ML20197K166

Reply in Opposition to Proposed Findings of Fact & Conclusions of Law Submitted by Wf Lawless & Hm Deutsch. Certificate of Svc Encl

ML20197K166
Person / Time
Site:	Vogtle
Issue date:	05/15/1986
From:	Churchill P GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
References
CON-#286-200 OL, NUDOCS 8605200276
Download: ML20197K166 (49)

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) 5, 1986 UNITED STATES OF AMERIC NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

GEORGIA POWER COMPANY, et al. ) Docket Nos. 50-424 (OL)

) 50-425 (OL)

(Vogtle Electric Generating Plant, )

, Units 1 and 2) )

APPLICANTS' PROPOSED FINDINGS IN REPLY TO PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW SUBMITTED BY WILLIAM F. LAWLESS AND HOWARD M. DEUTSCH .

I. Introduction On March 14, 1986, the Atomic Safety and Licensing Board directed the parties to file proposed findings of fact and con-clusions of law on the technical and environmental issues.that were recently litigated in this proceeding. Tr. 824. See also Tr. 708. A party who fails to follow such directive is in de-fault. 10 C.F.R. $ 2.754(b); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 A.E.C. 331, 332-33 (1973).

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See Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-709, 17 N.R.C. 17, 23 (1983). Georgians Against Nuclear Energy (GANE), the only remaining intervenor in this proceeding, did not file proposed findings.

Proposed findings pertaining to contentions 7 and 10.5 were filed by William F. Lawless 1/ and Howard M. Deutsch,2/

neither of whom is a duly authorized representative o'f GANE.3/

See 10 C.F.R. 5 2.713(b). Both were simply witnesses in this proceeding. The proposed findings filed by Mr. Lawless and Dr.

Deutsch are improper submittals by persons who are not parties to the proceeding. See 10 C.F.R. 5 2.754(a), which only per-mits parties to file proposed findings. These improper sub-mittals should be disregarded in their entirety or stricken.

See Tennessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-409, 5 N.R.C. 1391, 1396-97 (1977).

1/ "Intervenors' Proposed Findings of Fact and Conclusion of Law on Technical and Environmental Contentions" (April 23, 1986). This document was unsigned.

2/ " Proposed Findings of Fact and Conclusion of Law" (April 23, 1986).

3/ Mr. Lawless is not a member of GANE. Tr. 503 (Lawless).

Dr.'Deutsch is a member of GANE, but holds no position with that organization. Deposition of Howaru M. Deutsch (March 25, 1985) at 16. There is no indication that Dr. Deutsch has been authorized to act as GANE's representative. Compare 10 C.F.R. 5 2.713(b). Dr. Deutsch is a Director of Campaign for a Pros-perous Georgia (CPG), but CPG withdrew as a party in this pro-ceeding. Deposition of Howard M. Deutsch (March 25, 1985) at 14.

9 The impropriety of these submittals notwithstanding, Applicants submit the following reply findings.4/ As demon-strated below, Mr. Lawless' proposed findings on Contention 7 mischaracterize testimony, distort the record, make assertions not supported by evidence, and are otherwise unentitled to con-sideration. The few sentences profferred by Dr. Deutsch regarding contention 10.5 are vague, irrelevant, and unfounded. 5 Neither Mr. Lawless' proposed findings nor Dr. Deutsch's pro-posed findings address Contention 10.1.

II. Reply Findings on Contention 7

1. Mr. Lawless commences his proposed findings on Contention 7 by misdefining the issues before the Board. In his fourth proposed finding,5/ Mr. Lawless states that

,:x Contention 7 addresses "whether Applicants have assured that releases of radioactive contamination or radioactively 4/ For the most part, Applicants' reply findings address Mr.

Lawless' and Mr. Deutsch's proposed findings in order. How-ever, there are instances where Applicants have consolidated their discussion of repetitive arguments raised at different points in Mr. Lawless' submittal. For this reason and the Board's convenience, Attachment 1 hereto provides a cross index correlating proposed and reply findings.on Contention 7.

5/ Hereafter, Mr. Lawless' proposed findings will be cited as

" Lawless PF ." Mr. Lawless has two proposed findings num-bered 42; these will be cited as " Lawless PF"42(1st)" and " Law-less PF 42(2nd)." Applicants' proposed" findings and reply findings will be cited as " App. PF "spectively.

and " App. RF " re-contaminated water onsite would not result in contamination of the aquifers underlying the VEGP site, particularly the impor-tant Tuscaloosa aquifer, already contaminated from mixed wastes (radioactive and chemical) by the Department of Energy (DOE) underneath its Savannah River Plant (SRP) facility located northward and adjacent to the VEGP site." Lawless PF 4.

Contention 7, however, is limited to the consequences of an

" accidental spill of radioactit.e water." LBP-84-35, 20 N.R.C.

887, 900 (1984). It does not address releases of radioactive contamination in general. Furthermore, the contention has

, nothing to do with whether or not the Cretaceous (Tuscaloosa) aquifer has been contaminated at SRP; chemical contamination is beyond the scope of the contention; and in point of fact there is no record of the Cretaceous aquifer being radiologically contaminated at SRP. ASLB Memorandum and Order (Nov. 12, 1985) at 16-21.

2. In Lawless PF 10, Mr. Lawless correctly observes that after summary disposition, Contention 7 was limited to five issues: (1) the adequacy of geological / hydrological explora-tion; (2) data on marl thickness and permeability; (3) data on marl continuity; (4) direction of groundwater flow; and (5) groundwater travel time. Mr. Lawless, however, then asserts that the Board allowed three further issues at the hearing:

inferential treatment of hydrological data, settlement of the marl, and surface runoff. This assertion is inaccurate. Mr.

Lawless is referring to topics stated in the summary to his testimony, and not to the particular allegations in the body of his testimony to which the summary statements were clearly limited. Moreover, the particular allegations were not admit-ted as new issues, but were deemed by the Board to be relevant to one or more of the issues the Board had already designated for hearing. .Mr. Lawless' thesis, that three new, unbounded issues were admitted during the hearing, would clearly violate Applicants' due process rights.

3. The need for a statistical treatment of hydrological data as a general issue was considered and decided in Appli-cants' favor during summary disposition. ASLB Memorandum and Order (Nov. 12, 1985) at 10. At the hearinty, the Board only permitted statistical questions pertaining to particular values of parameters given in Applicants' testimony. Tr. 276-77 (Judge Paris). With respect to Mr. Lawless' admitted testi-mony, the only specific statistical issue raised was whether a proper value of hydraulic conductivity was assigned to the backfill material. Lawless, ff. Tr. 720, at 6. This issue is addressed at App. RF 17-18, infra.

4. The effect of settlement of the marl was similarly considered and resolved in Applicants' favor by the Board dur-ing summary disposition. ASLB Memorandum and Order (Nov. 12, 1985) at 10-11. At the hearing, the Board permitted only two narrow lines of questioning pertaining to settlement: 1) whether grouted exploratory holes might be " punched" through the marl, providing a pathway for groundwater flow (a matter colorably related to the continuity of the marl); and 2) wheth-er settlement may have changed the hydrologic coefficients of the backfill (a matter colorably related to groundwater travel time). These issues are addressed at App. RF 58-72, infra.

5. Mr. Lawless' testimony on surface runoff presumably also pertained to groundwater travel time. That testimony, however, was vague and of no probative value. Mr. Lawless testified that the " improved surface runoff and apparently sig-nificantly different K's between the power block and sur-rounding area subsurface soils may be a cause of some concern."

Lawless, ff. Tr. 720, at 3 (emphasis added). The Board let this abstruse statement stand because it was unsure what Mr.

Lawless was speaking about. Tr. 716 (Judge Margulies). During cross-examination, Mr. Lawless indicated that his concern was that radionuclides from a spill might come up fissures, get on the surface, and run off. However, he did not state that this would happen, but only that it was "a consideration. " Tr. 742 (Lawless). Moreover, he testified that he was aware of no such fissures in the backfill material. Tr. 743 (Lawless). See App. RF 52, infra.

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A. Adequacy of Geological / Hydrological Exploration

6. With respect to the adequacy of geological /

hydrological exploration, Mr. Lawless speculates that "Appli-cants appear to have treated the protection of the groundwater as a secondary consideration." Lawless PF 11. Mr. Lawless cites. Crosby et al., ff. Tr. 253, Figure 4, Tr. 271-73, and Tr. 281-80 (sic), but these citations do not support his specu-lation. At the pages cited, Applicants' witnesses stated only that exploratory holes were drilled for a multitude of pur-poses. Applicants' witnesses did not suggest that protection of the groundwater was secondary or inadequate. To the con-trary, they testified that the exploration was more than ade-quate. Tr. 273-74 (Papadopulos); Tr. 663-64 (Farrell). See App. PF 40,

7. Mr. Lawless asserts that Applicants' conclusion that the number of exploratory holes drilled is sufficient is " based on speculation moderated by experience . . . ." Lawless PF 12, citing Tr. 274. At transcript page 274, Dr. Papadopulos testified that geologic processes are processes that deposit sediments in a certain, uniform manner. Based on this fact and his considerable professional experience, Dr. Papadopulos con-cluded that the large number of exploratory holes at VEGP wks more than adequate. Tr. 274 (Papadopulos). This conclusion is expert testimony, not speculation.g/ Moreover, the same s/ Mr. Lawless' assertion is ironic. The testimony of Appli-cants' witnesses, who are well-qualified, competent geologists (Continued Next Page) conclusion was reached independently by the NRC Staff's wit-ness, Dr. Heller. Heller et al., ff. Tr. 764, at 11,

8. Mr. Lawless next attempts to attack the qualification of Applicants' expert witnesses. Mr. Lawless insinuates that

" Applicants' witnesses' experience seems at times to confound the uncertainty in the findings presented by Applicants . . . .

Part of that confounding may be due to the admitted lack of qualifications in nuclear engineering matters by Applicants' witnesses . . . ." Lawless PF 13. The insinuation is base-less. Since the issues designated by the Board for adjudica-

, tion related to hydrology and geology, Applicants presented a panel of hydrologists and geologists familiar with Plant Vogtle as their witnesses. Nuclear engineering issues pertaining to the possibility or content of an accidental spill were resolved in Applicants' favor at summary disposition, on the basis of the averments of qualified nuclear and civil engineers. See Affidavit of D. S. Jagannathan, Stephen J. Cereghino, and Mark L. Mayer (July 12, 1985), accompanying Applicants' Motion for Summary Disposition of Joint Intervenors' Contention 7 (Ground-water) (July 15, 1985); A3LB Memorandum and Order (Nov. 12, 1985) at 30 (13) .

(Continued) and hydrogeologists with specific, personal knowledge of the VEGP site,. contrasts markedly with Mr. Lawless' lack of knowl-edge concerning geology, hydrology, or the VEGP site. See App.

PF 66-67.

9. Mr. Lawless also attempts to manufacture several inconsistencies to discredit Applicants' witnesses. At Lawless PF 14, he provides an incomplete quotation that " core holes provide accurate definition . . . . " and contrasts it with what a

he describes as a "later attempt by Applicants to discredit I core samples used to measure permeability." The full sentence

.; in Applicants' testimony states, "The data from these [12 ob-servation wells installed along two lines southeast of the

\

plant) and other core holes provide accurate definition of the depth of geologic units, lithology, and aquifers from the plant to nineteen miles southeast of the plant, and evidence the lat-eral extent of the marl in that direction." Crosby, ff. Tr.

253, at 7 (emphasis added).2/ Applicants also testified that in-situ permeability tests in core holes were more reliable t

than laboratory permeability tests of samples -- a fact con-firmed by the NRC Staff's witness, Mr. Gonzales. Tr. 452-53 (Papadopulos); Tr. 769 (Gonzales). There is no inconsistency

, in these statements.

10. Mr. Lawless also attempts to create confusion by

. jumbling different references to the characteristics of the l

marl. Lawless PF 15. Mr. Lawless first mischaracterizes I

' 2/ Lithology refers to the structure and composition of a rock formation, as determined by the unaided eye or with little magnification. Webster's New World Dictionary 826 (2d Col. ed.

, 1982).

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testimony from transcript page 283; Mr. Lawless asserts that Applicants stated that " permeability was based on field explo-ration that did not include a south by easterly direction from the power block area." Applicants, on the other hand, testified that there were about 25 holes exploring the marl south of the power block, and that there are holes southeast of the power block in which packer permeability tests were con-ducted. Tr. 267, 281 (Crosby). Contrary to Mr. Lawless' char-acterization, the testimony on page 283 states that further testing to south was unnecessary since the exploration that was

, done to south indicates that the marl there is similar to the marl in the locations where in-situ permeability testing had been performed. Tr. 282-83 (Farrell). The consistency of the marl thus permits the extrapolation of permeability data. Tr.

470-71, 663-64 (Farrell).

11. Mr. Lawless then suggests that the marl cannot be characterized as both " consistent" and " anisotropic." Lawless PF 15. He does not explain why not. Anisotropy means that some property varies with the direction in which it is mea-sured. Webster's New World Dictionary 55 (2nd Col. ed. 1982).

Applicants testified that the marl is composed of layers with different permeabilities. Hence, the permeability of the marl changes with depth, and the marl is thus anisotropic. Crosby et al., ff. Tr. 253, at 19-20. This vertical variation in per-meability does not prevent the marl from being a unit that is e

laterally continuous, tight, thick, and consistent in its char-acteristics (including anisotropy). See Tr. 281 (Crosby); Tr.

282 (Farrell); Tr. 470-(Farrell); Tr. 663-64 (Farrell).

12. In Lawless PF 15, Mr. Lawless takes out of context Dr. Papadopulos' statement that "the number of holes is more than adequate to define the existence of the marl in the direc-tion of groundwater flow" as a suggestion that in other direc-tions the marl's v.efinition may be less than adequate. Lawless PF 15, citing Tr. 273. Dr. Papadopulos was clearly, pointing out that there is an abundance of data "in the area of concern" (in fact the only area that is really relevant) and was not disparaging the exploration of the site to the south. See Tr. 273 (Papadopulos).

13. Lawless PF 16 contains the same sort of obfuscation.

Mr. Lawless asserts that a statement that groundwater would not flow to the southwest (Tr. 591) contradicts the meaning of a groundwater divide. Mr. Lawless states the obvious, that groundwater flows away from a divide on both sides of a divide.

Lawless PF 16. The testimony to which Mr. Lawless refers, how-ever, was only discussing groundwater flow in the power-block area, which is north of the groundwater divide. As Dr.

Papadopulos stated, "The flow is primarily north from the power block." Tr. 591 (emphasis added).

14. In Lawless PF 17, Mr. Lawless alleges for the first time that " penetration tests conducted by VEGP in the summer of

._. . - . . - - - . -. - _ _ _ ~ -

1985 for further geotechnical verification work may unwittingly have added additional pathways into the marl." His citations

-- Crosby et al., ff. Tr. 253, at 7-8, and Lawless, ff. Tr. 720 J at 6 -- do not support this unfounded speculation. Mr. Law-less' testimony does not mention penetration testing; and

Applicants' testimony stated that the geotechnical verification work consisted inter alia of " conducting standard penetration tests of the backfill", not of the marl. Crosby et al.,

ff. Tr. 253, at 7. The evidence in this proceeding demon-strates that there are no significant pathways through the marl. See App. RF 59-62 infra. See also ASLB Memorandum and Order (Nov. 12, 1985) at 10-11, 21-23. .

15. Similarly, Lawless PF 18 raises a new, unfounded issue. Mr. Lawless asserts that " Applicants failed to account for cation exchange saturation." There is no supporting testi-many. Instead, Mr. Lawless improperly refers to extra-record material; he cites "Ref. 2," which is identified at the end of his proposed findings. The Board may not base a decision on 4

! material which has not been introduced into evidence, and must therefore ignore this new allegation. Public Service Electric

. .. +

and_ Gas Co. (Salem Nuclear Generating Station, Unit 1), ALAB-j 650, 14 N.R.C. 43, 49 (1981); Tennessee Valey Authority (llartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-463,

7 N.R.C. 341, 352 (1978); Louisiana Power and Light Co.

{

(Waterford Steam Electric Station, Unit 3), LBP-82-100, 16 1

N.R.C. 1550, 1574 n.24 (1982).8/

16. In Lawless PF 19, Mr. Lawless attempts to disparage the 1220 ft/yr permeability which Applicants assigned to the backfill on the basis of slug tests. First, he states that the test data was used to calculate a "new, much slower" permeabil-ity. Lawless PF 19. Although he does not explain what he means, Mr. Lawless is apparently referring to the somewhat higher permeability value used in the NRC Staff's SER analysis, which was presented in Applicants' motion for summary disposi-tion. As Applicants' testimony makes clear, before .the slug tests were performed, Applicants had only early estimates of the permeability of the backfill based on disturbed and grab samples of materials enveloping the backfill's characteristics.

Crosby et al., ff. Tr. 253, at 9. The slug tests subsequently provided in-situ measurements of the actual backfill material.

Id.

8/ Mr. Lawless' reference 2, "AEC-0511," is a chapter of the old AEC. manual. This reference provides no support for Mr.

Lawless' assertion in Lawless PF 18. See U.S. AEC, "Radioac-tive Waste Management," AEC Manual, Chapter 0511, TN-0300-23 (Sept. 1973). Applicants would also note that had this matter been raised at hearing, Applicants' witnesses could have testified that the number of ions susceptible to adsorption in a worst case spill at VEGP is only a minute fraction of the adsorptive capacity of the portion of the backfil through which the spill would migrate. This is a good illustration why an adjudicatory decision must be confined to litigated issues and must be based only on facts in evidence.

17. Mr. Lawless states that "the slug test (sic) per-formed by Applicants resulted in a hydraulic conductivity K of 2.475 ft/ day with a standard deviation of 0.826, in excess of the 20% criteria cited by Bouwer." Lawless PF 19, citing "ref-erence" 4 to Mr. Lawless' proposed findings. Every aspect of this statement is unsupported and misleading. There is no testimony in the record that a hydraulic conductivity of 2.475 ft/ day (approximatly 900 ft/yr) was determined, nor any testi-mony providing a standard deviation. The geometric mean value of hydraulic conductivity determined from these tests is 850 ft/ year (Tr. 655),9/ but Applicants conservatively chose to assign to the backfill the maximum measured permeability --

1220 ft/yr. Tr. 655-56 (Papadopulos); Crosby 3t al., ff. Tr.

253, at 25. The confidence level in this value (1220 ft/yr) is 84 percent. Tr. 654-55 (Papadopulos).

18. Furthern ere, Mr. Lawless' reference to what he char-acterized as Bouwe r's "20% criteria" is unsupported by evidence and inaccurate. She particular statement in Bouwer's text was quoted by Lawless while he was cross-examining Applicants' wit-nesses, but was not read into evidence. See Tr. 393. Dr.

Papadopulos then .estified that Bouwer's statement merely 9/ If Mr. Lawle in has calculated an arithmetic mean, his ap-proach is in erro r. The geometric mean should be used to de-termine the averayo permeability of a heterogeneous system.

Tr. 396, 655 (Papsdopulos). .

pointed out that there will be variations in permeability even in uniform materials. Tr. 393 95 (Papadopulos). He testified that there is no rule as to what is an acceptable standard de-viation, since natural materials have large variations in per-meability. These natural variations are taken into account by the methodology used to determine the average permeability. In the case where a system is heterogeneous and unlayered, the geometric mean of the permeability measurements is used to de-termine the average permeability of the system. Tr. 395-96

, (Papadopulos).

19. In Lawless PF 20, Mr. Lawless notes that one of the unnamed branches of Beaverdam Creek is "much closer" to the power-block area than other streams. Applicants' witness, Mr.

Farrell, estimated that the head of the creek is about 1500-2000 feet from the power-block area. Tr. 664 (Farrell). Fig-l ure 15 of Applicants' testimony shows the precise location of the head of the tributary -- about 2500 feet from the power-block area. Crosby et al., ff. Tr. 253, at Figure 15. Mr.

Lawless adds that this creek is "down gradient from VEGP." As Applicants' testimony shows, both the topography and water table first rise and then fall (i.e. there is a ridge) between the power-block area (the southern edge of the backfill) and the creek. See id., Figure 10. See also id., Figures 7 and 9, (geologic section A-A, which shows the topography between the power-block area and the creek).

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20. Mr. Lawless correctly observes that a groundwater di-vide [ reflecting the ridge] separates the power-block area from the creek. Lawless PF 20. He then attempts to suggest that groundwater might flow up-gradient and cross the divide,10/

"particularly with a release head or concentrazion gradient."

Id. There is no support for this suggestion is the record.

The testimony in this proceeding was unanimous and uncontradicted -- that groundwater will not flow up-gradient and will not cross a divide. Tr. 403 (Farrell); Tr. 486 (Papadopulos); Tr. 604 (Farrell); Heller et al., ff. Tr. 764, at 19; Tr. 774 (Gonzales).

21. In Lawless PF 21, Mr. Lawicss states that the VEGP groundwater well drilling and characterization program seemed haphazard early on. Again, there is no support in the record for this statement. The expert opinion expressed in this pro-waeding was that the exploration was more than adequate.

Crosby et al., ff. Tr. 253, at 36; Tr. 273-74 (Papadopulos);

Heller et al., ff. Tr. 764, at 4, 6, 11.

10/ The divide is approximately 700 feet from the auxiliary building where the most significant sources of a potential spill are located, and over 100 yards from any known source of contaminants. Tr. 401 (Crosby); Tr. 665 (Farrell, West, .

Papadopulos).

B. Data on Marl Thickness and Permeability

22. In Mr. Lawless' proposed findings 23, 30, and 31, Mr.

Lawless attacks Applicants' determination of the permeability of the marl. Mr. Lawless focuses his attack on the method Applicants used to calculate the mean value of laboratory per-meability measurements of the marl. See Lawless PF 2,3, 30, and

31. Mr. Lawless' attack, however, is based on extra-record ma-terial - " reference 4" to his proposed findings, a text by Bouwer. For this reason alone, his proposed findings should be ,

disregarded. See cases cited in App. RF 15 supra.

23. Aside from their improper reliance on extra-record material, Mr. Lawless' findings should be rejected for two other reasons. First, the findings are irrelevant, because Mr.

Lawless has ignored and apparently does not dispute the much more numerous and more accurate in-situ permeability measure-

. ments of the marl. Ninety-five in-situ permeability tests of the marl were performed, almost all of which resulted in no measurable water intake. Crosby et al., ff. Tr. 253, at 13-14; Tr. 595 (Farrell). For these tests, no intake of water indi-cates a permeability of less than 10 ~7 cm/sec. Tr. 451 (Papadopulos); Tr. 595 (Farrell).

24. Mr. Lawless attempts to suggest that Applicants did not rely on the in-situ data. He states, "At first, Applicants used the lab permeability data to support their belief that the marl permeability was 1E-7 cm/s [ citing Crosby et al., ff. Tr.

253, at 20], but in an apparent later contradiction, Applicants then stated that the lab data used to calculate the marl perme-ability was to be disregarded . . . ." Lawless PF 23. Mr.

Lawless' citation does not support this claim. At page 20 of Applicants' testimony, Applicants did not adopt the mean value i

of the laboratory measurements for use in their analysis. See Crosby et al., ff. Tr. 253, at 20. Instead, based on the in-situ measurements, they used a value of 10 -7 cm/sec as a

, conservative upper bound. Id.; Tr. 473, 475 (Papadopulos); Tr.

480-81 (Farrell); Tr. 593, 595 (Farrell).11/

25. The in-situ measurements are more accurate than the laboratory measurements, which tend to overestimate permeabili-ty. Tr. 451-53 (Papadopulos); Tr. 769 (Gonzales). The labora-tory samples are small -- a few inches long and a few inches in diameter -- and are therefore not representative. Tr. 451-452

} (Papadopulos); Tr. 769 (Gonzales). The samples are necessary disturbed when extracted. Tr. 452 (Papadopulos); Tr. 769 (Gonzales). Decompression as the sample is brought to the surface causes the sample to fracture, increasing its permea-bility. Tr. 452 (Papadopulos). During laboratory testing, the sample was recompressed only to 4 psi, corresponding to a depth 11/ One should also note that 10 -7 cm/sec was the value used by Applicants and the NRC Staff during summary disposi.-

tion, when laboratory values did not yet exist.

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of 4 feet below land surface, instead of to a pressure corre-sponding to 90 to 100 feet below land surface (the depth from which the samples were taken). Id. This would also cause the laboratory test to yield a larger permeability value. Id.

Finally, there is potential leakage in the test instruments (permeameters). Id. at 452-53.

26. Furthermore, in-situ permeability tests were per-formed in the core holes from which laboratory samples were ex-tracted. The entire thickness of the marl was tested in inter-vals. No water intakes were observed, which indicates permeabilities of less than 10 ~7 cm/sec. Crosby et al.,

ff. Tr. 253, at 14; Tr. 451 (Papadopulos); Tr. 595 (Farrell).

These in-situ tests demonstrate that the laboratory measure-ments of the permeability of samples from the same core holes are inaccurately high.

27. Nonetheless, Applicants' witnesses evaluated all the data, including the less accurate laboratory measurements.

They calculated the harmonic mean of the laboratory permeabili-ty data as an illustration relating to all the testing that was done, and provided it as evidence that the 10-7 cm/sec upper bound determined by in-situ measurements was conserva-tive. Tr. 594 (Farrell). The harmonic mean of the laboratory

-measurements is smaller than the 10 ~7 cm/sec conservative, upper-bound value chosen by Applicants. See Crosby et al., ff.

Tr. 253, at 20. l

28. The second-reason why Mr. Lawless' proposed findings

on marl permeability should be rejected (aside from their im-

proper references to Bouwer's text, which is extra-record mate-rial) is that there is ample testimony in the record de-monstrating that Mr. Lawless is misinterpreting Bouwer's text and understands neither groundwater hydrology nor Applicants' analysis.

29. In Lawless PF 23, Mr. Lawless states that " Applicants appeared confused on the significance of their use of the har-monic mean, stating at the outset that their data was skewed to 2

, the high end (IE-9) of the distribution of their permeability data, when just the opposite was the case." Lawless PF 23.

The parenthetical "1E-9" is Mr. Lawless' addition, not Appli-cants' testimony. "1E-9" is a low number, not a high number.

Mr. Lawless is apparently confused by the negative exponent.

30. In Lawless PF 23, Mr. Lawless suggests that Appli-cants should have used the arithmetic mean of the laboratory measurements rather than the harmonic mean. Mr. Lawless as-serts that Bouwer states that the harmonic mean is to be used in a system with predominant flow in the vertical direction, and he claims that Applicants provided no data to show that flow through the marl is primarily vertical. Lawless PF 23.

See also Lawless PF 31. But Dr. Papadopulos explained that what Bouwer means is that when one is considering flow in the vertical direction across a layered system, one should use the

harmonic mean. Tr. 588 (Papadopulos). See also Tr. 396 (Papadopulos). This does not mean that all the flow has to go in the vertical direction. Tr. 588 (Papadopulos). Rather, the harmonic mean applies when one is considering the vertical com-ponent of flow across a layered system. Id. at 588-89 (Papadopulos).

31. Incidentally, Applicants' testimony did provide data showing that what little flow there is in the marl is primarily vertical. Figure 14 of Applicants' testimony shows both the change in head with depth across 55-65 feet of marl, and the change in head between well clusters A and B (approximately 1500 feet apart at opposite corners of the power-block area).

Crosby et al., ff. Tr. 253, Figure 14. See also id.,

Figure 17. It is apparent from this data that the vertical component of the hydraulic gradient is much greater than the horizontal component. Applicants' witnesses also testified that flow in the marl is mainly vertical. Tr. 591 (Papadopulos). In this respect, Mr. Lawless' assertion at Law-less PF 31 that Applicants attested that flow is primarily ho-rizontal is misleading and deceptive. At the page Mr. Lawless cites (Tr. 587), Applicants' witness, Mr. Farrell, was refer-ring to " horizontal flow within the water table aquifer," not to flow in the marl. Tr. 587 (Farrell). See also Tr. 590-91 (Farrell); Tr. 591 (Papadopulos); Tr. 657 (Papadopulos).

32. Mr. Lawless also states that Applicants provided no data to show that the marl should be treated as a layered sys-tem. Lawless PF 23. He adds, "In sharp contrast to the testi-mony of Applicants, Bouwer presents the use of the harmonic mean under Anisotropy, where anisotropy is the rule for flow in alluvium . . . ." Lawless PF 30. Apparently, Mr. Lawless does not understand what anisotropy means. See App. RF 1k' supra.

The fact that the marl is layered is evidenced by the variance in head decline with depth in the marl. Crosby et al., ff. Tr.

253, at 19-20. Data showing this variance is presented in Fig-ure 14 of Applicants' testimony. Id., Figure 14; Tr. 468-69 (Farrell). Applicants' witnesses also described the extensive exploration of the marl they had conducted, including coring and logging, which provides a sound basis for their testimony that the marl is layered.12/ Crosby et al., ff. Tr. 253, at 8, 9, 13-18, 20. Since the marl is layered, it is anisotropic.

33. That the marl is not alluvium has no bearing to whether or not the harmonic mean should be used. All that mat-ters is that one is determining the effective permeability across a layered system. Tr. 585 (Farrell). The same funda-mental physical relationship applies when calculating heat flow through layers of material with differing thermal 12/ This data was avilable to the intervenors and to the pub-lic. See VEGP PSAR, App 2C; VEGP Groundwater Supplement (March 1985); VEGP Geotechnical Verification Work Report (Aug. 1985).

conductivities. Tr. 588, 595 (Papadopulos). Perhaps Mr. Lawless is implying that layering and hence anisotropy occur only in alluvium. The implication not only is unsupported by evidence, but also further indicates l Mr. Lawless' lack of understanding of geologic processes.

i i

34. With respect to the harmonic mean of the laboratory measurements calculated by Applicants, Mr. Lawless alleges that i

the standard deviation of the data exceeds 20% of mean, and he cites his " reference 4" presumably to suggest that this is unacceptable. Lawless PF 23. The suggestion is incorrect.

l Dr. Papadopulos testified in this proceeding that there is no I rule as to what is an acceptable standard deviation, since nat-

/

l ural materials have large variations in permeability. These natural variations are taken into account by_the methodology used to determine the average permeability. In the case where j one is considering flow across a layered system, one uses the j harmonic mean to take into account the effect of these real

! variations. Tr. 395-96 (Papadopulos). For example,.if one were evaluating flow across a sand layer and a clay layer, a 3 statistical analysis would be meaningless. The permeabilities i

of the layers would vary by orders of maanitude, and there would be a very high standard deviation, whereas the vertical J

! system of the flow would be controlled by the harmonic mean of

< the permeabilities. Tr. 478 (Papadopulos). This fact simply 1

means that layers of very low conductivit.y will control the i

I i

r a

effective permeability of the overall system. Tr. 595 (Papadopulos).

35. Mr. Lawless alleges there was no data presented by Applicants that the laboratory samples were representative.

Lawless PF 30. Applicants, however, testified that the samples were " typical" and were selected for the purpose of examining the various material types within the marl. Crosby et al., ff.

Tr. 253, at 14. Mr. Lawless never challenged this premise at hearing. During cross-examination, he asked Applicants no questions about whether the samples were representative, and he

, offered no testimony on this matter himself (although all of Applicants' data, including drilling log sheets, were available to intervenors and the public). The particular statements in Bouwer's text which Mr. Lawless quotes were not even mentioned during hearing. Mr. Lawless should not now be permitted to challenge on the basis of extra-record material an aspect of Applicants' testimony which he did not pursue during hearing.

Furthermore, Mr. Lawless again loses sight of the crucial point that the permeability value assigned to the marl was based on 95 in-situ permeability measurements -- not on laboratory mea-surements -- and that the in-situ measurements demonstrated a permeability of less than 10 -7 cm/sec. See App. RF 23 suprs.

'/ ,

, 36. Mr. Lawless' offers his own calculation of the arith-metic mea.m. of the laboratory measurem'ont. Lawless PF 23.

r- - ""

, s. s

~

/ .

s

-4 '

'(

w -  %

.I-A g +$

./ i

Mr. Lawless cites Tr. 444-46 in support of his calculation, but these pages contain only assertions made by Mr. Lawless while he was conducting cross-examination. Such assertions are not testimony. In addition, the arithmetic mean is inappropriate.

Tr. 396, 454, 589 (Papadopulos). Moreover, if the effective permeability of the marl were 10 -6 cm/sec as Mr. Lawless suggested (Tr. 474, 477', 481-82), there would be no water-table aquifer, since the amount of water that would flow through the marl annually would be greater than the recharge to the water table aquifer. Tr. 477 (Papadopulos). Mr. Lawless acknowl-edges this fact. Lawless PF 29.

37. Mr. Lawless, however, now suggests that perhaps the effective permeability of the marl is .5 ft/yr (i.e. 5x

~

10 cm/sec). Lawless PF 32. He remarks that if this were the case, flow through the marl would not exceed recharge. Id.

He further states that " Applicants have not bound the permeabilities of the marl, except to the extent of recharge through the unconfined aquifer . . . and by calculating the harmonic mean of permeabilities from lab samples." Id.

~7

38. Mr. Lawless' selection of 5 x 10 cm/sec is en-tirely arbitrary. This is no evidence in the record to support 5 x 10 -7 cm/sec as an appropriate value. There is no theo-retical basis for this choice. Mr. Lawless never suggested this value during the hearing, and never explored whether it was possible for 9 out of 15 inches of recharge to flow through u__ -

the marl and still maintain the present water levels in the-water-table aquifer -- or whether it is reasonable to assume that more water flows through the marl than flows through the Barnwell Group.

39. More to the point, Mr. Lawless' statement that Appli-cants have not bound the permeability of the marl except by considering recharge and calculating the harmonic mean of lab samples is untrue. As Applicants' witnesnes testified repeat-edly, they arrived at 10 -7 cm/sec as a conservative upper bound value of the marl permeability en the basis of 95 in-situ permeability tests. Tr. 451, 473-75 (Papadopulos); Tr. 480, 593-95 (Farrell). See Crosby et al., ff. Tr. 253, at 13-14.

An estimate of marl permeability can also be obtained by examining the rate at which water levels in recently installed piezometers stabilized. That rate indicates a permeability of about 10 -0 cm/sec. Tr. 476 (Papadopulos). Accord., Heller et al., ff. Tr. 764, at 12, 15-16.

-7

40. Since Mr. Lawless' selection of 5 x 10 cm/sec as the permeability of the marl is unsupported and contradicted by the evidence of record, Mr. Lawless' calculation of travel time across the marl (Lawless PF 33) also lacks any evidentiary basis and milst be rejected. Lawless' further statements in Lawless PF 33, implying that strontium might not be retarded to the extent predicted by Applicants, similarly lack any eviden-tiary support. Mr. Lawless cites the Savannah River Plant L-Reactor EIS and an SRP Technical Summary, which are not in evidence. Furthermore, travel times along SRP flow paths, with different soil characteristics, permeabilities, gradients, etc., are irrelevant to groundwater flow in the VEGP power block area, and statements about the " rate of travel" of stron-tium are meaningless without discussion of the associated transmitted fraction (i.e. how much the concentration'is reduced by adsorption).

41. Mr. Lawless proposes several other findings per-taining to the marl, all of which are misleading or irrelevant.

In Lawless PF 24, Mr. Lawless states that Applicants " attested to the importance of the integrity of the marl to protect the important Tuscaloosa aquifer below." Lawless PF 24, citing Tr.

293-94. Mr. Lawless' citation does not support this character-ization of Applicants' testimony. Applicants demonstrated dur-ing summary disposition that Applicants employ multiple barri-ers constructed to stringent standards to prevent accidental spills from occurring. This issue was resolved in Applicants' favor by the Board. See Affidavit of D.S. Jagannathan, Stephen J. Cereghino, and Mark L. Mayer (July 12, 1985),

accompanying Applicants' Motion For Summary Disposition of Joint Intervenors' Contention 7 (Ground-water) (July 15, 1985);

ASLB Memorandum and Order (Nov. 12, 1985) at 11-12 and 30 (1 3).

42. In Lawless PF 25, Mr. Lawless states that Applicants changed their description of the marl from " effectively imper-meable" to having "very low permeability." Applicants' wit-ness, Mr. Farrell, testified that the change was made as a clarification, that these two descriptions are the same, and that Applicants still believe the marl is " effectively imperme-able." Tr. 296-97 (Farrell).

43. In Lawless PF 26, Mr. Lawless states that "Although given the opportunity to state otherwise, Applicants stated that they believe contaminant flow through the marl will only be by convection or dispersion." Mr. Lawless does not explain what is wrong with this statement and suggests no other mecha-nisms by which contaminated groundwater could traverse the marl.

44. In Lawless PF 27, Mr. Lawless states that Applicants

" admitted that the reduction in thickness of the marl under the powerblock reduced the effectiveness of the marl to protect the Tuscaloosa aquifer below." Lawless PF 27, citing Tr.

384-85.13/ At the cited pages, Applicants' witness, Mr.

Farrell, stated only that the effective thickness of the marl has been reduced. Tr. 384 (Farrell). Applicants did not tes-tify that the marl was no longer an effective barrier to con-tamination. Applicants' analysis, which is conservatively 13/ See also Lawless PF 22. Compare Tr. 814 (Crosby).

1 based on the minimum thickness of the marl, demonstrates the marl's continued effectiveness. Crosby et al., ff. Tr. 253, at 18-21.

45. In Lawless PF 28, Mr. Lawless states that " Applicants consider the higher head in the unconfined aquifer as an asset to the protection of the underlying Tuscaloosa aquifer . . . ."

This statement mischaracterizes Applicants' testimony. Appli-cants' witnesses testified that the existence of a large head difference (i.e. a large difference in potential energy between the water table and confined aquifer) indicates that the marl between them is an effective barrier. Crosby et al., ff. Tr.

253, at 16. Mr. Lawless adds that the large head difference indicates that the unconfined aquifer serves as a source of recharge to the aquifers below. Lawless PF 28, citing " refer-ence 5." This assertion is based on extra-record material (an SRP report). Moreover, as a matter of physics, a difference in potential energy (head) between two systems indicates only the potential for flow -- not the existence of flow. If there is an effective barrier between the two systems, flow will not occur (i.e., one system will not be a source of recharge to the other). Conversely, if flow between the two systems is unimpeded, the potential energy of the systems will equalize.

C. Direction of Groundwater Flow

46. Turning to the direction of groundwater flow through the unconfined aquifer, Mr. Lawless attempts to suggest that perhaps groundwater under the power-block area might flow to the south. Lawless PF 34-36. His claims, however, are again based.on extra-record material, and on misinterpretation and mischaracterization of testimony.

47. In Lawless PF 34, Mr. Lawless asserts that "the power block is located on a ridge so that Beaverdam Creek southward is downgradient." As Figures 7, 9 and 10 of Applicants' testi-mony show, both the topography and the water table rise south of the power block before decreasing. Crosby et al., ff. Tr.

253, Figures 7, 9 and 10. In other words, the ridge and the groundwater divide are south of the power-block area and sepa-rate the power-block area from the Beaverdam Creek tributary.

48. Mr. Lawless then repeats his claim that "it is not unusual for contaminants to migrate upgradient." Lawless PF

34. He adds, "The literature has established that it would be relatively easy for migration to cross a groundwater ridge where the groundwater velocities are negligible. All that is needed is a head and a concentration gradient . . . ." Id.

There is no support for these assertions in the record. Mr.

Lawless' only citations are to the Savannah River Plant L-Reactor EIS and to a Plant Hatch report, neither of which was admitted into evidence. See id. The unanimous and uncontradicted testimony in this proceeding is that groundwater l will not flow up-gradient and will not cross a groundwater di-vide. Heller et al., ff. Tr. 764, at 19; Tr. 403 (Farrell);

Tr. 486 (Papadopulos); Tr. 604 (Farrell); Tr. 774 (Gonzales).

49. Moreover, Figure 10 of Applicants' testimony shows l that the groundwater divide is south of the power-block area. l Crosby et al., ff. Tr. 253, Figure 10. The auxiliary building, which contains the most significant sources, is approximately 700 feet from the divide. Id.; Tr. 401 (Crosby). The divide is over 100 yards from any known source of contaminants. Tr.

665 (Farrell, West, Papadopulos).

50. Mr. Lawless refers to Figure 16 of Applicants' testi-mony to show that in November, 1985, the groundwater divide shifted closer to the power-block area. Lawless PF 35. This shift is temporary. It was caused by the application of con-siderable amounts of water to the backfill as it was being placed. Crosby et al., ff. Tr. 253, at 22; Tr. 746 (Farrell).

Mr. Lawless also suggests that Figure 16 impeaches a statement

[

by Applicants that "the groundwater divide is no closer than 700 feet to the power block area." Lawless PF 35, citing Tr.

402. Mr. Lawless mischaracterizes the statement at Tr. 402.

At Tr. 402, Dr. Papadopulos, who is being questioned about Figure 10, states that the groundwater divide "is going 70[0]

feet south of the backfill area." As Figure 10 shows, 700 feet

is about the average distance from the backfill area south to the divide.14/ See Crosby et al., ff. Tr. 253, Figure 10.

51. Applicants also conducted a modeling study to deter-mine the long term location of the groundwater divide. Appli-cants examined three years of water level data, which indicate that the divide is to the south of the power block in the long run. The model determined that the transmissivities of the water-table aquifer preclude the groundwater divide from shift-ing into or north of the power-block area. Tr. 675-76 (Papadopulos); Crosby et al., ff. Tr. 253, at 22-23.

52. Finally, with respect to the direction of groundwater flow, Mr. Lawless posits " alternative pathways," through

" piping beds" or " conduits." Lawless PF 34, 36. Mr. Lawless cites Tr. 400-403, which provide no support. Mr. Lawless also cites Tr. 740-44. At those pages Mr. Lawless speculated that "if fissures occur" in the backfill "they might act as excel-lent conduits;" but he admitted he could not describe the com-position of the backfill, did not know how it had been placed, and was aware of no fissures. Tr. 742-43 (Lawless). Finally, Mr. Lawless cites a Plant Hatch report, which is extra-record material and irrelevant to Plant Vogtle. Mr. Lawless points to 14/ In Figure 10, the divide is about 300 feet south of the southeast corner of the backfill area, and about 1100 feet south of the southwest corner of the backfill area. See Crosby et al., ff. Tr. 253, Figure 10.

O e

no evidence suggesting the existence of any piping beds or con-duits that would transport a spill south, outside-the backfill, and across the groundwater divide. Mr. Lawless did not ques-tion Applicants' witnesses to confirm that no such pathways ex-isted.

D. Groundwater Travel Time

53. In Lawless PF 37, Mr. Lawless repeats his assertion that the standard deviation of field test data of backfill per-meability indicates unaccepted variation in the data. This as-sertion is rebutted at App. RF 17-18 supra.

54. Mr. Lawless then states that strontium-90 "has been found to move through the environment much faster than has been found to be the expected case." Lawless PF 38. His statement is confusing, but it appears that Mr. Lawless is suggesting that strontium-90 is not retarded as much as is generally pre-sumed. There is no support in the record for this statement.

Mr. Lawless' citation to the L-Reactor EIS,15/ which was not admitted into evidence, is improper. Mr. Lawless continues, stating that Applicants used a laboratory method to calculate 1}/ Mr. Lawless does not provide a page citation. Assuming Mr. Lawless is referring to the same pages of the L-Reactor EIS that he cited for this proposition during summary disposition, the EIS provides no support for Mr. Lawless' claim. See Appli-cants' Reply to Intervenors' Response to Applicants' Motion for Summary Disposition of Contention 7 (Sept. 9, 1985) at 33-34.

the retardation coefficient, and he alleges that this method has been found not to correlate very well with actual field conditions. Lawless PF 38. Again, there is no evidence in the record to support this allegation, and Mr. Lawless' reference to extra-record material (this time the L-Reactor EIS and a Waste Management EIS) is improper. Moreover, for conservatism, Applicants did not use their laboratory measurements of the re-tardation coefficients, but instead chose average values re-ported in NRC literature. These values were more than five times' smaller than the values measured at VEGP. Crosby et al.,

, ff. Tr. 253, at 28; Tr. 628 (Crosby). Mr. Lawless ignores this conservatism.

55. In the same vein, in Lawless PF 42(1st), Mr. Lawless asserts that Applicants have not considered chemical interac-tions that allegedly "might make a difference in whether ad-sorption can be a factor . . . ." There is no support in the record for Mr. Lawless' suggestion that some unconsidered chem-ical reaction might make a difference, and Mr. Lawless once more improperly cites extra-record material. Mr. Lawless also ignores direct testimony that disproves his assertion. Appli-cants' witnesses testified that they took into account the chemical properties of the environs in measuring the distribu-tion coefficients. The measurements were for in-situ condi-tions (for example by using the groundwater from the area where the soil samples were taken as the test medium). Tr. 625-26

I .

~

(Farrell). When questioned by Mr. Lawless about whether there would be " chemical matrix" effects, Applicants' witnesses testified that the radionuclides in a spill would be in dilute 1

solution (i.e. in ionic form) where the presence of other solutes has little or no influence. Tr. 628-30 (Farrell).

56. In Lawless PF 39-40, Mr. Lawless launches an attack on Dr. Papadopulos' expert testimony that one dimensional anal-ysis is more conservative than three-dimensional modeling. Mr.

.; Lawless' assertions, however, have no foundation in the record, as is evidenced by Mr. Lawless' improper citation to " refer-ences" 1, 6,- 7, and 8. Notwithstanding the lack of any eviden-tiary support for his lay assertions, Mr. Lawless' thesis --

that three-dimensional modeling more closely approximates the real world -- is irrelevant. See Lawless PF 39-40. Dr.

Papadopulos did'not testify that one dimensional analysis was more accurate, only that it was more conservative. See generally Papadopulos, ff. Tr. 253. In other words, the one dimensional analysis. bounds the real.world.

57. Mr. Lawless asserts that " Applicants offer little in the way of model validation for their release model. . . ," and he makes much ado about Dr. Papadopulos' casual reference to experience at the DOE facility in Idaho. Lawless PF 41. The suggestion that Applicants did not validate their analysis is ludicrous. Dr. Papadopulos' testimony demonstrated that Appli-cants' approach was conservative. Mr. Lawless then proceeds to l

i

allege that the "VEGP groundwater model is " unsophisticated,"

" untested," "uncalibrated," and "not validated." Id. As al-ready stated, Applicants did not "model" groundwater flow, but instead provided a conservative, bounding analysis. Appli-cants' testimony demonstrated that their analysis was conserva-tive. There is no contrary evidence in this proceeding.

E. Mr. Lawless' Section Entitled " Settlement of the Marl"

58. In Lawless PF 42(2nd)-50, Mr. Lawless proposes under a separate heading findings pertaining to settlement of the marl. " Settlement of the marl" as a general topic was not an issue in this proceeding. The only issues heard pertaining to a

settlement were whether grouted well columns might be punched through the marl by settling plant structures and whether set-tiement might have disturbed the hydrologic coefficients of the backfill. These issues are relevant, if at all, only to the extent they relate to marl continuity and groundwater travel time.

59. Mr. Lawless does not now propose that grouted wells will be punched down through the marl. Instead, he merely sug-gests that there remains some unspecified open question. Law-less PF 49-50. This ambivalence is consistent with his testi-mony on this matter, which was wholly speculative.

60. At the hearing, Mr. Lawless testified that grouted wells are "likely" less compressible in a vertical direction

than the marl, and that plant settlement would therefore punch these grouted wells downward at a rate that "might be dif-ferent" for the marl. Mr. Lawless then speculated that "it is possible" that the bottom of the grouted wells "may" separate and core out of the bottom of the marl, and "if so" the integ-rity of the marl would be diminished. Lawless Attachment, ff.

~

Tr. 720, at 7-8. Mr. Lawless admitted on cross-examination that he did not know the compressibility either of the marl or of the grout, that he had no information even suggesting that slippage between grouted wells and the marl has occurred, and that he had no knowledge of the extent of the settlement at VEGP. Tr. 746-751 (Lawless). .

61. Contrary to Mr. Lawless' unsupported speculation, Applicants' witness, Mr. Crosby, testified that the marl is ac-tually more rigid than the grout columns, not vice versa as Mr.

Lawless had posited. Tr. 792 (Crosby). Mr. Crosby further testified that there are a number of reasons why there would not be differential movement between the marl and grout col-umns. First, there is a very large surface area around the outside of the core hole and more than sufficient friction to prevent differential movement. Tr. 793 (Crosby). The overbur-den on the marl produces a constrictive force; and the bond be-tween the marl and the grout is very tight. In addition, the core hole surface is very irregular, adding to the frictional resistance. Tr. 793-94 (Crosby). Finally, the unnamed sands

underlying the marl are as dense as or denser than the marl, and therefore would not permit a grout column to punch into the sands. Tr. 793 (Crosby).

62. Applicants' witness Mr. Crosby also testified that settlement is now essentially complete. Tr. 794 (Crosby). The i

consistent maintained head difference of 55 feet between the water-table aquifer and the confined aquifer demonstrates that there is no exchange of groundwater between the two aquifers.

Tr. 795 (Crosby). This testimony belies Mr. Lawless' specula-tive hypothesis that settlement may have created pathways for groundwater flow across the marl. Finally, Mr. Crosby testified that even if differential movement between the marl and the grout were to occur, the pressure on the marl due to its overburden would close off any space that might develop.

Tr. 794 (Crosby)

63. In Lawless PF 42(2nd), Mr. Lawless acknowledges Mr.

Crosby's testimony that the marl is more rigid than the grout columns. Tr. 792 (Crosby). Mr. Lawless claims this testimony conflicts with another statement that the marl and the grout have " roughly the same physical properties." Lawless PF 42 (2nd), citing Tr. 462. There is no contradiction. The fact that the marl and the grout have " roughly" the same properties does not mean that the marl cannot be more rigid.

64. Mr. Lawless also acknowledges Mr. Crosby's testimony that there can be no slippage between the marl and grout

columns because of friction. Lawless PF 43. Mr. Lawless then attempts to manufacture an inconsistency by suggesting Appli-cants testified "that after slip occurred, the elastic marl would close around the grout and seal off the grout." Id. Mr.

Lawless mischaracterizes the testimony. After being asked to assume for a minute that such slippage as described by Mr. Lawless did occur, Mr. Crosby testified that the weight of the overburden on the marl imposes a lateral pressure that would close off any space that might develop. Tr. 793-94. His testimony was that slippage would not occur, but hypothetically even "if there was a break in the bond, the overburden pressure would close that bond because of the elastic nature of the marl." Tr. 795-96 (Crosby) (emphasis added). Mr. Crosby's testimony in response to hypothetical questions does not imply that slippage will occur.

65. In Lawless PF 45, Mr. Lawless implies that a tran-script correction which Applicants proposed -- changing "elas-tic pressure" to " lateral pressure" -- is somehow inconsistent with Applicants' other, unchanged references to the " elastic nature of the marl." The correction is not inconsistent with Applicants' testimony. Elasticity is a term that describes ma-terials, not pressures.

66. Mr. Lawless claims that Applicants' witnesses con-fused static and dynamic friction. Lawless PF 43. His cita-tion does not support the claim. At Tr. 796-99, Applicants'

witnesses testified that (static) friction would not be over-come, and they could not envision otherwise. Mr. Lawless adds that Applicants' witnesses stated that they were not expert on "the settlement issue." Lawless PF 43. The " settlement issue" to which Mr. Crosby referred concerned only the extent of set-tlement. See Tr. 799. Mr.

Crosby is a qualified geologist and is well able to testify to the properties of subsurface materi-als.

67.

In Lawless PF 46, Mr. Lawless repeats his claim that Applicants' witnesses were not expert on settlement, and he states the question of additional settlement therefore becomes an open issue.

This statement is incorrect. With regard to the extent of settlement, the matter was addressed and resolved during summary disposition on the basis of expert averment.

ASLB Memorandum and Order (Nov. 12, 1985) at 10-11. Therein, the Board found that settlement has nearly ceased and has amounted to less than an inch.ls/ Id. at 11. Furthermore, consistent testimony was given at the hearing by Dr. Heller, who is a geotechnical expert in soil and foundation engineering.

1p/

The Board's Memorandum and Order made its finding based on the undisputed Affidavit of Walter R.

Mr. Ferris is an expert on settlement. Ferris (Sept. 7, 1985).

Facts that are not con-troverted during summary disposition are deemed admitted.

C.F.R. 10 5 2.749(a). The findings based on these facts in the Board's Memorandum and Order are now law of the case. Cf. ,

Barrett v. Baylor, 457 F.2d 119, 123 (7th Cir. 1972). See also Cleveland Units Electric 1 & 2), Illuminating LBP-82-110, Co. (Perry Nuclear Power Plant, 16 N.R.C. 1895 (1982).

t

68. Mr. Lawless speculates that further settlement "may" depend on long term pumpage for the confined aquifers or other unidentified factors. Lawless PF 46. There is no evidence in the record to support this speculation.

69. In Lawless PF 44, Mr. Lawless further acknowledges Mr. Crosby's testimony at Tr. 795 that the consistent, main-tained head difference of 55 feet b5 tween the water table and confined aquifers demonstrates that there is no exchange of water between the two aquifers. Mr. Lawless asserts, however, that this testimony is inconsistent with testimony "that flow through the marl was about 1.5 to 2 inches per year." Lawless PF 44, citing Tr. 451, 586. First, Applicants' witnesses did not testify that flow through the marl is 1.5 to 2 inches.

Rather, they testified that assuming the marl has a permeabili-ty of 10 -7 cm/sec (which is the conservative upper bound),

the flow would be about 1-1/2 to 2 inches. Tr. 451, 586 (Papadopulos). Dr. Papadopulos also testified that the permea-bility of the marl may be much smaller than 10 -7 cm/sec.

i Tr. 474 (Papadopulos). See also Tr. 476 (Papadopulos). Sec-ondly, any small seepage from the water-table aquifer to the marl would take over a hundred years to move across the marl and can hardly be characterized as " exchange" of groundwater between the water table and confined aquifers. An " exchange of 1

groundwater" clearly connotes some significant direct and unimpeded flow, which the record unequivocally demonstrates does not occur between the confined and unconfined aquifers.

f

.y .,m,_ -,y-_ - . - , - - - . - . . -

. . , - _- ,,, -4

70. Mr. Lawless also attempts to impeach Applicants' testimony by suggesting that Applicants have miscalculated the amount of flow into the narl. He arrives at 3.66 inches per year, rather than 1.5 to 2 inches. Lawless PF 44. It is ap-parent that Mr. Lawless derived this figure by multiplying the gradient (1.447) and permeability (0.1 ft/yr), and dividing the

product by porosity (47.5%). This calculation demons'trates Mr.

Lawless' profound lack of knowledge in the field of hydrology.

By dividing by porosity, Mr. Lawless has computed an average i

linear groundwater velocity, not the specific discharge (i.e.

the Darcy flux). The specific discharge, and not the average linear velocity, represents the quantity of groundwater flowing into the marl.17/

71. In Lawless PF 47, Mr. Lawless states that the issue of uneven settlement was left as an open issue. It was not.

The issue of differential settlement, which was raised during 4

the hearing only in the context of its effect on buildings and pipes, was ruled irrelevant. Tr. 779.

17/ The specific discharge (k x i) is the volume of water per unit area per unit time flowing across some surface. It has dimensions of velocity, but is not equal to the average linear velocity of groundwater flow across that surface. The average linear velocity is greater, because only a percentage of the surface area across which the volume of water is flowing is available for flow (i.e. is pore space into which water can flow). For example, if the specific discharge is 1.5 inches per year (i.e. 1.5 inches x unit area (volume)/ unit area - unit tire), and porosity is about 50%, then ground water must be >

flowing across that unit area at about 3 inches per year to transmit the volume.

, i

-- - - - - - , - - - _ . _ m._. - _.-- _ - - -,

a

72. Referring to the backfill, Mr. Lawless asserts that

, " uneven settlement may also affect hydrologic characteristics differentially. Lawless PF 48, citing. Lawless, ff. Tr. 720, at

6. Mr. Lawless' direct testimony did not address " uneven set-tlement." There is no support in the record for this proposi-tion.

Mr. Lawless himself testified that he was not aware of any information relating to Vogtle to suggest that the backfill's hydrologic coefficients have changed. Tr. 744-45 (Lawless). He was aware of no information to suggest that there is any distortion in the backfill. Tr. 745. He had no knowledge concerning the extent of settlement rM VEGP. Tr.

746. He could not describe the composition of the backfill and '

did not know how it had been placed. Tr. 742-43. Furthermore, he has ignored the fact that Applicants' measurements of the hydraulic conductivity of the marl were taken recently. The measurements therefore reflect the hydraulic conductivity of the backfill after whatever effect (if any) settlement might have had on the properties of the backfill.

73. Based on the foregoing, all of.Mr. Lawless' proposed findings must be rejected.

1 j III. Reply Findings on Contention 10.5

74. Dr. Deutsch's proposed findings are vague and conclusory. The only particular allegation Dr. Deutsch makes i

-- that after valves are replaced or refurbished, there is no

! I 4

I

. - _ . - - _- .- - .- _ - - - ~ _ _ . _ - - . - -

a verification that they function properly -- is beyond the scope of the contention. It relates neither to the environmental qualification of ASCO valves nor to any of the specific issues the Board designated for hearing. See ASLB Memorandum and Order (Jan. 7, 1986) at 13-14.

75. Dr. Deutsch's allegation is also unfounded and inac-curate. Applicants' witness Mr. Bockhold (General Manager, Plant Vogtle Nuclear Operations) indicated that Dr. Deutsch's allegation was incorrect. See Tr. 528 (Bockhold). Applicants' witne:ses also testified that the VEGP maintenance and surveil-lance program would follow the guidance in NRC Regulatory Guide 1.33, Rev. 2. Baenteli et al., ff. Tr. 517, at 65. Regulatory Guide 1.33 in turn endorses the practices of ANS-3.2/ ANSI N18.7-1976. Masciantonio, ff. Tr. 576, at 5-6. ANS-3.2 calls for post-maintenance functional tests. ANS-3.2/ ANSI N18.7-1976, $$ 2.2, 5.2.7, 5.2.19.3, 5.3.5(3). Applicants fur-ther testified that performance testing is periodically per-formed. Baenteli et al., ff. Tr. 517, at 67; Tr. 532, 540-41, 543 (Bockhold).

- . . = . . . ._

76. Thus, there is no merit in Dr. Deutsch's proposed findings, and they too must be rejected.

Respectfully submitted,

/ $i ~j -

'BAtte WWhurclill, P.C.

,~ David R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE James E. Joiner, P.C.

Charles W. Whitney Kevin C. Greene Hugh M. Davenport TROUTMAN SANDERS, LOCKERMAN J

& ASHMORE Counsel for Applicants Dated: May 15, 1986 l

a

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e Attachment 1 LAWLESS PF APP. RF 1 ____

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, 28 45 29 36 30 22-23, 28, 32-33, 35 31 22-23, 28, 3,0-31 32 37-39 33 40 34 46-49, 52 i

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-2A-

s May 15, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

GEORGIA POWER COMPANY, et al. ) Docket Nos. 50-424 (OL)

) 50-425 (OL)

(Vogtle Electric Generating Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of Applicants' Proposed Findings in Reply to Proposed Findings of Fact and Conclusions of Law Submitted by William F. Lawless and Howard M. Deutsch, dated May 15, 1986, were served upon those persons on the attached Service List by deposit in the United States mail, postage prepaid, this 15th day of May, 1986.

L _ _._,

David R. Lewis Dated: May 15, 1986

e k

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

GEORGIA POWER COMPANY, --et al. ) Docket No. 50-424

) 50-425 (Vogtle Electric Generating Plant, )

Units 1 and 2) )

SERVICE LIST Morton B. Margulies, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Mr. Gustave A. Linenberger i Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Dr. Oscar H. Paris Washington, D.C. 20555

, Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Douglas C. Teper Washington, D.C. 20555 1253 Lenox Circle Atlanta, Georgia 30306 Bernard M. Bordenick, Esq.

Office of Executive Legal Director Bradley Jones, Esquire U.S. Nuclear Regulatory Commission Regional Counsel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Docketing and Service Section Suite 3100 Office of the Secretary 101 Marietta Street i U.S. Nuclear Regulatory Commission Atlanta, GA 30303 Washington, D.C. 20555 W. F. Lawless Assistant Professor of Mathematics Paine College 1235 15th Street Augusta, Georgia 30910 ,

a

, _ . - . . _ . , _ , - , . , _ _ _ _ _ _ _ _ . . _ _ _ , - . - , _ _ ,,--.m. , _ . - . - _ - - _ _ _ _ _ . . _ _ - , , . - _ _ - - - - - . _ . _ - - . _ - - - . ,