoted from the report, when taken in context, refers only to irradiated fuel from AGR (advanced gas-cooled) nuclear power plants. As noted earlier, the conditions to which the fuel cladding is exposed in gas-cooled reactors differ from those in U.S. com-mercial light water reactors. Aloreover, the cladding of AGR fuel is identified as stainless steel in the Windscale Inquiry Report. Only two commercial LWR nuclear power plants operating in the U.S. today use stainless steel clad. Sfost U.S. nuclear fuel is zircaloy clad, and reactor operators have not seen evidence of degradation of LWR spent fuel, either zircaloy or stainless steel clad, in storage pools (A.B. Johnson, Jr., " Spent Fuel Storage Experience," Nuc/ car Technology, Vol. 43, at 171 (51id-April 1979)). Further, as stated earlier, cladding degradation caused by stainless steel sensitization in an AGR high-temperature envi-ronment is not pertinent to the lower-temperature environment of LWRs. Therefore, the problem of long-term storage of spent fuel report-ed in the Windscale Inquiry is not relevant to U.S. spent fuel. After expiration of a reactor operating license, the fuel storage pools at the reactor site would be licensed under 10 C.F.R. Part 72. The re-quirements of 10 C.F.R. Part 72 provide for operation under conditions i involving a careful control of pool water chemistry to minimize corro-sion. The required monitoring of the pool water would provide an early warning of any problems with defective cladding, so that corrective ac-tions may be taken. Experience indicates that, under licensed storage conditions, significant releases of radioactivity are highly unlikely. The Commission is confident that the regulations now in place will assure ad-equate protection of the public health and safety and the environment during the period when the spent fuel is in storage (NUREG-0575, "Fi-nal Generic Environmental Impact Statement on Handling and Storage 356 I
4 i 1
- of Spent Light Water Power Reactor Fuel," Vol.1, August 1979, at
] ES-12,4-10 to 4-17). 1 Although confidence that spent fuel will maintain its integrity during j storage for an additional 30 years beyond the facility's license expiration
- date involves an extrapolation of experience by a factor of 2 or 3 in 4- time, the extrapolation is made for conditions in which corrosion mecha-l nisms are well understood. Technical studies cited above support the i conclusion that corrosion would have a negligible effect during several
[ decades of extended pool storage. The Commission finds that this ex-
- trapolation is reasonable and is consistent with standard engineering practice.
I B. Structure and Component Safetyfor Extended Facility Operation forStorage ofSpent fuelin Water Pools Questions were raised concerning the adequacy of structural materials and components of spent fuel storage basins to function effectively j during periods that are double those assumed in the base design. This concern was expressed in connection with the possible necessity for ; i longer storage times if permanent disposal is not available by the year ; j 2006 (Del PS at 4). The experience at the General Electric Company ! Morris Operation in Illinois, where a mechanical failure caused contami- ! i nated water to leak into the environment, was cited as an example of an '
! unforeseen failure that could jeopardize the safety of spent fuel storage [
j (NECNP PS at 65). A generic problem regarding pipe cracks in borated l 1 water systems at PWR plants was also cited as evidence of uncertainty j that long-term interim storage would be safely accomplished without ' j modification and fuel shufning (NECNP PS at 64). The Commission
! notes that the latter problem was discussed in detail in the Atomic l l
Safety and Licensing Board Notification, " Pipe Cracks in Stagnant Borat- . ed Water Systems at PWRs," dated August 14, 1979, in the ASLB con- ; I sideration of a proposed licensing amendment to permit modification of i a spent fuel storage pool (Commonwealth Edison Co. (Zion Station, Units I and 2), LBP 80 7,11 NRC 245 (1980)). The Notification referred to by NECNP indicated that cracks had occurred in safety related type-304 , i ' stainless steel piping systems which contained stagnant borated water. i Apparently, the cracking was attributable to stress corrosion caused by j the residual welding stresses in heat affected zones. The NRC staff review found that such cracking was not directly related to spent fuel j pool modifications, and that necessary repairs could be readily made. i i The staff concluded that cracks in low pressure spent fuel cooling sys- l tems do not have safety significance. i i i i j 357 4 l
! i i-i i
1
^
Extensive experience with storage pool operation has demonstrated the ability of pool components to withstand the operating environment (DOE CS at 11145 to 11-148). In the relatively few cases of equipment failure, pool operators have been able to repair the equipment or replace defective components pro;nptly (UNW51G EEI PS, Doc. 4, at 25; UG at 2). The Commission finds no reason why spent fuel storage basins would not be capab!c of performing their cooling and storage functions for a number of years past the design basis period of 40 years if they are properly maintained. As one participant pointed out, "the pool structure as well as the racks are designed to withstand extreme physical conditions set forth in NRC licensing requirements. These include seismic, hydrologic, meteor-ological and structural requirements" (UNWh!G EEI PS, Doc. 4, at 25; UG at 2). The design requirements are set forth in 10 C.F.R. Parts 50 and 72. The design basis siting conditions for storage pools at reactor sites are those of the reactor itself. Siting conditions are reviewed by the NRC staff, the Advisory Committee on Reactor Safeguards and the Atomic Safety and Licensing Board at the construction permit stage and then reviewed again in connection with the issuance of the facility's operating license. In issuing a power reactor operating license, the Com-mission is, in effect, expressing its confidence that the design basis siting conditions will not be exceeded during the 40-year license period. If pool storage facilities were used to store spent fuel after expiration of reactor operating licenses, the utilities would be able, as part of their continuing maintenance of storage facilities, to replace defective compo-nents in a timely way, if needed, so as to avoid any safety problems. Some participants (e.g., NECNP PS at 63; N1 inn PflS at 8 9; and Del PS at 4) do not place the same weight which the Commission does on ex-penence at spent fuel storage facilities and on studies cited by DOE and certain others which support the argument that the structural integrity of these basins can be readily maintained (DOE CS at 11-145, 111-13; UNWNfG eel PS, Doc. 4, at 19). The disagreements appear to center largely on the extent to which present experience may be relied upon as a basis for predicting the safety of spent fuel storage over a period two or three times the design period. The degradation mechanisms involved in spent fuel pool storage are well understood. The resulting changes in fuel cladding and pool systems and components are gradual and thus provide sufficient time for the identification and deselopment of remedial action without subjecting j plant personnel or the public to significant risk. The fuel storage racks are designed to maintain their integrity for many decades; if they fail in 358
any way, they may be replaced. There are a number of routine and radi-ologically safe methods for maintenance at spent fuel storage basins to ensure their continued effective performance. These include replacing racks or other components, or moving spent fuel to another storage facility. The Commission finds that the extensive operating experience with many storage pools adequately supports predictions oflong term in. tegrity of storage basins. The Commission concludes that the experience with spent fuel storage i provides an adequate basis for confidence in the continued safe storage
- of spent fuel in water pools either at or away from a reactor site for at least 30 years after expiration of the plant's license.
C. Safety ofDry Storage ofSpent fuel While the record of this proceeding has focussed on water pool stor-l age, the Commission notes that dry storage of spent fuel has also been addressed to a limited extent (e.g., DOE PS at IV 12 to IV 22 and IV-63, CS at 11147, PHS at 9; UNWMG PS, Doc. 4, at 16-17 and CS at 1116 to III 7; Tr. at 69-72). The NRC's regulation 10 C.F.R. Part 72 spe-cifically covers dry storage of spent fuel ({ 72.2(c)), and experience with dry storage was a subject of public comment in the rulemaking (NUREG-0587, " Analysis of Comments on 10 C.F.R. Part 72," October 1980, at 11-12 to 1113). NRC reports, NUREG-0575, " Final Generic Environmental Impact Statement on IIandling and Storage of Spent Light Water Power Reactor Fuel" August 1979, and NUREG/CR-1223, " Dry Storage of Spent Nuclear Fuel, A Preliminary Sursey of Ex-isting Technology and Experience" April 1980, which have been refer-enced in this proceeding, examined potential environmental impacts l and experience with interim dry storage of spent fuel. The GEIS i (NUREG-0575, supra, Vol.1, at 8 2) contained the conclusion that the use of alternative dry passive storage techniques for aged fuel, now being investigated by the Department of Energy, appears to be as feasi. I ble and environmentally acceptable as storage of spent fuel in water I basins. Prior to the adoption of Part 72, dry storage ofirradiated fuel had been licensed under Part 50 at the Hallam sodium graphite reactor. Dry storage is also presently licensed under Part 50 at the Ft. St. Vrain high-temperature gas reactor. Although the number of years of experience with dry storage systems I is less than that with water pool storage, the understanding of some of ! the material degradation processes experienced in water pool storage ! should be applicable to dry storage. As discussed below, dry storage in-l vcives a simpler technology than that represented by water basin storage t l l 359 l
systems.' Water basin storage relies upon active systems such as pumps, renewable filters, and cooling systems to maintain safe storage. Fasora-ble water chemistry must also be maintained to retard corrosion. On the other hand, dry storage reduces reliance upon active systems and does not need water which together with impurities may corrode spent fuel cladding. With convective circulation of an inert atmosphere in a sealed dry system, there is little opportunity for corrosion.* For these reasons, the Commission believes that safe dry storage should be achievable with-out undue difficulty, New dry storage experience with light water reactor (LWR) fuel is becoming available for examination, and the evaluations discussed below suggest that the favorable results of up to almost two decades of dry storage experience with non LWR spent fuel can also be obtained for LWR spent fuel in adequately designed dry storage installa-tions. A recent review of dry storage experience by Johnson, et al., in
" Behavior of Spent Nuclear Fuel and Storage Components in Dry Inter-im Storage" (supra note 5), provides an update of dry storage activities,
, particularly with respect to zircaloy clad spent fuel. In that report (at i 18-24) the experimental data base for nonzircaloy-clad spent fuel, including stainless steel-clad fuel and the data base for zircaloy-clad fuel are discussed. Tests conducted to verify the integrity of zircaloy cladding have not indicated any degradation in dry storage (id. at 27). In summary, the report states (at 44-45): Operating information is available from fueled dry well, sito, sault, and metal cask storage facilities. Maximum operational histones are. All Fuel Zircaloy-Clad Fuel Dry we!!s up to IS yr up to 3 to 4 yr Vaults up to 18 yr up to I yr Silos up to 7 yr up to 7 yr Metal casks - < lyr All times related to 1982 Operational history with intenm storage in metal casks is minimal, however, there is extensive expenence with metal shipping casks. In addition, metal storage casks have been designed and tested, and cask tests with irradiated fuel are surrently 8 See, ror example. K. Emfeld and J. Fleisch. "Fuet storage in the Federal Repubhc of Germany" and R J. stetTen and J 8. wright. "wesiinghouse Advanced Energy systems Dmsion." /'roter/mes of the Amerwan Aucitar Sorwry's ropacal sfertme on Oprensfor Speer furt Storase. savannah. Georgia, sep<em. ber 26 29. l982 A.B Johnson, Jr, E R. Gilbert, and R J Guenther. " Behavior or spent Nui: lear Fuct and storage system Components in Dry Intenm storage." PNL 4189. August 1982
* " Fuel storage in the Federal Repubhc of Germany." supra noie 5, at )
360
4 under way in the Federal Republic of Germany and are planned in Switzerland and the United States. The integrity of zircaloy-clad fuel in a given demonstration test is i relevant to predicting fuel behavior m other dry storage concepts under umilar conditions. Information on experience with dry cask storage in other countries is also becoming available. Einfeld and Fleisch's paper, " Fuel Storage in the Federal Republic of Germany " supra note 5, discussed the results of dry storage research on spent fuelin an inert atmosphere. They note i on page 3 of their report:
! Several tests have been conducted to verify the integrity of LWR spent fuel cladding m dry storage. To date none of the integrity tests has indicated that the cladding is degrading during long-term storage. Even under conditions more severe than in the casks, the fuel shows no cladding failures. From the tests listed m Table !! it can be concluded that dry storage under cask conditions even with starting temperatures to , 400*C is not expected to cause cladding failures over the interim storage period Einfeld and Fleisch continue in their report (at 3-4) to comment on the successful demonstration of cask storage:
A technical scale demonstration program with a fueled CASTOR cask is underway m the FRG since March 1982. The 16 assemblics which are subject to that program origmate from the Wurgassen boshng water reactor. They resided in the core during 4 cycles of operation, burning up to about 27.8 GWO/t U. a The general objectives of the demonstration with a fully instrumented cask and fuel bundles are the Scrification of cask design parameters, the operational experience in cask handling and the expansion of the data base on fuel performance. Fig. 2 shows a schematic drawing of the cask design and the axial thermocouple locations i ' The operational experiences and corresponding test data conGrm the assumptions made about the cask concept and the cask load:ng and handling procedure. In addition, the technology data base for operating an mterim storage plant could be , expanded.
- In poolloading of a large storage cask and speciGs cask handling has been suc-cessfully demonstrated.
- The passive heat transfer capabihties of the cask and fuel cladding integrity have been verified. The maximum local fuel rod temperatures for fuel with about one year decay time were within the expected range.
d
- The total radiation shielding characteristics (< 10 mrem /h) are verified in prac-tace (references deleted).
- The authors conclude The realization of the transport / storage cask concept, w hich is well under way in the Federal Republic of Germany, will provide sufficient interim spent fuel storage 361 l
4 l
- l capacity with the facilities planned or under construction. Dry interim storage is a proven technology and thus it constitutes an essential step in closing the backend of the nuc! car fuel cycle.
R.J. Steffens and J.B. Wright's paper,' "Drywell Storage Potential," dis-cussed drywell storage experience with pressurized water reactor spent fuel at the Nevada Test site. On page 6 of the paper, the authors note: Another drywell performance assessment method being employed during the demonstration storage period is that of periodically monitoring the storage canister atmosphere for fission products, specifically krypton 83 gas. Samples drawn to JJte have shown no detectable concentrations of this product after approumately 3 years of storage, indicating a maintenance of the fuel cladding integrity A third paper presented at the same Topical Meeting, by E.R. Gilbert and A.B. Johnson, Jr., " Assessment of the Light Water Reactor Fuel in-ventory for Dry Storage," focuses on dry spent fuel storage with respect to an acceptable temperature range for storage in air. They conclude on page 8 of their report: Dry storage demonstrations now in progress suggest that by 19% a magt fraction of the U S. PWR spent fuel mventory that was placed in water storage before 1981 can be stored in dry storage facilities below 150 to 200*C. j The LWR fuel inventory offers good prospects that the thermal characteristics of consolidated fuel will be acceptable for dry storage by proper selection of fuel Dry storage of LWR fuel with defective cladding may be tolerable in inert cover gases or at temperatures below the threshold for significant oxidation in oudions cover gases. The range of acceptable storage temperatures is bemg investigated. With respect to dry storage of spent fuel, the Commission notes the summary statement from " Behavior of Spent Nuclear Fuel and Storage ! Components in Dry Interim Storage" (PNL-4189), supra note 5, at xvii: Operational problems m vaults and dry wells have been minor after up to 18 yr of operation (in 1982); and 7 yr of silo experience suggests that decades of satisfactory operation can be expected. Demonstration tests with irradiated fuelin metal storage casks are just beginning, but metal shipping casks with mild steel chambers have been used since the mid 1940s. Metal storage / shipping casks have successfully sur-vived fire, drop, and crash tests. I froceedings of IM Anterwen Nuchter Society s Topwal Merrang on Operons for Speer fuel Storage. ] savannah. Georgia (september 26 29.1982). 362 f I
Thus, with respect to the storage of spent fuel under dry conditions at storage installations located either at reactor sites or away from reactor sites, the Commission believes that current dry-storage technology is capable of providing safe storage for spent nuclear fuel. The modular character of dry storage installations enhances the ability to perform maintenance or to correct mechanical defects, if any should occur. The Commission is confident that its regulations will assure adequate protec-tion of the public health and safety and the environment during the period when the spent fuelis in storage. The Commission notes that f 211(2)(B) of the Nuclear Waste Policy Act authorizes the Secretary of Energy to carry out research on, and to develop facilities to demonstrate, dry storage of spent nuclear fuel. Al-though this provision indicates a judgment on the part of the Congress that additional research and demonstration is needed on the dry storage of spent fuel, the Commission believes the information discussed above is sufficient to reach a conclusion on the safety and environmental ef-fects of extended dry storage. All areas of safety and environmental con-cern (e.g., maintenance of systems and components, prevention of mate-rial degradation, protection against accidents and sabotage) have been addressed and shown to present no more potential for adverse impact on the environment and the public health and safety than storage of spent fuel in water pools. The technical studies cited above support the conclusion that corrosion would have a negligible effect during several decades of extended dry storage. The Commission's confidence in the safety of dry storage is based on an understanding of the material degradation processes, rather than merely on extrapolation of storage experience - together with the recognition that dry storage systems are simpler and more readily main-tained. For these reasons, the Commission is confident that dry storage installations can provide continued safe storage of spent fuel at reactor sites for at least 30 years after expiration of the plant's license. D. PotentialRisks ofAccidents and Acts ofSabotage at Spent Fuel Storage facilities The Commission finds that the risks of major accidents at spent fuel storage pools resulting in offsite consequences are remote because of the secure and stable character of the spent fuel in the storage pool environment, and the absence of reactive phenomena " driving fore-es" - which may result in dispersal of radioactive material. Reactor stor-age pools and independent spent fuel storage installations have been de-signed to safely withstand accidents caused either by natural or man. 363
made phenomena. Even remote natural risks such as earthquakes and tornados and the risks of human error such as in handling or storing spent fuel are addressed in the design and operational activities of stor-age facilities and in NRC's licensing reviews thereof under its regula-tions. Under 10 C.F.R. Parts 50 and 72, spent fuel is stored in facilities structurally designed to withstand accidents and external hazards, such as those cited above, and to preclude radiation and radioactive material emissions from spent fuel that would significantly endanger the public health and safety. In order to preclude the possibility of criticality under normal or accident conditions, the spent fuel is stored in racks designed to maintain safe geometric contigurations under seismic conditions. The spent fuel itself consists of solid ceramic pellets which are encapsulated in metal-clad rods held in gridded assemblies and stored underwater in reinforced concrete structures or in sealed dry storage installations such as concrete dry wells, vaults and silos or massive metal casks. The prop-erties of the spent fuel (which in extended storage has decayed to the point where individual fuel assemblies have a heat generation rate of several hundred watts or less) and of the benign storage environment result in spent fuel storage being an activity with very little potential for adversely affecting the environment and the public health and safety. While any system employing high technology is subject to some equip-ment breakdowns or accidents, water pool storage facilities have operat-ed with few serious problems (DOE PS at IV-56 to IV-57; UNWMG-EEI PS, Doc. 4, at 26). In these cases, the events at spent fuel pools have been manageable on a timely basis. Similarly, dry storage of spent fuel, as discussed in s C, above, appears to be at least as safe as water pool storage. A discussion of risks related to spent fuel storage is provided below. Comments from participants on the subject of accidents and their potential consequences at spent fuel storage facilities included a descrip-tion of nonspecific references to numerous " accidents" in spent fuel storage facilities, a discussion of cases of leaks and inadvertent releases of contaminated storage pool water, and a suggestion that waste storage should be physically separated from reactor operation to reduce the risk of damage to the storage facility in the event of a reactor accident, and vice versa (NY PS at 102-07; OCTLA PS at 12). The State of New York, in its discussion of possible accidents at spent fuel storage pools, cited reports of an accident in the Soviet Union that is beheved to have involved reprocessing plant wastes stored in tanks at a waste storage facility (NY PS at 107-08). The situation, as reconstructed from limited data, cannot be compared to the storage of ceramic fuel in metal clad-ding, placed in water storage pools. The issue raised, therefore, is not 364
1 relevant to this proceeding. The need for continued management of pool storage facilities over an extended time period was considered by some participants as creating a potential hazard because of the increased possi-bility of human errors or mismanagement (NRDC PS at 89-90). The State of New York characterized the Three Mile Island reactor accident as caused by multiple technical and human failures, and postulated that such failures are possible at storage facilities, and would result in serious offsite consequences (NY PS at 107). These observations do not appear to take account of the numerous safety analyses that have been made of water pool storage and of alterna-tive long-term storage methods which have demonstrated storage to be both safe and environmentally acceptable. Of course, the possibility of human error cannot be completely eliminated. However, Commission regulations (e.g.,10 C.F.R. Part 55; 10 C.F.R. Part 72, Subpart 1) in-clude explicit requirements for operator training, the use of written procedures for all safety-related operations and functions in the plant, and certification or licensing of operators, with the objective of minimiz-ing the opportunity for human error. Unlike the accident at the Three Mile Island reactor, human error at a spent fuel storage installation does not have the capability to create a major radiological hazard to the public. The absence of high temperature and pressure conditions that would provide a driving force essentially eliminates the likelihood that an operator error would lead to a major release of radioactivity (DOE CS at 11 156 to !! 158). In addition, features incorporated in storage facilities are designed to mitigate the consequences of accidents caused by human error or otherwise (DOE PS at IV 34). The possibility of terrorist attacks on nuclear facilities was advanced as an argument against the acceptability of extended interim storage of spent fuel (NRDC PS at 90). The intentional sabotage of a storage pool facility is possible, and NRC continues to implement actions to further improve security at such facilities. The consequences would be limited by the realities that, except for some gaseous fission products, the radi-oactive content of spent fuel is in the form of solid ceramic material en-capsulated in high integrity metal cladding and stored underwater in a reinforced concrete structure. Under these conditions, the radioactive content of spent fuel is relatively invulnerable to dispersal to the envi-ronment (NUREG-0575, Vol.1, supra). Similarly, dry storage of spent fuel in dry wells, vaults, silos and metal casks is also relatively invulnera-ble to sabotage and natural disruptive forces, because of the weight and size of the sealed, protective enclosures which may include 100-ton steel casks, large concrete-lined near-surface caissons and surface concrete silos (NUREG/CR-1223, supra, at IV-C.2), 365
E. Summary In summary, the Commission finds that spent fuel can be stored safely at independent spent fuel storage installations or at reactor sites for at least 30 years beyond the expiration of reactor operating licenses. This finding is based on extensive experience and on many factors that are not site-specine. These factors include the substantial capability of the fuel cladding to maintain its integrity under storage conditions, a capability veriGed in extensive technical studies and experience; the ex-treme thermal and chemical stability of the fuel form, enriched uranium oxide pellets; the long-term capability of spent fuel storage facilities to dissipate spent fuel heat and retain any radioactive material leakage; and the relatively straightforward techniques and procedures for repairing spent fuel storage structures, replacing defective components or equipment, or undertaking other remedial actions to assure containment of radioactivity Gohnson, " Behavior of Spent Nuclear Fuel in Water Pool Storage" (UC-70), supra). These factors contribute to the assurance that spent fuel can be stored for extended periods without significant impact on the public health and safety and the environment. Moreover, any storage of spent fuel at independent spent fuel storage installations or reactor sites beyond the operating license expiration will be subject to licensing and regulatory control to assure that operation of the storage facilities does not result in significant impacts to the public health and safety. For the reasons discussed previously (s{ 2.4-A through 2.4-D, above), the Commission also concludes, from the record of this proceed-ing, that storage of spent fuel either at or away from a reactor site for 30 years beyond the operating license expiration would :ot result in a sig-nincant impact to the environment or an adverse efiect on the public health and safety. The Commission's nndings are also supported by NRC's experience in more than 80 individual safety evaluations of spent fuel storage facilities conducted in recent years. The record indicates that signincant releases of radioactivity from spent fuel under licensed storage conditions are highly unlikely. This is primarily attributable to the resistance of the spent fuel to corrosive mechanisms and the absence of any conditions that would result in offsite dispersal of radioactive material. The Commission concludes that the possibility of a major acci-dent or sabotage with offsite radiological impacts at a spent fuel storage facility is extremely remote because of the characteristics of spent fuel storage. These include the inherent properties of the spent fuel itself, the benign nature of the water pool or dry storage environment, and the absence of any conditions that would provide a driving force for dispersal of radioactive material. Moreover, there are no signiGcant additional 366
nonradiological impacts which could adversely alTect the environment if spent fuel is stored beyond the expiration of operating licenses for reactors. The nonradiological environmental impacts associated with site preparation and construction of storage facilities are, and will continue to be, considered by the NRC at the time applications are received to construct these facilities, which are licensed under NRC's regulations in either 10 C.F.R. Part 50 for reactors or 10 C.F.R. Part 72 for independ-ent spent fuel storage facilities. The procedure to be followed in imple-menting the Commission's generic determination is the subject of rulemaking which the Commission has conducted. 2.5 Fifth Commission Finding The Commisswn finds reasonable assurance that safe independent onsite spentfuel storage or offsite spentfuel storage will be made avadable (f such storage capacity is needed. The technology for independent spent fuel storage installations as dis-cussed under the Fourth Commission Finding, is available and demon-strated. The regulations and licensing procedures are in place. Such in-stallations can be constructed and licensed within a 5 year time interval. Before passage of the Nuclear Waste Policy Act of 1982 the Commission was concerned about who, if anyone, would take responsibility for providing such installations on a timely basis. While the industry was hoping for a government commitment, the Administration had discon-tinued efforts to provide those storage facilities (Tr. at 157 58). The Nuclear Waste Policy Act of 1982 establishes a national policy for providing storage facilities and thus helps to resolve this issue and assure that storage capacity will be available. Prior to March 1981, the DOE was pursuing a program to provide temporary storage in offsite, or away from-reactor (AFR), storage instal-lations. The intent of the program was to provide flexibility in the na-tional waste disposal program and an alternative for those utilities unable to expand their own storage capacities (DOE PS at 111; DOE CS at 1166). Consequently, the participants in this proceeding assumed that, prior to the availability of a repository, the Federal government would provide for storage of spent fuelin excess of that which could be stored at reactor sites. Thus, it is not surprising that the record of this proceeding prior to the DOE policy change did not indicate any direct commitment by the utilities to provide AFR storage. On March 27, 1981, DOE placed in the record a letter to the Commission stating its .e. cision "to discontinue its efforts to provide Federal government owned or controlled away-from reactor storage facilities." The primary
- reasons 361
l for the change in policy were cited as new and lower projections of stor-age requirements and lack of congressional authority to fully implement the original policy. The record of this proceeding indicates a general commitment on the part ofindustry to do whatever is necessary to avoid shutting down reac-tors or derating them because of filled spent fuel storage pools. While in. dustry's incentive for keeping a reactor in operation no longer applies after expiration ofits operating license, utilities possessing spent fuel are required to be licensed and to maintain the fuel in safe storage until re-moved from the site. Industry's response to the change in DOE's policy on federally sponsored, away from reactor ( AFR) storage was basically a commitment to do what is required ofit, with a plea for a clear unequiv-ocal Federal policy (Tr. at 157 59). The Nuclear Waste Policy Act of 1982 has now provided that policy. The Nuclear Waste Policy Act defines public and private responsibili-ties for spent fuel storage and provides for a limited amount of federally supported interim storage capacity. The Act also includes provisions for monitored retrievable storage facilities and for a research, development and demonstration program for dry storage. The Commission believes that these provisions provide added assurance that safe independent onsite or offsite spent fuel storage will be available if needed. In Subtitle B of the Act, " Interim Storage Program," Congress found that owners and operators of civilian power reactors "hase the primary responsibility for providing interim storage of spent nuclear fuel from such reactors" by maximizing the use of existing storage facilities on site and by timely additions of new onsite storage capacity. The Federal government is responsible for encouraging and expediting the effectise use of existing storage facilities and the addition of new storage capacity as needed. In the event that the operators cannot reasonably provide ad. equate storage capacity to assure the continued operation of such reac-tors, the Federal government will assume responsibility for prouding in-terim storage capacity for up to 1900 metric tons of spent fuct ' (j 131(a)). Such interim storage capacity is to be provided by the use of available capacity at one or more Federal facilities, the acquisition of any modular or mobile storage equipment including spent fuel storage racks, and/or the construction of new storage capacity at any reactor site () 135(a)(1)). The Nuclear Waste Policy Act authorizes the Secretary of Energy to enter into contracts with generators or owners of spent fuel to provide for storage capacity in the amount provided in the Act ({ 136(a)(1)). However, such contracts may be authorized only if the NRC determines that the reactor owner or operator cannot reasonably provide adequate 368
and timely storage capacity and is pursuing licensed alternatives to the use of Federal storage capacity (s 135(b)).' Further, any spent fuel stored in the " interim storage program" is to be remosed from the stor-age site or facility "as soon as practicable" but in no event later than 3 years following the availability of a repository or monitored retrievable storage facility (f 135(e)). The Act establishes an " Interim Storage
- Fund" for use in activities related to the development ofinterim storage facilities, including the transportation of spent fuel and impact assistance to State and local governments (s 136(d)).
In addition to providing for interim storage capacity, Congress found that "the long term storage of high level radioactive waste or spent nuclear fuel in monitored retrievable storage facilities is an option for providing safe and reliable management of such waste or spent fuel." By June 1,1985, the Secretary of Energy must complete a detailed study of the need for, and feasibility of, such a facility and submit to Congress a proposal for the construction of one or more such facilities. The Act also directs the Secretary of Energy to establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at reactor sites and provide consultative and technical assistance on a cost sharing basis to assist utilities lacking interim storage capacity to , obtain the construction, authorization and appropriate license from the NRC. Such assistance may include the establishment of a research and development program for the dry storage of no more than 300 metric tons of spent fuel at federally owned facilities (Q 218(a), (b), and (c)). The Commission's confidence that independent onsite and/or offsite storage capacity for spent fuel will be available as needed is further sup-ported by the strong likelihood that only a portion of the total spent fuel generated will require storage outside of reactor storage basins (DOE PS at V.3 to V.13). Estimates of the amount of spent. fuel requiring storage away from reactors have declined significantly over the duration of this proceeding (DOE March 27,1981, letter from O. Brown, !!, DOE Office of General Counsel, to M. Miller, NRC, Presiding Officer in this proceeding). DOE reported that cumulative spent fuel discharges, previously es-
; timated as 100,000 metric tons of uranium (MTU), dropped to 72,000 MTU through the year 2000. Projected requirements for additional spent fuel storage capacity begin in 1986 (instead of 1981) and increase to 9500 MTU per year by 1997. Earlier projections indicated a need for J
8 Accordmgty. the Comrmssion has pubhshed propowd "Crueria and Procedures for Determemns the Adequacy or Avadante 5 pent Nuclear Fuel storage Capacuy." 10 C F R. Part $3 (48 Fed Res 19.382 (1943H. 369 i r e
l l 16,000 MTU per year for additional storage capacity in 1997.* DOE pointed out that additional storage requirements could be satisfied in a
- number of ways, including
- (a) use of private existing AFR storage l facilities; (b) construction of new water basins at reactor facilities or away from-reactor facilities by private industry or the utilities; (c) trans-shipment of spent fuel between reactors operated by different utilities; (d) disassembly of spent fuel and storage of spent fuel rods in canisters; l and (e) dry storage at reactor sites.
l Subsequently, DOE published new estimates for additional spent fuel storage capacity (" Spent Fuel Storage Requirements," DOE /RL-821, June 1982). These estimates show a maximum required away from-reactor (AFR) storage capacity of 8610 metric tons uranium of spent l fuel in the year 1997. This is a decline from DOE's previously published l planning base case. The information in Table 1, below, is excerpted from DOE /RL 831 and provides a range of projections of additional storage capacity needs. The first column is a projection of storage capaci-ty needed over and above the currently existing and planned storage ca-pacity. The second column provides projected values of additional stor-age capacity needed if maximum re racking is conducted at existing or planned reactor basin storage pools. The storage capacity needs shown in the second column are somewhat smaller than in the lirst column. A fur-ther decrease in additional needed storage capacity is shown in the third column, which takes into account the possibility of transshipment of fuel from one reactor basin to another basin owned by the same utility. The projected values of needed storage capacity in the lirst and third columns provide a range of upper and lower-bound values, respective-ly. The most likely outcome expected by DOE corresponds to the values in the second column. This was formerly known as the planning base case and is now termed the reference case. All projections shown in the table assume the maintenance of a full-core reserve. The magnitude of j need for additional spent fuel storage capacity projected by DOE has con-tinued to decline, even though DOE has not assumed the use of newly developed technology, such as fuel rod consolidation. The cumulative amount of spent fuel to be disposed of in the year 2000 is expected to be 58,000 metric tons of uranium (Spent Fuel Stor-age Requirements (Update of DOE /RL 821), DOE /RL 831, published January 1983). The additional required storage capacity of 13,000 metric tons of uranium projected in the second column for the year 2000 is less than 25% of the total quantity of spent fuel projected to be in storage. It I ( l ' DOEs planning-base studies assume manmum basin re-rackins at reactors and the maintenan:e or i ruH-core reserve m reactor basins. , 370 i I l l l .
Table 1: Additional Cumulative Spent Fuel Storage Requirements, Over and Above Current and Planned Storage at Reactor Storage Basins Oletric Tons of UraniumP No change in Use maximum Alasimum current or re racking of re-racking planned storage current and planned plus Year capacity storage capacity transshipment 1982 0 0 0
; 1983 0 0 0 1984 13 13 0 1985 13 13 0 1986 110 110 3 1988 550 490 90 , 1990 1,500 1,360 310 1995 5,610 5,060 3,000 14,760 13,090 10,370 2000 s ;
- spent Fuel storage Requirements (Update or doe /RL 8211 doe /RL 831. pubinhed knuary 1993.
1 l is expected that additional storage will be provided at the reactor site,
- with some smaller portion to be moved off site.
In response to the Commission's Second Prehearing Memorandum and Order (November 6,1981) the participants commented on the sig-nificance to the proceeding of issues resulting from the DOE policy change on spent fuel storage. The utilities generally limited their written i responses to a restatement of the safety of interim storage and an affir. mation of the technical and practical feasibility of the alternatives to Federal AFR storage facilities. An implied commitment by industry to
- implement AFR storage if necessary using one of the several feasible 4
spent fuel storage alternatives is evident from the responses of the l utilities, the nuclear industry, and associated groups (i.e., Tr. at 159). i Based upon the foregoing, the Commission has, then, reasonable { assurance that safe independent onsite or offsite spent fuel storage will be available if needed. The technology is demonstrated and the licensing 1 procedures are in place. The Nuclear Waste Policy Act establishes a na-tional policy on interim storage of spent fuel and provides for contingen-cy Federal storage capacity to augment that provided by industry. Fur-l l ther, the amount of fuel which may have to be stored in independent l l spent fuel storage facilities is less than was originally thought.
! 371 4
l
)
J l
(%
- i. U '\
i. P e c 4 REFERENUE NOTATION
\
The foll5 wing pfheviations have been used for the refere'nce citanons in the Appendix: <
+..
PS. Postion Strement ' t'S Cress-Stv.ement
\
PHS Prehearirig, Statement i ' Tr. Transengt* of January f 6, 1982 public meetlng with the Commissioners i s Participants ha'u been identified by the following citatiorrs. 1 Citation (s ' larticipant AIChE
- Amui;an Institute of Chemical Engineers ANS American Nuclear Society AEG Association of Engineering Geologists AIF g Atomic Industria; Forum, Inc.
Bech \ Bechtel National. Inc. CDC , California Departant of Conservation CEC C lifornia EnergyOmmission CPC Consumers Power Company Del State of Delevar'e DOE U.S. DepartEient of Energy ECNP Environmental Coahtion on Nuclear Power GE General Electric Company Ill State ofIllinois (PS includes Roy affidavit) Lewis 51arvin I. Lewis Lochstet Dr. William A. Lochstet S
, 31 inn State of Stinnesota s SIAD Sfississippians Against Disposal NECNP New England Coalition on Nuclear Pollution NfE Neighbors for the Environment (PS includes papers by Dornsife, Rae, and Strahl)
NRDC Natural Resources Defense Council, Inc. NY State of New York , ,
, t-
*The Commimon considers this tranwnpt to be part of the. a;ministratise record m ,
% rutemaions Howcwcr. the tranwnpt has not been resw.cd far accuracy by the Commiwon or @t pm acipants. and L'f therefore tuniy an informal record of ted matters diwussed a 'g t g y ,
i 372 . n s s \
l 1 I Citation Participant I i OCTLA Ocean County and Township of Lower Alloway Creek l Ohio State of Ohio SC State of South Carolina ' SE2 Scientists and Engineers for Secure Energy. Connecticut Chapter SHL Safe Haven, Ltd. ShtP Sensible hiaine Power, Inc. TVA Tennessee Valley Authority UNWhtG eel Utility Nuclear Waste blanagement Group-Edison Electric Institute USGS United States Geological Survey Vt State of Vermont Wis State of Wisconsin (PS includes comments by Deese, 51udrey, Kelly, and Leverance) UG The Utilities Group (Niagara Nfohawk Power Corp., Omaha Public Power District, Power Authority of the State of New York, and Public Service Company of Indiana. Inc.) 373
j Cite as 20 NRC 375 (1984) ALAB 779 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 r in the Matter of Docket No. 50-322 OL LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) August 3,1984 i The Appeal Board explains, for the benefit of the parties and the Commission, its agreement with the determination of the Chief Admin-istrative Judge of the Atomic Safety and Licensing Board Panel not to refer to the Appeal Board his denial of intervenor's motion calling for his disqualification from participation in any matters concerning the Shoreham facility. I RULES OF PRACTICE: REFERRAL OF RULING OIOTION FOR DISQUALIFICATION) The Commission's regulation at 10 C.F.R. } 2.704(c) provides for referral to the Commission or Appeal Board of only those disqualifica-tion motions addressed to the presiding officer or a designated member of a licensing board. 375 1
MEMORANDUM On June 22, 1984, intervenors Suffolk County and the State of New York Gled a motion calling upon B. Paul Cotter, Chief Administrative judge of the Atomic Safety and Licensing Board Panel, to disqualify himself from participating in any matters concerning the Long Island Lighting Company's (LILCO) Shoreham Nuclear Power Station. This motion is one of three filed by the intervenors seeking disqualineation of, respectively, the presiding Licensing Board in the low power phase of the Shoreham operating license proceeding, NRC Chairman Palladi-no, and Judge Cotter. Administrative Judges Marshall E. Miller, Glenn O. Bright', and Elizabeth B. Johnson, who constitute the low-power Licensing Board, declined to step down. As required by 10 C.F.R. 5 2.704(c) their decision was referred to us. We afGrmed. See ALAB-777,20 NRC 21 (1984). The motion to disqualify Chairman Palladino is pending before him. Judge Cotter denied the motion for his disqualiGcation in a memoran-dum and order issued on August 1,1984. LBP 84-29A,20 NRC 385. In a footnote in his decision, he observed that 10 C.F.R. j 2.704(c) pro-l vides for referral "to the Commission or the Atomic Safety and Licens-ing Appeal Board, as appropriate" of only those disqualiGeation motions addressed to the " presiding ofGcer or a designated member of an atomic safety and licensing board . " Thus, he did not refer the motion to us. We agree with Judge Cotter's disposition insofar as referral to this Board is concerned. To begin with, the express terms of the regulation apply only where "the presiding officer does not grant the motion or the board member does not disqualify himself. " (emphasis added). Judge Cotter is neither the " presiding ofGcer" nor a " member" of a licensing board assigned to hear this case. Moreover, as best we can tell from the administrative history of this regulation, there was no intent to include within its scope anyone other than members of individual licensing boards.1 Finally, it appears that Judge Cotter came into contact with the Shoreham litigation only in his administrative capacity as Chairman of the Atomic Safety and Licensing Board Panel. IIis functioning in that role here is better supervised by the Commission rather than an appeal board. I when the Commimon revised section 2J04 in 1975 a explained "section 2 704 currently comuns provisions pertamng to the disquahfication or a ' presiding ofTicer' on his own motion or that or a party Clanfying language has been added to reflect current understanding and practice that these provisions ! apply to all members or a hcensing board in addition. this section is revised to reflect that a motion to disquahry a Board rnember shall be rererred to the Commission, of the Atomic safety and taccming Appeal Board, as appropriate." 40 Fed. Reg $1.995.96 (1975L 376
We have stated our intention not to review Judge Cotter's decision for the information of the parties and the Commission. In the circum-stances, we express no view whatsoever with respect to the merits of the motion for disqualification. FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board 377 i l g _ _ _ .
Cite as 20 NRC 378 (1984) ALAB 780 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 3 (Emergency Planning) LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) August 15,1984 The Appeal Board denies as interlocutory a party's appeal of a Licens-ing Board order denying that party's request for discovery. Treating the appeal as a motion for directed certification of the order, the Appeal Board denies the motion. RULES OF PRACTICE: INTERLOCUTORY APPEALS Section 2.730(f) of 10 C.F.R. generally prohibits interlocutory ap-peals. The single exception to that prohibition is found in 10 C.F.R. 2.714a, which allows an appeal from certain orders entered on petitions for leave to intervene in an adjudicatory proceeding. RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCOVERY ORDERS) An order granting discovery against a non-party to a proceeding has all of the attributes of finality insofar as that non-party is concerned and, 378 t
l t thus, is appealable as a matter of right. Commonwealth Edison Co. (Zion 3 Station, Units I and 2), ALAB-Il6, 6 AEC 258, 258 (1973). See also Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-773,19 NRC 1333 (1984). RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCOVERY ORDERS) An order that denies discovery by quashing a subpoena addressed to a non party is wholly interlocutory in character and, accordingly, is not im-mediately appealable. Zion, supra. 6 AEC at 258; 10 C.F.R. 2.730(0. RULES OF PRACTICE: INTERI.OCUTORY APPEALS (DISCRETIONARY REVIEW) A Licensing Board ruling normally will qualify for discretionary inter-locutory review only ifit either (1) threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal, or (2) affects the basic structure of the proceeding in a pervasive or unusual manner. Public Service ' n ofIndiana (Starble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405,5 NRC 1190,1192 (1977). Discovery rulings rarely meet those tests. Consumers Power Co. (31idland Plant, Units 1 and 2), ALAB-634,13 NRC 96,99 (1981). See also Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), ALAB-608,12 NRC 168,170 (1980). APPEARANCES Lawrence Coe Lanpher, Karla J. Letsche, 311chael S. Stiller, and Christopher St. Alc31urray, Washington, D.C., and 31artin Bradley Ashare, Hauppauge, New York, for the intervenor, Suf-folk County, New York. s Richard J. Zahnleuter, Albany, New York, for the intervenor, State of New York. 1 Donald P. Irwin and Lee B. Zeugin, Richmond, Virginia, for the applicant, Long Island Lighting Company. 1 379 ____A- . _ _ _ . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
Stewart M. Glass, New York, New York, for the Federal Emergency Alanagement Agency. Bernard M. Bordenick for the Nuclear Regulatory Commission staff. MEMORANDUM AND ORDER On July 26, 1984, intervenor Suffolk County filed a notice of appeal (together with a supporting brie 0 from a July 10,1984 oral order ce the Licensing Board in the emergency planning phase of this operating license proceeding. That order denied the County's motion seeking, inter alia, to compel the Federal Emergency Management Agency (FEh!A) to produce certain documents. In an unpublished July 27 order, we directed the County to show cause why the appeal should not be summarily dismissed in light of the general prohibition in 10 C.F.R. 2.730(D against interlocutory appeals.1 By way of response, the County conceded that the Licensing Board's . oral order was interlocutory in character but nonetheless maintained that we should review it in the exercise of our discretion) In this circumstance, we elected to treat the appeal as, in effect, a motion for directed certification of the oral order 3 and, accordingly, called for the views of the other parties to the controversy respecting whether the criteria for granting such relief were met.' For the reasons that follow, we dismiss the appeal and deny directed certification.8 A. In our Zion decision more than a decade ago, we took note of the distinction, insofar as appealability is concerned, between an order " granting discovery against a non-party to the proceeding" and an order 1 The single exception to thai prohibition is found in 10 C F R. 2 714a, which allows an appeal from certain orders entered on petitions for '. cave to iritervene m an adjudgatory proteeding. 2 Memorandum to show Cause why suffolk County's July 26 Appeal should Not Be Dismmed iAugust I.1984) at 2-8. 3 See 10 C F R. 2.7tifih Pub /c Serme Co. of New Hampshire (seabrook station, Units I and 2), ALAB.271,1 NRL 478,482-83 !!975). 4 August 2.1984 order (unpubhshed) In memoranda riled on August 10. 1984 II) the siate of New York supported sufrolk County; and (2) FEM A. the applicant Long liland Lighting Company and the SRC stafr each took the poution that interlocutory appellate resiew of the twensing Board dmovery order was not warranted. 3 0ur unpubbshed August 2 order did not either (1) specifically dismm the appeal. or 121 detail the bases ror our conclusion that the appeal would not lie and thus the County's papers should be treated as seeking discretionary appellate review We therefore deal with these matters in this opinion. 380
- that " denies discovery by quashing a subpoena addressed to the non-
- party "* The former, we observed, "has all of the attributes of finality in-sofar as that non-party is concerned" and, thus, is appeatable as a matter of right.7 On the other hand, an order denying discovery "is wholly inter-l locutory in character" and, accordingly, is not so appealable given the l provisions of 10 C.F.R. 2.730(f).8 I Precisely the same distinction is drawn in federal judicial practice.*
And it explains why, in ALAB-773,38 we recently entertained the appeal of FEhlA from a Licensing Board order directing it to produce docu-ments sought by the County. Because FESIA is a non-party in this pro-ceeding, that production order had "all of the attributes of finality." In contrast, the Licensing Board order now challenged by the County - denying a discovery request directed to FENIA - has none of the attri-butes of finality but, rather, "is wholly interlocutory in character."" B. A Licensing Board ruling normally will qualify for discretionary in-terlocutory review only if it "either (1) threatenis) the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affect (s] the basic structure of the proceeding in a pervasive or unusual man. i ner."l2 We have observed that "ldliscovery rulings rarely meet those l tests."32 Indeed, insofar as our research has disclosed, no prior endeavor to obtain directed certification of the denial of a discovery request has been successful.
- Common =catr4 Edrson Co. (Zson station. Units I and 21. ALAB-ll6. 6 AEC 258, 2$8 (197D lemphasis in original).
7
/M As noted in len (at n 3). that considerauon was at the root of our acceptance of an appeal from a Licensing Board order directing non-parties to comply with subpoenas issued at the behest of one of the parties to an antitrust proceeding. See Consumers Power Co. (Midland Plant. Units 1 and 21 ALAB l22,6 AEC J22 (1973).
- Zen, supra. 6 AEC at 158.
' Compare EEoC v. Neches Susant Prodwts Co.104 F 2d 144.148 ($th Cir.198D (disovery orders l generally not appeatable apart from a Gnal decision in the case) with Bram4
- Phelhps ferrpicum Co..
638 F 2d 873 ($in Cir 1981) (non-party government entity claimir:s privilege may appeal immediately from an order granting diwovery against it). 1019 NRC 1333 (1984). Il in these circumstances, we need not decide whether. had the July 10 oral ruling been an appeatable order, the appeal nonetheless would have been sublect to dismissal as unumely inasmuch as the notge or appeal was not Sled until July 26. the answer to this quesuon would have hinged in turn upon =hether l the 10-day appeal period prewribed in 10 C F R 2 762f a) was applicable and ef not what other provi-sion of the Rules of Practice might be taken as setting a time limit. 12 pu3fg $,ng, Co. of Indwaa nf arble 11:11 Nuclear Generaung station. Umts 1 and 2). AL AS405. 5 N RC 1190.1192 (1977) l 32 Censumers Power Co Blidland Plant. Units I and 21. AL AB 634. 53 NRC 90. 94 (19918 See also ! Neustos Euretrag and fo=ce Co (south Texas Project. Units I and 2). ALAB+)8.12 NRC 168.170 (1980) (*As a general matter. diwovery rulings o(inensing boards are not prornising candidates for the exercise of our diwretionary authority to review interlocutory orders **L 381 l I
We see no reason to reach a different result here. Plainly, should it turn out that the discovery ruling in question contributes materially to an unfavorable outcome on the emergency planning issues, Suffolk County will be free to mount its challenge to the ruling on an appeal from that outcome. Equally plainly, there is no room for a serious claim that the ruling has affected the basic structure of the proceeding at all - let alone in a pervasive or unusual manner. To the contrary, the situation at bar cannot be differentiated from that in any other case in which a party endeavored unsuccessfully to acquire certain information to assist its preparation for trial. Even if the party might have been entitled to obtain the sought information by way of discovery, it scarcely follows that the proceeding was significantly altered in structure simply because the request was not enforced by the trial tribunal. ^; We need add only that the County's cause is not advanced by its reli-ance" on the following direction in the Commission's 1981 Statement of Policy on Conduct of Licensing Proceedings: If a significant legal or policy question is presented on which Commission gmdanec is needed, a board should promptly refer or certify the matter to the Atomic Safety and Licensing Appeal Board or the Commission.I5 We have previously determined that "the Policy Statement does not, either explicitly or by necessary implication, call for a marked relaxation of the [ existing interlocutory review] standard. Rather, in terms, it simply exhorts the licensing boards to put before us legal or policy ques-tions that, in their judgment, are 'significant' and require prompt appel. late resolution." in this instance, the Licensing Board apparently did not regard its July 10 oral order as involving questions of that stripe. Nor do we. The legal issue at the root of this controversy was considered and decided in ALAB.773, supra. All that is currently in question is whether the Licensing Board correctly applied the standard established in that decision to the particular factual situation before it. That hardly is he kind ofinquiry that the Commission's Policy Statement had in mind. H sufrolk County's Ausait i Memorandum. note 2 wera. at 1 I3CLl.818 IJ NRC 452. 456 le Venur fircire and Po.cr Co (North Anna Power stanon. Unns I and 2#. ALAB.'41,18 SRC )?l. 375 (1983) 382
I Appeal dismissed; directed certitication denied. ! It is so ORDERED. i FOR THE APPEAL BOARD
- C. Jean Shoemaker l Secretary to the l Appeal Board l
I i l l I l l l l 1 l l l l l t 383 l l l en
Cite as 20 NRC 385 (1984) LBP 84 29A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE CHIEF ADMINISTRATIVE JUDGE B. PAUL COTTER, JR. In the Matter of Docket No. 50-322 OL-4 (ASLBP No. 84 503 01 Mise.) SUFFOLK COUNTY AND STATE OF NEW YORK MOTION FOR DISQUALIFICATION OF CHIEF ADMINISTRATIVE JUDGE COTTER (Shoreham Nuclear Power Station, Unit 1) August 1,1984 The Chief Administrative Judge of the Atomic Safety and Licensing Board Panel denies Intervenor Suffolk County's motion for recusal on the grounds that he has no adjudicatory responsibilities in connection with the Shoreham proceeding, and consequently no adjudicatory re-sponsibility from which to recuse himself. RULES OF PRACTICE: RECUSAL The rules governing motions for recusal and their resolution are generally the same for the administrative judiciary as for the judicial branch itself, and the Commission has followed that practice. RULES OF PRACTICE: RECUSAL The Chief Administrative Judge of the Atomic Safety and Licensing Board Panel has no authority to decide any issue pending in the Shore-ham proceeding, and consequently no adjudicatory responsibility from which to recuse himself. 385 \ l pLr--- -- -- m e y.-s -m 9 9 -w- c ----,y-,-: - -- '-, + N--
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i i i i 1 1 ! r i 4 ATOhllC SAFETY AND LICENSING BOARD PANEL: CIIIEF
- AD>tINISTRATIVE JUDGEt AUTilORITY
{. The Chief Administrative Judge of the Atomic Safety and Licensing Board Panel has no authority to refuse to perform the administrative re-sponsibilities of his position. 1 i 1 MEMORANDUM AND ORDER On June 22,1984, the captioned County and State moved that the un-dersigned " disqualify himself from participating in any matters concern- , i ing the Long Island Lighting Company's ('LILCO') ! oreham Nuclear Power Station ('Shoreham')." 5fovants allege that a series of events i during the 2 weeks ending 5f arch 30,1984 (the date I appointed an j Atomic Safety and Licensing Board to consider a motion filed by the Long Island Lighting Company), established grounds for concluding that I had "in some measure adjudged the facts as well as the law of 1 (this} case in advance of hearing it" (emphasis in original), citing Cindce-i ella Career and Finishing Schools, Inc. v. FTC, 425 F.2d 583, 591 (D.C.
- Cir.1970), quoting wah approvalfrom Gilligan. Will & Co. v. SEC. 267 F.2d 461 (2d Cir.1959). The NRC Staff filed a response on July 12, 1984.
1 The motion is anomalous and is devoid of basis or apparent prece-dent. Slotions for disqualification or recusal are normally directed to a presiding judicial official who has responsibility for deciding a contested l issue or issues. See Withrow v. Larkin. 421 U.S. 35 (1975). The rules governing such motions and their resolution are generally the same for the administrative judiciary as for the judicial branch itself, and this 4 Commission has followed that practice. Houston Lighting and Power Co. (South Texas Project Units 1 and 2), CLI 82 9,15 NRC 1363,1366 i (1982). In the instant case, I have no adjudicatory responsibilities in con-nection with the Shoreham proceeding. I am not a member of the Atomic Safety and Licensing Board hearing the case nor do I serve as an i alternate member, a special master, a special assistant, or in any other i quasi adjudicatory position in connection with the case. See 10 C.F.R. I fl 2.704, 2.721 and 2.722 (1984). Consequently, I have no authority to t decide any issue pending in the Shoreham proceeding and no adjudica. I tory responsibility from which to recuse myself. l To the extent the motion may be intended to address my role as the principal administrative officer of the Atomic Safety and Licensing i j 386 )- ! ,i 1
d Board Panel, it is equally without foundation. I did appoint the members of three licensing boards which are hearing various aspects of the Shore-ham proceeding, and, because of conflicts in workload, have had to reconstitute at least one of those Boards. See notices published at 47 Fed. Reg. 6510 (1982) (reconstitution); 48 Fed. Reg. 22,235 36 (1983) l (emergency planning board); and 49 Fed. Reg. 13,611 12 (1984) (low. ) power board). Those appointment actions were taken pursuant to admin-istrative responsibilities imposed upon me as Chief Administratise l Judge of the Atomic Safety and Licensing Board Panel by the Atomie 1 Energy Act and the Commission. 42 U.S.C.12011 (1982), as amended; 10 C.F.R. (( 2.704, 2.721 (1984). I do not have the authority myself to refuse to perform such duties. See Boyle v. Umred States. 515 F.2d 1397, 1 1402 (Ct. Cl. I975) and Naget v. Depanment of Heakh and Human Serv-ices. 707 F.2d 1384,1387 (Fed. Cir.1983). Even if I did, I would not
- take any such action on the basis of the instant motion. The motion con-2 sists of a collection of unfounded accusations, unsupported allegations, distortions of events, hearsay, and omissions of significant facts (for J example, the omission of the complete February 22, 1984, ruling of the Shoreham Licensing Board) concocted in an effort to create an appear-ance of impropriety or bias that does not exist. It does not warrant fur-ther discussion and will be dismissed?
! Nevertheless, the aggregate effect of the accusations and omissions is '
to inject a spurious dispute into the Shoreham proceeding and to impugn my own integrity. The latter result has broader effect because it has the potential to cast a shadow over other proceedings conducted by i Atomic Safety and Licensing Boards that I have appointed in the past
, and will appoint in the future. Consequently, to remove those potentially harmful effects, attached (not published) to this memorandum and in-corporated herein by reference as if set forth at length is my statement concerning the events resulting in the appointment of a board to hear LILCO's Supplemental Slotion for Low Power Operating License filed j Starch 20,1984 4
i f i d [ l
- session 2 704fo of 10 C F R. Part 2 presides ihai the denial of a motion so disquahr, shall be referred to the Commission of the Asustic Safety and twensing Appesi Soar 1 as arpropriate ohnh edi determine the sulkiency or she grounds alleged
- Sy its terms % 2.70410 apphes so a presidmg offt-ser or a member of a inensing board and therefore does not appear, on its fate. apphcahte to the instant decision 387
Order For all the foregoing reasons, it is, this ist day of August 1984, ORDERED That the Suffolk County and State cf New York Motion for Disqualiti. cation of Chief Administrative Judge Cotter is denied. B. Paul Cotter, Jr. ADMINISTRATIVE JUDGE [The Attachment has been omitted from this publication but may be found in the NRC Public Document Room, 1717 11 Street, NW. Washington, DC 20555.] i 38M i
Board Panel, it is equally without foundation. I did appoint the members ! of three licensing boards which are hearing various aspects of the Shore-ham proceeding, and, because of con 0icts in workload, have had to reconstitute at least one of those Boards. See notices publish:d at 47 Fed. Reg. 6510 (1982) (reconstitution); 48 Fed. Reg. 22,235 36 (1983) (emergency planning board); and 49 Fed. Reg. 13,611 12 (1984) (low-power board). Those appointment actions were taken pursuant to admin-l istrative responsibilities imposed upon me as Chief Administratise Judge of the Atomic Safety and Licensing Board Panet by the Atomic Energy Act and the Commission. 42 U.S.C. s 2011 (1982), as amended; 10 C.F.R. }} 2.704, 2.721 (1984). I do not have the authority myself to refuse to perform such duties. See Boyle v. United States,515 F.2d 1397, I402 (Ct. Cl.1975) and Naget v. Department of Health and Human Serv. Ices 707 F.2d 1384,1387 (Fed. Cir.1983). Even if I did, I would not take any such action on the basis of the instant motion. The motion con-sists of a collection of unfounded accusations, unsupported allegations, distortions of events, hearsay, and omissions of signincant facts (for example, the omission of the complete February 22,1984, ruling of the Shoreham Licensing Board) concocted in an effort to create an appear-ance of impropriety or bias that does not exist. It does not warrant fur-ther discussion and will be dismissed.' i Nevertheless, the aggregate effect of the accusations and omissions is to inject a spurious dispute into the Shoreham proceeding and to impugn my own integrity. The latter result has broader effect because it has the potential to cast a shadow over other proceedings conducted by Atomic Safety and Licensing Boards that I have appointed in the past and will appoint in the future. Consequently, to remove those potentially harmful effects, attached (not published) to this memorandum and in-corporated herein by reference as if set forth at length is my statement concerning the events resulting in the appointment of a board to hear LILCO's Supplemental Motion for Low Power Operating License Gled March 20,1984.
- sect.on 2 704f st of 10 C F A Part 2 provides that the denial of a motion to disquahfy " thall he referred to the Comrussion or the Atomic safety and Lwensing Appeal Board, al appropnaie, ehwh edl determine the lufNieMGy Or the grOwndt elleged
- 9) ill terms. ) 2 ?04f c) apphes to a pres >Jies olk Get of a member Qr a l centertg board and therefore doel Rut appear. On 118 Iste. ApplKahle t3 the in$ tant dettison 387
Order For all the foregoing reasons, it is, this ist day of August 1984, ORDERED That the SutTolk County and State of New York N!otion for DisquahG-cation of Chief Administrative Judge Cotter is denied. B. Paul Cotter, Jr. AD5!!NISTRATIVE JUDGE [The Attachment has been omitted from this publication but may be 4 found in the NRC Public Document Room,1717 li Street. NW, Washington, DC 20555.1 388
_a s2__ _ - _ _ ,s_. s -- _ - . ----...>.=_.>.-_a.. a_==.- Cite as 20 NRC 389 0 984) LSP 84 298 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING 80ARD Before Administrative Judges: James L Kelley, Chairman Dr. James H. Carpenter Glenn O. Bright in the Matter of Docket Nos. 50 400 50 401 (ASL8P No. 82 472 03 OL) CAROLINA POWER & LIGHT COMPANY and NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY I (Sheaton Harris Nuclear Power Plant, Units 1 and 2) August 3,1984 In this Memorandum and Order, the Licensing Board completes its rulings on the admissibility of the over 100 emergency planning conten-tions submitted by various intervenors. EalERGENCY PLANNING: DECONTA>llN ATION Emergency plans are not called upon by regulation or guidance to give an account of materials available for evacuee decontamination. NUREG 0654 focuses on providing for decontaminatien of emergency workers, who would be likely to face greater contamination dangers than evacuees would. See the evaluation criteria under i ll.K in NUREG. 0654. flowever, the plans must show that the responsibility for evacuce JN9 l
decontamination has been assigned to organizations which will be ade-quately trained to carry out the task. E31ERGENCY PLANNING: DECONTA3tINATION Any large decontamination of evacuees or vehicles at the border of the plume EPZ would scry likely impede prompt evacuation of the most threatened part of the population around the plant. The desire to avoid purported safety measures that would impede evacuation is reflected in evaluation criterion II.J.10.h of NUREG-0654. It calls for siting the host areas, and thus the principal decontamination centers, "at least 5 miles, and preferably 10 miles, beyond the boundaries of the plume (EPZl." ESIERGENCY PLANNING: REENTRY AND RECOVERY The emphasis in evaluation criteria !!.51.1 and 11.51.3 4 in NUREG-0654 is on planning for the decision to reenter, not on measures to be executed during reentry and recovery. Presumably, the thought behind this emphasis is that the decision to reenter is equivalent to a decision to relax protectise measures (evaluation criterion 51.1 in NUREG 0654, j II) and is therefore to be made with a degree of care which requires some advance thought. However, since reentry and recosery would not take place undar the same time pressures protectne actions would, plan-ning for measures to be executed during reentry and recosery needn't be more than general. E31ERGENCY PLANNING: 131PLE31ENTING PROCEDURES I A finding that there is reasonable assurance that the plans can be im-plemented is, under 10 C.F.R. } $0.47(a)(2), to be based largely on the plans, not the myriad details of the implementing procedures. Imple-mentability is a characteristic of good plans, for even the best implement. ing procedures cannot rescue an ill conceived plan. Thus it is to the ade-quacy of planning that all of the Commission's planning standards and
- evaluation criteria are directed, not the mechanical details ofimplement-ing procedures. An intervenor looking to introduce such procedures into litigation would have to point to some plan provisicn drafted in such a
, w1y that a board would have to look at the implementing procedures under it to determine whether there was reasonable assurance it could be implemented. Accord Louisiana Poser and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB 732,17 NRC 1076,1106 07 (1983).
I 390 t I
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1 l l EalERGENCY PLANNING: E>lERGENCY PLANNING ZONE 2 SUB AREAS { Sub areas of the plume EPZ need not be perfectly regular, concentric j rings, or parts thereof, any more than the EPZs themselves should be i exactly 10 or 50 miles in radius. "The boundaries of the sub areas shall j be based upon the same factors as the EPZ, namely demography, topog-1 raphy, land characteristics, access routes, and local jurisdictions " NUREG 0654, Appendix 3, at 4 4. i ! ESIERGENCY PLANNING: ESIERGENCY PLANNING ZONE 1 BOUNDARIES I State and local planning officials are not obliged to supply a written i justification of their boundary making until they are faced with an admit-l ted contention on the subject. In particular, in the absence of such an ad-j mitted contention, officials need not justify in writing the exclusion
, from the plume EPZ of areas just inside the 10 mile limit. Section i 50.47(c)(2) of 10 C.F.R. says that the plume EPZ shall be "about" 10 miles in diameter, not "at least."
l ) EalERGENCY PLANNING: EVACUATION ROUTES j Evacuation routes are not simply routes out of the plume FPZ; they l are routes to public shelters. Thus in order to reac5 ;he nearcst shelter, i some routes may have to carry traffic roward the plant before they carry
! it away.
I
! TAHLE OF CONTENTS Page ! EVACUATION OF SPECIAL POPULATIONS. ,
j Eddleman Contentions 139,140, 88, 235, 236( A), 236(B), 204, a nd 2 3 0 . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 393 MONITORING AND DECONTAMINATION OF EVACUEES: i Eddleman Contentions 240 and 241. . . ... .. .. 396 } REENTRY AND RECOVERY: ( Eddleman Contentions 210,100, and 100B . . .. . 399 i' MEDICAL CARE: Eddleman Contentions $7 C 7, 56, 57 C 8, and 63 . . . .. 400 1 391 l a i
i Page EXPERIENCE AND TRAINING: Edc'eman Contentions 212,124. and 243 . 404 ESIERGENCY PREPAREDNESS EXERCISES: Eddleman Contentions 81 and 208 405 l PUBLIC EDUCATION AND INFORNIATION: l Eddleman Contentions 227, 228, and 229 . 406 INGESTION EPZ: Eddleman Contention 206 . . . 407 SIGNATURES AND hlEhf0RANDUN1 OF UNDERSTANDING: Eddleman Contentions 57-C 18 and 200 . . 407 Ih1PLEh!ENTING PROCEDURES: Eddleman Contention 213-a . . . . 408 PLAN NIAINTENANCE; IDENTIFICATION OF LOCATIONS OF CERTAIN PERSONS AND INSTITUTIONS: Eddleman Contentions 99 and 209 . 410 SITE-SPECIFIC PLANNING: Eddleman Contention 242 410 ONSITE Eh1ERGENCY PLANNING: Eddleman Contentions 151,157,103, and 137 411 51APS: l Eddleman Contentions 211, 250, 251, 252, 253, and 254 .. ... . . 413 CCNC'S RENIAINING CONTENTIONS 418 ESIERGENCY PLANNING JOINT (EPJ) CONTENTIONS 420 RADIATION SiONITORING CONTENTIONS 422 WILSON CONTENTIONS 6 AND 12 . . . . . 423 DISCOVERY ON CONTENTIONS ADh11TTED BY THIS l I SIEN10RANDUN1 AND ORDER 424 PETITION FOR WAIVER OF NEED-FOR-POWER RULE 425 UPCOhtlNG TELEPHONE CONFERENCE CALL . 425 l I i 392 l
INDEX OF SIR. EDDLE31 AN'S CONTENTIONS Contention Ruling Page Contention Ruling Page 56 400 209 410 57 C 7* 400 210 399 57-C 8 400 211 413 57-C-18 407 212 404 63 400 213-a* 408 81 405 227 406 88 393 228 406 99 410 229 406 100 399 230 393 1008 399 235 393 103 411 236(A) 393 124 404 236(B) 393 137 411 240' 396 139 393 241 396 140 393 242 410 151 411 243 401 157 411 250 " 413 200 407 251 " 413 204 393 252 413 206 407 253 413 208 405 254 413
' Admitted, or admitted in part. Conditionally refested.
FINAL SET OF RULINGS ON ADMISSIBILITY OF OFFSITE EMERGENCY PLANNING CONTENTIONS, RULING ON PETITION FOR WAIVER OF NEED-FOR-POWER RULE, AND NOTICE OF UPCOMING TELEPHONE CONFERENCE CALL EVACUATION OF SPECIAL POPULATIONS: Eddleman Contentions 139,140, 88, 235, 236(A), 236(11), 204, and 230 These contentions, for the most part, allege inadequate planning for the evacuation of certain populations: recreational, mobility-impaired, 393 l t I
- - - .. .-. .-- . -.. . _ - . - - - _- -_. . _- ~. .-- __. . - _ ---
i J and school, We reject all of these contentions except 236( A) and 230, which we consider in connection with similas contentions filed by Dr. Richard Wilson. 3 Contentions 139,140, and 88, which all deal with the recreation -l population were first submitted before the offsite plans were available,
!- and are now resubmitted without change. They therefore sometimes i
allege inaccurately, or about the onsite plan, or even the FES. In discuss- ) ing these three contentions individually, we focus on their principal j thrusts. - 1 Furthermore, we shall construe allegations apparently directed at the onsite plans to be directed now to the offsite plans. , Contentiins 139 and 140 both allege that the emergency response ' ]' plans (ERPs) do not provide for prompt enough evacuation of the recre-ation population. These two contentions do not claim that particular ! l plan provisions cause unnecessary delays in evacuation. As its sole , basis, Contention 139 asserts that given the average wind speed around j Harris,7 mph, only about I hour and 25 minutes would be available to j evacuate everyone in the plume EPZ. Contention 139 also asserts that since the effects of a severe accident at Harris could extend beyond the plume EPZ, the ERPs should "take into account" the recreation popula-
- tion within 20 miles of the plant. By "tak[ing] into account" we assume
) the contention means " evacuate." As we said in our June 14,1984, Order (unpublished), the NRC rules . , set no time limit on evacuation. Id. at 22 23. In particular, the NRC f .! does not, and, in the nature of things, probably could not, require that if i
- - in the situation Mr. Wells Eddleman treats as ifit were the only one
{ possible - nacuation were to begin precisely when a plume was re-
- leased, evacuation could always be a step ahead of the plume. What the r
] NRC rules do call for is that evacuation time estimates be part of the !
! plans, to add to the information which would enable emergency response i
} officials to choose wisely between sheltering and evacuation, both when [ j evacuation is feasible before plume passage, and when it is not. + f As were six contentions we rejected in our June 14,1984. Order at 6, I Contention 139's implied call for evacuation of the recreation population within a 20-mile area is an impermissible attack on the Commission's , regulation on the size of the plume EPZ,10 C.F.R. { 50.47(c)(2), which t sets the radius of the plume EPZ at "about 10 miles." ! j Contention 88, besides repeating Contentions 139 and 140, asserts ; , that the FES should have considered the costs of transportation and i other emergency response adequate to assure the health and safety of the recreation population in the plume EPZ. As an attack on the FES, this contention comes too late. Even if Contention 88 is construed to be ! 394 ' i 4 }' , i J nn we-m, -+,w -
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1 4 now directed at the ERPs, it is still to be rejected. Although funding "must be discussed between the individual nuclear utilities and the in-volved State and local governments . . ." (NUREG.0654, FEM A REP 1, Rev.1, " Criteria for Preparation and Evaluation of Radiological
' Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," November 1980, j !.G at 25), neither NRC regulation nor guidance suggests that the ERPs - which are supposed to make clear what is to be done in an emergency, how, and by whom (NUREG.
0654, at 29) - should also set out costs. Contentions 235, 236(A), 236(B), and 204 all concern evacuation transportation for the mobility impaired. Contention 236( A) and one aspect of Contention 235 overlap and are encompassed by Wilson 7 and so will be considered later with Wilson 7. Contention 235 is the most general of this group of four contentions. It alleges that the State and local ERPs " fail to assess the resources necessa / or available" to protect the mobility impaired. As its principal basis, the contentio i cites the guidance in evaluation criterion J.10.d in NUREG 06$4, which says that State and local ERPs for the plume EPZ "shall include: . d. Means for protecting those persons whose mobility may be impaired due to t such factors as institutional or other confinement." Mr. Eddleman apparently interprets the word "means" in 1.10.d to mean " assessment of necessary and available resources." Assuming he l is right, it would appear to us that in relation to some protective actions planned for the mobility impaired, no assessment is needed, and that in relation to the remaining protective actions, Contention 235's call for as-
, sessment repeats other contentions which we have either admitted or de-ferred. Contention 235 cites as lacking assessment i IV.E.6 of each county plan and { IV.E.4.b of the State plan. The cited county sections
- list four protective measures which are part of sheltering
- closing win-2 dows and doors, turning off air conditioners, "relocat[ing) to the best protection factors (PF)" in buildings, and distribution of Kl. We see no need for the plans to assess the resources necessary and available for i
i closing windows and turning off air conditioners, and we have already admitted contentions which allege that the PFs should be determined in advance of the emergency preparedness exercises, and that the county ERPs should include the quantities of Ki stored for emergency use. See our June 14, 1984, Order at 18, 21 22. The cited State section lists the organizations which are to p ovide evacuation transportation for nonam- i bulatory patients. Conten. ion 235's concern with the adequacy of the resources of these organisations echoes the concerns behind Contention 236(A) and Wilson 7, an I so we consider the three together later. [ l 395 i l . I t
i Contention 236(B) alleges that contrary to 10 C.F.R. ) 50.47(b)(10) and evaluation criterion L10.d in NUREG 0654, j !!, the State and local ERPs do not how that "self transport capability exists for all facilities for" the mobility impaired and prisoners in the plume EPZ. We are not sure what Contention 236(B) intends. Certainly, the bases it cites do not support a claim that these facilities should hase their own evacuation I transportation resources. Perhaps Contention 236(B) intends to say that the lack of assessment alleged by Contention 236(A) might be justified if the plans were to show that these facilities could evacuate without any transportation resources the emergency response organizations named in the plans might have. If this is 236(B)'s intention, 236(B) is simply repeating the call for an assessment of resources for evacuation transportation. Thus, according to how Contention 236(B) is read, it is either redundant or lacking in bans. Contention 204 alleges that the plans do not provide radiation protect-i ed evacuation for people who require life support while being evacuated. ] As basis, the contention cites s Ill.C.3.a(3) of the State ERP, at 13, and alleges that this section points out the lack of radiation protection on Na-tional Guard helicopters. In fact, that section says nothing about radia-l tion protected evacuation. Rather, it reports that National Guard helicopters carry no life support equipment. No NRC regulations or guidance call for radiation protected evacuation. I Contention 230, the last of the group dealing with transportation for special populations, alleges principally that the ERPs fail to demonstrate adequacy of the resources available to evacuate the schools. Contention 230 is very similar to parts of Contention 222 and Wilson 7. We consider later these three contentions together. SiONITORING AND DECONTA311NAT10N OF EVACUEES: Eddleman Contentions 240 and 241 Contention 240, which we admit in part, alleges that procedures in the ERPs for monitoring evacuees for radioactive contamination are in-adequate because, although the ERPs assign local governments the re-sponsibility for monitoring at evacuation shelters, the ERPs do not show that the local governments have the " capabilities" for decontaminating evacuees, nor are the locations for evacuee decontamination and availa-bility of materials for evacuee decontamination clear in the plans. Since the contention distinguishes between "capabilitics" and "materi-als," we construe the allegation that the plans do not show that local governments have the capabilities for evacuee decontamination to mean that the plans do not show that the responsibility for this task has been 396 i
l assigned to organizations which will be adequately trained to carry out the task. Each of the County ERPs is very clear about where monitoring and decontamination of evacuees would take place. See Figure 6 in the ERPs for Chatham and Lee Counties, Figure $ in the flarnett ERP, and Figure 7 in the Wake ERP. The ERPs do not give, and are not called upon by regulation or guidance to give, an accounting of materials availa-ble for evacuee decontamination, Indeed, neither regulations nor guid-ance even mention evacuee decontamination. Rather, NUREG 0654 focuses on providing for decontamination of emergency workers, who would be likely to face greater contamination dangers than evacuees would. See the evaluation criteria under j II.K in NUREG 0654. However, the ERPs do not clearly show that local governments have the " capabilities" for evacuee decontamination. The Applicants cita sec. I tions which purport to assign responsibility for evacuee decontamina-tion, others which the Applicants claim provide backup for the groups assigned the primary responsibility, and still other passages which pro-vide for training the organizations assigned the primary responsibility. i See Applicants' Answer at 75. However, one county plan does not clear-ly assign the primary responsibility, and no county plan clearly assigns i the backup responsibility. Item (2) in Figure 6 of the Chatham plan says i that decontamination of evacuees will be done by " Radiological Re-sponse Teams." Chatham ERP at 32. But we are unable to determine from the plan what unit of Chatham County government is responsible i for establishing, training, and directing these teams.' As for backup for evacuee decontamination, the Applicants, citing
}} IV.G.6 and 7 of the State ERP and } IV.E.12 of the county ERPs, claim it will be provided by the North Carolina Radiation Protection Sec-tion (RPS). But the cited section in the county plans speaks explicitly only of management of the shelters, and registration, feeding, and monitoring of evacuees; and it is not clear that the first of the cited State sections, IV.O.6, is speaking about more than decontamination of I
emergency workers. Annex li, the Plan Cross Reference, which relates plan sections to the evaluation criteria of NUREG 0654, relates that sec. tion only to evaluation criterion K, which deals only with emergency .1 J l 8 Neither is et clear who is responsible rof momtoring at the sheltert in chatham County item (2) in Fisure 6 in the Chatham plan, at 32. swsnt the momtoring to the County Department of Emergeno I Nf anagemenl. but ) lv El2 or the same plan, at 31. assigns the monitories to the siler City Fire
, Department.
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workers.3 2 The other of the cited State sections, IV.G.7, speaks of State assistance only for monitoring. Therefore Contention 240 is admitted, but only on the following ques-tions: (1) What agency of Chatham County government is responsible for the decontamination of evacuees at the Chatham County Shelters? and (2) Wnich emergency response organizations are assigned the re-sponsibility of providing support for the decontamination of evacuees? Perhaps all that is needed to answer these questions is authoritative clari. Scation of the relevant sections of the ERPs. Contention 241 alleges that the plans' use of schools as shelters in which decontamination would be done is unwise, that the schools would be left contaminated after a radiological emergency and the children using them later thus endangered. The contention offers momtoring as an alternative to decontamination in shelters, and by implication, decon-tamination of the evacuees "after they leave the EPZ before they con-tinue to a host area," to prevent the spread of contamination and panic. We reject 241. Part of it is without basis, and the rest does not address plan provisions which appear to satisfy these concerns as far as NRC rules equire and good sense allows. Fiut, there is no asserted basis for the not sery credible allegation that schools used as shelters would be left contaminated. Second and last, the ERPs do, in fact, provide for monitoring of evacuees and vehi-cles at trafGc control points (see }} lil.C.2.J and !!!.D.I.c of the State ERP), and for some decontamination before evacuees proceed to shel-I ters (see (( IV.E.5.a f of the State ERP), but they subordinate decon-taraination to the greater need to evacuate the plume EPZ quickly (sec ! /d., }} IV.E.5.a c). We are not aware of any NRC regulation or guidance which calls for monitoring and decontamination of all evacuees before they get beyond the plume EPZ. It would seem that any large scale decontamination effort on the border of the plume EPZ would very likely impede prompt evacuation of the most threatened part of the population around the plant. The desire to avoid purported safety measures that would impede eva:uation is reflected in evaluation criterion J.10.h, which calls for siting the host areas, and thus the principal decontamination centers, "at 2But then, the page rererences en Annet H are not always complete. of accurate Sec e e. the page references ror evaluation critenon J l2, et H $. 3 The Appikants also claim that a representative trom the shearon Harris Plant Environmental Radiation Control Unit. or rrom s.4v Emerency Response Team (si R Ti "*iti be dispatshed to the scene to supertite the decontamination " Arfe ants' Answer at 79 The Appbcants cite ($ Iv f 6 and 7 or the county plant These gestions. however. are wgether nearly identecal to i lv 0 6 dAueed abose. and thul Share 4tl lacit or clarity Again. Annet H relates them only to evaluahon r*ilenon h,, on CDntrol Or dotel to emergency wof kers 39M
least 5 miles, and preferably 10 miles, beyond the boundaries of the plume (EPZl." (Emphasis in original.) REENTRY AND RECOVERY: Eddleman Contentions 210,100, and 10011 Contention 210 makes the general allegations that y IV.li of the State l ERP fails to contain the general plan for recovery and decontamination which is required by 10 C.F.R. } 50.47(b)(13), and fails to comply with evaluation criteria 51.1, N1.3, and N1.4* in NUREG 0654, which deal i with both recovery and reentry. Contentions 100 and 1008 are more specific. They allege that the ERPs do not provide means of decontaminating farmland and hom:s, nor adequate provisions for decontamination of food and homes. Con-tention 100 makes this allegation with respect to contamination from
" Class IX" accidents,100B with respect to contamination from " Class X."
We reject all three of these contentions. T hey do not take account of all the provisions for reentry and recovery in the ERPs, nor do they show why the provisions they do take account of - only those in i IV.li of the State plan - do not conform to the cited evaluation criteria. The emphasis in the cited criteria is on planning for the decision to reenter, not on what the contentions appear to be most concerned about, namely measurri to be executed during reentry and recovery. The only evaluation criterion which says anything about those measures says only that "each orgamzation, as appropriate, shall develop general plans and procedures for reentry and recovery . " Evaluation criterion 51.1 in NUREG-0654,6 II. Thus the criterion is no more specific about measures to be executed during reentry and recovery than the planning standard it quotes,10 C.F.R. ! 50.47(b)(13). Presumably, the thought behind this emphasis is that this decision to
- reenter is equivalent to a decision to relax protective measures (evaluation criterion bl.1 in NUREG 0654, j 11) and is therefore to be made with a degree of care which requires some advance thought. Ilow-ever, since reentry and recovery would not take place under the same time pressures protective actions would, planning for measures to be ex.
ecuted during reentry and recovery needn't be more than general.
- The soniennon cites st I. st 2. and 413. but e tame si st 1. st 3. and 514 are intended for Nt 2 apphes oniy to the igenwe's ERP. whoe N14 does arrly la the state ERP, 399 9
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i i The variousy,ans appear to conform to the guidance of the evaulation criterh. In NUREG-0654, f 11.51, particularly to the empnasis in those criteria in the dection to reenter. The second part of criter;on N1.1 calls
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on the plans to "descritx the means by which decisions tp relax protec-tive measures . . ar , reachsd. Sections IV.fl.1-5 of the na'e ERP. i nd - IV.G.13 of the cott!ny ERPs, appear to do just that. Qiteno.s 31.3 cads' on the State plaa :o "specify means for informing . *. responta organiza-L tions that a recovery . . is to be initiated, and of any changes in the or-
, sanizational structure . . ." Sections IV.G.3 5 and N.G.6.d e appear to do just that. Criterion 51.4 says that the State plan should " establish a method for periodically estimating total popo!acan exposure." This estimating, the.crticiat basis for the decision to reenter, appears t,o be, provided for inQ 6'.11.13 of the State plan. Though the contentions cite the quoted criteria against the plans, they do not argue why the plans do not meet,the criteria. '
The ERPs aroear to show conformance with that part of the crucaa
' which the content.ons are most concerned abot t, namely, the first part 5~ of N1,1,' that "each organization . shall develop general plans and procen tt:s for reentry and recovery . . . ." Section IV,H.6 of the State plan b'r:elly discusses responsibilities for public information, traflie ({~
, control, assistance for evacuees in preparing to return to evacuated areas, and the monitoring of reentry and recovery operations. Section IV.G.4 of the county plans, which the contentions do not mention, lists several recovery operations, including medical services, continut as and 4 fong term monitoring of people and property, security of property, and,
~of particular concern to the contention, " decontamination of people, animals, property, food and water." Section IV.G.4.a in the county plans. Niany parts of } 'll in all the ERPs assign particular reentry and a recovery responsibilities. In relation to decontamination, see, e.g., in the ' '
State ERP, (( !!!.C.3.f (operation of portable showers, decontamination
. of roads and structures), III.D.I.q (assessment of radiological damage to land and livestock), and III.D.3.c (management of waste from decontam-ination); in the county ERPs, Chatham i Ill.E.3.b (earth moving and washdowns). The contentiom do not address these and similar passages.
SIEDICAL CARE: Eddlemn Cantentions 57 C 7,56,57 C 8, and 63 4 These four contentions overlap a great deal. To give a clearer mse of s the whole of what they seek, we focus here on Contentien 57 C 7', view-ing the others as elaborations ofit, and overlooking their reduncancies. i 400 s
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Contention 57-C-7 has three main parts. The first alleges that there will not be enough hospitals to treat " radiation victims." Contention 565 elaborates on this by alleging that there are no plans to use hospitals which are more than 30 miles from SIINPP. The second part of 57 C-7 alleges, correctly, that the State ERP does not contain the plans the hospitals have for treating radiation victims. Contention 57 C-8 elaborates by alleging that in order to judge whether the evaluation criteria in NUREG-0654, s II.L, have been satisfied, the State ERP should include all the procedures and reference materials mentioned in j V.B.2 of the State ERP: maps locating hospitals, ad-dresses and phone numbers of hospital administrators, reports evaluating the capacities and needs of the hospitals, their plans for treating radiation victims, and the procedures for choosing hospitals and determining their needs. The third and last part of 57 C 7 alleges that the State ERP does not provide " training or protection" for emergency workers transporting ra-diation victims to hospitals. The contention cites the State ERP at 85, with the comment, "handwaving." Contention 63 and part of 56 allege that the ERPs fail "to establish care for radiation victims on a mobile basis." Contention 63 alleges that to establish such care, the ERPs should provide for equipping mobile units, for staffing them and training the staff, and for assuring that adequate staff wou!d be continuously available during a radiological emergency. Contention 63 cites as legal basis the footnote to the evaluation criteria in NUREG 0654, s II.L. We reject all of the e contentions except the first part of 57-C 7. The rejected contentions or parts of contentions either call for more than regulations and guidance call for or permit, or do not address the plans. We discuss the admitted portion of 57-C-7 after we discuss the other contentions and the rest of 57 C 7. In relation to the second part of 57-C-7, neither NRC regulations nor guidance even suggest that any ERP should contain either the plans hospitals have for treating radiation victims or the procedures and refer-ence materials - maps, phone numbers, reports, plans - mentioned in f V.B.2 of the State ERP: " Applicable supporting and reference docu-ments and tables may be incorporated by reference .The plans should be kept concise as possible. The average plan should consist of perhaps hundreds of pages, not thousands." NUREG-0654, at 29. Nei-ther do we see why the information referred to in j V.B.2 must be in the 3 When filed over 2 years ago 56 was aimed at the onsite plan it is noe resubmitted, unaltered, but me construe its resubmimon to mean that it es now intended as a contention about the ofrute plans-401
plans before it can be determined whether the plans conform to the eval-uation criteria in j ll.L in NUREG-0654. We would think that that determination could be made on the basis ofinformation now in plans. In relation to the third part of 57 C-7, the contention's citation to the State ERP at 85 apparently refers to items e-g on that page, which dis-cuss the training of personnel with medical duties. Citations to sections which provide for training are not much support for a contention which says the plans don't provide for training. The contention calls these passages "handwaving," but that word can hardly specify deficiencies in such a way as to make them the subject of admissible contentions. Fur-ther, 57 C-7's allegation that the State plan doesn't provide protection for personnel transporting radiation victims doesn't address the plans' many provisions for control of radiological exposure of emergency work-ers. See, e.g., f G of the State ERP. Finally, no NRC regulation or guid-ance requires the ERPs to provide for the mobile equivalent of what hospitals can provide for radiation treatment. The footnote which Con-tention 63 cites is not to the contrary. It says only that plans and services developed under statutes and public health guidance which predate NUREG-0654 "should be compatible" with the response plans for Harris. Contention 63 cites no passages from either the guidance or the statutes cited in the footnote which require the sort of mobile care Con-tentions 63 and 56 allege should be provided. We admit the first part of Contention 57-C 7, though in altered form. As we noted in our discussion of CHANGE's Contention 33 (at Tr. 868 69), we are barred by the Commission's decision in Southern Cahfor-nia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10,17 NRC 528 (1983) from considering in litigation, as 57-C-7 would have us do, whether medical services available in the region of Harris are in quantity adequate to deal with the number of people who, in a radiation accident at Harris, might be either contaminated and other-wise injured (" contaminated injured" in the language of NUREG-0654,
@ II.L1 or simply seriously injured by radiation alone. The Commission accepted the thesis in San Onofre that there are likely to be so few con-taminated injured that no arrangements beyond those already made under NUREG-0654, sj II.L.1 and 3, and 10 C.F.R. Part 50, Appendix E, f IV.E.6, need be made, and that those seriously injured by radiation alone are so unlikely to need emergency treatment that treatment for l them can be arranged ad hoc, going beycnd local services if necessary.
San Onofre, supra.17 NRC at 535-36.s 6 Here. then, is another reason why the mothie weren or such treatment. called ror by Comentions 63 and 56. is not required. 402
Therefore, we cannot admit the first part of 57-C-7 in the form in which it is presented. However, there is within that part of 57-C-7 some-thing like a " lesser-included" contention, namely, that the ERPs should at least show what medical services are available for those seriously in-jured by radiation alone. We admit this lesser included contention, and we do so on the basis of the same case the Applicants cite in opposing all the contentions on medical care. Although San Onofre bars us from deciding whether medi-cal facilities are quantitatively adequate, it requires that " emergency plans should include a listing of those local and regional medical facilities which have the capabilities to provide appropriate diagnosis and treat-ment for radiation exposure." San Onofre, supra,17 NRC at 536. Here l the Commission is speaking only of" individuals who have been subject-ed to dangerous levels of radiation and who need medical treatment for that reason." /d. at 535. The ERPs for Harris do have lists of hospitals which "will support the plant and the surrounding communities in the event of a radiological emergency." Section V.B.3 of the State ERP. However, neither the State ERP nor the county ones make clear whether these hospitals are prepared to treat severe radiation exposure per se. Section V.B.2 of the State ERP speaks only of " victims of radiological accidents." or " con-taminated patients," or " radiation accident victims." The county ERPs are no less ambiguous. See, e.g., the Chatham ERP, s V.B.3. Other aspects of the plans may indicate that the listed hospitals are prepared .only for " contaminated injured" patients. For example, Annex H, the Plan Cross Reference, refers to the pages among which these lists appear as intended to conform to the guidance of NUREG 0654, j II.L, but the only talk about lists in that guidance deals only with " con-taminated injured." Also, the " Radiation Accident Hospital Evaluation Check Sheet" which the State ERP sets out (at 67) does not appear capa-ble of unambiguously spotting those hospitals which are capable of treat-ing severe radiation exposure per se. l Perhaps the main thing required to resolve 57-C-7 as admitted is - as l ' with Contention 240 - authoritative clarification of the ERPs. How-ever, even if the lists in the ERPs are ofinstitutions which can treat radi-ation exposure, the lists may be incomplete: Section V.B.3 says that l the RPS maintains lists of hospitals at greater distances which will pro-vide backup, but San Onofre says the plans should include lists of local and regional hospitals with the necessary capabilities. San Onofre, supra, 17 NRC at 536. We note last that we do not admit that part of Contention 56 which calls for plans to use medical facilities which are further than 30 miles 403
from the Harris plant. Half of the hospitals listed in the State ERP are just that. EXPERIENCE AND TRAINING: Eddleman Contentions 212,124, and 243 Contention . !4 alleges that the planners have not been properly trained and cites as factual bases the planning deficiencies alleged in Str. Eddleman's other contentions. We reject this contention. The number of Str. Eddleman's admitted contentions appears to be too small to pro-vide an adequate basis for 212. Store fundamentally, however, this con-tention is premature. Unless and until it has been shown that Str. Eddle-man's emergency planning contentions have merit, there would be no practical reason to consider this contention. This contention could be reasserted when and if the developed evidentiary record provides a basis for it. Contention 124 alleges that the Applicants and the counties which overlap the plume EPZ lack the experience and technical ability neces-sary to plan for a radiological emergency and to implement protective measures in the event of such an emergency. We reject the contention. It offers not the slightest indication of what levels of experience and technical ability are practically or legally necessary, or of how the Appli-cants and the counties fall short of these levels. NRC regulations and guidelines set out standards and criteria for plans and preparedness, not for an applicant's or a county's experience. Of course, some regulations and guidelines do call for certain levels of technical ability, in communications, for example; but shortcomings in such abilities must be alleged with speciticity. Contention 243 alleges that since not all emergency response person-nel have been trained yet, the ERPs do not meet the planning standard in 10 C.F.R. } 50.47(b)(15), which says that " training is provided to those who may be called on to assist in an emergency." We reject this cortention also. The only deadline for completion of training is the natu-ral one implied by whatever date is set for the emergency preparedness exercises. What the NRC looks for in relation to training is commit-ment, as evidenced by adequate planning, and results, as evidenced by preparedness exercises, but not the mere completion of training by some particular date before the exercises. 404 e
EMERGENCY PREPAREDNESS EXERCISES: Eddleman Contentions 81 and 208 Contention 81 alleges that the ERPs have not been tested "or oth-erwise formally evaluated" - will not be tested "before the plant operates," and should be. Contention 208 adds that the ERPs "have not been tested under ad-verse weather conditions, e.g., snow, ice, fog, tornadoes or severe winds, or evacuation at the times most people are asleep (e.g., I am to 6 am)." We reject both of these contentions. They do not address relevant pro-visions in the ERPs, and they implicitly attack the regulations. For one thing, the ERPs are being " formally evaluated" by FEMA and the NRC Staff, and in this proceeding. But more, as the regulations make clear, a full-scale exercise of the ERPs will be conducted before the plant oper-ates at more than 5% of rated power. See j IV.F.1.b of Appendix E in 10 C.F.R. Part 50. But neither regulations nor guidance set out any deadline for the tests other than operation above 5% of rated power. Thus. that the ERPs for the Harris Plant have not been tested yet raises no litigable issue. Moreover, as the ERPs make clear, some of the annual exercises will be conducted in adverse weather, though no explicit mention is made of conducting them during tornadoes; some exercises will be conducted be-tween midnight and 6 a.m.; and some will even be unannounced. See {} VII.A.2-4 of the county ERPs. However, NRC regulations prudently rule out mandatory evacuation of the plume EPZ, an area of well oser 300 square miles. In our rulings on Contentions 81 and 208, we have taken the conten-tions at face value, as being about the planninb for the exercises. not their results. However, the contentions, especially 208, may be attempt-ing to reserve a right to file contentions on the results. Under the Com-mission's view of 10 C.F.R. l 50.47(a)(2), results of the exercises are not necessarily litigable in these hearings, but ) 50.47(a)(2) was declared invalid by the D.C. Court of Appeals in Union of Concerned Scientists v. NRC. 735 F.2d 1437 (D.C. Cir.1984). The regulation is still in effect while the Commission's petition for rehearing is before the Court, but if the Court's May 25 ruling becomes law, the Intervenors will have a chance to file contentions on the results of the exercises. l 405 4
PUBLIC EDUCATION AND INFORMATION: Eddleman Contentions 227, 228, and 229 These three contentions have largely to do with the emergency pre-paredness brochures mentioned in i IV.D.2.a of the State ERP. We defer ruling on 227 and reject the other two contentions. Contention 227 alleges that the brochure is not available yet and that the brochure therefore does not contain the information called for in sj ll.G.I.a-d of NUREG-0654. The brochure is now available. Its adequacy, the second issue 227 raises, is litigable, and has been litigated, most recently in Louisiana Power and Light Co. (Waterford Steam Electric Station Unit 3), ALAB 753,18 NRC 1321,1331 (1983), agg the derailedfindings of LBP-83-27,17 NRC 949 (1983). Therefore, as we did with CHANGE 2 (at Tr. 967), we defer ruling on 227. In accordance with the 30-day rule in this proceeding, and the dis-cussion in the telephone conference of July 12,1984 (Tr. 2203), Mr. Eddleman and the other Intervenors have until August 10,1984, to file revisions of their contentions on the brochure, specifying the respects in which the brochure is inadequate, and why. Contention 228 alleges that the Applicants must demonstrate that the information called for by s} II.G.I.a-d of NUREG-0654, and slated for the brochure, will be made available periodically to the public. We reject this contention. It merely paraphrases planning standard (b)(7) of 10 C.F.R. } 50.47 and evaluation criterion II.G.1 of NUREG-0654. The contention doesn't address any provision of the ERPs and thus could not, and does not, allege any deficiencies in the ERPs. In fact the State plan provides means for making the relevant information "available to the public on a continuous basis." Section IV.D.2 of the State ERP. Among the means is annual dissemination of emergency preparedness brochures. Id. Neither the syntax nor the intent of Contention 229 is easy to con-strue, but the contention appears to allege that the planning standard on public education and information (subsection (b)(7) of 10 C.F.R. 5 50.47) and the evaluation criteria under that standard ({ II.G of NUREG-0654) cannot be met unless the ERPs provide means to verify that the public has received and understood the education made available to it. We reject 229. The pl:nning standard and evaluation criteria the contention cites do not call for any program of verification. Rather, their emphasis is on making the information readily available. To this end, the cited standard and criteria call for a variety of means of disseminating information and a high degree of involvement in the disseminating by State and local response organizations. The contention cites, but hardly 406
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l addresses, the ERP provisions which are meant to conform to the cited standard and criteria. Thus the contention provides no basis for thinking 2 that the provisions might fall signiGcantly short of assuring that the public will be adequately educated. Such variety and involvement as the ERPs provide for appear to have such a high probability of successfully informing the public that a program of veri 0 cation would be only mar-ginally useful at best. I 4 INGESTION EPZ:
- Eddleman Contention 206 J
This contention alleges that the ERPs do not provide for sheltering milk animals and placing them on stored feed during a site emergency or a general emergency, contrary to the guidelines in Appendix 1 of NUREG-0654 at 1 12,1-16. We reject this contention for not addressing the relevant provisions of the plans. The ERPs provide both for placing cattle on stored feed (see f IV.F.5.b of the State ERP) and for the timing of such action (see ff IV.E.2.b, IV.E.4 and IV.F.4 of the State ERP). These provisions appear to conform to evaluation criterion II.J.9 of NUREG 0654 (except that they cite a revision of the FDA guidance
- cited by the criterion). Although the criterion and the plan provisions
; meant to conform to it are not presented in the graded emergency level t
format of the pages the contention cites from Appendix 1, and therefore I do not say what to do during a site emergency or a general emergency, it i would appear that the criterion and conforming provisions, by relying on l FDA recommendations, implicitly provide for the actions the Appendix is explicit about. The contention says nothing to the contrary. We note that NUREG 0654 nowhere speaks of sheltering animals. I i SIGNATURES AND MEMORANDUM OF UNDERSTANDING: Eddleman Contentions 57 C-18 and 200 These two contentions allege that the ERPs are incomplete because they do not contain the Memorandum of Understanding between the State and the Applicants (57-C 18) and because the signature pages (at lii iv) are not Giled out (200). The contentions conclude that therefore there is no assurance the plans can be implemented. We reject both of these contentions. They preffer no bases for think-
- ing that the Gnal form of the plans will not contain the Memorandum and signatures. To the contrary, the intent of.the planners to include these items is clearly shown by the inclusion in the ERPs of pages 407 l
l i i
i i 1 J 4 i I marked as being reserved for these items. htoreover, the existence in the plans ofletters of agreement between the county emergency manage-ment agencies and the Applicants (see Attachment 1, at 13, in each county ERP), and between Carolina Power and Light Company and the a Radiation Protection Section of the State's Department of Human } Resources (Attachment 1, at 129, of the State ERP), indicate that there j are no signiGcant obstacles in the way of drafting the Niemorandum and acquiring the signatures. I>lPLE>lENTING PROCEDURES: Eddleman Contention 213 a
! This contention alleges that since the ERPs do not contain imp!ement-l ing-procedures, they-do not contain suf0cient information about how 1 they will be implemented, and thus violate the requirement in 10 C.F.R. ,
- { 50.47(a)(2) that there be reasonable assurance they can be implement-l ed.
, We reject this contention as it stands, but there is within it, as there ! was within Contention 57-C-7, something like a lesser-included conten- ~
tion, which we admit. First, NRC regulations and guidance consider the implementing procedures to be separate from the plans. Section V of Ap- , pendix E to 10 C.F.R. Part 50 sets out requirements applicable to a i separate submission of the implementing procedures for the onsite plans. Evaluation criterion li.P.7 of NUREG-0654 calls for the titles of the offsite implementing procedures, not the procedures themselves, to l be listed in an appendix to each offsite plan. As we've noted before. NUREG-0654 says that the average plan "should consist of perhaps j hundreds of pages, not thousands." NUREG-0654, Appendix 1, at 1-29. i Second, a Onding that there is reasonable assurance that the plans can j be implemented is, under the regulation the contention cites,10 C.F.R. i { 50.47(a)(2), to be based largely on the plans, not the myriad details of . the implementing procedures: { 50.47(a)(2) says that the NRC will base its Onding on FEh!A findings, and that "a FENIA Gnding will pri-1 marily be based on a review of the plans." Implementability is a charac-l teristic of good plans, for even the best implementing procedures cannot
- l. . rescue an ill-conceived plan. Thus it is to the adequacy of planning that f all of the Commission's planning standards and evaluation criteria are '
directed, and it'is the adequacy of planning.that we're after in'this
- proceeding. The mechanical details _ implementing procedures largely
. consist of are almost never suitable for litigation. Contention 213-a
] points to no plan provision drafted in such a way that we would have to ,
; 408 3
i i 1 o
.2. .. , _ _ _ . , ~_ . , . -..u,..~ -_.__, _ _ _ , - . . . . _ - , , , . .--- - , _ - - , . .
look at the implementing procedures under it to determine whether there was reasonable assurance it could be implemented. Last, however, 213-a is admissible in one respect: stated so that it does not, in effect, attack the regulations, 213-a says that the plans should inccrporate the implementing procedures to whateser extent called for by tegulations or guidance. There are bases for admitting 213-a phrased this way: as we noted above, evaluation criterion II.P.7 calls for each plan to have an appendix which lists implementing proce-dures by title. None of the offsite plans for liarris have such an appendix. Annex H, the Plan Cross Reference, cites certain page num-bers in each plan as containing material tailored to criterion P.7, but all the citations are to sections entitled " Concept" or " Concept of Opera-tions." Judging from the Foreword to the ERPs (at vii), we imagine that the Applicants' argument against admitting 213-a as we've just construed it would be that criterion P.7, being guidance, does not set out a requirement, and that the goal of P.7 is met by the present form of the ERPs, namely, five parts consisting of - in the words of the Foreword
- detailed " State procedures" and " county procedures," " additional detail" in several annexes, and "the existence of emergency procedures at the State and local levels." Foreword to the ERPs at vii. Thus sepa-rate implementing procedures are not deemed necessary" (id.), and, the argument might conclude, afortiori, that an appendix listing unnecessary procedures by title is not necessary.
However, it does not appear that the ERPs are - or, given their length, could be - detailed enough to be implementing procedures, though they are, of course, in a more generic sense, " procedures." Moreover, though Annexes C-G are quite detailed, they deal only with notification. Last, if the emergency procedures the Foreword says already exist at the State and local levels have, in fact, the character of imple-menting procedures, then criterion P.7 calls for a list of them in appen-dices to the plans. Presumably the goal of P.7 is to assure not only that the implementing procedures are prepared in advance of plant operation above 5% of rated power, but also to assure coordination between the plans and the implementing procedures. Thus P.7 also calls for the ap-pendices to list for each procedure the plan section it implements. In sum, 213-a is admitted in the following form: either each offsite ERP should contain an appendix which conforms to evaluation criterion II.P.7 of NUREG-0654, or it should be demonstrated that such an ap-pendix is unnecessary because its functions are performed in some other way by the present form of the plans. l 409 I i l 1 1 l 1 l l I
3 1 PLAN MAINTENANCEt IDENTIFICATION OF LOCATIONS , OF CERTAIN PERSONS AND INSTITUTIONS: Eddleman Contentions 99 and 209 Contention 99, originally filed May 14, 1982, and now resubmitted unchanged, is confusingly drafted. Given its opening lines and the regu-lations it cites, one could reasonably conclude, as did the Applicants and the Staff, that 99 means to allege that the plans, both onsite and offsite, i do not contain provisions for keeping the plans up to date, especially for
~
keeping up to date information such as the locations of day-care centers, schools, disabled persons, emergency personnel, and the like. But one
- could also reasonably conclude that 99 means to say primarily that the listed categories of information should be in the plans, and secondarily that the information be up to date. This latter reading of 99 is suggested by Contention 209, which alleges that, "with a handful of exceptions," ,
t none of which 209 states, the information asked for in 99 still isn't in the plans. j We reject both contentions. In relation to the onsite plan they are i filed too late, and in relation to the offsite plans they are without f bases: they do not address the plan provisions on updating, s VII.F of
, the State ERP and li Vll.D of the county ERPs: and the regulations 99 l cites,10 C.F.R. } 50.54(t) and 5 IV.G of Appendix E to 10 C.F.R. Part 50, apply only to the onsite plan. We note that the plan provisions on 1 updating appear to conform to the applicable planning standard,10 3
C.F.R. 6 50.47(b)(16). Moreover, though 209 says that some of the in-formation requested in 99 is still not in the plans, it does not say what in-
- formation is not. It is therefore lacking in specificity.
SITE-SPECIFIC PLANNING: ! f Eddleman Contention 242 3 This contention alleges that occasional references in some of the ERPs to North Carolina nuclear power plants other than Harris, and North Carolina counties other than those which overlap the Harris plume EPZ, indicate that the site-specific planning required by various NRC regulations has been compromised - that "the SHNPP plan is a i copy of the McGuire plan," and that officials around SHNPP "have not l seen the plan yet or they surely would have caught these errors." The contention cites two such references, one in s IV.D.1 of the Chatham j plan, at 26, and the other in f VI.D.1 of the same plan, at 42: We reject this contention. A serious contention alleging failure to tailor plans to the particularities of the Harris site would have to show, 410 I' ) + r ~T' r- ' ' '~' 'r nm~ 'w"' *"+*'-++-'4~-- c-+ -r~~~r * -~ ~--- rw-'- " -'-- '
~ ~
for example, that the ERPs for Harris did not adequately take into ac-count particularities of the Harris site, such as the organization of coun:y governments around the plant, or the capacity of the road system around the plant. We might be concerned if one of the county plans simply copied a list of shelters or county agencies from the NicGuire plan'. But, as it is, all the contention suggests is that, in an attempt either to keep the plans for different North Carolina plants as parallel as possible, or simply to save time and effort, certain names have been repeated by mistake. Indeed, it would be surprising if the drafts-people of a new plan did not at least consult previously approved plans for other plants in the area. ONSITE E31ERGENCY PLANNING: Eddleman Contentions 151,157,103, and 137 These four contentions cover various aspects of the Applicants' onsite ERP. Contentions 151 and 157 were submitted on Stay 2,1983, in re-sponse to the filing of the onsite plan on hfarch 29, 1983. On November 1,1983, we deferred ruling on these two contentions until the parties had had the opportunity to comment on certain documents we asked the Applicants to file in connection with the deferred contentions. See our $1emorandum and Order, November 1,1983 (unpublished), slip op. at 4,6; and Tr. 778. The Applicants filed the documents in February 1984; and on April 3,1984 Nir. Eddleman filed amendments to the deferred contentions. We now rule on them. In its original form,151 alleged that the onsite plan did not conform to 10 C.F.R. Part 50, Appendix E, IV.E.4, which requires the onsite plans to make and describe " arrangements for the services of physicians and other medical personnel qualified to handle radiation emergencies onsite." On February 1,1984, the Applicants served on the Board and the parties a letter of agreement between Carolina Power and Light and three physicians for services in a radiation emergency. Thus, the onsite plan now conforms to the regulation Contention 151 cites. Nonetheless, Str. Eddleman submitted an " amended" 151. It is, how-ever, simply a new contention. It alleges that "it is not clear" either that the three physicians will be adequately trained, or that they are bound "to stay in the area near Harris" and, more generally, " bound by their agreements in the future." We reject amended 151. It offers no reason to think that the physicians' training might be inadequate, or that the agreement with them is not binding. We note that the agreement com-mits Carolina Power and Light to bear the costs of training the physi-cians. Last we cannot imagine that such a letter of agreement could bind 411 l
the three signers to remain in tie area of the Harris site for the life of the plant. In time, the duties of one or more of them will probably have to be assigned to others. These reassignments are provided for in (( 5.1.1 and 5.1.2 of the onsite plan, which name the officers responsible for negotiating and maintaining letters of agreement.' Contention 157 alleges that the onsite plan does not comply with NUREG-0737, Supplement 1, s 8.2.1.k. which requires that the design of the Technical Support Center (TSC) take "into account good human factors engineering principles." The principal basis of the contention originally was simply that the onsite plan gave no analyses of any human factors engineering in the TSC. On February 17,1984, the Applicants filed with the Board and the par-ties an eight-page document entitled " Summary of Design Standards and Criteria for the TSC Encompassing Human Factors Engineering," to which is attached a " furnishings plan" precise to the level of waste bins and coatracks. Despite the discussions in this document of such human factors topics as layout, noise control, instrument displays, and protective systems, Nir. Eddleman chooses to ignore the document in his " amendments" to 157. In them he does little more than assert that a TSC must be able to function in a real emergency. A contention which pays no attention to the principal document on its subject, a document drawn up for the sake of this proceeding, must be rejected. Contentions 103 and 137 were first submitted in 1982 on Nfay 14 and June 6, respectively. We deferred ruling on them because the onsite plan had not yet been filed. See our Niemorandum and Order, Septem-ber 22,1982, LBP-82-Il9A,16 NRC 2069, at 2105, 2109. Now, al-though we had ordered that new contentions on the onsite plan had to be filed, or old ones resubmitted or amended, within 30 days of receipt of the plan (see id. at 2073),103 and 137 have been resubmitted, un-changed, a year after the onsite plan became available. Nfr. Eddleman does not explain why contentions as tardy as these should be admitted. The lateness of 137 is accentuated by its allegation that the " Applicants' site emergency plan is inadequate because it does not exist." We reject 137. Contention 103 alleges that the onsite counting laboratory is not shielded from radiation well enough to assure that analyses of primary coolant can be done quickly enough for a timely declaration of a level of 7 The Appbcants claim that the letter of agreement is signed by the physicians m their capacity as officers of the corporation named in the letterhead, and that therefore the agreement would sunise even if one of the signers left the area permanca.tly. Apphcants' Answer at M Ho*eser, the only support for the Apphcants' claim is the letterhead. l 412 i f l [
emergency. Not only is this contention a year late, it proffers no factual basis for its claim. We therefore reject it.8 31 A PS: Eddleman Contentions 211, 250, 251, 252, 253, and 254 Up to now, we have been con:idering contentions ofr. Eddleman tiled or resubmitted in April of 1984. Five of the six contentions we're about to rule on, 250-254, were filed on Stay 10, shortly after the prehearing conference, with our leave. Contention 211 was filed before the other five. It alleges that the off-site plans do not include the operations and ingestion pathway maps called for by evaluation criteria II.J.10.a and b of NUREG-0654. During the prehearing conference, the Applicants claimed that the operations map was already in Annex H of the onsite plan and merely had to be moved to the offsite plan (Tr. 1000-01), and that since the map had been available since the onsite plan had been filed, any contention on the map was late-filed. Tr. 904, 905, 1107. Nonetheless, without decid-ing the timeliness issue, we gave leave to certain intervenors, including Nir. Eddleman, to file contentions on the map as soon as possible. Tr. 906, 1106-07. Below we briefly consider the timeliness issue but move on to consider all six contentions on the merits, rejecting all of them, but two only conditionally. The Applicants' argument that these contentions are inadmissibly late-filed is principally that the map or maps which will be included in the off-site ERPs are already in the onsite plan in a form in which State and local government agencies have concurred and thus hase been available to the Intervenors since late Alarch oflast year.' However, even the Ap-plicants were at one point mistaken about whether the maps were availa-ble yet. Before the prehearing conference last Slay, the Applicants argued in response to Contention 24 that the " Operations Ntap" was under development and was expected to be completed by September. Applicants' Response at 90. It wasn't until the prehearing conference 8 The statT argues that the contention "shows Mr. Eddleman's fundamental misunderstanding of the
.NRC's emergency planmns structure Emergency action levels are determined without takmg a sample of reactor core water . " staff s Response at 66 However, it would appear that emerger cy actmn levels can be determined by such a sample. thougi t not necenanly, Ser the onsite plan. Figure 41 1.
Banc Module 2.
' Mr. Eddleman m one place speaks as ir the Apphcants made a mistake to put the maps in the onute plan. See his May 10. 1984 Response at 1. However, the sery evaluation criteria on ah;ch Mr.
Eddleman rehes m these contentions namely llJ 10 4 and b of NLR EG-0654. call for thew maps to be m the onsite plans as well as the ofrsite. 413 l l l l 1 1
that the Applicants began to argue that the same map was already availa-ble and could be found in Annex H of the onsite plan. Tr. 1000-01. There is something to be said on both sides of the " lateness" ques-tion, which is a close one. In any event, we need not decide the lateness question, for all six of the " map" contentions are rejectable on the mer-its, and some are not vulnerable to attack on grounds of lateness. We discuss first those we reject unconditionally. Contention 252 alleges that it is "just unfathomable" why the parts of plume EPZ sub-areas B and C which jut into sub-area A, which includes the Harris site, are not included in sub-area A, and that they should be, "to assure protection of any persons in those areas in an accident." The contention is without bases. The contention suggests that people in sub-area A would receive greater protective actions than those in other sub-areas, and that sub-areas should be arranged as concentric rings or parts of such rings. However, there is no less planning for sub-areas B and C than for sub-area A. For each sub-area, the aim of planning is the same: that adequate protective measures be taken in an emergency. Thus, although it is conceivable that sub-area A would be evacuated and sub-areas B and C would not, there is no indication that if the greatest dose-savings for people in sub-areas B and C could be achieved by a given protective measure, that measure would not be taken, whether or not the same measure were taken in sub-area A. Moreover, NRC guidance does not suggest that the sub-areas are to be concentric rings, or parts thereof, any more than that the EPZs them-selves should be exactly 10 or 50 miles in radius. "The boundaries of the sub-areas shall be based upon tLe same factors as the EPZ, namely demography, topography, land characteristics, access routes, and local jurisdictions." NUREG-0654, Appeadix 4, at 4-4. As we noted at Tr. 982, State and local planning ofFcials are not obliged to supply a written justification of their boundary-making until they are faced with an admit-ted contention on the subject. Contention 254 is analogous to 252. It alleges that the areas within 10 miles of the Harris site but not in the plume EPZ have been excluded from the plume EPZ without justification. The contention points to two such areas but does not try to justify including them in the plume EPZ. The cor.tention is without bases. The regulation on the size of the plume EPZ says that it shall be "about" 10 miles in diameter, not "at least." Again, the burden rests initially on an intervenor to argue why a given area should be in the plume EPZ. Only then are planning officials required to justify the exclusion. Contention 254 does not meet this ini-tial burden. We note, however, that the Applicants have nonetheless of-fered justifications for the two exclusions the contention notes. See Ap-414
plicants' N!ay 29, 1984, Response to Eddleman Slap Contentions at 20 n.8. Besides noting the political and geographical boundaries which delineate the plume EPZ in the two areas the contention points to, the Applicants claim that the excluded areas are " essentially unpopulated." Id. Contention 253 alleges that the plans are deficient in routing some of the evacuees in sub-areas E F, and G toward Raleigh, because the pre-vailing winds at Harris are in that direction. The contention also alleges that evacuees should not be routed along the stretch of NC-55 which is outside sub-area G but roughly parallel to G's eastern boundary, for evacuees on this route would be exposed for 3.1 miles to plumes in pre-vailing winds. We reject this contention as being without basis, but not on grounds of the Applicants' argument, which, we think, is unsound. The Appli-cants have argued before, and now argue again, that people will not be directed to evacuate at the same time radioactivity is being released. Ap-plicants' Ntay 29, 1984, Response to Eddleman Slap Contentions at 18. For support, the Applicants cite j IV.A.4 of the State ERP: evacuation would be the chosen protective action only if evacuation could be "com-pleted prior to significant release and arrival of radioactive material in the affected area." However, the word "significant" in this passage is important. The passage does not rule out evacuation during any release. The point of protective measures is dose savings, and under some possi-ble scenarios greater doses would be saved by evacuating for 1 or 2 hours than by sheltering for several.'o We do agree with the opinion expressed in a case cited by the Appli-cants: "With significant shifts in wind direction always a possibility during the course of any evacuation, it would seem impractical and possibly imprudent to preselect evacuation routes based on potential wind direction." Merrepolitan Edison Co. (Three h1ile Island Nuclear Sta-tion, Unit 1), LBP-81-59,14 NRC 1211, !$88 (1981). However, our principal reason for rejecting 253 is that it fails to ad-dress the evacuation routes in their full context. They are not simply routes out of the plume EPZ, they are routes to public shelters. Alany evacuees from sub-areas E, F, and G are routed to Raleigh because it contains the public shelter most accessible to them. hforeover, other sub-areas are assigned to shelters more accessible to them than Raleigh is. Thus, if no one from E, F, and G evacuates to Raleigh, probably no one will. Thus, to assert that no evacuees from sub-areas E, F, and G to Hence the irnportance or advance calculation of sheltering factors. the sutnect of admated Contennon 57.C.10. l 415 l
i should be routed toward Raleigh is virtually to assert that no public shel-ter should be located in Raleigh, even though it is a major city, well out-side the plume EPZ, and accessible from E, F, and G by highways which become four-lane not far from the boundary of the plume EPZ. Only if Mr. Eddleman had shown that such an argument was admissible could Contention 253, which implies it, have a basis. Similarly, the contention's complaint about traffic on NC-55 views that traffic out of context also. It is easy to find many more examples of the same sort of routing. To take the most striking example, traffic on NC-751 in the eastern part of sub-area N is routed from the boundary of the plume EPZ back in toward the plant, for what appears to be 2.4 miles. The apparent explanation is that in order to reach their shelters in Siler City and Raleigh, evacuees on NC-751 must head south to US-64 Similarly for evacuees on the stretch of NC-55 which parallels the east-ern boundary of sub-area G: once the evacuees who head southeast out of G reach NC 55, they must turn north to reach US-401, the fastest route to their shelter in Raleigh. Besides, the stretch of NC-55 the con-tention is concerned about is outside the plume EPZ. The remaining map Contentions, 211, 250, and 251, at first appear to be about the map itself rather than the planning the map embodies. Con-tention 250 alleges that the map doesn't comply with evaluation critenon II.J.10.a of NUREG-0654 because it does not show the location of relo-cation centers and shelter areas, and is " virtually illegible." The conten-tion might have added that the map does not show the location of prese-tected sampling and monitoring points either, though these too are called for by the same criterion. Contention 251 argues analogously about evaluation criterion II.J.10.b of NUREG-0654, that the map doesn't show population by evacuation areas, though the criterion calls for such a showing. The contention might also have said that the map does not show population by 22%* sectors, though this too is called for by II.J.10.b. Contention 211 contains virtually the same allegations, but since it was filed before the prehearing conference, it bases the allega-tions not on the map but on the absence of any map in the plans. Con-tention 211 is thus superseded by Contentions 250 and 251, and there-fore requires no further consideration. Though 250 and 251 are phrased as contentions about the map, they are actually about the offsite ERPs, as becomes clear when they are stated thus: If this map is the only one which will be in the map annex of the offsite ERPs, Annex I, then the plans will not conform to criteria II.J.10.a-b. Thus,250 and 251, being about the offsite ERPs, are not vul-nerable to attack on lateness gro.mds. Even the allegation of illegibility, which, more than any other of the allegations in 250 and 251, appears to 416
be about the map, is about the plans, for only at the prehearing confer-ence did it become known that the operations map in Annex ! of the off-site plan was to be a copy of the arguably hard to-read map in Annex H of the onsite plan. As we show below, the Applicants' response to these contentions is not altogether clear and in its present form invites unnec-essary litigation. We try to avoid this litigation by asking the Applicants for another filing. Until the prehearing conference last May, it appeared that the Appli-cants were committed to pytting into Annex ! of the offsite plans maps which included all the information called for in the criteria which Con-tentions 250 and 251 cite - {} II.J.10.a and b of NUREG-0654. Annex
! contains a page which says that operations and ingestion pathway maps will be available later, the implication being that they will appear in Annex 1. The Applicants' April 28,1984, Answer to Contention 211 ap-peared to affirm that such maps would be in the plans, for, among other things, the Answer said that "a commitment has been made that the pro-visions of NUREG-0654 [ referring to (( !!.J.10.a and b] will be met,"
and the Answer quoted those provisions. See Applicants' Answer at 89 90. Had the Applicants at that point simply said that all that remained to do was to make legible copies of certain maps in the onsite plan and place the copies in the offsite plan, there would have been no, or little, occasion for 250 and 251, for as the Applicants pointed out then (and again in their response to 250 and 251), all the information called for by
}} II.J.10.a and b is in maps in the onsite plan. One could have wondered only whether they intended to include the ingestion pathway map prom-ised by Annex 1. They argued that j} II.J.10.a and b did not, on their faces, call for such a map, but they did not say they would not follow through on the promise in Annex ! to include an ingestion pathway map.
Now, however, the Applicants could be read to be arguing that the map in Annex H of the onsite plan, which contains only some of the in-formation called for by (( II.J.10.a and b, is all that must, or will, appear in Annex 1: In their response to 251 and 252, they argue that all that remains to be done is to put a copy of the Annex H map into Annex 1. They also argue that Contention 251, Ly not calling for population by 22%* sectors, "apparently concedes" that such information is not expect-ed to be in the offsite plans. We suppose also that the Applicants would still argue that }{ II.J.10.a and b do not call for any map of the ingestion pathway to be in the offsite plans. We do not understand why the Applicants have apparently backed away from their earlier commitment to follow (( II.J.10.a and b. We do not fm' d persuasive their arguments that certain map information needn't be in the offsite plans. Contention 251 does not concede that 417
.. . . .. = . - _ - . . -- .-. ----- . . . - . - _ - _ .
i i j population by sector need not be in the offsite plans. Indeed,251 quotes the criterion which says such information should be in the offsite plans. Also, we do not agree that f II.J.10.a does not call for at least one inges- , tion pathway map. It calls for showing the locations of relocation centers
- and shelter areas, and, as the Applicants themselves point out, that in- ,
formation cannot be placed on a map of the plume EPZ. Applicants' Re-sponse to Eddleman Map Contentions at 12 n.5. The Applicants, in their response to 250 and 251, resist Mr. Eddleman's insistence that the information be not merely available but in the plans. However, his insistence is arguably in accord with the distinction in } II.J of l NUREG 0654 between maps which are to be in the plans (see (( II.J.10.a and b), and those to which the plans need only refer (see
- f II.J.I1).
Litigation over what maps are and are not to be in the offsite plans - a purely mechanical question - can and should be avoided: We reject Contentions 250 and 251 on the condition that the Applicants reafDrm in writing their April 28 commitment (at 89-90 in their Answer) to in-clude in Annex I of the offsite plan all the map information called for by j (( II.J.10.a and b, in legible form prior to fuel loading of the facility.
-1 i l j CCNC'S REMAINING CONTENTIONS I
i At the prehearing conference, we admitted parts of CCNC Conten-4 tions 2, 5 and 8. CCNC's remaining nine contentions are rejected for the reasons assigned below. J
- Contention 1 i j The contention is drafted in a rather confusing manner, but its thrust
- appears to be that, under the ERPs, evacuation decisions will be too long delayed. The contention misconceives the plans and their relation- !
I ship to the Applicants' Emergency Classi6 cation System. Under that sys-i tem, an evacuation recommendation need not await a full scale emer. gency. Furthermore, evacuation decisions are to be made by the local of0cials, based on EPA protective action guidelines. , 1 ? Contention 3 Appendix G to the ERPs reDects considerable planning for an emergency at Jordan Lake. Little, if any, more advance planning could l be done. It may well take more time to evacuate Jordan Lake on a I ,' 418 a 1 a 1 i
- l 1
- , __. __. _ . .. ~ ,--_- _ . --._. -_ - _ . . _ - - . . , _ _ - , , . _ _ _ _ _ . _ - , _ . - - ~ . _ . _ _ -
summer weekend than other parts of the EPZ. NRC regulations impose no time limit on evacuation. Local otTicials would hase discretion, in such circumstances, to order the lake evacuated first. Contention 4 The ERPs in fact contain a much greater communications capability than is alleged in this contention, as described in the Applicants' response. Contention 6 CCNC may participate as a Joint Intervenor under EPJ 3. Contention 7 The contention ignores the primary means of notification, sirens, as described in the plan sections cited in the Applicants' Response. Contention 9 This contention challenges the adequacy of medical services. It is barred by the Commission's decision in San Onofre, supra. Contention 10 This contention, like Contention 7 above, ignores the siren notifica-tion system. Contention 11 This very broadly drafted contention lacks the requisite specificity and does not give adequate notice to the opposing parties. Contention 12 This contention contains two basic allegations - that the EPZ is not sufficiently " rationalized" and that there should be evacuation planning for areas outside of the EPZ. Both impermissibly attack the EPZ rule.10 C.F.R. } 50.47(c)(2). Local officials must actually consider the factors listed in the rule in drawing the EPZ boundary. However, nothing re-quires them to " rationalize" their work in writing. Evacuation planning is not required outside the 10 mile EPZ. 1 419 l l
- . . . - , . - . . _ . -- . .. -_ _ -- - . ~ - - , . -. -. -
4 4 9 l .4 EMERGENCY PLANNING JOINT (EPJ) CONTENTIONS 4 At the prehearing conference, we admitted EPJ Contentions I (snow and ice) and 2 (evacuating people without cars). We also indicated that we would draft and admit several additional EPJ contentions in certain 4 areas. These additional EPJ contentions are set forth below, coupled with a listing of the Intervenors who will be deemed co-sponsors of the contention and a tentative designation of a lead intervenor, at least for i discovery purposes." If the parties wish to designate another intervenor as the lead, they should notify the Board and parties to that elTect by August 10, 1984. The contentions leading to an individual Intervenor's 1 designation under the EPJ contention are now superseded.
! EPJ 3 i
The number of volunteer workers - such as members of volunteer , police, rescue, and fire departments - who would respond to an alert is , extremely questionable; plans should be based on a response rate of no i greater than 50% in organizations in which no attention has been given to composition which would avoid conflict between organizational and ] family responsibilities. j Similarly, present planning assumes that teachers will leave their cars and families in the area and supervise students on the bus and in the 4 shelters. This is an unreasonable and unrealistic demand on teachers. J Co-sponsors: Dr. Wilson - 7f, 8g,12(8) CHANGE - 13
! CCNC - 6 J
Lead Intervenor: CCNC (Conservation Council of North Carolina) EPJ 4 - Evacuation of Schools Section E.4.d of State Procedures (at 47) is deficient because -
- (a) Fifty percent of school bus drivers are high schooljuniors and j seniors (as young as 16% years). They should not be expected to perform as emergency personnel without explicit and specific
{ authorization from their parents. Even with such authorization
- j. they should not be trusted to perform in emergency situations.
l 13 We have' not designated Mr. Eddleman as a lead intervenor during discovery because or his commitments in the sarcty heanng. we do not mean to preclude some lead role ror him at the hearing stage. s J 420 q. 4 i 4 1 i
,. , e , - _.- - - , , . ,,.n.,, , , , . . , . , , -, r-, ,,, , , , , .- . , , . - --,,. -, ,-,
i 1 j i (b) Adult bus drivers have minimal education and are paid very l low wages. They cannot be trusted to put their jobs above ! family obligations or to perform adequately in emergency situations. (c) In normal operation, each bus makes two runs each day. Thus. two round trips to the shelter sites would be required. (This j factor was not considered in traffic control plans or evacuation i time estimates). Students who do not normally ride buses will ! be an extra burden, requiring even more round trips. 4 (d) Most parents would demand to pick up their children at i school. The chaos at every school in the area would require all local law enforcement ollicers and several county officers to i contain. This factor is not mentioned in the plan. i Co-sponsors: Dr. Wilson - 8 Mr. Eddleman - 219 (last paragraph), 222 (last two sentences), 230
- j CHANGE - 26, 29.
Lead Intervenor: CHANGE (Chapel Hill Anti-Nuclear Group 4 Effort) J l EPJ Transportation for the Nonambulatory Section E.4.b of State Procedures (at 47) is deficient because there is no listing or mechanism ofidentifying homebound nonambulatory peo-pie. Most ambulances and rescue squad vehicles are not adequately equipped to meet State standards for transporting hospitalized patients. i A sufficient number of vehicles equipped adequately to transport the nonambulatory from hospitals and homes will not be available. Co-sponsors: Dr. Wilson - 7
- Mr. Eddleman - 262, 263( A) ;
} Lead Intervenor: Dr. Wilson
, For ease of reference, we include below the texts of the joint conten-l tions admitted during the prehearing conference.
i 3 421 f J 4
. . _ __ .. _. . .a . . ._ _
i EPJ-l - Evacuation in Snow and Ice Insufficient consideration has been given in the offsite emergency plans to the effects of severe snow and ice conditions on evacuation times and/or capabilities to clear evacuation routes. Section IV.E.8 of the State plan (at 50) is deficient because the State does not have enough snowplows in this area to effectively clear the roads of snow or ice in a reasonable amount of time. Co-sponsors: CHANGE - 3, 32(1) Dr. Wilson - 14,12(7) 4 CCNC - 5 } Lead Intervenor: CCNC EPJ Transportation for People Without Cars Section IV.E.4.e of the State plan (at 47) is deficient because it provides no estimate of the number of people without transportation, (Applicants' estimate of 240 families in evacuation time study (at 3-2) seems far too low), no suggestion as to how people without transportation would get to pickup points, and no criteria for determining when and where they would be " established as required." Co-sponsors: Dr. Wilson - 9 CHANGE - 28 Lead Intervenor: CHANGE a RADIATION MONITORING CONTENTIONS Applicants' Response to CHANGE 7 states that the contention " mis-reads the availability of State teams, ascribes a role to those teams which is not theirs alone, ignores the means available to relocate the teams, mistakenly assumes that field monitoring teams should not be required to relocate and ignores CP&L's considerable assessment capability early in an accident." The Board agrees that there is no asserted basis for this contention and admission is denied. CHANGE 11 is redundant to CHANGE 7 and this contention has the same deficiencies. Admission is denied since no basis in terms of roles of the RPS monitoring teams in the overall emergency response is as-serted. i 422 4 1 j _ ~ ._ _ __ _ _ ,_
The lack of focus and clear bases for both parts of Wilson Contention 2 were brought out at the prehearing conference (Niay 1,1984), at Tr. 876-84. Admission is denied because of those deGciencies. WILSON CONTENTIONS 6 AND 12 These are the only individual contentions on emergency planning that are still pending. Contention 6 alleges that j IV.E.4.a of the State ERP (at 47) is deficient because it calls for the use of commercial buses, and yet there are no commercial buses in the plume EPZ and no arrangements to use commercial buses from outside the EPZ. As came out at the prehearing conference, the word " commercial" has been removed from the cited section. Tr. 987. Thus, there is no need to consider this contention. Cf. our rejection of CHANGE 28. Id. Tr. 835-39. Contention 12, which has many subparts, focuses on the evacuation time estimates. For the reasons given at Tr. 990-93, we are not treating contentions on the estimates as late filed. As to the subparts of this contention, (b)(7) and (b)(8) have already in effect been admitted as parts of one or another of the joint contentions. Subpart (b)(4) is either a cross-reference to Wilson 8 (which is superseded by EPJ-4, or, by speaking only of" school problems," too vague to be litigated. We admit subparts (b)(2) and (b)(3). We ourselves do not see the grounds for assuming that families with more than one car would evacuate in only the best of their cars. We would also like to know how it was estimated that only 240 families in Wake County exclusive of Raleigh are without cars. We reject the remaining subparts of Contention 12. BrieGy,12(a) gives us no basis for doubting the State's letter of review and concur-rence, found at the end of the Evacuation Time Estimates. Contention 12(b)(1) refers to the backup system of notification, but gives us no reason to think that the 15-minute notiGcation assumption is unrealistic when made about the primary notincation system, the siren system described in an annex of the plans. It's not clear what sort of validation of NETVAC Contention 12(b)(5) would call for other than full-scale evacuation of the plume EPZ. Storeover, though (b)(5) says there is no reason to accept the model's predictions, (b)(5) does not address the many reasons proffered by 5 2 of the Estimates. Subpart (b)(6) does not address the plans. Sections V.5.b-e of the State ERP clearly subordinate decontamination to the need to evacuate quickly. As to 12(b)(9), we know of no requirement that the Estimates discuss alternatives to NETVAC, and (b)(9) doesn't point to any defect in NETVAC. Last, 1 423 l l l
t 12(b)(10) alleges that there is no justification given for the plotted points in Figures 7-1 to 7 3 of the Estimates, but we would assume that the points were determined by the NETVAC simulation. DISCOVERY ON CONTENTIONS ADallTTED BY TIIIS j ale 5tORANDUSI AND ORDER
- Discovery on the contentions we now admit is open. In the telephone conference of July 2,1984, we established an earlier tentative schedule for discovery and summary disposition motions, on the assumption that these rulings would issue about July 20. These rulings are issuing about 2 weeks late, and we are adjusting the schedule to compensate for that, as follows
- ,
Discovery Opens August 2,1984 Last day for filing discovery requests October 8,1984 Last day to respond to requests October 31, 1984 { Last day to file summary disposition motions December 21, 1984 We are adopting the foregoing schedule on a tentative basis. Any party who wishes to request changes should file a proposed change and a brief statement of the reason for it by August 13, 1984. Bear in mind that, as the Board stated in the telephone conference (Tr. 2200-01), there will be no tolling of the times for discovery on emergency planning because of the safety hearings. PETITION FOR WAIVER OF NEED-FOR POWER RULE On June 30, 1983, Mr. Eddleman filed a " Petition Under 10 C.F.R. f 2.758 Re Alternatives and Need for Power Rule." Responses in oppo-sition were subsequently received from the Staff (August 26,1983) and Applicants (August 31, 1983). Certain additional documents were re-ceived thereafter. The Board has concluded that Mr. Eddleman's petition must be denied. The formal order of denial, accompanied by a statement of our reasons, will be included in our Partial Initial Decision on envi-ronmental issues. We are announcing our basic conclusion on the peti-
- tion at this point in order to facilitate planning by the parties for the coming months.
424 i i-
l I l 1 l UPCOnllNG TELEPHONE CONFERENCE CALL The Board is scheduling a telephone conference call for Friday morn-ing, August 10,1984, at 11:00 A.M. This may be the on(v noticcyou will l receive of the call (1) We expect to rule on the Applicants' motion for reconsideration with respect to Joint Contention IV; the obligation to file testimony on that contention by August 9,1984, is suspended i' pending that ruling. (2) We will discuss the Applicants' motion of July 27, 1984, concerning ex parte extension requests. The ott.er parties need not respond in writing to that motion; they can be heard on the tel-ephone. (3) We will also discuss the status of Mr. Eddleman':s diesel generator contentions and possible next steps in that regard, in the context of the scheduling information provided to the Board and parties ,'
- by Mr. O'Neill's letter of July 31, 1984. (4) We ask the parties to look I
ahead to August 20, 1984, for any other matters requiring telephone discussion because the Board will be unavailable during the week of August 13." FOR THE ATOMIC SAFETY AND j LICENSING BOARD 1 i, Glenn O. Bright (by JLK)
! ADMINISTRATIVE JUDGE James H. Carpenter ADMINISTRATIVE JUDGE l
James L. Kelley, Chairman ADMINISTRATIVE JUDGE J .
! Bethesda, Maryland August 3,1984 j
a i f UThe Board espresses its apprecianon to its Law Clerk, steven Crockett, for his able assistance in the j' preparat:on of this Mernorandur.: and Order. I 425 i
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Cite as 20 NRC 426 (1984) LBP 84-30 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Lawrence Brenner, Chairman Dr. George A. Ferguson Dr. Peter A. Morris in the Matter of Docket No. 50 322 OL LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1) August 13,1984 The Licensing Board denies a petition, pursuant to 10 C.F.R. @ 2.758(b), for exception to the regulations eliminating the financial qualifications review of electric utilities in operating license proceedings. In the alternative, the Board denies admission of an untimely financial qualifications contention. The Board also denies certification of the issue to the Commission. RULES OF PRACTICE: WAIVER OF REGULATION A petition for waiver or exception to the Commission's regulations, pursuant to 10 C.F.R. f 2.758(b), should only be granted in " unusual and compelling circumstances." Northern States Power Co. (Monticello Nuclear Generating Plant, Unit 1), CLI-72-81,5 AEC 25,26 (1972). 826 w y
4 1 1 FINANCIAL QUALIFICATIONS: WAIVER OF REGULATION in order to show that the rule precluding consideration of a utility's financial qualifications in an cperating license proceeding should be waived in a particular proceeding, the party petitioning for waiver must
'show that the electric utility cannot recover its costs through the ratemaking process. Proposals to disallow a portion of a utility's costs are not a sufGeient basis for the waiver of regulations because the out-come of such proposals is speculative.
FINANCIAL QUALIFICATIONS: WAIVER OF REGULATION l Absent evidence that a State rate commission is systematically denying i a utility recovery of its costs, disallowance of construction related costs is not an appropriate basis for waiving the financial qualifications regula-tions in an operating license proceeding. 1 FINANCIAL QUALIFICATIONS: WAIVER OF REGULATION A party seeking waiver of the financial qualifications regulations must make a primafhcie showing that the utility has been denied recovery of costs for safe plant operation. CONTENTIONS: LATE FILED Good cause for the late filing of a contention, which is based on a re-cently issued document, does not exist when the information contained in that document was publicly available at an earlier date. CONTENTIONS: LATE FILED With regards to the standards for the admission of a late filed conten-tion, a party cannot assist in the development of a sound record unless the contention presents a significant, triable issue. i i 427
I
/ i B
k
, MEMORANDUM AND ORDER DENYING SUFFOLK COUNTY AND THE STATE OF NEW tn YORK PETITION FOR EXCEPTION FROM REGULATIONS 2 PREC1UDING FINANCIAL QUALIFICATIONS CONTENTION AND MOTION FOR CERTIFICATION TO TIIE CO3IMISSION ,.
I. BACKGROUND At the July 5,1984 prehearing conference, this Board established a -
- schet.ule for hearings on the only issue still pending before us - the s N '
reliabiity of the emergency diesel engines.' Discovery has already been complited in this proceeding. The hearing will commence September 5. The other Shoreham Licensing Boards are even further along procedur- y ally. The Board chaired by Judge Miller began hearings on the issue of emergency power sutTicient for low-power testing on July 30. Those
', hearings were completed on August 7 with the exception of possible
, hearings on one sub-issue. The Board chaired by Judge Laurenson, ,
which is hearing offsite emergency planning issues, is expected to com-piete its hearings in August On July 3, Intervenors $affolk Conanty ph the State of New York: filed the following financial qualifications contention, pursuant to 10 g C.F.R. 2.714 of the Commission's regulaticas. (a) that Long Island Lighting Company ("LILCO") is not Gnancially qualined to . engage in the activities authorized or to be authorized by the operating license ! (including a " low power" license) which LILCO is seeking for the Shoreham Nucle. ; ar Power Plant ("Shoreham"), in accordance with the Commission's regulation 5;
,, (b) that LILCO has failed to demonstrate that it possesses the Gnancial quah0 cations to carry out, in accordance with the Commission's regulations. the operation of the Shoreham plant; and (c) that LILCO has failed to demonstrate that it possesses or has reasonable assurance of obtaining the funds necessary to cover estimated opera.
, tion costs for Shoreham plus the costs of permanently snutting the facihty down and t maintaining it in a safe condition.
? Since Commission regulations preclude ai dnancial oualifications review N m ,#
of an electric utility in an operating license proceeding,3 Intersenors '
+
\ -(, i i This schedule is also set tortJ in 'rie Board's conarma:ory order or Jaly 17,1984 (unpubhshed), shp op. at 6.
2
-]
New York is participating as a iw:rninental party pursuant 9.10 C F.R. i 2.715(ct For case of refer. \t ence we will rerer to the County and the state as "Intervenors" proposing the financial quahfications # contention. 1 3 section 2.104(c)(4) or 10 C F R. states that "the issue or financial quah6 cations shall not be consid-ered by the presiding officer in an operating hcense hearing if the apphcant is an electric utahty." See ( g (Conturuem 128 t
= -)
.l A
s I i
i have petitioned that an excepticn be made to those regulations, pursuant i to 10 C.F.R. f 2.758(b). Section 2.758(b) permits exception to a regulation when application
- of the regulation to a particular proceeding would not serve the purpose for which the regulation was adopted. Intervenors assert that the applica-tion of the financial qualifications regulations to this proceeding would serve "no purpose" and that "LILCO's impending financial collapse"
- undermines the basic presumption behind these regulations
- "the as-sumption that a public utility has the financial strength to engage in the activities for which it seeks a license from the Commission."* In support of'this assertion Intervenors have filed the affidavit of Michael Dirmeier. Intervenors also request that this Board certify the issue to
- the Commission, pursuant to 10 C.F.R. (( 2.718 and 2.730, if it should , 1 deny the petition for exception.
! Both LILCO and the NRC Staff oppose admission ofIntervenors' con-tention. Both assert that it is inexcusably late and that Intervenors have not shown that the balance of factors for admitting a late contention weigh in Intervenors' favor. LILCO further believes that the petition for exception should be denied because Intervenors have failed to make a
- prima facie ' showing that the rules would not, under special circum-
- stances in this proceeding, serve the purpose for which they were intend-
. ed. LILCO also opposes certi6 cation of the issue to the Commission. For the reasons stated herein, this Board finds that Intervenors have not made a primafacie showing that application of the financial qualifica-tions regulations to this proceeding would not serve their purpose. In addition, we find that Intervenors' motion is inexcusably late and that the balance of factors do not weigh in favor of admission of the conten-tion, even if an exception were permitted. We further find it unnecessary
- to certify the issue to the Commission, and deny Intervenors' motion to i
that effect. II. JURISDICTION
- Intervenors have filed their petition before this Board and the Licens-l ing Board chaired by Judge Miller. The Miller Board was established on f
)
~ aho 10 C.F R. Part 2. Appendix A, i %(!!. and 10 C.F R. 66 50.33tn. 50.40lb) and 50 57(a). These
, regulanons remain in efrect for operauns hcense apphcanons until the Commission Onahres the new 2
- rule ehminaung the Gnancial quahricauorts review. Financial Qualificauons statement or Pohey. 49 Fed.
. Reg. 24,111 Uune 12.1984).
- Memorandum in support of Motion of sutTolk County and the state of New York ror Leave to File a t- Contennon on LILCo's Financial Quahticanons to operate shoreham, for an Exception from Commis-
; sion Rules, and ror Certificahon to the Commission [ hereinafter Intervenors' Memorandum) at 23 429 i
i l l 4 I J i
L s March 30,1984, solely to hear and decide LILCO's " Supplemental Motion fo i.ow Power Operating License," dated March 20,1984. See l Notice,49 Fed. Reg.13,611 ( April 5,1984). The subject of thtt motion is LILCO'r nuposal to provide backup emergency electrical power suffi-cient to support low power operation without the need for the emergency diesel generators (EDGs). The issue of the reliability of the Shcreham EDGs is pending for litigation before this Board. The question of wheth-er the Commission's rule precluding the consideration of financial qual. ilicatioris as a prerequisite to issuance of an operating license should be waived in the case of Shoreham does not arise out of LILCO's supple-mental motion for low power. The Miller Board was not granted jurisdiction to hear all issues that could affect the decision of whether a low power license should be authorized.- Rather, as just described, it was established only to hear and decide issues relating to the acceptability of LILCO's proposal to provide emergency electrical power without reliance on the EDGs.5 This Board pcssesses residual' licensing board jurisdiction over operating license )
- issues not otherwise delegated to either the Miller Board, or, in the case I of emergency planning issues, to the Board chaired by Judge Laurenson.
Accordingly, we have jurisdiction to rule on the County's petition, filed under 10 C.F.R. l 2.758, for an exception to or waiver of the Commis-
, sion's rule precluding litigation of the financial qualifications of LILCO to operate Shoreham. The Miller Board ' agrees that this Board is the i proper one to rule on the County's petition for an exception. )
III. PETITION FOR EXCEPTION TO FINANCIAL QUALIFICATIONS REGULATIONS Section 2.758(b) of the Commission's regulations permits a regulation to be waived or an exception rnade for the particular proceeding. The sole ground for petition for waiver or exception shall be that special circurnstances with respect to the subject matter of the particular proceeding are such that application of the rule I or regulation (or provision thereoD would not serve the purposes for which the rule or regulation was adopted. 5 Whether any questions involvins LILCo's financial situation are relevant to consideration of LILCo's proposal ror emergency electrical power from sources other than the EDGs. because the proposal involves a request for waiver of a General Design Cr:termn. is not a matter before us. That issue is properly before the Miller Board. and has been pursued bebre that Board by separate pleadings from the parties. 430
An af0 davit which specifies the speci0c aspect of the proceeding as to which application of the rule would not serve its purpose must be sub-mitted with the petition. Id. Special circumstances justifying the waiver or exception should be stated with particularity. Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant, Units I and 2), LBP-82 Il9A, 16 NRC 2069, 2073 (1982). If a licensing board Unds that a petitioner has made a primafacie showing that the regulation should be waived or an exception granted, the question is then directly certined to the Commission.10 C.F.R. { 2.758(d). The petition for waiver or exception should be granted only in " unusual and compelling circumstances." Northern States Power Co. (Monticello Nuclear Generating Plant, Unit 1), CLI-72 81,5 AEC 25,26 (1972). Intervenors assert that LILCO's current financial dif0culties constitute "special circumstances" warranting waiver of the financial qualifications regulations in this proceeding. Intervenors' Memorandum at 23. As proof of LILCO's " dire financial straits," Intervenors point to (1) I LILCO's cash shortage (Dirmeier Affidavit at 8); (2) the fact that f
"[nleither Moody's, Standard & Poor's Corporation, nor Duff & Phelps considers any of the Company's securities to be of investment grade" (id. at 9); (3) the institution of a prudency investigation by the New York Public Service Commission (PSC) and the associated $1.8 billion proposed disallowance of Shoreham-related construction costs * (id. at 10); and (4) the possible acceleration of $500 million in outstanding debts related to the Nine Mile Point default (id. at 13). From these cir-cumstances Intervenors conclude that "it cannot be determined that LILCO is financially qualified to operate Shoreham at any power level."
l Id. at 2. The Commission originally proposed to eliminate the review of finan-cial qualifications in operating license and construction permit proceed-ings for electric utilities in 1981. Financial Qualifications; Domestic ! Licensing of Production and Utilization Facilities,46 Fed. Reg. 41,786 I (August 18,1981). This proposal was premised on the conclusions that l a financial review did little to ideniify health and safety problems and l that the regulated status of electric utilities generally assured recovery of l reasonable costs. Id. The final rule eliminating this review was adopted l ' in March of 1982. Elimination of Review cf Financial Quali0 cations of Electric Utilities in Licensing Hearings for Nuclear Power Plants, 47
- Fed. Reg.13,750 (March 31,1982).
6 on Feeruary 10.1984. the stafr or the New York Pubbe service Commission filed tesumony recom-mending that only s2 296 bilhon, oran esumated overall cost ror shoreham or s4 I billi on, be included in the rate base when shoreham becomes operanonal Dirmeier Amdavit at 10. 431
On February 7,1984, the Court of Appeals for the District of Colum-bia Circuit remanded the rule to the Commission. New England Coalition on Nuclear Pollution v. NRC, 727 F.2d 1127 (D.C. Cir.1984). While the Court did not vacate the rule, it found that the rule was not adequately supported by its stated basis. In response to the Court's concerns, the Commission proposed a new rule which would eliminate the financial qualifications review only at the operating license stage. Elimination of Review of Financial Qualifications of Electric Utilities in Operating License Reviews and Hearings for Nuclear Power Plants,49 Fed. Reg. 13,044 (April 2,1984). In its June 12,1984 Policy Statement, the Com-mission stated that the rules eliminating review of financial qualifications in operating license proceedings would remain in efTect until the new rule was promulgated. Financial Qualifications Statement of Pof y, 49 Fed. Reg. 24,Ill (June 12, 1984). The purpose of the financial qualifications regulations, applicable to electric utilities, is to eliminate Staff review of the issue in operating license proceedings on a case-by-case basis. Elimination of Review of Financial Qualifications of Electric Utilities in Operating License Reviews and Hearings for Nuclear Power Plants,49 Fed. Reg.13.044, 13,045, col. 2 (April 2,1984). The Commission clearly stated that the basis for this exemption was that a utility's regulated status ensured that it recovered reasonable costs of operation, assuming prudent manage-ment. Costs to operate a nuclear power plant in conformance with NRC regulations are presumed to be reasonable and thus recoverable through the ratemaking process. /d. The Commission's presumptions were not made in a vacuum. They rest on the line of Supreme Court cases, such as EPC v. Hope Natural Gas Co., 320 U.S. 591 (1944), which allow a regulated electric utility to recover reasonable costs. 49 Fed. Reg. at 13,045, col. 2. Practical experi-ence also supported the Commission's presumption. Under the Gnancial quabfications reviews at the operatmg heense stage conducted under the original rule, the Commission has found in every case that the state and local public utility commissions could be counted on to provide all reasonable operating costs to licensees, including costs of compliance with NRC requirements associated with safe plant operation. As a result, electric utshties applying for operat. ing licenses have invariably been found Gnancially qualined. Id., col.3. We find that Intervenors have failed to make a prima facie showing that such circumstances exist in this case which would undermine the Commission's assumptions in promulgating the financial qualifications regulations. Admittedly, the Dirmeier Affidavit cites with particularity 432
facts which reflect darkly on LILCO's Gnancial picture. While the facts on which Intervenors rely - the Nine Mile Point default, problems in obtaining external financing and the institution of prudency proceedings
- may support the contention, they are not dispositive of the petition for exception.
In order to show that the regulations should be waived, Intervenors would have to show thai LILCO cannot recover its operating costs through rate regulation. Intervenors have indicated that the New York Public Service Commission has instituted a prudency investigation and that its Staff has proposed to deny $1.8 billion in Shoreham-related con-struction costs. Yet this proceeding has not been concluded and thus its outcome remains wholly speculative. The Commission has already ex-pressed disfavor with speculating on the outcome of ongoing proceedings to determine the application of specific regulations to a proceeding. Long Island Lighting Co. (Shoreham Nuclear Power Station Unit 1), CLI 84-9,19 NRC 1323 (1984h Long Island Lighfing Co. (Shoreham Nuclear Power Station, Unit 1), CLI-83-17,17 NRC 1032 (1983).' Nor does this situation present issues of considerable safety signifi-cance for which a reasonable assurance now of the future outcome of the rate proceeding would be desirable. Intervenors do not allege that any particular safety problems result from LILCO's " dire financial situation; and apparently none exist. In fact, their only fear is that "the citizens of the State and County could be faced with an irradiated plant whose owner cannot afford to operate, shut it down, or clean it up safe-ly." Intervenors' Memorandum at 33. Although possible, it is not proba-ble that this fear will be realized. It is unlikely that LILCO would not be found financially qualified to operate Shoreham if and when it satisfies all applicable NRC prerequisites to operation. In addition, the New York 7 1n the cited 1983 decision, the Commission disagreed with the recommendation of the Licensing Board, which included two of the members of this Board, not to permit low power testing unless and until there could be reasonable assurance that the emergency planning prerequisites for full power opera. tion could be satisfied. Even if the Commission had agreed with trie Board, the circumstances givins nse to that Board recommendation in the content of emergency planning do not apply to the sutyect or Gnancial qualifications. In the former situation, the potential bar to eventual operation ran with the shoreham facility regardless of the entity operating it. In the present context of rinancial quahfications, there is no basis to speculate even if Intervenors' rnost dire Gnancial forecasts are realized. that the plant could not be operated m accordance with all safety requirements by either a restructured LILCo or by some other entity This would be subject to an NRC assessment of any signincant change in the entity proposing to operate the shoreham plant te s. LILCo in some form of bankruptcy or a ditTereni utihty operator) if and when such a proposed change is necessitated by the outcome of the state rate pro. ceedings or other circumstances. Indeed. b. sed on the PsC's general position (see note 8. below>. It is more speculative to assume that no entity would be permitted the rate rehef to cover the costs of opero. non of shoreham than it is to a sume that there would be a vanety of financial arrangements whnh would permit some quahned entity to do so For example. an entity not saddled with LILCo's prewnt terms of debt service on construction funds could need a lesser degree of rate rehef than LILCo would to Cover its costs. l 433 l l
State PSC is unlikely to deny LILCO reasonable operating costs, if and when Shoreham commences commercial operation, since it does not generally do so.: Nor would every denial of rate relief constitute sufficient basis for waiving the financial qualifications regulations. "When (the] NRC changed its rules, it could not have contemplated that any utility covered thereby would never have Gnancial difficulties or that a State would never deny a utility some of the return it was seeking." Houston Lighung and Power Co. (South Texas Project, Units I and 2), LBP-83-37,18 NRC 52,59 (1984). To form the basis of a waiver of the regulations, the result of a State rate proceeding would have to meet the " unusual and compelling circumstances" standard. Monticello, supra, 5 AEC at 26. Denial of rate reliefin and ofitselfis not unusual, unless it signals a sys-tematic denial of ecsts. Whether it is compellint; depends largely on its impact on LILCO, which at this point remains speculative. Absent evidence of a systematic denial of costs, it would be inap-propriate for this Board to explore Gnancial qualifications based on the denial of censtruction-related costs. This is an operating license proceed-ing, and although Intervenors were free to request that this Board exam-ine specinc safety-related problems which have allegedly resulted from lack of funds for construction, it is inappropriate for this Board to hear those financial qualincations issues related to construction in the ab-stract. We discussed these precepts over 2 years ago. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-82-41,15 NRC 1295,1305 (1982) (Construction Permit Extension). Intervenors maintain, however, that by adding up LILCO's debts and assets, it is clear that LILCO does not have sufGcient funds to operate Shoreham. However, this ignores the fact that LILCO may recover its costs of operating Shoreham through the ratemaking process, and that these funds should be used to operate Shoreham safely, in conformance with NRC regulations. To say that the funds would not be used for this purpose, requires the presumption that they will be reapportioned from the safety area to other areas. There is no basis for this Board to make that assumption at this time. In addition, while the New York Public Service Commission does not specincally conduct audits to ensure that revenues are not reallocated, it does monitor plant performance and orders special audits if problems arise. Thus, it indirectly assures "that 8 Attachment I to the Eaker Affidavit. filed in support or LILCo's July 16.1984 Reply to intervenors motion, attests to this ract, In resportse to a National Association or Regulatory Utihty Commiwoners questionnaire. the New York Pubbe semce Commission stated that it "makes allowances for all the necessary and prudently incurred operatirig costs. includir:g NRC safety requirements." 434 s
I monies to be spent on nuclear plant operation are not spent elsewhere." , to Eaker Aflidavit at 4. The bulk of the allegations in the Dirmeier Affidavit appear to be directed more toward proving the contention than toward supporting the petition for exception. We do not dispute that the Nine Mile Point default and LILCO's low bond rating are evidence of LILCO's overall weak financial position. Yet, this Board is not permitted to hear those issues until Intervenors have made a primafacie showing that the finan-cial qualifications regulations should be waived. What Intervenors have overlooked is that the Commission exempted electric utilities because of their regulated status which generally guarantees recovery of reasonable costs and insulates a utility, at least to some extent, from traditional economic forces. It cannot be presumed that the Commission issued these regulations on the assumption that the financial picture of utilities would always be rosy. It did presume that utilities could obtain sufficient funds to operate a plant safely through rate relief. Intervenors have not made a primafacie showing that this presumption does not apply in this case. It is not clear that Intervenors are required to raise a safety issue to support a petition for waiver of the financial qualification regulations. Admittedly, the major emphasis of NRC regulation of nuclear power plants has been on health and safety issues and not financial issues in the abstract. Yet, in its recent Policy Statement, the Commission specifi-cally stated that the lack of demonstrable connection between financial qualifications and safety was not the rationale behind the new rule. Financial Qualifications Statement of Policy,49 Fed. Reg. 24,111, col. 2 (June 12,1984).' However, challenges to this rule may be limited to cases where the petitioner m.akes a prima facie showing, not that rate relief has been denied but that the local utility has been denied " costs of compliance with NRC requirements associated with safe plant opera-tion." Elimination of Review of Financial Qualifications of Electric Utili-ties in Operating License Reviews and Hearings for Nuclear Power Plants,49 Fed. Reg.13,044 at 13,045, col. 3 (April 5,1984) (emphasis added). Because Intervenors have failed to make a prima facie showing that application of the financial qualifications regulations to this proceeding would not serve the purpose for which these regulations were adopted,
' LILCo cites to the Commission's decision in Afante radre Atom,c Poe Co (Maine Yankee Atomic Power stauon). CLI.83-21. s8 NRC 157 (198D as the basis for its conclusion that Intervenors need to raise a safety issue to support their petition for waiver. This decision was issued prior to the 1984 Policy statement.
435
we must deny their petition for waiver or exception. Specifically, Interve-
- - nors have not shown that LILCO cannot obtain sufHeient (unds to oper-l ate Shoreham safely through the ratemaking process. We are aware i however, that LILCO is experiencing financial dif0culties, and it may be appropriate for the Commission to have the Staff determine if these difG-
^ i culties have led to any safety problems to date, and to continue to moni- ; tor more closely than it normally would, LILCO's operational readiness ' (stafling, resources, etc.) if and after any operating license is issued. Cf , Maine Yankee, supra note 9, where the Commission directed the Staff to review the situation to determine if any safety problems arose as a
; result of financial difficulties.
l IV. STANDARDS FOR DETERSIINING AD311SSION FOR 1 LATE-FILED CONTENTIONS Intervenors' motion to file a contention is untimely. Hearings before ! this Board, on issues for which the record has already been reopened, ) are scheduled to commence on September 5. liearings before the Stiller Board have already been concluded except for possible hearings on one 1 sub issue. However, a contention may be admitted if the balance of the following factors weighs in an intervenor's favor. 9 i. Good cause,if any, for railure to Gle on time. ii. The availability of other means whereby the petitioner's interest will be protected. iii. The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record. iv. The extent to which the petitioner's interest will be represented by existing parties. 4
- v. The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
I 1 10 C.F.R. j 2.714(a)(1). We find that only the fact that no other party will litigate this contention weighs in Intervenors' favor. Thus, on balance, these factors weigh heavily against admission of the contention. . A. Good Cause New information in a previously unavailable document has generally
- constituted a valid basis for the late filing of contentions and evidence of good cause. liowever, good cause does not exist when information which forms the factual basis of the contention is publicly available i
i e l, '
, . - - - - . . ,n, . . , ~ . - - . . . , - - - - - - , , - - - . - , - - - . . .., , . - - - , , , , - , , - , . _ , , , . _ ,
elsewhere. Duke Power Co. (Catawba Nuclear Station Units 1 and 2), CLI-83-19,17 NRC 1041 (1983). Despite the fact that Intervenors cite frequently to LILCO's Position Paper on Shoreham, which was submit-ted on Stay 31, 1984, all information crucial to the contention was pub-licly available elsewhere well before that date. Other details which may be newer, add little, if anything, to the factual basis of the contention. Intervenors premise their contention primarily on the conclusion that LILCO cannot raise the funds necessary to cover expected expenditures for 1984, and that the financial uncertainties caused by the prudency in-vestigation and the Nine Niile Point default exacerbate those difSculties. Drawing largely on LILCO's Securities and Exchange Commission Form 10-K, dated Starch 30, 1984, intervenors attempt to show that, even after accounting for funds saved through austerity programs and by omitting common stock dividends, LILCO will have a cash shortfall of approximately $80 million. Dirmeier AITidavit at 8. They maintain that LILCO cannot obtain these needed funds through external capital mar-kets because "[alli of LILCO's existing lines of credit have been drawn down (id at 9) and none of its securities are considered investment grade (id. at 10). To further support their contention, Intervenors point to the institution of the prudency investigation, where the Staff of the New York Public Service Commission proposes to disallow $1.8 billion in Shoreham-related construction costs, and to the Nine hiite Point de-fault, where the acceleration of approximately $500 million debt is fore-stalled only by successive 30 day agreements. Intervenors contend that these events place LILCO on the brink of fMancial collapse. Stost of the information referred to in the Dirmeier Affidavit was de-rived directly from LILCO's Form 10-K. However, Intervenors maintain that the Ntay 31 Position Paper adds some crucial pieces ofinformation - particularly not only the fact "that LILCO was teetering on the brink of bankruptcy but also that the Company requires the affirmarne action of thirdparties (over whom LILCO has no control or influence) to stave off disaster: a billion dollar bailout and concessions in the prudency proceeding." Intervenors' Niemorandum at 29. In addition, "the Posi-tion Paper reveals, again for the Grst time, that additional austerity meas-ures would not sufGce to avert bankruptcy." Dirmeier AfHdavit at 16. The Board Snds no particu!arly startling factual averments in these statements which could not have been discovered by reviewing publicly available documents at an early date. At a minimum, this information N The purpow of the Position Paper submated to Governor Cuomo was to outline a pian for rate phase. m of Shoreham costs and to ensure that LILCo and its ratepayers achieved some stabdity. Position Paper - shoreham Nalear Power station. Eshibn D to Dirmeier Amdava at 2 3 437
.J L was contained in LILCO's Form 10-K which was available by the begin-l ning of April. However, while the Form 10 K does provide specific num- ! Ders, LILCO's general financial difficulties were well known before even this document became available. } LILCO's cash shortage and the possibility of bankruptcy cannot be i considered new information. The cash shortage problem was discussed i in LILCO's Form 8-K, dated December 22,1983 (Attachment 4 to Eaker Affidavit) and in testimony before the New York Public Service Commission in January and February of 1984 (Attachment 11 to Eaker
! Affidavit). That testimony indicated that the Company might run out of cash in the Fall of 1984. Intervenors were parties to the proceeding in which this testimony was taken. Additionally, LILCO acknowledged that austerity measures, announced on March 6, would not solve these problems. (Eaker Affidavit, Attachment 10 (N.Y. Times, Mar. 7,1984, I at B2).) The possibility of bankruptcy also cannot be considered new j information. It was well publicized in late 1983 both in newspaper head- } lines" and in articles reporting on Shoreham.'2 It is impossible to believe that Intervenors, who are so integrally involved in both this proceeding , and the New York Public Service Commission rate proceeding, could ' 1 have missed this information.
LILCO's difficulties in obtaining external financing have also been well known for some time. As Intervenors themselves note, Moody's began lowering its ratings of LILCO's securities in December of 1983. Dirmeier Affidavit at 9. LILCO's Form 8 Ks. filed in December 1983 4 and January 1984, also note the Company's external financing difficul-ties. Attachments 4, 6 and 7 to Eaker Affidavit. In addition LILCO's witness in the New York Public Service Commission proceeding indicat-4 ed in January and February 1984 that if LILCO missed paying divi-l dends, it would have difficulty in obtaining external financing. Attach- ) ment 11 to Eaker Affidavit. LILCO announced suspension of common stock dividends'on March 6. Attachment 10 to Eaker Affidavit.
; The two events on which Intervenors rely most heavily, the prudency i investigation and the Nine Mile Point default, also cannot be considered .
recent for the purposes of this motion. The Staff of the New York Public Service Commission filed testimony, in State proceedings in which Inter-I venors are parties, proposing the disallowance of $1.8 billion in Shoreham-related costs on February 10,1984. The default on payments for Nine Mile Point construction occurred on February 9. Since it was j. US ee Esker Affidavit. Astachment 12 (Reports of Bankruptcy Opree Seed LILCO's 5tosk Plunging. Nem sday. Nov. 20, l983, and LILCO's Derr Opren: Bankruptcy. Newby. Dec. 2. t 98h { 12 g,e Attachment 12 to Eaker Affidavit. N.Y. rimes articles. oct. 17.1983,and Nov 22.1983 l 438 i . l l i 4 k ]
+
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extremely well publicized, it is impossible to believe that Intervenors were not aware of the default at an early date. Yet, even if they were not, the information was disclosed in LILCO's February 21,1984 Form 8-K. Attachment 9 to Eaker AfGdavit. Intervenors could also have made the assertion that LILCO's Gnancial picture was dependent on the actions of LILCO's lenders and the out-come of the prudency investigation at an earlier date. Their assertions as to the importance of these events are based primarily on the fact that LILCO has limited cash and its problems :n obtaining outside Gnancing. Yet, as indicated previously, these problems were known in late 1983, prior to the occurrence of the Nine Mile Point default and the prudency investigation. Even if Intervenors were not capable of gauging their effect on LILCO, LILCO's Form 10-K makes it explicit as Intervenors themselves note. The effect of these events "as stated by Price Water-house [is that] LILCO 'cannot give any assurance of its ability to meet its capital and operating requirements.'" Intervenors' Memorandum at 8, quoting Form 10-K. Governor Cuomo's rejection of the plan outlined in the Position Paper also adds little, if anything, to the factual premise of the conten-tion. As indicated above, LILCO's Gnancial picture was well known prior to this event. Intervenors do not assert that the Governor ever in-tended to approve this plan, or any plan, such that LILCO's Gnancial pic-ture would have been substantially brighter prior to the rejection. Although Intervenors cite quite frequently to the May 31,1984 Posi-tion Paper, this is not sufficient to support the assertion that good cause exists for the late filing. The facts upon which Intervenors rely to support their contention, including the Nine Mile Point default, the prudency investigation, cash Row problems, and external financing difDculties were publicly available no later than mid February 1984. For these reasons, this Board cannot find that Intervenors have shown good cause for waiting until July 3 to Gle their contention. B. Other Means of Protecting the Party's Interest Intervenors contend that "[t]here is no evidence that LILCO's finan-cial qualiGcations to operate the Shoreham plant will be reviewed, eval-uated or even considered by the NRC, unless the proposed contention is admitted." Intervenors' Memorandum at 30. This Board does not dis-pute this statement. However, the NRC is not the only entity which can ensure that LILCO has the Gnancial qualincations to operate the plant safely. Only the New York Public Service Commission has the authority to allow rates sufncient to cover the costs of operation. If it fails to allow 439
the sufficient rates, it may then be appropriate for the NRC to review the issue. At this point, however, the Intervenors are free to raise their concerns with the New York Public Service Commission. Thus, we cannot say that there is no other means of protecting Intervenors' inter-est in LILCO's financial qualifications. C. Assistance in Developing a Sound Record We do not dispute the fact that Suffolk County has engaged expert consultants to evaluate LILCO's financial condition. This is clear from the Dirmeier Affidavit. However, the fact that the County has engaged these experts is not wholly dispositive on the issue of whether Interve-nors can assist in developing a sound record. This Board has stated that it does not believe that the standard for reopening the record adds anything to the standards for accepting late-filed contentions, when such contentions are not related to previously litigated issues. This is because a test for significance and triability is implicit in determining whether an untimely contention will be admit-ted. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-30,17 NRC 1132,1143 (1983). In particular, "the extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record is only meaningful when the proposed par-ticipation is on a significant, triable issue." /d. At this time, we do not find that Intervenors have presented a signifi-cant, triable issue which would assist this Board in developing a sound record. No health and safety concerns have been advanced nor does it appear that any are implicated. Intervenors have not shown that the PSC will not allow LILCO sufficient funds to operate Shoreham safely. In fact, Intervenors' only fear is of an irradiated plant whose owner cannot afford to operate it safely. As stated previously, once the plant is con-structed in conformance with all applicable regulations, it is unlikely that LILCO will be unable to recover the cost of safe operation through the rate proceeding. Even if Intervenors' financial forecasts are correct, there would be no reason why the plant could not be operated, even if by some other entity, provided that all safety standards are met. For these reasons we find that Intervenors' contention does not pre-sent the significant triable issue necessary for them to assist in develop-ing a sound record. 440
D. Extent to Which Petitioner's Interest Will Be Protected by
- Other Parties The Board agrees that no other party is likely to protect Intervenors' interest in litigating the financial qualifications issue. However, this factor is far outweighed by the other considerations.
E. Extent to Which Participation Will Broaden issues or Delay . the Proceeding Intervenors cannot seriously expect this Board to believe that admis-sion of this totally new contention "is not likely to have a material impact on the length of these proceedings." Intervenors' Memorandum at 32. Hearings before this Board are scheduled to commence on September 5, only 2 months after Intervenors filed this contention. The Miller Board is even further along procedurally. The hearings before that Board commenced within a month of the filing of the contention i and have already, except possibly for one sub-issue, been completed. In order to hear this contention, we would have to authorize a new round t of discovery. New testimony would have to be prepared and filed, in ad-1 vance of the hearing, so as to address this new issue. Under these condi-J tions it is impossible to see how the expected length of the proceedings could not be substantially increased. Admittedly, this Board has stated that "the extent to which the peti-tioner's participation will broaden the issues or delay the proceeding is ! properly balanced against the significance of the issue." Shoreham, LBP 83-30, supra,17 NRC at 1143. However, as stated previously, the financial qualifications issue is not nearly as significant as Intervenors would have us believe. See p. 440, supra. . On balance, even if we were to find a prima facie basis for granting the petition for exception, we could not admit the contention because it is inexcusably late. The only factor of the balancing test which weighs in i Intervenors' favor is the fact that no other party will litigate the financial qualifications issue. This is not sufficient to overcome the unreasonable i delay which the contention would impose on these proceedings; the fact that Intervenors have failed to show good cause for filing so late, the ex-istence of an alternative forum, the State rate proceeding, in which Inter-venors may protect their interests through direct participation; and the l lack of any safety significance at this time. 1 i 441 ____m
- . _ - _ . . . - . - - _ - =_ . .-- - -- --
i-1 1 * ] IV. CONCLUSION
- For the reasons stated, we find that Intervenors have not made a primafacie showing that special circumstances exist so that application of the finar.iial qualifications regulations to this proceeding would not serve the purpose for which they were intended. Thus, we deny Interve-nors' petition, pursuant to f 2.758(b), for exception to those regulations. In addition, we find that Intervenors' contention is inex-cusably late and that the balance of factors for determining admission of j a late-filed contention weighs heavily against Intervenors. '
4 The Board further finds no reason to certify this issue to the Commis-sion, pursuant to 10 C.F.R. (( 2.718(i) and 2.730(0. To do so would be contrary to the normal course charted by i 2.758(d). This issue does not require a prompt decision from the Commission to prevent delay or ex. pense; nor does a prompt decision appear necessary to prevent "detri-ment to the public interest." As we previously stated, Intervenors' con-I tention has no apparent health and safety significance at this time. In j any event, the Commission (and the Appeal Board) will be cognizant of l this ruling and may direct certification on their own initiative if they be. ! lieve it appropriate to do so. Intervenors may also petition the Appeal l Board or the Commission to consider this issue on directed certification i However, we decline to seek certification, because we do not find it necessary in these circumstances. IT IS SO ORDERED. r I j FOR Tile ATOMIC SAFETY AND LICENSING BOARD .i
- Lawrence Brenner, Chairman i ADMINISTR ATIVE JUDGE 1
l Bethesda, Maryland { August 13,1984 4 l i , ) 3 d i j 442 I !. 1 1 i t . l
Cite as 20 NRC 443 (1984) LBP-84 30A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 8efore Administrative Judges: Peter 8. Bloch, Chairman Dr. Kenneth A. McCollom Dr. Walter H. Jordan in the Matter of Docket Nos. 50-445 50-446 (Application for Operating License) TEXAS UTILITIES ELECTRIC COMPANY, et al. (Comanche Peak Steam Electric Station, Units 1 and 2) August 24,1984 in this Memorandum, the Licensing Board concludes that a request for a license for fuel loading and precritical testing may be considered pursuant to 10 C.F.R. j 50.57(c) because the activities for which a license is sought fall within the activities for which a low power license may be granted. LOW-POWER LICENSE: FUEL LOAD AND PRECRITICAL TESTING A licensing board may authorize the issuance of a license for fuelload and precritical testing provided that it makes the findings required by i 50.57(a) with respect to the contested activity sought to be authorized. However, the pendency of a broad quality assurance contention requires that the motion be accompanied by evidence concerning the status of 443 l
those systems required to assure that criticality will not occur during the proposed activities. TECIINICAL ISSUES DISCUSSED Fuel load Precritical testing Boron equipment Neutron monitoring equipment Fuel-handling equipment Reactor protection systems Quality control K,g. MEMORANDUM (Request for Evidence Relevant to Fuel Loading) On August 7,1984, Texas Utilities Electric Company, et al. (Appli-cants) filed a Motion for Authorization to Issue a License to Load Fuel and Conduct Cert-in Precritical Testing. Under this limited license, Ap-plicants would implement safety precautions so that the core never would go critical and appreciable quantities of decay products (and decay heat) would not be generated. The Staff of the Nuclear Regulatory Commission and Citizens for Soand Energy (CASE) have responded to the Motion. CASE orposes the motion. The Motion is governed by 10 C.F.R. j 50.57(c), covering a license for low-power testing. Since the activities involved in fuel loading are included within the activities that may be licensed under this section, we conclude that we can authorize fuel loading and precritical testing under this section. However, the section requires us to make the f.ndings listed in f 50.57(a) with respect to the contested activity sought to be authorized. The contested activities involve at least the following plant systems: (a) boron addition and monitoring equipment, (b) neutron monitoring equipment sufficient to detect significant increases in Keg above 0.95, (c) fuel-handling equipment, and (d) reactor protection systems. Each of the components of these systems is relevant, including mechanical, electrical and instrumentation systems. Because of the broad quality control contention pending in this pro-ceeding, we must have evidence concerning the adequacy of quality con-trol for the contested systems. In particular, we require evidence con-444
cerning the current status of QA/QC oversight of these systems, includ-ing evidence that documentation is adequate to assure that unsatisfactory or nonconforming conditions have been corrected and evidence concern-ing whether or not there are allegations known to the Applicants or Staff about the intimidation of QA/QC personnel who were working on these systems. We also require evidence: (1) that appropriate QA/QC procedures have been completed for all phases of the activities for which a license is sought, (2) concerning the maximum Kerr to be permitted during pre-critical testing and the K rre that analysis suggests may be achieved during precritical testing if all control rods were inadvertently removed while the boron concentration was 2000 ppm, and (3) that nonborated water will never be injected into the core, substantially diluting the boron below 2000 ppm. This decision is issued with the unanimcus approval of the Licensing Board in our companion docket 50 445 and 50-445. Hon. Herbert Gross-man, who serves on the Licensing Board in the companion case involv-ing intimidation, has reviewed this decision and has no objection to its issuance. ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is, this 24th day of August 1984, ORDERED That Texas Utilities Electric Co., er al., shall supply the evidence requested in this order to facilitate further consideration of its Motion for Authorization to issue a License to Load Fuel and Conduct Certain Precritical Testing. FOR THE ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTR ATIVE JUDGE Bethesda, Maryland 445
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i Citt, as 20 NRC 446 (1984) LBP 84 31 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Lawrence Brenner, Chairman Dr. Richard F. Cole Dr. Peter A. Morris in the Matter of Docket Nos. 50 352 OL 50 353-OL (ASLSP No. 81465 07 OL) PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2) August 29,1984 1 The Licensing Board issues a Second Partial Initial Decision Onding in favor of the Applicant on all controverted issues prerequisite to authoriz-ing a low power operating license. Offsite emergency planning issues are still pending for litigation. l
\
ESIERGENCY PLANS: ISIPLESIENTING PROCEDURES The whole body of implementing procedures need not be ready for challenge in a hearing. Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB 732,17 NRC 1076 (1983). Ilowever, this does not mean that a Board cannot examine implementing proce-dures which are available and arguably necessary to determine whether certain provisions in tne emergency plan meet NRC planning standards. Examination of such implementing procedures is with the adequacy of the plans foremost in mind, since the proper object of litigation is the adequacy of the plan. 446
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NEPA: RECIRCULATIOS OF FES Since Gndings of the licensing tribunal are deemed to amend the FES. amendment and recirculation of the FES are not normally required, unless the differences between the decision and the FES are truly substantial. Niagara Mohawk Power Corp. (Nine Niile Point Nuclear Station. Unit 2), ALAB 264,1 NRC 347,37172 (1975); Allied. General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296. 2 NRC 671,680 (1975). See also Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), CLI 78-1. 7 NRC 1. 29 n.43 (1978). TECHNICAL ISSUES DISCUSSED Onsite emergency planning Environmental analysis of severe accidents Quality control of welding Environmental qualiGcation of electrical equipment Effect on plant structures of postulated petroleum and natural gas pipeline accidents Cooling tower plumes; aircraft carburetor icing. APPEARANCES , Troy B. Conner, Jr., Esq., alark J. Wetterhahn Esq., Robert 31. I Rader, Esq., and Nils N. Nichols, Esq., of Conner & Wetter-hahn, P.C., Washington, D.C., for Philadelphia Electric , Company. Benjamin H. Vogler, Esq., Ann P. Hodadon, Esq., Nathene A. Wright, Esq., and allchael N. Wilcote Esq., OfGce of Executive r Legal Director, U.S. Nuclear Regulatory Commission. Washing-ton, D.C., for the NRC Staff. Frank R. Romano, Ambler, Pennsylvania, pro se. and for the Air and Water Pollution Patrol. Robert L. Anthony, Stoylan, Pennsylvania, pro se. and for Friends of the Earth. Herbert Smolen, Esq., and Startha W. Hush, Esq., Law Department. for the City of Philadelphia. 447
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4 Charles W. Elliott, Esq., of Brose and Postwistilo. Easton. Pennsylva-nia, and Maureen Mulligan and Phyllis Zitzer, Pottstown, Pennsylvania, for Limerick Ecology Action. Zori G. Ferkin, Esq., Harrisburg, Pennsylvania, for the Commonwealth of Pennsylvania.
SUMMARY
TABLE OF CONTENTS Page I. INTROD UCTION . . . . . . . . . . . . . . .. .. . .... 453 II. FINDINGS OF FACT . ..... .... ..... .. . 454 A. AWPP Contention V 4: Aircraft Carburetor Icing . . 454 B. FOE Contentions V-3a and V-3b: Natural Gas and Petroleum Pipeline Accidents . . . . . . . 464 C. LEA I-42: Environmental Qualification of Electric Equipment . ..... . .. .. . .. 493 D. Confirmation of Findings of Fact Made on the Record That AWPP Contention VI-I (QA/QC of Welding) i Lacks Merit . . . . . . .. .... .. .. . . 509 E. Onsite Emergency Planning . . . . . . ... . 514 F. NEPA Severe Accident Risk Contentions: LEA Contentions DES 1,2,3 and 4 .. ...... .. 550 III. CONCLUSIONS OF LAW . . . . ... .... .. 599 IV. O R D E R . . . . . . . . . . . . . .. ........ ..... .... 599 ' APPENDICES (Unpublished) Appendix A (Witness List) Appendix B (Exhibit List) DETAILED TABLE OF CONTENTS Page I. INTROD UCTION . . . . . . . . . . . . . . . .... . . . 453 II. FINDINGS OF FACT . ...... .... .. ........ . 454 A. AWPP Contention V 4: Aircraft Carburetor icing . . . 454
- 1. S u m mary . . . . . . . . . . . . . . . . . . . . . ..... . 454
- 2. Behavior of Cooling Tower Plumes . . . . . . . . . 456 448
1 3 Page i II.A. FINDINGS OF FACT (Continued)
- 3. Studies of Cooling Tower Plumes . . . . . . . 458
- 4. AWPP's Disagreements Regarding Plume Be havior . . . . . . . . . . . . . . . . . . . . . . 459
- 5. Aircraft Carburetor icing ....... . .. . ..... 460
- a. Time for Formation . . . . . . . . . . . 461
- b. Prevention and Elimination of
! Carburetor icing . . . .. . . . . . 462 i
B. FOE Contentions V-3a and V-3b: Natural Gas and Petroleum Pipeline Accidents . . . . . . . . . . . . 464
- 1. Back gro u nd . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464
- 2. S u m ma ry . . . . . . . . . . . . . . . . . . . . . . . . . . . . 466
- 3. The ARCO Pipeline .... ...... . . . . . . . . 467
- a. Description of Pipeline . . . . . . . . . . . . . . . 467
- b. Contents of Pipeline . . . . . . . . . . . . . 467
- c. Location of Pipeline . . . . . . . . . . . . . . . . . 468
- d. Nature of the Release .......... .... . 470
- c. Formation of a Flammable Mixture . . 471
- f. Overpressure Calculations . . . . . . . . . . 473
- 4. The Columbia Gas Pipelines . . . . . . . . . 474
- a. Description of the Pipelines . . . . . . . . . . 474
- b. Contents of Pipelines . . . . . . . . . . . . . . . . 475
- c. Location of the Pipelines . . . . . . . . . . . . . . . 475
- d. Nature of the Release ...... . . . . . . . 476
- e. Formation of Flammable Mixture . . . . . . 476
- f. Overpressure Calculations . . . . . . . . 478
- 5. Radiant Heat Load Calculations . . . . . . . . . . 480
- a. ARCO Gasoline Pipeline . . . . . . . . . . . . . 480
, b. Columbia Gas Pipelines . . . . . . . . . . . 481 i
- 6. Effects of Postulated Detonation on Safety-Related S tructures . . . . . . . . . . . . . . . . . . 482 j 7. Margin Analysis of Margins of Structural Integrity to Postulated Overpressures . . . . . . . . . . . . . . . . . 485
- 8. Factors Allegedly Not Considered in Margin A nalysis . . . . . . . . . . . . . . . . . . . . . . . . . . ' 48 7
- a. G e n e ra l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 487 i b. Reactor Building Openings . . . . . . . . . . . . 489 I c. Effect of Detonation on Underground S truc t u res . . . . . . . . . . . . . ., . . . . . . . . . . . . . 490
- 9. The Effects of a Postulated Cooling Tower Collapse . . . . . . . . . . . . . . . . . . . . . 490 449 4
4
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i 4 J Page II.B. FINDINGS OF FACT (Continued)
- 10. Integrity of the Spray Pond ... 492 C. LEA I-42: Environmental Qualification of
. Electric Equipment . . . . . . ... .. . . 493
- 1. Summary . ...... .. ... . . 498
- 2. Compliance with the January 1983 Environmental Qualification Rule . . . . . . .. . . 498
- a. Independent Component Classification Program . . . .. .. ...... . 500
- 3. Systems Excluded from the EQ Program . . 501
- a. Emergency Lighting System . 501
- b. In-Plant Communications Systems . 501
- c. The Plant Process Computer System .. 502
- d. Feedwater Control System .. 502
- e. Standby Liquid Control System .. 502
- f. Human Interaction Problems . 502
- 4. Aging of Equipment . . . . 504
- 5. Completeness of EQ Program . .. 504
- 6. Staff Review of the Limerick EQ Program .... 504
, 7. Discussion . . ... .... . .. . 506 D. Confirmation of Findings of Fact hfade on the Record
- That AWPP Contention VI l (QA/QC of Welding)
Lacks hierit . .. .... .... ....... .. . . 509 i 1. The Contention Lacks hierit as Previously Determined in the Bench Decision .. 509
- 2. AWPP's Post Hearing hiotions .. ... . 513
. E. Onsite Emergency P!anning . .. . .. . . 514
- 1. S u m mary . . . . . . . . . . ....... .. . 514
- 2. LEA Contention VIII 1: Spectrum of Accidents Envisioned in Plans . . . . . . . . . . . .... ...... 516
$ 3. LEA Contention VIII 3: Onsite Afonitoring Systems . . . . . . . . . . . . . . . . . . . . .. . 518
- 4. LEA Contention VIII 6(a): Afutually Agreeable j Bases for Notification of Organizations with Responsibility for Onsite Augmentation . . . . . 521
- 5. LEA Contention VIII.6(c): Notification to
- Offsite Authorities . . . . . . . . . . . . . . . . ... . 522
- 6. LEA Contention VIII 8(b): Adequacy of Emergency Facilities, Equipment, and
, S u p plies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 527 4 450 1 l I
l l l i Page II.E. FINDINGS OF FACT (Continued)
- 7. LEA Contention VIII-10(a): Delineation of Authority in Certain Letters of Agreement 528
- 8. LEA Contention Vill-ll: OtTsite Augmentation of Onsite Fire Fighting Capabilities . 529
- 9. LEA Contention VIII-12(a): Emergency Hospital Care for the Contaminated Injured 531
- a. Unanimous Board Findings , , 531
- b. Niajority Findings by Judges Cole and Niorris . . . .. . 535
- c. Partial Dissent of Judge Brenner 536
- 10. LEA Contention VIII 12(b): Adequacy of Transportation for the Contaminated injured 538
- 11. LEA Contention Vill-14(c): Calculating and Stonitoring Offsite Doses . . .. . 540
- 12. LEA Contention VIII 14(e): Continuing Accident Assessment Capabilities $42
- 13. LEA Contention Vill 14(h): Slethodologies for Projecting Dose When Instrumentation Is Inoperat 'e . . . 542
- 14. LEA Contention Vill 15(b): Nionitoring of Site Evacuees . . .. 543
- 15. LEA Contentions VIII-15(d) and 16(g):
Decontamination of Site Evacuees $45
- 16. LEA Contention Vill 15(e): Applicant's Ability to Account for Personnel . . . 546
- 17. LEA Contention VIII-16(c): Information on Radiation Risks for Emergency Workers 548
- 18. LEA Contention VIII 18: Training of Offsite Support Personnel . . .. .. . 550 F. NEPA Severe Accident Risk Contentions: LEA Contentions DES 1, 2,3 and 4 . . .. .. . 550
- 1. Summary . . .. .. 550
- 2. LEA-DES 4 . . . .. ... 551
- a. Latent Health Effects (DES 4A-1) . . 554
- b. Crop, Stilk and Population Interdiction (DES-4A 2,3 and 8) .. 560
- c. Cost of Niedical Treatment (DES 4A-4) .. 561
- d. FES Format (DES-48) .. 563
- 3. LEA-DES 3: People Will Decline to Evacuate . 564 451
4 4 1 i ( Page , II.F. FINDINGS OF FACT (Continued) j- 4. LEA. DES-1: Relocation of People Beyond 10 . Miles implausible . . . . . . . . . . . . . . . . . 567 ] 5. L EA.D ES-2 . . . . . . . . . . . . . . . . . . . . . . 569
- 6. Conclusions of Law as Applied to LEA and City Severe Accident Contentions . . . . . . . . . 572
- a. LEA's Proposed Conclusions of Law . . . . 572 1 b. City's Proposed Conclusions of Law . 574 1
- 7. City.14: Evacuation Speed, Backups and Bad Wea t he r . . . . . . . . . . . . . . . . . . . . . . . . . . . . 577 i a. Evacuation Speed . . . . . . . . . . . . . . . . . . . 578
- b. Evacuee Backups at the Outskirts of i
i Philadelphia . . . . . . . . . . . . . . . . . . 579
- c. Bad Weather Scenarios . . . . . . . . . . . 580
- 8. City-13: Dose. Distance Calculations 1 for Philadelphia . . . . . . . . .. . . . . . . . . . . . . . . 581
- a. Risk Aversion . . . . . . . . . . . . 586
- 9. City 15: Contamination of City's Water Supplies . . . . . . . . . . . . . . . . . . . . . 587 '
4
- a. Introduction and Summary . . . 587
- b. Source of Potential Contamination . . . 588 J
, c. Transport of Radioactivity . . .. . . . . . . . 589
- d. Potential Consequences . . . . . . . 591 (1) S taff Analysis . . . . . . . . . . . . . . . . . . . 591 (2) Applicant Analysis . . . . . . . . . . . . 593
- e. Potential Countermeasures . . . . . . 596
! f. Conclusion . . . . . ....... . .. .. 598 ! III. CONCLUSIONS OF LAW . . . . . . . . . . . . . . . . . . . . . . 599 ! IV. O R D E R . . . . . . . . . . . . . . . . . . . ....... ..... .. . 599 ? ! APPENDICES (Unpublished) Appendix A (Witness List) Appendix B (Exhibit List) 1 I i t ] 452 4 _m.- -.o-. . 4-.-,w_m .~ .<3.s , -- , . y- -- - ..--...,-7,,,,,,.----,m-.,,,-,,.w,,,.
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SECOND PARTIAL INITIAL DECISION I, INTRODUCTION This is the Second Partial Initial Decision (P.I.D.) issued by this Atomic Safety and Licensing Board in this proceeding. The first " Partial Initial Decision (on Supplementary Cooling Water System Conten-tions)," was issued on March 8,1983, and resolved the captioned issues in favor of the Applicant (Philadelphia Electric Company or PECo), sub-ject to certain conditions. LBP-83-il,17 NRC 413 (1983), appealpend. ing. This second P.I.D. decides all other issues in controversy in favor of the Applicant which are prerequisite for authorization of the low power operating licenses requested by the Applicant for testing and operation up to 5% of rated power, pursuant to 10 C.F.R. ) 50.57(c), as limited by 10 C.F.R. ! 50.47(d). These issues are listed in the Table of Contents of the P.I.D. Offsite emergency planning issues, which must be resolved in favor of the Applicant as a prerequisite for authorization of operating licenses for power levels in excess of 5% of rated power, are pending for litigation in this proceeding. When and if the low power operating licenses authorized by this P.I.D. are issued is determined by the NRC Staff, based on its review of the many other NRC requirements not in controversy before us, and the certification of completion, in turn, of each of the two reactor units comprising the Limerick Generating Station. The Limerick Generating Station, Units 1 and 2, is located in Limerick Township of Montgomery County, Pennsylvania. It is on the east bank of the Schuylkill River, approximately 4 miles downriver from Potts-town. Licenses are sought to operate two boiling water nuclear reactors, each with a rated core power level of 3293 megawatts thermal and a net electrical output of 1055 megawatts electric. Final Safety Analysis Report (FSAR) at 1.1 1. In addition to the Applicant and the NRC Staff (Staf0, the parties par-ticipating in one or more issues decided in this P.I.D. are: Intervenors Limerick Ecology Action (LEA), Friends of the Earth in the Delaware Valley and Mr. Robert L. Anthony (as a joint party and referred to as FOE), and the Air and Water Pollution Patrol and Mr. Frank R. Romano (as a joint party and referred to as AWPP). The City of Phila-delphia and the Commonwealth of Pennsylvania also participated in the hearing as interested governments pursuant to 10 C.F.R. l'2.715(c). The City also litigated some of its own issues. Each party filed proposed findings of fact on issues ofinterest to them. 453
There were approximately 40 days of evidentiary hearings held on the issues decided in this P.I.D., between December 12,1983, and June 20, 1984, in Philadelphia, Pennsylvania. The Board's Findings of Fact follow in numbered paragraphs, keyed to the lettered subsections, in j II. The Conclusions of Law and the Order (including procedures for appeal) follow in $$ 111 and IV, respectively. II. FINDINGS OF FACT A. AWPP Contention V-4: Aircraft Carburetor Icing L Summary A 1. This Air and Water Pollution Patrol ( AWPP) contention arises under the National Environmental Policy Act (NEPA), and alleges that there will be increased icing in airplane carburetors due to emissions from the two Limerick large, natural draft cooling towers. The conten-tion states: Neither the Applicant nor the Starf have adequately considered the potentut ror and the impact of carburetor icing on aircraft Oymg into the airspace that may be afrected by emissions from the Limerick cooling towers. A-2. We conclude that this contention lacks merit. The Applicant, supported by the Staff, has demonstrated that there will be no hazards to aircraft due to carburetor icing caused by the Limerick cooling tower plumes. Carburetor icing is a well-recognized hazard to carburetor-equipped aircraft. It is caused by water vapor freezing in the carburetor (in which the temperature can drop markedly due to the expansion of the airflow through the throttling valve). If permitted to accumulate, the ice can cause degrading engine performance to the point of failure. A-3. The proof before us has clearly demonstrated that beyond the short distance from the cooling towers of about a quarter of a mile, the temperature and humidity differences between the plume and the am-bient air are insignificant. The plumes would not present a potential car-buretor icing hazard difTerent from the naturally occurring atmosphere, because an airplane could not remain in such a small region of the plume for more than a few seconds - too short a time for carburetor icing to present a hazard. Furthermore, in the alternative, and contrary to the evidence, even if conditions in the entire plume (up to about 10 miles long) were significantly different from the surrounding air, it would be highly unlikely that an airplane would, or even could, remain i 454
l l i l in the plume long enough for sufficient carburetor ice to accumulate to cause engine failure. The plume behavior would not result in " socked in" conditions in the local airport traffic pattern so as to cause airplanes to remain in the plume for long time periods. A -4. In any event, the above considerations are unrealistically conservative. They do not take into account the fact that normal pilot procedure is to use the required carburetor heat system to prevent ice accumulation. If carburetor ice begins to accumulate, whether caused by a plume or ambient air, there is ample timely notice to the pilot due to symptoms of the degraded engine performance, and gauges, that ice is accumulating and therefore carburetor heat should be applied to melt the ice. Pilots must face normal variations in temperature and humidity conditions over relatively small changes in airspace location of greater magnitude than variations which would be presented by cooling tower plumes. A-5. The Applicant's witness panel included two meteorologists, hiessrs. Staynard E. Smith and David E. Seymour, with impressive cre-dentials and experience in studying cooling tower plumes (including from aircraft). Str. Seymour is also an experienced pilot and Gight instructor with a commercial license. See professional qualifications, ff. Tr. 6234. Likewise, the Staff presented an excellently qualified witness panel consisting of an experienced meteorologist, Ntr. Earl H. Starkee, and an FAA official, Str. Bernard A. Geier, who serves as manager of the General Aviation and Commercial Division of the Flight Operations office. Str. Geier has been a certified pilot for over 40 years, and has been a flight instructor. The Staffs panel also included a Staff nuclear engineer, Str. Harry E.P. Krug, because of his expertise as an instru-ment rated commercial pilot. See professional qualifications, ff. Tr. 6883. As might be expected from their qualifications, these witnesses, both in the written direct testimony and under extensive questioning at the hearing, displayed thorough knowledge and understanding and strong, thoughtful support for their conclusions. Indeed, they tried sal. iantly in response to sometimes confusing, repetitive questions, to ex. plain their analyses and bases so that AWPP's lay cross-examiner, Str. Romano, would understand the situation. A 6. In contrast to Applicant's and Staff's witness, AWPP's repre-sentative (who also testified on behalf of AWPP), displayed insufficient knowledge and expertise to be relied upon. He is a chemist with science degrees. However, he had no knowledge of the meteorology involved in plume behavior. He has been a licensed pilot of small planes with 10 years of flying experience, much of it in the local Limerick area. However, although he is rightfully concerned, as a pilot of a small 455 l 1 l 1 l
w airplane, with carburetor icing, his premises of the behavior and effect
, of plumes were proved incorrect, as was his unlikely postulation that inexperienced, imprudent pilots might not use carburetor heat to prevent, or if necessary, remove an accumulMion of carburetor ice.
Romano (qualifications and testimony), ff. Tr. 6725. A-7. The evidentiary hearing sess. ins on this contention were held on January 11-13 and 17-18,1984. , i t*
- 2. Behavior of Cooling Tower Plumes ,
s A 8. In our unpublished Memorandum and Order of Nov' ember 8, 1983, we denied Applicant's motion for summary disposition of this contention. In doing so, we held that if Applicant had established, as an c' indisputable fact, its proposition that temperature and moisture condi-tions in cooling tower plumes beyond a distance of one-quarter mile from the tower were insignificantly different from those in the ambient air, summary disposition would have been warranted. We would have so , ruled because aircraft would not,jindeed could not, reasonably remain within the influence of a plume within a quarter of a mile of the cooling tower for more than a few seconds' - too short a time period for car-buretor icing to affect the aircraft. November 8,1983 (" Summary Disposition") Order at 3 4. A-9. At the summary disposition stage, we found that there could be a question about the applicability to Limerick of the 1981 Thomson + Pennsylvania State University study relied on for Applicant's "one-quar-ter mile from tower significance proposition," because the design of the cooling towers of the Keystone Plant used in the study was different. /d. at 4. BaM on the facts established at the evidentiary hearing, as set fortn below, we find that the Applicant, without any reasonable contra-diction, has established by the overwhelming preponderance of the evi-dence that the Limerick cooling tower plumes will not have temperature 3 and moisture conditions significantly different from the ambient air beyond a quarter n'ile from the tower. A 10. To dissipate the waste heat from the operation of the facility, the Limerick Generating Station will employ two large, natural draft hy-perbolic cooling towets 507.5 feet in height. Markee, ff. Tr. 6883, at 3-5. A II. The operation of towers of the type used at Limerick creates visible plumes of water vapor under certain atmospheric conditions. The i For example, auumirig both a slow airspeed of 70 mph. and an airplane noen through the ions a mis or the plume within a quarter mde or the tower. J plane would traserw the quarter mde in 10 wconds Any other Hight path would supme the airplane u >nental nin6 conditiorts for en eve I shotter time
\
456
)
plume emitted by the Limerick towers will always have a higher tem-perature and greater water content than the ambient air. Excess water vapor will condense to form a visible plume approximately 50 to 80% of the time. The plume will always be less dense than the ambient air and will rise due to buoyancy. Id. at 313; Tr. 6296, 6298-99, 6320, 6324 (Smith). The exact temperature and humidity content of the plume as it exits the tower will depend on the temperature of the ambient inlet air i drawn into the tower and the amount of heat being dissipated from the plant (at different plant operating levels). Tr. 6317,6322 (Smith). A 12. As the plume rises it will be cooled by expansion, evapora-tion, radiation and mixing with the ambient air. Markee, ff. Tr. 6883, at 3-13 to 3-14; Tr. 6290,6293 (Smith). The rate of heat dilution and con-sequent plume behavior are affected by the natural turbulence in the at-mosphere, the vigor with which the plume exits the tower (1100 to 1600 ft/ min at full power operation), and the humidity and temperature of the ambient air relative to the humidity and temperature of the plume. Tr. 6292, 6296, 6407 (Smith); Tr. 6630 (Boyer). Very rapid mixing occurs in the immediate vicinity of the tower. Tr. 629193 (Smith). A-13. A temperature differential of as little as tenths of a degree -(Fahrenheit) over the ambient air will result in a buoyant plume. Tr. 6681 (Smith). As they exit from the cooling towers, the plumes will be very close to or at saturation. Tr. 6639 (Smith). Strong winds expedite the mixing process and reduce the plume's buoyancy as its warmer, wetter air is dispersed. Tr. 6299 (Smith). On the other hand, if the at-mosphere is relatively still, plumes will rise almost vertically to greater heights and will continue to rise, usually until they reach a layer in which temperature increases with height, i.e., an inversion layer. Tr. 6299 6300,6407 (Smith). Normally, as a plume rises under nearly calm conditions it generates its own turbulence and mixing and either dissi-pates while rising vertically or reaches a layer in which there is transport wind and is carried away. Tr. 6302 03 (Smith). A plume rising into air that is already saturated and therefore has a cloud deck will blend into and become part of the ambient cloud deck. Tr. 640810 (Smith). A 14. As testified to by both the Applicant and Staff, it is extremely rare for cooling tower plumes to assume a lateral orientation before reaching an altitude of 1000 feet. Tr. 6894,6908 09 (Markee); Tr. 6298 (Smith). In their studies of natural draft cooling tower plumes, Appli-cant's witnesses did not find a single plume whose rise leveled off below 1000 feet. They found only one bent-over plume between 1000 and 1200 feet. Tr. 6298,6334,6619 (Smith). Additionally, the Staff testified that there is only an extremely small probability that a plume waft might reach the ground in the vicinity of Limerick Such an event could only 457
occur as a result of very turbulent, hurricane type conditions, which would be conducive to plume dispersion in any event. Tr. 6894-95 (Mar-kee).
- 3. Studies of Cooling Tower Plumes A- 15. Applicant's witnesses relit.d upon two cooling tower piume studies as part of the bases for their testimony that plumes will not alTect carburetor icing in the Limerick area. Smith and Seymour, fE Tr. 6234, at 5-7; Tr. 6423 (Smith). One of these studies, the Thomson (Pennsylva-nia State University) study of the Keystone cooling towers in Western Pennsylvania (App. Ex.13), was conducted expressly to determine con-ditions inside and outside visible and invisible plumes. Tr. 6259, 6279, 6405, 6418 (Smith). The visible plume was tested by making airplane flights at right-angle cross-sections at various altitudes from top to bottom and at various distances along the length of the plume. Tr.
6259 60, 6419, 6458 (Smith). When the visible plume termmated, those procedures were employed downwind at the same altitudes and at increasing distances out to 10 miles to test the invisible plume. Tr. 6419, 6458,6460-61 (Smith). This technique enabled the researchers to inter-sect the so-called invisible portion of the plume with great regularity. Tr. 6262,6279,6419-20,6459 (Smith). A- 16. The Thomson study results indicate that in-plume temperature and humidity conditions vary sharply within one-quarter mile of the tower, with both quantities significantly exceeding ambient levels for very short periods. Smith and Seymour, ff. Tr. 6234, at 5-6. Beyond a quarter mile, however, in-plume temperatures were found to be almost. indistinguishable from those of the external air, and the humidity dif-ference dropped to 0.25 gm/kg or less. This is a very small excess as the natural atmosphere, when saturated, contains about 3.5 gm/kg of water vapor at 30*F. This figure increases to 22 gm/kg at 80*F. Smith and Seymour, ff. Tr. 6234, at 5 6 and Figs. I and 2; Tr. 7094, 7106-07 (Markee). A- 17. Contrary to AWPP's unsupported claims, the results of the Thomson Keystone study are valid for Limerick. The key climatic condi-
)
tions applicable to carburetor icing are nearly identical at Keystone and l Limerick. Smith and Seymour, ff. Tr. 6234, at 6; Tr. 6423-24 (Smith); i Tr. 7033-34 (Markee). The plume and weather conditions at Keystorie are not affected by the modest ridges located 40 miles away. Tr. 6444-45 (Smith). A-18. As noted in our order denying summary disposition, the Key-stone towers are smaller than the Limerick towers - 325 feet and 507 458
i. feet, respectively. However, the expert witnesses for the Applicant and Staff testified that based on American Electric Power data, there is little difference in comparative behavior of plumes from cooling towers from plants that are about 500 megawatts and larger. Tr. 6424 25 (Smith); Tr. 7033 (Starkee). This was not contradicted by either other testimony or under cross-examination. A 19. We agree with the Applicant's conclusion, supported by Staff's meteorologist (Tr. 7033, 7086-87, 7106 07 (Starkee)), that as a result of the plume and ambient air mixing processes described above, the distance would not exceed one-quarter mile from the tower within which temperature and humidity in the plume could reasonably vary enough from the ambient air to cause or exacerbate carburetor icing. This is well supported by their expert knowledge of plume phenomena, their review of the literature, and the Thomson Keystone study. See, e.g., Smith and Seymour, IT. Tr. 6234, at 5 6 and Figs. I and 2: Tr. 6267, 6286,6312-13 (Smith); Tr. 6286,6350 51 (Seymour).
- 4. A WPP's Disagreements Regarding Plume Behavior A 20. AWPP's disagreements with the information and conclusions regarding plume behavior testified to by the Applicant's and Staff's ex-perts are insubstantial and without foundation. The arguments by AWPP's representative show an unfortunate apparent inability to under-stand the testimony. Indeed, the arguments illustrate why the testimony of AWPP's representative is entitled to no weight. For example, AWPP seems to believe that the testimony that plumes will not affect carburetor icing beyond a quarter mile from the tower means that Applicant and Staff believe that plumes longer than a quarter mile will not exist. This is not correct. The testimony is that longer plumes will exist, at times as much as 5 or 10 miles long. Tr. 6264-65 (Smith). On rare occasions, the Applicant postulated that, based on American Electric Power studies per-formed by 5fr. Smith, and a computer modeling run for Limerick, the Limerick plumes may even exceed 10 miles. Smith and Seymour, ff. Tr.
6234, at 7 8. This is not inconsistent with the well-supported, uncontra-dicted, and often repeated testimony at the hearing, regarding the lack of significant temperature and humidity deltas of the plume over the am-bient air at distances greater than one-quarter mile from the tower. A-21. Similarly, AWPP's argument (proposed finding 6) that the velocity of the plume as it exits the tower, of 1100 to 1600 feet per minute, contradicts the testimony oflack of significance beyond a quar-ter of a mile. This argument is a non sequirur. In the first instance, even if that velocity continued, we fail to see how a high velocity plume could 459
contradict the testimony and data oflack of signiGcance of the conditions within the plume beyond a quarter mile. To the contrary, if such selocity continued it would appear to promote even more rapid mixing of the plume with the ambient air. In any event, the testimony was only that these velocities occurred at the point of exit of the plume from the tower, not that they persisted. See our Finding A-12. A-22. AWPP postulated that saturated, stagnant ambient conditions could cause the cooling tower plumes to remain near the ground and concentrate in an inversion condition, causing a carburetor icing threat. This was unsupported by AWPP, and was authoritatively discredited by the expert testimony of the Applicant and the Staff. As noted above (Finding A-13), when the ambient air is saturated, the plume will rise into the atmosphere, continue to mix with the ambient air, merge with the cloud deck, and then be transported away over the course of about an hour. Tr. 6408-10 (Smith). Further, during stagnant ambient condi-tions, plumes would rise to greater heights than normal and would not cause a signincant humidity increase in the airspace close to the tower or the ground. Smith and Seymour, ff. Tr. 6234, at 14; Tr. 6407, 6712-13 (Smith). There is no such thing as completely stagnant air - air always moves, although at slower rates in stagnant conditions. Tr. 7050-51 (Markee). A-23. The plume phenomena described above show that even when ambient dispersion conditions are poor (i.e., stagnant), plumes will rise to heights of several thousand feet, where the stronger winds will dis-perse them. Markee, ff. Tr. 6883, at 2. The computer model run for Limerick by the Applicant is consistent with this expert view. It indicates that the Limerick plumes will always reach a height of at lea'st 1000 feet above ground before leveling off, if they have not dissipated before reaching that altitude. Smith and Seymour, IT. Tr. 6234, at 7-8. See also our Finding A-14
- 5. Aircraft Carburetoricing I A-24. AWPP's assertion that the Limerick cooling tower plumes will lead to increased aircraft carburetor icing ignores the fact that the condi-tions causing carburetor ice formation are well understood and that steps have been taken to assure that it does not present a significant problem to pilots who are reasonably attentive. Smith and Seymour, ff. Tr. 6234, at 8; Geier, ff. Tr. 6883, at 2-4; Krug, ff. Tr. 6883, at 2 3. Carburetor icing occurs as follows: The vaporization of fuel, combined with the rapid expansion of air as it passes through the carburetor intake valve, causes that mixture to cool; the water vapor content of the intake air 460 l
may then condense, and if the temperature in the carburetor reaches 32*F or below, the moisture can be deposited in the fuel intake system as frost or ice which may reduce or block the passage of the fuel / air mix-ture to the engine and cause engine failure. Due to the venturi effect of a partially closed throttle valve, carburetor ice is more likely to form when the throttle is not fully open. The temperature of air passing down-stream of the throttle valve may drop as much as 60*F. Smith and Seymour, ff. Tr. 6234, at 8; Geier, ff. Tr. 6883, at 2. A-25. On very dry days and when the temperature is well below freezing, the moisture content of the air is not sufficient to cause car-buretor icing. But if the temperature is between 20*F and 90*F, and moderate humidity or visible moisture is present, there is a potential for carburetor ice to form. Smith and Seymour, IT. Tr. 6234, at 8-9; Tr. 6517-18 (Seymour).
- a. Timefor Formation A-26. Experiments have been conducted on the ground using an au-tomobile engine and an airplane carburetor to accumuhte the greatest amount of carburetor ice in the least amount of time so as to establish the power losses associated with timed exposure to optimum icing condi-tions. Such studies are done in a laboratory because it is difficult to find optimum conditions for carburetor ice accumulation occurring naturally.
Tr. 6507-08 (Seymour). A -27. At such conditions (68'F and 100% humidity), the study found it would take 8 minutes of flying time for enough carburetor ice to accumulate to cause a 25-rpm reduction in engine speed. This result assumes that the proper preventive and remedial measure of using the carburetor heat control, discussed below, is not taken. Such a drop is not even significant enough probably to be noticed by the pilot. Smith and Seymour, ff. Tr. 6234, at 9; Tr. 6374-77, 6527-28 (Seymour). The FAA witness appearing on behalf of the Staff stated in his direct written testimony that although carburetor ice can form instantaneously under the proper conditions, it does not accumulate at wh a rate that the pilot who pays attention to the signs cannot prevent engine stoppage due to blocking by ice of the carburetor throttle. Geier, ff. Tr. 6883, at 2. A-28. On its face, the FAA witness' prepared testimony is not incon-sistent with the Applicant's testimony based on the icing test studies. In-stantaneous ice formation is not an accumulation of carburetor ice which would create a flying hazard. That this is what the FAA witness meant was clarified at the hearing. IIe and the other Staff pilot witness did not wish to testify to a particular time frame such as 5,8 or 10 minutes, due 461
to variation in aircraft and conditions. Tr. 7002-03 (Krug, Geier). However, he explained he agreed with and had no evidence to believe that the conclusion of the study relied on by the Applicant was wrong - i.e., that it would take some time (8 minutes according to the study) of flying through adverse conditions without carburetor heat to accumulate enough carburetor ice to present a significant hazard to an aircraft. Tr. 7001-03 (Geier). A-29. Based on the above, even if an airplane would fly in the plume within a quarter mile of the tower, it would pass through that area in a matter of seconds - much too soon for hazardous carburetor ice to accumulate. The use of the quarter mile distance as the maximum area of potential adverse effect was conservatively based on the premise that differential conditions between the plume and ambient air condi-tions of not more than 1*C or a half a gram of water vapor per kilogram of air would not have an effect on carburetor icing. Tr. 6249 (Smith). As discussed above (Finding A-16), the conditions beyond the quarter mile distance would not exceed that. Actually, the one-quarter-mile distance proposition is conservative, because a differential between the plume and ambient air conditions of 2 or 3'C and 10 or 20% humidity would not significantly affect aircraft carburetor icing. Tr. 6267 (Smith). A-30. Moreover, even if we believed, contrary to the evidence, that the cooling tower plumes could cause carburetor icing for distances beyond one-quarter mile from the tower, and that pilots would not apply carburetor heat to prevent or remedy icing, there is another factor which demonstrates that the contention has no merit. The record fully sup-ports, and we agree with, Applicant's proposed findings (45-47), show-ing that it would be highly unlikely - indeed a nearly impossible, pur-poseful maneuver - for a pilot to keep a small general aviation airplane of concern in this contention within even the largest cooling tower plumes for their full extent long enough for enough carburetor ice to form to present a hazard to the airplane. See, e.g., Smith and Seymour, ff. Tr. 6234, at 7 11.
- b. Prevention and Elimination of Carburetor icing A-31. It is not necessary to make further findings in order to decide that the contention lacks merit. However, we do so to show that the con-servative assumption used to this point that the pilot would not prevent or, if encountered, remedy carburetor icing, is unrealistic.
A 32. All airplanes with carburetors are required to have carburetor heat systems to prevent and eliminate icing. Geier, ff. Tr. 6883, at 3. All parties agree that aircraft manufactured since World War II have such 462
4 4 j l ? i a I systems, and therefore 99% of the airplanes flown in the Limerick area are so equipped. Tr. 6651 (Seymour); Tr. 6834 (Romano). i A-33. AWPP agrees that if carburetor heat is used, ice will not form. Tr. 6352 (Romano). Unless the ice were allowed to accumulate over a long enough time, during which the pilot would have to ignore seriously degrading engine performance, by design of the airplane carburetor ice 4 can be removed in seconds by the use of carburetor heat. Tr. 6364-67, 6376 78,6383-84,6668-71 (Seymour); Tr. 7004-05 (Geier). Carburetor ice would not cause instantaneous engine failure without significant
-noticeable symptoms alerting the pilot to the problem. Tr. 6376-81, 6628-29 (Seymour). A trained pilot would not be likely to confuse the indications of other engine problems with the indications of the accumu-lation of carburetor ice. Geier, ff. Tr. 6883, at 4-5.
A-34. Beyond the fact that a pilot should be able to remedy a car. buretor ice problem after detection, there are proper flight procedures - for different maneuvers to prevent a carburetor ice problem. These procedures would prevent problems in the local Limerick area even though there are airplanes taking off and landing at local airports near Limerick.r ' A 35. Carburetor heat is not used in normal flight as it reduces the output of the engine, but pilots are trained to apply carburetor heat at i the first indication of an icing problem. Smith and Seymour, ff. Tr. 6234, at 12. Also, carburetor heat is not normally used during takeoff be-
; cause full power is desired and the potential for carburetor ice is less when the throttle is fully open. Tr. 6673-75 (Seymour); Tr. 7042 (Krug). However, before taking off a pilot should test his carburetor i
heat control. This will assure that it is working. It will also indicate whether any ice is present based on the reaction of the engine to the ap-plication of the heat. If symptoms of ice occur during that prellight check, then the carburetor heat should be reapplied just before takeoff to assure the carburetor is clear at that time. Smith and Seymour, ff. Tr. 6234, at 12: Tr. 6673-74 (Seymour). A-36. In making an approach for landing an aircraft which has a car. buretor, the pilot normally applies carburetor heat on the downwind leg even if there is no indication of carburetor ice. An' increase in engine rpm after the carburetor heat is applied is an indication that carburetor ice was present and that the heat has eliminated it. Such an increase is 2 Based on our findirigs on plume behavior, local airport traffic will not be affected by the plumes which, if they do not dissipate first, will nse to over a thousand feet above the ground. The typical air-- port traffic attitude is 800 feet for hght aircraft and 1000 feet for heavy aircraft. Tr. 6688 89 (seymour). The pattern altitude at the closest airport. Pottstown-Limenck es 889 feet above the ground (1200 msn. well below the lowest heights at which plumes willlevel oft Tr. 710102 (Geier). 463 1 w-++ e g- - - - - - .- -'+ -.+- - - - p~g- +-+v-. 1- ,gm - g- ap. . 7+e .g*-.g._pp ay -
an indication that the pilot should contmue to use the carburetor heat. ' "As required" in a flight manual instruction regarding the use of car-buretor heat means that normal procedure is to leave the carburetor heat on throughout the approach. Tr. 6890, 7007-08 (Geier). A-37. In the case of a "go-around," a situation in which a pilot must reapproach the runway after beginning his pre landing descent, carbure-tor heat would have been applied during the pre-landing descent. Once a pilot realized that a go-around had become necessary, carburetor heat would be eliminated and full power applied, thus ameliorating any icing potential. Carburetor heat would again be applied upon reentering the landing approach. Tr. 6676 (Seymour); Tr. 6835-36 (Romano); Tr. 6890 (Geier). A 38. It is not our conclusion that aircraft cannot be placed in haz-ardous circumstances, perhaps even to the point of a tragic accident, by carburetor icing. But it is our finding that this would occur only due to pilot fa '.ure to use well-established procedures and available equipment. The procedures are well established and the carburetor heat systems are required precisely because aircraft carburetor icing is a well-recognized potential hazard. A-39. More to the point, any variation between the cooling tower plumes and the ambient air is insignificant when compared to the much 4 larger normal temperature and moisture variations over relatively small changes in location that pilots face in routine flights through ambient air. Indeed, changes in altitude of a few hundred feet may result in dif-ferences of 5 to 10*F and 50 to 60% in humidity. Tr. 6997-98 (Krug); Tr. 6356 (Smith); Tr. 6367 (Seymour); Tr. 6644-47 (Smith, Seymour). A-40. Based on all of the above. we find that AWPP Contention V-4 lacks merit. i B. FOE Contentions V-3a and V-3b: Natural Gas and Petroleum Pipeline Accidents L Background B-1. On September 19, 1981, Mr. Robert L. Anthony filed a peti-tion to intervene on behalf of himself and Friends of the Earth in the Delaware Valley (FOE), including some thirteen proposed contentions. In its Memorandum and Order of October 14,1981 (unpublished), this Board scheduled a special prehearing conference for approximately the first week in January 1982 to consider, inter alla. the contentions, the ob-
. jections to the contentions, and the responses by petitioners to the objec-tions - from all participants in the proceeding at that time. We also re-
{ quired that all contentions be refiled, since coordination among petition-464 f 7 --- , . - - ,.
ers had not taken place and some of the preliminary contentions were poorly organized, redundant and unclear. B-2. On November 24, 1981, in a Supplemental Petition of Coor-dinated Intervenors, FOE, among eleven other petitioners, filed seven proposed contentions, which superseded those filed previously. FOE / Mr. Anthony was found to have standing to intervene in this proceed-ing. The Board denied six of FOE's seven contentions in its Special Pre-hearing Conference Order (SPCO) of June 1,1982. LBP-82-43A 15 NRC 1423 (1982). Our ruling on one of FOE's contentions (VIII-l1. having to do with emergency' planning) was deferred until after the Lim-erick emergency plans became available. While we denied FOE's Con-tention V-3, related to the danger of fire and explosions in connection with gas and oil pipelines and industry near the plant, we allowed FOE 30 days to file contentions which would allege specific deGeiencies which FOE believed existed in the FSAR analysis of these matters. Id. at 1513-14. FOE responded to our SPCO on July 7,1982, listing ten con-tentions that it characterized as severe deficiencies in } 2.2 of the FSAR. Generally, these related to explosions, fires and missiles arising from pipeline and industrial activities. B-3. In our Order (Concerning Proposed FOE Contentions on Hazards from Industrial Activities) of November 22,1982 (unpub-lished), we denied all but two of the newly proposed contentions, i.e., Contentions 3 and 5. To focus trisse contentions on the areas of concern, the Board rewrote and renumbei'd them, as follows: V.3 a. In developing its analysis of the worst case rupture of the ARCO pipeline, the Applicant provided no basis for excluding consideration of siphoning. Thus, the consequences from the worst case pipeline accident are understated. V-3 b. In discussing denagration of gas and petroleum due to pipeline rupture, no specinc consideration has been given to the effect of radiant heat upon the diesel generators and associated diesel fuel storage facilities. B-4. We note that with respect to Contention V 3a, consequences from the worst-case pipeline accident were understood to encompass missiles of pipe fragment or rock damaging plant facilities as well as damage from overpressure. With respect to Contention V-3b we note that concerns about the impact of a pipeline fire on the diesel generators and the diesel fuel storage facilities were not discussed explicitly in the FSAR.3 Although not explicitly part of FOE's contentions as admitted, 3 foe / Anthony Gled a response to and a monon to reconsider our November 22.1982 order regardir's foe contentions on December 19.1982. (1pon reconsiderauon, we denied tise monon on %rch 10. 1983 (LBP.8314.17 S RC 473). 465
l t 5 the Board found that consideration of the detonation of natural gas from the Columbia Gas pipelines, which all parties had addressed in their pre- ! filed testimony, should properly be considered for completeness, given the issues in controversy before us. " Memorandum and Order Ruling on Motions to Strike Testimony" (December 1,1983) (unpublished). B 5. As a preliminary matter, we note that the proposed testimony of Mr. Anthony on Contentions V-3a and V 3b was not accepted, be-cause he does not possess the expertise necessary to testify as an expert witness. We did allow the testimony of Mr. Bevier Hasbrouck, on the basis that he was marginally qualified as a physicist to discuss pipeline ' explosions, even though he had no direct experience in this area. Evi-dentiary hearings on these matters were held on December 12 16, 1983; 1 January 9-10,23 25, March 8 9,20 23,1984. B 6. The Board wished to ascertain from the Applicant and the Staff at the outset whether they depended, for any part of their cases on these contentions, on the probability of a breach in the pipelines occur-ring, as opposed to the nature of such a breach and its potential conse- r
' quences. Both Applicant and Staff conceded that a pipe break could occur. Tr. 5076 (Wetterhahn); Tr. 5076-77 (Vogler). Consequently, we do not consider the probabilities of rupture of either the ARCO or the Columbia pipelines. We do consider the consequences of worst-case acci-dents potentially resulting from the rupture of these pipelines in the vicinity of the Limerick Generating Station. To do this we determine, in turn, the nature of the materials transported in the pipelines, how much of these materials could react to produce heat and blast overpressures and the ability of safety-related structures, systems and components to withstand such impacts, including interactions from the nonsafety-related structures, systems and components that could be damaged from i
the results of potential heat or blast impacts. 1
- 2. Summary B-7. In consideration of FOE's Contentions V-3a and V-36, the Board has carefully evaluated the potential effects on the Limerick Sta- ;
tion of postulated ruptures of the ARCO and Columbia pipelines. We have not considered what might have been argued as to the low probabil-ity of such ruptures. We have considered what we believe to be very con-i servative postulates of accident scenarios that would lead to radiant heat and overpressure impacts on the Station. Such conservatisms include ' the distribution of material released from the pipelines, the meteorologi-cal conditions prevailing at the time of rupture, the transportation and dispersion of flammable mixtures toward the Station and the assumption 466 i i - . e- -ev. t y -
that such unconfined mixtures could be detonated. Even assuming burn-ing or detonation of such mixtures, conservative calculations of the radi-ant heat loads and overpressures on the safety-related structures at Lim-erick, and the effects of failure of nonsafety-related structures on the safety related structures, demonstrate the adequacy of these structures to withstand the effects of postulated ruptures of the ARCO and Colum-bia pipelines. Accordingly, we find FOE's Contentions V 3a and V-3b to have no merit. B-8. We find the Applicant's and Staff's witnesses to be qualified and competent in their respective disciplines and their testimony to be credible and persuasive. On the other hand, we find the qualifications of FOE's sole witness to be limited, in education, training or experience ap-plicable to the issues raised in these contentions. Based on limited qualifications, and the content of his testimony, we assign no weight to his testimony.
- 3. The ARCO Pipeline
- a. Description ofPipeline B-9. The ARCO Pipe Line Company operates and maintains a pipe-line that traverses Chester and Montgomery Counties in Pennsylvania.
This is known as the 8" Northeast Boot (Pa.) to Fullerton (Pa.) Pipe-line. It consists of an 8-inch-diameter, 0.250-inch wall thickness x 42 grade steel pipe coated with a coal tar enamel and additionally protected against corrosion by an impressed electrical current cathodic protection system. Christman, ff. Tr. 5093, at 1-3. The pipeline has a capacity of 31,700 barrels : r day
- and operates at a maximum pumping pressure of 1100 pounds per square inch gauge (psig). Normal operating pressures for gasoline are 850 to 875 psig and for diesel and furnace oil,950 to 1000 psig. The pipeline was buried at least 3 feet below grade at the time it was constructed in 1955. Christman, ff. Tr. 5093, at 3.
- b. Contents ofPipeline B-10. The pipeline carries automobile gasoline, kerosene, diesel oil and home heating oil. ARCO Pipe Line Company has stipulated in an amendment to its right-of-way agreement with PECo that it will not carry propane through the line. The pipeline has never carried butane or
'one barrel or petroleum products is camvalent to 42 gallons. Thus. 31.700 barrets per day is eqwva.
lent to 55.475 gallons per hour (spM. 467 e
i liquefied natural gas (LNG) and could not carry either product without " physical modification of the pipeline. Tr. 5109 (Christman). Although the pipeline could carry aviation fuel, which is simply a higher octane i gasoline than used for automobiles, the line has never been used for this I purpose, to the knowledge of Alr. LeRoy A. Christman, who is the hion-tello District hianager for ARCO for approximately 1000 miles of pipe-line in Pennsylvania and New York, including the 8" Northeast Boot to Fullerton Pipeline. The present tariffs on file with the Pennsylvania Public Utilities Commission (PUO cover transportation of the follow-ing: gasoline, kerosene, jet engine fuel, tractor fuel, diesel fuel, and , light and medium fuel oil. Christman, ft. Tr. 5093, at 1,4. Kerosene and ' i jet engine fuel would be less volatile than automobile gasoline. Tr. 5231 4 (Christman). Automobile gasoline was considered in the Applicant's analysis because it is the most volatile substance carried and has the highest energy content. Aviation gasoline has a lower volatility and 1 lower heat content than automobile gasoline. Walsh, IT. Tr. 5411, at 4. No new product has been added since 1978. Tr. 5122 (Christman). If propane were added to the tariff, it would certainly be known by h!r. Christman and others well in advance. Tr. 5122 (Christman). See also Agreement attached to the Testimony of Vincent Boyer, ff. Tr. 5412. a
- c. Location ofPipeline l B-11. The Northeast Boot to Fullerton line is 48.87 miles long.
i i Christman, ff. Tr. 5093, at 3. Within a radius of 5 miles of the Limerick site the pipeline runs generally in a south-to-north direction. FSAR Fig. 2.2-1. See also Fig.1, taken from the SER (Staff Ex. 6) and reproduced at the end of this section of the decision solely to provide a general depiction of the orientation of the ARCO and Columbia Gas pipelines. I Its location in the vicinity of the site is depicted in Applicant's Ex.18, a site plan drawn with a scale of 1 inch equal to 200 feet. This plan in-cludes 2-foot topographical contour lines. It shows the pipeline proceed-ing northward from the easternmost corner of the Limerick Information Center parking lot approximately 400 feet, then slightly west of north for approximately 850 feet, then north for approximately 500 feet, and then east of north for approximately 1200 feet. Almost directly east of the valve and meter house (located between the two cooling towers), i the pipeline crosses Possum Hollow Run. Approximately 550 feet south of this crossing, the surface elevation reaches the nearest high point in this direction of approximately 244 feet mst (mean sea level). Approxi-mately 1300 feet to the east of north of this crossing, the surface eleva-tion reaches the nearest high point in this direction of approximately ~ ' 468 i I 4
- . _ , , _ - _ . _ . , = . . , , _ .
l 272 feet msl. PECo's witness Walter C. Payne identified these high points as being approximately 270 feet elevation, approximately 1400 feet north and approximately 245 feet elevation, approximately 600 feet south of the Possum Hollow Run crossing. Tr. 5378 79 (Payne). The elevation of Possum Hollow Run at the point of the pipeline crossing is i approximately 168 feet mst. The nearest approach of the pipeline to the Unit 2 reactor building is approximately 1603 feet. The Unit 2 Diesel Generator Building is 1665 feet away. Payne, ff. Tr. 5357, at 5. It should i be noted, however, that the location of the pipeline itself, or the location of breaks in the pipeline, are not necessarily considered to be the actual locations of the fires or explosions that are postulated for the purposes of this decision. These latter locations are determined from the postulat- , ed break locations and other factors, such as topography, wind direction and speed, as discussed below. B-12. FOE contended that the Applicant did not know where the ARCO pipeline was located (in the vicinity of the Limerick site) and that the Applicant could be wrong by 50 to 100 feet. Tr. 5135 36 (Anthony). Witness Payne testified that using a more refined technique
.than photogrammetry/ PECo knew the location of the pipeline within less than I foot over 90% of its length and within a foot or two over the 4
remaining 10% Tr. 5380-81 (Payne). The more refined technique is de-scribed in detail by Payne, ff. Tr. 5357, at 3 4. From its recent investiga-tion, the Applicant determined that the location of the pipeline as in-dicated in FSAR Fig. 2.2-4 deviates slightly from its true location. At its
, maximum deviation, it is actually 50 feet farther from the Station facili-
. ties than shown in the FSAR figure at the point where the pipelir.e exits from the northern boundary of the Station property. Payne, ff. Tr. 5357, at 10.
B-13. Staff witness Charles M. Ferrell testified that he checked this location of the ARCO pipeline in three ways, (a) by use of a high-altitude (24,000 feet) infrared photograph of the Limerick site (Attach- }' ment I to the prefiled testimony of Ferrell et al.'; see Tr. 6133 35), (b) a high-altitude (12,000 feet) black and white photograph of the Limerick site (Attachment 2 to the same prefiled testimony), (c) and by flying over the site at low elevations. Ferrell et al., ff. Tr. 6136, at 4, 5. He concluded that the ARCO pipeline is accurately indicated on Fig. 2.7 of the SER. This Figure appears to be a reduced replica of Applicant's Ex. 18. B-14. FOE failed to controvert the evidence of the Applicant and Staff concerning the location of the ARCO pipeline. The Board finds that the location of the ARCO pipeline is accurately indicated on Appli-cant's Ex.18. 469 4 J - I
f B-15. In any event, the exact location of the pipeline is important ' only for the purpose of determining the location of potential flammable mixtures of gasoline and air that could result from a pipe break. Measur-ing distances to within 1/16 inch on Applicant's Ex.18 permits distances
, to be determined within approximately 10 feet, which, as will become i
evident in our discussion of consequences, is clearly more than accurate enough for the analysis required for reaching our conclusions with re-spect to this contention. We rely, however, on the Applicant's survey, as presented in Mr. Payne's testimony. Payne, ff. Tr. 5357, at 3-5.
- d. Nature of the Release B-16. A number of " scenarios" were postulated for the release and distribution of gasoline from the ARCO pipeline, its evaporation and for-mation of an explosive volume within the atmosphere, its burning or detonation and the resulting heat and overpressure impacts on the Lim-erick structures. Initially, Applicant assumed a break to take place where the pipeline crosses Possum Hollow Run at a time when automobile gasoline was being transported. Gasoline was postulated because it is the most volatile substance transported by the pipeline and has the highest energy content. Because the pipeline is monitored by pressure sensors to detect sudden rises or decreases in pressure that would automatically shut off the pumps, Applicant assumed that the total amount of gasoline released would be limited to that contained in the pipe between the high points on either side of the break. This was calculated to be 4962 gal-lons. Walsh, ff. Tr. 5411, Attachment 1,- at 1-2. By assuming the break
- at the low point - Possum Hollow Run - the maximum amount of \
gasoline would be released. In the case of a small leak, Applicant testi-fled that it would be detected by the operators in a relatively short time by inventory procedures and the pipeline would be shut down. Walsh, ff. Tr. 5411, at 3-4. Applicant also initially omitted consideration of any siphoning effects that could increase the amount of gasoline escaping, i because to achieve such siphoning, an additional opening to the atmos-phere would have to occur at a location beyond an adjacent high point. Id. at 5-6. Intervenor challenged the lack of consideration of siphoning in its Contention V-3a. While the Board finds that siphoning could not be conclusively excluded, based on the record before us, we need not try to speculate on the additional amour.t of gasoline discharged from the break caused by siphoning which might result from an additional opening in the pipe at some other undefined location. Rather, the Board notes that the record also does not support the reliability of automatic or manual shutdown of the pumps in the event of a leak from or break of 470 e et%-.-+- - w- w -n. '- - ,,-g - w - g-m - . g.-yy
the pipe. Thus, as a worst case, we consider the case where the pumps operate continuously after the break.
- e. Formation of a Flammable Mtxture B-17. The " source term" for the quantity of gasoline that could lead to an explosive mixture with air is not the total amount that escapes the pipe, but instead the surface area of the gasoline as it spreads over the terrain after leaving the pipe. The surface area is the important consider-ation because it controls the rate at which the gasoline evaporates and permits the vapor and air to form an explosive mixture. Walsh, ff. Tr.
5411, at 6. We proceed to consider the surface area that might be cov-cred with gasoline as a result of a pipe break not only at the low point where the pipeline crosses Possum Hollow Run, but at other locations as well. Breaks at locations other than the low point could produce a larger surface area of gasoline for evaporation. B-18. Considering the topography traversed by the ARCO pipeline (see App. Ex.18), it is clear that given a break in the pipeline at any point between the high points on either side of Possum Hollow Run, the escaping gasoline will flow downhill under the force of gravity toward Possum Hollow Run and thence downstream in Possum Hollow Run (generally to the southwest) to the Schuylkill River. Given a break in the pipeline on the other side of either high point (away from Possum Hollow Run), the escaping gasoline would flow downhill under the force of gravity in a direction generally away from the plant structures, to less proximate drainage systems, and therefore cause lesser effects. Walsh, ff. Tr. 5411, at 4. Thus, the worst case, and therefore the bounding case, that we need only to consider is a break between the high points on either side of Possum Hollow Run. B-19. The size of a pipe break can, of course, range from a complete double-ended guillotine failure to a small crack. For the complete break, gasoline would be released from the upstream section of the pipe no faster than the quantity pumped per unit time. For the downstream sec-tion of the pipe, only that gasoline in the pipe which could Gow out of that section under gravity and/or siphoning could escape. Flow under these conditions would be characterized as a gushing as opposed to a spray. For smaller cracks, gasoline would be sprayed at a rate depending on the crack size and existing pressure within the pipe. It is known from experience that under conditions similar to a break in the ARCO pipe-line, the sprayed material from a crack can cover a signincant area, cer-tainly as much as the order of 9000 square feet. StalT Ex. 9, NTSB-471
d f i PAR-76 8, Fig. 3.5 Assuming such a continuous discharge to be spraying an area on the east bank of Possum Hollow Run and just below the i southern high point of the pipeline, the gasoline would then flow down-hill to Possum Hollow Run, covering additional terrain. Assuming the area sprayed to be roughly circular, its diameter would be approximately 130 feet. Thus the width of the swath covered by the downward flowing gasoline would be approximately 130 feet. From the site plan (App. Ex. ! 18) the distance from the postulated break to Possum Hollow Run is ap-proximately 500 feet. The total area on the east bank covered with gaso-line would be not more than 500 x 1130 = 65,000 ft 2. In fact, the area would be much less, since the gasoline would flow in rivulets rather 7 than uniformly covering the entire ar'ea. Tr. 5723 (Walsh). B-20. In its initial analysis the Applicant assumed that the quantity of gasoline (4962 gallons) it assumed to be discharged from the break ) i located at Possum Hollow Run was confined to the creek bed between the location of the break and the first downstream bridge in a pool 610 meters long by I meter wide by 3 centimeters deep. Walsh, ff. Tr. 5411,
- at 5. No credit was taken for cutflow to the Schuylkill River or for ab-sorption of gasoline into the soil. This 610-square-meter pool corre-sponds to 6566 square feet. The Staff, in its Supplemental Testimony,
'. postulated the area of the spill from the hillside break as the sum of the area of the spill pathway on the hillside (3 m x 158 m) and the area of the pool 610 meters long, but 3 meters wide, i.e.,474 m2 + 1830 m2 = 2300 m2,'or 24,800 ft2 . Ferrell er al., fT. Tr. 7136, at 2. Due to the width of Possum Hollow Run, the Staff considers the assumption of a 3-me-ter-width water surface of the pool to be conservative by a factor of 2. Tr. 7157 (Ferrell). B-21. Applicant assumed the evaporation rate of gasoline to be I cm/hr, with all the butane being evaporated in the first hour at a uniform rate. From this, Mr. Walsh calculated that 1922 gallons of gasoline evap-orated in the first hour. Then, using the explosive limits for gasoline 4
~
vapor, of 1.3 to 6.0% by volume, he calculated that iflayering and grad-ual upward expansion of the vapors in the valley are assumed (0.06 - 0.013 = 0.047) x 1922 = 90.3 gal. of gasoline would be within explosive limits. For gasoline at 5.75 lb/ gal. this corresponds to 519 pounds, which j would be equivalent to 5252 pounds of TNT equivalent, if all were deto-nated. Walsh, ff. Tr. 5411, Attachment 1, at 1-3. The Staff, using a con-
- servative calculational technique to estimate the gasoline evaporation r
i f 5 From the figure the maximum distance sasoline was sprayed rrom the soCAL 8. inch pipehne was ap-proximately DO reet. The area sprayed approximates one sixth or a circle with a radius or 130 feet. Thus, the area sprayed was approximately wu30}2/6 = 9000 ft2, t 1 472 4 1 i e py v. y --ww-g www vvy ---* *my 3er - m-e' T - " g 'e-'e+1- -?en-++-*+s--Tv. W#T W9-ew - - - -- *.i-9-(-ey - c--Ne+gve ----r--
_ _=. ._ _ _ _ _ _ Y 4 1 rate, and conservative atmospheric temperature and stability assump-tions, derived the amount of gasoline vapor assumed to be in the valley to be 773 pounds (approximately 134 gallons). The Staff then, very con-servatively, assumed all of this vapor to be in the flammable range and thus equivalent to 1856 pounds of TNT if detonated. Ferrell et al. ff. Tr. 7136, at 5. Applicant initially used a conversion factor for TNT equiva-lent that was 4 times too great. 1
- f. Overpressure Calculations 3
B-22. The actual volume of explosive vapor would be distributed over a length of some 600 meters along Possum Hollow Run. Both Ap-plicant and Staff, however, assumed a point source for the blast. Such an assumption is clearly conservative, perhaps by a factor of as much as 10. Ferrell et al., fT. Tr. 7236, at 5-6; Tr. 7158-59, 7263 (Ferrell); Tr. 6187 . (Campe): Tr. 7165 (Markee): Tr. 5602 (Walsh). The Staff assumed the location of the point source to be 960 feet due east of the Unit 2 reactor building, whereas the Applicant assumed both 800 feet (where the slope
+
of the valley toward the reactor building is most gradual) and at 550 feet i (in the direction of the closest approach of Possum Hollow Run to the Station). Both Applicant and Staff took no credit for shielding effects of the topography on the calculated overpressure resulting at the reactor building from the assumed detonation of all of the explosive mixture. The Applicant's results were 1.9 psi at 800 feet and 3.0 psi at 550 feet (using the incorrect, overly conservative conversion factor for TNT equivalence). Walsh, ff. Tr. 5411, at 7-8; Tr. 5575-78, 5583-88 (Walsh). i The Staff calculated a peak reflected blast overpressure, from a detona-
; tion 960 feet due east, on the Unit 2 containment building of 1.1 psi for 1 an assumed wind speed of I m/sec and 1.2 psi for 2 m/sec. Ferrell er al.,
ff. Tr. 7136, at 6. For a wind speed of 1 m/see and 550 feet the Staff cal-7 culated 2.1 psi. Tr. 7344 (Campe). i B-23. With respect to the postulated break in the ARCO pipeline. Mr. Hasbrouck's scenario included the following: 42,000 gallons of gasoline sprayed over 10,000 square meters (approximately 108.000
; square feet), for which he had no scientific basis, Tr. 5995, 6004, 6100-01,6115 (Hasbrouck), resulting in 10,500 gallons of gasoline in an i
explosive mixture. This compares with Applicant's result of 90 gallons and the Staff's conservative estimate of approximately 135 gallons. The sprayed patch of brush and trees on the side of the hill supposedly would
; generate dense vapor which then slides down the hill. This movement supposedly sucks in fresh air which causes added evaporation. Thus the vapor density supposedly powers a convection current down through the l i
1 473 a . - . ~ .-
~
1 l 4
patch. With an unlucky selection of slope, breeze, etc., this convection current consists of an explosive mixture, i.e., any value between 1.3 /o and 6% by volume. Hasbrouck 1, ff. Tr. 5750, at 2-3. B-24. Other FOE postulates, i.e., two simultaneous explosions, trans-port of a flammable mixture to the Schuylkill River and upstream along the railroad track and suction by the cooling towers of an explosive mix-ture out of Possum Hollow towards the plant, were similarly unsupport-ed. Tr. 5257-58 (Ferrell, Sfarkee); Hasbrouck 2, ff. Tr. 5750, at 3; Tr. 7352-53 (Hasbrouck); Tr. 7353, 7488-89 (Starkee). B-25. The Board assigns no credence to the FOE postulates and re-sutting calculations of overpressure on the Limerick structures resulting from a breach of the ARCO pipeline. Rather, the Board finds that the peak positive reflected pressure of 2.1 psi calculated by the Staff is conservative.
- 4. The Columbia Gas Pipelines
- a. Description of the Pipelines B-26. Columbia Gas Transmission Corp. operates two pipelines that transport only natural gas (methane). These pipelines share a common right of way and run parallel to each other 20 to 30 feet apart, generally southwest to northeast through 31ontgomery County, Pennsylvania (see Fig. I at the end of this section). Pipeline No.1278 is 14 inches in diameter. It was constructed in 1949 and operates at a normal pumping pressure of 750 psig and a maximum pumping pressure of 938 psig. Pipe-line No.10110 is 20 inches in diameter. It was built in 1965 and operates at a normal pumping pressure of !!00 psig and a maximum pumping pressure of 1200 psig. Each pipeline was constructed of steel commensu-rate in thickness and grade with its maximum operating pressure and, when constructed, was buried a minimum of 3 feet below grade. Both pipelines are protected against corrosion by an impressed current cathod-ic protection system which prevents rusting in the same manner as a bat-tery cathode is protected. Brown, ff. Tr. 5261, at 3-4.
B-27. The nearest compressor stations (i.e., pumping stations) to the Limerick Station are the upstream Eagle Compressor Station, located 9.7 miles south of the point where the pipelines cross the Schuylkill River (6000 feet southeast from the Limerick Station structures) and the downstream Easton Compressor Station located 44.4 miles north of this point. The valves in the pipelines closest to the Limerick Station are at the Schuylkill River and 4 miles north of the river for line 1278 and 4.3 miles north of the river for line 10110. /d. at 6. These are manual valves. Tr. 5330-31 (Brown). 474 i l l
B 28. Suction and discharge pressures are monitored at both the Eagle and Easton Stations and by the gas control center at Bethel Park, Pennsylvania. High pressures (938 psi on line 1278 and 1200 psi on line 10110) are designed to cause automatic shutdown of compressors. Tr. 5322 (Brown). Low pressures (425 psi on line 1278 and 770 psi on line 10110) trigger alarms at the control centers and at the Eagle and Easton Stations. Tr. 5321 (Brown). If a low pressure alarm occurred, the com-pressor units would be shut down manually and no additional gas would be introduced into the lines. Tr. 5288 (Brown). Under worse conditions, where a line break or large leak occurs in the middle of the night and crews must be called out, it was estimated that valves could be closed and the flow of gas stopped within approximately 2 hours. Brown, fr. Tr. 5261, at 6. Neither line 1278 nor line 10110 has experienced any leak or rupture in the history of its operation. Id. at 6. Breaks in other natural gas lines of similar design, structure and usage have occurred. In 1960, a 30-inch pipeline operating at 936 psig suffered a linear fracture of ap-proximately 625 feet. A fire occurred at the moment of rupture, burning trees and landscape 400 to 500 feet on either side of the line, but no damage occurred beyond 500 feet. In 1982, a 10 inch pipeline operating at about 980 psi completely severed, resulting in an instantaneous fire which burned trees and the landscape 250 to 300 feet on either side. Brown, ff. Tr. 5261, at 6.
- b. Contents ofPipelines B-29. The Columbia Gas pipelines transport only methane in the gaseous state. There are no plans to transport either propane or butane and the existing compressors would have to be replaced before these materials, in either gaseous or liquid form, could be transported in any event. Tr. 5318, 5325-27, 5341, 5349-50 (Brown). Further, approval by the Federal Energy (Regulatory) Commission would be required to transport anything other than natural gas. Tr. 5349 (Brown).
- c. Location of the Pipelines B 30. The Columbia Gas pipelines cross the Schuylkill River at a point approximately 6000 feet from the Limerick Station structures and proceed approximately in a straight line somewhat north of northeast for more than 2% miles. Staff Ex. 6 (SER), Fig. 2.6. The actual location, at their closest approach to the Limerick site, is depicted m Applicant's Ex. !
18 from which it can be determined that the closest approach is at least 3400 feet. Applicant verified that the closest approach is approximately 475
l 1 1 1
- 3500 feet. Payne, ff. Tr. 5357, at 7-10. His attempt to determine the possible error in the location of the pipelines from comparison of a U.S. j i Geological Survey map and photogrammetric interpretation of pipeline j traces and Columbia Gas Transmission Company plans indicated possi- t ble mean errors ranging from 15 to 51 feet. Payne, ff. Tr. 5357, at 8,9. l Intervenor FOE / Anthony indicated that he had a lot of confidence in Applicant's site plan and that even if the location of the pipelines were otT by 100 feet, he didn't think that would be a controlling factor. Tr.
5361 (Anthony). We agree.
- d. Nature ofthe Release ,
- B-31. Disregarding the reality or probability of a break in the larger (20-inch) pipeline, for purposes of analysis, a double-ended rupture was
, assumed by the Applicant to occur at the closest approach of the pipeline to each of the safety-related structures of the Limerick plant. Boyer et aL, ff. Tr. 8213, at 6, 7. For such a break it would be possible for the
- entire contents of the pipeline between the Eagle Compressor Station j and the Easton Compressor Station to be released. Since the gas is im-1 mediately dispersed in the atmosphere by its own momentum, by ditTu- ,
t sion and by wind, the nature of the cloud formed that is potentially f explosive depends upon the rate at which the gas is released, not upon
- the total quantity released during an incident. Thus, it is irrelevant whether or not the compressor stations are shut down after the breaks.
; The rate of release of gas from a break depends upon the size of the j opening in the pipe and the sonic velocity of the released gas. Walsh, ff. ; Tr. 5411, at 11.
1
- e. Formation ofFlammable Mixture B-32. When the gas is first released from the pipe, the concentration of methane in air is too rich to be flammable or explosive. As the gas disperses into a cloud, the concentration decreases to the upper limit of i flammability and continuing dispersal reduces the concentration below I
the lower limit of flammability. The flammable limits of natural gas are between 6 and 14% by volume in air. Walsh, ff. Tr. 5411, at 12. This dis- t i persion is a continuous process, so that for a constant rate of release of j gas, a constant stability condition and constant temperature of the am-
. bient atmosphere and a constant wind speed, a fixed region in space will result within which the methane air mixture will be within flammable limits. The dimensions of this region define the amount of methane that
, could burn or explode.- 4 476 4 J d
- , - - - , .~ , -
B-33. To calculate conservatively the potential blast and heat effects on the Limerick structures, the Applicant made a number of conserva-tive assumptions. First, the maximum openings in the two ends of the ruptured pipe were assumed to be the full cross-sectional area of the t pipe. Second, both pipe ends were assumed to be forced into a vertical orientation. Any other configuration would result in additional turbu-lence and consequent increased dispersion, causing the point at which the methane-air mixture decreased below the llammable limit to be fur-ther from the Limerick plant. Walsh, ff. Tr. 5411, at 11; Tr. 5424 (Walsh). Third, Applicant conservatively assumed an atmospheric stabil-ity of Pasquill "F," an inversion condition. Atmospheric conditions actu-ally are more conducive to dispersion 95% of the time. Fourth, Applicant assumed a 1-m/sec wind, moving the gas cloud directly toward the Lim-crick Station, during Pasquill "F" conditions, a situation that occurs only 0.004% of the time. Walsh, ff. Tr. 5411, at 10,11; Tr. 5432-35,
-5458, 5470 (Walsh). If the wind were blowing in any other direction, the elTects of a potential detonation on the Limerick facility would be less, since the location of the detonation would be further from the 4
Station. Similarly, if the wind speed were higher, greater dilution of the methane-air mixture would occur and the region of flammability would be further from the Station. Walsh, ff. Tr. 5411, at 12. Fifth, Applicant , assumed the escaping gas Grst rose above the ground level from momen-tum velocity to an elevaticn of approximately 500 feet, before traveling toward the plant. Tr. .'421 (Walsh). This assumption results in the maxi-mum concentration of the methane-air mixture to occur as far downwind as possible. If the mixture traveled at ground level there would be more mixing with air which also would cause the region of flammability to be further from the plant. Walsh, IT. Tr. 5411, at 12; Tr. 5463-65 (Walsh). B-34. The Applicant calculated the concentration of natural gas in
; the atmosphere both downwind, crosswind and vertically as a function of distance at 100-meter intervals downwind from the source of natural gas, under the assumed conservative conditions. From the results of these calculations, Applicant calculated the volume of the region in-which the methane-air mixture would be within explosive limits to be 3.74 x 105 m).*
l 6 volume orellipsout = V = 4 x abc/3. where a. b. and c are the lengths of the semi ames. o = 840/2
= 429 m 6 = 50/2 = 25 m. and c = 25/2 = 12.5 m. for the elhpsoid whose surface corresponds to 1
the points where the concentration of methane is at 4.31 K 10 7micrograms /m3. the lower explosive l hmit. e = 480/2 = 240 m. 6 = 35/2 = 17.5 m. e = 20/2 = 10 m. for the ethpsoid whose surface cor. i responds to the points where the concentration of methane is at 101 x 108 micrograms /m l the upper i explosive limit. w lsh. a fr. Tr. 5411. Attachment 3. at 3 5-1
- 477 1
4 e.
. - - , . -. __. _ ~_, _ -- -, _ - , -_
f Overpressure Calculations B-3 5. Assuming the average concentration of the gas within the upper and lower explosive limits to be (14% + 6%)/2 = 10%, the volume of natural gas contained within the volume of detonable mixture is 0.10 x 3.74 x 105 = 3.74 x 104 m3 Also, assuming the density of methane to be 0.0448 lb/ft at O'C, this vclume is equivalent to 5.92 x 3 10' lb of natural gas at explosive mixture concentration, or 347 tons of TNT equivalent. Walsh, ff. Tr. 5411, Attachment 3, at 3-5. Since the density of methane decreases with increasing temperature, the assump-tion of 0*C is conservative most of the time and would not affect the result significantly if the temperature were below 0'C. B-36. Using Staff Ex. 7 (NRC Regulatory Guide 1.91) and assuming that the explosion centroid is located at an elevation 500 feet above ground and approximately 700 meters downwind (toward the Limerick Station structures, which would be approximately 1200 feet from the Unit 2 containment building), triggend by some undefined high-energy ignition source, the calculated peak positive normal reflected pressure was determined to be 10 psi at the nearest safety-related structure, i.e., the Unit 2 reactor building. Walsh, ff. Tr. 5411, at 5. Additional conser-vatisms (see B-33, above) in this analysis include:
- a. break at exactly the nearest point of approach to the Limerick Station.
- b. vertical rise of the gas column to 500 feet above plant grade (where the momentum energy decays), without dilution. Tr.
5428 (Walsh).
- c. natural gas clouds seldom, if ever, detonate in an unconfined space.
- d. it is difficult to hypothesize an ignition source to trigger a deto-nation in an elevated cloud.
B-37. FOE postulated a number of conditions which it alleged would cause a flammable mixture to be transported to the vicinity of the Station, i.e., Possum Hollow. These included the assumption of a nega-tively buoyant (i.e., much colder than ambient) cloud being transported to reach the closest location to the Station.7 FOE performed no calcula-tions and did not provide any credible technical basis to support this postulation. Tr. 5990-94,6085 86 (Hasbrouck). In fact, practical experi-ence in purposely blowing down a natural gas pipeline indicates a reduc-tion in temperature of the gas of 7'F/100 psi reduction in pressure, but 7 At O'C the density of air is 0.081 lb/ft). the densary of methane is 0.045 lb/ft 3 . wa lsh, fr. Tr. 5411. At. tachment 3. at 1. 478
4 the gas does not stay cold because of immediate mixing with the air 1 around it. Tr. 5298,5346,5353 54 (Brown); Tr. 5430 (Walsh). B-3R. Consideration also was given by the Applicant to simultaneous t i rupture of both Columbia Gas pipelines, notwithstanding the lack of basis for such a postulated event. Enhancement of the elTects resulting i from the simultaneous rupture of the 14-inch line and of the 20-inch line would be minimal because of several factors. The difference in . diameters and the difference in operating pressures would cause the two plumes to enter the atmosphere at different elevations, causing the j zones of Dammability to occur at different distances from the Station. !
- Thus, for simultaneous detonations or simultaneous rupture, the over-pressure effects would arrive at the Station at different times and there.
fore not be directly additive. Merging of the two plumes, which could only. take place under much less favorable meteorological conditions, would result in the Dammable mixture being located closer to the point of release, reducing any overpressure effect. Tr. 5604-05, 5727-28 (Walsh). ' B-39. ,With respect to the Columbia pipelines, Mr. Hasbrouck as-sumed 350 tons of TNT equivalent at a distance of 800 feet. Hasbrouck , 1, ff. Tr. 5750, at 4. Applicant calculated 347 tons of TNT equivalent using a TNT equivalence factor of 10, which is 4 times too great accord- ! ing to Regulatory Guide 1.91, Rev I (Staff Ex. 7). Ferrell, fr. Tr. 9401, I at 5; Tr. 7467 (Campe); Tr. 9170 (Ferrell). Staff used a TNT equivalence factor of 2.4 to obtain 71 tons and used the Applicant's calculated hori-zontal distance to the cloud centroid of 1200 feet. Ferrell, ff. Tr. 9041, at 1 6-9; Tr. 9138,9147 (Ferrell). Mr. Hasbrouck chose 800 feet, by assum-ing the methane gas would not rise above ground until after reaching Possum Hollow Run and then rising before detonation. Hasbrouck I, IT. Tr. 5750, at 3-4. In fact, he believed it was possible for a Dammable mix-ture to be caused by a break in the pipeline where it crosses Possum Hollow Run and to travel 5500 feet and remain in a concentration that
- would be Dammable. He did not have a technical basis for this (sce-
} natio) arid characterized it as half-baked. Tr. 6008-09 (Hasbrouck). The Board gives no weight to this testimony and finds the testimony of the l Applicant and Staff to be credible and uncontroverted with respect to the overpressure and radiant heat load impacts of potential ruptures of d the ARCO and Columbia pipelines on the Limerick Station. i B-40. For further explication of the Applicant and Staff results of { overpressure calculations, we provide, as Figs. 2, 3 and 4, tabular sum-i maries of overpressure calculations. Boyer et al., ff. Tr. 8213, Tables I I and II and Staff Ex. 23. Using the correct value for TNT equivalence, i 1- the maximum overpressure calculated by the Applicant was 8.3 psi from !, 479 1 s .,1 q ' g y.w w- --Jwem - - - - + - .-
--ap y gr -,w qw. -
-mv-
l an air burst on the reactor building and diesel generator building exterior I walls (Fig. 3). The comparable calculations by the Staff resulted in over-pressures of 7.4 psi on the diesel generator building Unit 2 exterior wall l and 7.3 psi on the reactor building Unit 2 exterior wall (Fig. 4). Figure 2 values were calculated using the conservative (by a factor of 4) value for TNT equivalence.
- 5. Radiant Heat Load Calculations
- a. ARCO Gasoline Pipeline B-41. Both the Applicant and the Staff calculated the radiar.t heat load on the Limerick Station safety related structures resulting from 4
burning gasoline teleased from the ARCO pipeline. The Applicant's cal-culation assumed that the total amount of gasoline contained in the pipe-line between high points adjacent to the break (4962 gallons) burned in 15 minutes. The 15-minute period was conservatively used to maximize the heat generation rate. Walsh, ff. Tr. 5411, at 8. Based on 20,000 Btu /lb of gasoline, this would amount to 5.71 x 108 Btu released in 15 minutes or at a rate of 2.28 x 10' Btu /hr. Id., Attachment 2, at 5-6. The radiant heat may be calculated using the formula, id. at 5, D = (FQ/(4 K))*, where D = distance in feet from flame midpoint to receptor F = fraction of heat radiated ] Q = heat release in Blu/hr K = heat radiated in Btu /ft2 -hr, D2 = FQ/12.57 K
- ' K = FQ/12.57 D2 For F = 0.30 (based on Butane values)
- D = 800 feet, the distance to Possum Hollow Run in the direc-3 tion in which the valley wall is least steep on the Station side, to minimize the effects of shielding by the valley wall.
K = 0.30 x 2.28 x 10'/12.57 x 6.4 x 105
= 85 Btu /ft2-hr. This is equivalent to approximately 270 W/m2 B-42. Applicant also calculated the radiant heat load on the Unit 2 reactor building arbitrarily assuming 21,000 gallons of gasoline burned in 15 minutes, a scenario it does not believe to be credible, to demon-strate the effects of 4 times as much gasoline burned as in its original calculations. Using the same method and 800-foot distance, the result was 350 Btu /ft2 -hr. Walsh, ff. Tr. 5411, at 9. This would be approximate-ly 1100 W/m2 480 i
4 M s-- - - - - ,,r.y- g-- re s
B-43. The Staft's calculation proceeded dilTerently. It believes that ig-nition of a gasoline vapor cloud would cause burning in less than i min-ute, or would flash back to the point of issuance of gasoline from the pipe rupture. This was considered reasonable, since the liquid gasoline on the hillside and along the creek would be rapidly consumed. Ferrell et al., 7136, at 12. It believes the potential thermal effects of such burn-ing would be insignificant because of the distance from the Unit 2 reactor building and because of the expected short duration of the fire. To esti-mate the radiant heat from a sustained fire of the gasoline issuing from the rupture, it assumed a 100-foot-diameter vertical column of burning gases located at the pipe break, i.e., at the nearest approach of the pipe-line to the Unit 2 reactor building, a distance of 1625 feet. The result was 265 W/m2. Ferrell et al., ff. Tr. 7136, at 12-13; Tr. 7431 (Ferrell). B-44. The Staff noted that the average solar flux in Washington, D.C., is 170 W/m2 and the peak solar flux in Albuquerque, N.M., is in the range of 1000 to 1250 W/m2. Id. B-45. The Board finds, based on the uncontroverted testimony of the Applicant and Staff, that the radiant heat load on the safety-related structures of Limerick Station resulting from burning gasoline released from a rupture of the ARCO pipeline will not pose an undue hazard to the Station.
- b. Columbia Gas Pipelines B-46. With respect to a rupture of the Columbia 20-inch gas pipe-line, the Applicant calculated the radiant heat load on the safety-related structures of the Limerick Station using the same formula as above.
B-47. Applicant assumed the heat release to be the volume of gas burned per second times the heat content released per unit volume, i.e., 4800 ft)/see x 1050 Blu/ft) = 5.04 x 106 Bru/sec or 1.814 x 10m Bru/hr. Walsh, ff. Tt. 5411, Attachment 2, at 1. The record does not show the basis for the 4800-ft /sec number, but the heat release clearly is conserv-2 ative, since the Applicant assumed extended burning of the vapor cloud at its :losest approach to the Station. Assuming that the cloud burns at 1200 feet from the Station, K = 0.25 x 1.814 x 10m/12.57 x (1200)2
= 250 Btu /ft2 -hr B-48. The Staff also calculated the consequence's of burning of natu-ral gas released from the 20-inch Columbia pipeline. It considered a double-ended rupture occurring at the closest approach (3500 feet) of the pipeline to the Station, resulting in a natural gas fireball of 300-foot 481
\
l l l 1 diameter and infinite height. The 300-foot diameter is believed by the ; Staff to ,be characteristic of previous experience. Even if the initial ' diameter were larger, it would diminish in seconds and the Staff analysis assumed sustained burning over a long period of time. The infinite
' height was assumed for calculational simplicity. Tr. 7436-37 (Campe).
4 The Staff concluded that the potential heat flux from a burning natural gas cloud would be insignificant with respect to the plant structures. Campe, ff. Tr. 6131, at 3. This conclusion is corroborated by reference to Staff Ex.14, NUREG/CR-1748, which estimates the thermal radia-tion (mean emissive power) from a turbulent methane flame to be 100 kW/m2. Using the formula, id. at F 2, i F s F(D/rP, where j T = radiant heat at the receptor - I E = radiant heat at the flame edge D = diameter of flame r = distance from flame to receptor r = transmissivity of the atmosphere And using a conservative value of r as 0.66, id. at F 3, a diameter of 300 feet and a distance of 3350 feet, I T = 100(300/3350)2 x 0.66
= 0.802 x 0.66 = 0.53 kW/m3
= 530 W/m2 B-49. This is the result reported in the SER, Staff Ex. 6, at p. 2-13.
While comparable to solar heat radiation, the effect on Station structures would indeed be insignificant. ! 6. Effects ofPostulated Detonation on Safety-Related Structures B-50. In response to a request by the Board, the Applicant and Staff 4 analyzed the ability of safety-related structures at the Limerick Generat-ing Station to withstand the effects of postulated detonations resulting from the assumed rupture of the ARCO and Columbia Gas transmission pipelines. The Board expressed an interest in both the ability of the structures to withstand such postulated detonations and the margins of ' structural safety above the calculated blast overpressures inherent in the design of the structures. Tr. 5934-35. Evidentiary hearings on the ability of the structures to withstand the postulated explosions and the margins of structural safety took place on March 8,9, and 20 23,1984. 482 i 1 i
~
I
- l. - , . _ -._ _ _ _ _ . , _ _-_ _, _
B-51. In assessing the ability of a structure to resist the effects of explosions, the effect to be considered is the resulting pressure on the structure. This pressure (or overpressure) is in the form of a shock wave which expands through the air radially from the center of the explosion and diminishes with distance. As the shock wave impinges on the struc-ture, the structure will experience a structural loading. The magnitude of the loading is measured in units of pressure - commonly pounds per square inch (psi). Given the size of tne explosion in TNT equivalence and the distance to.a given structure, the overpressure on the structure in psi can be calculated. The structure can then be assessed as to its abili-ty to withstand the applied overpressure loading. Both Applicant and Staff, using conservative explaion scenarios, assessed the ability of the safety-related structures at the Limerick Station to withstand the pos-tulated explosions. Boyer er al.. ff. Tr. 8213; Ferrell, ff. Tr. 9041; Kuo and Romney, ff. Tr. 9043. B-5 2. Applicant calculated the highest overpressures that would result from the worst-case ARCO or Columbia Gas pipeline explosion on the roof and exterior walls of each safety-related structure. Boyer et al., ff. Tr. 8213, at 6-13. See Fig. 2 at the end of this section. B.53. The pressures resulting from the postulated rupture and deto-nation of gasoline from the ARCO pipeline were always significantly less than that resulting from an assumed detonation of the vapor from the Columbia Gas transmission line rupture. The maximum peak positive reflected pressure from an ARCO pipeline explosion calculated by the Applicant (Walsh) was found to be 1.9 psi. /d. at 7. B 54 For the postulated Columbia Gas pipeline rupture, both Staff and Applicant utilized the methodology set forth in Regulatory Guide 1.91 (Rev.1), for determining TNT equivalency to hydrocarbons and graphs provided in the Army Technical Manual TM 5-1300 " Structures to Resist the Effects of Accidental Explosions." /d. at 6-11; Ferrell, ff. Tr. 9041, at 2. Staff Ex. 7 and 20. The peak pressures shuwn as design / assessment values for the Columbia pipeline explosion in Applicant's Table I (see Fig. 2 at the end of this section), represent the maximum pressures that would be developed assuming a surface burst and a detonable mixture approximately 4 times that suggested by Regulatory Guide 1.91 (Rev.1). Applicant recalculated the blast overpressures in accordance with the guidance of Regulatory Guide 1.91 (Rev.1). The re-calculated values are shown in cols. I and 2 of Applicant's Tabte !! (see Fig. 3, attached), and are lower than the values in Table I. The pressures used in Applicant's structural margin assessments were taken from Table I and represent an additional conservatism. The highest overpres-sure for a Columbia gas explosion shown in Table I is 10 psi while the 483
)
highest value shown in cols. I or 2 of Table 11 is 8.3 psi. Boyer er al.. ff. Tr. 8213, at 7, Tables I and II. B-55. Neither Staff nor Applicant agreed that the detonation of un-confined or open-air natural gas cloud is a credible event. Ferrell, ff. Tr. 9041, at 2, and Tr. 9066; Boyer er al., ff. Tr. 8213, at 5. Uncontroverted evidence established that unconfined natural gas can only be detonated with high energy sources such as TNT and even then with difliculty. No such sources of energy are known to be available at the Limerick site. Tr. 6157-58,7423,7450-52 (Campe). B-56. Regardless of the evidence presented as to' the improbability of an open-air gas detonation, as a conservatism, both Applicant and
, Staff assumed a gas explosion at a horizontal distance of 1200 feet from the structure and at 500-foot elevation, the maximum height to which the natural gas could rise as a result of momentum from the postulated pipeline breach. The Board notes that no sources ofignition exist at 500 feet, let alone a source of sufficient energy to cause a detonation. Boyer et al.. ff. Tr. 8213, at 6,8; Ferrell, ff. Tr. 9041, at 2.
B-57. Applicant also calculated overpressures assuming an air burst and a surface burst. From these calculations, Applicant determined that estimated overpressure produced from the postulated TNT-loaded rail-road boxcar explosion used in the design basis and elevated natural gas (500-foot elevation) explosions were greater than those of all other pos-tulated pipeline scenarios. Boyer et al., ff. Tr. 8213, at 11. B-58. Staff and Applicant calculations for the 500-foot-elevation gas explcsion and employing the guidance used in Regulatory Guide 1.91 (Rev.1) are in close agreement. Tr. 8815 (Walsh); Tr. 9067-68 (Ferrell). Any differences in the numbers are attributed to the analyst's accuracy in picking the numbers off the table in Army Technical Manual TM 5-1300. Tr. 8815 (Vollmer). The comparable values are contained in col. 2 of Applicant's Table 11 and col. I of Staff's Table 1 (Boyer et al., ff. Tr. 8213, and Staff Ex. 23, fr. Tr. 9055, respectively). The largest dif-ference between comparable Applicant and Staff Columbia blast over-pressure calculations was 1.0 psi (for the reactor building wall). This is larger than might be expected to result from inaccuracy in reading values from a graph. The difference might be explained by the Staff's use of 1300 feet as the distance from the structure. Ferrell, ff. Tr. 9041, at 7. It appears that Applicant used a horizontal distance of 1200 feet in its calculations, not the slant distance of 1300 feet. Boyer et al., ff. Tr. 8213, at 6. B-59. Staff calculations indicated that the railroad boxcar explosion generated greater overpressures than any postulated explosions of either 484 w
. - . - _ . - - - - ._.. -_.- ~ . - - -- - - _.
I 1 i~ i the ARCO or Columbia Pipeline materials. Ferrell, ff. Tr. 9041, at 10 and Table 1 (Staff Ex. 23), ff. Tr. 9055. (Fig. 4 of this Decision.) i 7. Margin Analysis ofMargins ofStructuralIntegrity to } Postulated Overpressures B-60. After determining the critical overpressure for each safety-i related structure (Reactor Buildings and Diesel Generator Buildings for l Units I and 2, the Control Building and the Spray Pond Pumphouse), i Applicant identified the critical wall of each structure and the critical ele-
- ment of that wall for detailed analysis. The critical element selected was 1
a 1-foot-wide beam element with fixed ends. This is a conservative selec-tion of the critical c!cment because if the wall slab had been evaluated as a whole rather than as a beam section, considerable additional support would have been provided by the adjacent walls. Tr. 8417, 8479 81, 9018 (Vollmer); Kuo and Romney, ff. Tr. 9043, at 4. 1 B-61. Applicant then isolat'ed the 1-foot-wide wall strip and applied the highest determined overpressure as a uniform load on the length of 4 the strip. The criterion used for structural adequacy was the ductility ratio of the element. Tr. 8822 23 (Wong). B-62. The response of a structure or structural member to load is deformation. Loading up to a certain level results in clastic deformation. 1 For any loading imposed up to the elastic limit, the structure will return ' to its original shape when the load is removed. Any loading greater than the elastic limit puts the material into the plastic range and results in
- permanent defc,rmation. Materials or structural elements that have
- deformed into the plastic range will not return to their original shape.
! Ductility is the ability of a structure or structural member to deform
- beyond its clastic limit without rupturing. The " Ductility Ratio" is the l ratio of the total deformation (clastic plus plastic) to the deformation that would occur at the limit of the clastic range. Kuo and Romney, ff.
Tr. 9043, at 5. B-63. Applicant calculated the ductility ratios for the loaded criticai i sections and compared the calculated values against the maximum code allowable, which is forth set in Regulatory Guide 1.142 as a mid span i ductility ratio of 3.0 and an end-point ductility ratio of 10. Tr. 8948 i l (Palaniswamy). ' B-64. After applying the maximum blast overpressures to the struc. tures and calculating the ductility ratios, the ratios were compared with the code-allowable value of 3.0 for mid-span and 10.0 for the end-point
- ratio. In all cases the determined ductility ratios were within the limits established by the code. The highest mid-span ratio calculated was 2.2 i <
485 i 1-9
. - . . y . , _ . - , ,, -- . _ _,.eu-._ m.e , . - - , _ . , , , , , , - - - ,
and the worst-case end-point ratio was 2.9. Tr. 8947-48 (Palaniswamy); Tr. 9069 (Kuo). B-65. The Applicant then determined tne blast overpressure that would'cause deformation up to a ductility ratio of 3.0 at mid-span and compared that value with the calculated blast overpressure. The result was expressed as a percent of margin. Boyer et al, ff. Tr. 8213, at 13-15; Tr. 8822-24 (Wong). B-66.- Staff did not make independent calculations of ductility ratios. margins, or shear. and moment calculations of the safety related struc-tures. They did, however, make a detailed review of the assumptions, models,' techniques and methodologies employed by Applicant and found them to be appropriate and conservative. Kuo and Romney, ff. Tr. 9043, at 3-4; Tr. 9069-70, 9221 (Romney); Tr. 9206-08, 9221-23 (Kuo). B-67. Regarding the conservatism of the bounding ductility ratio of 3.0 for mid-span deformation, tests have indicated that beam elements, such as the wall panel strips used in the structural analysis here, do not actually fail until they reach ductility ratios of 20 and beyond. Tr. 9019-20 (Palaniswamy). The one-way slab analysis, used by Appi cant in its assessment, rather than a two-way analysis, is conservative in that no credit is taken for support from adjacent walls. If a two-way analysis were to be used, the structural safety margins would be larger. Tr. 9206-07 (Kuo); Tr. 8417,9018 (Vollmer). The calculated safety margins are not predicated on the ultimate failure threshold of the structure. They are based on code values acceptable for structures of the type con-sidered here. Accordingly, some additional unquantified safety margin above the calculated margins exists for these structures. In Applicant's Table II (fr. Tr. 8213) (Fig. 3, attached), a comparison of cols. 3 and 4, respectively, which are the pressures calculated using the conservative , TNT equivalent (by a factor of 4), with the pressures used in structural l assessment (col. 5), margin is shown to be available in both the reactor ' building and the diesel generator building. For the control structure and
- the spray pond pumphouse the values of 4 times the Regulatory Guide values exceed the structural assessment values. For those cases, using the proper TNT conversion factor, margins do exist, as is apparent from the values listed in column 2 of Fig. 3. Applicant's demonstration of a structural safety margin for the reactor and diesel generator buildings even when using 4 times the TNT-equivalent explosion suggested by Regulatory Guide 1.91 (Rev.1) is a significant additional conservatism in assessing the adequacy of the Limerick structures to resist the effects
.of blast overpressures..Boyer et al, ff. Tr. 8213, at 12,13; Tables I and II, ff. Tr. 8213.
486
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[_.
B-68. Applicant also conducted an evaluation of the global response margins inherent in the design of the safety-related structures at Limer-ick. This evaluation consisted principally of a determination of the over-turning moment and story shear on entire structures as a result of the postulated explosions and a comparison with the moments and shears re-sulting from the design basis safe shutdown earthquake (SSE). In each case, the overturning moment and the story shear associated with the SSE were found to be larger than that associated with the postulated explosions. Since the plant has been designed to withstand the safe shut-down earthquake loading values, there is more than adequate structural capacity to resist the forces associated with the postulated explosions. Global response safety margins were calculated by dividing the SSE load-ing values by the loading values calculated as a result of the explosions. Kuo and Romney, ff. Tr. 9043, at 8 and 9; Tr. 9361-62 (Kuo); Vollmer et al., ff. Tr. 8213, at 11; Tr. 8824-26 (Wong); Tr. 8826-27 (Vollmer).
- 8. Factors Allegedly Not Considered in Margin Analysis
- a. General B-69. FOE alleged that the Applicant's margin analysis did not con-sider the effects of deadload, vibratory loads, inside/outside pressure and temperature differentials, hydrostatic pressure and differential settle-ment on the safety-related structures at the Limerick Generating Sta-tion. Testimony indicated that each of these factors was adequately con-sidered. Tr. 8368-83,8442-54,8463-73 (Wong, Boyer, Vollmer, Palanis-wamy, Walsh, Benkert); Tr. 9181-9247 (Romney, Kuo).
B-70. Regarding the consideration of gravity and deadioad, uncontro-verted evidence established that the deadload consisting of the weight of the walls and equipment attached thereto is transmitted to the ground as a vertical compressive load. Since the forces associated with the postulat-ed explosions would act horizontally and thus perpendicular to the walls, the effect of the deadload and the blast overpressure would not be direct-f i ly additive. Tr. 8442-45 (Vollmer, Palaniswamy); Tr. 9201 (Romney). Structural members are designed for combination of deadicad, liveload,
- earthquake and tornado loads. Forces resulting from the appropriate load or loads are combined with the blast overpressure and were consid-ered in the margin calculations. Tr. 9236-37 (Kuo) Tr. 9202-03 and 9245 (Romney). Applicant's witnesses further testified that the compres-sion resulting from deadioad is actually beneficialin terms of the ability of a structural wall to withstand bend:a , since it acts as a pre-stress. Tr.
8445 (Palaniswamy). The roof slab deadload acts in the same direction 487 I
foundations of this type there is no differential settlement. Tr. 8469 (Vollmer); Tr. 9215-17 (Romney).
- b. Reactor Building Openmgs B-75. FOE postulated that the blast wave would enter the reactor building through a 9-foot-high by a 40-foot-wide louver in the south 1 wall and/or a 2-foot by 2-foot roof opening of the reactor building and damage the safety-related equipment and systems inside. Both Applicant and Staff testified that the louver in the south wall is not safety-related and opens into a compartment which houses nonsafety-related HVAC equipment. Its failure would in no way affect the integrity of the reactor building or the ability to safely shut down the facility. Tr. 9110-13 (Kuo, Romney, Lefave); Tr. 9132-33 (Kuo, Romney); Tr. 8956-57 (Wong).
Additionally, the walls surrounding the compartment housing the HVAC equipment are I foot thick and would resist any residual over-pressure that is not absorbed by the louver. Tr. 9114 (Kuo); Tr. 8955 58,8965 (Wong). Applicant's calculations indicate that even if the pressure from an explosion were not absorbed in any way, by the louver, inter-compartment walls or plenum, the average pressure inside the reactor building would increase by no more than 0.016 psi and would have a negligible effect on the building and any equipment con-tained therein. Tr. 8965-66 (Walsh). By comparison it takes 0.1 psi to break a normal house window. Tr. 8958 (Ashley). B-76. The 2-foot-square roof opening 'in the reactor building which is covered by a sheet metal blowout panel is designed to relieve pressure inside the building and does not serve any structural purpose. Tr. 8959-60 (Wong). Even if the sheet metal blowout panel were displaced, the resulting pressure differential would be insufficient to dislodge any pipes that might be nearby and the pressure wave would quickly be re-duced to ambient as it expanded inside the large volume of the reactor building. The increase in pressure within the building's interior would be less than 0.01 psi. Tr. 8960-61 (Ashley); Tr. 8960-63 (Wong, Ashley). B-77. The sheet metal buildings on the north and south sides of the reactor building roof could conceivably be damaged by a postulated natu- , ral gas explosion. These buildings, however, are not required for the safe shutdown of the Station and, even if destroyed, would not provide an opening into the reactor building since the conduits passing between these buildings and the reactor building are sealed and would not be af-fected by an explosion. Tr. 8969-70 (Wong). 489 I l l l l l
4 t 4 structures. Unrebutted evidence established that individual steel rods will not fall separately or protrude in any significant length from broken pieces of concrete. Tr. 8876 (Vollmer), Tr. 8876-77 (Buchert). B-82. FOE also speculated that the 70-foot-tall column supporting
; the cooling tower and the 500-kV transmission towers would also fail
} ~ and penetrate nearby buried safety-related structures. Evidence estab-lished that the 70-foot cooling tower support columns would pivot on their bases and fall, penetrating about I foot into the ground. Since the , nearest buried safety-related structures are 100 feet away and buried at a minimum of 4 feet or equivalent, they would not be affected. Tr.
- 8913-14 (Vollmer); Tr. 8914 (Boyer); Applicant's witnesses testified that even if the transmission towers failed, they would buckle and fold
. over. The effect of their impact on falling would be less than the missiles for which the buried safety-related ducts (e.g., power lines, to spray i
' pond) are designed to resist. Tr. 8923-24 (Vollmer); Tr. 9260 (Romney). B 83. FOE postulated failure of the walls of the cooling tower basin 3 and subsequent flooding of the turbine building and allowing water to
. enter the reactor building and ' control building, preventing a safe shut-i down of the plant. FOE, in the alternative, postulated that even if the j- walls of the cooling tower basin were to remain relatively intact, cooling tower debris falling into the basin would result in increased flooding.
i Both Staff and Applicant addressed the possible consequences of water loss from the cooling tower basins. Each agreed that the worst. case sce-nario for a basin-related flooding accident was a breach in the south wall of the basin. Wescott, ff. Tr. 9045, at 2, 3; Boyer et al., ff. Tr. 8213, at
- 18. A complete breach of the basin wall or a break in other than the south wall would send most of the flood wa'er away from the power I
block complex and towards the Schuylkill River or Possum Hollow Run. Id. Even in the event of a failure of the south wall of either basin, the j. circulating water pumphouse, which is between the cooling towers and the power block complex, would tend to divert water to the east or west 4 and away from the turbine building. Wescott, ff. Tr. 9045, at 2. B-84. Both Applicant and Staff assumed a 50-foot breach in the ] basin wall and in order to maximize the amount of flooding in the tur-j bine building, each also assumed that all of the turbine building main i doors on the north side were open. Even with the north wall turbine building doors open, Applicant calculated a water height rise of about 4 , j feet. Because the walls of the reactor building and central building are water- or steam-tight to above that level, there would be no entrance for water into the category I structure and no adverse impact on the ability
~
to safely shut down the reactor. Tr. 9028 (Buchert). 491 1 i i. I i I g's-p -- v --- -- *ym - gr - '+ "" ++"-*"*" " ' " '*-**"r*--'*' f *TWW ig' Y=N Y'W'r
4 B-85. Staff and Applicant also evaluated the possible effects of ero-sion by escaping water on buried safety related structures. Each conclud-ed that no adverse effects would occur. Wescott, ff. Tr. 9045, at 4; Tr. 9324-25,9335-36 (Wescott); Boyer et al., ff. Tr. 8213, at 19-20; Lefave, ff. Tr. 9047, at 2-3.
- 10. Integrity of the Spray Pond B-86. FOE raised questions concerning the integrity of the spray pond - which is the ultimate heat sink for the Limerick decay heat removal from the reactor cores - with respect to missiles that could be generated as a result of blast pressure from an explosion resulting from a pipeline break. The Applicant testitled that missiles generated by de-struction of the cooling towers could not reach the spray pond. Tr. 8900 (Vollmer). Mr. Vollmer was not aware of any other missiles from an explosion that could reach the spray pond. Id. Missiles from an explosion would not be similar to missiles from a tornado. Id. Because the design explosion is an air blast, at an elevation of 500 feet above ground, there is going to be a force radiated downward which would not have a tenden-cy to lift missiles up, as in a tornado which rotates them and lifts them.
Id. at 8900-01 (Vollmer). Various structures that appear in an aerial photograph around the towers would not be exploded by an explosive , force from a gas pipeline explosion and carried in the direction of the spray pond. Id. at 8901. The photograph showed some temporary struc-tures, including a concrete batch plant that will be removed as well as some old structures that were used for the fabrigation of the reactor vessel. Tr. 8901 (Boyer). There is one permanent one-story Butler type building located somewhere exceeding 800 feet from the spray pond pumphouse building. Since the spray pond pumphouse was designed against tornado missiles, failure of the Butler building would have zero impact on the spray pond building. Id. The Applicant estimated that whatever missiles were generated - side panels, disks or whatever - might be moved 50 feet, but not to exceed 100 to 200 feet away from the building. Id. at 8908. Mr. Boyer did not think that sheet metal would have any efTect on the spray pond fixtures or the pipes leading to the fixtures. Id. at 8908-09. We agree. B-87. The spray nozzles and the piping within the spray pond are safety reined. Tr. 9368 (Lefave). The Applicant is doing a probabilistic risk assessment of the tornado event to determine the probability of how many nozzles and trains in the piping can be affected by tornado missiles. Id. Presumably, the results will be evaluated against the re-quired function ability for this system. The Staff considers this to be an 492 j A
open item in its review of externally generated missiles. SER { 3.5.2. It was not conceivable to the Staff, however, that the postulated pipeline accidents could generate missiles which could impact the spray nozzles. This conclusion was based on the belief that the blast wave travels so fast that it would be unable to pick up anything and carry it. Tr. 9368 (Romney). For a detonation of 56 tons of TNT the positive phase pulse i time of the blast wave at 1200 feet would be approximately 170 millisec-onds. Staff Ex. 21. B-88. The Staff had not, and did not know whether the Applicant had, conducted an analysis of what potential effects a blast wave would have on the spray pond nozzles. Tr. 9369 (Romney). The Staff did think they are strong enough to take the blast pressure, since they and related piping are designed to withstand the safe shutdown earthquake and be-cause the pressure the blast wave would exert on the piping is not going to be a pressure large enough to affect the structural integrity of the piping system. Any effect would be rather small. Tr. 9371 (Kuo). The calculated pipeline accident blast pressure on the surface of the spray pond water is approximately~1.9 psi. Tr. 9373 (Ferrell). B-89. The Applicant also testified that if a cooling tower were to fail from a blast from the southwest direction, it would collapse within its own perimeter and would not reach the spray pond pumphouse. Tr. 9284,9364 (Romney). A cooling tower has never failed as a rigid body. Tr. 9341-42 (Romney). i B-90. We find that all of FOE's allegations and speculations of se-quences of events omitted from the Applicant's and Staff's analyses to be without merit. Applicant has demonstrated reasonable assurance that the safety-related structures at Limerick will withstand the postulated pipeline accidents. Accordingly, FOE's Contentions V-3a and V-3b are without merit. l C. LEA I-42: Environmental Qualification of Electric Equipment C-1. LEA Contention I-42, admitted as respecified, states: The Applicant has not shown compliance with the Commission's rule. Environmen. tal Qualification of Electric Equipment Important to Safety for Nuclear Power Plants, Jan. 21,1983,48 Fed. Reg. 2729,10 C.F.R. i 50.49. Particularly, it has nei. ther established a program for qualifying all of the electrical equipment covered by ( 50.49, nor performed an analysis to ensure that the piant can be safely operated pending completion of equipment qualification, as required by { 50 49(il. Failure to comply will threaten the health and safety of the public. 1
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- 2. 44 %ANS 907 APPLICA8LE. THE ELEMENT OR LOA 019G CASE 00E3 NOT EXIST 03 aPetv ->) %g STRUCTURE UNCER CONSIOERATION.
9RC CALCtLATIONS HGURE 4. Source: ff. Tr. 9055, Staff Ex. 23 497
- 1. Summary C-2. Testimony by the Applicant and the Staff supports the conclu-sion that the Applicant has an acceptable program, although not com-pletely implemented, for qualification of electric equipment important to safety at Limerick, which is in compliance with 10 C.F.R. j 50.49, as adopted in January 1983. This testimony described how items to be qual-ified were identified and how the program was developed and imple-mented. Proper identification was assured by an independent verification program conducted by a qualified contractor. The Staff's review, while also not complete, verified the adequacy of the program.
C-3. Based on qualification efforts so far, it is not anticipated that completion of the program would identify any components not properly qualified. Should this occur, however, the Applicant would then have to perform and have approved by the Staff an analysis, as requited by } 50.49(i) to ensure that the plant can be safely cperated pending com-pletion of equipment qualification. Such an analysis is called a Justifica-tion for Interim Operation (JIO) by the Staff. Subject to that possibility, we find that the Applicant has met its burden of proof on this contention by demonstrating, (1) that it has a proper program in place for qualifying all of the electrical equipment covered by G 50.49; and (2) that those par-ticular components of concern to LEA, as set forth in the bases for the contention, have been properly considered by the Applicant. C-4. The Applicant and the Staff provided expert witnesses and testimony; LEA and the City of Philadelphia cross-examined these wit-nesses, but did not provide their own witnesses. Evidentiary hearings were held on April 9 and 10,1984, in Phihdelphia, Pennsylvania.
- 2. Compliance with the January 1983 Environmental Qualification Rule C-5. As a framework for discussing the merits of this contention, we begin by considering the state of compliance of the Applicant with the subsections of 10 C.F.R. f 50.49, adopted in January 1983, as ap-plicable to the contention.
C-6. Section 50.49(a) states each applicant for a license to operate a nuclear power plant shall establish a program for qualifying the electric equipment defined in paragraph (b) of this section. Section 50.49(b) states that electric equipment important to safety covered by this section is: 498 l I l i j
l (D Safety-related electric equipment3 : This equipment is that relied upon to remain functional during and following design basis events to ensure (i) the integrity of the reactor coolant pressure boundary, (ii) the capability to shut the reactor down and maintain it in a safe shut-dow n condition, and (iii) the capability to prevent or mitigate the consequences of accidents thJL could result in potential otTsite exposures comparable to the 10 C.F.R. Part 100 guidelines. Design basis events are defined as conditions of normal operation. includmg anticipated operational occurrences, design ~ basis accidents, external events, and natural phenomena for which the plant must be designed to ensure functions ti) through (iii) of this paragraph. (2) Nonsafety related electric equipment whose failure could prevent satisfactory accomplishment of safety functions specified in subparagraphs (i) through nii) of paragraph (b)(1) of this section by the safety-related equrpment. O) Certain post-accident monitoring equipment. (Footnote omitted) 3 safety-related electric equipment is referred to as " Class IE" equipment in IEEE (standard) 323-1974. C-7. LEA asserts, in part (a) of its Basis for the contention, that Applicant's environmental qualification (EQ) program, designed prior to issuance of the new rule, was designed to qualify safety-related equip-ment only (and therefore does not include nonsafety related equipment whose failure under postulated environmental conditions could mislead the operator or otherwise prevent satisfactory accomplishment of speci-fled safety functions, and certain post-accident monitoring equipment). Applicant argues that even though its program for EQ was designed before the promulgation of the new rule, because of its anticipation of the new requirements and because ofits conservative equipment classifi-cation practice, its program does comply with the new rule. Boyer er al., ff. Tr. 9529, at 1-2. Further, Applicant avers that all Limerick equipment within the scope of 10 C.F.R. } 50.49 will be qualified by the fuel load date. Id. at 4. C-8. LEA, also in part (a) of its Basis, asserts that the Applicant should promptly develop a list of the equipment at Limerick, subject to i 50.49(b)(2), that is "important to safety" (and not just safety-related) and that will be tested in its EQ program as required by 5 50.49(d). Examples given by LEA of systems or equipment that should be reviewed for inclusion in the Applicant's EQ program were the feedwater control, emergency lighting and communications systems, the plant process computer system, and computer software. C 9. The Limerick Project "Q. List" was developed and established as the controlling document identifying the safety related structures, sys-tems and components (including electric equipment} to meet the re-quirements of f 50.49(b)(1). Id. at 4-5. 499
C-10. The Applicant testified that there is no equipment at Limerick in the subset i 50.49(b)(2). Id. at 3, 7. The interfaces between safety-related electrical components are evaluated as part of the plant design process. Whenever cases are identified in which failure of nonsafety-related components could prevent attainment of the safety function ob-jectives, they are eliminated by implementing design modifications or by adding (such components) to the Project Q-List and qualifying them as necessary. The Electrical Equipment Separation Program is an example of such an interface evaluation. Id. at 7. All electrical equipment on the Q-List is reviewed to determine its environmental qualification require-ments. If the electrical equipment is determined to be located in a harsh environment, the appropriate environmental qualification parameters for the component are identified. Id. at 8. C-I I . "Certain post-accident monitoring equipment" is defined by the footnote to { 50.49(b)(3), which references Regulatory Guide 1.97,
" Instrumentation for Light Water Cooled Nuclear Power Plants to Assess Plant and Environs Conditions During and Following an Acci-dent." This Guide defines three categories of design and qualification criteria. Category 1 criteria are similar to the criteria applicable to safety-related systems. Category 2 criteria include selected criteria normally as-sociated with safety related systems, but the same environmental re-quirements as Category 1. Category 3 criteria specify only a high-quality commercial-grade installation, for which there are no environmental qualification requirements. Id. at 5 6.
. a. Independent Component Class $ cation Program C- 12. To assure the identification, in the Limerick Environmental Qualification Program, of all electrical equipment required to perform a safety function, the Applicant contracted with Quadrex Corporation to perform an independent verification, the Component Classification Pro-gram. Boyer er al., ff. Tr. 9526, at 9. Quadrex had conducted five identi-cal independent review analyses of the overall environmental qualifica-tion programs at other nuclear power plants prior to the Limerick pro-gram. Tr. 9551 (Stanley). The extensive effort at Limerick showed that of the approximately 30,000 components considered, of which approxi-mately 1600 were different (i.e., nonidentical) electrical items,16 dif-ferences in electrical equipment classification from the original Applicant architect engineer classifications were identified. Nine of the sixteen components were found to be located in a mild environment. Four of the sixteen were to be reclassified as not requiring environmental qualili-500
I i i i i I f f cation. The remaining three are included in the EQ Program. Boyer et al, IT. Tr. 9526, at 22 23; Tr. 9622-23 (Boyer). C-13. A comparison of the Component Classification Program (CCP) rules against i 50.49 was performed and it was determined that the classification rules fully complied with the requirements of f 50.49, even though they were prepared and implemented prior to publication i of the new rule. This determination was also based on a comparison of the CCP rules with draft Rcgulatory Guide 1.89, Rev.1, " Qualification ! of Class IE Equipment for Nuclear Power Plants." Boyer et al, ff. Tr. 9526, at 23. 1 3. Systems Excludedfrom the EQ Program j C-14. As a part of the basis for its Contention I-42, LEA asserted that the emergency lighting system, in plant communications system, i plant process computer system and computer software were examples of 1 systems that were improperly excluded from PECo's qualification pro-j gram. The evidence indicated that the exclusions were proper in that the systems cited by LEA are not important to safety as the term is used in ! 10 C.F.R. f 50.49; that is, they are not relied on during a design basis 3 accident in areas subject to a potentially harsh environment and their failure would not prevent achievement of safety function objectives. Boyer et al, ff. Tr. 9529, at 11 15; Masciantonio, ff. Tr. 9640, at 7 8.
- a. Emergency Lighting System C 15. The Applicant testified that this system was not included in the CCP because it is not safety related as defined by i 50.49, it is not relied upon to provide lighting during a design basis accident in areas
, which could produce a harsh environment, and its failure could not pre- t
- vent achievement of the safety function objectives defined in subpara- i graphs (i) through (iii) of f 50.49(b)(1). Boyer et al, ff. Tr. 9526, at 12.
i The Staff concurs. Masciantonio, ff. Tr. 9640, at 7. !
- b. In Plant Communications Systems C 16. The Applicant testified that these systems were not included I
in the CCP because they are not safety related, they are not relied upon i during a design basis accident in areas that could produce a harsh environment, and their failure could not prevent the achievement of the 4 safety function objectives defined in subparagraphs (i) through (iii) of 501 t [ l I
.A
j 50.49(b)(1). Boyer et al., ff. Tr. 9526, at 13. The Staff concurs. hiasciantonio, ff. Tr. 9640, at 7.
- c. The Plant Process Computer System C-17. _ The Applicant testified that this system and the computer soft-ware were not reviewed because the computer is not safety-related; it is not relied upon to provide information during a design basis accident in areas that could produce a harsh environment, and its failure could not prevent achievement of the objectives defined in subparagraphs (i) through (iii) of } 50.49(b)(1). The computer software has not been reviewed because it is outside the scope of f 50.49. Information obtained via the plant process computer is not required during or following these accidents. The computer system interfaces with other systems that are safety related, but these electrical interfaces are designed in compliance with Regulatory Guide 1.75, " Physical Independence of Electric Sys-tems." Boyer et al., ff. Tr. 9526, at 14. The Staff concurs. Masciantonio, ff. Tr. 9640, at 7.
- d. Feedwater ControlSystem C 18. The Applicant testified that this system was included in the CCP. The review showed, however, that it contains no equipment having a safety function as defined by j 50.49. Boyer et al., ff. Tr. 9526.
at 14-15. The Staff concurs. Masciantonio, ff. Tr. 9640, at 7.
- e. Standby Liquid ControlSystem C 19. The Applicant testified that the squib values, in this system, have been added to the EQ List of Equipment Important to Safety.
Boyer et al., ff. Tr. 9526, at 3. The Staff concurs. Masciantonio, ff. Tr. 9640, at 10. C-20. The keylock switch is located in the control room which is maintained by a safety related ventilation system and therefore is not subject to harsh environments. Boyer et al., ff. Tr. 9526, at 21. The Staff concurs. Masciantonio, ff. Tr. 9640, at 10. f Human Interaction Problems C-21. In part (b) of its Basis for its contention, LEA contends that failure of nonsafety-related valves, but which are important to safety, could mislead an operator into miscategorization of an accident for 502
4 l 1 4 4 5 emergency planning purposes. Since there is no electrical equipment in the class defined by 5 50.49(b)(2), this could not happen for such equipment. With respect to the post-accident monitoring equipment defined by j 50.49(b)(3), the operators will be directed by written proce-dures to rely only on the equipment that is qualified in accordance with Regulatory Guide 1.97, Rev. 2, if the equipment is subjected to a harsh environment, and thus will not be misled by unqualified equipment. Boyer et al., ff. Tr. 9526, at 3, 25 32. C-22. The Limerick specific Transient Response Implementation Plan (TRIP) procedures are initiated and keyed to entry condition symp-toms to treat these symptoms and are specific to Limerick. The proce-dures are organized in such a manner as to control those plant parame-ters important for protecting the plant safety barriers against the release j of radioactive material to the environment. Whenever a symptom devel-ops, the operator immediately enters the applicable procedure and takes the corrective action directed by the procedures, until its exit conditions are satisfied. If the particu!ar transient continues to degrade, the operator enters contingency procedures to handle the more degraded conditions until he can return to the main procedures. Boyer et al., ff. Tr. 9529, at 25 27 C-23. Review of the listing of Regulatory Guide 1.97 instrumenta-tion reveals that all entries into the TRIP procedures are monitored by environmentally qualified instrumentation. The impact on execution of TRIP procedures is minimal since the qualified instrumentation that must be u',ed is either the instrumentation which the operator would
! normally choose to use under those conditions or the only qualified instrumentation available to monitor the parameter. The operator is spe-cifically instructed in the TRIP procedures to utilize only certain instru-mentation in the event of an indication of adverse environmental conditions. In accordance with the requirements of Regulatory Guide 1.97, the applicable instrumentation will be highlighted by special mark-l 4
ings on the control panel to aid in its identification and assure that only such instruments will be used under the circumstance of adverse envi-i ronmental conditions. Boyer et al., ff. Tr. 9529, at 28-30; see Tr. 9601-10 (Doering). C 24. Many TRIP procedures use only environmentally qualified in-i strumentation. However, that instrumentation may cover a broader { range than nonqualified equipment and may, therefore, be less precise. i The instrumentation an operator normally relies on is generally restrict- , ed to a narrow band around the operating range and is, therefore, more { exact. Absent an indication of actual adverse environmental conditions i 503 l i l 4
- - -= - -
i 1 in the reactor building, the operator is not restricted to the use of envi-ronmentally qualified instrumentation. Tr. 9607-09 (Doering); Mascian-1 tonio, ff. Tr. 9640, at 8. , C-25. A " human interaction review," per se. is not a requirement of j 50.49. Id. at 8.
- 4. Aging ofEquipment C-26. In part (c) of its Basis, LEA contends that where the qualified life of a piece of equipment does not equal the 40 year plant life, no action is identified to correct the deficiency. The environmental qualifi-cation of electrical (and other) equipment is contingent upon replacing such equipment at the end ofits designated life and upon performing re-quired maintenance during its designated life. The Limerick Plant Staff Maintenance Group has a systematic program to determine required re-placement intervals for the equipment whose designated life is less than 40 years and to define the maintenance and frequency thereof for equip-ment whose environmental qualification is required to be sustained.
Boyer et al., ff. Tr. 9526, at 32 35; Masciantonio, fr. Tr. 9640, at 9. l 5. Completeness ofEQ Program i C-27. At the time of hearing, the Applicant's EQ Program was 95% complete. Final completion was anticipated to occur in June 1984. For the remaining 5%, the work on the qualification packages was sufficiently along the way that an informed judgment was that there would be no un-qualified equipment for which a Justification for Interim Operation would be requested. Tr. 9617 (Boyer).
- 6. StaffReview of the Limerick EQ Program C-28. The Limerick EQ program is reviewed by the Staff for completeness, accuracy and conformance - to determine proper defini-tion of the scope of the program, proper definition of postulated environments, and demonstration of qualification in accordance with NRC rules and regulations, which include 10 C.F.R. { 50.49, Regulatory Guide 1.89 (" Qualification of Class IE Equipment for Nuclear Power Plants"), NUREG 0588 (" Interim Staff Position on Environmental Qualification of Safety Related Electrical Equipment") and Institute of Electrical and Electronics Engineers (IEEE) standards. Masciantonio, ff.
Tr. 9640, at 4. In addition, the Staff reviewed the total number of i 504 1 3
- _ .. _ ._ _ . _= _ . _ ._. .
i i 1 a components and equipment types in the Limerick EQ program as com-i pared to other plants of similar design to assure consistency, and
, reviewed the process used for selecting components, as described in the
! EQ report. Id. at 6. Conformance to i 50.49(b)(2) concerning nonsafety-I related equipment whose failure under postulated accident conditions t could prevent the satisfactory accomplishment of safety functions is determined by the Staff's review of Limerick with respect to the issues
! in IE Information Notice 79-22 (Qualification of Control Systems) and
! conformance with Regulatory Guide 1.75 (" Physical Independence of Electric Systems"). Id. at 6. Tr. 9665 66, 9678-79 (Masciantonio). See
; also Tr. 9683 88 (LaGrange). The Staff review of conformance of Lim-j erick to Regulatory Guide 1.75 is complete and Limerick has been j found acceptable. Masciantonio, ff. Tr. 9640, at 7. Tr. 9709 (LaGrange.
j Masciantonio). Review of the Applicant's response to information Notice 79 22 (Qualification of Control Systems) was not yet complete. Masciantonio, ff. Tr. 9640, at 7. The Staff testified that similar reviews, j which analyze the effects of high-energy line breaks on the interactions
! between nonsafety-related and safety related components, had been completed for several plants and it had no reason to believe it would be 1 a special problem for Limerick. Tr. 9710 (LaGrange). In addition, the l Staff had not completed its review of the pressure-temperature profile j' following a loss-of-coolant accident submitted by the Applicant. This j
" profile" is substantially lower than for typical boiling water reactors that have been reviewed and therefore needs special Staff review. Tr.
! 9711 12 (Masciantonio). The equipment has been environmentally qual-j ified against the Applicant's proposed profile. Tr. 9712 (LaGrange). C-29. An audit of the Applicant's Equipment Qualification files, including a plant walkdown, was conducted by the Staff, primarily to j verify the bases of the information submitted. Twelve EQ files, repre-l senting approximately 10% of the equipment items in the EQ program, were selected for detailed review. In all cases it was determined that ade-quate proof of qualification was provided to establish qualification as claimed. Masciantonio, ff. Tr. 9640, at 11.
- 'C 30. The Staff has determined that the Applicant has established a program for qualifying electric equipment important to safety within the
] scope of { 50.49, but its review is not complete and no approval of the a program has been issued. Its review was expected to be complete within a few months (from April 1984). Id. at 11. Should there be any unquali-i fled equipment, Applicant will be required, according to i 50.49(i), to perform an analysis to ensure that the plant can be safely operated pend-ing completion of environmental qualification. This analysis (Justifica-1 4 505 l 4 4 i l
. _ _ . . _ . . . ~ . _ , , . _ , ,,_.__.I
tion for Interim Operation) must be submitted and approved by the Staff before the StafTwould support issuance of a license. Id. at 12.
- 7. Discussion C-31. LEA would have the Board find in its favor that there is no basis in the present record for a Snding that Limerick is in compliance with 10 C.F.R. % 50.49. Further, it would have us retain jurisdiction until several actions by the Applicant and Staff are taken as preconditions for a finding of such compliance. LEA's proposed findings (June 21, 1984), at 13. Applicant and Staff would have us find, on the basis of the present record, that the Applicant has fully complied with the require-ments of f 50.49. App. PF (June 8,1984), at 26, Staff PF (July 2, 1984), at 19.
C-3 2. All parties agree that Applicant's EQ program has not been completely implemented and Staff's review is not complete. Prior to the time of hearing, Staff had received a report from the Applicant indicating approximately 80% of the equipment items as being qualified. (As noted in Finding C-27 above, at hearing the Applicant stated that its program was 95% complete, although all of this had not been officially reported to the Staff.) The Staff Safety Evaluation Report (SER) will not be closed out until full compliance with j 50.49 has been demonstrated. Tr. 9698 (Masciantonio). The Staff must conclude that compliance with the requirements of s 50.49 has been demonstrated before an operating license is issued. Masciantonio, ff. Tr. 9640, at 14. C-33. When governing statutes or regulations require a licensing board to make particular findings before granting an applicant's re-quests, a board may not delegate its obligations to the Staff. The respon-sibilities of the boards are independent of those of the Staff under the Commission's system, and the boards' duties cannot be fulfilled by the Staff, however conscientious its work may be.' C-34. Applicant argues that the prerequisite to the issuance of a deci-sion in a case such as this where the Staff's review is not yet complete, is a basis in the present record on which to reach an informed conclu-sion, citing Cincinnart Gas d Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit 1), LBP-82-68,16 NRC 741, 748 (1982). In that case, however, the Board found that "[wle have no basis in the present record on which to reach an informed conclusion with regard to the a ci,, eland Electre Illummanna Co. (Perry Nuclear Power Plant. Umts I and 2), ALAB 298, 2 NRC 730. 737 (1975). see Vermont YanAce Nucear Power Corp (vermont Yankee Nuclear Power station). ALAB.124. 6 AEC 358. 360. 36162 & n 4 (1973). 506
FEMA (emergency planning) review. Consequently, we require that the results of the FEMA review be served on the Board and parties . The Applicant also claims there is speciSc precedent for the action it seeks - post-hearing resolution of this matter by the Staff - in the Shoreham proceeding. In that proceeding, the Atomic Safety and Licens-ing Board (two of whose members also serve on the instant Board) found that in the area of environmental qualification the deliciencies were minor and would be resolved by the Staff subsequent to the Board's order, but prior to issuance of a license. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-83-57,18 NRC 445, 544 (1983). Consequently, the Board concluded that the environmental qualification program and the intended further revisions to implement i 50.49(b)(2) were acceptable. C-35. On the basisj f the evidence before us we can and do conclude that the Applicant Ivr stablished, in the words of the contention, an ac-ceptable program for dualifying all of the electrical equipment covered by 6 50.49. Classification of components by the Applicant, verilled by an independent contractor and audited by the StalT, with no evidence of any component currently improperly qualified, gives us a basis to reach an informed conclusion with respect to the adequacy of the program for compliance with 5 50.49. C-36. Implementation of the EQ program admittedly is incomplete. It is a close question, in our view, whether we can conclude, based on the present record, that the remainder of the implementation, including Staff review, constitute minor procedural difficulties (see Consolidated Edison Co. of New York (Indian Point Station, Unit No. 2), CLI-74-23, 7 AEC 947, 951 (1974)), or minor documentation deficiencies (see Shoreham, supra). C-37. The Appeal Board, relatively recently, had occasion to deal specifically with the question of reliance on predictive findings and post-hearing verification, albeit in the context of contentions with respect to emergency planning. Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076,1103 (1983). First, the Board said: We are in agreement with the basic principles upon which Joint Intervenors rely. The Commission, in fact, has long held that, "lais a general proposition, issues should be dealt with in the hearings and not left over for later (and possibly more informal) resolution." Consohdated Ednon Co. o/New YorA (Indian Point Station, (Jnit No. 2), CLI 74-23, 7 AEC 947, 951 (1974). "ITlhe ' post. hearing' approach should be employed sparingly and only in clear cases" - for esample, where
" minor procedural deficiencies" are involved Id. at 952, 951, n 8. Accord. .tforble tidl. supra. 7 NRC at 318, Cleveland Electric illuminatmg Co tPerry Nucl car Power 507
Plant, Units I and 2), ALAB 298, 2 NRC 730, 736-37 (1975); Washington Pubhc PswerSupply Sysicm (Hanford No. 2 Nuclear Power Plant). ALAB.113,6 AEC 251 252 (1973). C-38. Second, the Board noted that the Commission takes a slightly different course with respect to emergency planning: At one time, the (Commission's) regulations required a Gnding that "the stare of onsite and offsite emergency preparedness provides reasonable assurance that ade-quate protective measures can and will be taken in the event of a radiological emergency." 10 C.F.R. l 50.47(a)(1) (1982) (emphasis added). In July 1982, the Commission amended this provision by clarifying that "the Gndings on emergency planning required prior to license issuance are predictive in nature" and by eliminat. ing the reference to the " state" of emergency preparedness. C 39. In the Waterford case the Appeal Board did allow predictive findings in five areas of emergency planning, but made no such conces-sion on other issues. C-40. The record may be summarized as follows. The evidence shows that the Applicant has established a program for qualifying all of the electrical equipment covered by { 50.49. No equipment specified by LEA in the bases for its contention has been shown to be misqualified. The program has been audited by the Staff and found acceptable. With respect to the 5% of the EQ program yet to be completed, there is rea-sonable assurance that it will be completed in compliance with 6 50.49, based on the adequacy of the program itself and the Staff committnent to conclude its review of the entire program prior to issuance of a license. Further, the work on the remaining 5% was sufnciently far along that an informedjudgment by the Applicant was that there would be no unqualified equipment for which a Justification for Interim Opera-tion would be requested (thus obviating the need for any analysis re-quired by f 50.49(i)). C-41. With respect to completion of the Staff review of the Appli-cant's response to questions related to IE Information Notice 79-22, there is reasonable assurance that this will be completed to the Staft's satisfaction. Similarly, there is reasonable assurance that the Staff review of the temperature and pressure behavior following a loss-of-coolant accident will be completed to the Staff's satisfaction. LEA raised no par-ticular concern with either of these Staff reviews, other than the general complaint ofincompleteness. If the results of the Staff review of Appli-cant's response to IE Information Notice 79-22 show a high-energy line break interaction which was not designed for, then additional compo-nents may have to be included in the environmental qualification pro-gram (in the absence of design changes to correct any such interaction). 508
l This still does not detract from our finding that the allegation in the contention, of the lack of a proper environmental qualification program, is without merit. Similarly, if the results of the Staff review of the tem-perature and pressure profile following an accident show that those parameters would be higher than assumed for the EQ program, then the environmental qualification of the affected components will have to be reanalyzed by the Applicant, following the same approved program, but against different postulated temperature and pressure conditions. C-42. We find that we cannot strictly characterize the incomplete as-pects of the Applicant's implementation of its EQ program and the Staff's review thereof as minor procedural or documentational deficien-cies. Within the scope of the contention as worded, however, we can and do find that this is a clear case where reasonable assurance exists that the Applicant will comply with 5 50.49 before any license will be issued. In other words, no specific complaint of LEA (including particu-lar components alleged by LEA to be improperly qualified) remains to be explored in the Staffs overall review of electric equipment qualifica. 4 tion at Limerick, which review is broader than the litigated issues. This situation could change only if, contrary to the record before us, the Ap-plicant decides to seek a Justification for Interim Operation under 5 50.49(i). In such an eventuality, the parties obviously are obligated to bring such change in the record promptly to the attention of the parties and any adjudicatory body with jurisdiction. Subject to this possibility, we find this contention without merit and do not retain jurisdiction. D. Confirmation of Findings of Fact Stade on the Record That AWPP Contention VI-1 (QA/QC of Welding) Lacks Sterit L The Contention Lacks Merit as Previously Determined in the a Bench Decision D 1. AWPP Contention VI 1, as admitted by the Board, states: I Applicant has failed to control performance of welding and inspection thereofin ac. 1 cordance with quality control and quality assurance procedures and requirements. i and has failed to take proper and effective corrective and preventive actions when j irnproper welding has been discovered. D-2. This contention was admitted as an issue in controversy on reconsideration by the Board (after earlier conditional admission and then rejection given the issue specified by AWPP). The reconsidered ad-mission was subject to the important requirement that, after discovery, AWPP specify in advance of the hearing the particular instances of al-509 _ . . _ , __. _ _ _ _ _ . _ _ _ _ _ _ _ _ _ ~ _ .-. _
leged improper actions of Applicant with regard to quality control and quality assurance of welding at Limerick, which AWPP would rely upon to litigate its contention.' This particularization of the contention was ac-complished in the course of prehearing Slings by the parties and rulings by the Board.'8 D-3. This contention was litigated on hlay 7-10, 1984. Expert and factual testimony was presented by separate witness panels for the Appli-cant and NRC Staff. The proposed direct testimony offered by AWPP's representative, Mr. Frank R. Romano, was not admitted into evidence for the reasons set forth in the Board's hiay 2,1984 "hfemorandum and Order on Pretrial Motions Regarding Testimony on Contention VI-1" (unpublished), which granted the motions by the Applicant and Staff to strike Mr. Romano's testimony. In addition, at the hearing the Board rejected the late-filed testimony of Professor Gudmund R. Iverson prof-fered by AWPP (AWPP Ex. 3 for identification), because it was inex-cusably late (it had been filed at the hearing), did not relate to any of AWPP's specified instances, and in any event was not sufficiently proba-tive towards any matter relating to quality assurance of welding to be ad-mitted as late testimony. Tr. 10,428-35,11,931 (Brenner, J.) D -4. The evidentiary hearing on this contention involved extensive written testimony by the Applicant which detailed the facts involved in each instance relied on by AWPP for its allegation of improper welding and quality assurance thereof. Boyer et al., fr. Tr.10,321. The NRC Staff's testimony fully supported the Applicant's. Durr and Reynolds, ff. Tr.10,977. The extensive oral testimony, including cross-examination by AWPP and Board questions, also fully supported and confirmed the acuracy and completeness of the written direct testimony. L - 5. Accordingly, at the conclusion of the hearing on the conten-tion, tM Board announced that at that time it was its provisional judg-ment that, based on the entire record, there are no facts upon which it could be concluded that the Applicant had not overwhelmingly met its burden of proof on the contention. We noted our view that the facts were straightforward, fully stated in the Applicant's direct testimony and i
'See "First special Prehearing Conference order." LBP.824)A. l$ NRC 142).151718 fl982L " Memorandum and Order (Concerning objecuens to June 1.1942 speaal Prehearing conferente orderL" shp op at 6 (July 14.1982) (unpubbshedh "second speo41 Preheanns Con (erence Order."
LBP 8) 19.18.NRC 67. 88 9118983h "Niemorandum and order Con 0rming Ruhngs \f ade at Prehe4r-mg Conference.shp op at $.7 iociober 28.198)I f unpubbshedt 10 AwPP riled its hst or specified allegahons or improper melding and related quahiy assurance 4thons on %f arch 6.1984 Thercarter. the Board ruled on the Apphtant's anJ Starl's ob tections to some of the atteged instances as being beyond the scope of welding.related matters " Memorandum and Order Ruhns on Apphcant's Nfonon to 5trike Speanc Instantes AJvanced by Aw PP in support orContennon a VI 1" ( Apnl 2.19445 (uenubbshed) 510
not contradicted in any way under cross-examination or Board ques-tions. Tr.11,047 (Brenner, J.). See aho Tr. 11,050 54 (Brenner, J.). We also noted our provisional view that the witnesses were straightfor-ward, truthful and candid and that they had fully disclosed the bases for the facts and conclusions in their written testimony. Tr.11,048 (Bren-ner, J.) D 6. Given our provisional view, we held it was unnecessary for the Applicant to follow the normal course and file its proposed findings of fact first. It was not necessary to have all the facts and conclusions in the record regurgitated in lengthy Gndings, which the Aopticant, as the party with the burden of proof, would have had to Gle if the Board had not revealed and announced its provisional decision on the merits. Tr. 11,048-49 (Brenner, J.) However, the Board refrained from making Snal its provisional ruling - that the conclusions in the testimony of the Applicant and Staff were correct and fully supported and that there-fore the contention lacked merit - in order to give AWPP the oppor-tunity to Gle proposed findings of fact and conclusions oflaw. The Board informed AWPP that it should point out in its proposed findings evi-dence in the record which it believed showed that there was merit in any of its instances alleged in support of its contention. The Applicant and Staff would then have an opportunity to Gle reply findings discussing the matters covered in AWPP's proposed findings. Tr. 11,049 50 (Brenner, J.) See aho Tr. I1,052,11,055 58 (Brenner, J.). D 7. As scheduled, AWPP filed its proposed findings on May 22, 1984, and the Applicant and Staff Gled their separate replies on May 29. Ori the record of May 31, 1984, the Board heard oral argument and set forth its reasons as to why none of the matters raised in AWPP's pro-posed findings raised any item which contradicted the Applicant's and Staff's evidence as had been previously ruled upon by us. See Tr. 11,915 94 We found the reply findings of the Applicant and Staff to ac-curately and fully redect the record. We found that AWPP's proposed Ondings were inaccurate on several points. Tr. 11,935 36 (Brenner, J.). Therefore, there was no item meriting further deliberation by the Board and we entered our ruling that AWPP's contention lacked merit. As we stated we would, that bench ruling hereby is confirmed and becomes the partial initial decision that AWPP Contention VI l lacks merit. Tr. I1,964, i1.993 94 (Brenner, J.). D-8. Before setting forth the Board's conclusions, which are based on those of the Applicant's and Staff's testimony which we find to be correct, we summarize the points raised in AWPP's proposed findings with which the Board disagreed for the reasons stated in our May 31 bench ruling: AWPP continuously ignored the testimony showing 511 1
there is reasonable assurance that 100% of all safety-related welds were inspected. The sampling procedures, which we also find to be accept-able, were for audits of the inspection program. See Tr. 11,923-35, 11,945, 11,984 85. AWPP was totally incorrect in its belief that Appli-cant's witnesses did not fully answer its questions. We find the witnesses to be qualified, truthful and accurate and worthy of belief. See Tr. 11,940-46, 11,953-58. We also set forth why an instance in a Staff in-spection report regarding the apparent lack of certified qualification for a receipt of materials inspectar could not be related to any alleged welding problems. Tr. 11,946-48. We also set forth why an old matter involving the calibration of weld oven thermometers, raised for the first time in AWPP's findings, was beyond the scope of the contention because it could have been, but was not, set forth as one of AWPP's specified in-stances in support of the contention. See Tr. 11,948-51. D 9. The Board, on its own, also noted the potential concern it had harbored before the evidentiary hearing regarding the Applicant's reme-dial actions on the scope of its search of all types of QA records, given the fact that its initial search of QA weld records had been mcomplete. Indeed, it was this incomplete search by Applicant, which incomplete-ness was discovered and corrected by Applicant because of this proceed-ing and the pending AWPP contention, which led the Board to admit AWPP's welding contention after reconsideration. See Tr. 10,708 10 (Boyer). We were satisfied that the scope of Applicant's remedial and preventive actions were appropriate. See Tr. 11,958-62,11,989-91. We also stated why the facts on welds of hangers, and the deficiencies found, did not undercut the conclusion that the contention lacked merit. Tr.11,985 88. D 10. The Board finds, as applied to the instances ofimproper weld-ing activities advanced by AWPP to form the scope ofits contention, as folicws: D II, The Limerick Quality Assurance (QA) program meets the re-quirements of 10 C.F.R. Part 50, Appendix B, and is efTective in assuring that the welding meets the quality requirements and satisfies the design criteria required for the safe operation of the plant. Throughout the course of construction of Limerick, the Applicant has monitored, through audits, all welding related activities. These audits have con-firmed that the QA program has been properly and effectively imple-mented. Boyer er al., ff. Tr.10,321, at 3 and 89 90. See also Durr and Reynolds, ff. Tr.10,977, at 23. D 12. Since there are in excess of 2 million safety related welds at Limerick, there is the potential for occasional welding deficiencies as
!!2
have occurred at Limerick. Most of these have been discovered and cor-rected as the result of the effective implementation of Applicant's QA program. Although the NRC Staff has also identified a few such welding deliciencies, the deficiencies have not formed any pattern of repeated similar instances. Boyer et al., fr. Tr.10,321, passim and particularly at
- 89. Durr and Reynolds, ff. Tr.10,977, passim and particularly at II,13, 15,17,18 and 23.
D 13. The circumstances relating to two structural weld deficiencies, emphasized by AWPP, which were not discovered by the Applicant's Quality Control inspector, as well as all the other instances cited by AWPP, and the Applicant's evaluations and corrective and remedial ac-tions as audited by the NRC Staff, have been fully and truthfully de-
, scribed in the Applicant's and Staft's testimony. The testimony clearly establishes that AWPP's instances, all of which were taken from NRC Staff inspection reports and/or Applicant's own audit reaorts and re-sponses to the NRC Staff, are isolated, nonprogrammat: , and, partic-ularly given their source, in general, indicative of the effectiveness of the Limerick QA program. There has been no " breakdown" of the Lim-crick QA program for welding. Boyer et al., IT. Tr.10,321, passim and particular'y at 4. Durr and Reynolds, IT. Tr.10,977, passim anj partic-utarly at 11,13,15,17,18 and 23.
D 14. Additional expert views finding that the Applicant's welding quality assurance program was effective were provided by the NRC Staf!'s 1983 programmatic evaluation (1983 "SALP Report"). It states: Observations by the Resident inspector and Construction Inspection Team indicated that a strong construction QC program was in place. In addition to the E C's well staffed and trained QC organization. the Licensee's QA organization also is starred by well trained and knowledgeable QA engineers. The Resident Inspectors have no-ticed that the Licensee's QA engineers have performed more than the required iri. spections and surveillances in this area App. Ex. 52, at 12-13; Boyer et al., ff. Tr.10,321, at 90.
- 2. A WPP's Post itearing Afotions D 15. Subsequent to the close of the record (as well as after the filing of its proposed findings and our May 31,1984 bench decision on the merits), AWPP filed a motion to reopen the record on this ;onten-tion (June 8,1984), followed by its " Motion to Withhold Final Decision Re AWPP Contention VI l" Oune 11, 1984). We agree with the an-swers of the Applicant and Staff that there is no basis in support of these motions and accordingly deny them.
513 l i
D-16. The subject of AWPP's motion to reopen is a finding in an NRC Staff inspection report regarding deficiencies in the placement of pipe support hangers resulting from interferences with other structures. Although AWPP cites a May 21, 1984 letter to the Applicant from the NRC Staff, this letter is simply a followup acknowledging Applicant's re-sponses to the underlying Staff inspection report findings and notice of violation issued on January 10,1984. This is an o*u matter, arising from combined NRC Staff IE Report 50 352/8319 & 50-353/83-07, which AWPP previously had included in its list of instances specified in support of this contention, designated by AWPP as the second ofits two items "AWPP 260A." In our unpublished " Memorandum and Order Ruling on Applicant's Motion to Strike Specific Instances Advanced by AWPP in Support of Contention VI 1" (April 2,1984), slip op. at 4 5, we ruled that the hanger interierences violation was not related to welding quality or welding-related quality assurance and that therefore this alleged in-stance would be stricken as being irrelevant to the contention. AWPP now simply again brings this instance to our attention, and mentions test welding in the same pleading. No reason to reconsider our prior ruling is shown or apparent, even if we consider AWPP's very untimely attempt to seek, in effect, reconsideration after the close of the record. We adhere to the previous determination in our April 2 order. D-17. AWPP's June 11 " Motion to Withhold Final Decision" cites the fact that the NRC Staff informed the Applicant in a June 4,1984 letter that it would be conducting routine verifications, by nondestruc-tive examinations, of construction activities and materials. AWPP as-serts, without basis and inconsistently with the routine nature of this facet of the NRC Staff's ongoing inspection program, that the plans for this inspection confirm that there is a basis to doubt the previous inspec-tions of welds. Given the actual routine nature of the situation, there is no reason to defer this decision to await and consider on this record the results of the Staff's inspection. This is reason enough to deny the motion. In any event, even if the inspections were related to the conten-tion, AWPP's motion does not address, let alone satisfy, the standards for reopening the record to admit a late-filed contention, and is denied for this reason as well. E. Onsite Emergency Planning
- 1. Summary E-1. In this section of the decision we rule on seventeen conten-tions or parts of contentions which Limerick Ecology Action (LEA) puts forward on the Applicant's emergency plan, generally called the 514 4
4
onsite plan." issues involving the Commonwealth's and local govern-ments' offsite plans are still pending for litigation and will be considered in a later partial initial decision. The hearings were held April 23 25, 1984 in Philadelphia. The Commonwealth took part in them under the provisions in 10 C.F.R. { 2.715(c) for the participation of interested governments. In accord with its rights under 5 2.715(c), the Common-wealth also filed proposed findings, which we have considered in coming to our decisions. E 2. LEA's contentions allege shortcomings or insufficient devel-opment in many areas of the Applicant's onsite planning: the spectrum of accidents covered by the Plan; the operation centers for emergency response; the length of time which might pass before offsite authorities were notified of an emergency; the Applicant's capabilities for predicting and assessing the radiological consequences of an accident; its capabili-ties for determining the location of all onsite personnel at the start of an emergency, and for monitoring them for radiation and decontaminating them if necessary; hospital care for onsite personnel who are both in-jured and contaminated; and the agreements with offsite o.ganizations which would provide onsite support, the training of their personnel, and the backups for these organizations. The number and range of the con-tentions which were dealt with in the hearings were even greater than the number and range of the seventeen we rule on here, for LEA with-drew some contentions and parts of others between the hearings and the filing of its Proposed Findings. The course of the litigation also brought about enough changes in the contentions which remain to cause their texts as admitted to no longer adequately reflect them. Thus, in our rul-ings below, we paraphrase the contentions when setting out what they now allege. Their full texts may be found in a November 14, 1983 compilation by LEA. E 3. At the hearings, the Applicant presented a panel cf witnesses which included some of the Applicant's senior management officials, the Applicant's Director of Emergency Preparedness, and the Senior Health Physicist at Limerick. The Staff's one overall general witness was a Senior Reactor Safety Engineer in the Emergency Preparedness Branch, Division of Emergency Preparedness and Engineering Re-sponse, Office ofInspection and Enforcement. Both LEA and the Com-monwealth took part in cross-examination of these witnesses but pre-sented none themselves. Il The pertinent parts or the Plan are in the record as Applicant's Exhibit 37 Howeser, for the sake or brewry, our citations to the Plan will be or the rorm. "Pten. I 6.1 1." 515
4 i. E 4. As set ferth in our Findings of Fact on each contention detailed below, we rule in favor of the Applicant on all seventeen con-tentions. Except on Contention VI'l-12(a), hospital arrangements for contaminated injured, our rulings are unanimous. E-5. With a number of contentions we have found it necessary to go to the Plan's implementing procedures to decide a controversy. We are aware that by going to the procedures we may appear to have run counter to the ruling in Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732,17 NRC 1076 (1983), which may appear to say that no implementing procedure is to be subject to scrutiny in a licensing hearing. Id. at 1107. However, we read Waterford less broadly. It does say that the whole body of implementing procedures need not be ready in time for challenge in a hearing, and the case wisely counsels against getting bogged down in the detail of the procedures. /d.
, We give similar counsel below in our discussion of Contention Vill-6(c),
and we believe we have avoided getting bogged down in detail. Howev-er, we do not coJttrue Waterford to rule that we cannot examine imple-menting procedures which are - as were the ones we consider below - already available and arguably necessary to determine whether certain plan provisions meet NRC planning standards and guidelines. Examining such procedures has the adequacy of the plans foremost in mind, and thus is in keeping with Waterford's reminder that the proper object of litigation is the adequacy of the plan. See also our Special ? rehearing Conference Order, LBP-8418,19 NRC 1020,1040 (1984). E-6. As the reader may note, almost none of our citations to im-plementing procedures are to the record. This is because only early revi-sions of the pertinent implementing procedures appear in the record, in App. Ex. 33, and yet we early on discovered that the latest revisions of these procedures, filed by the Applicant after the completion of the hear-ing on this subject, made moot some of the controversies in this proceeding. Thus, we acquired the habit of referring to the latest revisions, even on matters which have remained unchanged from revi-sion to revision. The parties were given an opportunity to set forth, in writing, any specific objections or other points they wished to make regarding these revisions.
- 2. LEA Contention VIII-1: Spectrum ofAccidents Envisioned in Plans E 7. Contention Vlli 1 as admitted and Contention VIII l as argued in LEA's Proposed Findings are not the same. As admitted, this contention had alleged the onsite plan did "not encompass the spectrum 516
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E
of credible accidents for which emergency planning is required." The narrow factual basis of the contention was that although } 4.2 of the Plan said that the adequacy of the Plan could be demonstrated by, among other things, noting that the provisions of the Plan encompassed the radiological consequences of the " postulated accidents," Table 41 showed that the only accidents postulated were design basis accidents. E-8. In reply, the Applicant argued that Table 4 2 of the Plan, which sets out responses to a variety of events, in fact included some accidents which were beyond design basis. Boyer er al., ff. Tr. 9972, at 1-2. Both the Applicant and the Staff argued that the provisions of the Plan encompassed the accident initiating conditions listed in NUREG-0654, Rev.1, in Appendix 1. Id. at 2; Sears, ff. Tr. 9776, at 5. l E-9. On Contention Vill 1 as admitted, we f'md for the Applicant. LEA neither proffered witnesses on the issues raised by the contention nor cross-examined the witnesses of the other parties. Thus, all the evi-dence in the record points to the conclusion that the Plan does indeed encompass accidents beyond design basis. E-10. As argued in LEA's Proposed Findina (PF), this contention is much broader than it was as admitted. It alleges that, whether or not the Plan recognizes initiating conditions which could lead to a severe core melt accident, the Plan does not adequately encompass " severe core melt accidents which are likely to result in doses exce: ding the PAGs [ Protective Action Guides] and to require protective actions, including evacuation of the plume exposure pathway emergency plan-l ning zone." LEA Proposed Findings at 2 (footnote omitted) and 3 n.1. The issue now is not the narrow one of whether the Plan in fact covers accidents beyond design basis, but the broader one of whether it does so adequately.'2 E-I I. The bases of this new version of Contention Vill 1 are like-wise broader. As bases, the Proposed Findings on Contention Vill 1 proffer not merely a table, as Contention Vill 1 in its admitted form did, but rather "the entire record . . established on all other conten-tions," and all the findings LEA pioposes we make on all the other contentions. LEA PF at 1-2,5. Thus, LEA argues, the Applicant cannot carry its burden of proof by merely citing a table ofinitiating conditions.
"The Plan in its entirety must be examined to determine whether the 12 The Board notes that the NRC does not intend that emergency plans must aim at the impossible in an emersetecy. namely the prevention of any dose which exceeds the relevant pao. or on the other hand, tfut PAGs are acceptable dose levels in situations other than emergencies. See NUREG 0396/ EPA 520/178-016 (December 1978) at 4. Rather. PAGs are antended by the NRC to be simply levels of ra.
6ation dose which when predicted or exceeded insger protective actions designed to minimize the im. pacts or the actual of threatened doses. 517
- . =. ._. -. . _. ..
Plan's operation in fact will encompass the sequence of events which would occur in a severe accident." LEA PF at 7 (footnote omitted). E-12. It is difficult to view this new version of Contention Vill-1 as more than a kind of summary of LEA's other onsite planning conten-tions. It cites them as bases and proposes no remedy of its own. It is arguable that given its newness and redundancy we are not obliged to rule on it at all. E-13. However, treating the VIII I of the Proposed Findings as both admitted and distinguishable from a mere summary of the other i onsite contentions, we nonetheless again find for the Applicant. The Findings of LEA we accept on the other contentions are far too few to i support so broad a claim as that the onsite plan t.? ken as a whole does not adequately encompass the spectrum of credible accidents, both design basis and beyond.
- 3. LEA Contention VHI-3: Onsite Monitoring Systems E-14. As admitted, this contention was quite broad, alleging that the onsite plan did not identify and establish the onsite monitoring sys-tems called for by Evaluation Criterion H.S in NUREG-0654, ch.11.
1 These systems cover a variety of phenomena, among them wind speed and direction, reactor coolant levels, radioactivity, and fire. The data from these monitoring systems would be used to initiate emergency action levels. In its written testimony, the Applicant listed the sections of the Final Safety Analysis Report (FSAR) in which the monitoring sys-tems called for by Criterion H.S are discussed, Boyer et al., ff. Tr. 9772, at 2-5. The contention now concentrates on the adequacy of three of these systems. We find that the first of them is adequate, and that, in the circumstances, the Staff should make the final evaluation of the : other two. E-15. The first of the three systems monitors for certain toxic chemicals which could incapacitate control room operators. Criterion H.S does not explicitly call for a chemical release monitoring system, but the Applicant has installed one nonetheless, and its inclusion seems necessary given the goals of the Criterion. Thus there can arise an issue over its adequacy. LEA claims that the system does not cover all the chemicals which might present a hazard to control room operators. For the reasons given below, the cLim is true, but not significant. E 16. The Applicant's determination of which chemicals present a hazard to control room operators is set out in i 2.2.3.1.3 of the FSAR. The determination rests on this definition. "A chemical is considered a 518
- -e ~ p , 7-,y
potential hazard if it is stored or transported nearby in such quantities that its concentration at the control room air intake following a spill could :xceed the toxic incapacitation level." FSAR at 2.2-7. After con-sultation with Conrail, surveys of nearby manufacturers and users of toxic chemicals, and a modeling of toxic plume transport, 'he Applicant determined that 6 of 154 chemicals evaluated fit the definition just quoted. All six are covered by the Applicant's chemical release monitor-ing system. See FSAR l 2.2.3.1.3. Thus, in testimony LEA does not mention, one of the Applicant's witnesses could say, "we are monitoring for all the chemicals which have the capability of resulting in concentra-tions in the control room which would incapacitate the operators." Tr. 10,207 (Boyer). E-17. Of course, it is possible, but extremely improbable, that one of the chemicals not covered by the monitoring system would be re-leased, say by a train derailment, in such a way as to threaten the control room. However, the Applicant has already exceeded the standards of Criterion H.S in this regard, and LEA has raised no question about the adequacy of the consultation, surveys, and modeling which the Applicant used to determine which chemicals the monitoring system would cover. hiuch of the analysis which led to the determination followed NRC guidelines in various documents. See FSAR { 2.2.3.1.3. We see no legal or practical point in requiring that the Applicant's monitoring system cover more chemicals than the six it now covers. E-18. The second of the monitoring systems LEA is concerned about is the meteorological system. Data from two meteorological towers, called hie -Towers 1 and 2, are direct inputs in a system the Ap-plicant would use to predict cumulative population dose. Tr. 10,187-88 (hlurphy). The dose predicticn would be used in determining what emergency measures to initiate. LEA notes that the Staff has said that hiet-Tower 1 is close enough to the cooling towers for there to be distor-tion of hfet-Tower l's readings of wind speed and direction. Sr e NUREG-0991, Safety Evaluation Report related to the operation of Lim-erick Generating Station, Units 1 and 2 (SER), August 1983, at p. 219. The Staff has said that it will include this subject in its review of emergency preparedness. Id. LEA proposes that we " require, as part of any order, a Staff report on the evaluation and resolution of these con-cerns prior to any fuelloading or testing." LEA PF 18. E-19. We find that any such requirement is unnecessary. First, in the course of its review of emergency preparedness, the Staff will be preparing a report which will include evaluation of the impact on emergency planning of the possible distortions in the data from hiet-Tower 1. SER at p. 2-19. p.13-17. LEA has offered no evidence that 519
that report will be madequate. We see no gain to safety from simply including that report in one of our orders. E 20. Perhaps more important, a glance at the SER passage on hiet-Tower I reveals that the Staff's concern about its location is minimas. There the Staff says that meteorological measurements at Slet-Tower i "will probably be affected by the cooling towers less than 10% of the time," and probably not at all in a slow wind. /d. at p. 219. Also, the Staff says that the potential for sign (Bcant distortions of Slet-Tower l's measurements of wind speed and direction is "small." /d. Indeed, the Staff concludes that the location of hiet Tower 1 is " satisfactory." /J. LEA does not dispute any of these statements. E-21. The last of the three systems or pieces of equipment LEA is concerned about under Contention VIII-3 is the wide-range water level transmitter used to monitor the level of the coolant in the reactor. As is the case with the other systems and equipment considered in this contention, data from the wide-range water level transmitter would be used in an emergency to help determine the appropriate level of emergency response. Regulatory Guide 1.97 calls for the reference leg of the transmitter to be located at the required tap at centerline of the main steam lines, but the Applicant, excepting to this guidance, has put the reference leg 5 feet below the location the Regulatory Guide prefers. See the FSAR at 7.5-27, in App. Ex. 38. Storeover, the Staff is in the midst of reviewing the whole of Applicant's treatment of Regulatory Guide 1.97. See the SER, j 7.5.2.3, and SER, Supp.1, at p.1-2. LEA would have us therefore conclude that the water level monitoring system is not yet " established" and so does not conform to Criterion H.3, the legal basis for all parts of Contention VIII 3. E-22. We do not so conclude. First, it must be remembered that Regulatory Guide 1.97 is guidance, not regulation. Therefore, an Appli-cant need not conform to some particular guideline in the Guide ifit has good reason not to. The Applicant has chosen to place the reference leg of the wide-range water level transmitter below where Regulatory Guide 1.97 would have it placed in order to " eliminate long runs of exposed sensing line tubing that contribute to erratic indication." FSAR at 7.5-27, in App. Ex. 38. LEA doesn't even merition this reason, let alone criticize it. Nor is there in the record any indication that the Staff will find the reason inadequate in the course ofits review of the Applicant's treatment of Regulatory Guide 1.97. E-23. Thus, we have ruled against LEA on all three parts of Con-tention VIII-3. In relation to the second and third parts, our rulings have been the result largely of LEA's nearly identical approaches to the issues of the locations of hiet-Tower 1 and the wide-range water level 520 l l
transmitter: In both cases LEA has chosen to second a concern the Staff has raised in the SER, but LEA has added nothing to the record on either issue, either by testimony or cross-examination. The result is that LEA has in effect asked us to be not adjudicators of conDicting claims each backed by a part of the record, but solely reviewers of Staff work. It is not our function to review StafT work except in the context of adjudica-tion proper. T herefore, we leave to the Staff the final determination of ' the adequacy of the locations of Met Tower I and the wide range water level transmitter.
- 4. LEA Contention VHM(a): Mutually Agreeable Basesfor Notification of Organi:ations with Responsibilityfor Onsite Augmentation E-24. Evaluation Criterion E.1 of NUREG-0654, ch. II, says that
"[elach organization shall establish procedures which describe mutually agreeable bases for notification of response organizations . LEA contends that the onsite plan does not demonstrate that mutually agree-able bases exist for notification of organizations with responsibility for onsite augmentation. Arguing more specifically, LEA says that each of the three organizations it regards as having responsibilities for onsite augmentation - Linfield and Limerick Fire Companies, and Goodwill Ambulance Corpst2 (LEA PF 27) - has offsite responsibilities which can conflict with its responsibilities on site, and that for there to be the mutually agreeable bases called for in Criterion E.1, there should be something in either the Plan or the letters of agreement with these or-ganizations which "provides a resolution . . . of conflicting claims upon these very limited resources," or which " describes how these resources already committed off site would be notified and required to leave offsite duties to travel to the site." LEA PF 31.
E 25. For the reasons set out below, we find that the letters of agreement between the Applicant and the three organizations LEA names in this contention conform to Evaluation Criterion E.1 of NUREG-0654, ch. II, and that the real issue which LEA raises in this contention - the adequacy of the resources of these three organizations
- is litigated in other contentions.
E-26. LEA is confusing two possible agreements, one on the alloca-tion of allegedly scarce resources, and the other, more properly the sub-13The Applicant argues that Goodwill cannot be construed to have any responsibihties for onsite aulmentation. Apphcant's Reply Findings at 5. Given the grounds of our decision on this contention, we need not determine whether Goodwill's responsibilities include augmentation of onsite functions. 521 m - - . , - y - ., __ - ,, ,, ,-g
ject of the cited Criterion E.1, on the means of notification of the need for the resources. The contention alleges nothing about how the three organizations in question are to be notified of the need for their re-sources, only that the Applicant and the three organizations have not agreed on whether and when onsite needs should take priority over off-site. Thus, the issue the contention raises is whether the resources of these organizations are adequate where conflicting needs for these resources might arise. This issue is the principal one in Contentions VIII-ll and VIII-12(b), and thus is redundant here. E-27. Evaluation Criterion E.1 seeks not adequacy of numbers but rather agreement which is likely to preclude confusion during an emergency about what constitutes official notification. During an emer-gency, a response organization should not have to wonder whether a call for its resources was made by a responsible party. The agreements with each of three organizations LEA names in this contention appear to pre-clude such confusion. Each of the two fire company letters says that the fire company which is the subject of the letter will receive notification from the " Montgomery County Division of Public Safety, Office of Communications." App. Exs. 44 and 45. According to unchallenged tes-timony of one of the Applicant's witnesses, the Office of Communica-tions is aware of these agreements. Tr. 10,007-08 (Kankus). The letter of agreement between Goodwill Ambulance Corps and the Applicant says that Goodwill and the Applicant's Medical Director have " reviewed arrangements for the Goodwill Ambulance Unit to respond to a call for assistance" to the Limerick plant. Plan, Appendix A, item 10. S. LEA Contention VIII-6(c): Notification to Offsite Authorities E-28. As did other onsite emergency planning contentions, Vill-6(c) changed in the course of being litigated. The contention in its ad-mitted form is now only a secondary part of the contention in its litigated form. As admitted, VIII-6(c) is aimed only at one provision of the onsite plan. Section 6.1.1 provides that notification to governmental au-thorities of an emergency event "shall be within about fifteen minutes after classifying the event." LEA alleges that this provision does not con-form to the guidance in NUREG-0654, Appendix 1, at p.13, which LEA interprets as saying that notification should take place within 15 minutes "not from classification. but from the time that operators recog-nize that an emergency event hcs occurred." LEA PF 37 (footnote omitted). E 29. However, during litigation VIII-6(c) expanded and became aimed not only at the Plan but also at some of the implementing proce-522
1 1 dures under it. LEA claims that given the provisions of certain imple-menting procedures, the time between classincation of the emergency event and notification of offsite authorities - let alone the time between recognition that the event has occurred and notification - may " easily" be longer than 15 minutes. LEA PF 48. E-30. Thus Contention VIII-6(c) now has two parts; they can be summarized thus: First, the plan measures the 15 minutes to notinca-tion from too late a moment, and second, even ifit should be measured from the later moment, notification may well be delayed beyond 15 min-utes. Each of the two parts of the contention is a fall back position for the other, but the second part has been foremost in the litigation of VIII-6(c). Below, we consider the second part first. Happily, the issue it raises has become largely moot because of revisions of the implementing procedures, revisions LEA and, surprisingly, the Applicant did not inform the Board of. We end our discussion of Vill-6(c) with an exami-nation of the NUREG-0654 guidance on which LEA relies in claiming that the Plan measures the 15 minutes from too late an event. For a number of reasons we conclude that NUREG 0654 intends that the 15 minutes be measured from classification of the emergency event. Thus, the Plan conforms to the guidance. E-31. To support its claim that notification could easily be delayed beyond 15 minutes after classification, LEA examined in some detail EP-103, the implementing precedure which provides guidelines for the site response to the Alert level of emergency action. EP-103 lists several tasks to be performed by the Emergency Director, or the Interim Emergency Director if the Emergency Director is not available. The task of filling out the Alert Notification Message to be sent to ofTsite authori-ties is the seventh item in the list, after such apparently time-consuming tasks as directing evacuation of the site. Citing testimony by one of the Applicant's witnesses, LEA claims that just the first listed task alone, verification of the emergency classification, could well take anywhere from 10 minutes to an hour. LEA PF 46. LEA could have made similar arguments about what, at the time of the hearing on this contention, were the current texts of EP-102, EP 104, and EP-105, the other three documents which provide guidelines on site response at one of the four levels of emergency action the NRC has established. See NUREG-0654, Appendix 1. E-32. However, in the latest revisions of EP-102 (Unusual Event). EP-103 (Alert), and EP-104 (Site Emergency) - Revision 3 of each - the notification tasks are listed immediately after verification of the emergency classification, which is still listed first in each of the three documents. No Revision 3 has been issued yet for EP-105 (General 523 l
i i l l l Emergency), the last of the four implementing procedure documents on site response at the four emergency action levels, but, given the latest revisions of the first three documents, there is no reason to think that there will not be a revision of EP-105 which will list notification tasks right after verification. E-33. With these latest changes in implementing procedures, the claim in Contention VIII-6(c) that notification might well come more than 15 minutes after classification of an emergency event depends wholly on whether verification of the classification could take more than 15 minutes, for verification is now the only step between classification and notification. As we've said, LEA claims that verification could take up to an hour. LEA PF 46. E-34. The claim is misleading. It is stated generically, without men-tion of the single example on which it rests, and rests not at all firmly. The example is a wreck on site of a train carrying toxic chemicals. It could take up to an hour to obtain a report from Conrail on the contents of damaged cars. Tr.10,101 (Boyer). However, if the chemicals were identified by labels on the cars which carried them, as they usually are, it would take only 10 to 15 minutes for someone sent from the Limerick plant to the site of the wreck to learn what the chemicals were. Id. at 10,100 (Boyer). Moreover, under EP-101, Rev.1, and EP-102, Rev. 3, the mere fact of a train derailment within the site boundary is enough to trigger notification of offsite authorities. Therefore, there is no evidence in the record that verification of a classification could delay notification. E-35. Thus, as the relevant implementing procedures now stand, there is reasonable assurance that notification of offsite authorities will occur within 15 minutes of the classification of an emergency event.85 14 Even though the Apphcant sent these latest revisions to the Board and the other parues on June 11 10 days before LEA Gled its Proposed Findings and nearly a month before either the Apphcant or the stafr Gled theirs. it appears that no party knew of the changes we have just Jescribed. we might have ex-pected LEA and. in particular. the Apphcant to have noted changes in documents which figured so prominently in their Proposed Findings. on the other hand, there is illustrated here one of the d:fricul-ties which inheres in trying to cope with implementing procedures in litigation, rather than focussing on the plans. as case law would generally have us do. See Waterford. ALA8-732. supra.17 NRC at i10L Taken altogether. the irripicmenung procedures are a maze of details undergoing more or less constant revision in a process which someumes can be beyond the reach of even the Apphcant's counsel, as ap-parently it was here. 15 Even ir the latest revisions of the implemenung procedures had not made largely moot the issue of the length or ume between classification and not:0 cation. we might well have found for the Apphcant on this issue. pnncipally because it would appear that, with the excephon of sine evacuauon. none of the Err.srgency Director's tasks which in the earher texts of the procedures came before nouGcation would consume more time than a quick telephone call would; and even
- directing" site evacuanon requires the Director to perform what is arguably only a short sertes of simple acts. See EPdO5, Rev.1. { 91.
The Apphcant makes two other arguments about the earher versions of the procedures, but neither is persuasive. The Grst is that site evacuation, which in the earher versions preceded nouGcation. would be imusted and " directed" by the Emergency Director but that classincauon of an event and nonficanon of (Conimurd) 524
4 1 i l 4 l 1 All that remains of Contention Vill-6(c) therefore is the original part of it, the claim that the onsite plan should measure the 15 minutes not from classiGcation, but from the time onsite personnel recognize that an ; emergency event has occurred. LEA rests its claim on the following sen-tence from NUREG-0654: "The [15 minutes) is measured from the time at which operators recognize that events have occurred which make declaration of an emergency class appropriate." /d., Appendix 1, at p.1-3. The meaning of this sentence is not crystal clear. LEA's read-ing ofit is certainly plausible, but three arguments point to a conclusion that the sentence means that the Applicant should be able to notify olT-site authorities within 15 minutes of classy 7 cation of an emergency event. E 36. The first two arguments are textual. First, immediately before the sentence we just quoted from NUREG-0654 comes this one: " Prompt notiGcation of offsite authorities is intended to indicate within Gfteen minutes for the unusual event class and sooner (consist-ent with the need for other emergency actions) for other classes." Id. Here the time to notincation is a function of the emergency class and therefore must be measured from classincation. E-37. Second, the 15 minute requirement is stated less ambiguously in Appendix E of 10 C.F.R. Part 50: "A licensee shall have the capabil-ity to notify responsible State and local governmental agencies within 15 minutes after declaring an emergency." Id., IV.D.3. LEA acknowleoges that this regulation measures the 15 minutes from classiGcation, but apparently, LEA also wants to treat the regulation in Part 50 and the ofTsite authonties would be performed by the shift supenntendent. Thus, the Applicant argues. site evacuation would not have to precede notincation. The difTerent personnel assigned these tasks could perform them simultaneously Tr. 10.12122.10.124-25 (Ullrich). However, this argurnent is dMicult to square with she texts of the implementing procedures. EP 103, Rev. 3. is typical. It assigns all three tasks - classification, direction of site evacuation, and notiGcation - to what it catts the "flntenm) Emergency Director" The Intenm Emergency Director is the shift supenntendent (Plan 6 5 2.1.1); he is to serve until the Emergency Director. who is the station superintendent W.15.2.1.2), takes over M. I 5.2.1.1). Thus, although the Applicant's witness says that EP.103 assis ts the shift supenntendem and the Emergency Director to different tasks. it appears that EP.103 actually assigns them at most to difrerent ames. and therefore that if the shift supenntendent were to stay long enough, or the Emergen-cy Director to come earty enough, under EP 103, Rev.1. either officer could well have to perform all three tasks. The Applicant's other unpersuasive argument is that notincation and site evacuation could be simulta-neous because "!Ljhere is no evidence in the record that the effectiveness of Applicant's implementing procedures . . . is dependent upon the execution of steps withm a procedure in any particular order." Ap. plicant's Reply Findings at 7. such a claim is implausible a pnorr. but it is abo difricult to square with certain particulars in the procedures. For instance. even a witness for the Applicant testified that in EP 305, Rev.1. which governs site evacuation. the Emergency Director would have to perform j 91.l.3. notincation of secunty, before i 91.l.7. activation of the starm. so that secunty would have time to prepare for evacuation. Tr. 10.102 04 (Ullnch). Indeed, the very revisions which have placed notification just after venfication would indicate that the order in which the tasks are listed is intended to be the order in which they are to be performed. 525
l l 1 l 1 guidance in NUREG-0654 as different requirements, as if the Applicant had to be capable of notification within 15 minutes of two quite different moments. LEA PF at 14 n.1. We do not see how this makes sense. E 38. The third and last argument is practical: Recognition of an emergency event and classification of it for the purposes of site response are, in relation to notification, barely separable; thus measuring the 15 minutes from classification could not cause significant delay. Apparent-ly, LEA imagines that plant personnel will first recognize that something has gone wrong and then may have to spend some tim determining how serious it is before they put it in an emergency le vel classification: LEA claims that classification may be delayed "for a< long as 20 minutes beyond event recognition under some circumstane es, e.g., a transient plus failure of the core shutdown system, in which he symptoms of the event will be the initiation of the liquid control systum, but the failure of the core to become subcritical [ sic]." LEA PF 3F, citing Tr. 10,085-86 (Boyer). E-39. While one witness of the Applicant did say that it could take "20 minutes say" after the initiation of the liquid control system to determine whether the reactor was becoming suberitical (id.), another witness of the Applicant pointed out that under EP-101, Rev.1, at 15, even while the operator was initiating the liquid control system an Alert level of emergency response would probably be declared because of the failure to automatically scram, combined with a failure of a scram to bring the reactor suberitical. Tr. 10,087-88 (Kankus). Notification of eff-site authorities would follow declaration of the Alert level, not the determination of whether the liquid control system had brought the reac-tor suberitical. Tr.10,088 (Kankus); see also EP-101, Rev. 3. Similarly, as we've noted before, in the case of a train derailment on site, notifica-tion of offsite authorities would follow recognition of the derailment, not determination of whether toxic chemicals were released in the accident. E-40. Thus, no period of uncertainty about how threatening an ini-tial event was would delay notification, for while reclassification might come more than 15 minutes after an initial event, notification would not, since even the initial event would fall within a classification which required notification to offsite authorities. We note also that as the im-piementing procedures now stand, reclassification would bring about renotification well within 15 minutes. E-41. In conclusion, we find that NRC regulations and guidance re-quire that notification of offsite authorities follow within 15 minutes of classification of an emergency event, and that as the implementing 526
procedures now stand, there is reasonable assurance that this time con-straint would be met in an emergency. 6._ LEA Contention VHI-8(bh Adequacy ofEmergency facilities, Equipment and Supplies E-42. In this contention, as in VIII-3, LEA focuses on areas still under review by the NRC Staff. Here, unlike in Vill-3, the Staff has not identified a possible shortcoming in the Applicant's work, but at the time of the hearing on onsite planning, the Staff's review was still far from complete. E-43. At the time of the hearing, in April 1984, the Applicant was still in the process of establishing three emergency facilities called for by NRC guidelines in various documents: the Emergency Operations Facility (EOF), the Technical Support Center (TSC), and the Operations Support Center (OSC). The Staff's witness estimated that the three facilities were about 75% complete (Tr.10,062 (Sears)), and that the Staff's review of the facilities would not be available for about another 3 months (Tr.10,273 (Sears)). E-44. In view of the importance of these three facilities, and the e ork which at the time of the hearing remained to be done on them, L 'A asks that before we make findings on the three facilities, the Staff maxe its review of them available to the Board and the parties and the parties be given opportunity after the review becomes available to pro-pose additional findings on the adequacy of the facilities. LEA PF 54. E-45. Having balanced certain considerations, we have decided to close the record on these facilities now. On the one hand, it is crucial that these facilities be adequate to the uses which would be made of them in an emergency. Moreover, determining their adequacy would appear to require some judgment, considerably more than determining the adequacy of, say, the location of Met-Tower I or a wide range water level transmitter. See our discussion of Contention Vill-3. Thus an out-side observer such as an intervenor could be both interested in the out-come of the Staffs review and in a position to reasonably and fruitfully disagree with the StalTs review. E-46. On the other hand, the review work which the Staff had yet to do at the time of the hearing was hardly novel, nor have such facilities been the objects of great controversy in proceedings on other plants. Limerick is not the first plant to use the instrumentation and equipment which will be in the three facilities. Tr.10,065 (Sears). Moreover, the criteria for judging the facilities - NUREG-0696 and 0818 - are well 517
-- , , , ~ . - - - . -- - --= - ~ - - , , , ,
known and not particularly cor.coversial - and not at all controversial in this proceeding. E-47. But last and perhaps decisive, litigation on emergency plan-ning is first and foremost concerned with the plans; yet, even though a certain amount ofinformation about these three facilities is available in (( 7.1.2., 7.1.3, and 7.1.4 of the onsite Plan, LEA has raised no issue based on any of this information. Even now, LEA raises no specific con-cern that any of these facilities will not meet a particular requirement. E-48. On balance, we find that LEA has not shown any justification for keeping the record open.
- 7. LEA Contention VHI-10(a): Delineation ofAuthority in Certain Letters ofAgreement E-49. LEA contends here that the Applicant's agreements with local agencies do not conform to Evaluation Criterion B.9 of NUREG-0654, ch. II, because they do not delineate the authorities, responsibilities, and limits on the actions of the agencies, but merely briefly describe the general nature of the service to be provided. Though stated quite broadly, the contention deals only with the Applicant's agreements with the Linfield and Limerick Fire Companies and the Goodwill Ambulance Unit.
E-50. The issue LEA raises about the agreements with the fire companies is that although the letters do say that the fire companies will be "under the direction and control of Philadelphia Electric Co." (App. Exs. 44 and 45), the letters do not reflect, but should, what LEA thinks is the more complicated division of authority which the Applicant actual-ly has in mind: The fire companies would not have authority to decide how to fight an onsite fire, but would to decide what equipment to bring, though not to decide where to place it; they would also have au-thority to decide which of their personnel to bring, but not to decide how long they would fight a given fire. LEA PF 58 (citing Tr. 9968-69 (Kankus)). LEA claims that unless such divisions of authority are delin-eated in the agreements, there is likely to be conflict and confusion when the Applicant's fire-fighting personnel, who have had only a 2-day course in fire fighting, try to assert authority over experienced municipal fire fighters. LEA PF 59. E 51. We find that the agreements are adequate as they stand. All the divisions of authority which LEA elicited in cross-examination from one of the Applicant's witnesses, and which LEA apparently thinks are too confusingly arranged to be left out of the agreements, follow directly from the single principle laid down by the same witness: "Again, 528
E before they [the fire companies) come to the site, they have - the deci-sion is theirs to determine what they will bring. Once they're on the site they're under the direction of our fire-fighting personnel." Tr. 9969 (Kankus). And this principle is only a paraphrase of the one already stated in the letters of agreement, that while on the site the fire compa-nies will be under the direction and control of Philadelphia Electric. There is no need for the letters to spell out the direct consequences of so simple a principle. E-52. There is no reason either to think that the fire companies will resist the application of the principle. They have, after all, agreed to it, and it makes good sense, for, of all the fire-fighting personnel, only the Applicant's will be well informed about the layout of the plant, the loca-tion of electrical equipment that may be feeding the Gre, ventilation systems, and the like. Tr. 10,012-13 (Ullrich). Moreover, personnel named by the fire companies will be trained by the Applicant (App. Exs. 44 and 45) and so will be accustomed to the division of responsibility j the principle entails. E 53. Last, we note that the Applicant's Gre-fighting personnel have something more than just a superficial 2 days of training in fire fighting. Unrefuted testimony has it that the 2 days will be " intensive." Tr. 9970 (Kankus). The course is well established, being given by the Applicant's fire school, which has been in service for a number of years. Id.; Tr. 9971 (Reid, Boyer). Finally, there will be annual retraining. Tr. e 10,008-09 (Ullrich).
! E-54. There is even less reason to make a finding that the Appli-cant's agreement with Goodwill Ambulance is inadequate. One of the Applicant's witnesses testified that the only authority the Applicant would exercise over Goodwill's personnel would be that exercised by an 4
escort who would keep them away from areas where they were not needed and would lead them to where they were needed. Tr. 9967-68 (Kankus). Such " authority" is more aptly called " help," and is so self-evidently what Goodwill personnel would need in an environment with which they were not familiar that it need not be spelled out. 1
- 8. LEA Contention VIII-I1: Offsite Augmentation of Onsite Fire-fighting Capabilities E 55. LEA once again contends that the agreements between the Applicant and Linfield and Limerick Fire Companies for augmentation of.the Applicant's own fire-fighting capabilities are not adequate. See also our discussions of LEA Contentions Vill-6(a) and Vill-10(a).
i Here the difficulty LEA sees is that there is a chance that the two fire i 529 w
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companies would have offsite duties that would keep them from per-forming their onsite duties. Under the offsite emergency plan for the Limerick plant, both fire companies are assigned to do route-alerting if notification to the public should be required while the siren system is in-operable. Tr. 9982 (Kankus). LEA admits that the probability of there being both a general emergency and a failure of the siren system "may be relatively low." LEA PF 63. Nonetheless, asserting the principle that the adequacy of emergency plans is to be measured "in light of the cir-cumstances of accidents which may require evacuation of the plume exposure EPZ" (LEA PF at 27 n.1), LEA claims that the Applicant should make some further arrangements, ones which will secure offsite augmentation even when route-alerting is necessary. E-56. The Applicant and the Staff emphasize that the plant is " basi-cally self-sufficient in fire-fighting capabilities." See App. PF 40-41, and Staff PF 24. The Applicant goes so far as to claim that its fire detection and suppression capabilities, together with the configuration and safety systems of the plant, are enough to suppress any credible fire at the plant, or to assure that if the fire could not be suppressed the damage would be limited enough to permit the plant to be safely shut down. Boyer et al., ff. Tr. 9772, at 12. Both the Applicant and the Staff also claim that in the eighty-six times the Linfield Fire Company was called out last year, it was unavailable only once. Id. at 13; Staff PF 24. E-57. These arguments are not very persuasive. The Applicant is not so self-sufficient in fire fighting that there has not been the need to arrive at an agreement with a second fire company. Aloreover, it may be that the Linfield Company was unavailable only once in eighty-six times to fight an ofTsite fire, but that is not quite relevant, for the question here is not how often a fire company might be called on to fight two off-site fires at once, but whether it might be called on to fight an onsite fire and do route-alerting at the same time. E-58. Nonetheless, we find that it is unnecessary for the Applicant to make further arrangements for augmentation of its fire-fighting capabilities. The principle that emergency plans must be judged with evacuation in mind is a good one. But probabilities must be kept in mind. It is prudent to assume, given the emergency planning regula-tions, that offsite evacuation could be required while there is a fire at the Limeric'c site. However, the further possibility that the fire compa-nies could be called on to fight a fire at the plant and do route alerting at the same time isjust too remote. Not only is it improbable, as LEA ad-mits, that the siren system would fail in a general emergency, it is also improbable that during the same emergency there would be a fire which 530 m
i l l exceeded the Applicant's considerable fire-fighting capabilities, the "ba-sic self-sufficiency" of which LEA chooses not to question. The Appli-cant's planning for augmentation of its fire-fighting capabilities already goes beyond what prudence would suggest as a minimum. We will not require that it go still further.
- 9. LEA Contention VIII-12(a): Emergency Hospital Carefor the Contaminatedinjured
- a. Unanimous Board Findings E-59. LEA here contends that there is not yet reasonable assurance that adequate measures would be taken in a radiological emergency to care for onsite personnel who suffer both traumatic injury and contami-nation. Such persons are called " contaminated injured." Southern Cali-fornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10,17 NRC 528,535 (1983).
E-60. Planning Standard (b)(12) in 10 C.F.R. { 50.47 requires that
" arrangements are made for medical services for contaminated injured individuals." The first Evaluation Criterion under this Standard, Criteri-on L.1 of NUREG-0654, ch. II, would require that "cach organization shall arrange for local and backup hospital services having the capability for evaluation of radiation exposure and uptake, including assurance that persons providing these services are adequately prepared to handle contaminated individuals."
E-61. Standard (b)(12) and the evaluation criteria which elaborate on (b)(12) aim principally to secure adequate planning for emergency treatment of traumatic injury, not of severe radiation exposure. Only in extreme cases does such exposure require immediate treatment. San Onofre, supra,17 NRC at 535-36. Standard (b)(12) and tlw criteria under it are concerned with radiation exposure principally because medi- ' cal personnel treating traumatic injury sustained in a radiological emergency may well have to reckon with contamination as an obstacle to adequate treatment of the traumatic injury. E-62. The Applicant has made arrangements for the treatment of contaminated injured with two hospitals. Under these arrangements, Pottstown Memorial Medical Center (PMMC) would be the main receiv-ing point for onsite personnel who are contaminated injured. See App. Ex. 42. Through an agreement with the Radiation Management Corpora-tion (RMC), which is the Applicant's contractor, the hospital of the Uni-versity of Pennsylvania (HUP) in Philadelphia would receive contami-nated injured when it could provide specialized personnel and equipment PMMC could not. See App. Ex. 43. HUP would also assist with the 531 9"
treatment of persons suffering severe radiation exposure with no traumatic injury. Id.; Tr. 9804-05 (Linnemann); and App. Ex. 40. E-63. However, PMMC is less than 2 miles from the Limerick plant (Tr. 9831 (Linnemann)), and HUP is a 45-minute drive from the plant (Tr. 9844 (Linnemann)). LEA wants us to rule that tne Applicant should also make arrangements for care of the contaminated injured with a hospital less vulnerable to evacuation than Pottstown is, but also closer than HUP is, and thus more accessible for the treatment of traumatic injury. LEA PF 103. The majority rules against LEA on this issue. As noted in Judge Brenner's dissent, he would find for LEA on this part of Contention VIII 12(a). E-64. LEA also wants us to rule that the implementation of the Ap-plicant's arrangements with PMMC is in its " utter infancy" and there-fore that there is not yet reasonable assurance that in a radiological emergency PMMC would be able to give adequate care to the contami-nated injured. LEA PF 102. We do not so rule. We discuss the imple-mentation of the Applicant's arrangements with PMMC first. E-65. As of late April 1984, the time of the evidentiary hearing on onsite emergency planning, and 3 months before the scheduled emergency preparedness exercises, PMMC personnel were neither trained not equipped to perform their roles under the agreement be-tween PMMC and the Applicant. Tr. 9813-14, 9818 (Linnemann). Thus, LEA speaks of the " infancy" of the implementation cf that ar-rangement. However, on the record before us, it would appear that 3 months would be ample time for training and equipping PMMC personnel, given the training and equipment required and the experience of the trainer. E-66. As to trainir g, PMMC personnel will not be wholly unfamil-iar with the plans for treating contaminated injured, for those plans are an elaboration of plans already in effect at PMMC for the treatment of traumatic injury. Trauma is the first concern of treatment of the contami-nated injured. PMMC's current disaster plan is adequate for trauma and requires only an addition dealing with contamination. Tr. 9813 14 (Linnemann). The addition will cover such important, but not especially complicated, matters as selecting a radiation emergency area, limiting contamination to that area, and seeking consultation and dose evalua-tion. Tr. 9814-15 (Linnemann). Training in accord with the addition is a matter of days only. Although specialized treatment procedures for con-taminated injury victims have not been finalized, Dr. Roger Linnemann stated that RMC, PECo, and Pottstown Hospital are compiling these procedures which, along with training, will be completed by mid-July. Tr. 9812-13 (Linnemann). The training documents to be used at Potts-532 I l
town will be similar to those used at HUP and other hospitals across the country. Tr. 9828-29, 9932 (Linnemann). The training for Pottstown Hospital employees shall include instruction in the biological effects of ionizing radiation, classification of acute radiation injuries, and in the ini-tial and emergency room treatment of radiation injuries. Tr. 9830 (Linnemann). It is expected to consist of three sessions lasting 2 days each, three drills, and a field exercise, the drills and exercises to be eval-uated by FEMA and the NRC. Tr. 9903,9954 (Linnemann). The Potts-town Memorial Hospital will receive training on a semiannual basis. Tr. 9828 (Linnemann). Finally, the trainer, RMC, is experienced, maintain-ing, as it does, similar programs for a number of nuclear power plants. See Boyer er al., ff. Tr. 9972, at 9-10; see also Tr. 9915 (Linnemann). E-67. As to equipment, again on the record it appears that, with one exception, nothing is required which is especially difficult to acquire: Radiation instrumentation, bath arrangements which permit collection of contaminated water, decontamination supplies such as soaps known to be effective in removing radiation from the skin, and containers for taking samples to determine a patient's dose. Tr. 9816-18 (Linnemann). One piece of radiation instrumentation is both expensive and diflicult to maintain: a whole-body counter, which is used to deter-mine the dose a patient has received internally. However, RMC main-tains a whole-body counter in a mobile unit in the Philadelphia area. Therefore, there is no need for PMMC to acquire such a counter as a prerequisite to implementation of the Applicant's arrangements with PMMC. As for the other equipment listed above, the Applicant has agreed ta supply whatever is necessary and not already in PMMC's possession. Tr. 9818 21 (Boyer). E-68. In conclusion, we see no obstacle to the timely completion of the training and equipping of PMMC personnel. LEA's sole argument in this part of Contention 12(a) appears to be that the 3 months between the hearings and the preparedness exercises would not be time enough for the training and equipping we've just described. However, LEA said nothing to counter the indications in the record that 3 months would be enough. Therefore, we find that there is reasonable assurance that PMMC will be trained and equipped to give adequate care to the contam-inated injured in a radiological emergency. Of course, any particular defi-ciencies which may be disclosed by the emergency planning exercises will have to be corrected under the auspices of FEMA and the NRC Staff. E-69. LEA's principal concern is about the locations of the hospitals with which the Applicant has made arrangements. PMMC, being less than 2 miles from the plant, appears to be potentially vulnerable to 533
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t having to be evacuated in a general emergency, while HUP, being 45 minutes away, might appear, in LEA's view, to be too far away to be ad-equate backup for treatment of traumatic injury if Ph!NIC had to be evacuated.'6 LEA is contending that HUP should not be the sole backup for PhthtC, not that either PhthtC or HUP should not be among the I hospitals assigned responsibility for the contaminated injured. The Appli-cant and the NRC Staff both agree that since traumatic injury is much more likely than evacuation, prudence requires that the hospital assigned the treatment of traumatic injury be reasonably close to the plant. See t Tr. 9929-30 (Sears) and Tr. 9906 (Linnemann). Contamination is really the secondary part of the whole problem. It is the patient's life that is important. Tr. 9844-45 (Linnemann). LEA appears to acknowledge this counsel of prudence. See LEA PF 90. We agree. E-70. Borrowing a phrase from the Staff, the Applicant argues that the probability of a hospital having to evacuate during a radiological emergency is "vanishingly small." See Tr. 9941 (Linnemann) and Tr. 9930 (Sears). The Applicant's chief witness on this contention, one of the officers of RhtC and a medical doctor as well as an Associate Profes-sor at the University of Pennsylvania's School of hiedicine, says, " Evac-uating a hospital is a pretty serious matter, or an immediate life-threateni.tg situation, and I don't see a release from a nuclear power plant that would be life threatening." Tr. 9941 (Linnemann). E-71. The Applicant further argues that even if PhthtC had to evac-4 uate, adequate backup would exist. If time permitted, the contaminated injured could be taken to HUP (Tr. 9906-07 (Linnemann)), and if the injury required earlier treatment than HUP could provide, the patient i could be taken to one of the several hospitals which are nearer the plant ! than HUP is. Tr. 9912-14 (Linnemann); see also Tr. 9906-11 (Linne- ' mann). Neither the Applicant nor RhfC have made arrangements with any of these other hospitals to receive contaminated injured from the plant, but the Applicant argues that, even so, none of these hospitals would refuse to accept a contaminated injured patient, for all of them l are accredited by the principal national accrediting organization, the J Joint Committee on Hospital Accreditation (JCHA). The JCHA requires that each accredited hospital have some plans for treating contaminated injured patients. Tr. 9912-14 (Linnemann). le We do not assurne avastabihty of behcopter med-evac transport ror this purpose, given the testimony on such availabihty which the Board relies on in its findings on Contention VIII l2(bt 534 I l l ! l t , i 4
,a . ., .,, . - . - . ...-- -
- b. Majority Findings by Judges Cole and Morris E-72. While the Commission's decision in San Onofre is directed primarily to consideration of offsite emergency response plans, important guidance is given that is relevant here. In discussion of { 50.47(b)(12),
the Commission teaches that: The emphasis is on prudent risk reduction measures. The regulation does not require dedication of resources to handle esery possible accident that can be imagined. The concept of the regulation is that there should be core planning with sufficient plan-ning flexibility to develop a reasonable ad hoc response to those very serious low probability accidents which could affect the general public. (Emphasis m originalJ San Onofre, supra,17 NRC at 533. The Commission explicitly noted that NUREG-0396, " Planning Basis for the Development of State and Local Government Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants," and NUREG-0654 were considered in its examination of this regulation. Also, the Commission noted the conclusion of the Appeal Board that "relatively few people [one to 25] are expected to be both contaminated and traumatically injured in a nuclear accident." Id. at 532. See Southern Cahfornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-680,16 NRC 127,137 (1982). See also Tr. 9806 (Linnemann). E-73. Regarding the availability of other hospitals in the highly un-likely event that Pottstown Memorial is evacuated, the County Radiolog-ical Emergency Response Plans (RERPs) show that there are twenty hospitals in the three county risk areas listed with radiation exposure / contamination treatment capability (Montgomery County-12, Berks County-3, Chester County-5). While the Board has no detailed knowl-edge of the specific abilities and training of the emergency medical serv-ice personnel at these potential alternative receiving hospitals, who might handle " contaminated injured," it is not unreasonable to assume that they are adequately prepared. Also, when a contaminated injured in-dividual is transported, a health physicist would accompany him and pro-vide assistance in controlling any radiological hazard both during trans-port and at the receiving facility. Tr. 9842-43 (Boyer). In the event of a large number of casualties, it is not unreasonable to assume that other hospitals and trained personnel, including particularly University of Pennsylvania and RMC specialists, will provide direct assistance. It may also be reasonably assumed that in the event of a hospital evacuation, trained personnel and some equipment would travel to the receiving hospital and provide assistance. 535 l
E-74. While the Board majority agrees that it would be prudent to make more formal arrangements with a third hospital, one less vulnera-ble to evacuation than Pottstown hiemorial, and more accessible (clos-er) than the University of Pennsylvania, we decline to require such an arrangement. It is our view that the probability of Pottstown Memorial being unavailable is remote, that there are nineteen other hospitals in the three-county area with claimed capability for handling "contaminat-ed injured" on an ad hoc basis in an emergency and the Pottstown hiemorial Staff, Rh1C and University of Pennsylvania specialists can pro-vide assistance to each other and other participating entities during an emergency. We also note that for the most severe emergency action level (a General Emergencj), evacuation is not automatically recom-mended; sheltering is the first option and may be the preferred action. NUREG-0654, Appendix 1, at 1-16. These considerations militate against imposing any additional requirements. Applicant has met the re-quirements of Planning StanJard (b)(12) in 10 C.F.R. f 50.47.
- c. PartialDissent ofJudge Brenner E-75. I respectfully disagree with my colleagues that there is no need for the emergency plans to include arrangements for the treatment of contaminated injured persons at a backup hospital to Pottstown Memorial which is closer than the Hospital of the University of Pennsylvania (HUP), in the event Pottstown hiemorial has to be evacu-ated due to an accident at the Limerkk facility. As noted above, Potts-town hiemorial is located within the plume exposure EPZ less than 2 miles from the Limerick nuclear plant.
E-7( I readily grant that evacuation of Pottstown hiemorial is improbaoa, perhaps even less probable than the evacuation of the area around it, for, as the Applicant's witness says, evacuation of a hospital is a serious matter. Tr. 9941 (Linnemann). Nonetheless, the possibility, remote though it is, of life-threatening releases from nuclear power plants is assumed by the NRC's regulations and guidance on emergency planning. Thus, the regulations and guidance envision the possibility of evacuation of an area up to about 10 miles in radius. Planning for medi-cal care for even a small number of contaminated injured persons up to about twenty-five (per San Onofre, supra ALAB-680,16 NRC at 137 and CLI-83-10,17 NRC at 532) should be consistent with this possibili-ty. E 77. Thus, the main issue under this contention becomes whether there are adequate arrangements for the care of the contaminated injured in a radiological emergency which requires the evacuation of Pottstown 536
l l s Memorial. I think there are not. As the Applicant itself says, HUP can provide backup for Pottstown Memorial only when the trauma victim
- can withstand the delay caused by going to HUP. See Tr. 9906-07 (Linnemann).87 Moreover, although JCHA accreditation may guarantee ,
that any of the hospitals between HUP and Pottstown Memorial would i accept contaminated injured victims, there is no reasonable assurance, due to the total absence of planning, that any of those hospitals is well prepared to treat such victims, especially if there were to be more than one or two victims. If JCHA accreditation were sufficient to guarantee adequate care for the contaminated injured, there would be no need to provide Pottstown Memorial with special training and equipment. E 78. Even the Applicant's chief witness, whom I found to be knowledgeable and forthright, agrees that it would be prudent to have at least skeletal arrangements with a hospital between PMMC and HUP. Tr. 9914-15 (Linnemann). Even this has not been done. Moreover, I i think that prudence suggests more than merely skeletal arrangements l with a third hospital. I therefore conclude that the Applicant should l assure that there is an emergency backup to Pottstown Memorial in addi-tion to, but closer than the large reources available at HUP. I note that my view is consistent with the uncontradicted testimony of the Applicant ! and Staff, and the views of all parties, that it is prudent and proper medi-cal practice that a hospital being relied upon for treatment of traumatic
.l injury, contaminated or not, be reasonably close (accessible) to the plant. See Finding E-69, above.
E 79. Accordingly, I would have required, as a condition for the full power operation of Limerick, that the Applicant make arrangements with an additional hospital in the Limerick area, similar to the ones it has made with Pottstown Memorial for the care of the contaminated in-jured, e.g., similar arrangements for training, equipment, and NRC/ FEMA reviewed drills and exercises. Other than the obvious, namely that the third hospital should be less vulnerable to evacuation, and signi-ficantly more accessible than HUP, I can set out no simple rule for choosing this third hospital. It is not even required that the third hospital be outside the plume EPZ. Much depends on what hospitals the Appli-cant has to choose from, how accessible each is, and no doubt other fac-tors which, on the record before us, I am in no position at this time to judge. As the majority notes, there are many candidate hospitals from l which the Applicant could easily choose a satisfactory one with which to II As noted above, and discussed under LEA Contention vill.12(b). hehcopter avadability 'cannot be relied upon for med-evac purposes given the arrangements made by the Apphcant. 537 e f
1 engage in such planning. I would have further directed the parties to dis-cuss such arrangements after they were proposed, and advise the Board whether any important material issues remained in dispute. There would be no reason to require such further arrangements prior to issuance of a low power operating license, since the concern over emergencies which may cause offsite consequences and necessitate evacuation does not arise for power levels up to 5%. See 10 C.F.R. f 50.47(d). E-80. In conclusion, I note that I believe it appropriate for decision-makers to put themselves in the place of one of the potentially affected persons - in this instance a contaminated injured worker at the Limer-i ick Generating Station - when deciding whether proper and required emergency planning is being accomplished. In this instance, I believe , proper and required emergency planning is not being accomplished, but readily could be by a utility presumably concerned for its nuclear power plant employees.
- 10. LEA Contention Vill-12(b): Adequacy of Transportationfor the i Contaminatedinjured E-81. This is yet another contention on the adequacy of the Appli-cant's arrangements with Goodwill Ambulance Unit. See our discussions of Contentions VIII-6(a) and VIII-10(a). Evaluation Criterion L.4 of NUREG-0654, ch. II says, "[elach organization shall arrange for trans-porting victims of radiological accidents to medical support facilities."
, LEA contends that the Applicant's arrangements with Goodwill Ambu-lance do not assure adequate transportation from the plant site for those who are both traumatically injured and contaminated, and that the Appli-cant has not arranged for any adequate backup for Goodwill. We find ' that the arrangements with Goodwill are adequate for possible onsite needs, but that the possibility of competing offsite uses for the ambu-lances will have to be considered during the review of the offsite plans. E-82. Goodwill has five ambulances. Tr. 9847 (Kankus). Each is de-signed to carry two and could carry more in an emergency. Boyer et al., I ff. Tr. 9772, at 10-11. Thus, if in an emergency Goodwill's only responsi-bility was to transport contaminated injured persons from the plant site, there could be !ittle question that the arrangements with Geodwill were adequate. The person responsible for establishing the Applicant's emergency medical program testified that, during his 15 years of experi-i ence in establishing similar programs at about twenty-five nuclear power i plants, there had never been at any one time more than two contaminat- ' ed injured victims who required transportation to a local hospital (Tr. 9806 (Linnemann)), and that it was reasonable to expect the same i 538 l l
number in the future, since not even a melted core would increase the number of traumatic, nonradiation, injuries (Tr. 9806-07 (Linne-mann)). Goodwill's live ambulances clearly could deal with a much larger number of contaminated injured than the one or two expected. E-83. However, Goodwill may also have offsite responsibilities. One of the Applicant's witnesses testified that current drafts of the off-site plans assign to Goodwill some responsibility for providing special assistance to persons in various townships - twenty-four persons in Pottstown Township alone. Tr. 9936 (Kankus). The letter of agreement with Goodwill shows that Goodwill has agreed to furnish transportation for contaminated injured site personnel only "within the limits of [its) resources." Plan, Appendix A. The Applicant claims that it "would expect its call [to Goodwill] to take priority over another request, which would be assigned to one of the backup ambulances at the county level" (Tr. 9848-49 (Boyer)), but we have nothing more than the Applicant's expectation to support a finding that Goodwill would give priority to onsite needs. Thus, if the current offsite plan provision concerning Goodwill becomes final, it is possible that in an emergency Goodwill's offsite responsibilities would keep it from its onsite responsibilities. E-84. Moreover, it appears that in such a situation the Applicant would be able to find only limited substitutes for Goodwill's services. Goodwill is the only ambulance company with which the Applicant has an agreement for the transportation of the contaminated injured. At the time of the hearing in April 1984, the Applicant was negotiating an agreement with a second company and expected to complete the agree-ment within a week (Tr. 9872-73 (Kankus)); but, apparently, even now, the agreement is not complete. The Applicant claims that there would be adequate backup ambulances at the county level, since if all of Good-will's ambulances were occupied, "the Goodwill dispatcher would notify the county immediately and arrange for another ambulance to be dis-patched for Limerick." Tr. 9937 (Boyer). It is not clear that this account is consistent with the Applicant's claim, noted in the preceding para-graph, that Goodwill would give priority to requests from Limerick. At any rate, we have too little evidence about the county dispatching system to conclude that in an emergency, backup ambulances would be available if Goodwill were not. E-85. The Applicant also claims that private vehicles on site would be available for transporting the contaminated injured, but the Applicant also notes that such vehicles could transport only those whose injuries did not require them to be transported in an ambulance. Boyer et al, ff. Tr. 9772, at 11. 539
E-86. Finally, a helicopter could also be used to transport the injured. The Applicant has an agreement with Keystone Helicopter which includes medical evacuation among the services Keystone is to be ready to provide. See App. Ex. 41,1 1. However, for the same reason that HUP would be oflimited use for treating the contaminated injured, Keystone would be of limited use for transporting them. As was noted in our discussion of LEA Contention VIII-12(a), HUP is a 45-minute drive from Limerick. Keystone has agreed to provide a helicopter on 2 hours notice, if one is available, or I hour, if Radiation Management Corporation, who entered into the agreement with Keystone on the Ap-plicant's behalf, pays to have a helicopter on 24-hour standby. App. Ex. 41, 11 4-5. The treatment of some traumatic injuries probably should not be put off for 45 minutes to 2 hours. E-87. Thus, for transportation of the contaminated injured, the Ap-plicant has to rely mainly on Goodwill. Yet Goodwill may have compet-ing duties off site. However, a determination by us about whether Good-will could perform all the duties which the plans may finally assign it would be premature. To make such a determination, we would have to judge on the basis of speculation about the final state of the offsite plans. We think it preferable for us to judge on the basis of what we know: Considered apart from the final version of the offsite plans, the Applicant's agreement with Goodwill is adequate for onsite needs. Whether Goodwill can perform both its onsite duties and whatever off-site ones it may be assigned will be best determined at the time for con-sideration of the offsite plans, whether it be in a hearing as an issue in controversy or by authorities reviewing the offsite plans, for it will then be ascertainable on the basis of the final versions of both onsite and off-site plans.
- 11. LEA Contention VIII-lMch Calculating and Monitoring Offsite Doses E-88. The first part of this contention alleges a deficiency in the Ap-plicant's way of calculating potential offsite doses. The second part al-leges a deficiency in the Applicant's way of monitoring actual offsite doses. We rule against LEA on both parts.
E 89. The first part of the contention relies on a contention we have already ruled against. LEA alleges that both the Applicant's com-puterized dose projection system - the Radiological and Meteorological System (RMMS) - and its manual backup system are deficient because some of the meteorological data they rely on come from a monitoring station, the Applicant's Met-Tower 1, whose proximity to the cooling 540
4 4 towers can cause distortions in its data. LEA Contention VIII-3 was based on the Staff's continuing concern with the impact on emergency planning of Met-Tower l's location. In our discussion of Vill 3, we ruled that since the state of the record put us in the position of merely reviewing the Staff's work, rather than adjudicating competing claims on which the Staff's work had bearing, the StafT, not the Board, was the proper body to determine whether data from Met-Tower I could be relied on in an emergency. Thus, we are not in a position to find that the RMMS and its manual backup are deficient because they rely on
; data from Met-Tower 1.
E-90. The second part of the contention misunderstands the pur-j pose of the monitoring system it alleges is deficient. The system consists
; of forty-eight thermoluminescent dosimeter (TLD) stations, forty of q which are arranged in two rings. The other eight are variously located, l but three of them are located where atmospheric dispersion analysis indi-j cates that annual concentrations of radioactive releases to the air are likely to be the greatest. Tr. 10,202,10,204 (Daebeler). None of the jl forty-eight TLD stations is more than 5.5 miles from the plant site. Tr.
10,202 (Daebeler). The Applicant claims that the layout of the system conforms to the guidelines in Regulatory Guide 4.8. Tr. 10,203 (Daebeler). E-91. LEA argues that the system may underestimate radiation
, dose in an emergency, because the TLD stations are located so that l there is no assurance that any one of them would record the maximum l concentration of radioactivity released in an emergency: The three sta- ! tions which are located to record maximums are meant to record annual i
maximums only, and in fact do not necessarily record actual annual maximums at all, but only the doses at their locations, which may, or l may not, be maximums, depending on the accuracy of the dispersion analysis. Moreover, the maximum dose may occur beyond 5.5 miles, for, although it is, on the average, true that the greater the distance from the plant, the less the concentration, unusual atmospheric condi-1 tions can cause greater concentrations at greater distances. See Tr. i 10,201 (Murphy). J E 92. All that LEA says here is true, but LEA misconstrues the purpose of the TLD array. Its primary purpose is to provide routine 3 monitoring which will determine annual doses to the environment. Tr.
- 10,208 (Daebeler). Thus, it aims for annual maximums instead of a one- ,
- time maximum, and can afford to overlook the occasional high concen-tration at a great distance, since such a concentration would have little
! effect on average dispersion patterns. i , 541 l
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g v'- -- .% ^ e.+ 9---9qT 7 g e.- e--. -- , . - -, -- -i.--
m s l , E-93. Of course, in an emergency, the actual maximum is more im-portant than the average one, but it is also less easy to predict. Thus, it is not possible to post a few monitoring stations to lie in wait for it. The maximum can be caught only by a perhaps imprudently dense and exten-sive array of stations, or by a few mobile units. The Applicant will rely on field survey teams. Tr.10,211 (Dubiel).
- 12. LEA Contention VIII-14(e): Continuing Accident Assessment Capabilities E-94. In Contention VIII-3, LEA alleged that three of the Appli-cant's onsite moaitoring systems were inadequate for use in initiating emergency measures. Here, in Contention VIII 14(e), LEA alleges that for the reasons set out in the earlier contention, the same systems are also inadequate for use in continuing assessment throughout the course of an accident. In our discussion of the earlier contention, we found no deficiencies in one of the systems and ruled that, given the record, the Staff was the appropriate body to determine whether there were deficien-cies in the other two systems. Thus, we cannot make a finding that any of the three systems is inadequate for use in continuing accident assess-ment.
- 13. LEA Contention VIII-14(h): Methodologiesfor Projecting Dose When Instrumentation is inoperable E-95. Evaluation Criterion I.6 of NUREG-0654, ch. II, calls for the Applicant to establish . methods of projecting doses when the instrumen-tation used for assessment is offscale or inoperable. The methods are de-scribed in Boyer et al., ff. Tr. 9772, at 23. LEA contends that insofar as the methods rely on meteorological data from Met-Tower 1, whose prox-imity to the cooling towers can cause distortion in its data (see our dis-cussion of Contention Vill-3), the methods are deficient. For the reason below, we rule against LEA.
E-96. Contention VIII 14(c) makes the same argument about the RMMS system and its backup. We ruled against LEA on Contention VIII-14(c) because we had decided earlier that given the state of the record, the Staff was the appropriate body to determine whether the loca-tien of Met-Tower I could have an adverse impact on emergency response. The same reasoning applies here. 542
1 4 ,
- 14. LEA Contention VIII-ISfbh Monitoring ofSite Evacuees E 97. Evaluation Criterion J.3 in NUREG-0654, ch. II, says,
"[elach licensee shall provide for radiological monitoring of people evac- '
uated from the site." Though as admitted, this centention raised a number of issues, foremost among them then, and among the two issues LEA now puts before us for decision, is whether the time which might be required to monitor the evacuees for contamination would pose a threat to their health. We conclude that it would not. E 98. We first describe how the monitoring would take place. Under the Applicant's onsite emergency plan, plant personnel not essen-tial to operation of the plant would evacuate to offsite assembly areas, where any needed decontamination would take place. Implementing procedure document EP-305, Rev. 0 (App. Ex. 33) and Rev.1, names two possible assembly areas. Id. at 3. The direction of the wind would determine which was used. Id. E 99. However, to speed up the process of identifying personnel who needed to be decontaminated, and yet not slow down the evacua-tion, the Plan calls for evacuees to exit the site through portal monitors. These will sound alarms whenever contaminated persons walk through them. Tr.10,238 (Dubiel). Any person who set off an alarm would be instructed to report to health physics personnel when he arrived at the offsite assembly area. EP 110, Rev. 2, at 5. E-100. LEA's concern in this contention is about the procedures which would be followed if the portal tr.onitors were not to work. The Applicant says that all evacuees would be monitored at the offsite assem-bly area unless they had all passed through functioning portal monitors. Tr.10,227,10,255 (Dubiel). LEA makes two claims about this alternate procedure. The first is that the Applicant's implementing procedures, which do not say that all site evacuees would be monitored at the assem-bly area, ought to, even though it may be " normal practice in health physics procedures" to monitor all the evacuees. Tr.10,228 (Dubiel). The issue raised in this claim has been made moot by yet another revi-sion of the implementing procedures which apparently has escaped the j notice of the parties. See our discussion of LEA Contention VIII-6(c). EP-254, Rev. 2, in bold letters says that personnel monitoring at the as-sembly area must be completed before any vehicle monitoring is performed. Id. at 4. Sections 9.1.3.8 and 9.2.1.1 speak respectively of monitoring "each individual," and "all personnel." Id. E-101. The second claim LEA makes about the procedures the Ap-plicant would follow if the portal monitors were not to work is that those procedures would take too long. Monitoring at the assembly areas would have to be done with hand-held survey instruments which require up to 1 543 i i S I m
2 minutes to mon. tor one person. Tr. 10,267 68 (Dubiel). LEA claims that the Applicant's procedures provide only one or two technicians to perform this monitoring at the offsite assembly areas. LEA PF 122 (citing Tr.10,231 (Dubiel)). Thus, if, as would happen in a worst case, 3000 plant personnel and construction workers evacuated to the offsite assembly area, one technician taking 2 minutes to monitor each of 3000 personnel would take 100 hours to monitor them all. Moreover, each ) evacuee would have to stay at the assembly area until he had been ' monitored, even if the Commonwealth had ordered the evacuation of the plume exposure pathway emergency planning zone. Tr.10,236 (Kankus). E-102. LEA's figure of 100 hours is highly improbable. Perhaps it
-should be recalled at this point that the conditional assumption that enough portal monitors would fail, so as to prevent monitoring of all per-sonnel as they leave the site, makes improbable that there would be a need for monitoring at the assembly areas. But there are reasons why 100 hours is especially improbable. First, it is not at all likely that 3000 . people would show up at an offsite assembly area. For one thing, there would be 3000 on site only at a peak: The day shift of the operating personnel would number about 400 to 500, and the greatest number of construction oersonnel working on Unit 2 is expected to be about 2500.
Tr.10,230 (Boyer). Whatever number of construction workers there may be on site, they are to be evacuated at the Alert level of emergency response, before site evacuation, and therefore before they can be con. taminated. Tr.10,238 (Dubiel). Thus, they would not be sent to an off-site assembly area for monitoring and decontamination. Of the 400 to 500 operating personnel, LEA, relying on testimony by the Applicant, estimates that 100 or 200 might evacuate, the rest remaining on site as emergency workers. LEA PF 143. According to these probabilities and estimates, one can reasonably predict that only 100 to 200 plant person-net would reassemble off site for monitoring. Thus, LEA's figure of 100 hours is reduced by a factor between 15 and 30. E-103. That figure can be reduced even further. Section 9.1.2.1 of EP-254, Rev. 2 requires that at least two technicians be sent to the off-site assembly areas to do the monitoring. Two techniciaris would take 200 minutes to monitor 200 evacuees. Three would take a little over an hour to monitor 100. Cf. Tr.10,262 (Dubiel). The Applicant plans to get some idea of how many technicians would be needed by randomly monitoring evacuees as they exit the site. Tr.10,257 (Dubiel). The Ap-j plicant could, though it would not expect to have to, assemble as many as thirty technicians at an offsite assembly area. Tr.10,261 (Dubiel). {' l 544 l _ __.__.-_____.____-:n._.._
Finally, we note that choosing the assembly area according to the direc-tion of the wind considerably reduces any health risk posed by holding evacuees at the area until they are monitored.
- 15. LEA Contentions Vill IS(d) and 16fg): Decontamination of Site Evacuees E-104. As admitted, Vill 15(d) and Vill 16(g) were distinct conten-tions which raised a number of issues. LEA now raises a single issue but retains both numbers. LEA alleges that the Applicant should provide for the contingency that offsite decontamination of site evacuees would re-quire showering or bathing facilities. We do not agree.
E-105. As we explained in our discussion of Contention VIII-15(b), site evacuees would be monitored for contamination either at a site exit point or at an offsite assembly area. As the Plan now stands, decontami-nation at the assembly areas would rely on simple methods: removing 1 contaminated clothing, washing exposed areas of the skin with a damp ' washcloth, and cutting off contaminated parts of the hair. The Applicant claims that sk.wering or bathing, which are available for personnel who remain on site, would be required for site evacuees only if the simple methods failed, and that the simple methods would not be likely to fail, since'if the site evacuees encountered any contamination, it would very likely orily be contamination of the clothing by the short-lived daughter products of some of the gases that would appear in a p!ume. Tr.10,243 (Dubiel). E-106. LEA says that the Applicant should plan for the contingency that the simple methods would not be enough by arranging for transport-ing site evacuees who need showers and baths to facilities which have ) i them. E 107. LEA does not dispute the Applicant's judgment that site evacuees are not likely to have to be decontaminated by showering and bathing. As we have said before in our discussions of the emergency planning contentions (see, e.g., LEA Contention Vill 11), probabilities' should be kept in mind, and the lesser of them should receive less atten-tion in planning than the greater, especially when, as here, the more remote possibility is of the sort which, if it comes about, can be der.lt with through ad hoc arrangements. i 545
4 i
- 16. LEA Contention VIII15(eh Applicant's Ability to Account -
for Plersonnel E-108. Again we must struggle with the implementing procedures. Evaluation Criterion J.5 of NUREG-0654, ch. II, says, "each licensee shall provide for a capability to account for all individuals on site at the time of an emergency and ascertain the names of missing individuals within thirty minutes of the start of an emergency." LEA argues three reasons for concluding that the Applicant's implementing procedures do not conform to this Criterion. None of the three reasons are more than minimally argued, and we find them unpersuasive. E-109. LEA's first reason is that since EP 110, Rev. 3, the imple-menting- procedure document which covers personnel accountability, does not apply to Bechtel and subcontractor personnel, in particular i Unit 2 construction workers (see id., f 1.0), and since the Applicant ap-4 parently is not familiar with Bechtel's accountability procedures, the Ap-plicant cannot show that it can account, in the language of Criterion J.5, for "all individuals on site" within 30 minutes of the start of an 1 emergency. (Emphasis supplied.) E-I l0. The Applicant does not bear the burden of proving the ade-quacy of Bechtel's procedures, for LEA has proffered no basis for think-i ing that those procedures might be inadequate in some respects. Such a basis is especially needed here, for, on its face, the division of responsi-i bility between the Applicant and Bechtel makes sense, since one would expect that Bechtel would know more about the deployment of the con-
; struction force than would the Applicant, and there.' ore would be in a better position to devise accountability placedures for that force.
E-Ill. We note also that the Staff, whose opinion on the interpreta-tion of NUREG-0654 is to be accorded some weight, apparently does not read the "all" in Criterion J.5 to be as inclusive as LEA thinks it is, for the Staff raises no objection to the division of responsibility between the Applicant and Bechtel. See Staff PF 81-82. The Evaluation Criteria can be explicit when they want to include construction personnel in j their provisions. See Criterion J.l.'8 E-112. The second reason LEA puts forward for concluding that the Applicant does not conforrn to the 30 minute limit called for in J.5 is 18 The Applicant's argument asamst this first reason of LEA's cannot be squared with the text of the em-piementing procedures. The Applicans argues that construction personnel would be evacuated before ac. countability procedures would be put into efrect. ApplicanCs Reply Findmss at 18. However, the rete. vant imp 8ementmg procedure document, according to its own terms. "should be implemented whenev. er an Alert or higher response level is declared, and can be implemented even at the Unusual Event level. EP.110. Rev. 2. t 10. The same document explicitly calls for mforming the secunty Team Leader of any unaccounted-for Bechtel personnel Id., ) 9 l.$.I.F. Besides. Bechtel does have accounta-bility procedures. 546 2 l
.l l
l
,l
that, according to LEA, the Applicant measures the 30 minutes from too late a moment. EP-110, Rev. 2 measures 30 minutes from the time of the evacuation or assembly announcement (id., f 9.1.5.1.E), not from the " start of an emergency," as J.5 calls for. But LEA argues that an as-sembly announcement could come as much as an hour after the start of an emergency, because verification of the emergency classification must precede an assembly announcement (see, e.g., EP-103, Rev. 3, at 2, 4), and verification could take up to an hour. Thus, an accounting for the to-cations of all personnel, if not completed until 30 minutes after an as-sembly announcement, could come as much as an hour and a half after the start of an emergency. E-Il3. This claim that the Applicant measures the 30 minutes from too late a moment has the same form as the claim in LEA Contention V111-6(c) that the Applicant measures the time to notification of offsite authorities from too late a moment, and it has one of that earlier conten-tion's weaknesses too: The argument that verification could take up to an hour is without basis. See our discussion of LEA Contention Vill-6(c). We note also that the Staff speaks of the start of an emergency and the moment assembly is announced as if there were no significant dif-ference between the two times. See Staff PF 81-82. We see no basis for assuming a significant ditTerence, if any. E-I l4. LEA's third and last reason for concluding that the Applicant cannot conform to the 30-minute limit in J.5 is that, according to LEA, during a site evacuation, there is no assurance that everything which must be accomplished before all personne' tre accounted for can be ac-complished in 30 minutes. First, the Emey,ency Director would have to perform not merely verification, but seven tasks before he announced assembly and evacuation. See EP 305, Rev.1, at 2-4. Second, evacuees might have to be randomly monitored if the portal monitors were inop-etable as they left the site, and, as we noted in our discussion of Conten-tion VIII-13(b), the instrument which would be used in such random monitoring requires up to 2 minutes for monitoring one person. Third, the Personnel Security Group, using a master list of badge numbers, might have to check oft by hand the numbers of all the badges evacuees are to deposit in buckets at the exit points. See EP-110, Rev. 2, ' f 9.1.4.2.D. Fourth, i order to compile a list of unaccounted for plant personnel, the Personnel Accountability Group would have to compile a similar list of personnel remaining on site and then compare that list with the evacuee list prepared by the Security Group. Id., f 9.1.5.1.C. and D. Fifth and last, before it could compile a list of.:11 those not ac. counted for - both operating personnel and construction workers - the Accountability Group would have to find out from Bechtel which of 547 1 l
i Bechtel's personnel were not accounted for. Id., { 9.1.5.1.F. If the evacu-ation were to take place during the day shift and at a period in the con-struction of Unit 2 when the construction force was at its predicted peak, as many as 2700 persons might be evacuating from the site. See our discussion of Contention Vill-15(b). E-IIS. We think that any appearance of great length LEA's list may have is created largely by the explicitness inherent in implementing procedures, and not by the length of time the tasks in the list would require. The seven tasks which the Emergency Director must perform before he announces assembly and evacuation are simple tasks such as notifications by telephone. See EP-305, Rev.1, at 2-4. The random monitoring of evacuees is random precisely so that monitoring will not interfere with evacuation. Tr. 10,257-58 (Dubiel). Checking off a number on a list does not take long, and the checking would probably begin when the first evacuees passed through an exit point. Finally, though it might require precision drill work to move 2700 people
~
through a single door in 30 minutes, a glance through EP-305, Rev. I shows that there would be more than one exit in a site evacuation. E-Il6. In its approach to site evacuation, LEA has done little more than say that the Applicant would have a lot to do in 30 minutes. But to make a strong case, LEA would have had to show that, in light of the goals of rapid evacuation, rapid deployment of onsite emergency work-ers, and exact accounting of personnel, a significant part of what the Ap-plicant was planning to do was unnecessary, or ill-timed, or best re-placed. LEA having made no such case, we think it should be left to the emergency preparedness exercises to determine whether the Applicant can evacuate the site and account for all personnel in 30 minutes. See Sears, ff. Tr. 9772, at 22.
- 17. LEA Contention VIII-16(c): Information on Radiation Risksfor Emergency Workers E Il7. Originally concerned with all emergency workers who might be on site at some point in an emergency, whether they be employees of the Applicant or not, this contention is now concerned solely with work-ers who are employees of offsite organizations which would provide sup-port on site. LEA alleges four deficiencies in the information on radia-tion risks which is given to such workers. We find no such deficiencies.
E-Il 8. The first deficiency LEA alleges is that workers from offsite organizations which would provide support on site are not given infor-mation about the acute effects of high doses of radiation. It is true that they are not. Tr.10,024 (Dubiel). The reason is simply that their tasks 548
t on site will not expose them to high levels of radiation. Tr.10,048 (Dubie0. Table 6-1 of the Plan sets out dose limits no emergency worker would be allowed to exceed without specific authorization from the Emergency Director. Such authorization would be given only to those who had the appropriate training. Tr.10,056 (Dubiel). But that particular training is available only to employees of the Applicant. Id. Therefore, no employee of an offsite support organization would be given permission to exceed those limits. Id. We note that such workers are told a great deal about the risks posed by the raciation levels they would encounter, including the mcreased probability of injury, illness, or death due to radiation, the latent effects, including genetic, of low levels of radiation, and even the risks rosed by doses which are below regulatory levels. See Tr. 10,019-29 (Dubiel). Such information should be enough to enable these workers to mnke sober, informed decisions. E-119. The second deficiency LEA alleges is that although the Appli-cant's witness on this subject testified that the minimum training pro-gram for these workers required that the information in Regulatory Guide 8.13 be presented them, the witness was so vague as to make it impossible to determine just what information will be provided. To sup-port the allegation, LEA claims that the witness "could not testify whether particular information actually in Reg. Guide 8.13 [wasl specifi-cally presented." LEA PF 151 (citing Tr. 10,036-38 (Dubiel)). E-120. LEA misconstrues the witness' response. The "particular in-formation" LEA refers to was the information in Regulatory Guide 8.13 on the risks radiation poses to pregnant women. The Applicant's witness could not say how detailed the coverage of that information might be without knowing the composition of the group to which it was being presented. Only if the group contained women, would the presentation of the information on the risks fnr pregnant women be detailed. Tr. 10,037 (Dubiel). We do not find this response vague, but rather, pedagogically sensible, since it shows that trainers will be emphasizing for each group what it most needs to know. The same pedagogy appears to be behind the emphasis in the training of these workers on the ef fects of low-level radiation. E-121. The third deficiency LEA alleges, and alleges as the most
" disturbing" (LEA PF 152), is that the U.S. EPA Protective Action Guides (PAGs) are not explained to these workers. LEA PF 152 (citing 10,04 (Dubiel)). Thus, LEA alleges, "the workers will not know when ' permissible' doses are exceeded." Id.
E-122. LEA's allegation is factually incorrect. What the testimony LEA cites says is that the workers in question will not be informed about the PAGs spec (Acally. Tr.10,041 (Dubiel). They will, however, be 549 l 1
informed about them indirectly, for they will be informed about the dose limits under which they would operate, and these limits, set out in Table 6-1 of App. Ex. 32 (Plan), are consistent with the PAGs. Evalua-tion Criterion K.1 of NUREG-0654 requires the Applicant to establish such guidelines. Thus, the workers would have a standard by which to judge whether they had exceeded regulatory doses. E-123. The last deficiency LEA alleges is that for such workers, there are no methods of determining whether the worker has compre-hended the training. LEA PF 153 (citing Tr.10,052 (Dubiel)). E-124. The cited testimony is in fact not so broad. The witness said that there was no formal examination required of fire department personnel. Id. The testimony does not preclude more informal ways sensible people teaching and studying about risks to their health may have for assuring that what is being taught is being learned. We note that the Evaluation Criteria in f 0 of NUREG 0654, ch. II, set out with specificity means the Applicant is to use to assure that onsite personnel are properly trained (see Criterion 0.2) but the same criteria say nothing similar about the training for the workers which are the object of this contention. LEA has not tried to argue that those workers should be trained to the depth onsite ones are. Nor do we see any basis for such a viewpoint.
- 18. LEA Contention VIII-18: Training of Offsite Support Personnel i
E 125. Here LEA alleges that the deficiencies which Contention VIII 16(c) alleges exist in the program for informing offsite personnel i about radiation risks show that the Applicant has not met the require-j ment in Planning Standard (b)(15) in 10 C.F.R. f 50.47 that adequate training be given those who may be called on to assist in an emergency. We did not agree that there were deficiencies in the program, and there-fore rule against LEA on this last contention. F. NEPA Severe Accident Risk Contentions: LEA Contentions DES-1, 2, 3 and 4
- 1. Summary F-1. LEA's four contentions considered in this section allege that the risks of severe accidents have not been considered properly under the National Environmental Policy Act (NEPA). The first contention discussed, DES-4, argues that the NRC Staft's Final Environmental Statement (FES) (which superseded the draft statement (DES) to which 550 l
l 1 I
the contentions were originally directed) fails to adequately disclose or consider certain nonfatal latent health effects, the interdiction (denial of consumption or access) of cropland, milk and the population in such land areas, and the cost of medical treatment. Part B of this contention alleges that the FES format obscures the estimated total impact of severe accidents at Limerick. In general, the Board finds that it would
-have been helpful to lay members of the public if the FES had contained more complete disclosure and explicit consideration of the matters set forth in LEA's Contention DES-4A. However, we also find that the con-clusions of the FES as to total risk are unchanged by the explicit consid-2 eration now provided by the evidence and decision in this case. The Board also finds that the FES did emphasize the dominant contributors to total risk and did disclose the means by which a professional could es-timate the other forms of risk (although in some cases this would have required resort to extensive references). Therefore, no further relief is required on the merits of the contentions. We find part B of the conten-tion to be vague as litigated, and in any event we find the format of the FES adequate and proper given the state of the art of severe accident risk assessments.
( F 2. LEA Contentions DES-3, I and 2 are discussed in that order after DES-4. They involve allegations that certain assumptions made about evacuation actions in the estimates of severe accident risks are not valid, i.e., that people will obey instructions to evacuate (DES-3), that people in certain areas beyond a 10-mile-radius zone can be relocated (DES-1), and that there will be only about a 2-hour delay from the time of the accident before people begin to evacuate (DES-2). As to each of these, the Board finds that the actual assumptions made in the severe accident analyses are not unreasonable. The Board also finds that, in any event, notwithstanding the large uncertainties in the way actual emergency actions would occur, sensitivity estimates of the effect of rea-a sonable changes in the evacuation assumptions show the lack of signifi. cant effect of such changes on the risk estimates. F-3. In a separate section after the decision on LEA's severe acci-dent risk contentions, the Board explains why it rejects both LEA's and the City of Philadelphia's conclusions of law as applied to the severe accident risk contentions. , 551 t 4
- 2. LEA-DES-4 F-4. This contention, as admitted, states:
A. The DES Supplement fails to adequately disclose or consider:
- 1. Total latent health effects due to both initial and chronic radiation exposure, other than those resulting in fatalities, including genetic effects.
nonfatal cancers, spontaneous abortions, and sterility (see, e.g., BEIR I-IID;
- 2. The total land area in w hich crops will be interdicted;
- 3. The totalland area in which milk wi'l be interdicted;
- 4. The quantification of the cost of medica: treatment of health effects.
- 5. The population within the land areas to be interdicted.
B. By treating some environmental costs in a CCDF format and treating other quantifiable costs in a nonquantitative, subjective manner, the DES format ob-scures the total impact of severe accidents at Limerick. F-5. Both parts of this contention are directed to alleged deficien-cies in the Supplement to the Draft Environmental Statement (DES) prepared (as required by NEPA) by the Staff. This document, NUREG-0974, Supplement No.1, was issued in December 1983. The Final Envi-ronmental Statement, NUREG-0974, was issued by the Staff in April 1984. StafT Ex. 29. Both the Staff and Applicant presented testimony on this contention, LEA did not. F-6. LEA would have us find that the Staff's Final Environmental Statement (FES) does not comply with the National Environmental Policy Act of 1969 (NEPA), with respect to the risk of severe accidents at the Limerick facility, largely due to alleged numerous material non-disclosures of environmental impacts, including health effects. LEA Pro-posed Findings (PF) at 1 (July 26,1984). Moreover, LEA believes that any disclosure defects in the FES cannot be cured by discussion of such defects in this decision. In its view, publication of the decision is no sub-stitute for the full circulation and comment requirements of NEPA and 40 C.F.R. Parts 1502 and 1503. Id. With respect to the alleged deficien-cies, we discuss them in the context of the individual contentions. With respect to the disclosure and public comment matter, we note the follow-ing. Even though an FES may be inadequate in certain respects, ultimate NEPA judgments with respect to any facility are to be made on the basis of the entire record before thc adjudicatory tribunal. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-262,1 NRC 163,197 n.54 (1975) (emphasis added). See also Public Service Electric and Gas Co. (Hope Creek Generating Station, Units I and 2), 552
ALAB-518,9 NRC 14, 39 (1979). Since findings of the licensing tribu-nal are deemed to amend the FES, amendment and recirculation of the FES is not ipsofacto necessary where findings of a licensing board differ from those of the FES, particularly where the hearing will provide the p'ublic ventilation that recirculation of an amended FES would otherwise provide. Limerick, ALAB-262, supra,1 NRC at 197 n.54. Thus, modifi-cation of the FES by Staff testimony or the licensing board's decision does not normally require recirculation of the FES, Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264,1 NRC 347,371-72 (1975), unless the modifications are truly substantial. Allied-General Nuclear Services (Barnwell Nuclear Fuel Plant Separations Facility), ALAB-296, 2 NRC 671, 680 (1975). As we find below, the basic conclusions of the FES are unchanged by our findings. The modifi-cations to the FES made by the record and decision in this case create no reason to recirculate the FES for further comments. F-7. Two Courts of Appeals have approved the Commission's rule that the FES is deemed modified by subsequent NRC (AEC) administra-tive adjudications. Citi:ensfor Safe Power v. NRC,524 F.2d 1291,1294 n.5 (D.C. Cir.1975); Ecology Action v. AEC,492 F.2d 998,1001-02 (2d Cir. I974). See also Public Service Co. of New Hampshire (Seabrook Sta-tion, Units 1 and 2), CL1-78-1,7 NRC 1,29 n.43 (1978). F-8. More recently, the NRC has adopted an amendment to 10 C.F.R. Part 51, Licensing and Regulatory Policy and Procedures for En-vironmental Protection, which provides that [w] hen a hearing is held on the proposed action under the regulations in Subpart G of Part 2 of this Chapter or when the action can only be taken by the Com nissioners acting as a collegial body, the initial decision of the presiding officer or the final deci. sion of the Atomic Safety and Licensing Appeal Board or the final decision of the Commissioners acting as a collegial body will constitute the record of decision. 10 C.F.R. f SI.102(c). F 9. A second general complaint of LEA is that the FES discusses the environmental impact of s: vere accidents in terms of the risk of one reactor operating for 1 year rather than two reactors operating for the lifetimes of the reactors. LEA could not conclude that the lay reader would discern without instructions in the FES, that the total risk over the operating life of the entire facility could be obtained by multiplica-tion. LEA PF at 2 3. We need not speculate on what the lay reader might discern from the FES. The record is clear that the risk of both units is essentially double the risk from one unit. Tr. 11,194 96 (Acharya). Contrary to LEA's conclusion, one Staff witness did not reject this approach until corrected, but was somewhat ambiguous in 553
maintaining the position that the risks from the two reactors would not be identical. He agreed that the accident frequencies at Limerick I would be approximately equal to the frequencies at Unit 2, but explained that the accident initiators would be different at the two units. Tr. 11,194-95 (Hulman). In any event, the importance of the units used for expressing risk is in the consistency with which comparisons are made. Tr.11,456 (Levine). Thus, to compare the risks of the Limerick Station over its lifetime, one should compare the risks of the reactor (s) when operating with the risks to which the public is otherwise exposed during such reactor operation.
- a. Latent Health Effects (DES-4A-1)
F-10. The Staff asserts that the FES does disclose and consider total latent health effects in that it has assumed a dose-effect relationship for projection of radiation-induced genetic effects; i.e., it has assumed 2.6 x 10-* genetic efTects cases per person-rem. Hulman and Acharya, ff. Tr. 11,148, at 5. This value is equal to the sum of the geometric means of all forms of genetic effects and the risk of effects with complex etiology, and is consistent with values given in the BEIR I (1972), WASH-1400,20 and BEIR III (1980)28 reports. Id. at 5-6. F-ll. Using the Staff estimate for the risk of total population expo-sure from Limerick accidents and the risk estimator for genetic effects, one can obtain the estimated risk of genetic effects as 1000 person-rem / reactor-year x 2.6 x 10-4 = 0.26 case of genetic effects / reactor-year A complementary cumulative distribution function (CCDF) curve for genetic effects can be obtained from the CCDF22 for total person-rem (Figure 5.4c of the FES) by multiplying the consequence magnitudes (on the x-axis) by 2.6 x 10-*. Id. at 6. I' National Academy of sciences /Nanonal Research Council. "The EfTects on Populations of Exposure to Low Levels of lonizing Radiation." Committee on the Biological EfTects of lonizing Radiations (BEIR D. Nove nber 1972. 20 NUREG.75 014, " Reactor safety study - An Assessment of Accident Risks in U.s. Commercial Nuclear Power Plants." october 1975. 21 National Academy of sciences / National Research Council. *The Effects on Populanons of Exposure to Low Levels of Ionizing Radiation," Committee on the Biological Efrects of ionizing Radiations (BEIR IID. July 1980. 22 in probabilistic risk assessments for nuclear plants. CCDF curves usually display in a log-los plot the probability per reactor. year of exceeding a certain consequence versus the magnitude of that conse-quence (e g., number of early fatalities) 554
l F-12. The Staff did admit that the risks of certain consequences of accidents at Limerick were not explicitly listed or displayed in the FES. These included genetic effects, spontaneous abortions, and sterility. Tr. 11,200-01 (Acharya, Hulman). The Staff asserts, however, as follows: The fact that genetic effects are not shown (explicitly) does not mean th'at the Staff did not allude to or make a statement that genetic effects could be a consequence from the reactor accidents, since it is stated that the genetic effect can be scaled from the population exposure and the population exposure and the conversion factor are given. Tr.11,200 (Acharya). The (risk o0 spontaneous abortions is not in the FES, but it is stated in the FES that such efTects can be scaled from the population exposure. Most of the health consequences that were considered impor-tant are included. Tr.11,201 (Acharya). Some of the ones .not mentioned, such as spontaneous abortions or sterility, . . (the StafD would have estimates for but they were not considered as important as those discussed in the FES. The Staff noted that sterility would be temporary and that spontaneous abortions would occur among a large number of normally occurring spontaneous abortions. Staff-referenced documents, principally WASH-1400, were stated to indeed contain the various other types of health consequences. Tr. 11,203-04 (Acharya). The Staff believes there are so many different estegories of consequences and so many different probabilities, it tried to strike a balance in the FES, providing as much information as it thought important to the assessment. It did not provide it all. Tr.11,205 (Hulman). F 13. The Staff also agreed that the dose effect relationship for genetic effects (2.6 x 10-4) could be 4 to 5 times greater and still be con-sistent with the range of values given in the BEIR I, WASH 1400, and BEIR 111 reports. Tr. 11,212-13 (Acharya), Constructing a CCDF curve for genetic effects from the CCDF curve for total population exposure would not indicate that the curve might be 4 to 5 times too low, but the statement of the range of uncertainty would say so. Tr.11,216 (Acharya). F-14. With respect to the risk from genetic effects, 0.26 case per reactor-year, it is in fact (numerically) greater than any other health effect analyzed (listed in Table 5.llh) in the FES. Tr. 11,211-12 (Acharya). With respect to nonfatal cancers, the Staff agreed that this risk also is (numerically) greater than any other health effect analyzed in the FES and is the highest risk. Tr.11,248 (Hulman). The Staff agrees
- that if a reader knew nothing more than what is explicit in the FES he wouldn't know that there is a risk of benign thyroid nodules, but that, indirectly, the references to the FES provide that level of information.
The Staff believes the informed reader of the FES should also consult 555
the references. Tr.11,250 (Hulman). The Staff recognizes that the state of the art for the precise quantification of the uncertainty (in its risk calculations) is not well developed. Tr.11,286 (Acharya). The uncertain-ty assessment is based on three components, probability, source term, and consequences. Tr.11,290 (Hulman) Thus, its risk estimate could be too low by a factor of 40 or too high by a factor of 400. Tr.11,286 (Acharya). F-15. Spontaneous abortions in women exposed to radiation is a possible risk of severe accidents at Limerick, but this risk was not includ-ed in the risk estimator for genetic effects. Tr.11,252 (Acharya, Hulman). The StafT explained that the majority (whether 90% or just more than 50%) of spontaneous abortions would lead to loss of fetus during the first trimester. Genetic effects in live births are included in the Staff risk estimator for genetic effects in succeeding generations. Spontaneous abortion is estimated as 58% of the total genetic effects. Tr. 11,253 (Acharya). The Staffs estimate per reactor-year of spontaneous abortions is 0.15, which is higher than any health effect risk estimated in (Table 5.11h oO the FES, but less than the estimated risk (0.26 per reactor-year) of genetic effects based on live births. Tr.11,258 (Acharya). F 16. With respect to temporary sterility for males, the Staff esti-mate is 0.16 per reactor-year (0.03 for females), which also is higher than any health effect risk estimated in (Table 5.llh 00 the FES. Tr. 11,261 (Branagan). The estimated risk from genetic effects is higher than this, however. Tr.11,261 (Acharya). No cases of permanent sterili-ty would be expected, because doses necessary to induce permanent ste-rility would be accompanied by lethal doses to other organs. Temporary sterility is less serious than other early radiation illnesses. Hulman and Acharya, ff. Tr.11,148, at 10. F 17. The risk with respect to benign thyroid modules is 15 times higher than that of thyroid cancer fatalities. (Tr.11,261 (Acharya).) Thus, this risk (0.15 per reactor-year) also is higher than any other listed in (Table 5.Ilh oO the FES. Tr. I1,262 (Hulman). F-18. Hypothyroidism - a decrease in activity of t!ie thyroid - is a possible consequence of irradiation. Medical treatment, administration of thyroid hormones or removal of the thyroid, would not impair the ac-tivity of a person in a measured way. Tr.11,262 (Branagan, Acharya). F-19. In addition to the health effects considered in the FES and in addition to benign thyroid nodules and hypothyroidism, other forms of health consequences not already accounted for in the FES or in this con-tention could be the early fatality dose to the exposure of the embryo and in utero exposures. The early fatality of such exposure could be 556
within 5 to 10% of the early fatalities already reported. Also, there could be an early health effect due to excessive exposure of the thyroid organ, called thyroid ablation, in which case the thyroid could be destroyed. The number of such is very small compared to early fatality. Tr.11,263 (Acharya). F-20. With respect to impairment of or defects in the development of children due to in utero exposure of embryos and fetuses - e.g., microcephaly, me.~.31 retardation, growth retardation, blindness, cleft palate, spina bifida - the Staff did not explicitly calculate their risks. The Staff believes, however, that the bases for its estimates of early inju-ries are more conservative than the WASH 1400 basis and therefore pro-vide a bounding calculation, including all other small impairment risks. Tr.11,264-72 (Acharya, Hulman, Branagan). The Staff did not think that all of the health impacts that could be associated with reactor acci-dents were not important, but it did not feel that it was necessary to describe, in great detail, every single one of them in the FES. It thought that what it did was an adequate representation of and the more impor-tant types (of impacts). Tr.11,274 (Hulman). The Staff could have listed the health effects not considered explicitly in the FES, and stated that they were subsumed by the other effects that were analyzed in some detail. However, that would not have changed any of the numbers in the CCDFs or the table expressions of risk that are present in the FES. Tr.11,282 (Hulman). In its final judgment on whether the risks were low, the Staff did consider the health effects explicitly neglected and also did consider the fact that the risks from the neglected effects were a small percentage of the kinds of risk that were described. Tr. 11,281 (Hulman).
" . For perspective, the Staff compared the calculated risk of
- ffects resulting from severe accidents at Limerick to the natural 4ee of genetic effects. The accident risk to the first generation of uuendants of people irradiated was 0.05 genetic effects per reactor-year of operation. For a population of 8.1 million people, and a natural inci-dence fraction of approximately 11%, approximately 880,000 genetic ef-fects would occur in the first generation of descendants. Tr.11,278 (Branagan).
F 22. As stated earlier, the specific section of this contention that we are discussing, DES 4A 1, is limited to the adequacy of the Staff's FES with respect to disclosure and discussion of total nonfatal latent health effects resulting from severe accidents at Limerick. The Appli-cant however, also submitted testimony on this matter which we find help.'ulin reaching our conclusion. Altnough the public impacts present-ed it the FES are somewhat higher than those presented in the Appli-557
4 cant's Severe Accident Risk Assessment (SARA) report, the differences are within the range of uncertainties of such analyses. Daebeler er al, ff. Tr.11,114, at 1. See also Tr. 11,458-59 (Hulman, Levine). Thus, the Applicant agrees that potential accident risks from Limerick are expected to be a small fraction of the risks the general public incurs from other sources. Daebeler et aL, ff. Tr.11,114, at 1. F-23. The Applicant notes that, except for cancer fatalities, latent health effects (including nonfatal concerns, genetic effects, spontaneous abortions and temporary or permanent sterility) are generally not includ-ed in the numerical results of risk assessments, but that they can be es-timated from available information. Tr. 11,329-31 (Levine). The Appli-cant's estimates of the public risk oflatent health effects may be summa-rized as follows: Latent cancer fatalities excluding thyroid cancers - 0.033 per reactor-year. Thyroid cancer fatalities - 0.0064 per reactor-year. Total cancer fatalities - 0.04 per reactor-year. (Applicant estimates, for comparison, the expected number of cancer fatalities per year from all causes in the population around Limerick out to 50 miles to be approximately 20,000 per year.) Nonfatal latent cancers (including thyroid cancers) - 0.091 per reactor-year. Genetic defects in the population surrounding Limerick - 0.13 per year (compared to 6000 per year from other causes, in the population out to 50 miles). Using the most recent genetic risk es-timator (i.e., dose conversion factor) of 45 per 150 million man-rem, the equilibrium damage (i.e., steady state rate of occur-rence) was calculated to be 0.067 per reactor-year. Spontaneous abortions are estimated to be on the order of 33 to 76% of total genetic effects for live births (i.e., less than 0.10 per year). f Sterility consequence effects are viewed as subordinate to more serious radiation effects, such as acute fatality or early radiation illnesses. In general, doses either produce temporary sterility, or iflarge enough, mortality. Daebeler et al., ff. Tr.11,114, at 29-34. F 24. The Applicant, based on its calculations of estimated risks, made some approximate comparisons of risks predicted for Limerick severe accidents and risks to the various population areas around Limer-ick from all other causes. The individual risks at 1 mile from the reactors of early fatality from Limerick accidents is 10-5 of those that already exist from other causes. At 10 miles it is 10-7. For cancer fatality risks 558
within 50 miles of the reactor, the ratio of those predicted from Limerick (accidents) to those which exist within 50 miles to the general popula-tion from all (other) causes is 10-*. In the Applicant's view, the (Limerick accident) risks are, in fact, vanishingly small compared to other risks, and are trivial. Further, Applicant believes that to take the worst possible (value for a) parameter or condition in each of the various choices and combining (these to) get a very, very (worst) possible case as a measure of the Glosure of risk to the population would be an irra-tional procedure. Applicant's witnera believed that the chance of all these parameters, be they weather, be they reactor accident scenarios, whatever . . . all happening, in the very worst way, at the same time
. . . is an irrational combination. The probabilities of such things happen-ing are even smaller than the vanishingly small probabilities already discussed. Inclusion of factors that might affect these values by (up to) a factor of 2 or 3 is not going to change (the conclusions). Tr. 11,442-45 (Levine).
F 25. With respect to such comparison, the Staff noted that it esti-mates approximately 700 person-rems per year of operation of"the Lim-erick reactor." It estimates the natural background radiation that the population receives within 50 miles of the (Limerick) site as 800,000 person-rem per year. The Staff concludes that the ratio 700 to 800,000 (i.e., approximately 10-3) is small. The Staff agrees with the general con-clusion of the Applicant. Tr. 11,450-52 (Acharya). F-26. We turn now to the merits of this specific contention, i.e., whether the FES has failed to disclose or consider adequately the total latent health effects of severe accidents at Limerick. F-27. The record is clear that r* l latent health effects of severe accidents at Limerick were explicitly c losed in the FES. Among those not explicitly disclosed were those identified in the contention, i.e., genetic effects, nonfatal cancers, spontaneous abortions, and sterility, due to both initial and chronic radiation exposure, other than those re-sulting in fatalities. The reasons the Staff did not include explicit disclo-sure of these and other latent health effects also are evident. First, the Staff believed that such disclosure was implicit by citing authoritative references which treat these matters in detail, e.g., BEIR I, BEIR III, UNSCEAR, NUREG-75/014 (formerly WASH-1400). Second, the Staff considered that for the purposes of the FES it was not necessary to dis-close explicitly those latent health effects that it believed to be relatively unimportant in its best-estimate calculations of the risks of potential reactor accidents at Limerick. This approach, i.e., characterizing reactor accident health risks by reference to early fatalities, latent cancer fatali-ties and man rem, although not complete, appears not to be inconsistent 559
with both industry practice and Commission policy. Tr. 11,329-30 (Le-vine). We do believe an explicit discussion of all the health effects in the DES and FES would better permit the public (as opposed to an in-formed professional) to understand all factors considered in the risk assessment. We find, however, that the nonfatal latent health effects have been adequately disclosed and considered in thia proceeding. This explicit consideration has not changed the basic conclusions of the FES regarding the radiological risk associated with operation of the Limerick Station.
- b. Crop, Milk and Population Interdiction (DES-4A-2, 3 and 8)
F-28. The FES does include disclosure and consideration of land interdiction, but land areas for which crops alone, or milk alone would be interdicted (i.e., consumption or access denied), and the population in such land areas, are not explicit. Staff Ex. 29 (FES), at p. 5 93, Fig. 5.4h, Table 5.11g. The Staff described its interdiction model as consisting of four successively increasing areas, based on successively decreasing levels of radionuclide ccacentration. The first area (most highly contaminated) would require interdiction for more than 30 years. The second area (which would include the first) would require decontamina-tion. The third area (which would include the first two) would require crop impoundment. The fourth area (which would include the first three) would require milk impoundment. Hulman and Acharya, ff. Tr. 11,148, at 1213 and attached figure. Estimates of the risks of interdic- . tion of the various areas were calculated for the FES analysis using the CRAC (Calculation of Reactor Accident Consequences) computer pro-gram. The CRAC Code was developed for the Reactor Safety Study, WASH-1400 (NUREG-75/014), and generates CCDFs taking into ac-count changing weather conditions and chronic pathways for radionu-clides. The results, in terms of square meters per reactor year interdicted (for the four different levels of contamination), are presented in T)ble 1 of the Staf!'s direct testimony. Id. at Table 1. The corresponding proba. bility distributions (CCDFs) are defined by values listed in Tables 2 and 3 of that testimony. F 29. The Applicant notes that both the CRAC and CRAC 2 computer programs are capable of estimating the different areas affected by contamination, and are routinely used to estimate associated costs. Daebeler et al., ff. Tr.11,114, at 35. The predicted frequency with which areas of various sizes would be contaminated above the levels set for crop interdiction was calculated by the Applicant using CRAC 2 and is shown in Applicant's Table 5. Id. at 61. Applicant states that the total 560
land area' within which crops are interdicted is generally not explicitly presented because the principal contributor to economic risk is the cost of decontaminating land, and crop interdiction is expected to last (only) 1 year. Id. at 38. F-30. The predicted frequency with which reas of various sizes wilI be contaminated above the levels set for milk interdiction was cal-culated by the Applicant using CRAC 2; the results are tabulated in Ap-plicant's Table 6. /d. at 38, 63. The time for milk interdiction, i.e., loss in dairy output, is only 2 months. StatT Ex. 29 (FES), at p. 5-106. Appli-cant finds that interdiction of milk products is not a dominant contribu-tor to economic risks. Daebeler et al., ff. Tr.11,114, at 39, 59. F 31. The Applicant also calculated the frequency with which vari-ous numbers of people would need to be relocated for long periods of time. Relocation costs also are found to be a relatively small contributor to total economic risk. Id. at 39,59,63. F-3 2. Again, the Board finds that the FES did not explicitly disclose and consider the total land area in which crops would be interdicted, the total land area in which milk would be interdicted, or the population within the land areas to be interdicted, liere again, both StalT and Appli-cant appear to have done the societal risk analyses (in this case the esti-mation economic impacts) according to general industry and Commis-sion practice, emphasizing the dominant, but not neglecting the lesser, contributions to risk (in some cases more conservatively than realistical-ly). We again find that the FES would have been more helpful to the public (as opposed to the informed professional) had more complete dis-closure and explicit consideration been given to the interdiction ques-tion. We conclude, however, based on the information provided by the Staff and corroborated by the ? pplicant in this proceeding that the con-clusions of the FES with resn at to interdiction are correct.
- c. Cost ofMedical Treatment (DES-4A -4)
F 33. The cost of medical treatment of health effects was not ex-pressed quantitatively in the FES. Richter, ff. Tr.11,148, at 6. The FES says only that the Staff has considered the health care costs resulting from hypothetical accidents in a generic model developed by Pacific Northwest Laboratory (Nieves,1982) and that, based on this generic model, the StalT concluded that such costs may be a fraction of the off-site costs evaluated (in the FES), but that the model is not sufliciently constituted for application to a specific reactor site. Staff Ex. 29 (FES), at p. 5102. 561
F-34. StafT witness Brian J. Richter testified that he estimated the health care costs of thirty-seven different acciient sequences, as defined in Table 5.lld of the FES, obtaining direct indirect and total costs. Richter, ff. Tr.11,148, at 2. Actually, Table 5.Ild of the FES lists the mean probabilities of thirty-seven release categories. Staff Ex. 29, at p. 5-77. He then calculated the risk on a reactor-year basis by multiplying the costs times the probabilities per reactor year of accident sequences (presumably he meant release categories) occurring. Richter, ff. Tr. 11,148, at 2. Flis results are tabulated in Tables I, 2 and 3 of his testimony. Id., Attachments 1, 2 and 3. Table I lists the three types of costs resulting from twenty release categories initiated by internal causes, fires, and low to-moderately-severe earthquakes. Table 2 lists the three types of costs resulting from seventeen release categories ini-tiated by severe earthquakes. Table 3 lists the totals for the three types of costs per reactor-year. Direct costs are all costs associated with the treatment of the patient, e.g., physician fees, hospital charges, costs of medicines. Indirect costs are the losses due to the reduced productivity caused by disability or premature death. Id. at 2. The costs were estimat-ed using the flealth Effects Costs Niodel (fiECONO, using the health ef-fects data from CRAC calculations as input and using standard health economics cost of disease estimation techniques, along with some key assumptions in arriving at the cost estimates of acute radiation injuries and fatalities and latent cancers. The major assumptions used in deriving cost' estimates using FIECOh! are described in the testimony. /d. at 3-4. The data provided in the testimony were not included in the FES be-cause they give a likely magnitude of cost rather than precise estimates. Direct and indirect cost factors are based on national data, not specific to t6 area surrounding Limerick and several costs unique to the health is of nuclear power plant accidents are not included in fiECONI. /d.
- 4. Some of the estimated health costs are large, i.e., over 2 billion
.ollars. The probabilities of the severe releases leading to such costs are so low, however, that the risk per reactor-year of such costs, expressed in dollars per year, is relatively insignificant. /d. at 5.
F-35. The Applicant estimates the offsite economic risk of health effects at $1900 per reactor year, compared to its estimate of $6000 per reactor-year for the median economic risk due to other offsite economic i risks from reactor operation. These estimates indicate that offsite economic risk is increased by approximately one third if the cost of health effects is considered. Daebeler et al., ff. Tr.11,114, at 40. This conclusion is supported by the results of a recent study at the Sandia Na-tional Laboratories that estimates the ratio of the cost of health effects 562 y __ .
to total offsite cost varies from 5% to 25%. App. Ex.149, at 12 and Table 11. F 36. The Board notes that the estimates of health costs are uncertain, at best. Assumptions of the cost of human life vary widely. Predictions of applicable discount rates are arbitrary. Some costs, e.g., screening of potentially exposed persons, transportation, genetic effects, were not considered. National averages of costs rather than Limer-ick-specific costs were used. Tr. 114,000-08 (Richter). F-37. In sum, the Board finds that a more compiete discussion in the FES of the quantification of the cost of medical treatment of health effects may have been arguably helpful to the public (as opposed to the informed professional). The Board concludes, however, that the FES ad-equately considers the quantification of the cost of economic effects of severe accidents, since the addition of quantified costs of medical treat-ment is both so uncertain and so low when the probabilities of occur-rence are factored in. In any event, the record and decision in this pro-ceeding now adequately disclose such costs.
- d. FES Format (DES-4B)
F-3 8. The FES, itself, provides some data in the complementary cumulative distribution function (CCDF) format and other data are ex-pressed as a risk, e.g., cost per reactor-year. Reactor accident conse-4 quences are calculated i ring the CRAC computer program, which pro-vides the CCDFs as output. No similar computer program exists for cal. culating health care costs and regional economic costs of accidents. These costs are expressed as average values and the risks are expressed on a per-reactor-year basis, using the CRAC-generated data as input. While the FES did not express health care costs quantitatively, Staff tes-timony relating to LEA Contention DES-4A 6 explains the analysis that was performed. Additional economic impacts that were quantified in the FES or the Staff testimony include health effects, regional industrial impacts, decontamination and replacement power. Richter, ff. Tr. 11,148, at 6. F-39. The Applicant asserts that while not all aspects of the analysis of costs and risks are currently amenable to a fully rigorous probabilistic treatment, both the Staff and the Applicant have treated them using the current state-of the art in risk assessment to provide full disclosure. The Applicant believes that we must look at the entire discussion, both its quantitative and qualitative aspects, to understand the risks associated with the operation of Limerick. Daebeler et al., ff. Tr.11,114, at 41-42. 563
b 4 1 4 F-40. Since LEA provided no testimony or witness on this conten-tion, it is difficult to understand exactly what LEA means by the
" format obscures the total impact of severe accidents at Limerick."
Judging from LEA's Proposed Findings 110-117, it would appear that the concern is not with structure, but with content and manner of pre-senting results. We agree with the Applicant that to understand the risks associated with the operation of Limerick one must look at the entire discussion, both its quantitative and qualitative aspects. As we have concluded with respect to part A of this contention, so we conclude with respect to part B, that the FES and the record in this proceeding ade-quately disclose and consider the risk of severe accidents at Limerick. To the extent that LEA believes that the FES consideration of total I impact of severe accidents at Limerick should include something in addi-l tion to what is already there, we find no basis for such a conclusion. We find this part of the contention, DES-4B, without merit.
- 3. LEA-DES-3: People WillDecline to Evacuate F-41. This contention states:
I. The DES' severe accident consequence modeling fails to account for the probability j that a portion of the population will fail to take protective action despite plannmg j and instructions, thus understating the actual consequences of a severe accident at i Limerick. F-42. LEA's basis for this contention was an EPA sponsored study of evacuations. Hans and Sell, " Evacuation Risks - An Evaluation," EPA-520/6-74 002, U.S. Environmental Protection Agency (June 1974). LEA asserted in its basis that the Hans and Sell study showed that a percentage of the population ranging from 6% to 50% would not evacuate despite instructions to do so. Actually, as now apparently i conceded in LEA's Findings (LEA PF 28, at II), the referenced study stated that approximately 6% of the population refused to evacuate in the cases studied. The 50% figure was taken from a separate report ] quoted by Hans and Sell studying the response to Hurricane'Carla in i 1961. That report considered the evacuation behavior of people not only l in the Texas county in which the hurricane came ashore, but also anoth-l er Texas county, two cities located 100 miles'to the northeast and a county in Louisiana located 200 miles from where the storm came ashore. Daebeler er al., ff. Tr.11,114, at 24-25. We agree with the tes-timony that the inclusion of people living great distances from the eye of the hurricane, and the fact that a majority of people in the affected area 1 564 i
were not advised to evacuate, make the 50% nonevacuation figure inva-lid as a guide for a postulated evacuation at Limerick. Id. at 25. F 43. In sum, there is no basis to assume that with the required emergency plan in place, including prompt notification systems and followups, that more than a small percentage of the population - perhaps, for all we know, about 5-6% - would initially fail to evacuate. It requires, however, further speculation to assume that such persons would continue to refuse to do so in the face of followup evacuation ef-forts by authorities and the evident evacuation of the rest of the population. See Hulmad and Acharya, ff. Tr.11,148, at 5; Tr. II,f1314 (Hulman). The evidence that only a very small percentage of the popula-tion in the plume exposure Emergency Planning Zone (EPZ) would fail to evacuate was buttressed by the report of an evacuation that took place in 1982 in the vicinity of the Waterford Steam Electric Station in Louisiana. In that case, an area of approximately 60 square miles, with the reactor situated fairly close to the center, was evacuated as a result of a nonnuclear chemical plant accident. The emergency response took place in the context of the planning that had been done for the nuclear power plant. The nonevacuating fraction of the population was approxi-mately 0.2%, or 50 people out of 16,000. Significantly, the authorities knew the names and addresses of all nonevacuating individuals shortly after the accident. Tr. 11,514-16 (Kaiser); Tr.11,517 (IIulman). F 44 The Board does not believe it is clear that persons who, in the exercise of their individual liberty refuse to evacuate, even after fol-lowup efforts, should be considered as part of the total societal risk of a severe accident. Nevertheless, the record also discloses the effect on the risk estimates if a small percentage of the population refuses to evacu-ate. The Applicant's assumed base case protective actions, for its risk cal-culations in SARA, are those of evacuation of the entire population within 10 miles of the Limerick plant, and normal activities for 12 hours after plume passage with subsequent relocation for people between 10 and 25 miles from the plant. It modified this computer run for this base case to assume that 6% of the population would not take those evacua-tion and relocation actions. Daebeler et al., ff. Tr.11,114, at 27. F-45. The Applicant's sensitivity analysis assumed that the 6% non-participating fraction of the population was uniformly dispersed through-out the area. Tr. 11,503-04 (Kaiser). The Board believes that this is probably conservative, since persons closer to the accident are more likely to heed the advice of authorities to evacuate (or take other recom-mended protective actions). The nonparticipating 6% were assumed to remain outdoors for 24 hours after the declaration of an emergency, and then to rapidly relocate. This assumption is the equivalent of exposures
$65
i that would be accumulated in 2 to 3 days of normal activities following plume passage. Daebeler er al., ff. Tr.11,114, at 27-28; Tr.11,504-06 (Kaiser). We find the sensitivity analysis to reasonably bound the speculative element of a nonparticipating percentage of the population. We find no basis to accept LEA's unsupported view (LEA PF 32-34), that even a much smaller percentage of the population, let alone 6%, would continue to fail to follow the advice of authorities to leave the area after 2 to 3 days. F-46. The results of Applicant's sensitivity analysis increased the predicted public risk of early fatalities by 49%. We agree with the tes-timony of the Applicant and the view of the NRC StalT (Staff PF 36), that this 49% increase is relatively small for calculations of this type. Other uncertainties in the assessment of severe accidents, such as uncer-tainties in source terms, are much more significant. Daebeler et al., ff Tr.11,114, at 28. The uncertainties in the results of a PRA are large. It is stated in the FES that the risk estimates could be "too low by a factor of 40 or too high by a factor of 400." Tr.11,286 90 ( Acharya, Hulman). Typically, the area under the upper estimate CCDFs in SARA are on the order of a factor of 100 greater than the area under the lower-estimate CCDFs. Any comparison of the results of sensitivity studies, or of other PRAs must be made with this large range of uncertainty in mind. If the uncertainty ranges of two estimates are large and overlap to a large extent, then the two results cannot be regarded as being signifi-cantly difTerent. Thus, for instance, changes of a factor of 2 in estimates of public risk are insignificant in view of the large range of uncertainty. Daebeler et al., ff. Tr.11,114, at 9. See also id. at 8, and Staff Ex. 29 (FES), at 5 91 and 5108 to 5115. F-47. There is no basis for LEA's assumption (LEA PF 38 39), that persons would remain in " hot spots" for 7 days so as to receive high (200-rem) bone marrow ground doses, thereby increasing the 49% increase calculated by the Applicant. Our findings above are to the con-trary; again we believe the assumption of a 2 to 3 day period of failure for 6% of the population to take protective action to be more than rea-sonable - it is likely quite conservative. F-48. The NRC Staff's base case in the FES, as will be further dis-cussed in our findings below on other NEPA severe accident conten-tions, assumed a 100% evacuation of a 10-mile plume exposure pathway EPZ, after an average delay time of 2 hours and an average evacuation speed of 2.5 miles per hour (mph). The Staff, cunsistent with our own view above, believes the vast majority of people would heed instructions to evacuate. Hulman and Acharya, ff. Tr.11,148, at 4. However, the FES (Staff Ex. 29), also presents an alternative analysis in Appendix M, 566
4 usmg a postulated "Early Reloc" mee. of emergency response. The Staff did not perform this alternative at lysis in response to this conten-tion. Therefore, LEA's criticism that the Staff's alternative analysis is I not a direct sensitivity analysis varying the factor of nonparticipation of the population is superficially valid. See LEA PF 35-37. However, LEA i misses the point that, rather than studying the effects of small variations around the average values of all the different evacuation parameters, the
- "Early Reloc" model was used to reasonably bound the effect of dif-ferent levels of effectiveness of olTsite emergency response. Hulman and Acharya, ff. Tr.11,148, at 4; Tr.11,519-20 (Acharya). Staff Ex. 29 4 (FES), at p. 5 100.
. F-49. In the "Early Reloc" alternative Staff model, it was assumed that all people in areas contaminated within the plume within a 10-mile EPZ would not evacuate until 6 hours after passage of the plume. Beyond the 10-mile EPZ,just as in the Staft's base case, people were as-sumed to relocate 12 hours after plume passage if they are in highly con- ! taminated " hot spot" areas (projected 7-day ground dose of 200 rems to the bone marrow); if not, persons beyond the 10-mile EPZ were as-L sumed to relocate after 7 days. Staff Ex. 29 (FES), at p. 5 80 and p. 5-82. Tr.11,511,11,534 (Acharya). Therefore, this model assumes that all people in the 10-mile EPZ receive a ground dose for 6 hours in addi-tion to the plume dose (and for larger periods for people outside the as-sumed 10 mile EPZ). Tr.11,521 (Acharya). For this reason, even though a percentage of nonevacuating people was not one of the varied 4 parameters, the results of the Staff's alternative analysis bounds the re-sults of the Applicant's sensitivity analysis, which we have already found to be reasonable. Tr. 11,529-34 (Hulman).
- F 50. For the reasons stated, the FES adequately presents a range of consequences in the event 6% of the population declines to participate in an evacuation for the first 2 to 3 days after being advised to evacuate.
, This is further supported and made more explicit by the Applicant's i analysis and our findings in this proceeding. i i
- 4. LEA-DES-1: Relocation ofPeople Beyond 10 Miles implausible j F-51. DES 1 states:
- The DES' severe accident consequence modeling assumes the relocation of the l public from contaminated areas beyond the 10-mile plume exposure EPZ. (DES.
i Supp.1, pp. $ 21 to 5 22). Such an assumption in Limerick's case is implausible and without foundation in fact. 567 i i i 9
. . . . . . . ~ _ - . . . - - , , ,. , _ - . _ , _ -
m _ y . . -yz- --- .m- , ,_, , - - , m - .,
F-52. LEA asserts, as basis, that no planning exists or is presently contemplated for such a " relocation." It notes that NRC planning guid-ance contemplates the possibility of ad hoc response beyond the approxi-mate 10-mile plume exposure EPZ, but believes in the case of Limerick such an ad hoc relocation beyond the 10-mile radius is impractical, par-ticularly in the SE and SSE sectors (towards Philadelphia) in which the year 2000 population between 10 and 25 miles will be 680,330 and 505,011, respectively. LEA states that no precedent exist; for the ad hoc
" relocation" of such numbers of people.
F-53. The Staff's severe accident raodeling does, in fact, assume that those persons whose projected 7-day dose to the bone marrow would be more than 200 rems, would be relocated. Hulman and Acha-rya, fr. Tr.11,525, at 4. Such potential evacuation is not considered in isolation, however. Rather, the Staff, using the CRAC computer pro-gram, calculated the complementary cumulative distribution function values for the number of people to be relocated under this criterion. /d. From this calculation it can be determined that for relocation from the hot spots outside the 10-mile EPZ the probability that 5000 or more per-sons would be atTected is approximately 10-6 per reactor-year, the proba-bility that 50,000 or more persons would be affected is approximately 10-7 per reacter-year and the probability that 300,000 or more persons would be affected is approximately 10-8 per reactor year. Finally, the probability that 500,000 or more persons would be affected is approxi-mately 2 x 10-H per reactor year. These estimates include the probabili-ties of accidents, the probabilities of the weather sequences and the prob-abilities of the wind blowing toward the various population sectors. Id. at 4-5. F-54. The basis for assuming that ad hoc relocation of individuals outside of the 10-mile EPZ is discussed in NUREG-0396, " Planning Basis for the Development of State and Local Government Radiological Emergency Response Plans in Support of Light Water Nuclear Power Plants," App. Ex.139, which states on page 16 that for distances exceed. ing 10 miles, " actions could be taken on an ad hoc basis using the same considerations that went into the initial action determinations." Also, NUREG-0654, " Criteria for Preparation of Emergency Response Plan and Preparedness in Support of Nuclear Power Plants," App. Ex.140, states on page 12 that " detailed planning within 10 miles would provide a substantial base for expansion of response efforts in the event that this proved necessary." Daebeler et al., ff. Tr. I1,114, at 1011. F 55. The Applicant carried out a series of sensitivity studies to determine the effects of alternative modeling assumptions concerning shielding and relocation ofindividuals outside of the 10-mile EPZ. /d. at 568
14-16. From these studies it is concluded that the results are insensitive (within a factor of 2 or less) to a variety of assumptions. Id. at 14. The risk of early fatality to individuals beca-en 10 and 25 miles ranges from 4.5 x 10-5 to 9.3 x 10-s. Id.. Table 1. F-5 6. Evacuation of large numbers of people have in fact taken place expeditiously. Baton Rouge, Louisiana, population 150,000, was almost totally evacuated in 2 hours after a decision was made to evacuate the city following an accident involving a chlorine barge. Wilkes Barre, Pennsylvania, population 75,000, was effectively evacuated to a level of 96% in I hour because of a flood warning. Downtown Portland, Oregon, with a population of 100,000 was evacuated in I hour during a civil de-fense test exercise. One of the largest recent public evacuations occurred in Canada. Late in the evening of November 10, 1979, a freight train transporting both flammable and toxic materials derailed in downtown Mississauga, Ontario, Canada's ninth largest city. During the next 24 hours,216,000 people were evacuated from homes and hospitals in a 50-square-mile area around the accident site. Id. at 16-17. F-57. The contention is therefore incorrect in its assertion that there is no precedent for the ad hoc relocation of large numbers of people. S. LEA-DES-2 F-58. This contention states: The DES' severe accident consequence modeling uses an assumption of a uniform two hour evacuation delay time in its emergency response model. (DES, Supp. l. pp. 5-21 to 5-22). This assumption understates the likely delay time for a high popu. lation density site such as Limerick. This understatement of delay time results in an understatement of Limerick's risk, because accident sequence calculations are sensi-tive to evacuation time delay assumptions. F-59. The FES considers three types of response to severe accidents at Limerick. Only the first type assumes evacuation. This response, identified as Evac-Reloc (evacuation of the plume exposure pathway emergency planning zone (EPZ) followed, if necessary, by reloca: ion of persons outside of this zone), assumes an evacuation distance of 10 miles, a delay time of 2 hours, an effective evacuation speed of 2.5 mph and a 15 mile path length for each evacuee over which radiation expo-sure is calculated. Staff Ex. 29 (FES), at p. 5-81. Risk calculations may, in some cases, be sensitive to evacuation time estimates, which depend not only on the assumed delay time, but on the evacuation speed and ef. ; fective downwind distance to be traversed. Hulman and Acharya, ff. Tr. l 11,525, at 5-6,9. For some accidents there would be sufficient warning 569 l l
time to allow the public to evacuate before the plume could reach them, even if the evacuation time were relatively long. For others, the warning time could be short and many persons in the (plume exposure pathway) EPZ could not evacuate before being overtaken by the plume (even if the evacuation time were relatively short). The FES considers a range of risk assuming a 2 hour delay time before evacuation to no evacuation at all. Id. at 6. F 60. The Staff's basis for a 2-hour delay time does assume that there is a well-established emergency response plan, periodic testing of the notifkttion system and procedures, and exercises and drills to main-tain the plan in readiness. Hulman and Acharya, ff. Tr.11,525, at 6. Such assuinptions are not unreasonable, given that these actions are re-quired by the Commission's regulations.10 C.F.R. j 50.47, and Appen-dix E to 10 C.F.R. Part 50. F-61. The 2 hour delay time is assumed to result from three tirre increments; 15 minutes (from the reactor operator's warning) for the au-thorities to interpret the plant data and decide to promptly notify people to t.vacuate,15 minutes to notify most of the people in the 10 mile EPZ to evacuate, and 90 minutes for people to prepare to evacuate and to get under way. Id. at 7. There would likely be variations in the delay time around the 2 hours in either direction, but the impact of these variations on risk estimates woulu not be expected to be substantial. Id. at 6. F-62. The 2-hour delay time assumed for Limerick is the same as that assumed for the Indian Point site, which was based on two evacua-tion time studies - one prepared for the Indian Point licensees and one prepared for the Federal Emergency Management Agency (FEMA), by different contractors. This delay time was characterized by the Indian Point Atomic Safety and Licensing Board (ASLB) as reasonable. Consoli-dated Edison Co. ofNew York (Indian Point, Unit No. 2), LBP 83-68,18 NRC 811, 888 (1983). Because the population within the 10-mile EPZ at Indian Point (0.25 million people projected in 1990) is larger than the population within the 10-mile EPZ at Limer:ck (0.16 million people pro-jected in 2000), the Staff considers the 2-hour delay time at Limerick as reasonable. Id. at 7 8. The evidence additionally indicated that this delay time is appropriate even for moderately adverse site conditions such as light snow, ice, and moderately severe hurricanes and earthquakes. Id. at 6-7. F-63. LEA, in its basis for this contention, concludes that a more appropriate delay time would be in excess of 3 hours, based on the evac. uation model developed at Sandia National Laboratories. A o. Ex.138. This model, based on historical data on experience with unplanned or impromptu evacuation following transportation accidents, derived 570
1 I values of I hour, 3 hours, and 5 hours for 15%, mean, and 85% likely delay times. Instead of 2.5 mph, however,10 mph or higher evacuation speeds were assumed. The Staff does not consider an evacuation speed of 10 mph appropriate for Limerick, however, based on its estimate of required travel time to evacuate the 10-mile EPZ. Id. at 9. l F-64. Based on the 2-hour delay time and 2.5-mph evacuation l speed, compared to the Sandia model using a 3-hour mean likely delay I time and a 10-mph evacuation speed, the Staff believes that it should be inferred that the Staffs evacuation parameters have not resulted in un-derstatement of Limerick risks. Id. at 10. F-65. To examine the effects of changes in delay times and evacua-( tion speeds on the final risk results, the Applicant performed sensitivity analyses using various models and various values for the delay time and evacuation speed parameters. These studies used the CRAC 2 computer code and the radioactivity release source terms developed by the Appli-cant in its Severe Accident Risk Assessment (SARA) study. The SARA evacuation model incorporates the results of the Sandia study (on delay times) explicitly with delay times weighted as follows: I hour - 30%, 3 hours - 40%, and 5 hours - 30%. The Applicant found that the FES risk estimates do not differ greatly from those in the Sandia model, even though the delay times and evacuation speeds are different in the two models. Daebeler et al ff. Tr.11,114, at 22-23,58. Applicant's sensitivi-ty studies included variation of evacuation clear times from 4 to 13 hours and delay times of 1, 3 and 5 hours combined with a 2.5-mph evacuation speed. All of the results were within a factor of 3 of the result for the FES Evac-Reloc Model. The Applicant concludes that the StafT use of a 2-hour time in the FES does not lead to a significant under-statement of Limerick's risk. Daebeler et al, ff. Tr. I1,114, at 23. F-66. LEA implies that a longer delay time for Limerick would be { incurred because of its higher-than-average population density. To the contrary, the Hans and Sell report, upon which the Sandia Generic Study is based, contains examples of evacuation from areas with popula-tion densities greatly exceeding the 700 persons per square mile located within 10 miles of Limerick. Daebeler et al, fT. Tr.11,114, at 21. F-67. Based on the record in this proceeding we find no basis for the assertion that the assumption of a 2-hour delay time for evacuation of the 10-mile EPZ at Limerick understates the likely delay time. It is clear that some people will evacuate earlier and some later, but the use of 2 hours versus, say,3 or more hours is reasonable for the purposes of estimating risk provided the evacuation speed assumed also is reasona-ble. The assumption in the FES of a 2.5-mph, rather than a 10-mph, evacuation speed compensates, even though not completely, for the 571
I' ( shorter delay time. Tr.11,556 (Kaiser). Based on the uncertainties of postulating actual evacuation conditions, and the sensitivity analyses de-scribed above, we find that the FES assumption of a 2-hour delay time, together with the assumption of a 2.5-mph evacuation speed, does not result in any significant understatement of Limerick's risk, if indeed there is any understatement. Consequently, this contention is without merit.
- 6. Conclusions ofLaw as Applied to LEA and City Severe Accident Contentions
- a. LEA 's Proposed Conclusions ofLaw F-68. LEA has summarized its position as to the defects in the FES in its proposed Conclusions of Law. Proposed Findings (July 26, 1984).
It first cites Baltimore Gas and Electric Co. v. Natural Resources Defense Council, 76 L. Ed. 2d 437,446-47, 452 (1983), to the effect that: The National Environmental Policy Act (NEPA) places upon an agency the obli-gation to consider every sigmficant aspect of the environmentalimpact of a proposed action . .and requires an EtS to disclose the significant health, socioeconomic and cumulative consequences of the environmental impact of a proposed action. F-69. It then quotes from the NRC Statement ofInterim Policy on Nuclear Power Plant Accident Considerations under the National Envi-ronmental Policy Act,45 Fed. Reg. 40,101 (June 13,1980), as follows: Environmental Impact Statements shall include a reasoned consideration of the environmental risks (impacts) attributable to accidents at the particular facility
. within the scope of each such statement. In the analysis and discussion of such risks, approximately equal attention shall be given to the probability of occurrence of releases and to the probability of occurrence of the environmental consequences of those releases.
The environmental consequences of reIcases whose probability of occurrence has i been estimated shall also be discussed in probabilistic terms. Such consequences shall be characterized in terms of potential radiologwal exposures to individuals. to f population groups. and where applicable, to biota. Ifealth and safety risks that may l be associated with exposures to people shall be discussed in a rnanner that fairly re. flects the current state of knowledge regarding such risks. F-70. Finally, LEA concludes that the FES fails to comply with l these mandates for eight reasons. We have already discussed the fact that compliance with NEPA need not be restricted to the content of the i FES alone. Rather, our findings and conclusions, based on the entire record before us, are deemed to amend the FES 572
F-71. Generally, with respect to Baltimore Gas and Electric, we note that the key word is "significant." As all parties agree, the estimates of environmental, including health, effects resulting from low-probability, high-consequence accidents are attended by large uncertainties. Where such estimates are clearly small, as they are here, compared to the risks to which the environment and the population are otherwise exposed, second-order effects cannot reasonably be considered significant. Fur-ther, whatever significance such second-order risks may have, they may reasonably be considered as enveloped by the uncertainty in the esti-mates of the dominant risks. Similarly, the precision of the estimates of the dominant risks is not important where the risks are clearly small - taking into account the uncertainty of the estimate - compared to the risks otherwise extant. F-72. With respect to the first paragraph quoted from the Statement of Interim Policy, the Board certainly agrees that the FES and this deci-sion should give equal attention to the probability of occurrence of releases and to the probability of the environmental consequences of those releases. This, we believe the Staff, the Applicant and we have done. With respect to the second paragraph, we believe StafT and Appli-cant testimony and out own familiarity with the subject supports the con-clusion that the health and safety risks that may be associated with expo-sures to people have been discussed in the FES and on the record of this proceeding in a manner that fairly reflects the current state of knowledge regarding such risks. F 73. Notwithstanding the above, we have found in a number ofin-stances that the FES might have led to easier comprehension by the public (as cpposed to the informed professional) had there been explicit discussion in the FES itself of the rationale for including some matters and excluding others. Perhaps this was a consequence of using state-of-the-art knowledge and m(.thodology. F-74. Based on the above, and the record before us, we f'md (a) Certain health effects which may be caused by a severe accident at Limerick and their associated probabilities, including genetic effects, nonfatal cancers, child developmental impairment caused by in-utero radiation exposure, spontaneous abortions, sterility, benign thyroid nodules, and hypothyroidism, have been adequately disclosed. (b) The total land area in which crops and milk will be interdicted and the probabilities associated with such interdiction, have been adequately considered and disclosed. (c) The population in the areas to be interdicted, and the probabili-ties associated with such population interdiction due to severe l 573
t accidents at Limerick, have been adequately considered and disclosed. (d) The economic cost of medical treatment of all health effects of severe accidents at Limerick, and the probabilities associated with such costs, have been adequately considered and disclosed. (e) The assumption used for population relocation beyond the plume exposure EPZ in the calculation of health effects is not inappropriate. (O The evacuation delay time used in the emergency response model for calculating health effects is not inappropriate. (g) The probability that a portion of the population will fail to take protective action has been adequately taken into account, thus the risk of health elTects of severe accidents has not been un-derstated. (h) The total risk of a two-unit facility over 30 years of operation is adequately disclosed by disclosing the risk per reactor-year of a single unit and the fact that the risk from two units is approxi-mately twice that of one unit.
- b. City's Proposed Conclusions of Law F-75. The City does not propose specific conclusions oflaw with re-spect to its three admitted contentions. We have carefully considered each contention and have denied them for the reasons discuspd in sec-tions of this decision following this one. The City, howeve honcludes that further NEPA assessment in terms of weighing environmental costs versus benefits of the project is warranted for Unit No. 2, and a stay by the Nuclear Regulatory Commission of any determination of licensing of Unit No. 2, in terms of the acceptability of environmentalimpacts, is appropriate. City PF at 19 21 Ouly 26,1984). We dit.ust the City's basis, as set out in its proposed conclusions oflaw.
- 1. The National Environmental Policy Act of 1970 ("NEPA") directed federal officials "to use all practicab!e means, consistent with other essential considerations of national policy," to protect the environment. 42 IJ.S.C.A. { 4331. Consistent with that mandate, the Nuclear Regulatory Commission, prior to issuance of an operating license for both Limerick units, must fully disclose the environmental impacts of the units' operation and must factor into its licensing decision consideration of NEPA's mandate.
F-76. We have found that the FES and the record in this proceeding fully disclose the environmental impacts of the operation of both units 574
m s and we have taken NEPA's mandate into consideration in reaching our i conclusions. The City, by its cross-examination, has not controverted the evidence of the Staff and the Applicant in this regard. !
- 2. The informative uses of the environmentalimpact study are to proside infor-
' mation to the general public and public officials at all levels of government,40 C.F.R. ) 1500.l(b), and to proside the basis for an iiformed decision on the part of the NRC. Sierra Club v. froch/Ac. 345 F. Supp. 440,444 (w.D. Wis.1972), af)'d. 486 j F.2d 946 (7th Cir.1973). On this count the study must be reasonably thorough and j must take a "hard look" at the environmental consequences. K/cppe v. Sierra Club.
427 U.S. 390. 410, n.21 (1976). l l F-77. Similarly, we find that the FES and the record in this proceed-i ing provide information to the general public and public officials at all levels of government, and, together, are reasonably thorough and do take a "hard look" at the environmental consequences of severe acci-
- dents at Limerick. Neither has the City, by its cross-examination, con-troverted the evidence of the Staff and the Applicant in this regard.
; 3. NEPA does not mandate informational requirements only, however. NEPA injects environmental considerations into the decision making process itself. Wern-berger v. Cathohe Action o/#awaii. 454 U.S.139,143 (1981). An essential element of decision making is whether alternatives should be considered in light of any benefits
( of the action in relation to the measured environmental impacts of the action. 42 U.S.C.A. t 4332(2)(c)(iii). l F-78. The Commission, in its Statement of Consideration accom-( panying the change in 10 C.F.R. Part 51, relating to Need for Power and Alternative Energy issues in Operating Licensing Proceedings (47 Fed. p Reg.12,940 (1982)) stated that it is not necessary, absent a showing of .l special circumstances, to consider the issues of need for power and alter-native energy sources at the operating license stage of a licensing j proceeding. (Sce also 10 C.F.R. f 51,53(c)). The City has not made a
- showing of special circumstances in this proceeding and therefore the issue is not a proper subject for review by this Board. Further, the City now raises essentially the same issue that was the subject ofits Conten-tion City 17. That contention was opposed by the Staff and the Applicant and was rejected by the Board. (Memorandum and Order Confirming L
.j Rulings and Schedules Made at Special Prehearing Conference on NEPA Severe Accident Contentions (April 20,1984) (unpublished), ~
- slip op. at 4).
- 4. In keeping with the National Environmental Policy Act,40 C F.R.1502.22(b)
- and the Commission's Environmental Protection Regulations 49 Fed. Reg. 9352, <
i 575 t 1 1 , i k
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9357 (Mnch 12,1984), the Board has considered a full rsnge of both the probabdi-ties of various accident scenarios and their associated consequences. Given the de-velopmental status of these types of analyses and their high degree of uncertainty. a reasoned approach is to review and consider this range, including the calculated un-certainty range. We have considered on this record a reasonable range of dose con-versson factors, exposure levels (protective action effectiveness), bad weather, and the probability calculation uncertainty range. Although upper bound results were not portrayed here in every instance, we have compensated for that lacking by giving greater weight to the uncertainty range, especially the upper bounds. F-79. It is inherent, perforce, that estimates of very low probability, severe consequence accident risk, for which there is no direct experi-ence, will have large uncertainty, it is correct that we have considered the uncertainty range, but we find there is no basis for giving greater weight especially to the upper bounds. Rather, we maintain that in con-sideration of risk it is not only proper, but mandatory, to consider the combination of probability with the magnitude of the consequence.
- 5. Based on our considerat on of this record in the above described framework and what has been thereby disclosed in terms of the environmental impacts of potential severe accidents and the uncertainty in measuring both the probabihties and consequences associated therewith, we conclude that further NEPA assessment in terms of weighing environmental costs versus benefits of the project is warranted for Umt No. 2. A stay by our Commission of any determination oflicensing of Unit No. 2, in terms of the acceptability of environmental impacts, is appropriate for the following additional reasons:
(a) The pending availability, for NRC review, of the Pennsylvania Pubhc Utahty Commission's investigation results will precisely focus on and develop the economic issues associated with Unit No 2's potential operation. (b) Unit No. 2 is only partially completed, with in service not scheduled until the 1990s. A stay oflicensing now will not have the construction scheduhng impact associated with such a stay for a nearly completed plant. (c) There have been vasuy changed circumstances since 1973, when this issi e w s last examined by the Commission in an adjudicatory context. These ch. ages will affect the economics of the plant's operation. Also the partial nature of construction completion will affect the economic analysis when comparing Unit No. 2 to alternatives, in contrast to comparing the econom-ics of a cornpleted plant to the economics of alternatives. (d) The lack of previous consideration at the construction stage of conservation, cogeneration, etc., as alternatives also compels reconsideration. Conservauon, good management, cogeneration, and rate structures to promote efficient use of production are now an essential component of the Nation's energy policy. National Energy Act of 1978. They are no longer viewed as " remote and speculative'* possibilities. In conclusion, before doubbng the potential for the public's exposure to these envi-ronmental impacts in such a high density population area, NEPA requires us, as 576
i 4 federal officials charged with protecting the environment. to stay a decision on Unit No. 2 until the PennsyIvania Public Utility has cornpleted its investigatron. F-80. City's reasons to stay a decision on Unit No. 2 simply will not wash. First, the fact that there are uncertainties in estimating (of course they cannot be " measured") both the probabilities and consequences of potential severe accidents in no way supports the conclusion that further NEPA assessments are required. The record is complete and adequate with respect to environmental costs. The benefits (a reconsideration of need for power and alternative energy sources) are not a proper subject for litigation before this Board. No special circumstances have been shown or are apparent to call into question at this late date the environ-mental judgments reached many years ago, at the construction permit stage, on the benefits of the proposed action. This is not alTected by economic considerations of:n
- (a) the pending availability of the Pennsylvania Public Utility Com-mission's investigation results of economic issues,
; (b) a change in construction scheduling impact.
(c) possible changes in the economics of the plant's operation. F-81. Finally, we do not accept the conclusion that the public's exposure to the environmental impacts of severe impacts has been , ] doubled. Philadelphia Electric's application has been and is for operating
; licenses for two units at Limerick. The fact that risk estimates have been -
t
. expressed in terms of reactor years of operation certainly has not ob-2 scured the fact that risk will attend operatio'n of both units.
F-82. City's proposed Conclusions of Law are rejected, for the res-sons given above.
- 7. City-H
- Evacuation Speed, Rackups and Bad Weather I F 83. This contention, as admitted, alleges three reasons why the FES does not accurately reflect either the median or upper estimates of the radiological effects which would result from an accident at Limerick because several key input assumptions associated with human activity after a severe accident are not realistic: (a) incorrect assumption of evacuation speed, (b) failure to correctly consider backup of evacuees at i Philadelphia's outskirts, and (c) failure to adequately consider bad j weather scenarios. We discuss them in turn.
U See Cossumers Power Co. (Midland Plant. Units I and 2). ALAB.458, 7 NRC 155.16163 (1978) feconomic cost or the proposed action is only matenal under NEPA when there are environmentally su-j penor alternatives). 577 i j r ?
- a. Evacuation Speed
- a. The base case average evacuation time (speed) of 2.5 mph is based on a 1980 study which is now inaccurate. City. as part of this section of the contention. refers to the Statement of Issues of the Commonwealth of Penns>bania with Respect to Offsite Emergency Planmng, January 30.1984.
F 84. In its Statement the Commonwealth asserted that the Appli-cant must prepare an updated evacuation time estimate study for the Limerick plume exposure pathway EPZ; the evacuation time study the Applicant has submitted to the NRC for approval is outdated and based on inaccurate information. Deficiencies in the study include, but are not necessarily limited to, reliance on out-of-date and inconsistent census data, use ofincorrect evacuation routes, use of a concept of" maximum evacuation time" that does not accurately reflect the size of the plume EPZ, and failure to account for the notification system to be installed by the Applicant. F-85. The Staff did derive the mean effective radial speed of 2.5 mph using an Applicant's consultant 1980 report estimate of 4 hours travel time to clear the 10-mile EPZ. This was not the only basis for this rate of travel. The Staff, in its risk analysis for the Indian Point site, de-rived an effective evacuation speed of 1.5 mph on the basis of a mean es-timate of 6.7 hours of travel time to clear the 10-mile EPZ. This was based on two evacuation time studies made for ladian Point, as reviewed in NUREG/CR 1856, "An Analysis of Evacuation Time Esti-mates Around 52 Nuclear Power Plant Sites," Vol.1, May 1981. This speed, equivalent to a slow walk, was considered reasonable by the Indian Point Licensing Board. Hulman and Acharya, ff. Tr.11,525, at 12; /ndian Point, LBP-83-68, supra.18 NRC at 888. Because the popula-tion within the Limerick 10-mile EPZ (0.16 million projected for the year 2000) is considerably less than the population within the Indian Point 10 mile EPZ (0.25 million projected for the year 1990) the Staff judged the effective evacuation speed of 2.5 mph for Limerick to be con. sistent with the 1.5 mph for Indian Point. The Staff recognized there could be other factors, such as terrain differences, differences in capaci-ties of road networks, etc., which could influence the effective evacua-tion speeds. Hulman and Acharya, ff. Tr. I1,525, at 12. F-86. The StalT did not presuppose great accuracy in the 2.5-mph speed estimate or in other parameters used in the risk analysis. It asserts that a reasonable bounding of risk estimates due to minor perturbations in evacuation model parameters is provided by the use of the "Early Reloc" mode of emergency response discussed in an alternative risk analysis of Appendix M of the FES. Finally, the Staff notes that the risks 578 i
of early fatality are dominated by Limerick reactor accidents initiated by severe earthquakes for which evacuation is unlikely, and only the " Late Reloc* mode of emergency response would apply. Hulman and Acha-rya, ff. Tr.11,525, at 10-13. F-87. To examine the effects of changes in delay times and evacua-tion speeds on the final risk results, the Applicant performed sensitivity analyses using various models and various values for the delay time and evacuation speed parameters. The results of these calculations were sum-matized as estimates of the public risk of early fatality, from which it was concluded that the predictions of public risk do not differ significant- , ly when the evacuation speed is varied from 2.5 to 10 mph. Daebeler et al., ff. Tr. I 1,114, at 22-23, and Table 2. F-88. The Board finds that the value of 2.5 mph for the average evacuation time may, indeed, not be accurate. We note, however, that comparison of the FES results with the results of an extreme case of a 3 hour delay time and a 1 mph efTective evacuation speed would change 1 the estimate of the predicted public risk of early fatality from 3.5 x 10-5 to 9.9 x 10-5, a factor ofless than 3, which is insignificant compared to the uncertainty of the estimate itself. Id., Table 2. See also our Findings above on DES-2. This part of the contention (City 14a) is without merit.
- b. Evacuee Backups at the Outskirts of Philadelphia
- b. Not included in the base case is the known phenomenon that as evacuees ap-proach the City outskirts, their speeds would reduce. backups would occur and con-sequences due to trapped evacuees would increase.
F 89. Philadelphia, at is nearest outskirts, is approximately 21 miles from the Limerick reactors. The Staff does not disagree with the City assertion, but concludes that there would be no appreciable changes in the results of the risk calculations, taking the backup phenomenon into account, for the following reasons. First, an accident would have to occur, of low probability, that would release a large amount of radioac-l tivity to result in high radiological doses substantially beyond the
- 10 mile EPZ. Second, the wind blows toward Philadelphia only 27% of the time. Third, given the above, the atmospheric diffusion conditions would have to be poor to allow sufficient concentrations of radioactivity to remain in the plume. Fourth, evacuees would be advised that after crossing the 10-mile EPZ boundary they should travel in a crosswind direction. Fifth, in an actual situation, contrary to the CRAC Code l assumptions, the plume direction would be variable, and the evacuees' directions of motion would be variable. Sixth, the Staff made additional 579
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i a l calculations assuming that all the evacuees in the plume exposure path-
, way within the 10-mile EPZ and in the SE and SSE sectors (toward Phil-I adelphia) would wind up in those sectors between 20-25 miles before l the plume arrived and remain there during plume passage. The results ! of the latter calculations allow the comparison of the estimated societal risks originally calculated for the FES with those calculated in response i
to the City contention. These comparisons show no increase in early ) fatalities (assuming supportive medical treatment), a 5% increase in
- early injuries, a 4% increase in latent cancer fatalities (excluding
! thyroid), a 5% increase in latent thyroid cancer fatalities, and a 4% in- ! crease in total person rems, for the calculations based on the stated assumptions. Hulman and Acharya, IT. Tr.11,525, at 1317 and Tables 2,3 and 4.
F-90. Given the magnitude of the uncertainties inherent in the risk
) analysis calculus, and the conservatisms of the CRAC model cited j above, such low percentage changes in the public risk caused by a backup phenomenon have no significance This part of the contention (City 14b) has no merit.
- c. Bad Weather Scenarios 4
3 e. The DES does not separately portray the health consequences under bad
; weather scenarios. Many weather scenarios, including theoretically bad weather conditions, are averaged together.
F-91. The FES does not, in fact, provide a separate showing of the i efTects of bad weather scenarios on risks. The CCDFs in the FES impli-citly portray the effects of bad weather, however, because these higher consequence situations (assuming large releases) have much lower prob-
; abilities than the better weather situations and show up in the tait ends of the CCDFs. The weather conditions, themselves, are not averaged.
Rather, the consequence magnitudes associated with the ninety-one j weather sequences are averaged to obtain the conditional mean value of i the consequences. The Staff recognized, however, that bad weather sce-natios might have an impact on evacuation. To provide a bounding cal-culation on the impacts of bad weather, the Staff providcd, in Appendix M of the FES, an analysis of an alternative response mode, "Early
- Reloc," as an alternative calculation of public risk. Comparison of (a) the total societal risks within 50 miles of Limerick per reactor year for l the case of Early Reloc for accident causes other than severe earthquakes l and Late Reloc for accidents caused by severe carthquakes (Table M.la)
,! with (b) the case of Evac Reloc for accident causes other than severe
! $80 h
. F i f i '. i
- _ , _ _ _ - ._ . _ _ . - - _ - - . - . _ . . . _ . _ _ , , . _ . , _ - . . . , , - - , . . . . . _ . - ~ . . . . , _ _ _ _ - . . . _ _ , _ _ _ . . _ ~ - - - , .
earthquakes and Late Reloc for accidents caused by severe earthquakes (Table L.la), shows an increase in early fatalities with supportive medi-cal treatment of 20%, an increase in early fatalities with minimal medical treatment of 25% and no change in early injuries, latent cancer fatalities excluding thyroid, latent thyroid cancer fatalities, or total person rems. Hulman and Acharya, ff. Tr. I1,525, at 17-20. F-92. While it is true that the FES does not separately portray the health consequences under bad weather scenarios, the worst (weather) cases are included in the calculations of the CCDFs (Tr. I1,672 (Kaiser)) and the bounded changes in public risk due to such conditions can be inferred from the results of the analyses presented. Moreover, such changes, while not a result of not considering bad weather, per se, but a result of assumed changes in emergency response, are found not to be significant compared to the uncertainties inherent in the risk analysis. F 93. This part of the contention (City 14e) has no merit.
- 8. City-13: Dose Distance Calculationsfor Philadelphia F-94 The essence of this contention is that the FES does not expli-i citly provide curves of calculated radiation dose resulting from postulated severe accidents at Limerick, as a function of distance, specifically for distances including the City of Philadelphia (City). City asserts that the absence of this explicit data makes it impossible for the Commission to l accurately ascertain the likelihood of the public receiving doses in excess of Protective Action Guide (PAG) levels, or in excess of some other unacceptable level of societal risk. In particular, City believes that the high-density population around the (Limerick) site should be taken into account and the probabilities of the occurrence of release and of occur-rence of environmental consequences should be presented separately, to be separately understood and evaluated.
F 95. The Staff, in fact, did not separate out doses to individuals or population groups for presentation in the FES, since these were consid-cred as only intermediate parameters in the assessment of the impacts of severe accidents at Limerick. What the Staff did present in the FES were curves of the risk of individual dose versus distance, the individual risk of early fatality versus distance, the individual risk of early injury versus distance, and the individual risk of latent cancer fatality versus distance. Staff Ex. 29, Figs. 5.4i,5.4j,5.4k and 5.4I. F 96. The Staff also presented in the FES the results of its calcula-tion of the probability distributions of the number of persons who would receive doses to the whole body, thyroid and bone marrow in excess of 581
i { 25, 300 and 200 rems, respectively. StalT Ex. 29. Figs. 5.4b, L-1 L 2,}}