ML20137P027

Appeal from Board 851211 Partial Initial Decision Re Emergency Planning Contentions.Board Failed to Apply Case Law Re Consideration of All Matl Factors Bearing on Licensing Decision.Certificate of Svc Encl

ML20137P027
Person / Time
Site:	Harris
Issue date:	01/30/1986
From:	Eddleman W EDDLEMAN, W., JOINT INTERVENORS - SHEARON HARRIS
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20137P030	List: ML20137P027 ML20137P033
References
CON-#186-911 OL, NUDOCS 8602040319
Download: ML20137P027 (10)

Text

,_

T.

\ 4 January 30, 1986 t.m//

N (N.

UNITED STATES OF AMERICA //D DZD \

7 3 NUCLEAR REGULATORY COMMISSION gs FEB -31MnP>,~ E BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD h 1havichMUh 3' -- @,{y In the Matter of: )

)

Carolina Power & Light Company and ) Docket No. 50-400 OL NC Eastern Municipal Power Agency )

)

(Shearon Harris Nuclear Power Plant) )

APPEAL FROM PARTIAL INITIAL DECISION ON EMERGENCY PLANNING CONTENTIONS Now cone the Joint Intervenors, Wells Eddlenan nro se, and the Energency Planning Joint Intervenors with an anneal from the

~

Partial Initial Decision on Energency Planning and Safety Conten-tions dated 11 December, 1985 in the Shearon Harris Operating License proceeding, cantioned above.

The Joint Intervenors are Eddlenan, CHANUE, Kudzu Alliance, and Conservation Council or North Carolina. The Energency Plan-l i

ning Joint Intervenors are Dr. Richard Wilson, CHANGE, CCNC and Eddleman.

l Notice or Appeal under 10 CPR 2.762 was duly served on 12 .

1 1985 and a request for extension or eine riled and granted by the Appeal Board 1-21-86.

1 i

l l

l 8602040319$hS000 png ADOCK PDR 0

~7 DSO 2

1 A table of contents etc is not required for briefs 10 pages long, 10 CPR 2.762(6). Argument therefore follows:

1. THE LICENSING BOARD ERRED IN DISMISSING CONTENTION kl-G.

During the preliminaries to a combined hearing on energency plan-ning contentions and contention h1-0 (harassment of persons who raise concerns related to safety issues), the Licensing Board disnissed Contention 41-0 because the intervenor could not guaran-tee that witness Chan Van Vo would appear at the hearing. It was never stated that Van Vo would not anpear, nor did the Board seek to compel his attendance, or testimony. In admitting Contention 41-G, the Licensing Board did not refer to Van Vo's availability as a witness in determining the admissibility of the contention or weighing the 5 factors of 10 CPR 2.714(a)(1) concerning it, even though his availability had been argued to the Board in

{ October 1984 TheBoard's dismissal of the contention was arbitrary and capricious in making decisive a factor not even noted in the

! decision admitting (part of) Contention h1-0, and imnroper in that the Board took no stens to compel witness Van Vo's testinony, and in error since two other persons had complained of harassnent in response to the Board's written notice, but their allegations had not been evaluated completely at the time the Board dismissed 41-G.

The Board did not give reasonable detail of its basis, violating ALABell 9 2. THE LICENSING BOA 9D ERRED IN THE FAILURE TO ADMIT VARIOUS (NLCS3 tl6 )

EMERGENCY PLANNING Contentions. All Eddleman contentions rejected of fecir.1% 8.$,Ma {t[el442.-94 by the Licensing Board below are hereby appealed./(Most cite refer-all all l ences in the plan,gallege specific nroblems, and pcomply with the basis and specificity requirements. The Board's rejections reach the merits, improperly apply regulations and case law, and fail to

comply with ALAB-130, 6 NRC h23, h25-6, nor with the requirement of UCS v. NRC, 735 F.2d 1h37,1kk3 (reversing ALAB 732,17 NRC 1076, 1103-04, in effect) that in emergency planning as well as other areas of licensing, "once a hearing on a licensing proceed-ing has begun, it must encomoass all material factors bearing on the licensing decision raise'd by the requester." (citations omitted )

UCS, suora, at 1kh3 The Licensing board likewise violated the above-cited recuire-ment by specifying " severe snow and ice conditions" in rewording Ehergency Planning Joint (EPJ, see Tr. 973-h, Order of $-10-8h transcript attachment thereto) Contention(Tr. 1 4476)he In t area of the Harris plant, as was brought out in oral argument on the contentions EPJ-1 is derived from, virtually all peonle lack experience driving on snow or ice, at least sufficient exnerience to orevent rashes of accidents whenever a light snow or an ice storm or frozen water are on the roads. The slick spots in light snow or ice occur random-ly and regularly cause numerous accidents in traffic. Heavy snow by contrast is nuch easier to drive on; uniform ice does not subject drivers to sudden unanticipated loss of steering or traction. By l arbitrarily removing this factor fron the contention as admitted, the Licensing Board innrocerly denied a hearing on a snecific and inportant matter, since this area experiences light snow or ice h typically 5 or more tines a year. Since severe weather can cause or contribute to serious nuclear accidents, accidents are more like-ly under these conditions than when these conditions do not ex$ st.

W LICENSING BOARD E999D IN 9 EJECTING CHANGE Contention 20 (Tr. 977-78, referenced in above naragranh). CHANGE P0 alleged difficulties in evacuating pecole under the influence of alcohol l or drugs who would be cresent at the lakes near the Harris plant.

l The Board clearly reached the Merits in rejecting the contention.

Tr. 978, lines h-12. People who are " drunk or stoned" (Tr. 478) are obviously harder to evacuate, and whether emergency personnel can deal with all of them, or the extent of their nroblens, is

-h.

patently a matter of the merits of the contention. ALAB-130, 6 AEC 423 at h25-6, clearly requires that this error be reversed.

There could be a huge number of neonle partying at and on the large recreational lakes in the Harris EPZ on a weekend, esneciaILy in ~ summer, and use of drugs and alcohol is a problem on these lakes.

, The N.C. legislature recently outlawed drunken motorboating in recognition, we believe, or the extent of this problem, but enforc e-ment is not sufficient to prevent people drinking (or using drugs) and boating or being on the lakes or their shores or nearby.

The Licensing Board erred in rejecting CHANGE h and leaving training to the Staff. ALAB 732,17 N9C 1076,1103, points out thtt "as a general proposition, issues should be dealt with in the hearings and not left over for la ter (and possibly nore informal) resolution."

(citations omitted). While the Commission had taken a "slightly different course" (Ibid at 1103) on emergency planning, this was reversed by UCS v. NRC, sunra. Training is obviously material and relevant to the licensing decision, (cf. UCS at 1kh3, discussing Bellotti). And it thus must not be left "for later" or informal resolution, ALAB 732, sunra,1103 When a statute requires a hearing in an adjudicatory matter such as licensing, the agency must generally provide an opportunity for submission and challenge of evidence as to any and all issues of material fact. g , supra, lhhh (citations o-mitted, emphasis added). The Licensing Board erred in denying this both on CHANGE 4 and on the Eddleman and other contentions argued above. What training could be done (Tr.979) is in the nerits.

The Licensing Board also violated the above-cited law and went to the merits in rejecting CHANGE 9 (Tr. 979, esp. lines 19-22).

L The same is true for rejecting CHANGE 21 (Tr. 981, eso lines 8-17.)

The Board went to the merits in rejecting Wilson 3 and h (Tr. 985 -6).

Wilson 5(b)(C)(d) & (e) were rejected in violation of pjS and ALAB-732, in the same way CHANGE 4 was. (Tr. 987, lines 8-11). ~ --~

The Licensing Board erred in rejecting CHANGE 33 under GUARD v. NRC, 753 p.2d 1144 (1985), see esuecially 1149-50 as to why the NRC's

" attempts fail" (right column, 11h9) and the critique of the NRC's underlying assumption, 1149-50, and the conclusion at 11FO.

The same error was nade re Eddleman 57-0-7 (Memorandum & Order of.

1-07-1986. That order says Fddlenan's arguments in his response O?

(of 12-23-85) nay be raised on appeal (.PA He now does so, incorponating all his argunents re contention 57-C-7 in the response of 1P-23-1085 by reference as if fully set out herein. Not to be repetitious, he does emehasize that the NRC did not evidently dare to order the Lic-ensing Boards to continue the Connission's forner rule, perhaps for fear of being found in contenpt of court; but the Harris Licensing Board did, erroneously, what the Connission dared say they "may".

THE LICENSING BOARD ERRED IN REJECTING CHANGE 23 (Tr. 98P att. to 5-10-84 order, see p.3, suora) and Eddleman 57 (revised) and 57-C-2 (4-12-84 " Wells Eddleman's Contentions on Energency "lan, 2d set") .

The Board rejected Wilson 1 (?r. 48h) because it didn't give a reason to include Cary. But the Board aribtrabily and canriciously did not require the State and local authorities to give a reason for their decisions that set the size and boundaries of the Energency Flanning Zone. Eddleman 57-C (revised) gives the reason to include Cary :

prevailing winds frrr. the nuclear nlant blow in its directf on. In oral argument, rapid Frowth of nopulation in Cary and 9aleigh was cited, we believe. A basis to take the EST out to 25 niles, NUREG-CR-2239, was cited in 57-C and 57-C-2(revised) (h-1P-8h a t h) . Ir the Board really thought this was a challenge to the rule , it could still have admitted an energency planning joint contention combining CHANGE 23, Wilson 1, and Eddienan 57/57-C-2 (as revised h-1P-8h). or could-have admitted part of either or both Eddlenan contentions, to include the city of Cary orthe heavily ronulated area downwind of the nuclear plant , as was done in Catawba. The Board erred by not allowing a hearing on the material issues raised by these contentions,i.e. that large nopulations downwind shculd be.tak~en-into account in setting the EPZ boundary, which nust be justified. See UCS, sunra, at 1hhk, cf.

citation in 1st full paragraph on page 4 above in this brief. See alma ALAB-130, 6 AEC h23, h2h-5 to the extent the Board eached nerits, denied nerits of CHANGE 23 or Wilson 1, or denied contentions with adequate basis and specificity (Eddlenan 57 and 57-C-2 in %-12-8h filing).

Under ALAB-130, Applicants and Staff's failure to except to the Licensing Board's admission of contentions now bars then from raising such issues. 6 AEC h23 at h25, ". . .annlicant ...can)Eake (adritting a contention)the subject of an excention to the initial decision. "

Neither Applicants nor Staff appealed this Partial Initial Decision.

The Licensing Board erred to the extent 't rejected Eddleman 57-D-1,2 or 3 which have adequate basis and sneciff city ner AT AB-130, sunra and raise issues naterial to finding adecuate nrotective measures can and will be taken, 10 CFR 50.47(a)(1), naterial to licensing ne" UCS,sug;n.

3. THE LICENSING BOARD E9 RED in not requiring the protection factor data for structures typical of those in the EVZ (non-resi-dential) as shown in Attachments h,5 and 7, to go into the actual emergency plan. Inclusion of such data in the ulan is required,

, and "in the plan" means _i_n n the plan. (PID at all, Finding 6, 12-11 85).

The Board admits the typical data is not included, but says it is not necessary. That is ridiculous, especially since the ranges have high ends that are definitely not typical, as the evidence establishes. (See Eddleman proposed Findings on Contention 57-C-10,8-30?,1985)(Finding 12 and related prooosed Findings). Words nean what they say. GUARD V. NRy 735 F. 2d 11hh at 11h8-h9 " agency's interpretation (can) do no vio-lence to the niain meaning of the nrovision (at issue)" (Citations omitted. "In the plan" neans in the plan, and protection factons

" typical of those" for " structures" within the EPZ neans the tynical factors, not just the extrenes of ranges that (at the high extrene) are not at all tyuical. See Tr. 8137, 8139-h0, 81h2-kh,81h6-h8 and as cited in Eddleman proposed findings h-12 on Contention 57-C-10.

h. The LICENSING BOARD ER9ED in allowing sone information required to be "in the plan" not be in the plan, in sunnary disposition of contentions, e.g. Eddlenan 2 and 30, potassiun iodidew The PID of 12-11-85, p.25, cites Applicants' findings 3 thru 5 for these rulings, and we refer the Appeal Board to those findings and the decision documents cited therein. FEMA is prone to intepret the words " plan . . . shall include" in NU9EG-065h to mean tha t the things the plan "shall include" don't have to be in the nlan. This violates GUA9D V. NRC, supra, 11h8-49, and the Licensing Board errs in anprov-l ing it. It also doesn't heln FEt%'s credibility.

5. THE LICENSING BOARD E99ED IN 9 EJECTING CONTENTIONS EPX" h,9,10 l and 11 (reaching the merits and denying a hearing on matters litigable L under UCS v. NRC, 735 F.2d 1437). The Connission (NRC) has not adopted l' the " fund 3 mental flaw" standard, as the Board acknowledges , PID at 17 in footnote 1 (continued from page 16), and without such a standard, j

the Licensing Board lacks the authority to apoly it. Moreover, the is contentions referenced are specific, and h and 9 deal with training

l. which the Board wants to leave until later without formal review.

This they cannot do, see argument on nage 4, 1st full paragraph, supra).

For 10 and 11, "correctability"is also the excuse for rejection. FEMA

findings, e.g. re EPX-10, are rebuttable, not conclusive. 10 CFR 50 47 j (a)(2). The rejections reach the nerits, and are thus wrong. The re-jection of EPX-6 as premature does not preclude later contentions, but the " correctable" argument is improper there, also. PID at 18-2P deals with these contentions.

I

Again, Anplicants' and Staff's lack of appeal of adnission of Contentions EPX-2 and -8 bars their arguing against then now.

6. THE LICENSING BOA 9D ERRED IN ITS ACCEPTANCES OF PROMISFS AND FUTURE INSPECTIONS OR CHECEING 9E FI9E P9OTECTION (Eddleman Contention 116). Indian Point reouires that "(T)he post-hearing approach should be enployed sparingly and only in clear cases" (Consolidated Edison Co. of New York, Indien Point Stat?on, Unit 2, CLI-74-23, 7 AFC 9h7,951 (197h), giving the exannle of "ninor pro-cedural deficiencies"(Id. at 951 n.8, 952: See ALAB-732, suura, 17 NRC 1076 at 1103 for nore cases in accord).

But the Licensing Board, e.g. in Findings llt and Ih, PID of 12-11-85 at 31-32, allows testing or " generic" fire barrier assen-blies to be perforned post-hearing frstead of requiring data on the test results. Testing is not a ninor procedure for safety related equipment. Tnis is especially true of fire barriers since in a fire, NRC regulations and guidance (see documents described in note 3 to 10 CPR 50.48(a)) require only one redundant train of equipnent capable of shutting down the plant. Lose a fire barrier and you can lose the capability to shut down the plant.

The Board likewise approved untested large fire doors (oID findings 20 24, PID at 33-35) but at least hn"a tha"e wa s an argunent that testing was not required. This does not annly to the fire barriers.

The Board approved " analysis" of the effects of fire spreading that evidently does not take adeouately into account the eouinnent lo-cated in adjacent areas. (Finding 32, PID at 38-39). It is not good analysis of fire spreading to say, as the Staff does, tha t it won' t snread (id. at 39). And without analysis of what equinnent will be knocked out in a snreading fire (e.g. due to as simple a thinF as an open door, a fire dancer that fails to close, or a defective fire barrier), the analysis cannot be adequate. (Cf. end of Finding 32).

The Board rejected Eddlenan findings filed 1/8/85 on Contentran 116, (BID at:.kl, finding 38, ff). Finding 40 (p.h2) rejects the questioning of leaving certain material out of the PSAR, Eddlenan 1/8/85 nronosed findings 16-21. But the omission of this natorial bears on the trustworthiness of Applicants and the thoroughness of their analysis. This is significant in light of the pronises and analysis the Board has accented. In Long Island Lighting Co. (Shore -

han) 20 URC 1531, the Apneal Board held that even for "relatively minor" natters, the nronise to comply is not enough. And a record of questionablehousekeeningsup{ortedtherenandofthehousekeepingissue.

This LILCO decision applies, with the other cases cited above, not only to the matters above, buttoBoardfindings42,h3($his won't happen" rejection of scenario without sufficient evidence to sunport that rejection), and 44 and h5 (things yet to be done,

~

. approved without completion) . The evidence rejected in Finding h6 (PID at 43) should have weighed in further favor of requiring use of actual results on all the above matters, and better evidence on scenarios and possible accidents due to errors or poor testing or installation. The Conclusion in Finding 47 is unjustified.

7. THE BOARD ERRED IN APPROVING A PIPE HANGER WELDIN:t FR mRAM RIDDLED WITH EBRORS AND ADMINISTRATIVE? MANAGEMENT FAILIPFS, BASED ON PROMISES TO COMPLY.

It should be noted that discovery on pipe hangers closed in early 1984, thus giving Apolicants ample tine to fix any specific problems brought out in discovery. The only data later provided to Intervenor on the hangers was not selected by Intervenor exam '

ining docunents himself.

Intervenor's arguments on this contention (k1-Pipe Hanger Welds) and the accompanying evidence are detailed in Wells Eddlenan's Pro-posed Findings (1-08-85) on (inter klia) Contention 41. Ha incor-porates those arguments and proposed findings as if fully set out at this point herein. Since the Appeal Board can substitute its judgment for that of the Licensing Board below, Intervenor requests that the record on Contention 41 be re-examined in light of his pro-posed findings and arguments and the case law cited above, re Con-tention 116. In particular, Intervenor calls attention to the LILCO decision, sunra, 20 NRC 1531 which emphasizes that even for such "relatively minor" matters as housekeeping, a pronise to conply is i not enough. This is even nore true for najor natters such as nipe supports (safety-related), and where there is a clear record of many past failures to comply with applicable regula tions (as the evidence on Contention 41 shows and Applicants admit). Further, in a limited appearance statement to alert the Licensisg Board to problens, Michael W. Spohn, an engineer with extensive nuclear design background, 13 years, charged loss of design control for safety related pipe supports, Tr. 79907 hand use of inexperienced designers whose ability was not tested, Tr. 7991-3 This should have alerted the Licensing Board to examine the pipe hanger construction / welding more closely.

Ironically, due to delays in the Harris plant's completion,

, ,, L there has been ample time to hold more hearings on Contention kl, and this applies to other contentions above, a s well,

8. THE 30A'4D BELOW EMED IN NOT ADEQUATELY JUSTIFYING ITS DEu CISION NOT TO REQUIRE ANALYSIS OF MULTIPLE TUBE RUPTURE EVFNTS.

Over the lif6 of the Harris plant, the orobability of such events would be in the ran6e of other events analysed, and nultiole ruptures could lead to leaks beyond the design basis analyzed in the FSAR or in testinony. Correct analysis, not "it can't hannen" judgments, need to be done on this issue, Joint Intervenors agree.

NOTE on citations: Wells Eddlenan anologizes for the citations of sone documents he could not locate. He has been forced to move (9/85) to a niace where there ir not room to arvange and senach all Harris case files, and could not locate all the documents cited.

(In the previous brief, he was at the CCNC office where he believed a conolete file of orders existed, but one did not, and he found out too late to return to Durhan, search, and get the brief tinely filed. )

CONCLUSION For these reasons given above, the Joint Intervenors, the Emergency Planning Joint Intervenors , CCNC, and Wells Eddlenan urge that the Partial Intial Decision of the Lic ensing Board dated 11 December 1985, and previous decisions of the Licensing Board on other matters (e.g. admission / rejection of contentions, summary dispositioh, dismissal of Contention k1-G) herein appealed fron, be reversed and renanded to the Licensing Board for further consideration consistent with the positions taken herein.

Wis.

Wells Eddleman Intervenor oro se For himself and Ehe Joint Intervenors and the Emergency Planning Joint Intervenors 806 Parker St.

(812 Yancey St. after 3/1)

Durham, NC 27701 (919)-688-0076 This is the 30th day of January,1986.

d . , ,

CERTIFICATE OF SERVICE ,

gy\

I hereby certify that this Appeal from Partial Initial Decisiondnd ,. YA Supplemental Brief were served on the following persons by deposit id We'a;; U. U kr e 'oN*oc$Ild'ENpk'n[. I *

• I' U"E v Thomas S. Moore, Chairman (appeals only)

Atomic Safety & Licensing Appeal Board M. Travis Payne PO Box 12643

}. g 6[

Sis ~

I g

US Nuclear Regulatory Comission Raleigh, NC 27605 g

',4^pN.

Washington, D. C. 20555 F[D Dr. Richard D. Wilson Dr. Reginald Gotchy (appeals only) 729 Hunter Street Atomic Safety & Licensing Appeal Board Apex, NC 27502 US Nuclear Regulatory Comission Washington, D. C. 20555 7&> R uvr< L.E.

COurJSGL (=ag CC tac Howard A. Wilber (appeals only) 307 GR A,Ju mtE RD Atomic Safety & Licensing Appeal Board Cggpn gf tt US Nuclear Regulatory Comission g Washington, D. C. 20555 -

James L. Kelley Atomic Safety & Licensing Board ,

US Nuclear Regulatory Comission Washington, D. C. 20555 Thomas A. Baxter Glenn O. Bright Shaw, Pittman, Potts & Trowbridge Atomic Safety & Licensing Doard 1800 M Street, NW US Nuclear Regulatory Comission Washington, D. C. 20036 Washington, D. C. 20555 Robert Gruber Dr. James H. Carpenter Public Staf f--Utilities Comission Atomic Safety & Licensing Board PO Box 991 US Nuclear Regulatory Comission Raleigh, NC 27602 Washington, D. C. 20555

~JoMwe Sanf-el Docketing and Service (3 copies) Attorney General's Office Office of the Secretary PO Box 629 US Nuclear Regulatory Comission Raleigh, NC 27602 Washington, D. C. 20555 Spence W. Perry (emerg. planning) Charles A. Barth Associate General Counsel Office of the Executive Legal Director FEMA US Nuclear Regulatory Comission ' 500 C Street, SW, Ste. 480 . Washington, D. C. 20555 Washington, D. C. 20740 Bradley W. Jones NRC-Region II This is the 30th day of 101 Marrietta Street January, 1986. Atlanta, GA 30303 Daniel F. Read . PO Box 2151 Vells Eddleman pro se Raleigh, NC 27602 g gg]gggg

                                               &fo& DJ+eN2 don}}