ML20212E972

Nuclear Regulatory Commission Issuances for May 1986. Pages 465-575

ML20212E972
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Issue date:	07/31/1986
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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References
NUREG-0750, NUREG-0750-V23-N05, NUREG-750, NUREG-750-V23-N5, NUDOCS 8608130198
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s' NUREG-0750 Vol. 23, No. 5 Pages 465-575 NUCLEAR REGULATORY

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COMMISSION ISSUANCES May 1986 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).

The summaries and headnotes preceding the opinions repoited herein are not to be deemed a part of those opinions or to have any indepen-dent legal significance.

U.S. NUCLEAR REGULATORY CO 4

Prepared by the Division of Technical Information and Document Control, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, D.C. 20555 (301/492-8925)

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COMMISSIONERS Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthal Lando W. Zech, Jr.

,:g Alan S. Rosenthal, Chairman, Atomic Safety and Licensing Appeal Panel B. Paul Cotter, Chairman, Atomic Safety and Ucensing Board Panel i

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CONTENTS Issuances of the Nuclear Regulatory Commission GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION (Three N1ile Island Nuclear Station Unit 1)

Dockets 50-289-R A, 50-289 EW (Special Proceeding)

ADVISORY OPINION AND NOTICE OF llEARING, CLI 86-9, Stay 15,1986...

465 GOVERNOR OF NEW NIEXICO'S REQUEST TO RETURI4 TO TliE UNITED STATES Ti1E NEW NIEXICO PROGR ANI FOR TliE LICENSING OF EXTRACTION OR CONCENTRATION OF SOURCE N1 ATERIAL FRON1 SOURCE NI ATERIAL ORE AND Tile RESULTING BYPRODUCT N1ATERIAL ORDER, CLi-86-10. Niay 23,1986 475 Issuances of the Atomic Safety and Licensing Appeal Boards CAROLINA POWER AND LIGitT CONIPANY and NORT11 CAROLINA EASTERN NIUNICIPAL POWER AGENCY (Shearon liarris Nuclear Power Plant)

Docket 50-400-OL DECISION, ALAB-837 Ntay 29,1986 525 PillLADELPlil A ELECTRIC CONIPANY (Limerick Generating Station Units I and 2)

Dockets 50-352-OL, 50-353-OL DECISION, AL AB-836 Ntay 7,1986 479 13suances of the Atomic Safety and Licensine Boards GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION (Three.\\ life Island Nuclear Station, Unit 1)

Dockets 50-239-OLA-1, 50-289-OL A-2 ' Steam Generator Pluggmg Criteria)

NIENIORANDUN1 AND ORDER, LBP-86-14, N1ay 19,1986 553 ill

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Cite as 23 NRC 465 (1986)

CLI 88-9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthal Lando W. Zech, Jr.

In the Matter of Docket Nos. 50 289-R A 50-289 EW (Special Proceeding)

GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION (Three Mile Island Nuclear Station, Unit 1)

May 15,1986 The Commission issues an advisory opinion regarding the involve-ment of former Licensee official Robert Arnold in Licensee's December 5.1979 response to an October 25,1979 NRC Notice of Violation. The Commission finds that there is no reasonable basis to conclude that Arnold made a knowing, willful, or reckless material false statement in the response. The Commission grants Edward Wallace's request Ihr a hearing on whether he made a knowing, willful, or reckless material false statement in Licensee's December 5,1979 response.

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ADVISORY OPINION AND NOTICE OF HEARING BACKGROUND The Commission decided not to reopen the Thil 1 restart proceeding record on the issue of Licensee officials Robert Arr.old's and Edward Wallace's involvement in Licensee's December 5,1979 response to an October 25, 1979 NRC Notice of Violation (NOV) because the signin-cance of the issue, if any, was mooted by Licensee's removal of Arnold and Wallace from Th11-1 operations. The Commission required Licensee to notify it before returning either of these individuals to responsible po-sitions at TMI-1. CLI-85-2,21 NRC 282,323 (1985).

CLI-85-19, 22 NRC 886 (1985), which was issued in response to Ar-nold's and Wallace's request for a hearing in order to clear them of any wrongdoing, invited interested persons to comment on whether there was a reasonable basis to believe that Arnold or Wallace knowingly, will-fully, or with reckless disregard made a material false statement in Licen-see's December 5,1979 NOV response. Seven sets of comments were submitted. In addition, Arnold and Wallace commented on those sub-missions and we have taken those comments into consideration.

SUMMARY

AND CONCLUSION Advisory Opinion The Commission Onds that there is no reasonable basis to conclude that Arnold made a knowing, willful, or reckless material false statement in the NOV response, and it does not view Arnold's involvement in the NOV as requiring any constraint on his employment in the regulated nuclear industry.

N!r. Arnold has stated that he did "not object to a continuation of the notification requirement" in CLI-85 2 regarding his possible return to TN11-1, and that he did not "know of any plans by GPU to offer him a position involving Thll-1." For these reasons, the condition imposed in CLI-85-2 is not changed by our finding.

Notice of Hearing The evidence regarding Wallace's involvement in possible willful, knowing, or reckiess material false statements is much more difficult to i

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evaluate. The Commission understands that Wallace wants the Commis-sign to withdraw the adverse implications about his integrity drawn in various NRC documents in the TMI-1 restart proceeding, and to issue a statement to the effect that there are no constraints on his utilization in NRC-regulated activities. If a hearing is required 'o accomplish this, Wallace requests one. We grant Wallace's hearing request.

ANALYSIS A.

Context of Alleged Material False Statements in brief, the NOV alleged that (1) TMI-2 Emergency Procedure 2202-1.5 required that the block valve be closed if, among other things, the valve discharge line temperature exceeded 130*F, (2) the temperature had been 180*-200*F since October 1978, (3) a temperature of 283*F was noted at 5:21 on March 28, 1979, the day of the TMI-2 accident, and (4) the valve was not closed until 6:10 on March 28. The cover letter to the NOV pointed out that this was one of the more significant issues.

Licensee's NOV response ' stated that " Emergency Procedure 2202-1.5, ' Pressurizer System Failure,' was not violated during the period from October 1978 through March 28,1979 notwithstanding the temperatures of the discharge line from the pilot operated (electromatic) relief valve ('PORV')." With regard to the failure to close the valve prior to March 28, Licensee's response explained that the procedure 2202-1.5 described possible failures, a number of " symptoms," and im-mediate and followup actions. Licensee asserted that the existence of a single symptom - elevated temperatures - did not mean that the fail-ure existed, but rather that conditions should be examined to determine whether the problem exists. Licensee stated that, while the temperatures generally were 170* to 190*F, they did not appear to have been caused by a leaking PORV. Licensee, to support this assertion, listed the follow-ing factors:

(1) The reactor coolant drain tank leak rate (which would have reflected leaks past the PORV) was essernially zero through January; (2) The increase in the dram tank leak rate after January was accompanied by a sharp increase in the discharge line temperatures for the code relief valves; (3) "These matters were diseassed by the plant stalT. Based on temperature read-ings. a determinaticn was made that code relief valve RVI A was ;eaking"* and a work request was made to repair this valve; 467 l

(4) The higher temperatures on the PORV discharge line occurred even when the plant was in hot shutdown.

Licensee stated that "[tlhese values make it clear that discharge line temperatures did not, of themselves, establish that the PORV was leak-ing. More likely, the temperatures resulted from the heating of the line by conductivity from the pressurizer itself." In sum. Licensee concluded that the 170*-190*F temperatures were normal, and that the procedure should have been changed.

The NOV response also contained the statement that, "although Met-ropolitan Edison is concerned about this issue, there is no indication that this procedure or the history of the PORV discharge line tempera-tures delayed recognition that the PORV had stuck open during the course of the accident."

The following questions have been raised about the accuracy of Licen-see's NOV response. The response denied tha* the emergency procedure hzd been violated, yet Licensee appears to have had information in its possession to the contrary. Some evidence even indicates that Licensee was unsure whether the PORV was leaking, yet consciously chose not to close the PORV block valve.-It also appears questionable whether Licen-see had determined prior to the accident that the PORV was not leaking, contrary to the implication in the NOV response. Finally, there is evi-dence indicating that Licensee had in its possession information contrary to the assertion that there was "no indication" that operators had been desensitized by the elevated tailpipe temperatures. For instance, a draft of the Keaten Task Force Report and a Licensee report, TDR-054, both available at the time of the NOV response, indicated that operators had been desensitized.

We will now address the knowledge of Arnold and Wallace regarding this contrary information, and whether there is any basis to believe that either knowingly, willfully, or recklessly made material false statements.

B.

Knowledge and Invohement of Arnold in Questioned Statements An examination of the evidence involves determining what contrary information Arnold had at the time the NOV response was filed, and in-ferring from that whether he recklessly, willfully, or knowingly made a material false statemer.t. The evidence as we evaluate it shows that Arnold kriew of the following:

(1) That the emergency procedure was violated, in that he was aware that all the symptoms of a leaking PORV were present,

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the procedure required closing the block valve in this instance, but the block valve was not closed; (2) That there was leakage from the top of the pressuriier, and that some operations personnel were not sure of the source of the leakage.

In addition, the following evidence provides a possible basis for infer-ring additional knowledge on Arnold's part:

(1) Arnold reviewed and signed the NOV response - it could be inferred that he carefully studied it and acquainted himself with all relevant facts in Licensee's possession,in particular (a) statements by Zewe, Faust, Frederick, and Miller indicat-ing a conscious management decision was made to violate the procedure, and (b) statements by Zewe indicating that elevated temperatures existed that may have delayed recognition that the PORV was stuck open; (2) a draft of the Keaten Task Force Report stated that evidence indicated that the procedure was violated pursuant to a con-scious management decision, and Arnold was listed on distri-bution for that draft prior to the NOV - it could be inferred that he read the draft before signing the NOV; (3) A draft of the Keaten Task Force report and a Licensee report, TDR-054, both indicated that elevated temperatures existed and may have delayed recognition of the stuck open PORV.

Arnold was listed on distribution of the draft Keaten Report and TDR-054 - it could be inferred that he read them before signing the NOV.

While one can argue whether Arnold should have, or must have.

known of this information, the only direct evidence in this regard is his acknowledgment that he may have been aware of 7. ewe's statements in (t)(b) above. The information in these statements is the same as in (3).

lie states he does not remember seeing the statements in the Keaten drafts or TDR-054. While inferences are highly judgmental, we do not believe it reasonable to infer that Arnold, given his high management position, knew of the evidence in (1)(a), (2), or (3).

As we see it then, the major issue re tarding Arnold involves the fact that he knew the procedure had been violated, yet the NOV response-denied that it had been violated as alieged. Arnold now asserts that the NOV response was directed at the literal language of the NOV, which in his view was that the procedure had been violated sole /r because of elevated discharge line temperatures. Arnold asserts that elevated tem-469 L

I peratures alone did not require that the block valve be closed, and that this was the point being made in the NOV response.

It can be argued in hindsight that Arnold in the NOV response should have acknowledged that the procedure was violated, even if not for the reasons alleged in the NOV.' The NOV cover letter identified violation of this emergency procedure as one of the more significant issues, and Arnold was aware of Staff's conclusion in NUREG-0600 that all the symptoms of a leaking PORV were present. Hence it can be argued that Arnold should have known that the NOV intended to address all the symptoms of a leaking PORV.

However, in the absence of persuasive evidence indicating that Arnold was aware of a conscious management decision to violate the procedure, we cannot say that the argument that he was responding to the literal language of the NOV is inherently unreasonable. Hence we conclude that there is no reasonable basis to conclude that Arnold made a reckless, willful, or knowing material false statement when he respond-ed to the literal language of the NOV and denied that the procedure had been violated as alleged.

With regard to the assertion in the NOV response that it had been determined by Licensee that a code safety, not the PORV, was leaking, it is now questionable whether a determination had in fact been made that the PORV was not leaking. The question regarding Arnold, howev-er, is whether he acted with reckless disregard for the truth in accepting Wallace's representations to this effect, given that Arnold knew that there was some question regarding whether the PORV was leaking. The arguments given by Wallace are not facially ' unreasonable, and in our view it was reasonable for a manager in Arnold's position to have accept-ed Wallace's assertions without personally checking them.

With regard to the other statement at issue in the NOV response -

the "no indication" of delayed recognition - we also conclude that the available evidence does not reasonably indicate that Arnold knowingly, willfully, or with reckless disregard made a material false statement in ac-cepting Wallace's representations. Arnold apparently was aware of state-ments by operators that can be read as implying that they were desensi-tized. While we agree with Arnold that the phrase "no indication" was "ill-chosen " the statements by the operators do not clearly say they were desensitized, and Arnold's explanation that he felt they did not recognize the open PORV for other reasons (e.g., expected discharge

' Th.6 wou d be, articularl-true if it coald t>e established tha. Arnold was aware of the information in.

decalmg that there rt J bec't a conwtoue management decision to vMlah the prne dure.

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o temperatures greater than 300*F) is reasonable. In the absence of persua-sive evidence that he was aware of contrary information, we cannot rea-sonably conclude that he exhibited a reckless disregard for the truth in connection with this statement.

Based on its review of the evidence, the Commission finds that there is no reasonable basis for concluding that Arnold knowingly, willfully, or recklessly made a material false statement to the NRC. Accordingly, the Commission finds that there are no constraints beyond the condition imposed in CLI 85-2 on Arnold's employment in NRC-licensed activi-ties.

C.

Knowledge of and Involvement of Wallace in Questioned Statements As with Arnold, an examination of the evidence concerning Wallace involves determining what information he had that may have contradict-ed the NOV response, and inferring from that whether he recklessly, willfully, or knowingly made a material false statement.

Based on its review of the evidence, the Commission cannot, as Wal-lace requests, clear his name without additional evidence. However, the Commission emphasizes that no final judgment has been made, and it may be that a full hearing will not support the position that he engaged in wrongdoing.

The Commission has therefore decided to grant Wallace's request for a hearing. The hearing is to address the following questions:

(1) Does any part of the following statements - including the accompanying expla-nation - in Licensee's December 5.1979 NOV response constitute a material false statement:

Nietropolitan Edison believes that Emergency Procedure 2202.1.5.

" Pressurizer System Failure". liici was not violated during the period from October 1978 through Starch 23.1979 notwithstanding the temperatures of the discharge line from the pilot operated detectromatic) relief vahe

("PORV"). Although this procedure was understood by the plant staff. it is not clearly written and does not redect actual plant conditions. It will be changed. Iloweser, although Nietropolitan Edison is concerned about the issue, there is no indication that this procedure or the hntory of the PORV discharge line temperatures delayed recogr.ition that the PORY had stuck open during the course of the accident.

(2) If there was a ma6erial false statement. what knowledge and involvement, if

iny. did Wallace hase in making that statement?

13) If Wallace krew of or was involved in making a mater al false statement. Joes that knowledge of nsolvement indicate willful. knowing. nr recklew conduct?

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(4) If Wallace engaged in willful. knowing, or reckless conduct, should there be any constraints on his employment in NRC. regulated actisities? Otis perform-ance to date may be considered in this connection.)

Accordingly, pursuant to the Atomic Energy Act of 1954, as amended, and the regulations in Title 10, Code of Federal Regulations, Part 2, notice is hereby given that a hearing will be held before an Administra-tive Law Judge to be appointed by the Chief Administrative Judge, Atomic Safety and Licensing Board Panel. The Administrative Law Judge will set the time and place for the hearing and shall hold prehear-ing conferences as necessary. The scope of the hearing will be as set forth above. The hearing will be conducted pursuant to the procedures contained in 10 C.F.R. Part 2, Subpart G. Any petitions to intervene by persons who responded by filing comments in response to CLI-8519 shall be filed in accordance with 10 C.F.R.12.714 and, to be timely, shall be filed within 45 days of the date of this Notice. No other inter-4 ventions shall be permitted except upon a balancing of the factors in 10 C.F.R. f 2.714(a)(1). NRC Staff shall participate as a party. Any party who advocates that Wallace made a knowing, willful. or reckless material false statement in the NOV response shall have the burden of going for-ward and persuasion. If no person intervenes against Wallace and NRC Staff does not advocate a position against Wallace, then the proceeding shall be terminated and the TMI l notification requirement as to Wallace shall be removed.

Pursuant to 10 C.F.R. j 2.785, the Commission authorizes an Atom.ic Safety and Licensing Appeal Board to exercise the authority and perform the review functions which would otherwise be exercised and performed by the Commission.

THE CLI-85-2 NOTIFICATION REQUIRE > LENT The Commission will not lift the notification requirement imposed in CLI-85-2. For Arnold. there are no current plans to return Arnold to TMI-l operations and Arnold does not object to enntinuation of the con-dition. For Wallace, any further action regarding the condition must await the conclusion of a hearing.

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O Chairman Palladino and Commissioner Asselstine disapproved this Order in part. Their separate views are attached. The separate views of Commissioner Roberts are also attached.

It is so ORDERED.

For the Commission 2 SAMUEL J. CHILK Secretary of the Commission Dated at Washington, D.C.,

this 15th day of May 1986.

SEPARATE VIEWS OF CHAIRMAN PALLADINO I believe that the Commission should hold a hearing for Mr. Arnold as well as Mr. Wallace.

The evidence demonstrates a reasonable basis to conclude that there was a material false statement, in that the Licensee possessed significant information contrary to the statements in the NOV response. Moreover, there is information cited by the NRC Staff that Mr. Arnold knew that the emergency procedure had been violated notwithstanding that the NOV response denied the violation. Whether this conduct constitutes reckless behavior is a matter of judgment; a hearing would be of value to fully resolve the issue.

Also noteworthy is the fact that Mr. Arnold's explanation for his denial that the emergency procedure had been violated is not the expla-nation provided by Mr. Wallace in his interview by the Office of Investi-gations. A hearing could address this apparent difference as well.

Finally, I believe that a hearing would provide a clearer basis for Com-mission conclusions with respect to Mr. Arnold and would be in the public interest.

2 Commissioner Asselstme was absent when this Order was afUrmed. He had previously disapproved the Order in part and had he been present he would have affirmed his prior vote.

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SEPARATE VIEWS OF COMMISSIONER ASSELSTINE I agree in part and disagree in part with the Commission's Order. !

agree with that portion of the Order which grants Mr. Wallace a hearing and sets out the procedures for that hearing. However, I cannot support the Commission's decision to absolve Mr. Arnold without holding a hearing. There appears to be enough information available to raise ques-tions about the extent of Mr. Arnold's knowledge. That information should be the subject of a hearing.

In addition, as I explained in my separate views on CLI 85-19. I do not believe that Mr. Arnold's involvement in the preparation of Metro-l politan Edison's response to the Commission's NOV is the only relevant issue remaining. See 21 NRC at 890 I would have included two other issues for consideration: TMI leak rate falsifications and the Parks dis-

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crimination issue.

I SEPARATE VIEWS OF COMMISSIONER ROBERTS We find that there is no reasonable basis for concluding that Mr.

Arnold knowingly, willfully, or recklessly made a material false state-ment. However, because he did not ask that it be removed, we leave in place the requirement that the NRC be notified prior to Mr. Arnold's return to responsible duties at TMI-1. I see no reason for our continuing to require notification prior to Mr. Arnold's return to responsible duties at TMI l. I would remove that single remaining and meaningless " con-straint" on Mr. Arnold's employment in NRC licensed activities. That is what we said we intended to do if we determined there was not a rea-sonable basis for an unfavorable conclusion. CLI-85-19, 22 NRC 886 889 (1985).

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Cite as 23 NRC 475 (1986)

CLI 86-10 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine Frederick M. Bernthat Lando W. Zech, Jr.

In the Matter of GOVERNOR OF NEW MEXICO'S REQUEST TO RETURN TO THE UNITED STATES THE NEW MEXICO PROGRAM FOR THE LICENSING OF EXTRACTION OR CONCENTRATION OF SOURCE MATERIAL FROM SOURCE MATEPlAL ORE AND THE RESULTING BYPROD'UCT MATERIAL May 23,1986 The Commission grants the Governor of New Niexico's request to return a portion of New Niexico's regulatory program to NRC jurisdie-tion. On an interim basis. the Commission keeps all atTeeted licenses in etTect as currently issued.

ATO.\\lIC ENERGY ACT: COOPERATION WITli STATES (TER311 NATION: HEARING RIGilTS)

The Commiss on believss that a hearing is not required when the NRC reasseits its regulatory autaority in an Agreement State at the re-quest of the Governor of that State.

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4 ORDER Pursuant to 1274)(1) of the Atomic Energy Act of 1954, as amended, the Commission grants the request of the Governor of New Mexico for the Nuclear Regulatory Commission to accept the return of authority over the licensing and regulation in New Mexico of the extraction and concentration of source material from source material ore and the management and disposal of the resulting byproduct material as de6ned in j 11e(2) of the Act.' The Commission finds that this action is re-quired in the interest of the public health and safety.

New Mexico is an Agreement State, but its Agreement does not in-clude a needed amendment to cover the continued regulation by the State of the byproduct material (as de6ned in f Ile(2) of the Act) pro-duced by the extraction or concentration of source material from source material ore. For this and other reasons, the Governor of the State has advised the Commission that the State is no longer in a position to ad-minister that portion of its Agreement State program and has requested its return to Commission jurisdiction. Under current federal law, the ex-traction of source material from source material ore and the management and disposal of the resultant byproduct material cannot be left unregulat-ed. Accordingly, the Commission Onds it necessary to accept the return of that portion of the New Mexico program. Since the State will continue to license and regulate source material for other uses, no revision is needed in the present text of the New Mexico Agreement. It is also pertinent to note that the returned portion of the program does not remove from the State any authority with respect to the mining of source material ore. The Nuclear Regulatory Commission does not regu.

late the mining of source material ore.

The Commission stalT has reviewed the files of the New Mexico Envi-ronmental improvement Division and has identined all relevant licens-ing documents for transfer to the Commission. In order to aid in a smooth transition, however, the Commission deems it essential to main-tain continuity in the licensing and regulatory obligations of the New Mexico licensees whose dockets are being transferred to the Commis-sion. Such continuity may be assured by keeping in effect on an interim

• By letter daied %f ay 8. lH6. a New Nfesi60 (JWner. \\fschael s. Yesley prouded to the Ch4stman ard requested that he arculate to other Commissioners an uns'6ned memorandum that Mr. Yesley md out-lined the reasons why the NRC should afford a hear ng on he Commssion's acuan m response to Gosernor Anaya's request Nfr. Yeslef t letter soes not arrea to constute a 5eanns requsst. but the Commmion believes in ans esent. hat no heanns is requrted when the Commissson rea;scris its reguld-tv y Julho"ty in Jf' $$reemCnl state at the rcQuest or the Gonemor of that state 476 4

basis all New Niexico licenses as currently issued, until such time as the licenses are modiGed to meet federal standards for the processing of source material ore and the management and disposal of the resulting byproduct material.

- Therefore, the Commission hereby orders that all New Niesico-issued licenses, license amendments, outstanding orders (if any), or other documents establishing obligations for specine licensees that are trans-ferred to the Commission shall remain in full force and effect as if issued by the Commission. The Commission staff will review all trans-ferred licensing documents and see to their revision as necessary to meet applicable federal standards.

For the Commission S ANIUEL J.' CillLK Secretary of the Commission Dated at Washington, D.C.,

this 23rd day of Ntay 1986.

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m Atomic Safety and Licensing Appeal Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL Alan S. Rosenthal. Chairman Dr. W. Reed Johnson Thomas S. Moore Christine N. Kohl l

Gary J. Edles i

Dr. Reginald L Gotchy Howard A. Wilber l

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Cite as 23 NRC 479 (1986)

ALAB 836 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Christine N. Kohl, Chairman Gary J. Edles Dr. Reginald L Gotchy in the Matter of Docket Nos. 50-352 OL 50 353-OL PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Units 1 and 2)

May 7,1986 The Appeal Board afGrms, subject to an additional license condition, the Licensing Board's third partial initial decision in this operating license proceeding, LBP-85-14, 21 NRC 1219 (1985), with one excep-tion; that matter, relating to the availability of an adequate number of bus drivers to evacuate students, is remanded to the Licensing Board for further prompt action.

RULES OF PRACTICE: BRIEFS Appeals that are not briefed are considered waived. See 10 C.F.R.

( 2.707. Public Service Co. of Indiana (.\\larble liill Nuclear Gengrating Station. Units I and 2), ALAB-461. 7 NRC 313,315 (1978h TIississippi Power and Light Co. (Grand Gulf Nuclear Station. Units I and 2).

AL AB-140. 6 AEC 575 (1973).

479

EMERGENCY PLANS: CONTENT (EVACUATION)

The purpose of an evacuation time estimate (ETE) is to provide infor-mation (i.e., the time required to evacuate the emergency planning zone and any unusual problems) so that emergency coordinators can decide what protective actions (such as sheltering or evacuation) might be necessary. The Commission's emergency planning regulations, however, do not set any particular time limits for evacuation of the plume

~

emergency planning zone. Cincinnati Gas & Electric Co. (Wm. 11.

Zimmer Nuclear Power Station, Unit No.1), ALAB-727,17 NRC 760, 770-71 (1983).

REGULATORY GUIDES: APPLICATION NUREG-0654/ FEMA-REP-1, " Criteria for Preparation and Evalua-tion of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" (Rev. I 1980) [hereafter, "NUREG-0654"}, simply serves as guidance for the NRC stafi's review and does not prescribe regulatory requirements. ALAB-819, 22 NRC 681, 710 (1985).

EMERGENCY PLANS: CONTENT (ACTIVATION OF EMERGENCY ORGANIZATION)

There are four categories of radiological emergencies. They are (in as-cending order of significance)

"(l) notification of unusual events.

(2) alert, (3) site area emergency, and (4) general emergency." 10 C.F.R. Part 50, Appendix E, f IV.C.

EMERGENCY PLANS: CONTENT (EVACUATION)

The purpose of an ETE in emergency planning is to provide a repre-sentative time frame for evacuation so that emergency officials can make well-informed, realistic decisions about protective action options.

An ETE need not be based on " worst case" assumptions. See NUREG-Of 54. Appendix 4 (especially at 4-6. 4-7). See a/w Zimmer.17 NRC at 770-71.

EMERGENCY PLANNING: BASIS FOR REQUIREMENT The low probability that an accident requiring evacuation might occur is not an appropriate consideration when determining the adequacy of an 480

emergency plan. ALAB-819,22 NRC at 713. This does not mean, how-ever, that the options provided for under the plan must assume, in addi-tion, the presence of the worst conceivable extraneous conditions. See general (v San Luis Obispo Mothersfor Peace v. NRC. No. 84-l410 (D.C.

Cir. April 25, 1986).

EVIDENCE: ADhllSSIBILITY (SPONSORSHIP BY EXPERT)

Technical documents are properly excluded from the record in the ab-sence of sponsorship by an appropriate witness. See Duke Power Co.

(William B. NicGuire Nuclear Station. Units I and 2), ALAB-669.15 NRC 453,477 (1982).

LICENSING BOARD: RESOLUTION OF ISSUES in general, contested issues should be resolved through the hearing process and not be left for post-hearing resolution by the NRC staff.

Consolidated Edison Co. o/New York (Indian Point Station, Unit No. 2),

CLI-74-23,7 AEC 947,951-52 (1974).

ENIERGENCY PLANS: CONTENT (SUFFICIENCY)

Findings in the emergency planning aiea are essentially predictive in nature: an emergency plan need ' tot be Gnal in every detail, just suffi-ciently developed to permit the " reasonable assurance" finding required by the Commission's regulations,10 C.F.R. s 50.47(a)(1). Consequent-iy, in some instances post-hearing verification by the staff of emergency planning measures is not an improper delegation of decisionmaking au-thority to the stalT. See Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), AL AB-732.17 NRC 1076.1103-04 (1983).

LICENSING HOARD: RESOLUTION OF ISSUES The determination of the overall adequacy of medical arrangements.

speciGeally required by 10 C.F.R. ( 50.47f bH12), is not a proper subject for post-hearing statToversight. See ALAB-819. 22 NRC at 711-15.

481 j

u

~

RULES OF PRACTICE: CROSS EXAMINATION (LI511TATION)

Even if a licensing board wrongly denies a party cross-examination, the complaining party must demonstrate actual prejudice. See Water /brd.

17 NRC at 1096.

APPEAL BOARDS: SCOPE OF REVIEW lssues not raised before a licensing board cannot be properly raised on appeal. See ALAB-819, 22 NRC at 699 n.20; ALAB-828, 23 NRC 13.

20 (1986).

E31ERGENCY PLANNING: FESIA FINDING (REBUTTABLE PRESUSIPTION)

While Federal Emergency Management Agency (FEM A) findings constitute rebuttable presumptions on the adequacy of state and local emergency plans (10 C.F.R. f 50.47(a)(2)), it is nct the NRC's function to monitor FEM A's work for compliance with that agency's own regula-tions. See Memorandum of Understanding Between Federal Emergency Management Agency and Nuclear Regulatory Commission, 50 Fed.

Reg.15,485 (1985), which sets forth the respective emergency planning responsibilities of, and the areas of cooperation between, FEM A and the NRC.

RULES OF PRACTICE: CONSOLIDATION A licensing board's consolidation, on its own initiative, of parties with "substantially the same interest.. and who raise substantially the same questions" is explicitly authorized by the Commission's Rules of Prac-tice.10 C.F.R. j 2.715a. Consolidation can, of course be improper if it results in prejudice to an intervenor. Statement of Policy on Conduct of Licensing Proceedines. CLI-81-8. I3 NRC 452. 455 (1981).

RULES Oi' PRACTICE: CROSS EXA311NA110N (LI511TATION)

Although the Commission's Rules of Practice do not expressly refer to the imposition of time restrictions on witness ex.:mination, this is clearly among the necessary tools an NRC adjudicatory board possesses to regulate the course of a hearing - providing there is no prejudice to 482 i

4 the rights of any party. See 10 C.F.R. 44 2.718,2.743(c),2.757. See also Statement of Policy,13 NRC at 453.

RULES OF PRACTICE: APPELLATE REVIEW (CROSS-EXA311 NATION RULINGS)

A mere demonstration that a licensing board erred by curtailing cross-examination is not sufficient to warrant appellate relief. The complaining party must demonstrate actual prejudice - i.e., that the ruling had a sub-stantial effect on the outcome of the proceeding. See Duke Power Co.

(Catawba Nuclear Station, Units I and 2), ALAB-813, 22 NRC 59, 75-76 (1985); Houston Lighting a Power Co. (South Texas Project Units I and 2), ALAB-799,21 NRC 360,376 77 (1985).

RULES OF PRACTICE: CONTENTIONS A party is bound by the literal terms of its_ own contentions.

ALAB-819,22 NRC at 709.

E31ERGENCY PLANS: CONTENT (SUFFICIENCY)

Offsite emergency plans need not be final before a board can make the reasonable assurance finding required by 10 C.F.R. y 50.47(a)(1).

See, e.g., Waterford.17 NRC at 1104; Detrair Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-730,17 NRC 1057,1066 (1983).

E31ERGENCY PLANNING: E3IERGENCY PLANNING ZONE (SIZE)

A contention that the ten mile EPZ concept does not alTord adequate protection to people residing near a nuclear power plant amounts to a challenge to the Commission's emergency planning regulations and is thus barred by 10 C.F.R. 5 2.758.

EVIDENCE: HEARSAY Hearsay evidence is generally admissible in NRC proceedings. Cleve-land Electric ///uminating Co. (Perry Nuclear Power Plant, Units I and 2),

ALAB-802, 21 NRC 490, 501 n.67 (1985). See also Mobile Consortium o/CETA r. Dep't o/ Labor. 745 F.2d 1416,1419 n.2 (lith Cir.1984).

483 1

D 4

EMERGENCY PLANS: NOTIFICATION REQUIREMENTS Neither 10 C.F.R. s 50.47(b)(5) nor Planning Standard E of NUREG-0654 specifies the means for notifying emergency workers; they simply require that such procedures be established.

RULES OF PRACTICE: BURDEN OF PROOF 1t is the applicant's burden to prove reasonable assurance that ade-quate protective measures can and will be taken in an emergency. See 10 C.F.R. ( 50.47(a)(l); Consumers Power Co. (Midland Plant. Units I and 2), ALAB 123. 6 AEC 331. 345 (1973).

EMERGENCY PLANS: CONTENT (SUFFICIENCY)

Under 10 C.F.R. f ~ 50.47(c)(1). emergency planning delicier.cies could result in the suspension of an outstanding license unless it is demonstrated "that [ thel deficiencies

. are not significant for the plant in question, that adequate interim compensating actions have been or will be taken promptly, or that there ire other compelling reasons to permit plant operation."

EMERGENCY PLANS: FEMA REVIEW Formal FEMA review of state and local radiological emergency plans is not triggered until the state has reasonable assurance of the adequacy of the plans and applies to FEM A for final approval. See 44 C.F.R.

4 350.7.

APPEARANCES David Stone. Pottstown. Pennsylvania (with whom Ph3llis Zitzer and Maureen Mullis:an. Pottstow n.

Pennsylvania, w ere on the brief). for intervenor Lim: rick Ecology Action. Inc.

Robert L. Anthony. Moylan. Pennsylvania. intervenor pro se and for in-tervenor Friends of the Earth.

Robert M. Rader, Washington, D.C. (with whom Troy B. Conner, Jr.,

and Nils N. Nichols, Washington, D.C. were on the brief) for applicant Philadelphia Electric Company.

484

l l

e

=

1 1

Zori G. Ferkin, Harrisburg, Pennsylvania, for the Commonwealth of Pennsylvania.

Henry J. McGurren (with whom Donald F. Hassell and Nathene A.

Wright were on the brief) for the Nuclear Regulatory Commis-sion staff.

DECISION In its third partial initial decision in this operating license proceeding, the Licensing Board discussed the numerous issues raised concerning the adequacy of the offsite emergency plan for the Limerick facility.'

The Board resolved all issues in favor of applicant Philadelphia Electric Company (PECo), subject to two conditions. See LBP-85-14, 21 NRC 1219 (1985). Intervenors Limerick Ecology Action (LEA) and Robert L. Anthony / Friends of the Earth (Anthony / FOE) appeal the Board's de-cision.2 On the other hand, PECo, the Commonwealth of Pennsylvania, and the NRC staff urge amrmance.2 For the reasons set forth below, we 3 Appea;s raising techmcal, environmental, and onsite emergency planning issues were addressed at earlier stages of the proceeding. See ALAB-785,20 NRC 848 (1984h ALAB-804. 21 NRC 587 (1985h ALAB-819. 22 NRC 681 (1985). The Commisuon has declined resiew of each of thew decisions. Sec Notices from the secretary (March I.1985; May 31.1985h CLl 86-5. 23 NRC 125 t1986L Appeals from the Licensing Board's fourth partial imtial decision, concermng the adequacy of the emergency plan for the state Correctional Institution at Graterford (which lies within Limerick's emergency plan-ning zone), are pendmg.

2 Another intervenor. Air and water Pollution Patrol ( AWPP), also filed a notice of appeal. but neser submitted a supportmg bner, as required by the Commnsion's Rules of Praciice.10 C F R. 4 2.42f he.

AWPP is therefore in default. and its appeal from the Board's third partial imtul deaunn is dismiwed See 10 C.F.R. ( 2.707; PuNr Servar Co. at /m/urva af arNe Hill Nuclear Generating Statum. Units 1 and 2). ALAB-461. 7 NRC 313. 315 i1978h ifesumper Poner amt Itehr Co. (Grand Gulf Nuttear h ison. Umts I and 2). AL AB-140. 6 AEC 575 fl973L We theiefore need not decide unether W PP -

which did not participate in thn part of the proceedmg before the Licenung Board - has standmg tu appeal LBP 8514 3 We are compelled to note at the outset that the state of the appellams' 5nefs. as well as the record. m this proceeding made appellate resiew a formidable ink Arpellams' hnefs are poort) orgamied and hard to follow. Much of LEA's bner, in particular, amounts to a " cut and reic' collection of its prn-posed findings and portions of other carher Glings LEA also rehes on eghibets that were neser offered mio evidence. It mentmns, m passmg adverse Licenung Board ruhngs, but fails to obiect specifically to them. We are sensitise to the hmited resources of many miervenors, but we can address oniv those arguments that are articulated lucidly enough for us to comprehend.

The other parties are not blameless. insofar as the state of the record is concerned either. Applicani s counsel, in particular made numerous, frivolous objections to testimony, leadmg other counsel to do hkewise. This served only to waste valuable time and to freight an already lengthy transcnpt with pomi-less. distracting material. See entra p. 502. Further, the pretiled testimony of some parties was unpaginat-ed and assembled in a disorganized and confusing manner.

(Contmmt) 485

4 4

reverse and remnnd for further action on one issue (school bus driver availability) and otherwise affirm LBP-85-14 subject to an additional condition concerning traffic control.'

I.

RELIABILITY OF THE EVACUATION TIME ESTIMATES The Licensing Board received extensive evidence on various issues concerning the Evacuation Time Estimates (ETE) for the Limerick plume emergency planning zone (EPZ).5 The purpose of an ETE is to provide information (i.e., the time required to evacuate the EPZ and any unusual problems) so that emergency coordinators can decide what protective actions (such as sheltering or evacuation) might be necessary.

The Commission's regulations, however, do not set any particular time limits for evacuation of the EPZ. Cincinnati Gas & Electric Co. (Wm. H.

Zimmer Nuclear Power Station, Unit No.1), ALAB-727,17 NRC 760, 770-71 (1983).

LEA contention 23 generally challenged the reliability of the Limerick ETE.* The Board concluded, howcVer, that the ETE study is consistent with the NRC's regulatory requirements and guidance and is reasonably accurate. See LBP-85-14, 21 NRC at 1236-50. On appeal, LEA raises a number of objectiuns to the Board's findings and conclusions in this regard.

A.

Identification of Transport-Dependent Population Emergency planning officials from Montgomery, Chester, and Berks Counties conducted a survey to determine the special needs of the resi-dent population within the Limerick emergency planning zone.' The survey was mailed to every home or building in the EPZ that receives a Compoundmg these problems was ane lack of care taken to prescrse the record in tha caw Only about e5 of the 207 eWbits tendered weg eser submitted to us and to the Commiwon's Secretary, tne otTieial custodian of the record, and not all eshibits were listed in she appendis to the Licenung Board's decision Esentuall> Licenung Board pers<mnel located ai teast eme corri of Ji! but a few ethibits. show not located fortunately were not esential to our reuew. Equai!>. if not more. important. a licenung board's citatmns to the record should he torrect and accurately reflect the merall gut of the ma'erial.

relesant. and noncumulaine eudence.

4 In \\ LAB-308, 21 NRC 1505 e19856. we demed LETi motion for a stay of the Board', third partui mitial deciuon. The Commiwan made a umdar determmation in cLI 8513. 22 NRC 1 f 1985) f For a general discussion of the emergency plannmg requirements for a nuclear facdity, we Lamr s.u s g ; 9 ci.-.4,

u...-. g.M N 1)Mi I L AL AB-832. 2J NRC 135.143 45 (1986L

• TNs war.Ls L.,

The draft county plans are deticient because they do not cont.ein reliable esacuation time estimctes.

' The Limerick EPz has a radius of roughly ten miles and includes portions of each of the three named countses. See aAn m/ra pp. 497-$aM.

486 i

l

4 PECo electric bill. It asked the recipients to indicate, via an enclosed pre-addressed, postage prepaid envelope, if anyone in their households would have a special need (such as transportation) in the event of an emergency. The names, addresses, and telephone numbers of such indi-viduals were then collected and Gled with the appropriate local emergen-cy planning center. The Licensing Board concluded that these survey data are accurate and can properly be used for planning purposes. Id. at 1245-47. See also id. at 1389.

LEA argues that this method of identifying the transport-dependent population is inadequate and, as a result, the number of buses necessary to evacuate such persons is understated. More trips would therefore be necessary, causing delay and undermining the accuracy of the ETE.

LEA contends that 1980 U.S. Census data should have been used in-stead, as suggested by the principal emergency planning document pre-pared jointly by the NRC and the Federal Emergency Management Agency (FEM A) - NUREG-0654/ FEM A-REP-1, " Criteria for Prepara-tion and Evaluation of Radiological Emergency Response Plans and Pre-paredness in Support of Nuclear Power Plants" (Rev. I 1980) Appendix 4 at 4-2 [hereafter, "NUREG-0654"). By multiplying the number of households with no vehicles, as sht vn in the Census data, by 2.59 (the average number of persons per household), LEA Gnds many more trans-port-dependent people, particularly in the more densely populated areas like Phoenixville and Pottstown, than was reflected in the counties' survey data. LEA also claims that the survey overlooks many day care facilities, further distorting the transport-dependent numbers. Brief in Support of Appeal Gune 13,1985) at 16-23, 30-31 [hereafter, " LEA's Brief"].

We see no basis for disturbing the Licensing Board's judgment that the transport-dependent population has been adequately identified. At the outset, we note that although NUREG-0654 states that special atten-tion should be devoted to the transport-dependent population, it permits

" alternative approach [es]" to estimate the number of persons insolved:

Census "or other reliable data" may be used. NUREG-0654 at 4-2 to 4-3.' Moreover, this document " simply servels) as guidance for the stalTs review and [does) not prescribe regulatory requirements."

ALAB-819, supra note 1. 22 NRC at 710.

• FEM A agrecs thJi "a sursey can be an asceptsNe technique for measurme the tr.instwrt-deWndent populJtion." FENI A l'pdate. fa Tr.'n.150. at 5.md. numbered 4 I re-I i \\ 'D 487 i

L

1 l

1 C.

Mobilization Times LEA also appears to challenge certain mobilization times in the ETE.

See LEA's Brief at 32-34. As we understand its argument. LEA con-tends that the average one-hour mobilization time for school buses in the ETE is " unrealistically brief" because it does not include " travel time to the school and time to load the buses and incorrectly assumes "prepositioning" of buses. /d. at 32. LEA also points to the Licensing Board's acknowledgment that, in a " worst case" scenario, mobilization times could exceed one hour. / bid. See LBP-85-14,21 NRC at 1248.

LEA has again misunderstood the testimony and evidence adduced in connection with the ETE. In the first place, the ETE's average one-hour mobilization time does include travel time from the garage to the school and time for loading the students onto the buses. Applicant Exh. E-67 Evacuation Time Estimates (May 1984), at 5 5 [hereafter, "ETE"h Bradshaw and Klimm, fol. Tr.17,191, at 16-17: Tr.17,258-59. LE A ap-

. parently confuses the ETE's one-hour school bus mobilization time with the longer " unit mobilization" times in the Montgomery County Radi-ological Emergency Response Plan (RERP). As the Licensing Board found, these unit mobilization times (up to two hours for about 20 per-cent of the bus providers) " include the time necessary to obtain drivers and have buses ready to depart from a provider's garage" - in addition to the travel time from the garages to the schools, which is already included in the ETE. LBP-85-14, 21 NRC at 1248. See Tr.12,955, 17,259.

It is reasonable for the ETE to exclude the increment of time neces-stry to gather the drivers and prepare the buses for departure because, in "the most likely scenario," this activity will occur well before any order to evacuate. LBP-85-14,21 NRC at 1249. Contrary to LEA's asser-tion, school and county plans provide for the notification of bus provid-ers at the alert stage" and the positioning of buses at staging areas or as-signed schools in advance of any evacuation order. Bradshaw and Klimm, fol. Tr.17,191 at 16. See, e.g., Applicait Exh. E-3. Montgomery County RERP, at 1-2 to I 3." Thus, even though additional time may be necessary to mobilize some drivers and vehicles, this is pre-evacuation

'2 The aserage one hour tir:e is actuaih a 30 to 90-minuie range. ETE ai 5-3. 4-5. cradsham and Klimm. fol Tr.17.191. at 16-17.

33 There are four categories of emergencies (in ascending order or signincancel -

-f il notincation of unusual events. (2) alert, (3) site area emergency. and (4) general emergency." to C F R. Part 50. Ap-pendia E. ( IV.C.

H LEA's reliance on Zimmer is misplaced. There we found certain county plans for school evacuation to be dencient ror lack of details about how buses and drivers would be mobihred.17 NRC at 772 73.

No similar claim is pressed in connection with the particular LEA contennon as issue here. But ser mira pp. 512 20.

I 490

t activity that does not undercut the validity of the ETE's assumption of a one-hour mobilization time commencing with the decision to evacuate."

LEA's claim that the ETE should be based on worst case assumptions is unconvincing. PECo's expert witness, Robert D. Klimm,' explained that the purpose of an ETE is to provide a representative time frame for evacuation so that emergency officials can make well-informed, realistic decisions about protective action options. Tr. 13,871, 17,260. This is consistent with the NRC staff's planning guidance in NUREG-0654, which makes no mention of the use of worst case assumptions but does refer to consideration of " normal" and " adverse" conditions expected as a result of specific site characteristics. See NUREG-0654, Appendix 4 (especially at 4-6,4-7). See also Zimmer,17 NRC at 770-71. As Dr. Ur-banik testified, the ETE was prepared in accordance with NUREG-0654 and thus took account of a wide range of seasonal, weather, and other conditions. See Tr.19,223; ETE at 2-1 to 2-8. In these circumstances.

we cannot agree with LEA that the ETE must be premised on worst case scenarios of bus mobilization times.87 D.

Traffic Flow Assumptions LEA is also generally critical of the "zero base traffic How" assump-tion of the ETE and the study's failure to compare evacuation traffic pat-terns with actual rush hour conditions. See LEA's Brief at 35. Although the traflic flow assumptions underlying the ETE could be better ex-plained in the study, the ETE's methodology in this regard is reasonable and does not conflict with the staff guidance on ETEs in NUREG-0654, Appendix 4.

The zero base flow assumption is simply one of the " blocks" used in l

" building" a computer model of an evacuation. It places all vehicles for the various population groups in the EPZ (i.e., permanent residents, per-sons at special facilities such as schools and hospitals, and transients) at 4

their points of origin at the time of notification of an evacuation. They are then added onto and distributed throughout the evacuation network U lt hears repe.stmg that there a me regulators time limit for an cusuation r any part thereor %v wrira p 4R6 P' \\f r K!smm. a transportanon engineer. is the prmural author of the t.imertsk l.TE and a descioper os the wate.ot'-the art SFTv \\C u.mputer simulanon eucuanon model. which has been used a' approu-mately 21) nudear power t%nt site, throughout ihm country Klimm. foi Tr.13.794. Prorewonal Qual.

iticanons siatement: Tr.13 ?95. 13.81 t*-23.

17 in ALAB 819. 22 NRC at 713. we pomted out that the low probability that an accident requmng evac.

uanon might occur is not an appropriate considerauon when determming the adequacy of an emergency plan. That does not mean. homeser, that the options prouded ror under the plan must assume. in adds-4 tron. the presence cJ the worst concessable eistraneous condinant Se erneral/r Tae Lsus Ohrstw iforhm for Per t %RC 729 F 2J 26 iD C Cir.19R68 f en banet 491

over a period of about two and one-half hours. In reality, of course, many of these vehicles would already be in transit somewhere in the traf--

fic network. Contrary to LEA's apparent belief, no one associated with the ETE meant to suggest that the traffic routes would, in fact, be empty. Simulating the position of these vehicles in the network, howev-er; would be difficult and would invariably lead to double-counting and an unrealistic basis for decisionmaking. See supra p. 491. Hence, to minimize this problem, the ETE model simply assumes the vehicles will evacuate from their respective origin points (e.g., residences). See ETE at 2-3, 5-2, 5-3." Most important in terms of the study's integrity, how-ever, is that all vehicles are accounted for. See Tr. 13,866-70, 14,033-39. See also Tr. 19,213-14 (zero base flow assumption neither re-quired nor prohibited by staff guidance).

Similarly, the ETE does not superimpose postulated evacuation traffic on actual rush hour traffic, so as to avoid the double-counting problem.

Tr. 19,214-16. Further, hlr. Klimm testified that comparison of these two traffic patterns would not be particularly useful inasmuch as the con-ditions underlying each (e.g., origins and destinations and the extent of traffic control) are so dilTerent. See Tr.17,040. LEA has failed to con-vince us otherwise - i.e., that such a comparison would be relevant.

II. TRAFFIC CONGESTION OUTSIDE THE EPZ LEA contention 24, combined with Anthony / FOE contention 1, raised concerns about traffic congestion in two areas beyond the EPZ -

the Route 100 corridor between Marsh Creek State Park and Exton (see Applicant Exh. E-69), and the Valley Forge National Park and King of Prussia area, primarily in Upper Merion Township (see Applicant Exhs.

E-68 and E-92). The contention sought inclusion of these areas in the EPZ or, in the alternative. " adequate plans for traflie control and direc-tion."'* Although the Licensing Board found no basis for enlarging the EP7 to encompass either of these areas, it concluded that additional traf-fic control is necessary in the King of Prussia area so as to assure that

'" h en ihn.mproash n wn.ersaine due tou rtain ineutable double-mummg l'or instance, tr..nuents 6 e. workers. shoppers, and s nuorst nu).dus he permanent re=4 dents and thus are counted take F TF at 31,3 7. \\lorenser. sehrstes temporarily out of the. rea are neserthelew instuded as well.

'* The combined comemion states m fu:1.

There n no assurance that plans for eucuaison of the tert mile radius udt not be impeded h>

tralTec congestmn m the uomty of \\f arsh Creek Sute Park. Eston area Gnudung Route iam and v.illey Forge P.trk. Kmg o(Pruwia area.

These areas should either be in tuded m the l-mergency Planmng Zone or adequale piar's far s

tratlic wmrni and threttion shouM he made to asoid.idscrse effects on FP/ eutuation 492 l

evacuation trafGe can continue to move once it reaches the EPZ bounda-ry. The Board accordingly imposed a license condition requiring the NRC's Director of the OfGee of Nuclear Reactor Regulation (NRR) to verify plans to implement such trafGe control before authorizing opera-tion of the Limerick plant above Gve percent - of rated power.

LBP-8514,21 NRC at 1250-69, I407.2a LEA devotes a substantial part ofits brief to the claimed need for traf-Gc control in the two non-EPZ areas in question. We thus turn to those arguments first.

A.

Traffic Control Points The ETE shows expected traffic congestion (vehicle queuing) at vari-ous time intervals during an evacuation. At the 270-minute mark in the simulation, virtually all queuing within and just outside the EP7. has dis-sipated. ETE. Appendix 11 (especially at All-4 All-7). See LBP 14, 21 NRC at 1252-53. LEA complains generally that this analysis is

" wrong," particularly insofar as the King of Prussia area is concerned, but provides no concrete or specific reason for rejecting the ETE's hy.

pothesis. Instead, LEA simply asserts its belief that queuing will likely continue in this area beyond 270 minutes into the evacuation. See, e.g.,

LEA's Brief at 36-37, 44. Such speculation, however, does not supply an adequate basis for a serious challenge to the ETE.2' Most of LEA's arguments, however, boil down to the same basic point - the need for advance identification of and planning for addition-al trafGc control points in the Valley Forge / King of Prussia area. Sec.

e.g., LEA's Brief at 38, 40, 42, 45-47, 53. See also Anthony / FOE Brief (June 6,1985) at 3. LEA relies principally on the testimony of Dr. Urba-nik to support this view. See Tr. 19,277-83. But as a result of that very testimony, the Licensing Board has, in fact, provided for additional traf-Ge control in the Valley Forge / King of Prussia area in the form of a 2d \\s dxu<wd belum Ir 494s. pursuant to thn requirement l' addmonal sortrol pwnh hase Nen deugrated and will f or ma).dreadyl be mentporated mio the Nlontgomery and ( hester ( ounts rads-olog.eal emergeng response ria ts %v Letter from D F. llawell to Lkenung Board done i le5s.

EINiosure meth \\ttachmems (hereaf er. " FEN 1 \\ \\lemoranda~l. The Commewon subsequenth author.

t Ued Msu.ance of a f ull-power literp

.id the plant n in operation. Sv CLI 11515. 22 S RC I!L4 e 19454.

3 f n thn enonection L F \\ claims that u was denied she opperiunits so question \\lr khmm about uuvu.

mg he>ond the 2'0-mmute mark. mhile the I.kensmg Board itsell pursued the matter. I l \\N liriet at A The referenced portions of the hearmg transript hometer do not support l I \\'s dami rhe floard only sustamed an oNestion to ths (haracternation of a map in the FTL as not whommg areas nubede o

the F P/. Tr 13.931-33 Indeed. it is apparent from the testimom and the nups themsehes thal the) do whom area <.md queumy beyond the LP/. FTF. \\ppenda 11. rr 14 2:11 fi n equalh appareni that L F \\ mas not precluded from questiomng \\1r. Khmm amma the hasu of the 1 il N sonsluunti that uus u-mg well dimp.ne outude the l P/ M the 2'0-moiuie mark.

493

license condition. LT-85-14, 21 NRC at 1254.1269,1407. And, as noted above (note 20), 17 additional control points have c' ready been designated in fill!illment of that license condition. Thus, the request for

" adequate plans for traffic control and direction" in the Valley Forge /

King of Prussia area in LEA contention 24/ FOE contention I has been 9

satisfied.22 LEA complains, however, that the Board's imposition of a license con-dition in response to contention 24 denied its asserted'right to cross-examination on the matter of additional trafne control. See LEA's Brief at 44,52. LEA thus contends that the Board improperly delegated to the -

staff the post-hearing verification of these trailic control measures. Id. at

51. These arguments are without merit.

In general,~ contested issues should be resolved through the hearing process and not be left for post-hearing resolution by the staff. Conm/i-dated Edison Co. of New York (Indian Point Station, Unit No. 2),

CLI 74-23, 7 AEC 947,951-52 (1974L in Water /brd. supra note 22,17 NRC at 1103-04, however, we explained that findings in the emergency planning area are essentially predictive in nature: an emergency plan need not be final in every detail, just sufficiently developed to permit U LET raises seseral other objechons to pnmard) eudentury rulings h) the 1.icenuet Beurd m connec.

tion wnh the tratUc comrol iwue. specifically, it claims that the Board wrongly ewiuded the testimon) or Ronald w genmann. Manager of Upper Merion Township (the valley Forge / King of Pruwia areat a

on " spontaneous evacuation outside the EPZ. (This is "soluntary" esacuatum by perum, not required to evacuate under the emergency plan. Sv l.ormamt Powr am/ Lielr/ Co (% aterford steam Electne sta-tion. Umt 3L AL \\B-732,17 NRC 1076. I10102 & n.41 (1983U LFra Bnef at 38. 45 LE \\ also com.

plams about the BoardN ewluuon of two ethehin fI.E A Eshs. E.46 and F-56L.n well.n its thwuwson of the tesumony of Dr. Norman vuu. Township supersisor and Emergency Management Coordmauer

+

for schuylkill Township. LEA's Snerat 32,42. 55.

LEYS arguments about the cwfusion of iH I%hs. E.46 and E !6 are groundlew 15 i was unahfe to produce witnesses who were wdling an.1 able to spamwor and testify about thew documenu ta trafUc en-gmeermg master plan stud > of the Routes lWI sod !!) corndors. and an munni tradie cods for l'oper Menon Township 6 Tr 19A41-43.19.l'4-81. heordmpf). the Kurd properh culadca them from eu.

dence Tr 14.0M.19.100 %v Du4c /%cr rb t% dium n \\lmmre % stear suoon l ~ms I arst 2t

\\ L T B.669 15 NRC 45.1 47' 814426 \\lorense the two amumens hase Ntte retesance in the emergeno esasuaimn plan for I amerid and. thus. would haw Nen enntled to hnnied acyht m an) esent L E A's mher argumens, homeser. h. se ome ment. Lirst. the IAenung Eurd su,t emed mm oNection to \\nthon)/FOEN anempt to questeon \\f r. %;genmann aN,ut pimt,ineous eucuaimn m I peer Menon rownship Ncause n was "be>ond the wope of the enmennon " Tr l' 419 < bm/wc Tr 13.*f t !3 iLE.\\'s crow-esamin.ition of \\f r. Khmm abi.ist mnitt.meouc casuation outude the EPb But LE \\ somennon 24/ foe 60mennon I refers to the rowible :idwr e errsa ot' tr. silk sonp tion m that sicimly. whwh rcJumabh encompawes spontaneous eutuapon.is a sour e of that trank s

congesnon. Sv Tr. 14.372 73 second although the Board did not 99nore" Dr. vut/s tesumon). as LE \\ claims (LENS Bnct at 42L g sets o forth in a wmewhai incomnieir w ~'* *"p a, & r, LBP 83 it D NRt. at 1206 6L with Tr. 14.423 549. For esample. akhough Dr. Vut/s understandmg of some of the assumptions m the ETE was nm correct. that was due in shortcomings in the ETEN es.

planatory materul or the scry brief time alTorded him to resiew the ETE - not a lask of dihvence on his part. as the Board imphes &v Tr. 14.450-62. But because both the % avennunn and Vuu testimony was imended to show a need for more trat& control and the beense condmon imsvned b) the Roard meets that need, any errors by the Board in vis treatment of their testimon) were harmlew 494

the " reasonable assurance" finding required by the Commission's regu-lations,10 C.F.R. { 50.47(a)(1). Consequently, in some instances post-hearing verification by the staff of emergency planning measures is not an improper delegation of decisionmaking authority to the stalT.

In Waterford. for instance, we concluded that post-hearing verification by the staff of the installation and testing of the siren warning system, completion of letters of agreement for vehicles and drivers, and certain details concerning the communication system for the Emergency Sup-port Organization was proper. Each of there items is essentially a detail relating to the implementation of the emergency plan, rather than a basic ingredient of the plan itself. See also Pacv7c Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units I and 2), ALAB-781, 20 NRC 819,832-35 (1984) (certain deficiencies in county public informa-tion program and the emergency communication system can be resolved after hearing, through license condition).23 The same can be said here about the plans for greater traffic control in the Valley Forge / King of Prussia area. Traffic control is achieved by the stationing of Pennsylvania State Police or local law enforcement personnel at designated locations (usually intersections) to restrict access to certain roads or to direct traf-fic more safely and expeditiously through an area. ETE at 7-1, 7-7.

Thus, the Licensing Board did not err in authorizing the staff to verify the designation of additional traffic control points.24 It follows that LEA was therefore not entitled to any cross-examination on the plans for additional traffic control. In any event, LEA has failed to explain exactly what relevant information it would have sought to elicit by such cross-examination :5 or to show how it has been prejudiced. See Waterford,17 NRC at 1096. As LEA recognizes, developing a traffic control plan requires participation by local officials 23 Bv cor trast, in 24mmer.17 NRC at 773 74. we determined that. among other things. the adequacy of applicam's emergency communication system had not been shown on the record. In this circumstance, we concluded that intersenors were entitled to a beanng on the adequacy of an alternative system, which was not descnbed in the emergency plan.

24 To support its argument about addinonal trarlie control. LEA ates the Licensmg Board's determina-tion m Snahrnr Cab /arma Ehson Co. (San Onoire Suclear Generating Station. IJnits 2 and 3L LBP-82-39.15 NRC 116).121617 (1982). that the adequacy of arrangements for medical services for the public cannot he left for post-hesnns stail resolution. For our purposes here. we need not recite the lengthy subsecuent history at the Commisson and in sourt of this Saa Ono/rr decision. suffice it to say that we agree that the determmation of the overall adequacy of medical arrangements. specifically re-quired by 10 Cf R. ( $0E(bH12). is not a proper subject for post hearing statT osersight. See aho ALAB-819, 22 NRC at 711 15. But the difference between that crincal element of emergency planmns and the designation of several more traffic control points is manifest.

25 LEA does state that it would " cross-examme the relevant authorities as to the intent to implement such measures and the ettent of preparation." LEA's Brief at 52. But these matters go well beyond the scope of the contention. Ser spra note 19.

495

G with local trafGc knowledge. See LEA's Brief at 40.26 Accordingly the involved counties and townships, as well as the State Police, worked with PECo's consultant in designating the 17 points added to the Valley Forge / King of Prussia area and approved by FEMA and the Pennsylva-nia Emergency Management Agency (PEMA). See FEMA Memoranda, supra note 20. What LEA's cross-examination would have added is not evident.27 We do agree with LEA and Anthony / FOE, however, in one respect.

The record (particularly Dr. Urbanik's testimony) also demonstrates a need for more traffic control in the other area speciGed in LEA conten-tion 24/ FOE contention 1 - i.e., the Route 100 corridor near Marsh Creek State Park and Exton. See LEA's Brief at 37,' 39, 47, 49; An-thony/ FOE Brief at 4-5.2: SpeciGcally, Dr. Urbanik testiGed as to the need for trafDc control at the Downingtown interchange (Exit 23) of the Pennsylvania Turnpike. Tr.19,229. He explaincd 2::, without access control, traffic evacuating south via Route 100 could enter the 'urnpike at Downingtown and travel east. The next turnpike interchange is Valley Forge, where other evacuation traffic will be directed to enter the turn-pike (designated as Interstate 276 at this point) and to continue east. See Commonwealth Exh. E-9, Evacuation Plan Map. Dr. Urbanik thus sees a conDict in the demands that could be placed on this part (Interstate 276) of the turnpike and a corresponding Haw in the ETE's assumption that this roadway has adequate capacity. He therefore suggested that some measure of traffic control be considered for the Downingtown in-terchange area. Tr. 19,234-39.

The Licensing Board's decision brie 0y addresses the issue of traffic control at the Downingtown interchange. See LBP-85-14, 21 NRC.at 1259. The Board cites Mr. Klimm's testimony that PEMA, the 26 Even Dr. Urbanik. on whose testimony LEA relics. was not withng to identify the specifk !<waisons of the trafne control pomts he urged be added. Tr.19.281.

27 At orsi argument. LEA claborated somewhat on what it would hase pursued. See App Tr. 12 17.99 18 referred to a study. but that document was properly escluded from the record. S.r mera note 12.

LEA also indicated that it would have questioned a consultam who assisted m designatmg the additional 17 trame control pomis. But, agam, it is not clear what meanmgful information LEA hoped to eiwit. It is worth noting. in this connection. that LEA did net pursue any particular cross-esamination with regard to the hundreds of trafGe control pomis, inside and outside the EPL aircadv designated in the county emergency plans. See Applicant Eth. E l Berks County RERP. Appendia K.2. Apphcant Esh.

E-2. Chester County RERP Annes K. Appendix h ApphCJnt Enh. E-3. Montgomery County RERP.

Appendices K-2. K-4; ETE at 7 2 to 7 6. 7 8 to 715. without specines from LEA it is thus diMcult to perceive the hkely nature ofits cross-examination on the additional pomts.

21 Some of Anthony / foe's argument concerns the asserted need for control of through trafnc in areas other than those speciGed in the contention and litigated below. These arguments cannot be property raised for the Srst time on appeal. See ALAB-819, 22 NRC at 699 n.20; ALAB-428. 23 NRC 13. 20

)

(1986L 496

Pennsylvania Department of Transportation (PennDot), and county offi-cials believe most vehicles will continue evacuating south on Route 100 and will not enter the turnpike. In their view, persons who nevertheless do enter the turnpike east at Downingtown would not affect the evacua-tion time estimate. See Tr. 13,953-54, 14.071-74, 14,082, 17,056; Klimm, fol. Tr.13,794, at 3-4. The Board, however, fails to discuss Dr.

Urbanik's contrary testimony. See Tr. 19,229, 19,234 39. We find per-suasive his concern that, because the turnpike is an obvious choice for long-distance travel, many will opt for that route, rather than continuing on Route 100 south. See Tr.19,239. Further, this view is not effectively refuted by the other cited testimony, which clearly recognizes the possi-bility of use of the turnpike option at Downingtown.

We therefore conclude that, just as Dr. Urbanik's testimony provided the basis for requiring more traffic control at Valley Forge / King of Prus-sia, it supports LEA's argument of a need for traffic control at Downing-town. Accordingly, as a condition for continued operation under its already-issued operating license, we direct PECo to take steps to estab-lish in the appropriate emergency plans traffic control measures in the area of Route 100 and the Downingtown interchange of the Pennsylvania Turnpike. As in the case of the other 17 additional points, the Director of NRR is to verify that this action is taken within a reasonably expedi-tious period of time.:'

B.

Scope of the EPZ The Commission's regulations provide that Iglenerally, the plume exposure pathway EPZ for nuclear power plants shall consist of an area about 10 miles (16 km) in radius.. The exact size and conGguration of the EPZs surrounding a particular nuclear power reactor shall be determined in rela.

Lion to local emergency response needs and capabilities as they are alTected by such conditions as demography. topography. land characteristics. access routes..ind juris-dictional boundaries.

10 C.F.R. } 50.47(c)(2). Both LEA and Anthony / FOE argue that the Limerick EPZ should be enlarged to include Valley Forge National Park and N!arsh Creek State Park. LEA's Brief at 54-55; Anthony / FOE Brief 1

29We leave to the discretion of the involved federal (FEM A and NRCL state, and local officials the de-casion as to the type of traffle control dtsirable at Downtr>gtown. For esample. permitting entry only to the turnpAe west might well be preferable to totally denvmg access to the turnpike at this mterchante.

497 v

at 2 3. Except for a small portion of Valley Forge already included, both parks liejust outside the EPZ. See Commonwealth Exh. E-9.

Intervenors' arguments stem from LEA contention 24/ FOE conten-tion 1, which proposed including these park areas in the EPZ as an alter-native to additional traffic control and direction. See supra note 19. Be-cause added traffic control is now required for both the Valley Forge /

King of Prussia area and at Downingtown in the Route 100 corridor near Marsh Creek, LEA's and Anthony / FOE's arguments are moot. Even if they were not, however, we see no deficiencies in the scope of the EPZ.

The Limerick EPZ was defined by state and local emergency planning officials in accordance with 10 C.F.R.150.47(c)(2). Intervenors have failed to show why the judgment of these experts is wrong or not due the deference contemplated by the Commission's regulations. See 45 Fed. Reg. 55,402, 55,406 (1980) ("The exact size and shape of each EPZ will be decided by emergency planning officials after they consider the specific conditions at each site").)o LEA and Anthony / FOE also do not explain what formal inclusion of these parks in the EPZ would accomplish. There is no question that the emergency planners considered both areas in determining evacuation routes. They concluded, however, that traffic originating there would not significantly affect the estimated evacuation time for vehicles leaving the EPZ. Further, the National Park Service (NPS) has expressed its willingness to cooperate during an emergency and to aid visitors to Valley Forge in exiting the park if necessary. See, e.g., Tr. 14,567 69, 14,594,14,679-86. See also LBP-8514,21 NRC at 1255-66.)'

Anthony / FOE, however, raise several separate issues relating to the scope of the EPZ. They allege that FEMA has not fulfilled the responsi-bility to consult with state and local governments about the exact size and configuration of the EPZ, imposed by 44 C.F.R. f 350.7(b). Similar-ly, they assert that, as specified in 44 C.F.R. Q 350.3(d), FEM A has not consulted with the National Park Service to determine the latter's view on including Valley Forge in the EPZ.n Anthony / FOE rely on two letters from regional officials of FEMA and NPS. stating (in response to Free-dom of Information Act requests) that they had no information in their M lt is mieresimg to note thJi Dr. Urbanik - upon whom LE 4 otherwne rehes - tesistied that. in his judgment, there was no need to mclude Valley Forge National Park m the EPL Tr-19.264 61 Il \\t oral argument. LEA referred to the need for consistency and NPS insolsement in the process

\\pp. Tr 2L31. With respect to the latter pomt. we espiam at ur/ra p 500. that NPs was insolsed i't the emergency planning process. Further, as noted abose. NPS is willms to cooperate with state and local otTicials dunng any emergency. thus avoiding probierns of "inconsister cy."

32 44 C.F R. 6 350.J(d) refers to FEMA's ongomg "cooperatise effort with State and incal governments and other Tederal agencies in the deselopment of state and local plans and preparedness to enpc with the ofTsite etTects resulting from radiological emergencies at cr mmercui nuclear power raalities."

498

Gles about the establishment of the Limerick EPZ. Anthony / FOE Brief at 1-3, Attachments.

Anthony / FOE's arguments are without merit." First, while FEhl A's Ondings constitute rebuttable presumptions on the adequacy of state and local emergency plans (10 C.F.R. f 50.47(a)(2)), it is not the NRC's function to monitor FEhlA's work for compliance with that agency's own regulations. See hiemorandum of Understanding Between Federal Emergency hianagement Agency and Nuclear Regulatory Commission, 50 Fed. Reg. 15,485 (1985) [hereafter, "FENI A/NRC NIOU"), which sets forth the respective emergency planning responsibilities of, and the areas of cooperation between, FENI A and the NRC."

In any event, there is nothing to suggest that FEhlA did not comply with its own rules in this case. Pursuant to 44 C.F.R. } 350.7(h),

ltlhe exact size and configuration of the EP7.5 surrounding a particular nuclear power facility shall be determined by State and local nowrnments in conwltanon mth EDI4 and NRC taking into account such kwal conditions as demography, topogra-phy, land characteristics, access routes and kwaljurisdiction boundaries. lEmphasis added.1 FENI A stresses "the intention of this section to encourage the exercise of local planning responsibility, judgment, and decisionmaking." 48 Fed. Reg. 44.332, 44,335 (1983). This is precisely what occurred with regard to Limerick. State and local emergency planning and transporta-tion of0cials initially denned the boundaries of the EPZ. See, e.g., Tr.

19,495-97. FEM A subsequently reviewed their work. Tr. 20,234. As Richard Z. Kinard, FEhl A's project officer for Limerick, explained:

We. at FEM A. work with sarious emergency management organisations, including PEM A. counties. municipalities, and school districts where necewary. We know of the espertig of the emergency planners in these ditierent Gelds. We respect their abilities in the Geki of emergency planning. We feel that the indisiduals at the county. at the state, and at the munistralities base a much slearer leeling as to the local sonditions in the areas surrounding nuclear power plants than we do And we

" \\lthough the letters on whish.\\nthons/lOl' rel> rane questions. shout the resord keeping prattises of I l \\1 % and NPs. ihey are not part of the record on appeal in ihn caw. Thus. the) 6annot proskie a basis for any ruhng here \\l. \\B-323. 23 NRC at 20 Esen 4 we could property coeuder the letters. how.

eser. they are not ugndkant enough to thange the pukome.

4 Thn \\lemorandum ut t nderstanthng superwdes that adopted in IWill '44 l'ed R ey R2.?ID and sils'd by the !.isensmit H.urd fI.HPJt$.14, 21 NRC at 1228-2H The ddrerenses in the imo memoranda.

Neemet er.Je noi pertinent to our disusuon 499

s are not deferringjudgment to them. We honor theirjudgment and beliese their eu pertise in this,srea is well warranted.

Tr. 20,243. See also Tr. 20,242,20,246."

The record is likewise clear that the National Park Service was consult-ed with regard to the Limerick emergency plan. As the Licensing Board observed, NPS representatives met approximately four times with state and county officials "to discuss notification procedures and the responsi-bility of the National Park Service in facilitating traffic flow through the park as it leaves the EP7.." LBP-8514, 21 NRC at 1261. See Tr.14,563, 14,656, 14,666-69. 14,679, 14,680-81. Presumably, this provided NPS the opportunity to seek inclusion of Valley Forge within the EPZ, but it chose not to do so. Indeed, it is clear that the Park Service is willing to defer to the judgment of the expert emergency planners on that score.

See Tr.14,659-60. Thus, there is no basis for Anthony / FOE's sugges-tion that NPS had no input in the planning process, particularly insofar as the scope of the EPZ is concerned.

C.

Alleged Procedural Errors in connection with their combined contention on traffic congestion outside the EPZ, LEA and Anthony / FOE claim that several of the Licensing Board's procedural rulings were erroneous and prejudiced them. First, they both object generally to the Board's consolidation of their presentations. See LBP 84-18,19 NRC 1020,1069 (1984). In this

.r regard, LEA complains that it had no opportunity for " cross-examination" of Mr. Wagenmann (see supra note 22), following An-thony/ FOE's direct examination of this intervenor sponsored witness.

LEA's Brief at 41.3* On the other hand, Anthony / FOE complain about the designation of LEA as " lead intervenor" on the traffic congestion issue. Anthony / FOE Brief at 5. Anthony / FOE also object to the time limits on cross-examination imposed by the Licensing Board. They con-tend that as a consequence of these " abuses of the judicial process." the M AnthonpfoE somplam. in this connection, that the Licensing Board focused on WRt:G 0654 too much. to the esclusion of 44 C.F.R. 4 330 7 AnthonWFoF Bner at t Thn argument is trnolous The Board clearly recognued the proper role or the guidante contained in Nt' REG Oh34 BP-A914. 21 NRC at 1223 %v wera p 427 3* LE A also makes an argumem about in Eth E.56. hui its roint n unintelligiNe. In any esent. the Licensing Board properiv refected LEA Esh E-56 % e mera note 22 500

~

4

"(

~

record is incomplete and they have been prejudiced. /d. at 2,5."See also LEA's Brief at 52,68.

The Licensing Board rulings in question, however, are fully in accord-ance with the Commission's regulations and practice. A board's consoli-dation,' on its own initiative, of parties with "substantially the same inter-est.. and who raise substantially the same questions" is explicitly au-thorized by the Commission's Rules of Practice,10 C.F.R. 4 2.715a.3" Consolidation can, of course, be improper if it results in prejudice to an intervenor. Statement of Policy on Conduct of Licensing Proceedings.

CLI-81-8,13 NRC 452, 455 (1981). But the generalized complaints of LEA and Anthony / FOE fail to establish any prejudice in this case. See generally Waterford.17 NRC at 1096.

The Licensing Board's imposition of time limits on intervenors' cross-examination is similarly permissible under the Rules of Practice. In addi-4 tion to conducting a fair and impartial hearing, a board has the duty to j

"take appropriate action to avoid delay" and to "[rlegulate the course of l

the hearing." 10 C.F.R. s 2.718. See also Statement of Policy.13 NRC at 453. It should admit only evidence that is relevant, material, reliable, and not unduly repetitious.10 C.F.R. 4 2.743(c). Further, a board may (c) Take necessary and proper measures to present argumentaine. repetitious, or cumulatne cross.esamination; and Id) Impose such time limitations on arguments as [iti determines appropriate.

having regard for the volume of the evidence and the importance and completity of the issues involved.

10 C.F.R. ( 2.757. Although the rules do not expressly refer to the impo-sition of time restrictions on witness examination, we think this is clearly among the necessary tools an NRC adjudicatory board possesses to regu-late the course of a hearing - again, providing there is no prejudice to the rights of any party.3*

licre the Board thoroughly sets forth its reasons for restricting - after 14 of a total 37 days of hearing - the 4tirect and cross-examination of witnesses by all the parties. The Board nplains that intervenors were i

3' inthony/I-Of refer us to their soeral earlier creals 8 mh th we dammed as interlmumry a ranants thesc *ame obresnons %v. a+ t. \\rreal h) R L \\mhnns/l Of tDwember 10 19448 \\rre d trum R I

\\mhony/ FOE f january 31. lH4 we base it.u+ son 4Jered t ioe arguments in texhms nur desn on here.

" LE A and.\\nthons/ FOE do not dnrute the snmmonali > nriht ir interets

• • The rederal courte hase arrrmest the uw of time limits on srown.iminanon in 6nmelo. length > liu.

pnnn. (Ac se hase here %Y. c.v.

IfCl Communnaroons Ca'te twersan (clmham* and Tricerat*H Ca.

}

v.

'08 f 2d 1031.1170.72 (7th Cir p. cer../ enc./. 464 U S 391 (19sh, tk/cehA ri of 16,IJ/i/c. /c t Ernian.

i errcil % viri kentith tw/mnrt h 9 F 2d 168 till.A? iD C. Cir

• cri <fenr./ 494 t's 94 a 1951 Cf 4

internarmnalliarrever Ca r Ibn kehinms. 4'R f 2d h1.*. MI O C, Cir 1CD 501 1

=

s a

1 i

not well prepared for the hearing and failed to comply with many' Board s

i evidentiary rulings and schedules. Despite being afkrded some leeway.

J' intervenors' lay representatives ' onetheless continued to ask improper.

n

'j.~

repetitive, or unfocused questions of many witnesses. LBP-8514, 21 NRC at 1233-36.

Anthony / FOE fail to refute any aspect of this Board discussion or to establish actual prejudice (for example, by describing the outcome-determinatise testimony that was allegedly precluded by the time restrie-tions). See Duke Power Co. (Catawba Nuclear Station. Units I and 2).

ALAB-813, 22 NRC' 59, 75-76 (1985): '//ouston /.inhrinx & Power Co.

(South Texas Project, Units I and 2), ALAB-799. 21 NRC 360,376-77 (1985). To be sure, the few transcript references cited by Anthony / FOE (e.g., Tr. 17,456, 20,248) show a rather abrupt termination of their cross-examination. Moreover, our own reading of the transcript reveals

- a hearing that the Board allowed to be peppered at times with frivolous time consuming objections by a// counsel to intervenors' attempts to question certain witnesses. See South Texas. 21 NRC at 378. On the other hand, the record overall is testament to the Board's confessed frus-tration in its efforts to conduct an orderly. prcductive hearing.* In this circumstance, we will not second-guess the Board: It did not abuse its discretion in imposing time limits on witness examination.

1

.111. IMPLEMENTATION OF LOCAL AND COUNTY PLANS s

A.

Bucks County in its contention 3, LEA alleged that "[t]he Montgomery County RERP [ Radiological Emergency Response Plan) fails to provide reasona-ble assurance that the public will be adequately protected in that the

~

Bucks County Support Plan, which is essential to the workability of the MontCo RERP. may not be approsed." LHP-85-14. 21 NRC at 1402.4 f

4

'" The umos used and reretone que nomng ' > imersenor.

..t the hsarmg resemhies (bcu hn i,no appeal tendmg further tredense to the I rser emt it.urJ.aun.n % r uuva note %

s M 11 s amennon 3 states. in tual The 4.ntgomers ( nunts Rt R P ta.l* He proude rea,onaMe assur.inse t%t. tie pumn will he ade quaich protected m that she % h Cosmn %,r.twar /Wn whn h n e-.*fo rt to IN w. rk..Lil.i.

the sinmCo RI-RP. mai +,r ov apr urrd The crewnt No..rd a.i ( ommnesontr* h.ne hal Inste knowledge # t the somems and imphsanons of the Bush Coums suppnn Pt.in 1here w no asua.

ame rhar the Cunnrn ne all assunte row enemruholars auremti he at m the suppurt Vtan rashet 1han use foum) resourses in help Hus b Counn people first The %mtynmer) ( ounts 181an sseits on the suppnri Plan in at le.ns these was, I.

faulon:s Inr refswauon and mass sare ut esacuees 2

augmemahon of emergent) workers, ine.ludmg u=e or suunts resours'ev nn,e snnunu-ous 24-hour havs o(imtmrovell 502

t 4

The Licensing Board, however, found otherwise and concluded that there is reasonable assurance that, in a radiological emergency at Limer-ick, Bucks County (which lies outside the EPZ) would implement its 4

current draft plan and support Montgomery County's emergency efforts.

Id. at 1407.

Although the Bucks County Commissioners have withheld their formal approval of the support plan pending the outcome of this and I

other litigation involving Limerick, the Board noted that the County has had an emergency plan for over 15 years and that it had earlier undertak-en certain responsibilities in connection with the 1979 accident at Three Mile Island. The Board also based its reasonable assurance finding on the largely favorable results of an emergency exercise in Bucks County in November 1984. Despite questions raised by County Commissioners about the impact of thousands of Montgomery County evacuees on the safety of Bucks County residents, the Licensing Board was convinced by

{

the testimo.ny of state and Bucks County emergency of0cials that the County would and could cooperate in the event of an emergency, in ac-cordance with the current draft plan. Id. at 1402-07.

]

On appeal, LEA makes numerous arguments ostensibly directed to the Licensing Board's disposition of contention 3. It contends that the adequacy of the Bucks County Support Plan in certain areas has not been demonstrated - specifically, the treatment of contaminated indi.

viduals at mass care centers; the identincation of, and the execution of letters of agreement with, the schools designated to serve as such cen-ters; the number of individuals and amount of equipment allocated for trafnc control and variou: other emergency support activities; and the ability of the plan to accommodate spontaneous evacuation (see supra note 22) by Bucks County residents.42 LEA also complains that the November 1984 exercise on which the Licensing Board relied was too limited. LEA stresses that the Bucks County Commissioners have not yet approved the Support Plan. In its view, the Board should have given this greater weight than the testimony of PEMA and other county ofG-cials. Finally, LEA essentially argues that Bucks County should be a

" risk" county, for which formal emergency planning should be under-taken, rather than limiting the county's role to support activities. LEA's Brief at 215 a See attachmnt "Ewzrpts and commarits on the Bucks County Draft Evacuaison Plan for additional areas of support and interface.

It es contended that mrhour the approval of Bucks Counov Support Pke, the stenrCo RERP is on.

wr>&abk as sr noir stands. (Emphasis added.1 j

42 With regard to the last niem, t.E % ob,ects to the Board's reference to testimony indicatmg that. his-toncally, irontanenus evacuation has not been a prohlem en non radiological emergencret 503 1

d 2,...

Plainly, the majority of LEA's arguments amount to an attempt to expand the scope of contention 3 well beyond its bounds. Although the contention is lengthy, by any reasonable reading it raises but one very narrow issue: whether Bucks County is likely to approve the emergency support plan and assume the responsibilities it has thereunder." It does not challenge the adequacy, scope, or content of the Bucks County plan.

See supra note 41.

Any doubt that the focus of the contention is on the likelihood of Bucks County's approval of the plan is dispelled by a review of how LEA contention 3 came to be admitted for litigation. When LEA initially proffered the contention, the Licensing Board observed that LEA was not claiming any deficiency in the Bucks plan itself; rather, without a plan adopted by Bucks (a support county), Montgomery County's plan would be unworkable. LBP-84-18,19 NRC at 104142. The Board decid-ed to defer ruling on the contention at that time because (tlo admit icontention 31 now might be to burden the proceeding with litigation which, as LEA readdy grants (Tr. 1647. 7665. 7674) may prove unnecessary. Indeed.

we think that something short of formal adoption could make the litigation unneces-sary, for according to the way we construe (this contention). LEA seeks no more than reasonable assurance the planli will be adopted. Tr. 7672. That is all we would seek.

Id. at 1043 (emphasis added). The Board gave LEA the opportunity to resubmit the contention later, when the various emergency plans in question would be more complete. /d. at 1043 44. LEA neither chal-lenged the Board's characterization of its contention 3 nor voiced con-cern about the adequacy of any provision of the Bucks County plan.

After thus being put on notice as to how the Board interpreted the intent of contention 3, LEA later resubmitted it, with wording identical to the original version. The only difference was the addition of a refer-ence to a July 17, 1984, letter from two Bucks County Commissioners, expressing their reluctance to further participation by that county in emergency planning and testing for Limerick. Compare LEA Off site Emergency Planning Contentions Ganuary 31,1984) at 8. with LEA's Respecification of Off-site Emergency Planning Contentions (October 1, 1984). LEA-3 (pares unnumbered and out of order). This time the Board admitted the contention, noting that it was not then clear whether there was " reasonable assurance that the county ultimately will adopt d The stated purpose or thig plan is "to provide for the housing. feeding, medwal and other social serv.

ice needs for a masimum or 24.440 persons esacuated rrnm %f ontgomery County m response to an inci.

dent Jt the lamerwk Generating stationf" \\rplwant Esh F.4 at 7, 504 i

the relevant plans." Licensing Board Memorandum and Order of Octo-ber 26,1984 (unpublished), at 5. Once again, LEA failed to challenge the Board's construction of contention 3 or to attempt to expand it to en-compass more than whether the Bucks plan would likely be approved.

Thus, to the extent LEA's arguments on appeal challenge the adequa-cy of the Bucks County plan, they are impermissible at this late stage and necessarily fail.'d As we pointed out at an earlier phase of this pro-ceeding, "[plerhaps LEA sought to litigate something else,' but it is bound by the literal terms of its own contention." ALAB-819,22 NRC at 709 (footnote omitted).

LEA's arguments that properly relate to the Board's " reasonable assurance of approval" finding fail as well. For example, the Licensing Board did not err in giving weight to the participation of Bucks County in the November 1984 emergency exercise. See LBP 8514,21 NRC at 1403. Certainly, if Bucks County had nor participated in this exercise (after failing to participate in.inother exercise four months earlier), that fact would have been of probative value in determining the merits of LEA contention 3. It is therefore entirely proper for the Board to have considered the county's participation in the November exercise as some evidence ofits willingness to implement its Emergency Support Plan. Al-though the FEMA witnesses were unable to state definitively that Bucks County would implement its plan, they regarded its participation in the exercise as an " optimistic" sign, and concluded that the County had ade-quately demonstrated its ability to perform the support functions called for by the plan. Tr. 20,169, 20,175-76; FEMA Update, fol. Tr. 20,150, at first page. hand numbered 2.*' The County's own Director of Emergency Services, Charles McGill, similarly concluded that the exer-cise showed both the capability and willingness of the participants to per-form their emergency duties. Although the exercise was limited, it served its intended purpose and gave him no cause to doubt that the County could manage a full blown exercise. Tr. 20.386-87 **

LEA relies heavily on the fact that the Bucks County Commissioners have not yet approved the Support Plan and argues that the Licensing 44 Beesuse the details ni the Husks Support Plan were n.n shallengd and hiivaiot. it a nos wrpnung that LEA has failed to cite any 60nerete cudenic in ihn r: cord supportmg it, st.nm 4 uvnedsant deti.

esencies m that plan.

" FEM A ident:6ed only one denoency in Buks County's partnipation. clasuCed a, " Category H.".i leuer dederency See FEM A Edi E.5 ai 2*.29. 35 d' Contrary to LEA's suggestion. the Nmember 1%4 escrease was not intended as a rail. wale ics: of the plan. As esplained in FE%f Us report. its purpmc was to supplement the earlier escrei*e lit at ni

\\toreoter. the NRC's regulations do not require that eierches 6mer all.npetis of an emergeno plan at onse. See 10 C F R i 50 47sbHI46 X.y ano Nt RLO.nn34 as 't.?4 505

Board should have given their concerns greater weight. We disagree. In the Grst place, the Board indicated at the time LEA initially proffered contention 3 that formal adoption of the plan was not necessary - only reasonable assurance of its eventual adoption and implementation.

LBP 84-18,19 NRC at 1043. See supra p. 504. Similarly, the Board later determined that execution of a Memorandum of Understanding between the County and PEMA concerning the former's support of emergency response operations (LEA Exh. E-61) is not a prerequisite for either plan approval or the Board's reasonable assurance Ondings. LBP-8514, 21 NRC at 1405. See also id. at 1229-31. The Board's conclusions are fully consistent with our cases holding that offsite emergency plans need not be "Snal" before a board can make the reasonable assurance Gnding required by 10 C.F.R. f 50.47(a)(1). See, e.g., Waterford,17 NRC at 1104: Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2),

ALAB-730,17 NRC 1057,1066 (1983).

The Licensing Board thus took note of the County Commissioners' lack of action with regard to the Support Plan, but found this to be offset primarily by the testimony of Mr. McGill and PEMA ollicials, in addi-tion to the successful participation of the County in the November 1984 exercise. LBP-85-14, 21 NRC at 1403-07. That testimony indicates that Bucks County is able and would not refuse to perform its designated sup-port functions in an emergency, thus buttressing the Board's conclu-sions. See, e.g.. Tr. 19,585, 20,386 87, 20,401-02; Hippert, fol. Tr.

19,498, at 5 6.

LEA directs our attention to no evidence of record that compels a con-trary conclusion. It withdrew Bucks' County ' Commissioner Carl F.

Fonash as a witness (Tr. 18,262 63), and no other County Commission-er testified. Further, two letters on which LEA relies (one from Com-missioner Fonash and the other from County Administrator William H.

Rieser) were marked for identification as LEA Exhs. E 60 and E 72 (Tr 19,527, 20,171), but apparently neither was offered or received into evi-dence and therefore they cannot serve as a basis for any decision. Even Mr. Ricser's testimony, highlighted by LEA, clearly indicates that Bucks County has not ruled out adopting the Support Plan and would cooperate 4' The.c.nt.:nt of the two letters does not in any esent. sign Geantly undercut the Licensing Board's conclusions t$ased on the testimony of the other witnesses at the hearing.

LEA complains that tne Licensing Board did not permit Mr. Rieser to testify aenut an earlier version 4

of the Bucks (*ntenty Support P!an. LCA's Brief at 1213. See Tr.13.265 71. Bath the transenet and LENa u

...o.4 vis hasu ao fossow. nt hat as clear. however, is that il) the Board espected and permil.

led Mr. Rieser to testify about the sersion of the plan that was most current and in evidence; (2) there was httle difference between the two versions in question (Tr. 20.373); and (3) LEA has esplained neither the signeScance of all this, nor how it has been prejudiced by the Board's ruhng. In these circum-stances its argument as without mertt.

506 4

y

~

, - ~,

_ - _ = _. __

in an emergency. Tr. 18,302-03, 18,307, 18,309, 18,325.*" We are there-fore unable to conclude, as LEA urges, that the Licensing Board erred in finding reasonable assurance that Bucks County will implement its emergency plan and perform the support functions required under it.

B.

Other Municipalities LEA contention I alleged that, because the risk counties and other af-fected municipalities and school districts have not yet adopted linal RERPs, there is no reasonable assurance that the plans will be adopted or are capable of being implemented.** The Licensing Board, however, concluded otherwise.

In reaching this conclusion, the Board relied principally on four fac-tors. First, it noted that, under Pennsylvania's Emergency Management Services Code, P.L.1332, No. 323,35 Pa. Cons. Stat. Ann. (4 7501(a),

7502, 7503 (Purdon 1978) lhereafter, "P.L.1332"), each municipality l

and county in the Commonwealth is required to establish an emergency plan, to appoint a professionally competent emergency coordinator, and to perform certain duties to implement that plan.'a Second, the Board stressed that each county and municipal official who testilled expressed his or her intent to comply with these requirements and to strive for the adoption of a workable emergency plan. Third, it pointed out that local l

emergency coordinators identified no serious deliciencies in the plans or i

impediments to their ultimate adoption. Last, the Board found that the l

current draft RERPs themselves (Applicant Exhs. E 1 to E-61) - earlier l

versions of which were reviewed by FEM A and PEM A - provide assur-ance that they can be implemented if the need arises. See LBP 8514, i

l 21 NRC at 1369 77,1402. The Licensing Board also specifically dis-l eussed the status of RERP. implementation in the 13 counties.

l townships, and boroughs for which LEA presented witnesses. /J. at l

1377 1402.

l

" lloth \\lessrs Rieser and \\fsGdi testdied that the County Commauoneri resers anons stem not f rom I

the County's abihty la implement the eussing.iratt support Plan. but rather from the underlung plan +

mng hasa - i c.. ihe ten. mile F P/ conupt. Tr it 340. U'4.*5. 20..t* t.la awit pursues ihn argo.

(

ment on appeal. ei*ntending th.it flusks Counn's res dents are not adequately protected % the emerun.

[

s3 plan for t.imorsk l E V5 nner at *.4.10.11 12. Itut this amount, an.s shallenge to eN (hmmnunnN l

emergeno planmng regulanons and is thus barred h3 10 C 17R t2*5%

" This somennori staies. in rull The Rnk Counues. \\tumopahues. khned I)ntrsts. and Institutions h.nen't fromulgated or j

adopted final radenlogical emergen(y resemse plans nor h.ne they approsed Jnd Jdopted plans I

drawn up for them tiy Energy Con uitants. Inc, a llarrnburg firm hired by Phdadelphia Flestris-compan>. There n no renonable awiranse that the present state nf plann ng n predstne el linal approsal.nr that the plans are capable nf being emplemented.

l.BP.t!.14. 21 NRC at 1369

'" Perunem poruons of P l 1.1_12 are we out en trrendn i en ihn onmon 507 I

a i

l l

LEA's arguments on appeal are similar to those it advanced in connee-tion with the Bucks County Support Plan. Although it recognizes that

• the plans need not be final or formally adopted for the Board to make a reasonable assurance finding (see supra p. 506), LEA emphasizes that only a few jurisdictions so far have formally approved and adopted RERPs. More to the point, however, LEA contends that local officials'

" good intentions" to comply with P.L.1332 do not constitute reasonable assurance. LEA claims further that the record fails to show that these plans are capable of being implemented and therefore more hearings are necessary on this issue. See LEA's Brief at 59-64,56.

We agree that good intentions alone are not enough to demonstrate reasonable assurance that the plans will be adopted and carried out in an emergency." But the Licensing Board's decision clearly shows more than just the local officials' desire to obey their state law. As noted above, the Board was persuaded by the testimony of these ollicials that the existing draft RERPs are indeed workable. Through their profession.

al emergency coordinators, these officials are endeavoring to resolve any problems in the plans with the experts at PEMA. See LBP 8514, 21 NRC at 1371-72,1374-75. PEM A, as well, acknowledged these con-cerns, but does not regard them as major or unsurmountable. As Ralph J. Hippert, PEM A's Deputy Director of Plans and Preparedness ex.

plained, resolution of the remaining problems identified by the counties and various municipalities is essentially a matter of time and protocol li.e., going through the right channels). The basic plans, albeit evolving, are adequate and could be implemented now if necessary. Moreover, Mr. Ilippert has no reason to believe that the involved jurisdictions will not eventually adopt their RERPs and submit them to PEMA and FEM A for final review. Tr. 19.597 600.

Although LEA complains generally about the Licensing Board's deci.

sion in this regard, it fails to challenge seriously and specifically either the testimony or the Board's findings. For example. LEA suggests that certain testimony of Paul Bartle Chairman of the Montgomery County Board of Commissioners. undermines the Board's predictise finding that the Montgomery County RERP can and will be implemented.

LEA's Brief at 63. The Board, howeser explicitly addressed Mr. Bartle's concerns and concluded they were the result of a lack of complete infor-mation about protective action options in an emergency, and were not 4 h i. r.nie.nrinv. hn.eser. ihai en aaaiiion in the manaaiory tanguage or,esiinn, tsoi ano ?soi ne P l.1))2 - Jeretltrig each mliereal wtulisisenn in the Common.calth in estahinh and imlsfemens an l

emergen6) plan - sestion ??nff ht prouaes for the low of federal funas in any subaasunn failing to enmfl) Mlh lhe 4(alWIe'9 feQuarCmenl4 Yhm llnJnOJI ineenf We mJy Well pInse in he the HillmJie means in enwre formal.idoption n( the R f R Pe 508

likely to affect adoption of the County's plan. The Board also cited other testimony by Mr. Bartle and the county emergency coordinator that sup-ports its favorable conclusions about the plan. See LBP-85-14,21 NRC at 1377-78. LEA has failed to show that the Board erred in its treatment of Mr. Bartle's testimony.

LEA argues that the Board erred "as a matter of law" in accepting

" third hand" hearsay by one of PECo's witnesses on the subject of volunteer participation. in local emergency functions. LEA's Brief at 6162. LEA cites neither to the transcript where this testimony might be found, nor to that part of the decision where the Board supposedly relies on this testimony. We obviously cannot and will not entertain such un-substantiated argument."

LEA also complains that the July and November 1984 emergency ex-ercises are not predictive of reasonable assurance that the municipalities will adopt plans capable of being implemented in a real emergency.

LEA's Brief at 61. We have already concluded, however, that participa-tion in these exercises is probative evidence of a municipality's willing-ness to adopt an emergency plan. See supra p. 505. Such exercises are also useful not only for demonstrating the adequacy of a plan, but also in identifying areas in need of improvement, with a view toward making the plans even more workable. See, e.g., LBP-8514, 21 NRC at 1399, 1400,1374 75. We therefore conclude that the Licensing Board gave ap.

propriate weight to the two 1984 exercises. Cf Union ofConcernedScien-tists v. NRC,735 F.2d 1437 (D.C. Cir.1984), cert. denied,105 S. Ct. 815 (1985) (results of emergency preparedness exercises are relevant to i

2 licensing decisions). But see irtfra pp. 520 22.

in sum, LEA has failed to point to any error warranting reversal of the Licensing Board's findings and conclusions with regard to LEA con-tention 1.

l IV. EMERGENCY PERSONNEL AND VElllCLES LEA's brief on appeal raises several arguments in connection with (1) the personnel who would be called upon to perform various functions, and (2) certain vehicles that would be needed in the event of a serious emergency at Limerick. We address these claims below.

e i

NC Jl%D Op4C that hgJfm M (Cntf ally AdmtwMC In N RC pffMgth9gt Chridml lh try flk/WWHfMV Ces IPerry Nutlear Power Plant, t non i and 26 \\l. \\ Ban 2. 21 NRC 490,801 n h? Il4W \\ce g/wi if.sh+ ('.Wyaremm of ( flr i r thp't of f.ahew '44 l 2,i 14I6,1414 n 2 8 llth Cir.1924) i l

1 i

509

)

r

e l

1 s

A.

Notification of Emergency Workers in a very brief argument, LEA objects to the Licensing Board's dispo-sition of the principal portion of its contention 26. As pertinent here, LEA contention 26 states:

The Draft County and Municipal RERP's [siel are deGeient in that they do not comply with 10 CF.R. ( 50A7f b)(3) because there is no assurance of prompt notiG.

cation of emergency workers who must be in place before an evacuation alert can be implemented.

Licensing Board Niemorandum and Order of September 24,1984 (un-published), at 15. The Board summarized the procedures for notification of emergency personnel and described the automatic telephone-dialing system with prerecorded messages (known as " RECALL") that is to be used to contact designated county and local emergency operations center staff on a 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> basis. It also pointed out that this system can be backed up, if necessary, with manual dialing and the use of pagers to contact police, fire, and ambulance personnel. The Board concluded that this notification system for emergency response organizations complies with the requirements of 10 C.F.R.150.47(b)(5) and the guidance of NUREG-0654. LBP-8514,21 NRC at 135154."

LEA complains that the Licensing Board erred in interpreting conten-tion 26 and failed to distinguish between implementing an evacuation alert and merely sounding sirens. It stresses that a'significant number of workers (particularly for traffic control) would be necessary in an emergency and that notification of them should not effect delay in an evacuation of the public. LEA's Brief at 58.

LEA's arguments are generalized and unpersuasive. We see no evi-dence that the Licensing Board misin.terpreted contention 26, as LEA charges. The relevant part of that contention is clear on its face."It ques-tions whether emergency workers will be promptly notified and, thus, the Licensing Board quite properly focused on that notilleation system.

LEA does not identify any part of the Board's G tion (or its preliminary orders concerning contention 26) with which it takes issue. It refers us to certain testimony of Richard T. Brown, Chairman of the Lower Provi-dence Township Board of Supervisors and an AT&T communications

' Neither wecnnn $4 47thif $6 cmr Plannmg sundard E of NI: REG.06$4 specifics the meant for nobb.

mg emergen() workers, they umply reyuere that such procedures he etahinhed.

4 The morihng or the pertment part of contemion lft as admitted by the floard i$ urtually identic d to lhe wordmit of the somention as Lr s prop wed it C,wporr \\femorandum and Inrder of september 24 at 13. wnh I r V4 Respeedhation of Off wie Emergenct Plannm. Comentions Iseriember 6,1944L I I \\d6 lp. ores unnumbereds 510 4

m technician (see Tr. 18,132-33), but Mr. Brown's comments are inappo-site here. The cited testimony reflects'Mr. Brown's general concerns about notiGeation of businesses and the public at large in the event of a site emergency; it does not, however, address the adequacy of the RECALL system specifically designed for notification of emergency workers. See Tr. 18,149-52.

1 Moreover, contrary to the explicit assumption of contention 26, all emergency workers need not "be in place" before implementation of the evacuation alert. As the Licensing Board pointed out, there are no regulatory requirements for this, and the sirens that are part of the public notiGcation system can be quickly activated by the emergency per-sonnel who are already on duty 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day. LBP 85-14,21 NRC at 1352. LEA has thus failed to show any inadequacy in the system for notification of emergency personnel, or error in the Board's treatment of contention 26.

1 B.

Municipal Staffins Needs LEA's contention 2, as pertinent here, alleged that there is no rea-sonable assurance that all of the principal state and local response organi-zations have sufficient stali, on a 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> basis, to respond to an emergency.55 The contention is based on the requirement of 10 C.F.R.

f 50.47(b)(1) that "each principal response organization (havel staff to respond and to augment its initial response on a continuous basis." See also NUREG 0654 at 31,33 (Planning Standards A.I.e and A.4).

FEMA witnesses testified that, as of the time of the hearing, there were staffing deficiencies in at least 16 municipal RERPs. These delicien-i cies were identified during the July 1984 emergency exercise. In order to remedy this inadequacy to FEMA's satisfaction, staffing would hase to be supplemented and the names of the designated emergency re-sponse personnel would have to be recorded officially in the plans."

Until the 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> staffing matter is resobed. FEMA would not be able to make the requisite reasonable assurance finding. The Licensing Board

" The 6n.itennon states in full-The unadopted RERP's lwl fail in ermide rea= mane awurance that cah prinural responie nt-gamianon has sulnaent naalf to respond to and in augmem no initial resrome on a 24-hour son.

imual t* asis, or that the anignsJ stati can resremd in a prompi mannst in sa$e or a rad.oh sesai emergerky at Limericio

\\lemorandum and Order of October 26. %itashment.Lv NtIR rG 0634. <\\ppendst $. for the idenufka.

hon of prmapal resenme orgamtatiom 4 LEA's sharge that the txensms Board "ignnreldl' this parusular testimon, il F A's lir er at en i, wholly without ment, %v l BP 49.t4. 21 NRC at f 36.1 511 0

(

~'

5 discussed this testimony, as well as that of PEco's witness (Mr. Brad-shaw), which indicated that steady progress was being made in enhancing stamns in a number of municipalities. The Board accordingly found rea-sonable assurance of adequate. municipal stamng, subject to a license

~ condition requiring FEMA verification of the fulfillment of previously unmet stamng needs prior to operation of the Limerick facility above five percent of rated power. LBP 8514,21 NRC at 1362 66,1407 08.

On appeal, LEA relies heavily on the FEMA testimony. Its unfocused argumeats, however, amount to a challenge to the Licensing Board's imposition of the license condition to remedy the stamng deficiencies identified by FEMA. Suggesting that this condition is inadequate or inap-propriate, LEA contends that further hearing and an opportunity for it to review and comment on the additional information provided to FEMA in fulfillment of the license condition are necessary. LEA's Brief at 56,64-68.

As in the case of the license condition requiring the identification of additional trame control points, however, the verification of the staffing levels of the principal emergency response organizations is a proper matter for post hearing resolution. See supra pp. 494-95. Contention 2 raised the straightforward issue of whether the state and local emergency plans provide for sumcient emergency stalTs on a 24-hour basis. As a direct result of the FEMA testimony that such staffing was not adequate, the Licensing Board ordered the very relief contemplated by the conten-tion - 1.c., verification of adequate 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> staffing." LEA fails to elaborate on what it would gain from an additional hearing. Because determination of a full complement of emergency personnel is precisely thc sort of detail properly left for post hearing verification, we reject LEA's arguments and affirm the Licensing Board's imposition 'of the license condition.

C.

School Buses and Drivers PEMA requires that any necessary school evacuation be accomplished in "one lift." rather than by multiple bus trips. Each school district

+

F By its terms. the Licenung board's order required (Off genGeation of the adequxy of municipal st4Mng pnor to operation of the Limensk facility above Gse percent of rated power. /J. at 1366.

1407 08 We assume that. because 10 C.F R. ( $0 4N)lli requires the NAC to make the reasonable

!issurance Carting. the Board ee'ually intended the Direcior of NRR to venfy the 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> stamns - as it did in the case of the aJJoional trame cunirol points. Presumablv. the Director has done so. For. soon after the Bnard issued ils decmon. FE%f A notined the NRC that it f rEMA) had determined that municipal stamns was adequate. See FEM % Memorandum (May 21. l983), wra note 20, at 2. 3. Sub.

sequently, the Commission issued the full-pomer operating license for Limenck. implying NRC ver nea-tion that this license condelion has been satided 512 o

within the EPZ must determine how many buses it would require to effect an evacuation in one lift and how many are readily available. Any deficits are reported to the county and, if the county is unable to supply the additional vehicles, it reports the total school bus shortage to PEM A as an " unmet need. PEMA is then responsible for satisfying this need with buses from areas beyond the EPZ. Hippert, fol. Tr.19,498, at 9 (pagination continued).

LEA litigated two contentions relating to tne one-lift requirement.

Contentions 11 and 15 challenged the adequacy of the number of school buses and drivers to be provided under the Chester and Montgomery County School District RERPs in the event of an emergency at Limer-ick.58 The Licensing Board found no merit to either contention, conclud-ing that there is reasonable assurance of the availability of enough buses and drivers to implemert an evacuation of schools in both counties.

LBP 8514, 21 NRC at 1289,1326. On appeal, LEA challenges the i

Board's conclusions. See LEA's Brief at 23-28. We agree with the Board J

that there is reasonable assurance of enough vehicles to implement a school evacuation, but disagree with its conclusion concerning the ade-quacy of the drivers' response.

Although LEA contentions 11 and 15 were litigated and are discussed in the Licensing Board's partial initial decision as separate issues, they are obviously related. LEA has thus linked - albeit in a sometimes con-fusing fashion - its complaints about the sufficiency of the number of school buses with its concerns about the number ofindividuals commit-ted to drive those vehicles. While the latter - i.e., driver availability -

is clearly the major focus of LEA's argument, we turn first to its asser-tions that there are insulTicient buses for use in evacuating students from certain school districts in Montgomery and Chester Counties. See id. at 26,27.

1.

The Licensing Board's decision devotes substantial attention to LEA contention 11. See LBP 8514, 21 NRC at 1269 89. Insofar as Montgomery County is concerned, the record clearly shows that there are adequate resources to meet the county's conservatively estimated, j

58 Contention 11 states.

The dran Chesier and Nfontgomery County and school District RERPs are deficient in that there is ensufficient information available to reasonably assure that there will be enough buses to evacuate the schoofs, both public and pnvate, in one lin.

Contention 15 states:

The Chester and Montgomery County R ERPs and the school District RERPs are not capable of being implemented because the provisions made to proude bus drivers who are committed to being available during a radiological emergency. or even during preliminary stages of alert are madequate.

LBP t$.14. 21 NRC at 1269.1319.

513

O' total bus needs, including those of its school districts. Indeed, the coun-ty's only assertedly unmet bus needs reported to PEN!A are for an extra ten percent reserve. See Applicant Exh. E-3 at Q-t 1, I-2-5 to 1-3-14.

See also LBP-85-14,21 NRC at 1279-80.

LEA's sole challenge to this particular evidence is directed to the Board's finding in connection with the Custer Bus Company's provision of buses to the Spring Ford SchootDistrict. See LEA's Brief at 26. The Board noted Spring Ford's need for 30-33 additional buses (beyond its usual complement), as well as testimony indicating that Custer, the dis-trict's primary bus provider, would not hesitate to meet this extra need.

LBP 8514, 21 NRC at 1285. The Licensing Board, however, failed to mution the sources of the 30 some additional buses actually designated in the County RERP itself-principally, Carol Lines, Inc. See Applicant Exh. E-3 at 12-6,1-311 to I-313. LEA has overlooked this as well.

Thus, while Spring Ford's total bus needs for a single lift evacuation cannot be met by the 40 buses ordinarily supplied by Custer," the county plan adequately describes the sources of the additional needed vehicles - sources unchallenged by LEA.

Although the record and the pertinent RERPs are less well-developed with respect to Chester County's school bus needs, there nonetheless appear to be adequate resources available. Chester County requires 217 buses, including approximately 166 school buses. It reports a total unmet need of 132 buses,60 of which are buses for school evacuation

- the subject of LEA contention 11. Chester County / Commonwealth Exh. E 1, Chester County RERP (Draft 10), at Q 1 1, N 31 to N-3 2.

Tr.19,980.6a Approximately 500 buses are identified in the county RERP for potential use in an emergency. Chester County / Common-wealth Exh. E-1 at I 12. At the time of the hearing there were already written agreements for about 100 buses and oral agreements for another

" \\pplicant Esh E 60. Sprirs Ford school Dnirict RFRP..si AJ-23. iates that the desirwt requires ?!

buses.

e.1 According in the heanny transenpt. \\lr. "ampbell (Chester County's Derector of Emergenc) 5ers-west testified to the following unmet school but needs: Owe's J Roberts Schemi Dninct - L Phnents.

ville school Distrwt - 17, pnsate/paro6hial schools - 38 Applwanti enun<l quwkly added these figures and got 80 f rather than 60) and the Licenung Board repeated the error. Tr 19390. LUP.25-14. 21 NRC at 1230 This may be the result or a transenpuon error, ho*ever. becauw the Chester County RERP 8 Draft 105 shows an unmet need of.'J. not !. buses for Owen J. Roberts - accounting for the 20 hus ditterence between 80 and 60. See Chester County / Commonwealth Esh. E.1 at %)-l. 5<r alsa Tr l$.874. But to compound the problem another witness tesidied that the unmet bus need for the O*en J. Roberts district is oserstated iTr.16.941). and other parts or the record contirm it.

Dr. Roy C. Claypool Supenntendent of the Owen J. Roberts school District. lesufled that the dis.

inct's enrollment is approsimately 3200 34M Tr. l$.86). Usens 72 resenger buses to which he referred (Tr. l$ 92$) and simple anthmetic, approsimately 48 such veh.cles would therefore he needed to esacuate 3400 students. Owen J. Roberts has 43 buses available under contract with the Gross Bus Company ITr.15.863. t$ 926). leaving a shortage of f. consistent with Mr. Campbell's iestimony as reported at Tr.19.980. We therefore co,clude that Chester County's unmei need for schoni huses is 60

$14 9

.e 18; PEMA subsequently received confirmation of written agreements with two more companies for an unspeci0ed number of buses. See LBP 8514,21 NRC at 1280; FEMA Memorandum (May 21,1985) at

2. Moreover,.the Southeastern Pennsylvania Transportation Authority (SEPTA) has expressed a willingness - albeit not yet in a formal agree-ment - to provide at least 100 vehicles to Chester County in the event of an emergency, LBP 8514, 21 NRC at 1281-82. The record thus demonstrates several likely sources of numerous vehicles from which Chester County could draw, if necessary, to satisfy its unmet need of 60 school buses.*' Consequently, we agree with the Licensing Board's ulti-mate conclusion that there is reasonable assurance of enough buses to evacuate schools in Chester County.*2 2.

Whether there is reasonable assurance of an adequate complement of persons willing to drive these vehicles in an emergency, however, is quite another matter. The Licensing Board's affirmative answer to that query is based on several factors. See id. at 1319 26. None withstands scrutiny.

First, the Licensing Board relies on the " historic record" of response to emergencies. Id. at 1320, 1322, 1325. The historic evidence of emergency response cited by the Board (id. at 1322), however, is thin and not directly relevant to the particular issue here.*' There is only one brief reference to the satisfactory response of school bus drivers during "I Although LEA susscsts that letters of agreement should state the specine number of buses to be provided Iwe LEA's Brief at 28). is does not argue that such formal agreements are a preregunste to the Board's Gnding of reasonable assurance of a sufficient number of buset Cumporr Warrf<wd.17 NRC at i105-06.

• 2Our concluuon is based on our review of the record and deemon overall and should not be comirued as an affittnation of all of the Licenung Board's discrete Gndmss m this regard. For ciample. the Board noies tNi the Phoemmile schoni Disinct reported an unmet need of 17 buset LBP.2514. 21 NRC at 1284 Sv mere note 60 Catmg Tr. I!.040-41, the Board round, however, that the Grms Bus Company "has suf0cient resources in proude for the needs of the Phoemnille 5shnni thstnct. l llP.Al.14. 21 N AC at 1294 LE A poems in other p. ins of the reenrd that seem in soniradwt ihn finding. LE G Bnet at 27 The portion of ihe transenet nn whnh the H<urd relics shows that Grms prnudes the usua tra dporta-tion for the Phoemuille public and some prnate shnols, and thai di,cuwons with the sompan> =cra under wai in connection with additional emergency transenrtalsnn needt It does not, ttomescr. Suppon the Board's sirnng suggesitun that Gross could and snuld meet Phnenaulle's unmet need *..f 1*

buset %v Tr.15.040-41 Comfw Tr.15.102 i0 na the other hand. Grow has 111t buws for tiw m Chester County shn.d dninsh Chester CountpCommonwealth Esh. F.I at 112 Presurmanh. thn m.

sludes 40 t'or Phoemudie %f. at b3.Il.end 43 for Owen J Roberts iTr, 15.1630 it un rewmahlt he meerred that at least some of the remaimng 35 huses wnuld be ated.ible to sainfy the unmet neetis ne both Phoemiulle I!71 and Owen J Roberis (Si tv wpra note 60. Thus m enence the twensmg Board's statemeni n correct but fo, a reasan different from int gnen.

63 Sv. c.c.. Tr.16.206 (dnver walingness in respond durms emergencies, meludmg hasardous we.iiher conditions). 13.647 49 (drner response hkely to be the same, irrespectne of the site of the EPZ and the number of buses required; generalised references to response to Three \\lele laand ITN!ll acetdeni j

and a chcrmcal release in Loununa),13.716 esague reference to PF.Co con uttant's espenence at T\\ll.

1 the Ginna plant in New York, and Wilites.Rarre. Pentmivama. dunny a nandt 14.243 inn re.ison for j

consultant to helsese drners would not re pondi.

l 515 E --

- 4 accidents at the Three Mile Island and Ginna facilities but no specifics are provided. See Tr. 13,723-24." Fortunately, there have been few' such events on which a historical record can be built; thus, any evidence of offsite response to a radiological emergency will necessarily be limited.

Accordingly, while we do not discount this limited evidence, we cannot give it the significant weight the Licensing Board seemingly accorded it as a measure of how school bus drivers might respond during an emergency at the Limerick facility.

Accompanying the Board's rel:ance on the historic record of emergen-cy response is its findirB of a general willingness of individuals to per-form the functions assigned to them in an emergency. LBP 85-14, 21 NRC at 1320,1325,1326. But again, the evidence on which this latter finding is based is limited and not directly relevant to likely bus driver response. The Board explicitly draws on the evidence adduced in connec-tion with other contentions concerning the likely response of bus provid-4 ers and teachers. See id. at 1325,1326 (referring to' contention 12 and Board findings 139, 141, 143-45, 237 44). But we can find no basis in the Board's decision or the underlying record for the Board's extrapola-tion or the response of bus providers and teachers to bus drivers.

With respect to bus providers, the Board found that, when a bus company has committed itself to supplying the necessary vehicles, it is understood to make a corresponding commitment to provide its employ-ees to drive them. Id. at 1320-21. That may be, but it begs the question.

As LEA argues, the real issue is not the provider's commitment or inten-tion, but the willingness of its drivers to ro/unteer.to participate in the emergency operation. See LEA's Brief at 24-25, 26, 27. The Board cor-rectly notes that driver participation is to be voluntary, not a mandatory condition of continued employment with the bus company. LBP-8514, 21 NRC at 1321. Thus, provider response is not necessarily a reliable predictor of driver response. Similarly, no basis has been articulated for the Licensing Board's implicit assumption that the bus drivers who i

will be called upon in an emergency will respond in the same manner as teachers and other school personnel. The training and usual duties of these respective groups of individuals are so disparate as to counsel against any superficial comparisons. CX Shoreham.' mpra note 5, 23 l

l M For cumple, the circumstances or these school csacuations.ind ahether the one lin principle per-tained are not clear.

• 5 The Board cites the FEM A esinessei hetief that once a bus comp.iny has agreed to proside its hun resourcet u, such company has committed itselr to ensunng that bus drisers are JVallable to drise the buses a the abwner af unkarme m the comrarr?' FEM A Tesumony, fol. Tr. 20.150. at 25 f re:

t i

LEA.lfi f errphave added). See LBP.8514. 21 NRC at 1321. As we dawuss at pp 517 20. m/ra. indi.

cations to the contrar( hase been shown on this record 516

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e NRC at 153 54 & n.65. Their response may well be the same, but that has not been shown on this record to be the case.'* Indeed, the record shows for two school districts within the EPZ only lukewarm driver rei sponse to a request to evacuate school children during a radiological emergency.

A survey conducted by Dr. Roy C. Claypool, Superintendent of the Owen J. Roberts School District (located in Chester County and cover-ing a little less than one fourth of the EPZ) revealed that 25 of the 43 Gross Bus Company employees who usually drive for the district wouid do so during an emergency at Limerick." But because many of these 25 drivers indicated that the safety of their own families would have to be assured first, Dr. Claypool believes that a maximum of 18 drivers is a more realistic estimate of how many will respond. LEA Exh. E-29 at 2:

Tr.15,870. But see Tr.15,919. The Licensing Board, however, found these survey results unreliable because the survey did not include Gross Bus Company drivers other than those who ordinarily drive for Owen J.

Roberts. The Board also emphasized that there was no evidence of exact-ly how many drivers stated they would not perform, no indication that drivers were encouraged to respond positively, and no attempt made (presumably by the school district) "to discuss or resolve any concerns that might have alTected the responses of the surveyed bus drivers."

LBP 8514,21 NRC at 1323.

In our view, however, these survey results are entitled to greater weight than the Licensing Board was willing to accurd them. In the first place, the survey itself is rather straightforward and neutral in the simple questions it asks the drivers to consider " carefully" and to

" answer with sincerity." See Applicant Exh. E-107. Even accepting the higher "will drive" response rate of 25 of the 43 drivers (which no party challenges), almost 42 percent of the drivers did not respond positively to the survey and thus cannot be fairly counted on to meet the reasona-ble assurance standard." More important, the Board's concern with how many drivers specifically stated they would nor respond, and with the

• w hen the Ixenung Board admitted LEA contemrons 12 steasher resemsei and t i < be diner re.

sponse) and demed omtention 8 Ircspome of smergency workers in generali it sirewed the oesd for speciskit). That n si esectied the parties to "Jeal not meth the resremse of some eserymn in some cer)vtualerm. but with specisk personnel awyned spectik tasks " i HP il41.1L l*> NILO al ifd5 %v LE A's Bnef at 23 24. It a thus sonwstent with ihn Board directne ihat the likeb ropmse of sshool bus drners be determmed on the haus of eudence relating to rtwer resem*e. not ih.'l of ushers. *us h.n teachers.

" omen J. Rnherts has a sotal need ror about 44 72-pawenger huses and. ohuoush. an es;ual number ut drners. S r strera note tA d it as not slear how rrany, J any, of the 4.1 drners sunc>ed did not resemd at all to the quolumn.ure Thn is irreteunt. homeser. becau%e m ihn imiance no re smse or undetided n the runstional cQunalent of J " milt not drne" resem%e tinhke pubhe opimon surve)s. whnh rely on wmphn7 tesh.

t Corsiuttweit 517

lack of elTort to encourage a positive response, has elTectively and im-properly shifted the burden of proof on this issue from PECo to LEA. It is applicant's burden to prove reasonable assurance that adequate protec-tive measures can and will be taken in an emerg.:ncy. See 10 C.F.R.

f 50.47(a)(1). In this instance, that means PECo was obliged to produce afErmative evidence of an adequate number of available drivers from some source, once the survey results substantially clouded that matter with doubt. See Consumers Power Co. (Niidland Plant, Units I and 2).

ALAB-123,6 AEC 331,345 (1973).a The Licensing Board similarly erred in not according adequate weight to the results of a survey of the 40 Custer Bus Company drivers serving the Spring-Ford School District in Stontgomery County.'a The Board's criticism of that survey parallels that of the Owen J. Roberts survey. See LBP-85-14, 21 NRC at 1324. The Board focuses on the 6 drivers who would decline to drive in a radiological emergency. but fails to note that only 13 of the 40 surveyed (32.5 percent) un:quivocally stated they would drive; the other 21 either failed to respond or were uncertain. Tr.

15.523. See supra note 68." The Board was also unduly influenced by the fact that the survey did not canvass an unspecified number of other Custer drivers, who the Board assumed "would be available.. in the event of an actual radiological emergency."' LBP 8514, 21 NRC at 1324. The Stontgomery County RERP however, indicates that Custer has available a total of 50 drivers. Applicant Exh. E-3 at 1-2-7. Even assuming that all of the 10 additional drivers are willing to drive during an emergency, there is still reasonable assurance that only 57.5 percent of the Custer drivers would perform their duties.

Thus, insofar as the Spring-Ford and Owen J. Roberts School Districts are concerned, driver surveys raise a legitimate question whether there is reasonable assurance that an adequate number of drivers would re-rWucs. ihe purrow of this hus drner surse) w.is to determme the hkely astual response of the scr) mde.

seduals who would 5e askcJ to sfrn e m.an emergenc), rhus. fashng to return the quesitonnaire or answenng undecided'seriamty suege ts few than utnf.ssison of the reawmante awurance standard

• !Acwise, it was not LE A's or Dr. Cla> poolN. but PECo's hurden to demomtraic on the record how mans other drners msgttt be asailabic from Gross.

'a senng-Ford requires a total of approumately 72 buses and drners. only 40 of whnh Cusier is designated to proside. See mira p. 514 and note 39 H The survey was very simple and much hke that used in tN Owen J. Roberts District. Attached to it.

however, was a memorandum from the school surenntendent. Dr. Welham A Welbser. esiplammg the need ror an emergency plan and "a reasoned and rationas response" m the unkkely event of an accident.

It also pomted out that "the safety of all residents is hkely to be jeopardited if no concern for others custs dunng a time or need." The memorandum stressed howeser. that the drisers' response would have no beanng on their employment status. See Apphcant Exh E.*3 518

spond in an emergency.n The Licensing Board did not give adequate weight to the largely negative results of these surveys, and there is little else in the record on which to base a reasonable assurance finding. See supra pp. 515-16. Compare Shoreham, 23 NRC at 149-54; Zimmer.17 NRC at 772."

Finally, FEMA witnesses testified in connection with LEA contention 15 that "the necessary procedures to assure the availability of adequate numbers of bus drivers to evacuate all school children within the 10-mile EPZ within [ sic] one lift have not been developed." FEM A Tes-timony, fol. Tr. 20,150, at 24 (re: LEA-15) (emphasis added). The Licensing Board's attempt to minimize this testimony is unpersuasive.

The Board stresses that FEMA's conclusion is based on its review of plans submitted in December 1983 and that the record addresses facts subsequent to that review, which the Poard apparently considers con-trolling. LBP-85-14,21 NRC at 1326. The " subsequent facts" presuma-bly are the availability of an adequate number of buses and the other fac-

~

tors that we have already concluded do not carry the day. As for FEMA's testimony, it was entered into the record in late January 1985 and there is no reason to assume that it did not reflect FEMA's view at that time. FEMA had the opportunity to update its testimony, and its witnesses were subject to direct and cross-examination at the hearing.

That testimony indicates that the "no reasonable assurancc" view in FEMA's prefiled statement still pertained in the final days of the hear-ing. See, e.g., Tr. 20,210."

L' surveys of drivers for several other bus providers were discussed on the record and in the Board's de-rision - North Penn school District foutside the EPZ but designated to provide 39 buses and dnsers tc schools in the EPZ m Montgomery County). Methacion school District fin the EPZ m Montgomery County) and SEPTA. See LBP-8514, 21 NRC at 1323.1324-25. LEA has raised no arguments on appeal concermng North Penn and Methacion. Ncsertheless, we have carefully reviewed the record con.

cirmns bus dnver resporise in these too districts. we agree with the Licensmg Board that these surveys are unrehable and conclude that, in any esent, the record overall shows an adequate number of drners would likely be available m each district.

LEA does rely on the SEPTA sursey and the related testimony of Roger Tauss. president of the union representing SEPTA drisers. See LE Ai Brief at 23. We hae no hesitation m concludmg. howev.

er. that Mr. Tauss's undocumented. informal oral sursey of about 30 of some 4000 drners is of no probative value. See Tr. 16.781-82

" The Board refers to the bus dnver training program and notes that. by addressmg dresers' miscnncep.

tions about the nsks mvolved and the nature of their duties. the program enhances drners' willirgness to respond in an emergency. LBP-8514,21 NRC at 1319-20. But few dnvers hase had such traming and FEM A had not yet reviewed the program for adequacy at the time of the heanng. Id. at 1320. The mere existence of the traimns program is not enough to outweigh the demonstrated results of the bus dnver surveys.

The Board also mentions the forming of " pools of backup dnvert" /d. at 1328. The evidence cited to support this finding. however. either refers to a reserve of buses (not drivers). or is wholly lacking iri the necessary specifics. See Tr. 14.269.70. 14.297 99; Bradshaw, et al., fot Tr.12.764, at 23.

M PEMA's testimony in this regard (included in the record at about the same time as FEMA's) is no more positive or definitive. See Hippert, foi. Tr.19.498. at 23-24 fragmation continuedl.

l 519 h

i y

?

e We therefore conclude that the Licensing Board's finding of reasona-ble assurance of a sufficient number of bus drivers willing to respond during an emergency at Limerick is not adequately supported by the record, insofar as the Spring-Ford and Owen J. Roberts School Districts are concerned. Accordingly, we reverse the Board's decision in that re-spect. This action necessarily vitiates the reasonable assurance finding that serves as a basis for the operating license already issued to the Lim-erick facility. See supra note 20. As we earlier pointed out in this same proceeding, however,10 C.F.R. { 50.47(c)(1) provides a mechanism for dealing with certain emergency planning deGeiencies, without suspend-ing an outstanding license. ALAB-819, 22 NRC at 715-16 & n.48." in this instance, the planning deficiency is relatively limited and we believe that it is possible for the parties and Licensing Board to address it on remand promptly (i.e., within the next three to four months). This time corresponds to the summer school recess, during which large-scale school evacuation would not be necessary. Considering the totality of cir-cumstances, we therefore find compelling reasons to permit continued plant operation, despite the demonstrated emergency planning deficien-cy, and remand this matter to the Licensing Board for prompt action in accordance with this decision.4 7

V.

EMERGENCY EXERCISES In an unnumbered contention, LEA claimed that the conduct of emergency drills and exercises was not sufficiently detailed in the various RERPs, and that such exercises would not provide a realistic test of the emergency plan. LEA OtT-site Emergency Planning Contentions at 42.

LEA, however, voluntarily withdrew this contention at a March 1934 prehearing conference after learning that a FEMA regulation,44 C.F.R.

s 350.10, requires a public meeting after such exercises but before Gnal FEMA evaluation of the emergency plan. LEA determined that this meeting would provide " ample opportunity" to address its concerns i

7 Section 50 47fcH t) proudes:

Failure to meet the apphcable standards set forth in paragraph (b) of this section may result in the Commission!'s) deciming to issue an operatmg license; homeser, the apphcant will have an opportumty to demonstrate to the satisfaction of the Commission that deficiencies m the plans are not significant for the plant m question, that adequate intenm compensating actions have been or will be taken promptly, or that there are other compelling reasons to permit plant operation.

76 We also note that LEA did not raise bus dnver availability in its request for a stay of the Licensing

+

Board's decision, suggesting that LEA did not consider that issue to be a strong basis for postponing plant operation. Ser LEA Motion for a stay (May 16.1985). supplement to Limenck Ecology Action's Motion for a stay (May 20,1985).

520 i

e g

7.,,, v

.7_

j

/

(

',7.

l l

t l

t l

about the adequacy of the drills, obviating litigation of the issue. Tr.

8079-87. See LBP 84-18,19 NRC at 1062.

On appeal, LEA refers to several May 1985 FEM A Memoranda (see supra note 20) and essentially complains that FEM A has therein issued its final report on the emergency plan, without holding the public meet-ing required by 44 C.F.R. { 350.10. LEA claims it is entitled to this meeting or an equivalent opportuaity to comment, or, in the alternative, admission and litigation of the contention it earlier withdrew. LEA's Brief at 56 57. We disagree.

Nothing has changed in this regard since the prehearing conference.

m LEA has misinterpreted the May 1985 FEMA Memoranda. To be sure, the memorandum dated May 21, in particular, refers to various full.

participation, supplemental, and remedial exercises conducted during 1984 and 1985 and states that certain deficiencies previously noted have been corrected. It also concludes that "offsite radiological emergency -

planning and preparedness is now adequate to provide reasonable assur-ance that protective measures can be implemented to protect the public health and safety in the event of a radiological emergency at the Limer-ick Generating Station." FEM A Memorandum (May 21,1985) at 2. But there is no indication that this or the other memoranda are intended to be the final FEM A report (granting approval to all of the state and local offsite emergency plans for Limerick) that must be preceded by the public meeting under 44 C.F.R.

350.10. Rather, the memoranda are the " interim findings" that FEM A is obliged to provide to the NRC peri-odically for use during the licensing process. See FEM A/NRC MOU,50 Fed. Reg. at 15,486. Moreover, the formal FEM A review, of which the section 350.10 public meeting is a part, is not triggered until the Com-monwealth has reasonable assurance of the plan's adequacy and applies to FEM A for final approval. See 44 C.F.R. f 350.7; Commonwealth Brief (August 8,1985) at 15. The Commonwealth has not yet made such a request, but has committed itself to seeing that FEMA holds the public meeting required by the latter's own regulations. Hippert, fol. Tr.

19,498, at 3-4; App. Tr. 74-75.

We therefore have no cause (and LEA provides none) to doubt that, in due course, FEMA will hold the section 350.10 public meeting. Fur-ther, this regulation specifically provides for public input. See 44 C.F.R.

5 350.10(a)(3)." LEA will thus obtain all that it claims to,have sought

" As the NRC stafr points out. LEA has nonetheless already had such input indirectly in this proceed.

ing, despite the withdrawal or its contention. FEM A's reports on two 1984 emergency exercises were ad.

mitted into evidence (FEM A Eshs. E.4 and E-5), and LE A cross-esamined the FEM A wiinesses in this regard. NRC Staff Bnef f August 16.1985) at 51 Ser. c.e.. supra pp. 505,506,509.511.

521 I

u

~

i

.)

j when it first proffered, and later withdrew, its contention concerning ex-

. ercises and drills.78 The Licensing Board's third partial initial decision, LBP-85-14, is j

reversed insofar as it finds reasonable assurance of the availability of an i

adequate number of bus drivers to evacuate students in the Spring-Ford j

and Owen J. Roberts School Districts; accordingly, this matter is remand-

)

ed for prompt action in accordance with this opinion. Otherwise,

)

LBP-85-14 is affirmed, subject to the following license condition: the

]

Director of Nuclear Reactor Regulation is to verify the expeditious es-tablishment of additional traffic control measures in the area of Route 100 and the Downingtown interchange of the Pennsylvania Turnpike.

It is so ORDERED.

FOR THE APPEAL BOARD C. Jean Shoemaker Secretary to the Appeal Board APPENDIX A Excerpts from the Pennsylvania Emergency Nianagement Services Code, P.L.1332, No. 323, 35 Pa. Cons. Stat. Ann. { 7101 et seg.

(Purdon 1978) [ emphasis added).

(7501. General authority of political subdivisions (a) Establishing emergency management organization. - Each political subdnision of this Commonwealth is directed and authorized to establish a local emergency man.gement organization in accordance with the plan and program of th', Pennsylvania Emergency

.\\t anagement Agency. Each local organization sha// have 'esponsibility for emergency management, response and recovery within the territoriallirnits of the political subdivision within which it is organized and,in addition. shall conduct such services outside orits juris-dictionallimits as may be required under this part.

7a LErs reliance on Unen of Concerned Sca ensis. 733 F 2d 1437. is misplaced. In thal case, the court overturned a former Commissson rule that precluded litigation of the results of an emergency preparec.

e ness esercise in a licensing proceeding. The Licens ng Board. however, did not esclude LENS conten.

tion on the basis of that rule or any other ground; rather. LE A voluntanly withdrew the contention for the wholly unrelated reasons stated above.

522

G

- r.

3.. :.,,g 7 <

,~

N

• 3 (7502. Local coordinator of emergency managemem (a) General rule. - Each local organization of emergency management s/w// hase a coordinstor who shall be responsible for the planning, administration and operation of the local organization subject to the direction and control of the executive officer or goserning body.

~(d) Qualifications. - The coordinator sha// be professionally competent and capable of planmng effecting coordination among operating agencies of government and controlling.

coordinated operations by local emergency preparedness forces.

( 7503. Powers and duties of political subdivisions Each political subdivision s/w/L (D Prepare, maintain and keep current a diuster emergency management plan for the prevention and minimiration ofinjury and damage caused by dius-ter, prompt and efTective response to diuster and disaster emergency relief and recoscry in consonance with the Pennsylvania Emergency Management Plan.

(2) Establish, equip and staff an emergency operation center. consohdated with warning and communication systems to support goscrnment operations in emergencies and provide other essential facilitics and equipment for agencies and actisities assigned emergency functions.

(3) Provide individual and organisational training programs to insure prompt etTicient and effective disaster emergency services.

(4) Organite. prepare and coordinate all locally asailable manpower. mate-rials. supplies. equipment, facilitics and sersices necesury for diuster emergency readiness, response and recovery.

(5) Adopt and impicment precautionary measures to mitigate the anticipated efTeets of disaster.

(6) Esecute and enforce such rules and orders as the agerg shall adopt and promulgate under the authority of this part.

(7) Cooperate and coordinate with any public and private agency or entity in xhiesing any purpose of this part.

IS) llave available for inspection at its emergency operations center all emergency management plans. rules and orders of the Goscrnor and the agency.

t91 Proside prompt and accurate information regarding local disaster emer.

gencies to approrrute Commonweahh and local olliculs and agencies and the general pubne.

t 7707. Penaltics (a) General rule. - Any person siolating any of the plans and programs adopted and promule.ated by the Pennsylvania Emergency Management Council shall, upon conviction thereofin a summary proceeding, he sentenced to pay a nne not c=cced-ing 5200 or imprisonment not exceeding 30 days or both, for the first otTense. and a fine not execeding 5500 or imprisonment not cseceding 90 days or both, for each subsequent ofTense.

523 4

+

I i

y

- =.,

x P

=

4 (b) Loss of funds. - Those political subdivisions in violation of section 7501 (relating to general authority of political subdivisions), section 7502 (relating to local coordinator of emergency management). section 7503 (relating to powers and duties of politic:.1 subdivisions) or section 7504 (relating to coordination, assistance -

and mutual aid) s/w//. at the (firection of the council, be subject to loss of Federal I

personnel and administrative funding for the remainder of the fiscal year in which consiction is established. Reinstatement of Federal personnel and administrative.

funding shall take place the year following approval of remedial action to the violation.

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l Cite as 23 NRC 525 (1986)

ALAB-837 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Thomas S. Moore, Chairman Dr. Reginald L Gotchy Howard A. Wilber in the Matter of Docket No. 50 400-OL CAROLINA POWER AND LIGHT COMPANY and NORTH CAROLINA EASTERN MUNICIPAL POWER AGENCY (Shearon Harris Nuclear Power Plant)

May 29,1986 The Appeal Board affirms the first partialinitial decision in this operat-ing license proceeding, LBP-85-5, 21 NRC 410 (1985), in which the Licensing Board determined that the Gnal environmental statement for the Shearon Harris plant satisnes the National Environmental Policy Act and the Commission's implementing regulations. The Appeal Board also affirms earlier Licensing Board rulings rejecting certain contentions and denying an intervenor's petition for a waiver of the Commission's rule prohibiting the litigation of need for power and alternative energy source issues in operating license proceedings.

RULES OF PRACTICE: APPELLATE REVIEW j

When reviewing factual Gndings of a licensing board, an appeal board will overturn them only where it is " convinced that the record compels i

a different result." Niagara Mohawk Power Corp. (Nine Mile Point 525

'.1

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Nuclear Station, Ur.n 2), ALAB-264,1 NRC 347, 357 (1975). Accord Paci/7c Gas and Bectric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2), ALAP 751,20 NRC 819 834 (1984); Northern /ndiana Public Service Co. (B:: illy Generating Station, Nuclear 1), ALAB 303, 2 NRC 858, 867 (1975).

RULES OF PRACTICE: RESPONSIBILITIES OF PARTIES All parties appearing before an appeal board, whether represented by rounsel or a lay representative, have an a0irmative obligation to avoid any false coloring of facts. See Tennessee Va//ey Authority (Ifartsville Nuclear Plant, Units l A, 2A, IB and 2B), ALAB-409, 5 NRC 1391, 1395-96, reconsideration denied. ALAB-418,6 NRC 1 (1977).

RULES OF PRACTICE: BRIEFS On appeal, "it is not enough [for a party] simply to declare Datly that a particular Board ruling was in error. Rather, it is incumbent upon the ap-pellant to confront directly the reasons assigned for the challenged ruling and to identify with particularity the infirmities purportedly inher-ent in those reasons." Duke Power Co. (Catawba Nuclear Station, Units I and 2), ALAB-813,22 NRC 5?,84 n.128 (1985).

RULES OF PRACTICE: BRIEFS

"[A] party's failure to submit a brief containing sufficient information and argument to allow the appellate tribunal to make an intelligent dis-position of the issues raised.. is tantamount to their abandonment."

Catawba. ALAB-355, 4 NRC 397, 413, reconsideration denied. ALAB-359,4 NRC 619 (1976). See Pennsy/rania Power and L&ht Co. (Susque-hanna Steam Electric Station, Units I and 2), ALAB-693.16 NRC 952, 954-57 (1982); Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573,10 NRC 775,786-87 (1979), racated m part and remanded. CLI-80-8, II NRC 433 (1980).

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)

In deciding the admissibility of contentions, the validity of the factual allegations comprising the contentions should not be considered. See Houston Lighting and Power Co. (Allens Creek Nuclear Generating Sta-tion, Unit 1), ALAB-590,11 NRC 542,547-50 (1980); Duke Power Co.

(Transportation of Spent Fuel from Oconee to McGuire), ALAB-528,9 526

J NRC 146,151 (1979): Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units I and 2), ALAB-522, 9 NRC 54, 56 (1979); Mississippi Power & Light Co. (Grand Gulf Nuclear Station.

Units I and 2), ALAB-130,6 AEC 423,426 (1973).

RULES OF PRACTICE: COLLATERAL ESTOPPEL lt is settled that the doctrine of collateral estoppel should be applied in NRC adjudicatory proceedings to preclude a party to the litigation of an issue considered and decided in the construction permit proceeding from relitigating the issue in the operating license proceeding for the same reactor. Alabama Power Co. Ooseph M. Farley Nuclear Plant, Units i and 2), ALAB-182, 7 AEC 210, 212-16, remanded on other grounds. CLI-74-12, 7 AEC 203 (1974). See also Toledo Edison Co.

(Davis-Besse Nuclear Power Station, Units 1, 2, and 3), ALAB-378, 5 NRC 557,561 (1977).

RULES OF PRACTICE: COLLATERAL ESTOPPEL Just as in the judicial context, the purpose of collateral estoppel in ad-ministrative proceedings is to prevent continuing contrnversy nver mat-ters finally determined and to save the parties and boards the burden of relitigating old issues.

RULES OF PRACTICE: COLLATERAL ESTOPPEL An operating license proceeding should not be utilized to rehash issues already ventilated and resolved at the construction permit stage.

Earley, CLI 74-12,7 AEC at 203.

RULES OF PRACTICE: COLLATERAL ESTOPPEL In order for the doctrine of collateral estoppel to apply, the individual or entity against whom the estoppel is asserted must have been a party, or in privity with a party, to the earlier litigation. Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3),

ALAB-673,15 NRC 688. 695, a#'d. CLI-82-II,15 NRC 1383 (1982h id., ALAB-717,17 NRC 346, 353-54 (1983). The issue to be precluded also must be the same as that involved in the prior proceeding and the issue must have been actually raised, litigated, and adjudged. Additional-ly, the issue must have been material and relevant to the disposition of the first action, so that its resolution was necessary to the outcome of 527 i

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I the earlier proceeding. Nouston Lighting and Power Co. (South Texas Project, Units 1 and 2), LBP-79-27,10 NRC 563, 566 (1979), ard.

ALAB 575,11 NRC 14,15 (1980). Even where these requirements are met, however, the doctrine must be " applied with a sensitive regard for any supported assertion of changed circumstances or the possible exist-ence of some special public interest factor in the particular case." farley.

ALAB-182,7 AEC at 216.

RULES OF PRACTICE: COLLATERAL ESTOPPEL "Like a cause of action, 'an issue may not be.. split into pieces [to avoid application of the doctrine of collateral estoppell. If it has been determined in a former action, it is binding notwithstanding the parties litigant may have omitted to urge for or against it matters which, if urged, would have produced an opposite result.' Any contention that is necessarily inconsistent with a prior adjudication of a material and litigat-ed issue, then, is subsumed in that issue and precluded by the priorjudg-ment's collateral estoppel efTect." 18 J. Moore, J. Lucas & T. Currier, Moore's Federal Practice 10.443[2] at 761 (2nd ed.1984) (footnotes omitted).

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)

A party who did not participate in the construction pt.rmit proceeding for a reactor but who wishes t9 relitigate in the operating license pro-ceeding an issue already fully investigated at the construction permit stage, although not collaterally estopped from doing so, has the burden of providing much greater specificity with his contention than is typically required. C4 Philade/phia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-804, 21 NRC 587,590-91 (1985). See general /p Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717,17 NRC 346. 354 n.5 (1983).

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)

It is well settled that in passing upon the admissibility of contentions "it is not the function of a licensing board to reach the merits of any con-tention." Grand Gu/4 6 AEC at 426. Whether the contention ultimately can be proven on the merits is "not the appropriate inquiry at the contention-admission stage." Philadelphia Electric Co. - (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 694 528 m

(1985), review denied. CLI 86-5, 23 NRC 125 (1986). See A// ens Creek, 11 NRC at 546-49.

RULES OF PRACTICE: STANDING TO APPEAL A party to a proceeding before a licensing board has no standing to press before an appeal board grievances of other parties to the proceed-ing not represented by that party. Houston Lighting a Power Co. ( Allens Creek Nuclear Generating Station Unit No.1), ALAB-631,13 NRC 87, 89 (1981). See Puget Sound Power and Light Co. (Skagit Nuclear Power Project, Units I and 2), ALAB-556,10 NRC 30, 32-33 (1979).

C4 Houston Lighting & Power Co. (South Texas Project, Units 1 and 2),

ALAB-799,21 NRC 360,382-83 (1985).

j RULES OF PRACTICE: BRIEFS The Commission's Rules of Practice require that "[aln appellant's brief... clearly identify the errors of fact or law that are the subject of the appeal." 10 C.F.R. # 2.762(d)(1). See Duke Power Co. (Catawba Nuclear Station, Units I and 2), ALAB-825, 22 NRC 785, 792-93 (1985).

APPEARANCES Wells Eddleman (pro se), Durham, North Carolina (with whom John Runkle, Chapel Hill, North Carolina, was on the brie 0 for the in-tervenors Wells Eddleman and Conservation Council of North Carolina.

Thomas A. Baxter, Washington, D.C. (with whom John II. O'Neill, Jr., and Deborah B. Bauser, Washington, D.C., and Richard E.

Jones, Ra'eigh, North Carolina. were on the brief) for the appli-cants Carolina Power and Light Company, et al.

Janice E. Moore (with whom Charles A. Barth was on the brie 0 for the Nuclear Regulatory Commission staff.

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J DECISION In this consolidated appeal, intervenors Conservation Council of North Carolina (CCNC) and Wells Eddleman challenge the Licensing Board's partial initial decision on environmental issues in the Shearon Harris operating license proceeding.' Primarily, the intervenors claim thr' the Licensing Board's factual findings on several issues tried in the environmental phase of the proceeding are erroneous and that the Board erred in rejecting a number of the intervenors' proffered contentions.

Additionally, they claim the Board improperly denied intervenor Eddle-man's petition pursuant to 10 C.F.R. 5 2.758 to waive the Commission's rule prohibiting the litigation of need for power and alternative energy source issues in operating license proceedings. For the reasons that follow, we affirm the results reached by the Licensing Board on each of the challenged issues.

I.

A.

The intervenors first attack the Licensing Board's findings on joint contention II(e), which claims that the final environmental state.

ment for Shearon Harris underestimates the radiological do:: :o the population from anticipated routine emissions of the plant. Specifically, the contention asserts that the dose analyses of the NRC staff and the ap-plicants are deficient because they fail to consider the deposition in the lung of radionuclides that have attached to respirable fly ash particles in the ambient atmosphere. The Licensing Board resolved the contention in favor of the staff and the applicants, finding that the dose estimates in the final environmental statement associated with normal plant operation were not significantly underestimated.2 Although the intervenors argue that the Licensing Board should have found that the dose estimates of radionuclides attached to fly ash were underestimated, their brief points to no record evidence to support their bald assertion. Nor does the record contain such evidence. Indeed, at the hearing the intervenors offered no affirmative evidence to support their contention, and all testimony was presented by the expert witnesses for the staff and the applicants. The Licensing Board made its findings based on this expert testimony and those findings are thorough, fully I See LBP.85-5,21 NRC 410 (1985).

2/4. at 415-16. 427.

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supported by the record, and address all the significant matters raised by the intervenors during their cross-examination of these expert wit-nesses.2 As we have previously stated, "we are not free to disregard the fact that the Licensing Boards are the Commission's primary fact finding tribunals."' Rather, when we review factual findings like those under challenge, we will overturn them only where "we are convinced that the record compels a different result."5 Here, the record compels only the result reached by the Licensing Board.

The intervenors nevertheless attempt to construct their argument by selectively referencing and quoting the Licensing Board's findings. They allege that "the Licensing Board agreed that many of the assumptions used in the Applicants' dose estimates 'were found deficient upon cross-examination.'"* They then claim that "[als a result of the insufficient technical data presented by the Staff and the Applicants the Licensing Board was not able to assess the effects of radionuclides attached to par-ticulates on the population surrounding the Harris facility."7 What this first argument ignores, however, is that the three factors not known with the precision demanded by the intervenors (which they label "defi-ciencies") were found by the Licensing Board to " produce a possible un-certainty in the dose estimate ofless than 1/10 of I mrem /yr."8 in other words, these factors had an inconsequential impact on the estimated doses from normal plant releases.

The intervenors' second assertion (i.e., the Licensing Board lacked sufficient data to assess the impacts of the fly ash phenomenon) is equal-3Sec id. at 423-28

' Northers Indsama Puble Serrscr Co. IBailly Generating stahon. Nuclear 1). ALAB-303, 2 NRC 858, 867 (1975).

8.Viaeara.4toho=4 Power Corp. INine Mile Point Nuclear stauon. Umt 2). ALAB-264. I NRC 347 357 (1975). Accord Pacr/k Gas and Electre Co. f Diablo Canyon Nuclear Power Plant. Umts I and 2).

ALAB-781. 20 NRC 819,834 (19844 Barth. 2 NRC at 867.

6 Brief of intersenors ( April 9.1985) at 10. In their brief, the mtervenors place a smgle set of quotation marks around the phrase "were found deficient upon cross-exammation"in the above quoted sentence.

thus conveying the meanmg that the Licensing Boa-d found that the applicants' assumptions underlyir;g their dose esumates were deficient. The phrase appearing in quotation marks. howeser was a quotation by the Licensms Board of the intersenors' proposed rmdings: *The Jomt Intervenors' Proposed Find-ing 8 asserts that the assumptions used in the Applicants' dose estimates 'were found deGcient upon cross-esammation.'" LBP-85-5. 21 NRC at 427. Contrary to the mtervenors' statement. the Board did not " find" the applicants' assumptions " deficient." The intervenors' miwuotation and mnrepresenta-tion of the Licensms Board's findmss is blatant and totally unacceptable. S., Tennesser retter.4uthorsiv (Hartsulle Nuclear Plant. Umts I A. 2 A. IB and 2B). ALAB 409. 5 NRC 1391.1395-96. reroesaleronan dened. ALAB-418,6 NRC I (1977). All parties appearing before us, whether represented by counsel or a lay representative, hase an anirmative obligation to avoid any false coloring of the facts in a consoli-dated appeal such as this one involving two miervenors - one represented by counset and one appearing pro se - both representatives have the responsibility of ensuring that no such misrepresentauons appear m the jomt bner.

7Brief of fntersenors at 1011.

8 LBP-85-5. 21 NRC at 428.

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e ly footless. The intervenors do not identify any facts to support their claim and there are none in the record. Rather, the expert witnesses for the applicants and the staff presented analyses establishing that the methods used in the applicants' environmental report and the stafTs final environmental statement for calculating predicted doses from normal plant operation already conservatively accounted for the effects of the fly ash phenomenon postulated by joint contention II(e).* The Licensing Board's findings on this contention, therefore, are allirmed.

B.

The intervenors next protest the Licensing Board's findings on joint contention II(c). As originally admitted, that contention asserted that the final environmental statement underestimates the radiological dose effects from normal radiation releases at Shearon Harris because such effects have been considered "over an arbitrarily short period of time compared to the length of time the radionuclides actually will be causing health and genetic damage."'a Subsequent to its admission, the Licensing Board limited the scope of the issues it would permit to be litigated under the contention" and, on appeal, the intervenors have not challenged this ruling. Specifically, the Board barred, as wholly specula-tive, questions concerning the effects of routine releases over millions of years into the future. It left for adjudication, however, such issues as whether the final environmental statement should (1) describe the risks from routine radiological releases in terms of the 40-year plant _ life in-stead of annualized risks; (2) take into account the cumulative exposure to people who live near the plant for 40 years; and (3) include the time period subsequent to the operation of the plant in exposure analyses.

At the hearing on their contention, the intervenors again presented no affirmative evidence and all evidence was presented by the expert wit-nesses of the staff and the applicants.u Based on this expert testimony, the Licensing Board found that the annualized risk assessment presented in the final environmental statement requires only a simple calculation (i.e., multiplying by 40) to provide the total dose over the life of the plant. Therefore it found the annualized results contained in the envi-ronmental statement adequate for describing the risks associated with the facility.D it also found that the total exposure of people living near the plant for the life of the plant was insignificant. Similarly, it deter-mined that the incremental exposure of people living near the plant (as

' Mauro and schalTer. Tr. fol.1605: Branagan. Tr. fol. t865.

M LBP-85 5. 21 NRC at 419.

H See LBP-84 7.19 NRC 432. 457-58 (1984); LBP=85 5,21 NRC at 414. 419.

R Mauro and Marschke. Tr. fol.1971; Branagan. Tr. foi. 2058.

O LBP-85 5. 21 NRC at 414-15. 420-23.

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well as for the population of the country as a whole) for 100 years after the plant ceased operating was insignificant. Further, the Board made findings on a number of additional matters, such as the insignificance of the risk to fetuses (from conception to birth) on the sum of the risks over all age groups, and the insignificance of effects from plant operation on fetal losses, genetic effects and birth defects." The Board thus concluded that the final environmental statement was adequate without further discussion of these impacts.

On appeal, the intervenors assert that the Licensing Board erred in finding that the final environmental statement did not significantly un-derestimate the health risks from normal plant operation. Their "argu-ment" consists, however, merely of a statement that the Licensing Board " points out a series of deficiencies in the Staff's analysis yet con-ciudes that.. the Staff met their burden under NEPA [the National En-vironmental Policy Act of 1969")," followed by a listing of five purport-ed " deficiencies."'8 The intervenors' claims are not new. Before us, they have done noth-ing more than list matters advanced before that were rejected by the Licensing Board, without directing our attention to any supporting record evidence for their position. Nor do the intervenors address the facts and reasoning underlying the Licensing Board's rejection of their claims. This will not do. "[Ilt is not enough simply to declare Golly that a particular Board ruling was in error. Rather, it is incumbent upon the appellant to confront directly the reasons assigned for the challenged ruling and to identify with particularity the infirmities purportedly inher-ent in those reasons."" Moreover, "a party's failure to submit a brief containing sufficient information and argument to allow the appellate f 4 Id. at 42122.

'S/J. at 422.

'* /J. at 423. 445.

U42 U.s C 4 4321 H Bnef of tmersenors ai i1 12

"(Mr Pwr Co. (Catamha Nuctcar station. Umts I and 2). ALAB.413. 22 NRC 59. 84 n.128 f1995L The micrvenors also challenge the Licenung Board's Ondings on Eddleman contention 81FHI).

wheth asserts that the Gnal enuronmental statement underestemates the health ef fetts of coal particu.

lates emitted from the (cal fuel plants producmg clectrical power to surport the uramum fuel ecle for shcaron Harns. The Licenung Board found that the contention was without merit. specifically.ipt deter.

mmed that the stair correctly concluded in the linal ensironmental statement that there is "a minescule meremental environmental impact from the coal particles' at issue and that further treatment of the mue was unnecessary. LBP.85 5. 21 NRC at 437 38. On appeal. the miervenors once again only rehearse assertions that were re)ccted by the Licensing Board without addrewng the facts and reasoning that led the Board to reject their claims below. The Licensing Bnird treated rully the assertions that the intersenors repeat before us and our esammation of the record consinces us that the Board's findmss are correct and amply supported by the estdence. See at at 428 39. Accordmgly. the Licensing Board's rmdengs on Eddicman contention 8:FH I) are anirmed.

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tribunal to make an intelligent disposition of the issues raised... is tan-tamount to their abandonment."2a Here, the Board's findings fully discuss each issue and thoroughly and accurately assemble the record evidence. In light of the intervenors' totally inadequate briefing of their purported claimsi no useful purpose would be served by repeating all of those particulars here. Suffice it to say that the Board's findings are supported by the record and our exami-

[

nation of the evidence does not convince us that the record compels a different result.E' -

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On appeal, the intervenors also challenge the Licensing Board's rejec-tion of a number of their proffered environmental contentions. The j

rejected contentions fall into four categories dealing with the applicants'

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i radiological monitoring program, the possible ocean dumping of low-level radioactive waste from the plant, the transportation of spent fuel from other nuclear plants operated _by one of the applicants to Shearon Harris for interim storage, and the applicants' costs of operating the j

facility. Unfortunately, many of the intervenors' purported arguments j

'are so sisetchy as to be, at best, of only marginal utility in explaining their position. We have, nevertheless, considered each of the interve-nors' skeletal assertions and find that the' Licensing Board reached the correct result in rejecting the contested contentions.

A. I. The intervenors first argue that the Licensing Board erred in rejecting CCNC's contentions 16,17, and 18, which claim that the appli-cants'. radiological monitoring program is deficient with respect to three specific water sampling locations listed in the applicants' environmental; report. The three contentions all propose modifications that CCNC as-serts will enable earlier corrective measures in the event abnormal offsite radiation levels are discovered. In rejecting them, the Licensing Board 4

concluded that "they inaccurately ascribe to the sample points in ques-tion a function which those points are not intended to perform."22 The Board found that the challenged sampling sites were intended "to con-l lirm certain environmental data " whi:e the " monitoring function of ensuring the safety of people near the sample points and other places 4

1 M

Carawha. ALAB-355. 4 NRC 397. 413. reconia/crarme dened. AL AB 359. 4 NRC 619 (19761. ter l

Pennsrhanna Power and L!rhr Co. (susquetunna steam Electne Staimn. Um s I and 27. ALAB-693,16 NRC 952. 954-57 (1982); Pubhc Serrire Co. or ouaimma (BLnk Fc*. supon. Units I and 2).

ALAB-573.10 NRC 775. 786 87 (1979). vacated m part and ermanded. CLI 80-8. II N RC 433 i1980).

E' See supra note $.

s 22 LBP-82 il9A.16 NRC 2069,2082 (1982).

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s will be performed by the ef0uent radiological monitoring and sampling system,"25 a separate system that CCNC's contentions did not address.

The Licensing Board then rejected the contentions "because they do not accurately address the Applicants' proposal."24 The intervenors claim that the Licensing Board erroneously "went to the merits of the contentions" in rejecting them,instead of only consid-ering whether the contentions stated an adequate basis as required by 10 C.F.R. 6 2.714(b).25 According to the intervenors, the Liceising Board ignored the teaching of our Allens Creek decision that, in deciding the admissibility of contentions, the validity of factual allegations should not be considered and a licensing board should determine only whether the contentions meet the basis and specificity requirements of the Rules of Practice.26 The applicants and the staff support the Licensing Board's ruling, but on slightly different grounds. The applicants argue that the Licensing Board actually rejected the contentions because they lacked an adequate basis. The staff, on the other hand, claims that the contentions were properly rejected for inaccurately addressing the applicants' propos-al and opines that the Licensing Board did not consider the merits of the contentions inasmuch as it expressed no opinion on the correctness of their substance.

The intervenors generally are correct that, in deciding the admissibility of contentions, the validity of the factual allegations comprising the con-tentions should not be considered.2' They are wide of the mark, howev-er, in suggesting that the Licensing Board impermissibly crossed that line here. All three of the contentions propose improvements in tne ap-plicants' radiological monitoring system at speciGe sampling locations for the stated purpose of better protecting the safety of the people in the vicinity of the plant through the earlier detection of radioactive releases.

But as the Licensing Board indicated, the challenged monitoring system is not intended as an early warning system for people residing around the plant. That function is served by the applicants' c//luent monitoring system. Rather, as the Licensing Board earlier found in resolving the same issue raised by CCNC in the construction permit proceeding, the 25./.

I 24 id.

25 Brierof Intervenors at 21.

261/oustan Lichtme ami Poner Co. ( Allens Creek Nutlear (ienerating staunn, l! nit II, \\l. AH-590.11 NRC $42 Il980L 2' See =f ai 547 50. Or,Ac Po=vr Co. (Transportanon nr spem Fuel from Oconee in Nic(suiret ALAB-528. 9 NRC 146.151 (19794 Veremsa Dertrar and ra=cr Co (Nortti Anna Nuticar Power station.

t) nits I and 2). ALAB-522,9 NRC 54. 56 (1979h ifnusuppe Paarr 41.re4r Cea fGrand Cult' Nuclear stauon. L' nits I and 2p. AL AB-130. 6 AFC 423. 426 (197D 535

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purpose of the radiological monitoring system is to confirm the appli-cants' environmental models of _ population exposure from plant releases.2" Had this distinction between the applicants' radiological monitoring system and effluent monitoring system not already been es-tablished in the construction permit proceeding, the intervenors' claim might be more persuasive. Because the purpose and function of the ap-plicants' radiological monitoring system was factually determined in that earlier proceeding, however, the Licensing Board did not impermissibly "go to the merits" of these contentions in rejecting them. Further, in stating that the contentions failed to address adequately the applicants' proposal, the Licensing Board made a determination that was tantamount to a conclusion that the contentions lacked an adequate basis - a correct ground for rejecting them here.

In any event, the contentions are barred by the doctrine of collateral estoppel and we uphold the Licensing Board's rejection of CCNC con-tentions 16,17, and 18 on this alternative ground.2'It is settled that the doctrine of coilateral estoppel should be applied in NRC adjudicatory proceedings to preclude a party to the litigation of an issue considered and decided in the construction permit proceeding from relitigating the issue in the operating license proceeding for the same reactor.3a Just as in the judicial context, the purpose of collateral estoppel in administra-tive proceedings is to prevent continuing controversy over matters finally determined and to save the parties and boards the burtien of relitigating old issues. Therefore, as the Commission has ' stated, "an operating license proceeding should not be utilized to rehash issues already ven-tilated and resolved at the construction permit stage."38 Our cases indicate that, in order for the doctrine to apply, the individu-al or entity against whom the estoppel is asserted must have been a party, or in privity with a party, to the earlier litigation.22 The issue to be precluded also must be the same as that involved in the prior proceeding and the issue must have been actually raised, litigated, and adjudged.

28 LBP 78-4. 7 NRC 92,122-27 (1978).

29 Although the applicants imtially opposed these contentions on the basis that, inter alia, the issue or the adequacy or the applicants' radiological momtorms program was litigated and decided against CCNC in the construction permit proceedmg the Licensing Board did not reject the contentions on collateral estoppel grounds. See Applicants' Response to Supplement to Pention to intervens by Cor.servaten -

Council or North Carolina at 6 7 (June 15,19F21. This bems the case, we ordered the perties to bner the question whether CCNC was collaterally estopped rrom latigaung these contentions in the operaung license proceedmg_

30 Alaeama Power Co. (Joseph M. Farley Nuclear Plant. Umts I and 2). ALA8182. 7 AEC 210 21216. remanded as orMr grosends. CLI 74-12. 7 AEC 203 (l974). See also Tokdo Eduson Co. (Davis-Besse Nuclear Power station. Umts I,2. and 3). ALAB-378. 5 NRC 557. 561 (1977).

31 Farky, CLI 74-12. 7 AEC at 203.

32 Southers Cahforma Edison Co. (San onorre Nuclear Generating station. Units 2 and 31. ALAB.673 15 NRC 688. 695. aff'd. CLI-82-11.15 NRC 1383 (1982); d. ALAB-717.17 NRC 346. 353 54 (1983).

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Additionally, the issue must have been material and relevant to the dis-position of the first action, so that its resolution was necessary to the out-come of the earlier proceeding." Even when these requirements are met, however, the doctrine must be " applied with a sensitive regard for any supported assertion of changed circumstances or the possible exist-ence of some special public interest factor in the particular case."34 in the circumstances presented, the doctrine is fully applicable and the intervenors have presented no supportable grounds to prevent its ap-plication. In the construction permit proceeding, intervenor CCNC was admitted as a party and sought to litigate its contention C.l(a), challeng-ing the adequacy of the applicants' radiological monitoring program."

Although broader in overall scope than the instant CCNC contentions, part of contention C.l(a) claimed that the applicants' program was defi-cient because "there are too few monitoring sites" and "the frequency of monitoring at these sites is too small."36 Here, the same issues are raised: CCNC contention 16 challenges the frequency of sampling at sample point 26; contention 17 questions the number of wells sampled and frequency of sampling at point 39; and contention 18 protests the frequency of sampling at point 40." In the construction permit proceed-ing CCNC presented no direct testimony on its contention, but testimo-ny was presented by the applicants and stalT and CCNC had the oppor-tunity to cross-examine those witnesses.38 Based on that testimony, the Licensing Board found that the applicants' " radiological surveillance pro-gram is adequate from the standpoint of the number of sampling loca-tions and the frequency of sampling."3' This finding, in response to u go,,,on L/rknar and Power Co. (south Texas Project. Units I and 2). LBP 79-27.10 NRC 563. 566 (1979). a//*d. Al.AB 575. Il NRC 14.15 (1980).

34farler. ALAB-182. 7 AEC at 216.

" LBP 78-4. 7 NRC at 94 95.

36/d at 122.

" The intervenors assert that the CCNC is not collaterally estopred from fitigating these contentions in the operatmg license proceeding because "the specific issues raised in contentions 16.17. and 18 were not raswd at the construction permit stage by the Conservation Couned.' supplemental BnerofInterve.

nors (Februarv 24.19AM at 2. Although the iwues prewnted in CCNC's contentions here are narrower than those raned in the construction permit proceedmg. they clearly are encompassed by the broader contention As stated m Moore's Federal Practice in dncussmg the identity of issues between present and prior actions.

[tlhe analogy to the rule agamst splitting a smgle cause of action is sinliing. Like a cause of

.iction. "an nsue may not be.. split into pieces. If it has been determmed in a former action. it is bmdmg notwithstandmg the pJrtles litigant may have omfited to urge for or agamst it matters which. if urged. would have produced an opposite result." Any contention that is necessanly in-consistent with a prior adjudication of a material and fitigated issue then. is subsumed in that issue and precluded by the pnor judgment's collateral estoppel effect.

IB J. Moore. J. Lucas & T. Curner. Moore's Federal Practice 10 443l2l at 761 (2nd ed.1984) (foot.

notes omitted).

38Ser Docket Nos. 50-400,50 401 50-402. 50-403. Tr. fol.1020; Tr. fol.1142.

3' LBP.78-4,7 NRC at 123-24.

l 537 I

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p.:,

i specific portions of CCNC's contention C l(a), was essential to the Board's further Gnding that the applicants' " radiological monitoring and surveillance program is adequate to assess fully the radiological conse-quences of the proposed plant."* In turn, the Board's finding.on conten-tion C,1(a) formed a necessary and material part of its initial decision and,'onstituted a valid judgment on the merits authorizing a construc-tion permit - a decision we subsequently afGrmed.** Thus, all of the ele-ments required for the application of the doctrine are present. Further, CCNC has made no showing of significantly changed circumstances or public interest factors that warrant relitigation of these contentions in the operating license proceeding. Accordingly, CCNC contentions 16, 17, and 18 are barred by the doctrine of collateral estoppel.

2.

The intervenors also appeal the Licensing Board's rejection of a portion of Eddleman contention 2. That contention claims the need for additional radiological monitoring equipment for the plant that has both high and low range detection capability and that can analyze, not only the rate of emissions, but the precise radionuclides and their quantities.42 Although the Licensing Board indicated in rejecting the contention that it met the speciGeity requirements of the Commission's Rules of Prac-tice, the Board found that the contention was redundant of one already admitted (joint contention VI). The admitted contention alleged that the 3

J monitoring system was inadequate because it was incapable of promptly detecting the speciGc types and quantities of radionuclides being released on and off'*a site.

Before us, the intervenors argue that Eddleman contention 2 was er-roneously rejected because it was more speciGc than joint contention VI and thus it also should have been admitted. This argument is frivolous.

The intervenors do not dispute that the matters raised in the proffered Eddleman contention are within the parameters of joint contention VI and that those specific subjects could have been litigated as part of the more general issue set forth in the latter contention. This being the case, the intervenors have not demonstrated (and cannot demonstrate) any prejudice from the rejection of the redundant contention. According-

• Id at l24.

41 AL AB.490. 8 NRC 234 (1978L 42 The contention rurther recites that the applicants should provide cities within 30 miles or the racility with pressurized.ionizapon momtors ror use in emergencies. The Licensing Board round that this portion of the contention dealt with emergency planmns and dererred ruhng on it until the Board considered all such conierisions. See t.BP-82119 A.16 NRC at 2090. In their brier, the iniersenors do not contest this ruhng.

538 i

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s ly, they are not entitled to any appellate relief on the rejection of Eddle-man contention 2.45 3.

Finally, the intervenors claim that the Licensing Board erred in rejecting Eddleman contention 82. That contention also challenges the adequacy of the applicants' radiological monitoring program. Specifically, it asserts that the preoperational program has insufficient sampling loca-tions and numbers of samples to establish a statistically valid portrait of.

background radiation levels and concentrations and that the program's procedures are insufficient. The Licensing Board found that the conten-tion fails to " indicate how the alleged inadequacies would adversely afTect public health and safety or the environment" and concluded it was "without basis."" On appeal, the intervenors state, without more, that the contention should have been admitted because "on its face it ques-tions the adequacy and sufficiency" of the applicants' program, and "[ilt is readily apparent that if a program that is designed to provide a baseline for radioactive emissions is deficient then any monitoring program uti-lized while the plant is in operation will not provide accurate measure-ment above background."

Like CCNC contentions 16,17, and 18, the subject of Eddleman 82 challenges aspects of the applicants' monitoring program that generally were litigated and found adequate by the Licensing Board in the con-struction permit proceeding." Although Mr. Eddleman was not a party to the construction permit proceeding, and therefore is not collaterally estopped from raising these same issues in the operating license proceed-ing,47 our cases suggest that he nevertheless has the burden of providing much greater specificity than typically required of a contention where he seeks to relitigate an issue already fully investigated in the construction permit proceeding.48 Such a requirement is necessary as a bulwark

[

4' The miervenors' brief appears to make a second argument concermng the Licenwns Board % rejectmn of Eddleman comention 2. Like their firsi argument. this one lacks ment. They state (at 21), without claboration. that "although the Licenwng Board is authorved to conwhdate parties and contentmns j

under 10 C F.R. 2.715a on moison or on its own miniative, on motum the parties may respond and pre-seni their positions on how the consohdatmn will adscrsely prejudice their rights.** The emersenors then j

state that "tdn fairness. ( the Licensing Board consohdaics contentons on its own omtialise a umile opporiumsy for rewnse need be afforded " Contrary to the emphcit awumption of the micrvenors' argument. howeser. the Lscenung Board rertrrd Fddleman contention 2 outnght as redundant of jomt contention VI. So il did not mnwhdate the two contentons at all. In any event. esen if we awume the j

two contentons werc wmchow mnsohdated. the miersenors have demonstrated no prejudice to their rights Moreover if the miersenors are compt.unmg about Jomt contention VI as a conwhdaled conten-lion, they cannot now he heard to ohicct becauw they authored and proposed it as a jomt one 44 LDP-82.l t94.16 NRC at 2104 4' Bncr ofIntervenors at 22.

" Scr LBP 78-4. 7 NRCat 122-27.

47See %rn osa/re. AL AB-673.15 NRC at 695.

as Cf. PMrdephe Drurra Co. (Limerkk Generating statmn. Umts I and 21. ALAB.804,21 NRC $87 590 91 (1985L %r erweral/r Swiners Califores Edison Co. (san Onofre Nuclear Generaims taison.

s Umts 2 and 3). AL AB.717.17 NRC 346. 354 n.5119831 i

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against turning the operating license proceeding into a wasteful carbon copy of the construction permit proceeding. Here, as the Licensing Board recognized, the contention fails to particularize how the perceived inadequacies in the applicants' program would adversely affect the envi-ronment or the public health and safety. Moreover, the contention does not spell out, as it must, how circumstances have changed since the con-struction permit proceeding or how the Licensing Board in the earlier case erred in finding the applicants' program adequate. The Board, there-fore, was correct in rejecting the contention. Instead of indicating, how-ever, that the contention was "without basis," the Board should have concluded that the contention lacked specificity, so that its conclusion would be consistent with the Board's reasoning.

B.

Next, the intervenors appeal the rejection of Eddleman contention

12. That contention asserts that the applicants' environmental report and the stalTs environmental statement fail to consider the effects of ocean dumping of low level radioactive waste from the Sheaton Harris facility. It further claims that such consideration is necessary because North Carolina has no land burial facilities for low level waste and is not a member of a waste disposal compact with other states; thus ocean dumping may be the only citernative for disposing of the applicants' low level waste beginning in 1986." The Licensing Board found that

"[tlhere is no indication that ocean dumping is contemplated, or that it is a probable consequence" and rejected the contention for failing to ad-vance any basis.S The intervenors argue that, in rejecting it, the Licensing Board once again erroneously went to the merits of the contention by relying on the factual representations of the applicants' counsel that ocean dumping was not contemplated. The applicants and the stafflargely ignore the in-tervenors' argument, but both seemingly lend credence to it by reciting in their briefs that they informed the Licensing Board that the applicants did not contemplate ocean dumping for low level waste. The staff then claims that the contention lacked any basis because it failed to indicate that the applicants planned such dumping. The applicants carry the argu-ment one step further. They assert that the contention calls for the con-sideration of an unplanned and highly improbable activity that need not

" Tithough the consention does not set out the signiGrance of the year 1986, that was the date con-tained in the Low Leset Radioacuve Waste Policy Act or 1980. 42 U_s C. 4 202ld. at the time Eddleman contention 12 was riled. That Act authorued. inter alia. the then two states weih operating low lesel dis.

posal facihhes to rorm compacts with other states and. after January 1.1986. to esclude waste from noncompact. member states

" LBP 82-I!94.16 NRC at 2092.

540 l

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be considered at all because NEPA does not require the exploration of remote and speculative possibilities.

The intervernors are correct that the Licensing Board erroneously con-sidered the merits of Eddleman contention 12 in concluding that the contention lacked an adequate basis. As proffered, the contention set out the logical foundation for why the environmental effects of ocean dumping of low level wastes from the applicants' facility needed to be considered in the final environmental statement. At the time the conten-tion was filed, it accurately recited the factors beyond the applicants' direct control that reasonably pointed to the likelihood that in 1986 land burial of low level waste would not be available in North Carolina where the applicants' plant is located. It also asserted those factors as the rationale for requiring ocean dumping to be considered as a necessary al-ternative. The contention, therefore, met the requirement of the Rules of Practice that the " bases for each contention (must bel set forth with reasonable specificity.""

It is well settled that in passing upon the admissibility of contentions "it is not the function of a licensing board to reach the merits of any con-tention."*2 Whether the contention ultimately can be proven on the merits is "not the appropriate inquiry at the contention-admission stage."" Here, the factual asserCons of the applicants and the staff that the applicants did not contemplate ocean dumping should not have been considered by the Board - much less been given controlling weight -

in determining whether the contention stated an adequate basis. Yet that is precisely what the Licensing Board did in concluding that "Mr.

Eddleman has advanced no bases for considering ocean dumping."" In reality, the applica'its' plans for land burial of its low level waste lay at the very heart of the contention, i.e., despite the applicants' intentions, significant, new and previously unconsidered factors beyond the appli-cants' control ineluctably pointed toward the unavailability of land dis-posal facilities for Shearon Harris waste. Nor, as the applicants claim, was the likelihood of ocean dumping so remote and speculative as to 2

place its consideration beyond the matters that need be considered for an operating license under NEPA and the Commission's environmental regulations. Rather, at the time the contention was filed, such well-known circumstances as the rapidly dwindling capacity of the country's 4 10 C.F R. 4 2.714f M. Sec Gr.usd C,,it. 6 A EC at 426.

'1 Grand Godf. 6 Arc at 426 9P4dadrehar Electra-C,t (Limerkk Generating Stat.nn. Unns I and 2). AIAB.819. 22 NRC 621. 694 t1985), erww dened. CLI.86 5. 23 NRC 125 l1986) Tec filem Cirra. Il NRC.it $46 49 4 LBP.42 l!9% 16 NRC at 2092.

541 I

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only operating low level disposal facilities and the continuing failure of other states to open new facilities made the likelihood of the need for

(

other waste solutions reasonably foreseeable. The contention, therefore, should have been admitted. Subsequent developments, however, have rendered the Licensing Board's error harmless.

The Licensing Board also admitted a safety contention parallel to Eddleman environmental contention 12 that subsequently (during the safety issue phase of the proceeding) was decided in applicants' favor by summary disposition. That contention (Eddleman contention 67) claimed that, for the same general reasons set forth in the environmental u

contention, there was an absence of an assured land disposal site for low level waste.55 In granting the applicants' motion for summary disposition,'

the Licensing Board determined, in effect, that there were no disputed issues of material fact and that there was reasonable assurance that ade-quate long term !and disposal capacity for low level waste generated by the applicants' facility would be available when needed.56 The interve-

^

nors have not appealed the grant of summary disposition of this conten-tion. Therefore, the factual predicate (i.e., future land burial facilities

~

will be unavailable) supporting the main proposition of Eddleman con -

tention 12 (i.e., ocean cumping must be considered) already has been resolved on the merits against the intervenors. Conceo.uently, the Licensing Board error in initially rejecting Eddleman contention 12 is now harmless error that does not require a reversal and rcmand.57 C.

As part of their application for an operating license, the applicants also seek authority to receive and store at Shearon Harris spent fuel from one applicant's Robinson and Brunswick nuclear plants. Various in-tervenors filed contentions challenging the applicants' proposal but the Licensing Board ultimately rejected them. On appeal, the intervenors complain that the Board erred in rejecting those contentions "concerning the environmental impacts of the transportation of spent fuel from the Applicants' other nuclear reactors to the Harris facility for interim storage."58 55/d. at 2102.

36 Nfemorandum and order (July 24.1984) at 4 8 57 w also note that Congress approved the soutt. east Interstate Low-Level Radioactive Waste Nfanage.

e ment Compact in the Low. Level Radioactive waste Policy Amendments Act or 1985. Pub. L. No.99-240 l 223.99 Stat.1842,1871 (1986). That compact includes North Carolina as well as south Caroli-na - a state where an operating low level waste disposal racelity is located.

58 Bner or Intervenors at 34. Although the intervenors purport to appeal the rejectron or a number or spent ruel transshipment contentions, their brier makes no attempt to identir/ clearly which rejected con. -

tentions they appeal. It first recounts that the " Licensing Board onginally accepted two contentions (CCNC 4 and CilANGE 91 and dererred several other contemsons (among them. Eddleman 25. 64D.

(Contmurd) 1 542 9

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a.

In rejecting the intervenors' contentions, the Licensing Board relied upon Cafawba, where another licensing board rejected similar spent fuel transportation contentions in parallel circumstances." In Cafawba, the applicants, like those here, sought authority in their operating license ap-plication to receive and store, at Catawba, spent fuel generated at two other facilities owned by one of the applicants. That Board found that the Commission already had determined generically the environmental impacts of transporting spent fuel from a reactor in Table S-4, " Environ-mental Impact of Transportation of Fuel and Waste to and from One Light Water-Cooled Nuclear Power Reactor," 10 C.F.R. 6 St.20(g) 64E. and 126)" and then cites the Board's Memorandum and order of September 22.1982. Id Nest, the brief recites that in pawing upon the applicants' motion to reconsider, the Board reiected the pre-viously admitted contentions "and at the same time rejected Mr. Eddleman's comentions (including two late-filed contentions)." citmg the Board's Memorandum and Order of August 24.1983. /J. The brief makes no other attempt to identify the spent fuel transportation contemions.

But intervenor Chapel Hill Anti-Nuclear Group Effort (CHANGE) has not filed a notice of appeal and is not represented by the appellant intervenors. CHANGE was represented before the Licensms Board by Damel Read, but neither Mr. Read r.or anyone else on behalf of CH ANGE filed a notice of appeal from the Licensing Board's partial initial decision en environmental issues. Moreover, even though a number of CHANGE *s other contentions were consolidated and proffered as joint contentions by a number ofintervenors (including appellants) acting together CH ANGE contention 9 was not con-solidated with any other contentions. See LBP 82-Il9A.16 NRC at 2075-78. 2082 83. Accordingly, the intervenors have no standing to press before us a possible grievance of another party to the proceeding.

who is not represented by the intervenors. Nouston L4thring & Power Co. ( Allens Creek Nuclear Generating Station. Unit No.1). ALAB-631.13 NRC 87. 89 (1981). See Puerr Sound Power and behr Co. (Skagit Nuclear Power Project. Units I and 2). ALAB-556.10 NRC 30. 32-33 (1979). C4 Houston Lithung d Power Co. (South Texas Project. Umts I and 2). ALAB-799. 21 NRC 360. 382-83 (1985).

The imervenors are correct that the Licensing Board imtially admitted CCNC contemian 4 and deferred ruling on Eddicman comentions 25. 64D. 64E. and 126. but Eddleman contention 126 concerns

" CLASS IX accidents.* not the transshipment of spent fuel to Shearon Harns. See LBP-82119A.16 NRC at 2094. 2iOO. 2108. Eddleman contention I26X does allege, however, she need to analyac the en.

wironmental effects of transporting spent fuel to Shearon Harns but that contention is not memioned in mtenenors' brief. The other contentions identified by number in inter enors' bnef do concern the envi.

ronmental efTects of transporting spent fuel to the applicants' facdity. But the intervenors' statement that the Board, in its August 24.1983 order, rejected Mr. Eddleman's spens fuel transportaiion conten-uons (including two late-filed ones) cannot be reconciled with the record. In its August 24.1983 order, the Board rejecteJ only one late-filed contention on this subject. Eddleman contention 25B. and it condi-tional:y. ejected Eddleman cor;tenison 25. See Memorandum and Order ( August 24.1983) at 6 7 The i

latter comention was not finath rejected untd much later m a ruling the intervenors' bnef does nnt even mention. Ser Memorundum ana order (July 27.1984) at 2-3.

obviously, the intervenors' identification of the rejected contentions they wish to appeal is totally m.

adequate and fails to comply with 10 C F.R. 4 2.762(dHI). That provison requires that " lain appellant's brief.. clearly identify the errors of fact or law that are the subject of the appeal." See DuAr Power Cn (Catawba Nuclear Station. Units I and 2). ALAB 825,22 NRC 785. 792A3 (1985) Morenver. the in.

tervenors' purported " argument" consists of seseral disconnected generalities. such as "Ltc Licenung Board must review all environmental impacts, not just those that somehow upset the cost-benefit anaty.

sis." Brief of intenenors at 35. Not only are their generahties mapposite in the circumstances presented (sec. c.r.10 C.F.R. 6 51.95(aH, but the intervenors once agam have failed adequately to brief the issues they purport to raise. See DuAr Power Co. (Catawba Nuclear Station. Units I and 2). ALAB-813.

22 NRC 59. 84 n.128 (1985); Susquehanno.16 NRC at 954-56. Accordingly,in addition to the grounds set forth in the text, the Licensmg Board's rejection of the intervenors' vanous spent fuel transportation contentions is also affirmed because the intervenors have inadequately bnefed the mucs and hase no standmg to appeal the rejection of certam of those contentions.

9 Memorandum and order ( August 24.1983) ai 2-6. cirme Duke Power Co. (Catawba Nuclear Station.

Umts I and 2), LBP-83-88.17 NRC 291. 293-95 (1983).

543

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c (1983).aa The Board then determined that these environmental costs had been previously taken into account and balanced against the benents of the facilities in the cost-benent analyses for the plants generating the spent fuel, so that such costs should not be counted a second time in

e considering the Catawba applicants' proposal. Finally, the Board decided that, because the Catawba applicants' proposal was limited to receiving each year spent fuel shipments within the parameters of Table S-4, the intervenors' contentions must be rejected as an impermissible attack on the Commission's regulations. And it found this was true, regardless of whether the spent fuel was shipped directly to a Gnal repository or shipped by way of another reactor before ultimately resuming the jour-ney to a final repository. We subsequently alTirmed the Licensing Board's license authorization for Catawba and concurred in the Board's reasoning rejecting the intervenors' spent fuel transportation conten-tions.*'

Although the iraervenors assert that the Licensing Board erred in rejecting their spent fuel transportation contentions, their brief fails to explain the infirmities in the Board's reasoning - a rationale we upheld.

Thus, as we determined in almost identical circumstances in ALAB-825, 4

3.

the intervenors' contentions present an impermissible challenge to the Commission's Table S-4.62 The Licensing Board, therefore, was correct in rejecting the spent fuel transportation contentions.

D.

Finally, the intervenors protest the Licensing Board's rejection of Eddleman contentions 15 and 22(a) and (b). The former claims that the applicants' environmental report fails to include the economic costs of waste disposal in its cost-beneGt analysis, while the latter challenges the applicants' fuel cost estimates and operating payroll costs.*3 Although the Licensing Board initially admitted these two contentions, it subse-quently reconsidered its decision and found them barred by the Commis-sion's regulaticits that prohibit, in operating license proceedings, conten-

• d Table s-4 is now round in 10 C F R ( 51.5211985)

• ' Carawba. ALAB-825,22 NRC at 792 94 e2 Sec 10 C.F.R. 4 2.758tal

As Gled, these contentions contained numerous additional parts that the Licenung Board rcJccted but on appeal the intersenors have not challenged any of thew ruhnss. S.c LBP 82-Il9016 NRC ai 2092 93 Additionally. the intervenors purport to appeal the Licenung Board's rcjection of Cll ANGE conten-tion 79(c). That contention alleges that the cost estimates set forth in the cost-benent analysis of the ap-plicants' environmental report are encorrect because the apphcants raiied to include regulatory costs in the federal and state governments. See CH ANGE supplement to Petition for Leave to inicrvene at 23 (May 14.1982L But. once again, intervenor CH ANGE has not Gled a notice of appeal and is not repre-sented by the appellant intervenors. Nor was CHANGE contention 79(c) a jnint contention hce LBP-82-Il9A.16 NRC at 2075 78) so that contention cannot he appealed by CCNC and Mr. Eddleman.

See supra note 58.

64 LBP.82.ll9A.16 NRC at.'092 93.

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tions "concerning need for power or alternative energy sources."^' Spe-cifically, the Licensing Board found that the " comparative cost savings contentions of the stripe now before us" cannot be considered "without immediately and directly considering need for power and alternative energy source costs, the very issues proscribed by the Commission's recent rule.""

The intervenors complain that the Licensing Board advanced no reason why the regulations forbid the litigation of the economic costs of the agency's proposed action. In their view, such costs are dependent solely on whether the applicants' plant operates and not on possible al-ternative energy sources that might displace the facility or the need for the plant. The intervenors' argument overlooks the obvious. In an operating license proceeding, these component costs standing alone are meaningless. As the Licensing Board recognized, the sole purpose of waste disposal costs, fuel cost estimates, and payroll costs is to help in the determination of (1) whether the cost of the facility outweighs its benefit, and (2) how that cost compares with alternative energy sources.

i Yet these are the very matters the Commission sought to prohibit in operating license proceedings because questions about need for power and alternative energy sources are resolved in the construction permit proceeding. As the Commission stated in enacting the regulatory prohibition, the purpose of these amendments is to avoid unnecessary consideration of issues that are not likely to tilt the cost-benefit balance by efTectively climinating need for power and alternative energy source issues from consideration at the operating license stage. In accordance with the Commission's NEPA responsibilities, the need for power and alternative energy sources are resolved in the construction permit proceeding.. [Wlhile there is no diminution of the importance of these issues at the construction permit stage. the situation is such that at the tire.. of the operating license proceedmg the plant would be needed to either meet increased encrgy needs or replace older less economical generating capacity and that no uable alterna-lives to the cornpleted nuclear plant are likely to esist which could tip the NEP A cost-henefit balance against issuance of the operating bcense. Past esperience has shown this to be the case. In addition, this conclusion is unlikely to change esen if

• • 10 C F.R. t 5153tcp i1983L Thn subsection was added to the Con mnen% reguk'mns in l*t2 and states. " Presiding omccrs shall not admit comennons protTered by any parts toncern ng need for power or alternauve energy murces for the profused plant in orcratmg iscense pro 6cedings~ Two mmpahion provisions, added to the regulahons at the same time, authorire apphcants and the staff to esclude need for power and alternatne energy mourec nformation from. respectncly. thC Jpplicanti CntironmCntJI rcrort and the stalTs environmental impact statement. Se 10 C F.R. W 51.21. 5123tc)lt983L in 1984. the Commission revised Part 51 ofits regulations and the sutstantive prohibiison of t'ormer wetion 51.53(c) now is found in 10 C F R. 4 St.10Mct. whde the provmons of rormer wetions il 21 and 51.23(c) are found in in C F.R. H 5153(a) and $195(a), respectively.

^^ LBP-83 27A. I7 NRC 971. 974 75 (1983).

545

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'es an alternative is shown to be marginally ensironmentally superior in comparhon to operation of a nuclear facility because of the economic advantage w hich operation of nuclear power plants has os er available fossil generating plants.*?

Thus, to permit the litigation of comparative cost contentions, as the in-tervenors urge, would be contrary to the specific Commission Gndings underlying this regulatory prohibition and would allow by indirection what the regulations directly prohibit. As the Licensing Board correctly determined in rejecting them, "[alltowance of these contentions would emasculate the rule."**

III.

After the Licensing Board rejected his need for power and alternative energy source contentions on the ground that they were barred by the Commission's regulations, Mr. Eddleman filed a petition pursuant to 10 C.F.R. f 2.758 to waive this regulatory proscription. Section 2.758 pro-vides that Commission regulations shall not be subject to attack in adju-dicatory proceedings except upon a prima facie showing, supported by af-Gdavits, "that special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule or regula-tion (or provision thereof) would not serve the purposes for which the rule or regulation was adopted."*' In a nutshell, the Eddleman petition purports to demonstrate an environmentally and economically superior alternative to the operation of Shearon Harris throagh a combination of loadshifting, energy storage, solar energy and conservation measures.

The Licensing Board concluded that Mr. Eddleman failed to establish that the application of the regulation would not serve the purpose for which the rule was adopted, and it therefore denied the petition.'a The Board found that the Eddleman petition, in comparing the proposed al-ternative to the operation of Shearon liarris, only considered meeting in-creased demand or peak loads. Next, it determined that the petition did not address the use of Shearon Harris to displace existing fossil fuel base-load generation by establishing that the proposed alternative was superior to all of the applicants' fossil fuel baseload capacity. This being the case, the Board concluded that

• ' 47 Fed. Reg. 12.940 (1982L 68LBP 83 27A.17 NRC at 97$.

6' 10 C.F.R. ( 2.7581bL

'n The Licensing Boaro initully densed the petmon muhnua enplanation. Xev LBP 24 29h. 20 NRC 389 424 81984L subsequently. the Board set forth the reason for the denialin its first partulinnial decision Scr LBP-85 5. 21 NRC at 440 44 546 D

I

e Mr. Eddleman has not shown "special circumstances.. such that application of the (need for power] rule would not serse the purpoic for which it was adopted?' 10 C.F.R. 6 2.758. That new nuclear units, with their cost and ensironmental advan-tages would be run as baseload units. possibly replacing old coal unin was a basic premise of the rule. Given that premise, the " purpose" of the rule (within the meaning of( 2.758) was to avoid pointless litigation about need for power projec-tions and minor environmental effects where there was no realistic prospect of tilting the NEPA cost /benent balance. That purpose is served by application of the rule in this case.78 On appeal, the intervenors claim the Eddleman petition was wrongly denied. Although their argument is anything but a model of clarity, the intervenors appear to assert that the Licensing Board misread the peti-tion by finding that it failcd to address the use of Shearon Harris to re-place existing fossil fuel generation on the applicants' system. Similarly, they assert that the Board erred in concluding the petition must establish that the conservation based alternative is superior to all the applicants' existing fossil fuel power generation. The intervenors' arguments are without merit.

As the Board found, the Commission promulgated the rule prohibiting consideration of need for power and alternative energy issues at the operating license stage in order to avoid unnecessary litigation. In con-trast to the situation at the construction permit stage where these issues are considered before construction of the plant is authorized, the Com-mission generically concluded that, once the plant is completed, the economics of nuclear power are such that no viable alternatives are likely to tip the NEPA cost-benellt balance against issuance of an operat-ing license. This determination was based upon the Commission's licens-ing experience that showed that an electric utility uses a completed nuclear plant either to meet increased energy demand or, alternatively, to replace older less economical generating capacity if there is no in-crease in demand.'2 Therefore, to demonstrate that the purpose of the Commission's rule against needless litigation at the operating license stage is not served by its application in this case, the intervenors. at a minimum, must establish both that the Shearon liarris plant is not needed to meet increased energy demand and that it need not be used to displace an equivalent amount of older. less economical capacity. The latter condition can be satisfied only by showing that. after applying the conservation-based alternative, there no longer remains an amount of 9 /d at 444

'2Ser mt-a pp 545-46.47 Fed Reg. at 12.94n.12.441 547

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Atomic Safety and Licensing i

Boards issuances ATOMIC SAFETY AND LICENSING BOARD PANEL B. Paul Cotter,

• Chairman Robert M. Lazo, *Vice Chairman (Executivel Frederick J. Shon, 'Vice Chairman (Technical) i Members Dr. George C. Anderson James P. Gleason Dr. Unda W. Uttle Charles Bechhoefet*

Herbert Grossman*

Dr. Emmeth A. Luebke' l

Peter 8. Bloch*

Dr. Cadet H. Hand, Jr.

Dr. Kennth A. McCollom Lawrence Brenner' Jorry Harbour

• Morton B. Margulies*

Glenn O. Bright

• Dr. David L Hetrick Gary L Mithottin Dr. A. Dixon Cattihan Emest E. Hill Marshall E. Mitter James H. Carpenter

• Dr. Frank F. Hooper Dr. Peter A. Monis' Hugh K. Clark Helen F. Hoyt*

Dr. Oscar H. Paris' Dr. Richard F. Cote

• Bizabeth 8. Johnson Dr. David R. Schink Dr. Frederick R. Cowan Dr. Walter H. Jordan Ivan W. Smith *

,f.

Dr. Michael A. Duggan James L. Kelley*

Dr. Martin J. Steindler Dr. George A. Ferguson Jerry R. Kline' Dr. Quentin J. Stober f

Dr. Harry Foremen Dr. James C. Lamb (11 Seymour Wenner Richard F. Foster Gustave A. Unenberger' Sheldon J. Wolfe' John H Frye lil' i

i

\\

• Permanent panelmembers a

i

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Cite as 23 NRC 551 (1986)

L8P 88-13 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

James L Kelley, Chairman Glenn O. Bright Elizabeth B. Johnson In the Metter of Docket No. 50-322-OL-4 (ASLBP No. 77-347-01 D-O L)

(Low Power)

LONG ISLAND LIGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)

May 5,1986 ORDER DISMISSING PROCEEDING AS MOOT On March 18. 1986, counsel for LILCO filed a motion to dismiss this proceeding as moot. The motion noted the fact that (1) the TDI diesels had been approved by another Licensing Board for low-and full-power operation, (2) low-power testing had been completed, and (3) the Licensing Board decision had been approved by the Appeal Board.

ALAB-824, 22 NRC 776 (1985). Thus, the licensing event for which this proceeding had been convened - low-power testing - had been completed using different equipment. The motion accordingly stated that "LILCO moves that this Board dismiss this proceeding as moot, without prejudice to LILCO's ability to apply under future circumstances to use the EMD diesels and/or the 20 megawatt turbme as emergency 551 l

l

[

4

.. e s

s..

backup power sounes in accordance with the Commission's regula-tions."

On March 27,1986, the NRC Staff stated its lack of objection to the LILCO motion, citing the same grounds. No other party responded to the motion.

The Board understands the basic circumstances surrounding this motion to be as stated by LILCO. LILCO's unopposed motion to dismiss the proceeding as moot, without prejudice, is granted.

FOR THE ATOMIC SAFETY AND LICENSING BOARD James L. Kelley, Chairman Bethesda, Maryland 552

Cite as 23 NRC 553 (1986)

LBP 86-14 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Sheldon J. Wolfe, Chairman Frederick J. Shon Dr. Oscar H. Paris in the Matter of Docket Nos. 50-289-OLA-1 50 289-OLA-2 (Steam Generator Plugging Criteria)

GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION (Three Mile Island Nuclear Station, Unit 1)

May 19,1986 The Licensing Board issues a memorandum and order which memo-rializes a prehearing conference and rules on an intervenor's motion for a time extension and on scheduling matters.

Rt; ES OF PRACTICE: RESPONSIBILITY OF PARTIES It is a basic principle that "a person who invokes the right to partici-pate in an NRC proceeding also voluntarily accepts the obligations atten-dant upon such participation." Duke Power Co. (Catawba Nuclear Sta-tion, Units 1 and 2), CLI-83-19,17 NRC 1041,1048 (1983). Moreover, "the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations." Statement of Policy on Conduct of Licensing Proceedings, CLI-818,13 NRC 452. 454 (l981). Philadelphia 553

~

Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-819, 22 NRC 681, 730 (1985); Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 NRC 1245,1261 n.29 (1982).

Finally, " lilt is well-settled that a participant in an NRC proceeding should anticipate having to manipulate its resources, however limited, to meet its obligations." Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-719,17 NRC 387,394 (1983).

RULES OF PRACTICE: RESPONSIBILITY OF PARTIES Neither the Licensee nor the Staff can be permitted to leave the presiding body and the other parties to the proceeding in the dark about any information which is relevant and. material to the adjudication. Duke Power Co. (William B. McGuire Nuclear Station, Units I and 2), ALAB-143, 6 AEC 623, 625 (1973); Georgia Power Co. ( Alvin W. Vogtle Nuclear Plant, Units I and 2), ALAB-291, 2 NRC 404. 408 (1975);

Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397,406 n.26 (1976); Tennessee Val /cy futhority (Browns Ferry Nuclear Plant, Units 1, 2, and 3), ALAB-677,15 NRC 1387,1394 (1982); Aferropolitan Edison Co. (Three Mile Island Nuclear Station.

Unit 1), ALAB-774,19 NRC 1350,1357-58 (1984). Even if there is a reasonable doubt with regard to the Board notification obligation, the in-formation should be disclosed for the Board to decide its true worth.

Three Afile Island supra, at 1358 AlcGuire, supra,6 AEC at 625 n.15.

LICENSING BOARDS: DISCRETION IN MANAGING PROCEEDINGS In proceeding to hear those matters which are ripe for hearing, the Board complies with the Commission's direction that the hearing process should move along at an expeditious pace, consistent with the demands of fairness. Statement of Policy on Conduct of Licensing Proceedings.

CLI-81-8,13 NRC 452 (1981).

LICENSING BOARDS: DISCRETION IN MANAGING PROCEEDINGS The Board's adoption of the procedural mechanism utilized in Com-monwealth Edison Co. (Zion Station, Units I and 2), LBP-73 35. 6 AEC 861, 865 (1973), a#'d, ALAB-226, 8 AEC 381, 400 (1974) does not conflict with the decision in Union of Concerned Scientists r. NRC, 735 F.2d 1437 (1984).

554

MEMORANDUM AND ORDER (Memorializing Prehearing Conference, and Rulings on TMIA's Time Extension and on Scheduling Ma:ters)

Memorandum I.

BACKGROUND OF EVENTS LEADING TO CONFERENCE OF MAY 7,1986 These two cases have been consolidated at least through the discovery period.' Further, the Board had directed that discovery would begin on March 28 and should be completed by May 12, 1986, and that, if no party advised by May 19 that a motion for summary disposition was to be filed, the Board would proceed to set the date, time, and place for the hearing., Order of April 2,1986, memorializing the March 27,1986 spe-cial prehearing conference (unpublished).

On April 11, 1986, the Intervenor, Three Mile Island Alert (TMIA),

Gled a motion requesting a 6-month extension of time from May 12 to November 12, 1986, within which to complete discovery. TMIA stated therein, in the alternative, that it withdraws as an intervening party if its motion were to be denied. TMIA's then representative, Ms. Doroshow, advised that she could no longer represent TMIA in light of new employ-ment, that the Intervenor lacked resources to employ a new representa-tive, and that the volunteer representative available, a Ms. Louise Brad-ford, could not participate in this case for at lehst 6 months because of her participation in another NRC hearing. TMIA argued that the Licen-see would not be prejudiced by the extension of time to November 12 for the completion of discovery because, in case OLA-1, the proposed plugging criteria will not take effect until after the Licensee's planned refueling outage,2 and because, in case OLA-2, the NRC Staff had pro-posed a "no signincant hazards consideration," which if finally deter-I in case OLA.I. at issue is the Licensee's apphcation to amend the steam generator tube technical specifications. Thrs proposed amenument. Technical specification Change Request (TsCR) 148. would maintain the 40% throughwall limit on the secondary side of tubes but would replace the 40% limit on the primary side of tubes with a sliding scale which goes ' rom 40% to 70% throughwall depending upon the size of the defect. In case OLA 2. at issae is Licensee's applicatics to amend the steam generator tube specifications. That proposed amendment. TsCR 15.1. would in substance change the repair criteril to allow the Licensee not to repair tubes, under certain circumstances. if a tube has a defect up to 50%

throughwall penetration.

2 Originally the time for the refueling outage had been scheduled for December but Licensee advises that the schedtele has been set forward to November 1986.

555

4 mined by the Commission, would be immediately efTective until the refueling outage.)

In its Response of April 17, 1986, the Licensee opposed TMIA's motion. The Staff's Response of April 30 opposed a 6-month extension of time in case OLA-1. However, the Staff noted that its safety Evalua-tion Report (SER) would not be issued until July 31, 1986. Since the SER would contain certain assumptions as to what the Licensee's test re-suits would show during the November refueling outage, the StalT sug-gested that the Board grant a 3-month extension of time to August 12 within which to complete discovery. In case OLA-2, the Staff did not oppose the requested 6-month extension because, as of April 18, 1986, the amendment became efTective until the refueling outage in November 1986, and thus the extension would not delay the efTectiveness of the change. The Commonwealth of Pennsylvania's Response of May 6 sup-ported TMIA's motion.

Upon receipt of the Staffs Response of April 30, the Board became very concerned because certain information therein had not been dis-closed to it at any time prior to or during the March 27,1986 special pre-hearing conference when the Board, without knowledge of and the j

benefit of that information, proceeded to set an expedited schedule for discovery and summary disposition procedures. For the first time, as of April 30,1986, we were informed (1) about the status of the SER -

i.e., that it would be issued on July 31, 1986; (2) that, by letter dated February 19, 1986, the Licensee had agreed to the StalTs request that, at the next refueling outage (then scheduled for December 1986), the Licensee would remove and test a number of steam generator tubes to verify that the defect morphology related to corrosion was the same as that identified in tubes previously removed and that eddy current testing techniques were accurate: and (3) that the Staff's evaluation of this test data would not be available in a supplement to the SER (SSER) before the end of January 1987.

1 3 on April 18.1986. the Commission made a final determination that TsCR 35) involved no seniGeant hazards consideration, and, prior to the hearms, made the amendment immediately effective. 51 Fed.

4-Res. IMil.

556 l

l l

l

II. DISCUSSION RE: THE CONFERENCE OF MAY 7, 19864 The Board held a conference on May 7,1986, in order to hear aoJi-tional discussion which would enable it to rule upon TMIA's motion for a time extension and, more particularly, to hear discussion upon the three matters set forth in the Staffs Response of April 30.

We Grst questioned Licensee's counsel as to why Licensee's letter of February 19, 1986, addressed to the Office of Nuclear Reactor Regula-tion had not been brought to the Board's attention prior to or during the March 27,1986 special prehearing conference. Licensee's counsel stated that he may or may not have known about the letter, but did not recall.

After the Board had been furnished with a copy of the letter by Staffs counsel at the May 7 conference, Licensee's counsel advised that he had seen the letter before but did not remember when he had seen it. He stated that for two reasons he had had no impression that this informa-tion was necessary for the granting of TSCR 148. First he stated that it had always been Licensee's position that such testing would not be necessary because Licensee has already confirmed that corrosion has not reinitiated and that eddy current testing is accurate, and that supporting documentation had been submitted with its application to the NRC.

Second, he stated he had been under no such impression in light of the fact that, on March 27, the Board had set a very expedited schedule which would have brought about a determination or at least a hearing months before the Licensee's schedule for pulling tubes. He advised that prior to and during the special prehearing conference, while he had been aware that a SER would be issued by the Staff, he had not known the projected issuance date, that he had been unaware that the Staff would require the pulling (and testing) of the tubes as a prerequisite to the granting of the 70% throughwall amendment, and that he had not known that the StalT would issue a supplement to the SER based upon an analysis of the pulled tubes (Tr. 145-52, 179).

We then questioned Staffs counsel, who stated that, prior to the spe-cial prehearing conference, she had not seen Licensee's letter of Febru-ary 19, but had been aware that the Staff had requested and the Licensee had agreed to pull and test three tubes an 1 that the Staffs final position upon the issuance of the 70% throughwt ' amendment would have to await its confirmatory analysis of Licensee's test results, which would be set forth in the SSER. She also indicated that the Staff had believed that,

• Atiendees were: Mary wagner. E4. counwt for the NRC stafr. Bruce Churchill. Esq.. coumel for the t.icenwe; Thomas Au. Esq. counset ror the Commonwealth of Penn9hama, and Ms. Loune Brad.

ford. represemauve for TMI A.

557

after the issuance of the SER based upon certain assumptions in which StalT has a high level of confidence, the case could be heard and decided in advance of receiving Licensee's confirmatory test data, and thus that a significant amount of time would be saved. She suggested that the Board's decision could be issued subject to the condition that the Staff's evaluation of the Licensee's test results would confirm the assumptions in the SER. Staff's counsel added that the July 31 issuance date of the SER had been determined only at about the time the Staffs Response of April 30 was being prepared. She further stated that, prior to and during the special prehearing conference, even though there was uncertainty as to when the SER might be issued and even though there was a possibility that it might not even be issued until January 1987, the Staff had thought it cou'd prepare and submit testimony in advance of the issuance of the SER. She opined that the February 19 letter and that information about the issuance of an SSER did not meet the standards requiring a Board notification since they were not relevant and material to an issue in the case 5 (Tr.152-66).

I III. DISCUSSION OF TMIA'S MOTION FOR TIME EXTENSION We agree with the following legal principles presented in the Licen-see's April 17 Response. It is a basic principle that "a person who in-vokes the right to participate in an NRC proceeding also voluntarily ac-cepts the obligations attendant upon such participation." Duke Power Co. (Catawba Nuclear Station, Units I and 2), CLI 83-19,17 NRC 1041, 1048 (1983). Moreover, "the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hes :ng obligations."

Statement of Policy on Conduct of Licensing Proceedia.ss, CLI-81-8,13 NRC 452, 454 (1981); Philadelphia Electric Co. (Limerick Generating i

Station, Units I and 2), ALAB-819. 22 NRC 681,730 (1985); IVisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 1

5 The Board noted that, with respect to TSCR 153. while it had received comes of the Commewon's Gnal determination of no sign Gcans h.irards consideration.ns well as i;opies of the Staft's 5ER. it hd!

not received comes of TMICs comments of 4farch 27.1986 urnn the Stairs proposed no signincani hazards consideration. TNtINs comments were only summ4nted in the SER. Stairs counsel adsned that her understanding was that such ongsnal comments are not generally forwarded to licensing boards.

Further. Staff counsel handed to the Board copies of a letter dated 4f ay 2.1946. wherein the NRR requested that the Licensee should include cenain tests in its iesting of the three pulled tubes. StafT counsel advised that that letter would probably not hase been furmshed to the Board as a Hnerd not Oca.

ison 4Tr i66 67) 4 o

558

~

1 NRC 1245,1261 n.29 (1982). Finally, "[ilt is well-settled that a partici-pant in an NRC proceeding should anticipate having to manipulate its resources, however limited, to meet its obligations." Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-719,17 NRC 387, 394 (1983).

However, we disagree with Licensee's argument that the Board should adhere to its original cutoff date of May 12 for discovery lest Licensee be " extremely prejudiced." We are not persuaded by this argu-ment in light of Licensee's failure to notify the Board, prior to or during the March 27,1986 special prehearing conference, that, as of February l

19, the Licensee had agreed to remove and test certain steam generator J-tubes at the next refueling outage. Licensee's counsel should not have had the " impression". that this information was not necessary for the I

granting of TSCR 148 (Tr.149). There can be no doubt that this con-firmatory testing to be conducted as currently scheduled to begin in November 1986, which would be long after the completion of discovery and of the hearing and subsequent to the issuance of an initial decision, was relevant and material to the very issues being controverted in this proceeding.

We accept Staff counsel's representations that she had not seen the February 19 letter prior to the special prehearing conference and that it was not until on or about April 30 that the Staff determined that the SER would be issued on July 31. However, since she had been aware that the Licensee had been requested and had agreed to perform con-firmatory testing, she should have notified the Board in a timely manner regardless of the fact that the Stati viewed the issuance of the SER as being the single most important event which has to take place before the hearing could begin. Such timely notification was necessitated because i

Staff counsel conceded that (1) after the issuance of the SER but subject to the restrictions in the Rules of Practice TMIA might be entitled to proceed with some discovery after seeing the assumptions in the SER for the first time on or about July 31,1986; (2) if meeting the standards for the late filing of contentions. TMIA might be entitled to propose new contentions based upon that which is reflected in the SER; and (3) if the supplement to the SER to be issued in January 1987 varies from assumptions in the SER but nevertheless supports the 70% throughwall amendment, TMIA would be entitled to discovery, subject to restrictions in the Rules of Practice, and would be entitled to propose additional con-tentions provided the criteria for late filing are met (Tr.157-60). More-over, the StalT should have timely informed the Board at least as to the general status of the SER and, more particularly, should have told us that the SER woul<1 reflect certain assumptions as to what Licensee's 1

559

-,.4

l testing data would show during the refueling outage. While the Staff had a "high level of confidence" in its assumptions which would be verined by the Licensee's tests conducted during the refueling outage and con-Armed by the Staffs evaluation in late January 1987, it conceded that "anything is possible"'and "it is conceivable that our position might change if the results don't bear us out..." (Tr. 153, 191).*

In light of the foregoing discussion, we rescind the schedule estab-lished at the March 27, 1986 special prehearing conference because neither the Licensee nor the StafTean be permitted to leave the presiding body and the other parties to the proceeding in the dark about any infor-marion which is relevant and material to the adjudication. Duke Power Co. (William B. McGuire Nuclear Station, Units I and 2), ALAB 143,6 AEC 623, 625 (1973); Georgia Power Co. (Alvin W. Vogtle Nuclear Plant, Units I and 2), ALAB-291,2 NRC 404,408 (1975); Duke Power Co. (Catawba Nuclear Station, Units I and 2), ALAB-355,4 NRC 397, 406 n.26 (1976); Tennessee Valhy Authority (Browns Ferry Nuclear Plant, Units I,2, and 3), ALAB-677,15 NRC 1387,1394 (1982): Met-ropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),

ALAB-774,19 NRC 1350,1357-58 (1984). Even if there is a reasonable doubt with regard to the Board noti 0 cation obligation, the information should be disclosed for the Board to decide its true worth. Three Mile Island. supra, at 1358; McGuire, supra,6 AEC at 625 n.15. In the instant case, Staft's Response of April 30 at page 4 explicitly stated that the data to be evaluated in the SSER "will also bear directly on TMIA's Conten-tions I,2 and 5.. "

We are not disposed, however, to grant entirely TMIA's motion for a 6-month extension of time to November 12,1986, within which to com-plete discovery. TMIA's representative, Ms. Bradford, has advised that her participation in the other case would terminate at the end of July 1986 (Tr.139). Allowing a 15 day period of grace to enable Ms. Bradford to review the record, the new schedule, as set forth in the Order, in/ra.

among other things, directs that discovery shall begin on August 15 and shall be completed by no later than September 29.1986.

Further, as indicated in i Gve of our Order, in/ra, we are utilizing a Zion-type procedural mechanism.' The hearing on all matters ripe for

• During the speoal prehearing conrerence. pawny referenca hv TMt O representatne and by staf!*s counselindicating that further testing would he required by the stair to confirm that tube oirroseon had been arrested did not alert the B(wrd in the immrtance of thn egent. espepally vnce timing was not speciraed in any event. p.assing references made during the course or nr.d argumens are no subssolute for written Board notiGcations

• CommmnewM Ednne Co f / inn strinn. Ifniis I and 2L l BP-7Mt 6 \\10 R68. Itat i19736, an*J

\\l. 48 226. $ grC 381. 400 (1974L 560

~

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I hearing will commence on December 15 and will be completed on December 19, 1986. After the record is closed on December 19, within 10 days after service of the StalTs Supplement to the SER, TMIA may file a notice requestins an additional hearing (without having to meet 4

the usual standards for reopening a record) limited to matters, within the scope of the admitted contentions, which arose subsequent to the closing of the record. TMI A is to be given timely access to all informa-tion directly relating to and within the scope ofits admitted contentions which the Licensee has developed in the testing of certain pulled tubes scheduled to begin in November 1986 and which the Staff has developed in evaluating the Licensee's test data, which evaluation is scheduled to be accomplished by January 31,1987.

During the course of the May 7 prehearing conference, we requested

]

that, on May 14, the parties should simultaneously file briefs discussing l

whether the Board's utilization of the Zion-type procedural mechanism l

would conflict with a decision by the United States Court of Appeals, i

District of Columbia Circuit, and discussing whether, pursuant to Com-I mission case law, the Board could properly issue its decision in advance of the Licensee's confirmatory testing and the StalTs analysis thereof j

(Tr. 212-16).8 In Union of Concerned Scientists (UCS), the Court of Ap-peals vacated a Commission rule,10 C.F.R. l 50.47(a)(2).' The rule j

provided that emergency preparedness exercises...are part of the l

operational inspection process and are not required for any initial deci-sion. The Court vacated the rule because the adoption thereof was beyond the NRC's statutory authority in that Congress had not granted the Commission discretion to remove so material an issue as the results of ofTsite emergency preparedness exercises from hearings required by i 189(a)(1) of the Atomic Energy Act. 42 U.S.C. I 2239(a)(l) (1976).

In support of taking the exercises out of licensing board's hearings and making them instead part of the NRC StalTs preoperational testing, the i

Commission, among other things, argued that an interested party could -

i seek to reopen a concluded hearing if the actual conduct of the exercise identified fundamental defects in the ' emergency preparedness plans.

The Court noted, however, that (1) the Commission had nowhere ob.

J ligated itself to leopen proceedings pursuant to 10 C.F.R. l 2.206; (2) in the past, the Commission has said that a hearing could be reconvened where a showing that its standards for reopening have been met; and I

j 8 The Commonwealth or Pennsylvania filed 6:s bner on May 13. and the Licenwe and the staliriled on May 14 TMI A did not submit a bner

• Unen of Concerned Scentists v. NRC.135 F 2d i431 (19R4), cert. Jened sub nom. 4fabama Pnwer and Light Ca v. Unen of ConcernedScirnrists. _ U.s.

83 L. Ed 2d 808 (1985).

I 561

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that (3) the Commission's practice generally has been not to reopen a hearing absem new information that would clearly mandate a change in result (UCS, supra,735 F.2d at 1444 n.ll).

We conclude that our Zion type ruling does not run afoul of the UCS decision. Moreover, we deem the Licensee's confirmatory tests and the Staff's analyses thereof to present material rather than minor issues in this case. At this time, without any evidence having been presented to us, in good conscience we could not leave these matters for posthearing resolution by the Staff. Indeed the Commission, insofar as TSCR 148 is concerned, did not determine that there was no significant hazards con-sideration and instead issued a Notice of Opportunity for a Prior Hearing.

51 Fed. Reg. 459 (Jan. 6,1986) in proceeding to hear those matters which are ripe for hearing, we are complying with the Commission's direction that the hearing process should move along at an expeditious pace, consistent with the demands of fairness. Statement of Policy on Conduct of Licensing Proceedings, CLI 818,13 NRC 452 (1981). We have not placed any roadblocks by imposing the usual standards for reopening that must be met. TMIA, as well as any other party, has been afforded an ample opportunity after the j

close of the record to request an additional hearing limited to matters, within the scope of the admitted contentions, wt.ich arose subsequent to the closing of the record. TMIA will be given timely access to all perti-nent information developed by the Licensee and the StalTafter the close of the hearing with respect to the accuracy of edd/ current testing and to continuing or new corrosion of the steam generator tubes.

Finally, we are aware that our schedule will delay the Licensee's implementation during the next refueling outage of the 70% throughwall amendment. Our decision, upon a record which may be reopened, will 1

not be issued by January 15,1987, which is the date upon which Licen-see states it would need a decision in order to implement TSCR 148 during the currently scheduled outage period of November 3,1986, to March 13,1987, However, Licensee's counsel also recognizes that the Staff's SSER will not be issued until the end of January 1987 and thus,if possible, the Licensee would have to get its testing results to the Statiat an earlier time (Tr. 200-03),'a Thus, while there is only a possibility that the Licensee could accelerate its testing and the submission of the results to the Staff, there is no possibility that the Board could issue its decision 18 we note that. as Licensee's coumel apparently concedes. even if no heanns at all were held in this case the staffs reluctance to permit TsCR 148 to become effecuve before complenon of both she Licensee's ;9nfirmatory tests and the staffs analyses would make et difficult to assure that the change could be implemented in time to benefit Licensee during the wheduled refueling nutage r

562 l

t before January 15, 1987. We must balance the consequences of delay to the Licensee against our obligations to protect public health and safety.

Obviously,. we conclude that public health and safety are paramount considerations.

i Order l.

Discovery in this consolidated proceeding shall begin on August i

15 and shall be completed by September 29,1986. (Licensee's First Set of Interrogatories and Request for Production of Documents served on l

April 3 shall be deemed to have been served and received by TMIA on August 15,1986.) The time for a party's written response to a request for production of documents, etc., under 10 C.F.R. 4 2.741 is reduced from 30 days to 20 days. The parties shall make every elTort informally to engage in and expedite the discovery process.

2.

Any 6 2.749 motion for summary disposition shall be served by express mail or by hand-delivery on October 15, 1986. The time for an-swers supporting or opposing the motion, with or without afGdavits, is reduced from 20 to 15 days and such answers shall be served by express mail or by hand-delivery on October 31,1986.

3.

In a conference call on November 10,1986, without discussing its reasons, the Board will advise the parties whether the motions for sum-mary disposition have been denied. granted, or partially granted. if a motion is partially granted, the Board will advise which portion of a con-tention remains as a triable issue. As soon as is possible after November 10, the Board will issue a formal order discussing the reasons for its rulings.

4.

On November 28, 1986, any written direct testimony of a party shall be served by express mail or by hand-delivery. As a separate enclo-sure, parties shall (1) list proposed exhibits. (2) advise whether any other party opposes the admission into evidence of any proposed exhibit and the reasons for such opposition, and (3) state that a copy of any pro-posed exhibit, not already in -the possession of the other parties, has been furnished.

5. The hearing will begin on December 15 at a time and place to be speciGed in a subsequent Order and will be completed on December 19 1986. The Board's Order closing the record on December 19,1986, will afford Intervenor TMIA, as well as other parties, an opportunity to re-quest an additional hearing limited to matters, within the scope of the admitted contentions, which arose since the close of the record on December 19 - i.e., limited, within the scope of the contentions, to a consideration of Licensee's pulling and testing of certain steam generator I

$63 t

~

tubes scheduled to begin in November 1986 and to a consideration of the Staff's evaluation of Licensee's test data which will be available before the end of January 1987 in a supplement to the SER. TMIA will be given timely access to all such pertinent information so developed by the Licensee and the Staff after the close of the hearing with respect to the accuracy of the eddy current testing and to continued or new corro-sion. Within 10 days after service of the Staff's SSER, TMIA may file a notice requesting such a limited, additional hearing, without meeting the usual standards for reopening a record.

6.

The parties are directed to Gle, and the Commonwealth of Pennsylvania may file, propot ? Sndings of fact, conclusions of law or briefs. The failure of any party tu file may be deemed a default. The Licensee shall so file within 30 days after the record is closed on Decem-ber 19,1986. TMIA shall so file, and the Commonwealth of Pennsylva-nia may file, within 40 days after the record is closed. The Staff shall so file within 50 days after the record is closed. Licensee may file a reply within 5 days after the filing of proposed findings and conclusions oflaw and briefs by other parties.

7.

If TMIA finds unacceptable the partial denial of its motion requesting a 6-month extension of time, within 5 days after service of this Memorandum and Order, it shall formally notify the Board, and, pursuant to the alternative set forth in that motion, the Board will accept TMIA's notice of withdrawal and dismiss TMIA as an intervening party in this consolidated case.

THE ATOMIC SAFETY AND LICENSING BOARD Sheldon J. Wolfe, Chairman ADMINISTR ATIVE JUDGE Frederick J. Shon ADMINISTR ATIVE JUDG E Dr. Oscar if. Pa.is ADMINISTR ATIVE JUDGE Dated at Bethesda, Maryland, this 19th day of May 1986.

564 i

O 4

i Cite as 23 NRC 565 (1986)

LBP-86-14A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARG Before Administrative Judges:

Ivan W. Smith, Chairman Gustave A. Linenberger, Jr.

Dr. Oscar H. Paris in the Matter of Docket Nos. 50 546-OL 50 547-OL (ASLBP No. 83 487-02-OL)

PUBLIC SERVICE COMPANY OF INDIANA, INC.

WABASH VALLEY POWER ASSOCIATION, INC.

(Marble Hill Nuclear Generating Station, Units 1 and 2)

May 30,1986 MEMORANDUM AND ORDER DIRECTING BRIEFS BACKGROUND We have before us the April 4,1985 motion by the Public Service Company of Indiana Inc., and Wabash Power Association, Inc., to "ter-minate (l'is operating license proceeding" for the Starble Ilill Nuclear Generating Station. The same motion purports to inform the Licensing Board that Construction Permits Nos. CPPR-170 and 171 for Ntarble Hill Units I and 2 had been " surrendered" by letter of Starch 1,1985, to the Director of Nuclear Reactor Regulation. A copy of a Ntarble flill site stabilization plan was appended to the motion.

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i The NRC Staff responded to the motion on April 24, 1985, by requesting that the Board defer ruling on the motion until the Staff has an opportunity to review and to approve a site restoration plan. Al-though, as noted, Applicants' motion, by its terms, seeks only to termi-nate the operating license proceeding, the Staff assumed that Applicants intend to invoke thejurisdiction of this Board to withdraw the application for the Marble Hill construction permits. None of the intervenors com-mented on the motion.

On March 28, 1986, the StatT Sled a very succinct supplemental answer supporting the motion to terminate.

The pleadings before us are inadequate in two important areas. The Board directs the parties to supplement their pleadings with additional in-formation outlined below.

JURISDICTION The strong inference to be drawn from the motion to terminate the operating license proceeding is that the Applicants regard that proceeding to be moot, having surrendered the construction permits to the Director of Nuclear Reactor Regulation (NRR). The StalT, however, citing Duke Power Co. (Perkins Nuclear Station Units I,2, and 3), ALAB 668,15 NRC 450 (1982), assumes that the motion is directed to the construction permits and that the Licensing Board has jurisdiction over the matter.

Staff P.esponse, n.l. The Board does not share the StalTs assumption.

The Applicant in Perkins filed joint motions before the Licensing and Appeal Boards speci6cally for leave to withdraw its application for con-struction permits. The Appeal Board deferred to the Licensing Board to pass upon the motion in the Grst instance. /d. at 451.

We believe that the Marble liill Applicants intend only to invoke the jurisdiction of the Licensing Board for the sole and ministerial purpose of terminating the operating license proceeding. The pleading is styled simply a " motion to terminate proceeding." There is no reference what-ever to 10 C.F.R. l 2.107, the traditional authority under which the holder of a construction permit would " request a withdrawal of an appli-cation." However, in view of the Staff's position and in view of the fact that the Applicants submitted their site stabilization plan to us as well as to the Director of NRR, we believe that a clariGcation is in order.

Therefore we direct the Applicants to supplement their motion ex-plaining exactly what they seek from the respective components of the Nuclear Regulatory Commission and to support their supplement by ci-tations to the controlling law. We direct the NRC Staff to report on the 566 l

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r status of the construction permits " surrendered" to the Director of NRR and to state its position on the Board's jurisdiction after the Staff has examined the Applicants' supplement.'

THE BOARD'S RESPONSIBILITY Pending further advice from the parties, the Board assumes that the Director of NRR has exclusive jurisdiction over the construction per-mits. If, however, it turns out that a request for the withdrawal of the construction permits comes before this Board pursuant to 10 C.F.R.

} 2.107, we inform the parties that the record now before us would be inadequate.

The Marble Hill site, consisting of about 960 acres, sits on a bluff overlooking the Ohio River. According to the partial initial decision au-thorizing limited work activities at the site, the construction associated with Marble Hill was to have preempted about 500 acres of farmland, most of which was prime land.2 Today, according to the StalTs Environ-mental Review, the site "could be characterized as being typical of any abandoned large industrial facility." Attachment to StalTs Supplemental Answer.

When the Staff in 1985 initially responded to the motion to terminate the proceeding, it informed the Board that it intended to examine the Appiicants' restoration plan for the site. The Staff then cited f 2.107(a) and noted that "an application may be withdrawn subject to the imposi-tion of appropriate conditions, including terms and conditions dealing with site restoration." Staff Response at 3 n.6. In support ofits view, the Staff called to the Board's attention To/cdo Edison Co. (Davis-Besse i

Nuclear Power Station, Units 2 and 3), ALAB-652,14 NRC 627 (1981).

There the Appeal Board approved the action of a Licensing Board requir-ing the applicant to take certain noncontroversial measures to restore the Davis Besse site as nearly as possible to the pre LWA state, and to enhance the site's qualities as a wildlife habitat.

Also in 1985 the Staffinformed the Board that the Applicants' plan to undertake remedial action in connection with its surrender of the con-I specifically the quesuon is not whether this Board, consututed as an operauns lwenw board, has juns-diction over a construcuon permit matter. See Perkms. were. The quesuon is whether the Applicants, having tendered the construction permits to the Director or N RR. have invoked the Director's jurisdic.

tion to the exclusion or the Licensing Board's junsdicuon.

2PuMr Scrwe Co. o/ /adana Glarble Hill Nunlear Geeeraung sianon. Units I and 2). LBP 77 52,6 NRC 294. 317 0977).

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struction permits is similar to the situations in Bailly) and Black Fox.4 Staff Response at 3-4 nn.7 & 8. In Bail /p the Licensing Board imposed conditions requiring substantial but uncontroversial site restoration.15 NRC at 768. In Black Fox the Licensing Board went so far as to require the dismantling of site improvements not included in a plan for future use of the Black Fox site. Again, the Black Fox restoration plan was un-controverted.17 NRC at 412.

In sharp contrast to its position in 1985, the Staff, in its recent supple.

mental answer, supports the motion to terminate the proceeding based upon a site stabilization plan leaving the Marble Hill site essentially un-restored. The Staff now informs us enigmatically that "there will be no significant detrimental environmental impact on or off site resulting from termination of the proceeding." Affidavit of Dr. Robert B. Sam-worth at 2.

For their part, the Applicants note that no decision has been made for the future use of the site. The stabilization plan explains that there are no provisions for removal of permanent buildings and restoration of paved and graveled areas. Attachment to Motion.

Clearly if the matter comes before us under j 2.107(a), we will be re-quired to exercise some judgment as to the terms for withdrawal of the construction permit application. But the papers before us provide no guidance.' Accordingly, the parties may, if either should so elect, pro-vide such guidance in their forthcoming pleadings.

IT IS THEREFORE ORDF.'tED that, within 30 days of the service of this order, the Applicants supplement their motion to terminate this pro-

) %rthern Ind.wna Pt,eir Serrac Ca (Bailly Generstmg stauon. Nuclear.II. LBP.82 29. l$ NRC 762 (1992).

4 Pub /r Serrare Co. et OA&ihoma 1 Black Foi stauon Uruts I and 21. LBP 8310.17 NRC 410 f1943 I our discussion or Dirts-Besw. Bai/Iv. and 8/ ark fox. supra. should not suggest that the Board is pre Posed to a view that would require restorms the Marble Hill site to its pre LW A state. Two members of this Board consututed the quorum in United frases Department n/ Energy # Clinch Rner Breeder Reactor Planel. LBP-85 7. 21 NRC $07 (1985). There the Licensms Board approved a site redress plan which was, en essence. 4 sue stabilitaunn plan preserving the Clinch Rnet sue ror eme undetermmed ruture indusereal use.

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ceeding. The NRC Stati may respond to Applicants' supplement within 15 days following the service of Applicants' supplement.

i FOR THE ATOMIC SAFETY AND LICENSING BOARD Ivan W. Smith, Chairman ADMINISTR ATIVE LAW JUDGE t

Bethesda, Maryland -

May 30,1986 J

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Directors' Decisions Under 10 CFR 2.206 g

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Cite as 23 NRC 571 (1986)

DD 86 6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Harold R. Denton, Director in the Matter of Docket No. 50 352 (10 C.F.R. 9 2.206)

PHILADELPHIA ELECTRIC COMPANY (Limerick Generating Station, Unit 1)

May 13,1966 A request for a stay of a May 13, 1986 amendment to the Limerick Unit 1 Operating License which was filed by R.L. Anthony and the Friends of the Earth is denied under 10 C.F.R. { 2.206 because it failed to raise substantial health or safety issues warranting suspension of the license amendment which permits a limited extension of time for certain equipment surveillances.

DIRECTOR'S DECISION UNDER 10 C.F.R. 9 2.206 INTRODUCTION On December 18. 1985, the Philadelphia Electric Company (Licen-see), in a letter to the NRC, requested an amendment to its Limerick Unit 1 operating license. The Licensee requested permission, on a one-time only basis, to temporarily extend the surveillance requirements of certain valves which under the Technical Specifications must be inspect-ed nominally every 18 months, this surveillance can only be performed when the plant is shut down. The change would extend the 18 month

'l surveillance interval by 14 weeks beyond the maximum 25% extension allowed by the Technical Specifications. This amendment would permit 571

4 the Licensee to delay performing the testing until a mamtenance and surveillance outage which is scheduled to begin on or before May 26, 1986.

The NRC Staff, after a review of the Licensee's request, determined that the condition of the valves in question would not change significant-ly during the short extension period. The StalT found that issuance of the amendment would not involve a significant hazards consideration and issued the amendment on February 6,1986.

On January 30, 1986, Mr. R.L. Anthony / Friends of the Earth in the Delaware Valley (Collectively " FOE") filed a petition to intervene in connection with the Licensee's request for an amendment and, on February 5,1986, supplemented that request with an amended petition.

The NRC Staff has opposed FOE's petition in a pleading filed on Febru-ary 25,1986, before the Atomic Safety and Licensing Board (ASLB) convened to hear the matter. The ASLB, after conducting a prehearing conference on March 27,1986, dismissed FOE's petition in a Memoran-dum and Order dated April 4,1986 (LBP.86 9,23 NRC 273).

On February 12, 1986, FOE, after receiving notice of the issuance of License Amendment No. I, filed with the Commission a one page re-quest for a str.y of the effectiveness of the amendment, and, in that pleading, incorporated by reference its two previous petitions to inter-r vene. On February 15, 1986, FOE filed yet another pleading with the Commission containing eleven " contentions." At the end of this plead-ing FOE renewed its request for a stay.

On March 5,1986, the Secretary of the Commission informed FOE by litter that its stay request of February 12,1986, had been referred to the NRC Staff for consideration pursuant to 10 C.F.R. 6 2.206. In addi.

tion, the Secretary's letter noted that, to the extent that FOE's February 15,1986 filing requested a stay, the NRC Staff was to consider it in its response pursuant to j 2.206. My decision in this matter follows.

DISCUSSION Pursuant to s 2.206, any person may file a request to institute a pro-ceeding pursuant to 10 C.F.R. ( 2.202 to modify, suspend, or revoke a license, or for such other action as may be proper. The FOE request for a stay in the context of a license amendment proceeding following the ef.

fective date of the amendment is, in the context of j 2.206, a request for t.

an order immediately suspending the effectiveness of the amendment and an order to show cause why the amendment should not be revoked.

To warrant such an order, substantial health or safety issues must be 572 4

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raised. Consolidated Edison Co. o/New York (Indian Point Units 1, 2, and 3), CLI-75 8, 2 NRC 173,176 (1975); Washington Public Power Supply System (WPPSS Nuclear Project No. 2), DD 84 7,19 NRC 899, 923 (1984). Clearly this is not the case here.

The matter at hand involved a modest extension of a surveillance in-terval for certain valves. The matter has been specifically evaluated by the NRC Statiin its Safety Evaluation Supporting Amendment No. I to License No. NPF-39 of February 6,1986, a copy of which is enclosed (not published), supporting issuance of the amendment. There the Staff concluded:

The safety related aspects of extending this surveillance interval on a one time basis for about three months are insignincant for the following reasons. Ill Flow through the valves or from the lines in which they are located will be limited by the small line size and the provision of now restricting orinces to further reduce potential now rates. (2) Any leakage from these lines outside of primary containment would be contained in the secondary containment and processed by the standby gas treatment system. The analysis of such an event has already been performed and is included in the Final Safety Analysis Report in Section 15.6.2. As indicated in the FS AR there would likely be a variety ofindicators to the operator of a failed instrument line thus alerting plant staff to the need to isolate the hne by use of other manual valves in the line. The staff has previously reached the conclusior,in +ction 15 6 of the SER that the Limerick instrument line design is acceptable. O' The hcensee has esam.

ined the records of the initial now testing performed on these valves and found that all valves were tested successfully. The licensee turther states that based on availa.

ble data, the valves are beheved to be highly reliable in performirg their function of checking now. The staficoncludes that the condition of the valves is not espected to change significantly during the short extension period.

Based on the above, the NRC staff conch. des that extension of the interval for the surveillance testing by 14 weeks on a one-time only basis is acceptable because tre increased surveillance interval does not signi'icantly increase the possibility that an undetected failure will occur in the instrumentation hne excess now check vahes covered by this Technical Speci0 cation. Safety Evaluation. Support Amendment No.1. Faahty Operating License No. NPF-39. Philadelphia Electric Company.

(Limerick Generating Station. Umi No.1). at 2. IFebruary 6.1986 )

FOE presents no sound arguments calling the Staff's view into ques-tion. While FOE does make reference in its January 30,1986 filing to the " Independent Design Review of the Limerick Generating Station, Unit No.1, Core Spray System" (IDVP) performed by Torrey Pines Technology, the Torrey Pines findings have no bearing on the license amendment at hand. In this regard, as mentioned by FOE, the IDVP focused on the effects on instrumentation lines ofjet impingement from a postulated core spray line break. No efbrt is made by FOE to establish

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a nexus with the subject matter of License Amendment No.1. The Staff 1

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note., that the subject of License Amendment No. I deals with surveil-lance tests which would be conducted periodically to determine whether the excess Dow check valves will respond functionally to check the now of Guid in the instrumentation lines upon being subjected to excessive differential pressure across the valve. The scheduling of such tests, whether performed more or less frequently, would have no effect on whether the instrumentation lines or the systems associated with such instrumentation lines were adequately designed to withstand the effects of ruptured pipes. This latter issue was the subject of the Staffs review of the IDVP and was found to be resolved as stated in Supplement No. 4 to the Limerick Safety Evaluation Report, at Section 17 (May 1985).

FOE also makes reference in its February 15, 1986 fil.ng to several reports recently issued by the NRC Staff on Probabilistic Risk Assess-ment (PRA) insights. FOE references these reports as they relate to in-terfacing systems loss of coolant accidents (LOCAs) attributable to the check valves in the residual heat removal (RHR) or low pressure coolant injection (LPCI) lines. FOE fails to note, however, that the two plants that it has referred to are pressurized water reactors, not boiling water reactors like Limerick, and fails to provide any connection between the significance of the issue of interfacing system LOCAs for those plants and the Limerick plant. More importantly, FOE fails to note that the valves which are the subject of Amendment No. I to the Limerick license are excess-Dow check valves which are in instrumentation lines which are designed to accommodate the primary system pressure and which terminate in the secondary containment. Accordingly, these lines are closed systems within the secondary containment and the excess Dow check valves do not provide an interface between the high pressure reactor primary system and any low pressure secondary systems as do the valves of concern in the referenced PR A insights reports.

CONCLUSION in the absence of any substantial health or safety issues associated with the issuance of License Amendment No. I, I decline to institute proceedings pursuant to 12.202. Accordingly. I decline to grant FOE its requested relief pursuant to j 2.206. As provided by 10 C.F.R. 574

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f 2.206(c), a copy of this Decision will be filed with the Secretary for the Commission's review.

Darrell G. Eisenhut, Acting 1

Director Office of Nuclear Reactor Regulation Dated at Bethesda, Maryland, this 13th day of May 1986.

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[The enclosure has been omitted from this publication but can be found in the NRC Public Document Room,1717 H Street, NW, Washington, DC 20555.1 1

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