ML20199E450
| ML20199E450 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 06/09/1986 |
| From: | Eddleman W, Runkle J CONSERVATION COUNCIL OF NORTH CAROLINA, EDDLEMAN, W. |
| To: | NRC |
| Shared Package | |
| ML20199E447 | List: |
| References | |
| OL, NUDOCS 8606230306 | |
| Download: ML20199E450 (13) | |
Text
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June 9, 198 %
S UNITED STATES OF AMERICA 'l ,
NUCLEAR REGULATORY COMMISSION 'J av 2 0 19863 3
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BEFORE THE COMMISSION /K
, In the Matter of:
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Carolina _ Power & Light Company and ) Docket No. 50-400 OL NC Eastern Municipal Power Agency )
)
(Shearon Harris Nuclear Power Plant) )
COMMENTS ON IMMEDIATE EFFECTIVENESS REVIEW OF FINAL LICENSING BOARD DECISION Now come the Conservation Council of North Carolina (CCNC), Mr. Wells Eddleman (pro se), and the Joint Intervenors with comments on the Commission's 2.764(f) "immediate effectiveness" review of the Final Licensing Board Decision in the above-captioned docket. CCNC and Mr.
Eddleman are Intervenors in this docket while the Joint Intervenors consist of several of the Intervenor groups and individuals as proponents of certain consolidated contentions. A thirty-day extension of time was requested on May 7, 1986, for the filing of these comments which was granted by the Commission.
It is our understanding that comments for the Commission's "immediate effectiveness" review are less formal than required in filings such as appeal briefs as they are presented primarily to guide the Commission in looking at specific problems which not only effect the safe operation of this plant but also have more generic applications to the licensing process as a whole. We of course do not wish to abandon any issues we have raised 8606230306 860609 1 PDR ADOCK 05000400 g PDR
below and further urge the ' Commission to also review the appeals we have made on the various Partial Initial Decisions made by the Licensing Board as
- well as the appeal of the Final Decision, dated June 9, 1986, to the Appeal .
Board. ;LBP-85-5, 21 NRC 410.(1985); LBP-85-28, 22 NRC 232 (1985);'LBP -
I 49, 22 NRC 899 (1985); Final Licensing Board Decision, NRC (April 28, fa 1986).
We are convinced that the Harris Plant cannot be operated without 4
endangering the health or safety of the public or in compliance with applicable NRC regulations as required by 10 C.F.R. 50.57(a). A review of the issues that the Intervenors have raised along with the supporting i
material in the record shows clearly that after a full and fair hearing on the merits of the Harris plant, it should not be licensed. The following j comments support this position:
- I. Alternatives to Harris.
10 C.F.R. 2.764(f)(1)(ii) seeks the identification of "close questions"
- l which are " serious" from an environmental or safety standpoint and subpart l
l (2)(ii)iallows the parties to file brief comments on such issues.
! e.
Obviously the most important environmental issues concerning a nuclear plant operating license is whether there is an environmentally and economically superior alternative to its operation. If the reactor operates even at a small fraction of full power, the adverse environmental impacts accumulate, such as the contamination of the plant and surrounding area and the' production of nuclear waste. Therefore, when such r.n economically and i environmentally superior alternative exists, the plant must not be allowed to operate at all.
A viable alternative to the Harris nuclear plant exists, one that st<ves more money and displaces more energy from coal-fired generation than Harris 2
l could if operated. This alternative not only reduces peak demand by nearly l three times the Harris plant's design target output (2600 MW demand reduction vs. 900 MW design target output of Harris), it displaces more energy than the Harris plant is likely to produce. (The NRC staff estimates
,that the Harris plant output will be 868 MW at 55% capacity factor for 4182 GWH per unit per year. Harris FES, NUREG-0972, p. 6-2. The alternative saves 4338 GWH per year). With the considerable energy savings from the alternative, the Harris plant is simply not needed to serve growth in peak demand.
The alternative, when compared to displacing coal-fired generation by the use of Harris, also would save considerably more money. (Indeed, Applicants' estimates of saving may include some of the oil-fired power being displaced also. See Harris Environmental Report, Section 8, Amendment 5, filed by Applicants' in 1982). The alternative saves over $6 billion (in
'82 dollars) compared with a saving of only $2 billion (in '82 dollars) from displacing coal with the Harris plant. This does not consider the external environmental impacts and costs that an operating nuclear power plant would have.
This was shown prima facie in a section 2.758 petition and supporting affidavits filed by Mr. Eddleman, on June 30, 1983. The Licensing Board's errors in ruling against the petition are discussed on pages 24 - 33 in Intervenors' Appeal from Partial Initial Decision on Environmental Contentions, dated April 4, 1986, and do not need repeating here (although we would urge the Commission to review those arguments closely).
What does bear repeating, in light of the Appeal Board's questions at oral argument, is that one need only compare the alternative t:ct Shearen Harris for the purpose of displacing coal-fired generation. One need not show that the alternative can eliminate all of the utility's coal-fired 3
generation. Obviously, if the alternative to Harris can displace coal-fired generation more economically and with less environmental impact than the Harris plant can, it therefore displaces that amount of generation in an economically and environmentally superior manner. The alternative thus meets the special circumstances referred to by the Commission in adopting the "need for power" rule. At 47 F.R. 12940, the Commission stated:
...at the time of the operating license proceeding the plant would be needed to either meet increased energy needs or replace older less economical generating capacity...(and) this conclusion is unlikely to change even if an alternative is shown to be marginally environmentally superior in comparison to operation of a nuclear facility because of the economic advantage which operation of nuclear power plants has over available fossil generating plants. An exception to the rule would be made if, in a particular case, special circumstances are shown in accordance with 10 C.F.R. 2.758 of the Commission's regulation.
Again, not only is a prima facie case made in the original petition and supporting affidavits, that case is explained fully enough for favorable review in the Appeal of April 9, 1985.
Strengthening this position is that the fact that, at hearing on such alternatives, evidence has now been developed which shows that the costs of alternatives are considerably less than shown in the 2.758 petition, giving the alternative an even greater economic advantage over operation of the Harris plant. (The attached article, "Negawatts: A Practical Remedy for MegaCoofs," presented by Amory Lovins to the National Association of Regulatory Utility Commissioners in November 1985, explains the costs of alternatives in more detail.) Since consideration of the alternative would allow the environmental impacts of operating the Harris nuclear plant to be avoided, and save more money than its operation possibly could save (as its savings only the displacement of fossil-fueled generation), this issue is particularly apt for Commission review before any operating license, even a low-power one, is issued for Harris.
4
II. Management capability.
At the first prehearing conference of the operating license proceedings, all parties stipulated to the admission of Joint Contention 1 (Hanagement Incapability). The contention read as follows:
The Applicants have not demonstrated the adequacy of their managing, engineering, operating and maintenance personnel to safely operate, maintain and manage the Shearon Harris Nuclear Power Plant as evidenced by their record of safety and performance at their other nuclear power facilities. A pattern of management inadequacies and unqualified and/or inadequate staff is likely to be reproduced at Shearon Harris Nuclear Power Plant and result in health and safety problems.
In brief, the contention questions the Applicants' ability to safely manage another nuclear plant in light of the poor practices at its other plants, most notably the Brunswick nuclear units.
Management capability was not a new issue as it had been raised repeatedly over the course of the Construction Permit proceedings and before State regulatory agencies. It was the subject of the so-called 1979 remand hearings on management focussing on issue raised by an NRC inspector
, who had alleged that his concerns over the Applicants' mismanagement had not been properly addressed at the earlier hearing. Carolina Power & Light Co.
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), LBP-79-19, 10 NRC 37 (1979). Upon appeal, the Staff were directed to make a full analysis of the managerial changes undertaken by the Applicants in response to NRC criticisms. ALAB-577, 11 NRC 18, 36 (1980); CLI-80-12, 11 NRC 514 (1980).
A sketchy assessment was made in mid-1981 which concluded that changes by the Applicants "have improved management controls at the sites." Exhibit JI-38; Joint Intervenors' Proposed Findings 5, 94 and 95, January 9, 1985. ,
A two-week hearing was held September, 1984, with the Joint Intervenors placing considerable documentary evidence through cross-examination into the record about the Applicants' record of mismanagement. A telling example 5
l centered around the numerous violations leading to a $600,000 fine which the Applicants received on February 18, 1983, for "a breakdown in corporate and facility management controls in the areas of corporate oversight, facility management and operations, and problem identification and correction."
Transmittsi letter to EA-82-106; Exhibit JI-18. This complete lack of management controls which lead to the fine came after the earlier Staff assessment and despite repeated promises to the Staff that the Applicants would do better in the future. The conclusion was made by the Licensing Board that the Applicants had not made any real progress up to that point.
Carolina Power & Light (Shearon Harris, Unit 1), LBP-85-28, 22 NRC 232, 245 (1985;.
The Licensing Board relied heavily on the testimony of one member of the NRC Staff in reaching its conclusion that although the Applicants had had management problems in the past, it had made " dramatic" progress. This Staff member, Mr. Bemis, had been given the unusual assignment by the Region II Administrator in the fall of 1983 of overseeing the necessary changes the Applicants needed to make in order to break out if their " fossil mentality" to one needed by a well-managed nuclear utility. (This characterization was part of Mr. Bemis's conclusion that there were real problems with the management of Applicants' nuclear plants when he began his position). LBP-85-28, 22 NRC 232, 241 ff. (1985).
The most important overall review of the Applicants' management is in the Systematic Assessment of Licensee Performance--the SALP reports. The four reports available at the time were entered into the record, with the first three underscoring the repeated failures of Applicants' management to respond to and solve safety problems. The fourth, issued only days before the hearing, gave Applicants higher marks in most areas and concluded that 6
there had been considerable and positive change. Mr. Bemis was the editor and principal author of the fourth SALP and thus had the duty of both working with the Applicants to make management changes to become more effective as well as writing the report card for the Applicants which purported to document those " beneficial" changes. The Licensing Board relied almost totally on Mr. Bemis's conclusions in making its own decision.
The Joint Intervenors raised the issue of Mr. Bemis's conflict of interest at the hearing, in proposed findings of fact, and on appeal to the Appeal Board (which has not ruled on the issue yet) of the apparent conflict of interest of Mr. Bemis having as his primary responsibilities both insuring that the Applicants were doing better and assessing their progress.
This has the taint of impropriety, the purported progress made by the Applicants as evidenced in the fourth SALP report also put Mr. Bemis in a good light ("he did what he was supposed to do.")
III. Lack of finality of Final Decision.
The Final Licensing Board Decision was not addressed all of the issues raised by Intervenors. The Decision at page 185, footnote 50, states that there is one unresolved matter dealing with incidents of harassment; a Memorandum and Order, dated May 22, 1986, was issued on these matters.
Another matter, a late-filed contention alleging the falsification of dose records, was filed on April 22, 1986, before the issuance of the Final Decision, and has also not been acted upon to date. (These will be addressed more fully in our Appeal From Final Licensing Board Decision.)
It has also just come to our attention through newspaper accounts and a letter from Applicants' Counsel to the Appeal Board that one of the counties within the EPZ, Chatham County, withdrew from the Emergency Response Plan on March 27, 1986. (It is also possible that other counties will do so in the 7
future as they realistically assess the resources they will need to comply with the Plan.) We intend to raise.this as a new contention in the next week as it has a significant effect on the entire, Emergency Plan as changes must be made and any new plan must be field tested. (See section VI.
infra).
Thirdly, many issues' concerning Applicants' ability to safely manage the plant (see part II. above), plant safety, (such as specific construction defects and drug abuse during construction), and the entire emergency planning area have been appealed to the Appeal Board. It is likely that one, if not more, of these contentions will be remanded for further hearings or that the Licensing Board will be reversed on appeal.
There are several regulatory and policy reasons why a Licensing Board s
should not issue its Final Decision before hearing all matters which are raised: the first is the obvious one that the Board was established to hear all matters relevant to the safe operation of the nuclear plant and thus should not rem.ove itself before all is considered. The second is that the Board cannot make its final determinations of 10 C.F.R. 50.57 that the plant will be safely operated in compliance with NRC regulations until all matters are resolved. Thirdly, this Licensing Board, as opposed to a newly constituted one, is most familiar with the record of the case.
IV. Major Meltdown.
The NRC Chairman has recently informed a Congressional committee that there is a 12% chance of a major core-damage accident in an American reactor within the operating life of the Harris. Commissioner Asselstine, among others, has testified that there is a much higher likelihood of an accident beyond the design basis of the plant, at one of the United States reactors in the foreseeable future. This threat needs to be considered at the Harris 8
plant because of the potentially substantial health, environmental, and economic impact such a release would have on the surrounding population and property (the issue was not addressed as it was seen as a challenge to the regulations). .
Neither the Licensing Board not the Commission can fulfill the mandate of the Atomic Energy Act to put health and safety first unless such t!T accidents are then considered before operating licenses are granted. So far, the only consideration has come after the accident at Three Mile Island. It will be far too late, after the next accident, especially one of the magnitude of Chernobyl, to consider it then.
Mr. Sherwood Smith, Chairman / President /CEO of Carolina Power & Light, is reported on June 8,1986, by the NEWS & OBSERVER of Raleigh, NC to not believe the chance is present for any accident beyond design basis. If that is the company's attitude (e.g. "it can't happen here") then it will not take any steps to guard against it. This is the exact attitude that Soviet engineers and administrators said about Chernobyl before its accident in SOVIET LIFE magazine, February 1986, as follows:
Nikolai Fomin, the plant's chief engineer, believes that man and nature are completely safe. The huge reactor is housed in a concrete silo, and it has environmental protection systems. Even if the incredible should happen, the automatic control and safety systems would shut down the reactor in a matter of seconds. The plant has emergency core cooling systems and many other technological safety designs and systems.
The NRC was criticized by tt.e Rogovin Report on Three-Mile Island for taking the same attitude. The NRC cannot expect greater diligence among its licensees than it requires by rule or example.
Intervenors are likely to prevail on this issue as the Harris plant and -
its safety systems are not designed to cope with any major accident even though the chances are real.
9
l V. Ten-Mile Emergency Planning Zone A recent Appeal Board decision, after discussing both the generic problem with the ten-mile EPZ and the site-specific problems associated with any one reactor, allowed Intervenors to supplement the record with further i
evidence as to the necessity of adjusting the plume EPZ radius. LILCO (Shoreham, tinit 1), AIAB-832, NRC (March 26, 1986). We would urge the j Cosmaission to not only allow such additional evidence in that docket but to l increase the possibility for all plants of adjusting the planning area for evacuation to reflect population and transportation considerations.
! A ten-mile Emergency Planning Zone for evacuation is unrealistic in i
light of the Chernobyl accident in the Soviet tinion. It makes no difference of the exact mechanism of the accident and the resulting release, what is
! important that a major release, any significant percentage of the radioactive waste or fuel at the plant, can and will effect persons and property far beyond any artificial ten-mile radius around the plant. Both l Chernobyl and NUREG CR-2230 show thatM " health ef fects," including death and cancers, can result from the release of a significant amount of a nuclear core's radioactive inventory.
of special concern are localities, such as the densely populated areas l
primarily to the north and west of the Harris EPZ, just beyond the ten-mile limit. Intervenors had raised contentions below both challenging the ten-mile radius and requesting that cities, such as Cary and Raleigh, become l
part of the evacuation area because of their proximity to the plant and I evacuation corridors. The Licensing Board rejected Eddleman Contentions 57-l
! C (revised) and 57-C-2 as challenges to the rule in the Harris proceeding, l
although these contentions could, and should, have been narrowed to the
. parts of them (e.g. Including the adjacent densely populated areas in l
evacuation planning) that are admissible under ALAB-832.
l l
l 10 k
Intervenors are likely to prevail on this issue. Recently several of the localities just outside the ten-mile radius which have demanded that they become part of the Emergency Plan because of the potential impact of a major release on their citizens. Everyone that can be adversely af fected by a release of radiation should be protected; careful planning for evacuation now can save lives in the future.
V. digh6 time Notification its EPZ.
The matter of notification of residents of the plume EPZ is ripe for Commission review based on the considerations raised at the hearing on Eddleman Contention 57-C-3. Although the errors in the Licensing Board's Final Decision will be addressed in our Appeal we must emphasize here the extreme difficulty the Applicants will face in notifying people living in the EPZ.
In its study of the siren system around the Harris plant, FEMA concluded that the sirens supplemented by informal alerting (a questionable practice at best) would only be expected ta arouse and alert only 90% of the EPZ residents. The Licensing Board, after discussion among the parties, required tone alert radios within the first five miles, concluding that this would increase the total notified to 98%. Besides the obvious flaw that the residents within the five to ten-mile radius are somehow different than those within five miles, the record illustrates the need for several complimentary methods of notification, especially at night and during the winter.
The Licensing Board in its letters to the Commission of November 19, 1985, and May 16, 1986, also presented the serious generic difficulties in using sirens to notify residents in the EPZ.
11
e VI. Emergency Plan Full Participation Test.
The Applicants have not conducted a full-participation test of the Harris Emergency Response Plan within a year of their anticipated receiving of a full-power operating license as required by 10 C.F.R. 50 Appendix E.
Section IV.F.A. This is true because the last full-participation exercise was held last May at the Applicants' initiative (and then the completion date was again postponed) and additionally, because Chatham County (one of the counties in the EPZ) withdrew from the Plan on May 27, 1986. Any plan now presented would necessarily be different from the tested plan. To date, no state or other agency has taken over Chatham County's responsibilities, and no new plan has been prepared.
Applicants have requested an exemption from the 10 C.F.R. 50 Appendix E, Section IV.F.1 requirement although the timing for their exercise was their own choice. There is however no way they can cure the effect of Chatham County's withdrawal. Whatever plan would be in effect in the event of an emergency at the Harris plant has not had a full participation test.
Intervenors are likely to win on this issue because the facts are solidly for us as it's been over a year since the May 1985 exercise and the plan that was tested then no longer covers the entire EPZ now. The other counties are considering the possibility of withdrawing and it appears that public acceptance of inadequate emergency plans is at an all-time low, especially post-Chernobyl.
Conclusion.
We have made the above comments to assist the Commission in its immediate effectiveness review of the Harris plant. There are many other serious safety and design flaws we would urge the Commission to begin investigating; some of these we have raised as contentions below, others 12
were beyond our technical expertise. Many of the 400-plus contentions we raised were not admitted and others were summarily dismissed without hearing. We would urge you to review those issues we raised on appeal of the Partial Initial Decisions on environmental, management, and safety matters and the Final Decision on drug abuse and emergency planning.
Respectfully submitted, John Runkle Counsel for CCNC 307 Granville Road Chapel Hill, NC 27514 919/942-7935 VELLSGDPLEMA&
Wils Eddleman 818 Yancey Street Durham, NC 27701 919/688-0076 This is the 9th day of June, 1986.
13
June 9, 1986, ,,B t
UNITED STATES OF AMERICA g g NUCLEAR RECULATORY COMMISSION J[fy g g BEFORE THE ATONIC SAFETY AND LICENSING APPEAL OARD I9 -
i
/
In the Matter of: ) /<
) -
Carolina Power & Light Company and ) Docket No. 50-400 OL NC Eastern Municipal Power Agency )
)
(Shearon Harris Nuclear Power Plant) )
APPEAL FROM FINAL LICENSING BOARD DECISION Now come the Conservation Council of North Carolina (CCNC), Wells Eddleman' (pro se), and the Joint Intervenors with an appeal from the Final Licensing Board Decision, ( ASLBP No. 82-472-03 OL), dated April 28, 1986, in the above-captioned docket. CCNC and Mr. Eddleman are Intervenors in this docket while the Joint Intervenors consist of several of the Intervenor groups and individuals as proponents of certain consolidated contentions.
Mr. Eddleman and Counsel for CCNC are authorized to argue on behalf of the Joint Intervenors as appropriate in this appeal.
A Notice of Appeal pursuant to 10 C.F.R. 2.762 was duly served on May 7, 1986, with an additional three-day extension for filing this brief granted by the Appeal Board on June 5, 1986.
This Appeal is divided into three sections-I. Drug Abuse, II.
Nighttime Notification, III. Finality of Final Decision--with a conclusion.
At this time we do not intend to request the opportunity for oral argument pursuant. to 10 C.F.R. 2.763 although we may depending on the briefs and arguments of the other parties.
i hL 0 gggen
r I.
THE LICENSING BOARD ERRED IN ITS DETERMINATION THAT THE WIDESPREAD DRUG ABUSE AT THE HARRIS PLANT HAD NO EFFECT ON THE QUALITY OF CONSTRUCTION BY ITS ADOFTION OF FINDINGS OF FACT WHICH HAD NO FOUNDATION IN THE RECORD OR THAT WERE IRRELEVANT AND/OR MISLEADING.
A. The Licensing Board correctly presents the standards applicable to the use of drugs on a nuclear power plant construction site by stating that although there are no specific regulations, quality assurancs (QA) standards are relevant. Final Decision, Finding 6. 10 C.F.R. 50, Appendix B, requires that a QA program is designed to eliminate the possibility that construction defects of potential safety significance will go undetected and therefore uncorrected. Cleveland Electric Co., (Perry Nuclear Power Plant, Units 1 & 2), ALAB 802, 21 NRC 490, 4920493 (1985). The purpose of addressing drug abuse during construction is to prevent persons under the influence of drugs or otherwise unfit for duty from endangering public health or safety. (See proposed " fitness for duty" rule for persons at operating reactor. 74 Fed. Reg. 33,980 (1982)).
In setting out the issues involved in CCNC Contention WB-3 (Drug Abuse During Construction), the Licensing Board states "that an effective program to hold employee drug use to a minimum is an essential element in a nuclear construction licensee's QA program." The Board continuest
...it is not enough to show a paper record of compliance, withoot consideration of the extent of drug use that has actually been occurring on the site--particularly where, as here, some QA personnel have themselves been implicated in drug use. Evidence of widespread drug use would also evidence a deficient anti-drug program and could, in turn evidence serious deterioration in the QA program. Finding 10.
r We agree with the Board's delineation of the issues involved but disagree 2
with its con:1u:fon th:t drug cbuna io c:t "cid: spread" cr o c ricus pr:blem at the Harris plant.
The first error made by the Licensing Board is to rely on the prevalence of drugs in the American Society. Findings 11, 73, and 60. It is irrelevant to the fitness of workers at a nuclear plant that an estimated 5 to 12% of the American population have abused drugs, most of the society at large is not doing safety-related work at a nuclear plant. The Board must find, in this context, that "(t)here is reasonable assurance that (1) that the activities authorized by the operating license can be conducted without endangering the health and safety of the public..." 10 C.F.R. 50.57(a)(3). A finding that approximately the proportion of individuals at the construction site use drugs as in the population at large does not provide the necessary assurance.
In its Finding, the Licensing Board concluded that approximately 4.5%
of site employees during 1985 used drugs. Although it is apparent from the Final Decision that in arriving at this conclusion, the Board discounted much of the relevant testimony froe the record and this figure can be much higher (see Part B, infra.), the question remains whether even a 4.5% rate is low enough. This is further compounded by the Board's finding that for the years 1979 through 1983, the total number of employees terminated (28) was not "at all indicative of likely levels of drug use" (e.g. the program was ineffective during those years. Surely critical safety-related work was bet.g done in those years and apparently a substantial proportion was being done by workers who were abusing drugs.
As a matter of law and policy, the Intervenors urge the Appeal Board to reverse the Licensing Board in this matter as this widespread drug abuse is unacceptable. All the Applicants' testimony about their program, on paper, s
is irrelevant if drug abuse is itself so high that one questions the 3
effectiveness of the drug detection program and the QA programs ability to discover construction errors. (This latter is of special concern when QA inspectors themselves are abusing drugs.) -
B. The Licensing Board erred by basing its decision on findings of fact that were misleading in contravention of its duty under 10 C.F.R. 2.760(c). The Board discounted direct and uncont.adicted testimony by professional law enforcement personnel from the State Bureau of Investigation and the Wake County Sheriff's Department regarding the ef fect of metal detectors and dogs on prematurely terminating the undercover investigation (Findings 16, 27 - 31, 42, 43) and relied instead on CP&L employees, Joyner and King, who have as their responsibility controlling drugs on site. The Board also put weight on statements about the undercover investigation made by Mr. Bensinger who had no involvement with the investigation. Finding 25.
The Board attempts to sweep away the real conflicts between the Applicants and the undercover operatives by stating that the goals of the 4 two were different, the Applicants to get rid of drug users while the law enforcement personnel were trying to get arrests and convictions. Finding
- 32. This position is untenable in light of the results of the 1982 i
investigation where although 29 employees were reported to Applicants, only 8 were terminated during that year. Finding 56. An equally as logical a conclusion is that Applicants were covertly, if not overtly, attempting to terminate the drug investigation less it prove too successful and thus call even more into question the quality of the plant construction.
It appears that the Licensing Board weighed each of the statements or pieces of evidence which support the contention in isolation from the others. No doubt some of the statements were nondispositive or even 4
cr: fused, but t:kna co o wh:10, it eca chown c:nclusivaly th:t drug cbuse was widespread. For example, the Board gave almost no weight to the drug abuse observed by an employee who testified that although she was not trained in drug enforcement she had cooperated with the FBI in investigating drugs. On the other hand statements by CP&L management employees that they had not seen any drug abuse were apparently given much more weight. Ibid.,
Findings 75 - 78, pages 46 - 48.
A review of the entire record will show overwhelmingly that drug abuse on site was widespread and is much higher than the 4.5% found by the Board.
This higher level is also unacceptable and shows that even if the QA program and the drug detection are adequate on paper, this does not allow a finding that the plant can and will be operated safely. The Board found the NRC Staff's review of the drug detection program to be inconclusive because it only looks at the program on paper (Finding 79), yet the Board itself makes much of the same program (again on paper) when it was presented by the Applicants at the hearing.
C. The Licensing Board erred in making findings that were mere suppositions without any basis in the record. Finding 26, in which the Board goes outside the record and proposed findings, is in direct contradiction to the testimony of the undercover agents and their supervisors. Findings 23 and 24. In the same vein as stated in Part A supra, Finding 35 also characterizes the primary concern of CP&L was to prevent drugs from entering the site. It is unclear how the Board came to this conclusion or what was the basis for this finding.
Additionally, the Board ascribed to Agent Hensley the " thought" that he had no other group to go to on the day shift even after it heard uncontradicted testimony from Captain Lanier of the Sheriff's Department, 5
cith He clay's cancurr:nco, that it w:uld detw su2picien to infiltrato another group (of sellers and buyers) on the same shift. Findings 42 and
- 43. In Finding 130, the Board finds it probable that the drug use levels have peaked at the plant and that the Applicants' drug detection program "should have had a chilling effect on drug use at the Harris site." There is absolutely no basis in the record for this statement, either in the testimony or the proposed findings (not even the Applicants made any such bald assertion).
These unsupported findings help to lead the Licensing Board to the unsupported conclusion that drug abuse is not widespread and thus presents no safety problems. A review of the entire record shows conclusively that drug abuse by employees has been and will continue to be a major problem.
As such the plant should not be licensed.
II.
THE LICENSING BOARD ERRED IN ACCEPTING THE APPLICANTS' PLANS FOR ALERT AND NOTIFICATION UNDER NIGHTTIME CONDITIONS.
A. The primary alerting system is designated by NUREG-0654 as the system that shall accomplish alerting within 15 minutes for essentially 100%
of the population within the EPZ. Informal alerting is not even mentioned in NUREG-0654 Appendix 3 which deals with alerting so is clearly not within the scope of the alert-notification system required by NUREG-0654.
Moreover, backup alerting is clearly the topic in Appendix 3 Section B.2(c),
and thus cannot be used to comply with the requirements of B.2(a) as well as (b) for both an alert signal and the instructional message required within 15 minutes to essentially 100% of the population within ten miles, or to directly cover the population within five miles.
s 6
Thus the Lic nsing Board crr:d in including both infernal cicrting cad backup alerting in its decision approving the Applicants' plans for nighttime notification. Informal alerting has further logical flaws, such as the unlikely assumption that all calls will go to alert people within the EPZ (and not people outside), and that the telephone network will not overload.
B. The Licensing Board also erred in not considering siren failure rates and in not waiting for the official test results before issuing its decision. Siren failure clearly impacts the ability of people to hear and respond to the sirens. The Licensing Board ruled that this was not included in the contention, and it is not in so many words, but is illogical to write off those instances when the sirens do not work. Applicants' counsel, Ms. Ridgway, even remarked to the eff ect that Applicants believed that the complaints from people not hearing the sirens were in fact due to a siren failure but that they had no way of knowing if the siren failed.
10 C.F.R. 50.47(a) requires reasonable assurance that adequate protective actions "can and will" be taken. Obviously such assurance would be lacking if people were not alerted by the sirens due to their failure just as they would by system design flaws. In light of the information available in the record indicating siren failures, the Board was obligated to allow inquiry into the effect of siren failure on alerting (a logical nexus to the contention as framed and revised). Because of the lack of an official stren test, the Licensing Board acted arbitrarily and capriciously in approving an untested alerting system on the assumption that its sirens would work 100% of the time. (Additionally, there has been no tone alert radio test done in the EPZ. The annual test is the only test program for 7
the rO Civaro cnd the rcdito were n:t t ted becru33 they wera c:t 12 picce.
Tr. 10813, 10799.)
Without any test of the entire system, approval of the merits of the system was merely a hypothetical exercise. This is especially erroneous because the tests would soon be available and should have been used to guide the Board's decision. The Board's conclusions in its Final Decision are in somewhat contradiction with the concerns the Board raised in both its November 19, 1985, and March 16, 1986, letters to the Commission.
C. The Board erred in neglecting the indetectability of failures in tone alert radios and in accepting witness Keast as credible. Both of these arguments are adequately covered in Eddleman proposed finding, dated March 19, 1986, so will not be repeated here. (See Tr. 10708 and 10791 - 93 re.
failures and particularly proposed finding 9 on Keast's credibility.)
D. The Board erred in not taking seriously the many past failures of tone-alert radios in teste. During the hearing, Applicants admitted that the largest failure rate showed up in the third annual test of similar radios by Georgia Power. Tr. 10807.
E. The Licensing Board erred in its cavalier treatment of Intervenor's proposed findings stating that there is a lack of analysis of the record (frequently cited in the very findings criticized) to document noncompliance (also cited). Final Decision, Finding 84. This is both untrue and categorically unfair.
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III.
THE LICENSING BOARD ERRED IN RENDERING ITS FINAL DECISION BEFORE ALL MATTERS IN THIS DOCKET WERE PROPERLY ADDRESSED.
The Licensing Board cannot make the necessary findings that the plant will be operated safely and in a manner that complies with NRC regulations until it has addressed all of the issues raised by Intervenors. 10 C.F.R. 50.57(a). The Final Decision at footnote 50, page 185, stated that there is one unresolved matter dealing with incidents of harassment, with a Memorandum and Order, issued May 22, 1986, on these matters. Mr. Eddleman, in a letter to the Licensing Board, dated June 6,1986, has availed himself of the opportunity to pursue complaints of harassment. Another matter, a late-filed contention (WB-4, alleging the falsification of dose records) was filed on April 22, 1986, before the issuance of the Final Decision. This too has not been acted upon.
The Licensing Board cannot make it required findings concerning the Applicants' ability to follow regulations and protect public health unless it hears all matters brought before it. Both of these contentions cast serious doubt about the Applicants' protection of their workers and their ability to carry out NRC regulations needed to protect the public.
In addition to the unresolved contentions, there are considerable matters which have been appealed from the earlier Partial Initial Decisions on this matter only the first of which has been acted upon by the Appeal Board. LBP-85-5, 21 NRC 410 (1985); LBP-82-28, 22 NRC 232 (1985); LBP 49, 22 NRC 899 (1985). The is a real possibility that the Licensing Board will be reversed or have matters remanded so cannot make its Final Decision with any finality.
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.. .. CONCLUSION Becturo cf tha many crrors, both fcetuni cad 1sgel, committcd by th2 Licensing Board in reaching its Final Decision, it cannot make the findings required by the regulations in 10 C.F.R. 50.57 in granting an operating license. As such the Harris plant should not be licensed.
Respectfully submitted, ohn Runkle General Counssi for CCNC 307 Cranville Road Chapel Hill, NC 27514 919/942-7935 Vlft&ddlenhf)
Wells Eddleman 812 Yancey Street Durham, NC 27701 919/688-0076 This is the 9th day of June, 1986.
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