ML20009F221
| ML20009F221 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 07/28/1981 |
| From: | Bloch P, Kline J, Shon F Atomic Safety and Licensing Board Panel |
| To: | OHIO CITIZENS FOR RESPONSIBLE ENERGY, SUNFLOWER ALLIANCE, TOLEDO COALITION FOR SAFE ENERGY |
| References | |
| ISSUANCES-OL, NUDOCS 8107300154 | |
| Download: ML20009F221 (100) | |
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UNITED STATES OF /eiERICA fidCLEAR REGULATORY COMMISSION 6f5} h h(
ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
N<[,h Peter B. Bloch, Chairman Dr. Jerry R. Klin.e t
JUL 2 919g;. Q Mr. Frederick J. Shon u.s. g i
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A p
CLEVELAND ELECTRIC ILLUMINATING COMPANY,)
(4
) Docket Nos. 50-440-OL ET AL.
)
50-441-OL
)
(Perry Nuclear Power Plant, Units 1 & 2))
July 28, 1981
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SPECI A! PREHEARING CONFERENCE MEMORANDUM AND ORDER CONCERNIliG PARTY STATUS, MOTIONS TO DISMISS AND TO STAY, THE AD'ilSSIBILITY OF CONTENTIONS, Afl0 TPC ADOPTION OF SPECIAL DISCOVERY PROCEDURES A Special Prehearing Conference was held in Painsesville, 7
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Ohio on June 2 and 3, 1981.
The purposes of 'this Memorandtra and l
i Order are:
(1) to discuss a numbu of motions resolved at that
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Conference, including the admission of parties and disposition of motions to dismiss and stay, (2) to determine if the intervenors' contentions are admissible as issues in this proceeding, and (3) to l
adopt special discovery procedures.
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Special Prehearing Conference:
2 1.
STATUS OF PARTIES A. Summary of Status A previous order in this case, issued on April 9, 1981, granted party status to all but five of the petitioners for intervention.
Subsequently, three of these parties asked to withdraw.
Those petitions to withdraw were granted in the course of the Special Prehearing Conference.
In addition, we granted four of the intervention petitions that had not yet been granted. Only the Toledo Coalition for Safe Energy was denied party status. As a result, the following are parties to this proceeding:
Sur flowe~r Alliance, Inc. (Sunflower), Northshore Alert,-
Citizens for Safe Energy, Ohio Citizens for Responsible Energy (OCRE), Evelyn Stebbins, Richard Sering, David Nash, Gail Caduff Nash, Linda Qualls, David Qualls, Wes Gerlosky, Margaret Gerlosky, Willien Brotzman, Cunings Homsted Park Corp., the Lake County Board of Commissioners (Lake County), The Lake County Disaster Services Agency, and Tod J. Kenney.
B. ".'tition of Toledo Coalition for Safe Energy in the course of the Special Prehearing Conference, the Petition for Intervention of the Toledo Coalition for Safe Energy (Coalition) was denied for lack of standing.
(Tr. 120-123.) Two witnesses for the Coalition, Mr. Terry lodge and Mr. Albert J.
Waldorf, were permitted to testify.
(Tr.79-102.)
(
Special Prehearing Conference:
3 Mr. Lodge, who is attorney for the Coalition, testified that there is no member of the Coalition who lives closer than 125 miles from the Perry Nuclear Power Plant (Perry).
(Tr. 83.)
The Coalition also asks that it be granted either permissive interven-tion or standing of right because it will suffer subst<;.tial envi-ronmental economic injury ever, though its members reside more than 50 miles from the Perry Plant.
At the close of Mr. Lodge's testimony, the Board was informed that "a member of the audience has ccme forward who is a member of the Toledo Coalition who does live well within 50 miles of the plant." (Tr. 86.)
That alleged member, Mr. Waldorf, then testified that he 'was a member of the Coalition and had participated in a variety of its activities. (Tr.88-102.)
The Board credits Mr. Waldorf's belief that he is a member of tha Coalition and that he lives within ten miles of the Perry Plant.
(Tr. 90.)
However, Mr. Lodge testified that he did not know whether Mr. Waldorf is on the meribership role of the organization.
(Tr. 103.)
Mr. Lodge also indicated that he had asked members of the steering committee of the Coalition for the names of members residing in the'part of the State near Perry, and no such members had been suggested.
(Tr. 116.)
In addition, Mr. Lodge stated that one of the persons to whom he spoke about membership status had specifically mentioned Mr. Waldorf as a person whose menbership might 'not be current.
(Tr.
116.)
l We conclude that membership is a reciprocal relationship.
Considering both Mr. Lodge's testimony and his assertions as coun-
Special Prehearing Conference: 4 sel, the Board fin'ds that the Coalition did not consider Mr. Waldorf a member.
Consequently, he was not a member and the Coalition f ailed to demonstrate that any of its members. resides closer than 125 miles from the Perry Plant.
We find that the failure to prove th'at a member resides within 50 miles of Perry is fatal to the Coalition's assertion of a right to intervene.
Our order of April 9, 1981, admitted as parties each individual and business petitioner " located no further than 50 miles from the Perry Nuclear Plant" and stated that "each petitioner may file an amended petition... accompanied by one or more affidavits stating the place of residence of members on whom standing is based...." (P. 6.) That Order was authorized by 10 CFR 52.718(1) and is consistent with the "U.S. Nuclear Regulatory Commission Statement of Policy on Conduct of Licensing Proceedings,"
May 22, 1981.
Intervenor acknowledged that the April 9 Order indicated that the Coalition was expected to prove that it had a membec who lived within 50 miles of Perry. (Tr.
118-119.)
Although residence within 50 miles is not an explicit requirement for intervention by right; that limit is consistent with precedent and was the standard the Board used in its order.
See Houston Lighting and Power Company, et al., (South Texas Project, Units 1 and 2), LBP-79-10, 9 NRC 439 (1979)), 245-449; appeal struck, ALAB-545, 9 NRC 634 (1979). Intervenor now disputes the residence requirement fixed in our order (Tr. 117-118), but the time to do that has passed.
Given the potential legal importance of the issue the Coalition raises, the Board finds that petitioner had to J
y
-e
Special Prehearing Conference:
5 promptly notify the parties of its intention to challenge the Order of the Board. This would have placed parties on notice of the need to be pr% red to at gue an issue that had apparently already been decided.
(See Tr. 83-84 concerning Applicant's reliance on the Board's order.)
It also would have permitted the Board to require briefs to ' assist it in the crderly determination of the issue.
However, the coalition merely waited.
Indeed, it waited for more days than the regulations permit for the far more onerous task of objecting to an initial decision in an operating license case.
(See 10 CFR @2.762.) Under these circumstances, we have determined that it was not p oper for the Coalition to question the 50-mile standard applied by the Board.
Even were the validity of the 50 mile requirement legiti-mately r aised, standing based on re'sidence beyond a 50 mile limit is not a sufficient interest to establish standing in this proceeding.'
The further a perscn lives from a plant the weaker the claim to adjudicatory standing and the more simila.- that person's objections to the interests of all citizens.
Those g'eneral interests need not be protected in litigation.
They can be pursued in rulemaking
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proceedings before administrative agencies and in lobbying before Congress.
Without a showing that a plant has far greater than ordin-ary potential to injure those outside a 50 mile limit, a person liv-ing further away has a weak claim to the costly protection of a full adjudicatory proceeding.
Those who are more directly affected can intervene--as they have in this case--and assert issues
.iat will
Special Prehearing Conference:
6 l
affect the petitioner.
Petitioners living further away should not have the right to' further complicate a proceeding. They may petition I
for permissive intervention.
Portland General Electric Co. (Pebble Springs duclear Plant, Units 1 and 2), CLI-76-27, NRCI-76/12 610, 613-14 (December 13,1976); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 N'RC 1418, 1422 (1977).
Or, they can legitimately be left to their rulemaking and legisla-tive remedies.
Compare Virginia Electric and Power Company (North AnnaNuclearPowerStation, Units 1&2),ALAB-522,9NRC54(1979)
(an appeals board decision discussing..hether an organization could intervene if it had one menber who lived 35 miles from the plant and -
another member who canoed in the vicinity of the plant); see also Virginia Electric and Power Company (North Anna Power Statien, Units 1 & 2), ALAB-125, 6 AEC 371, 633-34 (1973).
In this proceeding, permissive intervention is not appro-s priate because the Toledo Coalition's remote interest on behalf of ratepayers of Toledo Edison Co. and residents of northwestern Ohio are economic interests that are not cognizable.
Other intervenors who joined with the Coalition in the Sunflower petition can repre-sent its legitimate interests.
See Pebble Springs at 1422; Watts Bar at 1421 (1977).
The Toledo Coalition did not persuade us to grant it discretionary intervention because of a valuable contribu-tion it alone might make.
1 Special Prehearing Conference:
7 II. MOTIONS TO DISMISS AND STAY On May 22, 1981, Sunflower Alliance filed a motion to dismist the operating licensing proceeding on the ground th'at 42 USC 2133(d) Jeprives the Nuclear Regulatory Com1ission of jurisdiction over the action.
That section of the Atomic Energy Act states:
No license under this section may be given to any person for activities which are not under or within the jurisdiction of the United States...
Sunflower argues that ane of the " major activities" of operating a nuclear power plant is emergency plannning and that a port! ion of those activities mest take place outside the United States because Erieau, Ontario is a Canadian town located within 50 miles of Perry.
In the course of the Special Prehearing Conference, the Board denied Sunflower's motion on the ground that emergency plann,ing is merely a f actor to be considered in granting a license.
It is not cn activity for which a license may be granted.
(Tr.
2629.) The activity which may be licensed as a result of this proceeding is the operation of a power reactor.
That activity takes place primar'ily within the containment and contiguous facilities.
We also might conclude that the activity extends to the boundaey of the limited access areas required by 10 CFR 573.45.
liowever, we do not interpret the use of the terms " license" and " activities" in 52133(d) to include anything occurring farther away from the plant.
Since emergency planning is not a licensed activity,
?2133(d) should not be interpreted to prohibit the issuance of a
. license to a power reactor merely because planning has become a prerequisite to the issuance of a license.
The possibility that Canadians would need to respond to an emergency, should one occur,
Special Prehearing Conference: 3
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does not indicate that " licensed activities" would take place in Canada.
Canadians hardly need a license to respond to an emergency.
Furthermore, the recent enlargement of the emergency planning zone, with reprecussions quite far from the site, should not change the interpretation of 2133(d).
The promulgation of new regulations does not continuously change the statutory definition of licensed activities.
Because we have explained our reasons for denying the motion, it is not necessary to decide whether Staff has correctly stated that emergency planning activities need not include Erieau.
(Staff also asserted that attempts will be made to coordinate planning with affected Canadian jurisdictions.)
However, Sunflower also requested a stay of the operating license proceedings on the ground that certain key documents have not yet been filed by the Staff and that Sunflower is therefore prevented from preparing its contentions in an adequate manner.
That motion also was denied (Tr. 43-45), primarily because the rules prov.de a method by which intervenors may raise new contentions if they were uriable to do so prior to the filing of key s'taff docu-ments.
During the Special Prehearing Conference, the Board agreed to serve on Sunflower portions of the transcript relating to its i
motions.
Since the Board's reasons have now been stated in writing, that is no' longer necessary.
Additionally, written motions may now
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be resolved in the course of an on the record proceeding without
l Special Prehearing Conference: 9 l
I service on parties present at the proceeding.
10 CFR 2.730, 46 Fed. Reg. 30328 (June 8, 1981).
Ill.
CONSIDERATIONS AFFECTING THE ADMISSION OF CONTENTIONS The admissibility of contentions in operating licensing proceedings is governed by 10 CFR s2.714, which requires petitioner to file a supplement to his petition to intervene which must include e list of the contentions which petitioner seeks to have litigated in the matter, and the bases for each contention set forth with reasonable specificity.
[ Emphasis added.] This requirement has been further elaborated in two Atomic Safety and Licensing Appeal Board decisions, Mississippi Power and Light Company (Grand Gulf Nuclear Station Units 1 and 2) s 6 AEC 423 (1973) and Houston Lighting and Pcwer Company (Allens Creek Nuclear Generating Station, Unit 1) 11 NRC 542 (1980).
These cases both limit the power of licensing boards to
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exclude' contentions.
Grand Gulf held that a licensing board should not reach the merits of a contention and should not require the introduction of underlying evidence, providing~ that "the basis for
~ the contention.. is identified with reasonable specificity." Simi-
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larly, Allens Creek-found admissible a contention that cited a specific section of the Final Environmental Statement and also cited a government report, Project Independence, as authority for its principal factual assertion.
In the course of that opinion, the majority of the appeal board set limits on how deeply a licensing board may go in analyzing the validity of the conclusions of an authority who was cited in support of a contention.
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Special Prehearing Conference:
10 fievertheless, despite these broad guidelines, this Board feels that the rule requiring reasonable specificity provides broad discretion and little guidance.
Consequently, we have decided to review the application of this rule in its complete procedural con-text, in order to provide us with increased guidance in the inter-pretation of'this standard.
A.
Arguments of the Parties Intervenors have argued that the Federal Rules of Civil Procedure provide useful guidance concerning the specificity expec-ted in pleadings.
Generally, those rules contrast with earlier common law practice in which detailed pleadings were comonplace.
The Federal Rules were heralded as a modern practice in which less stress was placed on pleadings, which were permitted to be freely amended in the course of federal proceedings.
Applicant argues that the Federal Rules are inapplicable.
In particular, it points out that in licensing proceedings, the applicant must bear the burden of proof on contentions admitted into
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a proceeding.
This, it argues, entitles it to clear notice of the issues on which it is expected to b' ear the burden.
Staff argues that Co.Tmission guidelines for specificity are similar to Federal Rules requirements governing pleadings and a bill of particulars.
Staff also argues that the requirement that there be a basis necessitates citation to an authority 2nd cannot be satisfied by the statements of the intervenor or its counsel-For example, when Staff discussed Sunflower Alliance's first contention in its
Special Prehearing Conference:
11
" Comments on Contentions Proposed at Special Prehearing Conference" (Staff Comments), it stated (pp. 7-8):
[P]etitioners have provided only counsel's statement, which is insufficient to provide the basis required by the Commission's regul ations.
B. ' The Full Procedural Context In Commission proceedings, Applicant must file extensive documents before the intervenor is required to plead.
In this case, the application, including the required Final Safety Analysis Report and the Environmental Report, consists of 22 thick volumes of infor-mation. This differentiates licensing proceedings from district court proceedings, in which plaintiffs must start without the bene-fit of any prior filing by the defendant.
Another difference is that 1icensing hearings never are the sole method of determining the merits of issues. Whether or not s
there is a licensing proceeding, the Director of Nuclear Reactor Regulation and the Advisory Committee on Reactor Safeguards must re-view the safety and environmental effects of reactors before licen-sing.
Each of these independent reviews is seriously conducted by technical experts engaged by the g6vernment.
A hearing supplements these other reviews and may provide some incentive for increased thoroughness in these parallel processes.
But unlike District Court proceedings, hearings never are the sole avenue for determining truth.
The existence of parallel decision tracks provides some support for interpreting " reasonable specificity" to require that
Special Prehearing Conference:
12 l
intervenors show enough understanding of the filed materials to indicate that a hearing ill have a substantial chance of adding to the preexisting process.
Hence, it is reasonable to require tnat contentions show an understanding of the materials already filed by Applicant about its reactor.
See Allens Creek.
HoWever, we disagree with Staff th.at a basis for a conten-tion can be provided only by citation to authority.
A citation may be helpful in establishing a basis, particularly when the subject is highly technical.
Sometimes intervenors may be able to provide good reason for raising a contention, and they may be unable to pro-vide more basis without discovery.
If intervenors' reasons support their contention, and if those reasons provide a logical basis for believing that discovery is appropriate, then it is improper to im-pose a stricter standard at this stage of the proceedings.
In par-ticular, Allens Creek, cited by staff, does not impose the criterion -
that a contention must be supported by an authority or it will not be admitted.
That case merely supports the converse proposition, that a contention supported by an authority can be admitted.
An additional f actor influencing action on contentions is that the financial., safety and env'ironmental impacts of Board deci-sions generally exceed the impact of district court cases, and great care should be taken before rejecting a potentially important contention that is poorly framed.
.In this proceeding, the decision concerning " reasonable specificity" occurs in a context somewhat dissimilar to other pro-ccedings because we adopted a special procedure in our April 9
Special Prehearing Conference:
13 Order.
In that Order, we required the parties to file a brief prior to the Special Prehearing Conference, " stating in reasonable detail
.. reasons, supported by legal authorities, why issues included in petitions should be considered relevant to the proceedings in whole or in part or should be considered irrelevant to the proceed-ings."
In order to permit adequate time to prepare this special brief, amended petitions -- required by the Order to " state conten-tions with particularity" -- were to be filed a full 25 days prior to the conference.
Applicants and Staff availed themselves of the opportunity to submit this brief.
Intervenors, though required to do so, did not.
In their brief, Applicants and Staff cited sections of the Final Safety Analysis Report (FSAR), the Environmental Report or the regulations of the Commission, dealing with the subject matter of intbrvenors' contentions.
Although these briefs' dealt with each contention separately, they were not voluminous.
Each contention elicited a few paragraphs of response, including references to sections o.f the FSAR alleged to be relevant. Although intervenors would need some knowledge of the f actual bases for their contcntions to reply to these points, they were not so barraged with arguments that it would be unf air to require tht<n to respond.
At the Special Prehearing Conference, intervenors were given substantial latitude in introducing new factual material and arguments in support of their contentions.
This practice is consistent with Grand Gulf, in whi'h the Licensing Board was upheld i
Special Prehearing Conference:
le in permitting substantial "particularization."
In f act, the particularization was relied on by the Appeal Board in its decision to admit a contention concerning alternatives to the construction of the Grand Gulf plant.
C.
Additional Relevant Factor The degree of specificity required of a contention depends in part on the nature of the ~ challenge to its admissibility. For example, if a contention is opposed as a challenge to a Commission regulation, then intervenor should be able to explain why the contention is consistent with the regulation.
At times, this may require increased specificity.
Similarly, if a contention is opposed as fully litigated during the construction permit stage (collateral estoppel), enough specificity must be found to indicate what is new about the current contention and how it differs from wha't was previously litigated.
Although it is not possible to anticipate the challenges a contencion may provoke when a conter. tion is framed, intervenors in this case were notified of the challenges before the special pre-
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hearing conference; and they either should have been able to respond by increasing the particularity of the contentions or by indicating why additional time for particularization was needed.
, D.
Summary of Factors Affecting Particularity After considering all the special factors affecting the 4
Special Prehearing Conference:
15 admissibility of contentions, the Board has applied the following criteria in determining whether the basis for a contention has been stated with reasonable specificity:
(1) Have intervenors shown how the contention relates to specific sections of the FSAR or Environmental Report cited in the brief filed by Applicants or Staff?
(2)
Is. the contention sufficiently specific so that Appli-cant has general notice of the issues on which it may bear the burden of proof at a hearing?
(3)
Is there either a reasonable explanation or plausible authority for factual assertions?
(4)
If a contention has been thoroughly litigated in the construction permit proceeding and has been challenged on that ground, is intervenor's allegation signifi-cantly different from the construction permit issue or' s
has it shown sufficiently changed circumstances or policies to permit relitigation?
(5)
If all the facts alleged in 'the contention were
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proved, would those f acts require imposition of a
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licensing condition or the denial of an operating license?
(6) Has intervenor indicated enough familiarity with the subject of its contention so that, its contribution to the proceeding may be expected to be helpful and so
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i that minor shortcomings should be overlooked?
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Special Prehearing Conference:
16
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IV.
RULINGS ON CONTENTIONS In this section of the memorandum we rule on the admissi-bility of contentions.
Generally, we review the contentions in the order presehted by Sunflower, referring to contentions of the Ohio Citizens for Responsible Action (OCRE) when they are related to Sun-flower contentions.
We discuss other intervenors' contentions after completing our consideration of the Sunflower contentions. Occa-sionally, we have grouped contentions together for ease of discus-sion or have modified the wording of contentions.
In the course of the Special Prehearing Conference, consis-tent with a practice that dates at least to Grand Gulf, the Board.
let intervenors further particularize their contentions by introduc-ing related arguments and f actual information.
10 CFR 2.714(b) re-quires that particularization should occur no later than 15 days prior to the Special Prehearing Conference.
Furthermore, the Board's April 9 Order required that particularization occur 25 days before the Conference. However, 62.714(b) also permits the Board to extend the time for particularization o, cal'ancing the factors found in 2.714(a) and we have done so, primarily out of concern for
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intervencrs' lack.of experience at this stage of the proceedings.
h On the other hand, intervenors' tardiness placed Applicant and Staff in the unf air r.,sition of having to respond to new factual and legal arguments for which they were unprepared.
Consequently, the Board provided Applicant and Staff the oportunity to file "last wo-d" briefs.
Those briefs wer'e beth filed on July 6 and have been coisidered in the course of writing this memorandum.
Special Prehearing Conference:
17 0
In reading Staff's last word brief, we learned that OCkE had filed a " Post-Special Prehearing Conference Brief" on June 10, 1981.
Because that Brief was not addressed to the Board members by r
name but merely to the " Board," none of the Board members had re-ceived a copy when it was originally mailed.
However, a copy was available from docketing personnel and we have obtained and read this filing.
OCRE's filing exceeds our tolerance even at this early stage of the proceeding.
It is our conclusion that OCRE has not shoven good cause for its lateness. As it points out in its Brief, OCRE was directed to nake its filing prior to the Conference.
We do not accept as good cause for late filing the excuse that Mr. Jeffrey Alexander, OCRE representative, had to take graduate school examina-tions and was involved in an " ongoing experiment" which took his attention away from this case.
While problems such as those might have provided reason for rescheduling a hearing, they are insuffi-cient reason to excuse late fi'ing.
The excuse is particularly unsatisf actory because the Board tried unsuccessfully, in the course of the hearing, to obtain information from Mr. Alexander, who pre-ferred to cite precedent to the B'oard rather than to assist it with requested information.
(Tr.
445-446,547.)
A. Eyrgency Planning Contentions
- 1) The Contentions There are several relatcd emergency planning contentions.
Sunflower alleged:
Special Prehearing Conference:
18
[T]he emergency and evacuation plans for the subject f acil-ities are fatally defective in numerous respects including but not limited to indadequacy of notification plans; defi-ciencies in_ radiation exposure measurement techniques, insufficieni. practical workability; no agreement with local response organizations as to cost and implementation of plans and inadequate notification of and information to media and residents within the ten (10) and fifty (50) mile radii.
The Lake County Board of Comnissioners seeks the Licensing Board's help on the " adequacy" of the emergency response plan which Applicant has submitted to Lake County and wants "to independently verify all monitoring [of possible uccidental releases of radioac-tivity] so that we can adequately provide our citizens with an emer-gency warning if any dangerous or unsafe releases of radiation from the Perry Nuclear Pcwer Plant occur." Furthermore, Robert E. Martin, president of the Board of Lake County Comnissioners, stated at the conferei - that the development, capitalization, implementation and maintenance of a workable and adequate emergency response plan is beyond the financial capabilities of Lake County.
(Tr. 145.)
OCRE (3) is a conter. tion that Applicant should oistribute potassiun iodide to every household within ten miles of the plant in order to help protect the thyroid gland and " help calm citizen fears during a nuclear crisis."
Tod J. Kenney had not particularized his contentions prior to the Special Prehearing Conference.
However, at the Board's invitation he managed during the_ conference to review the emergency planning sections of the FSAR and to present 14 points, complete with detailed references to the FSAR, before the Conference I
\\
Special Prehearing Conference:
19 adjourned.
(Tr.596-603.)
Then, at applicant's request, Mr. Kenney was required to submit his contentions in writing and to serve them on both applicant and staff by Express Mail, which he has done.
Kenney's contentions included a reference to findings by Dr. Edward Radford concerning allegedly increased risks from radiation exposure, and they also include the following allegations that went beyond the allegations of the other intervenors:
t that applicant's FSAR has not clearly defined the criteria used to determine who will receive special attention in an emergency, t that the method of decontaminating affected persons is not adequately defined, t that applicant should install off-site mo'.litors with continuous readout of radiation so that it will be able to determine during an cmergency whether population exposure levels may have risen to a dangerous level, t that the Radford calculation of radiation risks should 4
result in recalculation of a variaty of paramaters of the emergency plan, including definitions of " contaminated areas," " emergency action. levels," " plume exposure pathway," " protective action guides," and " emergency planning zones,"
t that during an emergency, monitoring should be expanded to
, include the human population residing within the ingestion pathway of Iodine 131,
Special Prehearing Conference:
20 t that offsi.te radiological monitoring should routinely include s~amples from the human population, and t that potassiun iodide should be stockpiled at receiving hospitals. (Mr. Kenny's other contentions either reiterated those of other intervenors or, in o'ne instance, did not relate to emergency planning.)
At the conference, Sunflower introduced further
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specification of its emergency planning contention, including the following points:
t that the City of Mentor has a road pattern with limited numbers of routes in and out, and this would impede efficient evscuation, t that there are too few buses to serve schools in the
'mergency planning zone and that there is as yet no agreement with the Regional Transit Authority or other localities to remedy this situation, t that there are not enough tow trucks, and
^ that local volunteer fire fighters might prove inadequate in assisting in the evacuation of people who do not own automobiles.
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(2) Arguments 0pposing the Contentions In its brief, prior to the extensive additional particu-larization which occurred at the conference, Applicant opposed this contention primarily because there was no " basis" and there was a f ailure to particularize sufficiently by explaining the nature of i
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Special Prehearing Conference:
21 the alleged deficiencies.
Staff concurred in the argument that intervenors' generalized assertions of injury or defectiveness are not admissible.
In the course of the conference, Applicant raised a series of questions concerning the specific f acts raised by intervenors, including the adequacy of radiation monitoring and the sufficiency of the number of buses to be u'tilized.
However, Applicant's princi-pal problem with the contention was that:
They are claiming they do not have enough tow trucks; they don't have school buses; too many schools; too many hospitals.
It could just go on forever, and there is really no basis for him saying it's unworkable.
How do we draw the line and how do we come up with a specific contention?
(Tr.188.)
Applicant alco was troubled because it is confident that agreements will be reached with localities concerning emergency p anning and that the incompleteness of current plans will be remedied.
Consequently, Applicant suggested that these were the kind of issues on which new contentions might be admitted later in the proceedings but that it was inappropriate to admit contentions about deficiencies which are likely to be cured.(Tr. 205-208.)
In its "Brief on Contentions," filed July 6, Applicant continues to contend that Sunflower relies on " broad, conclusory allegations" that are without basis.
(At 6-7.)
It also identifies a portion of the record as <tanding for the proposition that intervenors were criticizing on-site emergency plans rather than the
spemTWdhearing ton 7erence:
22 state and loce' off-site plans, which apparently have not yet been filed.
(Brief on Contentions at 7.)
Staff, on the other hand, acknowledges specificity when intervenors attack the nunber of school buses availaule for evacuation, the lack of agreements with local counties, the resistance of the counties to financing emergency plans and the inadequacy of evacuation plans for certain hospitals.
It asserts that, despite this specificity,.th re is no " basis" because the
' contentions rest on the "ipse di..it 'conclusionary statement of Sunflower's counsel (Comments on Contentions at 7.)
Applicant conceded that 0CRE's contention concerning potassium iodide was admissible (Tr. 226); but Staff contested the aomissibility on the ground that a letter o' March 25,1981, from the Commission to Mr. Lou E. Gurfitta, coni ained a position of the Commission concerning potassium iodide and precluded this Board from acting,on this matter.
With respect ta the Kenney contention concerning conclusions reached by Dr. Edward Radford abou,t the effect of radiation on people, Applicant argues that R -
.icl us ion s diverge from those reached by the majority of the uiological Effects of Ionizing Radiation (BEIR) III report.
However, Applicant further argues that even if Radford's conclusions are accepted as true they are consistent with the dose-effect estimates which formed the basis for Commission regulations and for Applicant's emergency response plans. Hence, Applicant consi;ers that citation tc the Radford report does not provide any basis for challenging the
Special Prehearing Conference:
23 emergency planning regulations and that it certainly provides no basis for challenging emergency plans made pursuant to the i
regulations. ( Applicant's Brief at 36-45.) Applicant also makes a variety of specific factual points about specific Kinney contantions.
(Ibid.)
For its part, Staff generally agrees with Applicant but argues forcefully that the Radford article relates to a conflict over the shape of the dose-response curve for ionizing radiation and is not new.
(Staff Comments at 19.)
(3). Conclusions Intervenors contentions on emergency planning were not presented as a single contention.
However, viewed as a whole, these contentions raise many concerns ab'out the off-site emergency planning process.
These contentions, including the separately argued Potassium Iodide issue and the other separate contentions discussed in this section, are admissible as an issue in this proceeding.
In reaching its decision on admissibility, the Board reviewed the specificity factors.
(Its review of those f actors is set fort,. below.)
For ease of subsequent reference, we shall refer to admitted contentions as " issues."
This particular issue has been reph-ased by the Board as follows:
ISSUE #1: Applicant's energency plans do not provide reasonable assurance that appropriate measures can and will be taken in the event of an emergency to protect public health and safety and prevent damage to property.
~
Special Prehearing Conference:
24 The contentions combined in this generally phrased issue raised a series of specific factual concerns related to the overall proposition that the emergency plan is not " workable." We interpret these contentions to apply to state and local emergency plans, which have not yet been completed, and to imply that Applicant has not yet filed plans that comply with f4RC regulations found in Appendix E to I
Part 50.
In particular, intervenors are understood to have asserted that Applicant has not satisfied the requirement of Section III of Aracndix E, that:
[ Applicant must]... demonstrate that the [ emergency],
plans provide reasonable assurance that appropriate measures can and v ill be taken in the event of an emergency to protect public health and safety and prevent damage to property.
Intervenors also may be inferred to be alleging that Applicant has not complied with the joint Commission-Federal Energy Management Age'ncy Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of fluclear Power Plants (l:UREG-0654; FEMA-REP-1; Rev. 1) at 56, 58 (criteria 8 and 9).
We have considered Staff's argument that an intervenor should not be permitted to establish basis through statements of counsel.
(See Tr.188, where Applicant appears to agree with this argument.)
Were this argument limited to technical contiusions, it would' be more persuasive.
For example, we would be unlikely to accept a bare contention on stress corrosion cracking unsupported by any statement of authority.
On the other hand, the regulations on emergency planning require that there be " reasonable assurance" of
Special Prehearing Conference:
25
" appropriate measures." These are broad standards subject to differences of opinion. The Lake County Disaster Services Agency, which has official planning responsibilities, made a statement supportive of portions of the contentions included in this issue.
(Tr.224-225,144-150.) There are other experts in emergency planning whose opinion may have special evidentiary weight, but this is a subject on which even 'the man in the street may have a credible opinion. We see no reason to require, at this stage of the proceeding, that intervenors disclose the experts they will call as witnesses cr that they otherwise disclose their evidence on an issue in which opinion plays so important a part.
Such a requirement would exceed the standard established in Grand Gulf.
We also reject Applicant's plea to delay ruling on this contention.
(See Tr. 216.)
Intervenors have given reasons for concern about the adequacy of the local plan which will be filed.
Furthermore, they are required to file contentions now.
If they find a current deficiency, it seems approp'riate to admit the
~
contention subject to dismissal through summary judgment if the deficiency is cured.
There is one aspect of the emergency planning cantentions which is not admissible.
One of the arguments made by Sunflower at the hearing appeared to challenge the suitability of the Perry site becaus'e of the highway patterns in Mentor.
We do not believe that this contention properly raises the issue of site suitability, which was litigated at the construction permit stage.
Special Prehearing Conference:
26 However, we reject Staff's argunent that the contention relating to potassium iodide is barred because of the content of a letter of March 5, 1981, sent to Mr. Lou E. Gurfitta by.the Commission. (Tr. 226-230.)
That letter, which was not published for notice and comment and did not specifically bind this Board, simply refused to endo.rse use of potassium iodide at present.
(Tr.
228.)
Applicant does not consider this letter binding on the Board.
(Tr.
230.) The Board does not consider itself bound, and the potassium iodid'e considerations are therefore admissible.
~
In reviewing the specificity factors, we determined that,.
Issue #1 satisfied specificity factor (1) because intervenors col-lectively demonstrated knowledge of Applicant's emergency plans, including a knowledge of the planning process and of the relation-ship between the proposed plan and the requirements of the surroun-
~
ding community.
This knowledge is not surprising.
Intervenors live in the area of Perry, are well versed in its traffic patterns and f acilities, and have raised a number of specific f actual issues which, if-accepted as true, cast substantial doubt on the overall workability of the emergency plan.
Applicant's argument that petitioners did not understand the limited applicability of the on-site emergency plan included in the FSAR does not convirice us that this contention should be excluded.
Factor (2) is satisfied because Applicant knows what is
=
l being challenged. We do not interpret the requirement of specifi-city of contentions to mean that only narrow issues can be raised.
When, as here, ' servenors challenge the overall workability of an
Special Prehearing Conference: 27 emergency plan, together with making a number of narrower assertions concerning why it will not work, they cannot be barred from their broader contention on the ground that it is not specific.
in the course of the specia' prehearing conference, Applicant and Staff learned spe'cifical',y what intervenor asserts.
That the assertion is broad does not prevent it from being asserted with specificity.
Factor (3) is satisfied because intervenors' specification of a number of emergency plan particulars provided a reasoned basis for their overall challenge to the workability of the plan.
It is not necessary at this cint for us to inquire into the truthfulness of each of the particulars.
Indeed such an inquiry would place us in the position of disregarding Grand Gulf and Allens Creek. While providing a " reasoned basis" for a technical contention may at times require citation to a plausible authority, a. reasoned basis dces not
~
always require a citation.
The workability of an emergency plan is the kind of issue on which knowledgable local citizens can form a reasoned opinion.
In particular, the Lake Ed'unty Disaster Services Agency has participated in raising doubts about the workability of the emergency plan; and we do not 'think it appropriate to reject l
that Agency's opinion, particularly at this early stage of the proceedings.
Factor (4) is not applicable becaure the issue of prior litigation has not been raised.
Factor (5) is not applicable because intervenors' contentions could affect the outcome of the proceeding decisively.
The regulations require a workable emergc xy
Special Prehearing Conference: 28 pl an.
Factor (6).is not applicable because there was no showing of technical shortcomings of many parts of intervenors' showings.
On the other hand, the admission of Issue #1 should not be interpreted as endorsing the accuracy of intervenors assertions or the relevance of the Radford conclusions, which Mr. Kenney cited.
In particular, intervenors will need to show the relationship between the Commission's emergency planning regulations and evidence concerning increased estimates of the somatic effects of radiation.
The admission of this broad issue should not necessarily be interpreted as foreshadowing a full evidentiary hearing on this -
entire subject.
Parties have available a motion for summary judgment, and that procedure may be used to pare down this issue before hearing.
The standard provided in the rules for application to a motion for summary judgment is more rigorous than the stindard applicable to the admission of contentions.
B.
Financial Responsibility Contentions (1) The Contentions Sunflower alleged that Applicant lacks the financial re-sources to complete, operate and decommission the Perry i'rits.
The principal source of its concern arises from alleged construction cost increases from a planned total cost of $1.2 billion to current cost projections of $3.85 billion.
(Tr. 235.) Sunflower cites Charles Kominov, an economist, for the proposition that the actual completed costs of Perry will be about $5.25 billion. (Tr. 236._)
4
Special Prehearing Conference:
29 Additionally, Sunflower states that there has been "a very substan-tial change in the circumstances [and]... methods of financing and the overall characteristics of the cash flow requirements" of Applicant.
(Ibid.)
It cites a General Accounting Office study, EMD 8125, for the proposition that the utility industry in general has experienced a capital crunch arising from construction delays, sagging sales and sharply rising fuel costs.
(Tr. 240.)
It
~
questions whether Applicant may have sufferred financially from its participation in the Davis-Besse nuclear power plant, whose construction costs are alleged to have increased from a $136 million original estimate to $650 million.
(Tr. 241.)
According to Sunflower, the Ohio utilities commission applies a rule which disallows from a utility rate base the cost of work in progress, prior to 75 percent completion of construction.
(Ibid.)
Since both Perry units are less than 75 percent complete, this is alleged to have an important financial impact on Applicant and its par tners in financing Perry.
(Tr'. 241-242.)
Indeed, one of the partners, the Penn Power Company, is alleged to be having financial difficulties that couFd prevent it from accepting its full share of the financing responsibilities.
(Tr. 261-262)
Backfitting of plants since the Three Mile Island accident has been a substantial expense, and Sunflower alleges that there is a need,t.o anticipate the need to finance further backfits in the future.
(Tr. 242.)
Furthermcre, the abandonment of recent nuclear power projects in the area was cited as an indication that such
I
~
Special Prehearing Conference:
30 projects are generally now f ar less attractive financially than they have been in the past.
(Tr. 244.)
Applicant's ability to provide properly for decomissioning is challenged by Sunflower because the size of the decommission,'ig surcharge imposed by the Public Utility Commission of Ohio has allegedly become inadequate due to inflation.
(Tr. 245-246.) OCRE (7), a related contention, expresses the following broader concern with decommissioning:
In the aftermath of a TMI-type acciden't, Applicant's solvency would be imperative for the health and scfety of OCRE members and the public.
Applicant will need to promptly institute clean-up procedures to reduce further public jeopardy while maintaining containment integrity throughout that clean-up. The current financial straits of General Public Utilities (TMI) demonstrate that responsible and safe operation of a nuclear plant includes adequate preparation for such contingencies.
[ Emphasis in original.]
This contention, which the Board interprets to relate to clean-up as well as decommissioning, is buttressed by an OCRE concern that the public has suffered a series of " rotating rate hikes" and that the utility could not look to the public for further increases to pay for a clean-up, should one be needed.
(Tr.
250-251.)
(2)
Arguments Opposing the Contentions Applicant contends that its financial ability to complete construction is irrelevant at the operating license stage.
It cites 10 CFR 550.33(f) as controlling. That section states:
Special Prehearing Confere'nce:
31 If the application is for an operating license [for a commercial or industrial facility, the applicant shall l
show that it]... possesses or has reasonable assurance of _ obtaining the funds necessary to cover the' estimated costs of operation for the period of the license... plus the estimated costs of permanently shutting the facility down and mair.taining it in a safe condition.
Applicant also argued in the course of the ' Conference that this j
(
sectio ~n must be interpreted in light of Part B of Appendix C, which
/
states:
[I]t will ordinarily be sufficient to show at the time of-l filing of the application, availability of resources sufficient to cover estimated operating. costs for each of -
the first 5 years o' operation plus the estimated costs of i
permanent shutdow. ano maintenance of the facility -in safe condition.
It is also expected that, in most cases, the applicant's annual financial statements contained in its published annual reports will enable the Commission to evaluate the applicant's financial capability to satisfy i
this requirement.
J Applicant's brief on these contentions alleged that they b
were "concluso. y" and f ailed to provide a basis for doubting Applicant's financial capability. With respect to premature j
decommissioning, Applicant cites NUREG-0586'as an indication-that a rulemaking on the " financial implications of ' premature decomis-sioning'" is imminent; and it cont' ends that the Board should not concern itself with natters that are the subject of rulemaking.
l.
In addition, Applicant argued at the conference that:
We have had absolutely no basis advanced for suggesting that the companies will _be unable financially to operate
'this plant while it's selling the electricity being produced from this plant during that time, other than a i
statement that the costs of construction have gone up.
Well, the costs of everything have gone up. That in itself doesn't mean... that companies are financially unable to operate the plants.
1 i
i i
Special Prehearing Conf'rence:
32 (Tr. 255.)
Applicant also argued that although most costs have gone up, the cost of nuclear fuel has come down, offsetting some portion of its other increased costs. (Tr. 485.)
At the request of the Board, Applicant also submitted further information on its financial standing.
It stated the commercial ratings of its bonds for the record and represented that there are only t'wo or three utilities in the country whose bonds are rated above Applicants' by the nationally recognized bond rating services.
Furthermore, Applicants' bonds trade on the New York Stock Exchange and the current yield for the bond with longest maturity is 14 percent, which the Board considers comparable to the yields of bonds issued by large companies with sound financial raputations.
(Tr.453-456.)
In the course of the Conference, the following dialogue between Applicant and the Board occurred:
JUDGE BLOCH:
Does the application contain all of the information that responds to the contention of [ Sunflower]
., that is, ha; the financial condition all been adjusted to include realistic increases in the cost of construction?
ME. CHURCHILL (APPLICANT): Well, at this point what the application contains is the information that's normally on the public record outside the application, the annual reports, prospectuses and so on.
JUDGE BLOCH: Then is the answer that you have not projected the finances of the company to the time of completion to be able to show in the application that you w ll have adequate i
financial resources to operate the plant safely?
MR. CHURCHILL:
There is information that's r equired in Appendix C and in 50.33(F) for operating the plant that has not yet been submitted.
All of the information required by th^.egulations has not yet been submitted.
Typically this
i Special Prehearing Conference: 33
{
isn't done.
NRC asks for it at a point in time closer to operation, so take a look at it then.
(Tr. 257-258.)
In general, Staff concurred with the position of Applicant, stressing the alleged lack of basis for this contention.
(3)
Conclusion The intervenors' cont'entions on financial responsibility shall be admitted as an issue, rephrased as follows:
ISSUE #2:
Applicant has not demonstrated that it possesses or has reasonable assurance of obtaining the funds 1
necessary to cover the estimated costs of operation, including the costs of reasonably forseeable contingencies, for Ferry Nuclear Power Plant, Units 1 end 2.
Sunflower's allegation that f.pplicant lacks the financial resources to complete construction shall be interpreted to relate to other allegations concerning its financial ability to operate the re ac' tor.
The Board will not consider arguments concerning the validity of the construction permit because thr,se arguments have oeen fully litigated and are not property per.t of this proceeding.
The Board's further analysis of this matter was complicated by the issuance on May 13, 1981, i. f a memorandum from the Commis-sion's Secretary to its Executive Jirector for Operations concerning a proposal to stop requiring applicants for operating licenses to prove the financial ability to operate power reactors.
The memoran-dum repor,ted unanimous agreement among the Coranissioners that 10 CFR 650.33(f) should be amended so that applicants need no longer denon-strate financial capability.
However, the memorandum concluded that "OGC [the Office of General Counsel] and ELD [the Office of Execu-
Special Prehearing Conference:
36 tive Legal Director] should be consulted to assure that they are in agreement with the scope of the rule as it applies to financial considerations under NEPA." Consequently, there is still some uncertainty concerning the direction which the Commission will take in issuing a proposed rule, which will itself of course be subject to modification or withdrawal in the course of rulemaking.
Under these circumstances, we do not consider ourselves barred from considering the financial qualifications contention.
There is no clear direction to us to refuse to consider the conten-tion, and an existing rule of the Commission remains in effect and binding on us.
/
That rule requires that Applicant demonstrate its financial capability to run Perry.
Although it is generally true, as Appli-cant has contended orally, that income will exceed expenses while a power reactor is operating, it is not possible to accept that gener-al statement as proof that the rule's requirements are fulfilled.
(See Tr. 253-259.)
Were we to accept that general statement in ful-fillment of the requirement, we would have erected an irrebuttable presumption which would make it unnecessary for an applicant ever to prove its financial, capability.
This, under the current state of the rules, we cannot do.
The present rule requires proof of financial capability. When spec-ific challenges are made to that capability, those challenges must be answered.
Although it is unclear whether the operator of a reac-tar must be financially prepared to provide for cleanup of an accident, or the extent to which it must provide, this issue of
Special Prehearing Con'ference:
35 4
4 t
i interpretation also is open and cannot be excluded at this stage of the proceedings, f
The current rule has an important purpose.
It is possible i
j for an applicant-to scrape by financially during the construction i
stage. That is, due to unanticipated co'st increases and backfit-I requirements, it might barely manage to complete construction.
If
/
it does just scrape by, then the company's financial straits could i
i interfere with its sound judgment in safety matters.
Safety i
l measures that might be taken by a financially healthy company might not be taken.
l The Statement of Consideration which accompanied the latest I
amendment to the financial requirements regul'ation indicated, in the i
following language, that these requirements are designed to protect i.
l
' qublic health and safety:
)
...The Act and the Comission's regulations reflect that the fundamental purpose of the financial qualifica-tions provision of that section is the protection of the public health and safety and tiu.comon defense and secur-ity.
Although the Comission's safety determinations requi-red for the issuance of f acility licenses are ~ based -upon extensive and detailed technical review, an applicant's
. financial qualifications can also contribute to his ability to meet his responsibilities on safety matters.
33 FR 9704 (1968).
The information Applicant submitted concerning the ratings of'its' bonds and their current yields in New York Stock Exchange trading provides a general. indicator of financial health.
- Indeed, these favorable financial signs show that intervenors may have great I.
l l'
Special Prehearing Conference:
36 difficulty proving their case.
However, recent experience concern-ing the financial markets' ability to anticipate financial difficulties--including trading in the bonds:of Penn Central, tiew York City and Chrysler Corporation--indicates that financial ratings and market prices are incomplete assurance of future financial safety. Hence, we are unable to preclude inquiry into Applicant's financial responsibility because of its current financial reputation.
Timing.
The one remaining aspect of Applicant's response to this contention is the argument that Applicant is not yet required to produce financial projections showing its position at the time the reactor will commence operation.
However, that argument appears to be without basis in Appendix C, Part 50, which requires applic:c far operating licenses to show "at the time of filing of the application, availability of [ sufficient] resources.
Although the section goes on to state what will " ordinarily" be sufficient and what "in most cases" will be sufficient, intervenors' questions concerning increased construction costs and costs for backfitting are sufficient to overcome those presumptions.
Ibr is it sufficient that Applicant intends to update its filings at a later date. We have no choice but to judge the adequacy of contentions now.
Subsequent events, prior to a motion for sumary judgment under 10 CFR @2.749, could influence the outcome of a 1
suT. mary judgment motion; but the possibility of a later change cannot influence the decision on the admissibility of contentions.
Special Prehearing Conference:
37 C.
Nr.ed for Power Contentions (1) The Framework Cleveland Electric Illuminating Company, af ter a complete environmental review, was awarded a construction permit for Perry.
During the construction stage,10 CFR {51.26 required a " final envi-ronmental statement" that included "a final cost-benefit analysis
?
and a final conclusion as to the actir :, called for."
\\
At the construction permit stage, the required cost-benefit conclusion balanced the advantage of generating nuclear power against the economic and environmental costs of construction and the potentially adverse economic and safety effects of loading fuel, operating and decommissioning the reactor.
At the construction per-mit stage it also was necessary to consider whether other methods of generating power might be preferable to the use of nuclear power generation.
s It is, of course, the environmental and safety effects of loading fuel and operating a reactor that are of greatest concern to intervenors.
Hence they believe operation of the reactor should not
- be authorized even after its construction is completed.
They do not think that the benefits of power generation outweigh the costs even after subtraction from the cost-benefit balance of the environmental effects of construction and the $1.5 to $5 billion that will be spent pursuant to the construction permit that was already granted.
However, the prior adjudication concluded that construction of the reactor was justified despite these huge construction costs and the environmental costs of massive construction.
Furthermore,
Special Prehearing Conference:
38 principles governing the finality of adjudications require us to respect findings reached during the construction permit adjudica-tion. Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), HLAB-182, 7 AEC 210 (1974) (coilateral estoppel prevents
~
rehashing issues already ventilated and resolved at the construction permit state).
We may readjudicate issues, but only if there is a significant change of circumstances or policy.
Reasonable interpretation of " changed circumstances" requires consideration of the shift in the cost-benefit balance that always occurs after construction is licensed.
At that point, construction is authorized.
Consequently, at the operating license stage, the monetary and environmental costs of construction are irrelevant.
Therefore,, an adverse change in one or more of the other f actors considered in the cost-benefit balance at the construction stage must offset the construction costs, which were considered prior to the issuance of the construction permit but which are no longer relevant.
' For the Board to conclude that there are significantly 1
changed circumstances, it must accept the alleged changes as true.
Then it must find that the changes are sufficient for a power plant, whose construction has been authorized, to be forced to sit idle because the economic and environmental costs of operation exceed the benefits derived from the generation of power.
If this balance o
indicates that the plant should not be operated, then the Board must
Special Prehearing Conference:
39 admit the issue.
If the Board finds that this overall environmental balance is not affected even if the allegations are accepted as true, then there would be no purpose in having discovery for the purpose of proving the allegations. That would be a pointless waste of time.
Instead, if this balance is in favor of operation of the plant, even when the allegation are assumed to be true, then the contention should not be admitted as an issue.
Collateral estoppel.
We are aware that this legal interpre-tation represents an extension of the equitable doctrine of " colla-teral estoppel." That doctrine, which was recently reviewed in Houston Lighting and Power Company, et al. (South Texas Project, Units 1 and 2), LBP-79-87, 10 NRC 563 (1979), aff'd summarily, ALAB-575, 11 NRC 14 (1980), has traditionally been applied only when both parties in a case were also parties (or their privies) in a previous case.
An explanation of this limitation is that it would be im-proper to apply decisions to persons who have not had an opportunity to be heard.
Id. at 572.
As an equitable doctrine, collateral est'oppel is capable of
' flexibility to meet the equities of particular proceedural contexts.
For example, the Supreme Court of the ' United States approved a limi-ted extension of that doctrine to permit " offensive" collateral estoppel--the claim by a person not a party to previous litigation that an issue had already been fully litigated against the def endant and that defendant should be held to the previous decision because he has already had his day in court.
Parklane Hosiery Company,
Special Prehearing Conference:
40 Inc., et al., v. Leo M. Shore 439 US 322, 58 L.Ed.2d 552, 99 S Ct 645 (1979).
In Parklane the Supreme Court weighed the equities. involved and determined that it was appropriate to apply collateral estoppel, even though application of the doctrine defeated a constitutional claim to a jury trial.
(Mr. Justice Rehnquist dissented on this point.)
in the course of the decision, the Court approved broad discretion for trial courts in applying the doctrine to cases of offensive collateral estoppel.
(Id. at 331.)
It also explained that:
Collateral estoppel, like the related doctrine of res judi-cata, has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promotinq judicial economy by preventing needless litigation.
[ Emphasis added.]
The Board has decided to apply the spirit of Parklane to this case.
In this context, we find that the arguments opposed to colla-teral estoppel are comparatively weak and the arguments in its favor are compara'tively strong.
Hence, we shall apply collateral estoppel -
to this proceeding.'
Commission licensing is dissimilar from many other forms of litigation.
Unlike many other kinds of cases, licensing cases are notorious.
Their existence is not merely noticed in the federal re-gister.
Universally, plans to build a nuclear plant receive wide-spread news coverage; and the licensing proceedings themselves also are extensively covered.
Consequently, residents living in the area of a proposed plant have actual notice rather than just constructive
. ~. -
Special Prehearing Conference:
41
! notice.
Furthermore, even late petitioners with serious concerns and good cause for_ late filing are comonly granted intervention.
See,' e.g., Public Service Company o'f Oklahoma Associated Electric Cooperative, Inc., et. al, (Black Fox, Units.1 and 2), LBP-77-17 (March 9, 1977).
l In' addition, intervenors who are admitted play a different f
role in Commission proceedings than in many other kinds of litiga-i tion. Although they are admitted to the proceeding because of their.
own interest, often because of-residence near to the plant,' their
' safety and environmental concerns often are quite -general, -as they-i were in the construction stage of this proceeding.
Hence, while intervenors do not have any obligation to represent persons who are not parties, they often attempt to litigate generally any_ concerns i
l which might also bother other residents _ in the community.. Further-more, even when intervenors' ability to broadly represent the commu-s nity may be called into question, it is the obligation of the Staff, which always participates, to represent the public interest.
In addition, the Comission's staff attempts fo' protect the public fur-j_
ther by conducting an independent safety and environmental review
~
that is required by statute.
On the other hand, Applicant in a construction permit _ pro-ceeding litigates all' the issues that are raised.
At the conclusion of the proceeding, it may obtain a license to construct the facil-l
'ity.
It,often invests over $1 billion in reliance on the license.
t l
Of course, Applicant knows that 'it is continuously responsible for l
revising its plans in light of current knowledge and that it may I
,.-,-,-.,--.-~~-=e---
- * - " - ~ ^ ~ * ' ' * ~ " " " ' ' * ' ~ ' " ~ " " " ' ' " ~ ~ ' *
~ ~ ' "~
Special Prehearing Conference: 42 face a serious challenge at the construction permit stage. However, its reliance on its construction license is substantial.
When the Board balances the equities, it concludes that col-lateral estoppel can properly be applied so that issues decided at the construction permit stage need not be rehashed at the licensing permit stage even when new parties have intervened in the latter proceeding.
See Northern States Power Company (Prairie Island Nuclear Generating Plant, Units 1 and 2)),ALAB-455, 7 NRC 41, fn. 4 at 46 (1978) (in a proceeding to amend a license to enlarge a spent fuel pool, the environmental inquiry may be limited to the consequences of the amendment).
Of course, in each instance the Board must not reject a petition which raises significant new material.
Given this extension of an old and venerable doctrine, the Board must welcome any argument that casts significant fresh light on an issue decided during a construction permit proceeding in which the party was not directly represented.
However, something that is fresh and significant must be added to avoid merely rehashing old issues.
In this Memorandum, whenever the issue of collaterai estoppel has been raised, ' specificity factor (4) becomes f avolved.
Necessar-ily, a decision that specificity factor (4) has not been met will j
mean that the Board also has conciuded that the issue should be 1
barred because of the equitable doctrine of collateral estoppel.
l l
(2) The Contentions Sunflower alleges that a reasonable forecast of the net I
l L
T Special Prehearing Confe~rence: 43'
- energy demand for the next two to eight years does not justify an operating license.
It points out that Applicants have revised their demand forecasts downward about 24% between their 1978 and 1979 projections.
At the conference, it pointed out that the reduction was from a 4.4% projected growth rate to' a 3.3% projected growth
-r at.e.
(Tr. 520.)
In addition, Sunflower relied on a study by Energy Systems Research Group to indicate that a more realistic ten i
year projection might be growth of 1.98% per year.
(Tr. 529-530, 532.)
i Sunflower' also cites some qeneral literature for support for the contention that forecasts of growth rates-may be_ off by up to 100 percent.
Sunflower alleges insufficient consideration of alternative enrgy possibilities, including cogenration and conservation.
Furthermore, innovative management options--such as i
load management plans, innovative rate structures and power-exchange 9
alternatives--are said to have been ignored l
At the Conference, Sunflower arhued that Mr. Richard Rosen,
~
of the Pennsylvania Office of Consumer Advocate, has testified that l-the Perry plant will cause Applicant and its partners to be over-f baseloaded. (Tr. 469-470.)
It also argued that Perry would undergo i
a substantial shakedown period during which its reliability might be i
far lower than predicted and its costs of operation might be far higher.
Sunflower cited experience at the Davis-Besse reactor in j
support of the proposition of lower-than-expected reliability.
(Tr.
{
480-482.)
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Special Prehearing Conference: 44 OCRE also is concerned that Applicant has not taken into c
account in its demand growth projection "all significant factors affecting demand" and that it has not internalized all significant external costs, "so that the total cost of electricity is charged to those using it."
It ~ also asks for increased energy conservation and management options similar to those sought by Sunflower.
Mr. Kenney joined in these contentions and also expressed concern that the cost of financing an emergency plan and an emergen-cy response capability had'not been included in Applicant's cost es-timates.
(Tr. 479-480.)
(3) Arguments 0pposing the Contentions The brief-on contentions which we received from Applicant seven days before the Special Prehearing Conference, said that:
Petitioners have failed to provide an explanation of why or how its proposed ' alternatives have been inadequately considered, or how any of the allegations would upset the cost-benefit analysis to the extent that licensing the operation of the f acilities would be inappropriate.
This lack of basis for the contentions is reason alone for rejecting the contentions pursuant to 10 CFR s2.714(b).
Applicant also argues that it is unreasonable to review the-necd for power during consideration of an operating license because the issues have been fully reviewed during the construction permit stage.
It cites the " rule of reason" applicable to the considera-tion of alternatives in NEPA reviews.
For authority it cites sev-eral federal court cases, including Natural Resources Defense Counsel v. Morton, 458 F.2d 827, 834-36 (D.C.Cir. 1972),- Vermont
- Yankee Nuclear Power Corp. v. Natural Resources Defense Council, OI II' I
Il
Special Prehearing Correrence: 45
.s Inc., 435 U.S. 519 (1978) and Concerned About Trident v. Rumsfeld, 555 F.2d 817,825 (D.C.Cir.1977). Further citations are offered in support of the proposition that " alternatives to completed projects need not be considered." These further citations are to cases dealing with a dam and with a Federal housing project.
Applicant's last argument in its brief is that the National Envi vomental Policy Act "is not an authorization to undo what has already been done" and that such an effort "would be a vain attempt to reform past decisionmaking."
Citations are offerred to Jones v.
Lynn, 477 F.2d 885,890 (1st Cir.1973) and to National Wildlife Federal v. Appalachian Regional Commission, __,F.2d
, 15 E.R.C.
1945 (D.C. Cir. 1981).
At the conference, Applicant argued that intervenor's con-tention acknowledged that Applicant had already taken account of reduced need for power in its Environmental Report.
(Tr. 484.)
Furthermore, Applicant reported that it has dropped plans fo-4,200 megawatts of capacity in 1983, representing over a 20 pe cent capacity reduction for th't year.
Applicant also argued that ia the construction permit stage there were numerous motions to reopen the record whenever a load forecast was changed; and Applicant argues there is no reason to reopen the issue again in the operating license stage.
In the course of argument and in its post-hearing brief, Applicant pointed out that Mr. Richard Rosen, cited as an authority on the need for power issue by intervenors, had testified in favor of the need for power at Perry Unit 1 and had reservations only for l
Spec ial Prehearing Conference: 46 Unit 2.
(Tr.488-490.)
This clarification was accepted by Sunflo-wer. (Tr. 521.) Applicant also argued that Mr. Rosen's testimony was rejected by the Public Utility Commission. (Brief on Contentions at 14.)
Staff points out that changes in the growth of the need for power do no't necessarily require the abandonment of a plant.
Indeed, it argue.s that all changed estimates would require is a delay in the operating date of the plant.
(Tr. 514.) Given this consequence of an adjusted estimate of need, Staff argues that these are not the kind of changed circumstances required to reopen a previously litgated issue.
(4) Conclusions After reviewing the factors discussed above we have con-cluded that the need for power contentions should not be admitted as an issue in this proceeding.
Intervenors have made a variety of general assertions con-cerning the need for power.
In particular, they have cited a vari-ety of studies showing a general decline in the need for power in the period since the grant of tha construction permit.
However, when intervenors contentions are narrowed to the Perry plant, they focused primarily on the 1978-1979 time period.
During that time period, we are informed i. hat Applicant revised its estimates of the rate of growth in need for power downward by 24%.
Even if a study cited by intervenors should be accepted, all inter-venors are claiming is that a 4.4% projected growth rate in need for l
l l
l
SpecialPrehearingCo'nference: 47 l-power should be reduced to a 1.98% growth rate.
Furthermore, most of this alleged reduction was addressed by Applicant in its
. Environmental Report and has caused Applicant 'to reduce its planned-j power capacity for 1983 (the first year Perry is projected to 1.
operate') by over 20%. Intervenors give;no reason or basis.for the t
Board to believe that this response by Applicant was inadequate.
To admit the "ne'ed for power" issue, we must find that j
l there are sufficiently changed circumstances to permit intervenors to challenge the overall environmental baiance ' struck at the con-struction permit, stage. This we cannot find.
Changes in the need-for power ~ and the supply of power must be viewed in relationship to 1
changes in the entire environmental context, including-the fact that 1
)
Applicant has constructed a power plant pursuant to-its license at a 4
j cost of over $1.3 billion (adjusted upward for inflation) and has' inflicted all the environmental damage resulting from construction.
Hence, construction costs for the Perry plant are, in the jargon of j-economists, sunk costs; and the originaf ' nvironmental balance, I
which was formally determined to favor that plant, now weighs far more in its f aver.
l l
We find these circumstances controlling, even if we accept j
as true the full weight of Sunflower's contentions.
Consequently, i
we find that Sunflower. has not alleged sufficiently changed i
circumstances for us to review the entire environmental balance.
Compare' Pennsylvania Power and Light Company, Alleghany Electric j-Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 and i
l
- 2) 9 NRC 291,l302-305 (1979)(where the low growth rate scenario in i
i
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Special Prehearing Conference:
48 the Environmental Report contemplated all nuclear power being sold-outside Applicant's service area, and where intervenors had other significant environmental contentions shown not to have been
{
litigated during.the construction stage).
i In terms of the factors set forth in Part II of this memo-l randum, our decision not -to -admit this contention has been most i
affected by factors (1), (4) and (5).
Applicant acknowledged a l
l cha'nge in the need for power in its environmental report, and inter-venors have not indicated in-what way Applicant's-handling of that i
problem is incomplete.
In' addition, intervenors have not shown why.*
f circumstances have changed sufficiently to permit relitigation of issues already thoroughly litigated at the construction permit i
~
stage.
Furthermore, even if Sunflower's f actual ' assertions are L
accepted as true, there wou d oe no basis for concluding that consi-l deration of environmental factors f avors abandonment or curtailment of Perry.
We need not decide whether the National Environmental i
Policy Act requires the Commission to-consider need for power as i
part of its environmental review.
Need for power generally is addressed in the Environmental Impact-Statement and is considered by
'the Director of Nuclear Reactor Regulation in his determination of l-whether to issue an operating license.
The Director's review
~
satisfies NEPA requirements.
We are not required by NEPA to adjudicate need for power.
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Special Prehearing Conference: 49 D.
Spent Fuel Storage Pond Contentions (1) The Contentions Sunflower contends that neither the Environmental Report nor the Final Safety Analysis Report adequately consider the health, safety and environmental effects of a oossible major radiation release accide~nt in the spent fuel storage pond [and the]... impacts [of such an accident] on the off-site emergency plans.
(Sixth ground of intervention.) At the Conference, Sunflower limited its contention to an allegation that the pool could flood over its banks (tr. 314); and.t also limited this contention by stating its concern with the adequacy of preparations to continue the circulation of coolant in the pond in the event of an on-site radiation release or a power outage.
(Tr.
305-306.)
Sunflower also expressed its concern that the Perry site is in a flood plai.n and that releases of coolant mixed with radioactive material might s
,3 therefore result ', pollution of ground water.
(Tr. 307.)
(2)
Arguments Opposing the Contentions Applicant and Staff both alleged in their written briefs that there is no basis for Sunf, lower's contentions.
They state that intervenors should have specified the nature of the inadequacy of which they complained.
At the conference, Applicant argued that two recent cases had determined that ccntentions involving spent fuel pools used by
~
pressurized water reactors were without merit.
(Tr. 307-308.)
With respect to the statements of Sunflower at the hearing, Applicant stated:
Special Prehearing Conference:
50 There is absolutely no basis for any of these statements.
The statement is that a halt in the circulating process of water for 'several hours could cause severe radiation release.
The facts in [recently litigated]...
cases show that if you loose coolant you may reach boiling.
The pool may boil.
That's not a safety concern.
.You only get to a safety concern when you l il the water down to a level that the fuel is exposed.
Calculations for that in general show that you have several days.
Those calculations I believe are reflected in the FSAR.
(Tr.309.)
You have many sources of redundant makeup water, some of which are seismically qualified.
In this case we have Lake Erie.
You can take a fire hose down to Lake Erie and run it up to the spent fuel pool.
The FSAR.9.1-24 in volume 13 calculates that you ha e approximately 364 hours0.00421 days <br />0.101 hours <br />6.018518e-4 weeks <br />1.38502e-4 months <br /> under the most conservative conditions... before you would get to 160 degrees Fahrenheit, let alone before you would get to boiling.
(Tr. 310.
See also Tr. 312.)
Staff argues that all Sunflower had done was to question whether boiling off or flooding could happen at the spent fuel pool.
(Tr. 304-312.)
It also indicates that in ;he course of the confe-ence t1e chairman asked petitioners "what is the deficiency you'rt al l eg '.n g? "
(Tr. 304.) However, petitioners never were able to specify a defic.iency.
(3) Conclusion We have decided to reject this contention. A careful review of tne reccrd shows that Staff is correct in arguing that Sunflower has indicated a concern about the spent fuel pool boiling over; but it has not alleged any specific deficiency in this plant.
i Special Prehearing Conference:
51 l
Study of the record is persuasive.
Here are the passages i
in which Sunflower tried to indicate the deficiency which it is alleging, in response to the Chairman's question:
o MR. LODGE (Sunflower): There are several problems that come to mind.
One is the adequacy of preparations to con-
' tinue the cooling process, the circulation of coolant in the pond in the event of a major on-site radiation release.
... There is a certain small amount of decay heat from the fuel storage pond. My understanding is it usually ranges up to approximately seven percent of the former energy increase.
JUDGE BLOCH:
Do you have any idea what length of inter,rup-tion of. coolant to the storage pond would be necessary for there to be an independent danger?
j MR. LODGE: Only very generally.
I am aware that in 1980, that in intervention by a township government in a New l
Jersey licensing case for, I think, Salem III,-and I do not have any cite information beyond that, that there were contentions raised by the township government... that the spent fuel ~ pond raised a number of health and safety considerations, that a halt of the circulatory process in-s that pond for a period of, I believe, several hours duration could cause a very severe radiation release...
j JJDGE BLOCH:
Do you know if that pond is similar to the l
pond in this case?
MR. LODGE:
No, I do not.
i Another concern *is the availability of energy to circulate coolant in the event of a major off-site power outage or an on-site power outage or some combination of l
the two which might retard the operation of the coolant i
circulation process.
Also, with specific respect to the Perry site, the eastern portion of the county, at least along the lake, is in a flood plain.
Thus, if there were liquid releases of l
coolant mixed with radioactive material, there would be a strong possibility of accumulation in ground water supplies j
as well as the soil surrounding the storage pond itself.
I (Tr. 304-307.).
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Special Prehearing Conference: 52 Our review of the specificity factors persuades us that this contention is not admissible as an issue.
Generally, we have required that when Applicant relied on a particular section of its FSAR, intervenors must provide -a basis either in reason or authority for rejecting Applicant's response.
In this instance, Applicant did not cite a specific section of the FSAR in its response;-
consequently, 'a less rigorous standard of specificity may be appropriate.
However, _intervenors have failed to satisfy factor (1) because they have not indicated any deficiency in this particular plant.
Knowledge that there may be some problem in speqt fuel pools that may not even be similar to Perry's pool is not sufficient specificity either for factor (1) or factor (2).
Furthermore, risk from the spent fuel pool is not a subject amenable to popular opinion, similar to emergency planning issues -
which we discussed above.
To raise a technical issue of this nature, there need be more than counsel's unsupported statement that release could occur through "boiliag cver." Withcut a plausible mechanism or accident scenario, Sunflower has failed to indicate -
what it seeks to prcve in order.t.o demonstrate that Perry's fuel pool should be considered a danger to the community.
Hence, factor (3) also has not been satisfied.
In addition, we examined factor- (6); but Sunflower's lack of knowledge of Perry's spent fuel pool precludes us from deciding that this contention ~should be admissible despite its technical shortcomings.
Special Prehearii.g Conference:
53 E.
Hydrogen Bubble Contention (1) The Contention Sunflower alleged in its petition that Applicant had not documented the ability of the containment structures "to safely inhibit a hydrogen explosion of the magnitude and type which occurred at the Three Mile Island Unit 2...."
(Seventh ground of intervention.)
OCRE's contention 5 was similcr to this Sunflower contention.
(2) The Regulatory Setting As intervenors were informed at the conference (Tr. 320-322), this issue is controlled by Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No.1), CLI-80-16, 11 NRC 674 (1980).
In that decision, the Commission stated its belief that:
quite apart from 10 CFR 50.44, hydrogen gas control could properly be litigated in this proceeding under 10 CFR Part 100.
Under Part 100, hydrogen control measures beyond those required by 10 CFR 50.44 would be required if it is determined that there is a credible loss-of-coolant accident scenario entailing hydrogen generation, hydrogen combustion, containment breach or leaking, and offsite radiation doses in excess of Part 100 guideline values.
[Emphas is added.]
Id. at 675.
(Ig'nore garbled transcript 320-322.)
Applicant and Staff claim this issue is barred from the proceeding by the publication of an Advance Notice of Proposed Rule-making, " Consideration of Degraded or Melted Cores in Safety Regula-tion," 45 Fed. Reg. 65474 (1980).
However, the Commission's deci-sion in Thraa Mile Island 1 plainly contemplated the prompt initia-
Special Prehearing Conferenc'e: 54 tion of a rulemaking on degraded core conditions.
Ibid.
That rulemaking has commenced.
Since the notice of that rulemaking does prohibit further Board consideration of hydrogen bubble contentions it appears appropriate to continue to apply the just-cited language of the Commission.
Intervenors are not barred by the pending rulemaking from raising this question but they should be aware that issuance of a final rule would remove this question from our jurisdiction.
At the conference, intervenors were informed of the appli-cability of this standard to the hydrogen bubble question.
Sunflow-.
er Alliance said that they could not meet this standard in the course of the Conference.
(Tr. 322.) OCRE also expressed an ina-bility to meet the standard.
(Tr. 323.)
Since the conference, the Commission issued its decision in Duke Power Company (William B. McGuire Nuclear Station, Units 1 and 2)
URC (June 29, 1981).
Although that Commission decision approved the result reached by the Licensing Board in that case, two of the four participating Commissioners were highly critical of the result and one, who refused to be critical because of the procedural posture of the case, said that technical questions are not properly resolved in licensing cases. Accordingly, the appropriate treatment of hydrogen contentions is somewhat unclear.
We apparently could adopt Commissioner Gilinsky's view that the requirement of a speci-fic credible accident sequence " amounts to saying that there is no need to protect against an accident that cannot be anticipated in detail, even when a closely related accident has already occurred."
~
Special Prehearing Conference:
55 Id., at p. 8.
However, we find that the TMI decision is still law and that we are " forced to act in blinders."
I d. at p. 10.
Were intervenors to propose a specific accident scenario, we might adopt a broad view of what is " credible," in light of the accident at TMI and this ambiguous legal background, but without such a scenario we are now powerless to admit this particular contention.
Intervenors may desire to raise this contention at a iater t ime:.
Should they do so they will need to meet the requirements of 62.714, governing late filings of contentions.
Obvicusly, as time passes, the criteria of that section will be harder and harder to meet.
(3) Related Matter In the same contention as the hydrogen bubble matter, s
Sunflower challenged the licensing of Perry "to emit certain minimal amounts of radiation." This contention was not discussed at the conference and is therefore considered.to have been dropped.
Had it been discussed, there are several independent reasons to consider at i
j inadmissible, including the conclusion that it is a challenge to l
Appendix I to Part 50 and that it lacks specificity.
F.
Tandem Licensing Concern l
In the discussion of this item, Sunflower stated that it was not really a contention but a legal argument.
Sunflower ex-pressed concern that Perry Unit 2 is still 6 years from completion l
1
Special Prehearing Conference:
56 and that it would not be appropriate for this Board to make recommendations in the course of this proceeding that would influence the licensing of Unit 2.
The Board explained that a 9
license wou',d not be issued for Unit 2 until the Director of Nuclear Reactor Regulation determined that it had met the standards of 10 CFR @50.57; and that those findings require, among other things, that the facility be "substantially completed."
In addition, the Board could retain jurisdiction of the licensing proceeding, if--as does not seem to have happened--there are pending issues specifically questiening the licensing af Perry Unit 2.
G.
Quality Assuraace Contention (1) The Contention Sunflower alleged, as ground 9(1), that:
Applicants have demonstrated throughout the construction process their inability to comply with the Quality Assur-ance Program established by both the Commission and the Aoplicants.
Applicant's construction practices, as demon-strated in the Commission's own ' inspection reports, are totally inexcusable.
In the course of the Conference, intervenors indicated that the f ailure of quali~ty assurance was evidenced by a voluntary stop work order in February 1978.
(Tr. 338-339.)
Sunflower also alleged faulty quality assurance in the placing of concrete.
(Tr. 340-341).
It filed, at the request of the Board, several other reports by
~
Commis'sion inspectors finding that there were quality assurance deficiencies.
Special Prehearing Conference:
57 (2) Arguments Opposing the Contention In their briefs, neither Applicant nor staff responded to this sub-contention.
Applicant stated that the way in which the contention was worded misled it into believing that this particular wording was simply an introduction to the quality deficiencies that Sunflower listed as examples for the ninth ground of intervention.
(Tr.
345.) (The listed examples are discussed in the next section of inis memorandum.
In the discussion of this contention, interve-nor explained at the hearing that the listed examples really are separate contentions not relatad to its overall claim of lack of quality assurance.)'
With respect to the substance of the contention, Applicant stated that quality assurance incidents had occurred, as they always do on large prcjects.
They are not extraordinary.
(Tr.
346.)
Furthermore, none of the deficiencies assessed against Perry related to defects in the physical plant; all of the deficiences related to f ailure to properly implement the pcper pr ocedures and crganiza-tional requirements for quality assurance.
(Tr. 618.) Applicant assures the Board -that those prob.lems were resolvad through a com-plete restructuring of the quality assurance program, including a fourfold increase in the number of personnel involved.
(Tr. 619.)
(3)
Conclusion This contention, simplified as follows, shall be admitted as an issue:
Special Prehearing Conference:
58 ISSUE #4:
Applicant has an inadequate quality assurance program that has caused or is continuing to cause unsafe
- enstruction.
The Board shared in the confusion engendered in Applicant and. Staff concerning the scope of this multi-f aceted contention.
(Tr. 348.)
Our concern was heightened when we learned, near the conclusion of the hearing, that this contention was available in far more particularized form than Sunflower chose to make available to the Board.
Sunflower's attorney admitted that he had petitioned United States Senator John Glenn for the cessation of all licensirig of nuclear reactors and that he had used the deficiency reports in support of the petition.
(Tr. 621-626.)
The f act that Sunflower possessed f ar more detailed information than it presented to the Board has a bearing on whether it ca,n show cause for f ailure to comply with the Board's order to r
particularize this contention 15 days prior to the Conference.
Under these circumstances, we have decided to treat this particular contention differently and to prohibit Sunflower from further particularizing its contention in t,he course of the Conference.
However, we have reexamined the language used by petitioner in its ground for intervention. Although we were confused because the introductory sentences were combined with the specific examples that followed, we now find that the wording of the contention indi-cated that the listed examples were not the only problem alleged by intervenors.
Indeed, Sunflower referred specifically to "the Com-mission's own inspection reports" and alleged Applicant's general inability to comply with its Quality Assurance Program.
This should
Special Prehearing Conference:
59 have alerted Applicant and Staff to consult with quality assurance personnel and to review the inspectic, reports to ascertain further what was being alleged.
(Specificity factor (2).)
Close reading of the predicate to the additional, listed deficienties also indicates that the passage should not have been misleading. The list is introduced as "the folloaing but bv no means the only' deficiencies."
Of course, merely interpreting '.ne allegation does not con-clude our determination of its admissibility.
This is particularly so because of the possible adverse safety effect of the treatment of this allegation in-this proceeding.
An allegation of a deficient quality assurance program has the inherent danger that it can interfere with the efficient opera-tion of the very program it questions, both at this plant and at others.
A good, working quality assurance program identifies deficiencies for correction.
If deficiencies are reported the system is working; and intervenor cannot fashion an admissible contention merely by filing deficiency reports without further l
explanation. Otherwise, we would create an adverse incentive for reporting deficiencies; and this incentive could seriously impact plant safety.
However, the allegations in this case do not stem solely from routine quality assurance reports.
Perry's problems were serious enough to stop work and to require reorganization of its entire quality assurance program.
Under these circumstances, adverse effects on quality assurance programs must be accepted l
l l
Special Prehearing Conference:
60 because of our primary responsiollity to resolve contentions about plant safety.
Applicant's response concerning the complete correction of all deficenties is insufficient assurance.
We carefully read the letter from William J. Dircks, Acting Director for Operations of the Commissicn, to Senator John Glenn and we find that less is resolved by this letter than does Applicant.
In particular, Mr. Dircks confirms Sunflower's allegation that an immediate action letter was issued to Perry for "significant site construction practices..
in January and early February 1978." Dirks's letter also stated that "Our Region Ill office instituted an augmented inspection pro-g r am... to assure that the construction which had been completed under the previous program was acceptable."
However, the Dirks letter does not state findings from that
" augmented inspection program" and consequently leaves Sunflower and the Board without any way of determining the impact of the quality assurance deficiencies on plant safety.
We cannot tell at this time i
whether there may be serious c.onstruction deficiencies. Addition-ally, there is insufficient basis for us to conclude that the reor-ganization effected by Perry was adequate to cure the problen that had existed.
We find this contention to be admissable as an issue be-t l
cause of each of the specificity factors other than (4).
- However, in rewordin'g the contention we have introduced the requirement that any quality assurance deficiency must be linked to a construction deficiency.
That is, intervenors must provide us with a reason to l
Special P ehearing Conference: 61 believe that quality assurance deficiencits have led to some safety defect in Perry.
H.
Nozzle Cracking Contention (1) The Contention l
l Sunfl.ower alleged that General Electric boiling water reactors have developed cracking at the primary coolant nozzles, resulting in an ongoing investigation of these reactors. At the hearing, Sunflower could not expand on this contention. At that point, the Chairman stated that Applicant had cited 5.3.3.1.4.5 of the FSAR, which cited General Electric reports that w'ere said to have fully responded to this problem.
However, Sunflower's attorney stated that he had not read that part of the FSAR.
(Tr. 351-352.)
\\
(2)
Conclusion Intervenor's inability to comnent on the cited portion of the FSAR is fatal to its contention. (Factor (1).)
A contention 1
need not be admitted just because an intervenor has become aware of a general problen relating to a particular kind of reactor.
A l
contention must be sufficiently specific to show why a particular l
l portion of the FSAR is deficient and to indicate some reason or authority in support of the asserted deficiency.
Unless intervenor can satisfy the requirement of specificity, there is little reason s
to expect that it can contribute to the resolution of the particular prcblem.
To the extent that there are unresolved generic problems related to nozzle cracking, the public interest will not go l
4
Special Pref
.ng Conference:
62 unprotectec.
ataff, with possible oversight from the Board, will review those issues. However, when intervenor is unable to relate its contention to any specific occurrences at Perry and cannot respond to a section of the FSAR cited in a required filing, the specificity f actors have not been satisfied and the contention should not be admitted.
a I.
Geologic Fault Contention (1) The Contentions Sunflower contends that Perry stands on a geologic fault and "has not been built to earthquake standards." At the Confer-ence, Sunflower suggested that it was appropriate to relitigate this issue, which was extensively litigated in the construction permit stage, because a " mild tremor" had occurred in the general area.
(Tr. 353.)
Under questioning from the Board, Sunflower admitted that it was not alleging that the quake had exceeded the design spe-cifications for Perry or that a fault on the site had become active during the tremor.
t OCRE' contends that the previous litigation concerning the fault on the Perry site was tainted because the investigation on which the findings were based was conducted by Applicant, which had a financial interest in the outcome of the proceedings.
In addi-I tion, OCRE mentioned that a second fault (tunnel fault), which was discovered while a construction tunnel was being built, starts at the tunnel and extends under Lake Erie.
(Tr. 360; see also Tr.
3C1 l
concerning a possible 22 inch slip of the strata.)
-" r e
Special Prehearing Conference: 63 (2)
Argumen;s Against the Contentions Applicant argued that the tremor recently felt in the area had a Modific. Mercalli intensity rating of two to three and was centered. the Cincinnati-Louisville area.
S nce the plant was design d for a quake with a Modified M.ercalli intensity rating of six to seven, the occurrence of this weak, distint tremor is no ground for reconsidering fully litigated seismic issues.
(Tr. 362.)
On the other hand, Applicant admitted that the ttnnel fault was a new issue.
In its brief, Applicant stated that seismic issues were fully discussed in FSAR 6 2.5,3.2,3.7, and 3.10.
At the conference, it stated that it had conducted a seismic investigation of the tunnel fault and that the results of the investigation are fully reported in the FSAR.
(Tr. 362.)
(3)
Conclusion After reviewing the specificit'y' factore., we con'.lude that this contention should not be admitted into this proceeding at this i
time.
The significance af a geologic fault was fully litigated during the construction permit stage of this proceedin'g.
At that stage, both the Licensing Board and the Appeal Board concluded that r
l l
the. fault was of glacial origin and that it did not pose any threat to the safety of the power reactor.
The exis*ence of a distant mild l
tremor provides no ground for reopening that question or for ques-
Special Prehearing Conference: 64 tioning the safety of the Perry reactor, which is designed to with-stand a far stronger quake.
The nature of the " tunnel fault" has, on the other hand, not yet been litigated.
If intervenors had some specific reason for finding the analysis in the FSAR to be defective, this would be an issue not barred by previous litigation.
However, Applicant cited its' FSAR in its answer and -intervenors have not shown any reason to believe that the Applicant's answer is incomplete. Had intervenor presented an expert opinion that this fault could become active, then the issue might have been accepted as a valid contention.
How-ever, at the present time intervenor has not provided any reason or authority to provide a basis for the admissicn of this contention.
The specificity factors involved in rejecting the con-tention concerning the turnel fault are sections (1), (2), and (3).-
The contention concerning the preexisting fault and the tremor was rejected primarily because of factor (4).
J. Asbestos Contention Sunflower contends that. asbestos, used by the plant in cooling towers, will flake, causing asbestos to leak into the air and otherwise interfering with the safe operation of the clant.
However, Applicant responded in its brief that this was a fully litigated issue; and Sunflower had no response.
(Tr. 364.)
Consequently, this contention is found to have been previously adjudicated and is not admitted as an issue.
Special Prehearing Conference: 65 K. High Water Table Contention Since Sunflower had no response to Applicant's statement that this issue was fully litigated (Tr. 365), this contention is found to have been previously adjudicated and is not admitted as an issue.
L.
Davis-Besse Contertion Sunflower had contended that Cleveland Electric Illumina-ting Company (CEI) had failed to operate the Davis-Besse reactor properly. CEI, which the Applicant, stated that it is not the oper-ator of the Davis-Besse reactor.
At the conference, Sunflower dropped this contention.
(Tr.
365.)
Consequently, it is not admitted as an issue.
s M.
Decommissioning Plan Contention This contention has been limited to an assertion that Applicant has not satisfactorily explained what will happen to Perry
- once its useful life has expired.
(Tr. 371-372.)
Applicant con-tends that the regulations require the filing of a decommissioning plan prior to decommissioning but that no such plan is required as a condition of the issuance of an operating license.
See 10 CFR l
50.34(b).
Applicant also contends that this allegation is the sub-ject of an Advance Notice of Proposed Rulemaking on Decommissioning Criteria for Nuclecr Facilities. 43 Fed. Reg. 10370.
It argues l
l
Special Prehearing Conference: 66 that the notice, including a statement of the questions addressed, indicates that this subject is exclusively the subject of rulemaking r
and ought not to be considered in this proceeding.
Although it is possible that an applicant for an operating licease may need to address some facets of the decommissioning pro-cess in its application, we need not decide that issue.
Sunflower's contention is very general.
It states that Applicant has not ad-equately addressed the decomnissioning process, but it provides no basis for a concern that Perry will not be safely decommissioned.
The regulations require applicant to show its financial responsibility for accomplishing the decommissioning process.
This is in itself some measure of protection for the public.
Sunflower has not specified why this is not sufficient protection et the oper-ating licensing stage.
Consequently, it fails to meet factor (2) ard on balance has not satisfied the specificity factors.
We find that this contention is not admissible as an issue in this proceeding.
fl.
Final Safety Testing Contention (1)~ The Contentions Sunflower alleges that Perry will use a GE BWR/6 reactor and that it will therefore be a prototype plant.
As a prototype plant, Sunflower argues that Perry must assure the public of its safety by performing a variety of tests, including: tests of core spray distributions, a full scale 30 degree sector steam test, a core spray and core flooding heat transfer effectiveness test, a hm
Special Prehearing Conference:
67 test of the pressure suppression design of the containment structure i
and a critical heat flux test.
At the Conference, intervenor speci-fied that the contention relates to 1.5.1.2 of the Perry FSAR.
(Tr. 373.)
(2) Arguments Against the Contentions Applicant's brief argues that all the suggested tests re-late to the emergency core cooling systems of the Perry units and that Applicant has met the acceptance criteria in 10 CFR @50.46 and Appendix K to Part 50.
Applicant interpreted this contention as an asserticn that compliance with Appendix K was insufficient.
It therefore argued that the contention constituted a challenge to the regulations.
At the conference, Applicant read into the record portions of the cited section of the FSAR. (Tr. 374-375.) However, Applicant was unable to respond to a Board questien concerning whether the tests named by the Intervenors were in fact required to be performed
~
in order to meet Appendix K requirements for " appropriate experimental data."
(Tr. 379-380.)
Furthermore, an additional
~
Board question elicited the information that there are no other BWR 6 plants currently licensed to operate in the United States.
(Tr.
380.)
Appl ic ant. also stated that testing of core spray and core flooding heat tri.nsfer effectiveness has been accomplished, citing the same sections of the FSAR cited by the intervenors.
In the course of the citation, Applicant mentioned three licensing topical
,--n
Special Prehearing Conference:
68 eports in which the results of these tests were reported. These citations were said to respond to the first and third types of tests called for by intervenors.
(Tr.381-382.)
Staff indicated that 1.5.1.4 of the FSAR shows that test-ing of the performance characteristics of the Mark III containment has been ccmpleted and reported in a licensing topical report.
(Tr.
386.)
Staff also reads from the FSAR that critical heat flux
. testing has been completed.
(Tr. 387; FSAR 1.5.1.5.)
(3)
Conclusions Four of the five tests which Sunflower seeks to have per-formed have been performed according to the sections of the FSAR from which Sunflower drew its contention.
That the Board was required to read in detail the very materials on which Sunflower relies is a waste of the Board's time. Furthermore, it is the kind of error which Sunflower made elsewhere in its filings and which interf'eres with the confidence which the Board wishes to be able to place in the f' ::.:s of each of the parties.
On the other hand, we conclude that the following issue should be admitted:
ISSUE #4:
The safety of App *licant's emergency core cooling system has not been demonstrated with appropriate experi-mental data because a full scale 30 degree sector steam test has not been performed.
Applicant has no good answer concerning the need for a full scale 30 degree sector steam test, and the need to perform this test prior to licensing is admitted as Issue #4. This contention meets spec-ificity factors (1) and (2) and it has no demonstrated shortcomings.
Special Prehearing Conference: 69 The authority for the need for this test is Applicant's own FSAR. 51.54.1.2 states that General Electric's program to study core spray distributions "will be confirmed ~by a full scale 30*
sector steam test." Furthermore, that section cites an unidentified Commission authority for the proposition that the overall method, which apparently' includes the promised test, is an acceptable method.
(See also Tr. 375-376.)
In the absence of any showing to the contrary by Applicant, this particular test appears to be required by Appendix K, Part I, 506, which requires that " convective heat transfer shall be calculated using coefficients based on appropriate experimental data." Hence, Sunflower's contention is not a challenge to Appendix K; and there is little reason to question the degree of specificity of this contention, which relies on a detailed portion of s
Applicant's own FSAR.
0.
Scram Discharge Volume Contention This contention was developed by 0CRE as its 13th conten-tion, which cited 'the April 7,1981 report to the Commissioners by Carlyle Michelson, NUREG 0785, resulting from an investigation into the June 28, 1980 partial scram f ailurt at the Brown's Ferry, Unit 3, nuclear Dower plant.
That report pointed out that a pipe break 4
in the scram dicharge volume could lead to an unrecoverable loss of coolant accident.
The admissibility of the contention is conceded both by Applicant and Staff, and it shall be admitted ts an issue, as follows:
Special Prehearing Conference:
70 ISSUE #5:
Applicant has not demonstrated the safety of its reactor from an unrecoverable loss of coolant accident, which could occur from a pipe break in the scram discharge vol ume.
See NUREG 0785.
In the course of the conference, Sunflower was unable to show how its 12th ground of intervention differed from OCRE's contention.
Consequently, its 12th ground shall be considered to be included within Issue #5.
P.
Scram System Contention (1) The Contention Sunflower alleges that Perry's GE-built scram system is ineffective and that modifications have been ordered by the NRC.
It demands that licensing not be permitted until the scram system com-plies with NRC regulations.
At the conference, Sunflower asserted that its contention rested on the loss of' fluid testing program
~
(LOFT), being conducted at Idaho Falls testing f acility.
(Tr.392.)
Sunflower further stated:
l l
It is my understanding, limited as that might be, that when a scram occurs that there is a triggering of the ECCS sys-tem, that the ECCS tests,.the LOFT tests... are at least in part a computer simulated series of tests of ECCS relia-l bility which have been taking place at Idaho Falls since l
approximatcly December of 1978; and that the contention of l
the intervenor is that the... relationship between the l
scram and the ECCS at the Perry units is such that the core cooling system may not operate reliably.
(Tr. 394-395.)
l l
(2) Arguments Against the Contention Applicant argues that it cannot understand what is being
?
l
Special Prehearing Conference:
71 alleged.
It complains that intervenors have not identified aspects of current regulations that are not being met and has not specified how the scram system at Perry f ails to meet those regulatory requirements. At the hearing, Applicant responded to intervenor's comments by stating that it did not understand what intervenor was saying and that a scram does not trip the emergency core cooling system (ECCS).
Staff agreed with Applicant.
(3)
Conclusion This contention fails to notify Applicant of a deficiency in its scram system and, af ter consideration of the specificity fac-tors, especially factor (2), the contention is not admitted as an issue.
While this contention might be interpreted to refer to scram system deficiencies uncovered at Brown's Ferry, Sunflower does not msntion Brown's Ferry and does not question the adequacy of the new requirements the Commission instituted after Brown's Ferry.
At the confe, ence, Sunflower was informed that this contention might not be admitted unless it could specify a particular defect in the scram discharge system or in the ECC5.
However, it could not do so.
l (Tr. 397.) Certainly, an intervenor wishing to introduce an issue into a hearing and thereby to parallel the review already being conducted by staff should have a greater degree of knowledge about the allegad, deficiency.
4 n.-
7
Special Prehearing Conferer.ce:
72 Q. Airplane Crash Contention (1)
The Contention Sunflower alleged that the FSAR's analysis of airplane crash probabilities is incorrect because of projected air traffic expansion at a local airport.
At the confer.ence, Sunflower explained that Lost Nation, a business airport, is reported in the FSAR as planning an expansion.
Sunflower said that the FSAR did not use the planned expansion as a basis for calculating ae probabili-ties of a crash.
(Tr. 398-399 ) Sunflower also stated that Lost Nation has 70,000 flights per year.
(Tr.t04.)
It alleged that the Concord airport is near the plant tut that "no statements in the FSAR were made" relative to it.
(ISid.)
h' hen asked to comnent on the appropriateness of the Staff's guidelines for calculating the threshhold below which risk from Lost Natidn might not have to be calculated, Sunflower argued that it should be permitted to make that argument at the evidentiary hearing rather than at this early stage of the proceedings.
(Tr. 403-410.)
(See subsection (2), below, for a statement of that staff guide-line.)
(2) Arguments Against the Contentions Applicant contends that FSAR 2.2.2.5 (volume 1) accurately discusses the air traffic considerations for local airports.
Fur-thermore, it alleges that those considerations are correctly reflec-ted in FSAR 3.5.1.6 (volume 6), which complies with the Standard Review Plan for " Aircraft Hazards."
(Tr.400,401-4n2.)
-n.
Special Prehearing Conference:
73 Lost Nation airport is stated to be 15 miles from Perry.
According to the Standard Review Plan, risk associated with that airport would be included in overall risk assessment only if the number of movements at the airport exceed 1000 x D2 (the dis-tance in miles [15] squared).
Thus, for the number of movements at Lost Nation to matter they vould need to amount to 1000 x 225, or
. 225,000 per year.
(Tr. 406-408~.) That would represent more than three times the current number of movements per year. (Tr. 408.)
(We note that Sunflower may have been in error in stating that there were 75,000 " flights" per year since its data were drawn from the FSAR, which states that there are 75,000 movements per year, and there apparently can be more than one movement per flight.)
In addition, Applicant argues that the probability of air crash at Perry is far less than required.
The probability of crash is calculated to be 6.21 x 10-7 (Tr. 402.)
staff explained
-6 that the standard which is applied is 10 (Tr. 403.) This means that the risk from air crash could incr~ ease by about 50 per-cent and sti.ll meet Staff's standards.
(3)
Conclusion Although this contention seems specific because it is de-rived from the FSAR and mentions specific airports and numbers of flights, this specificity is chimerical.
It fails to meet the test of the specificity factors.
It is particularly deficient in com-plying with factor (5).
Special Prehearing Conference:
74 Sunflower cited the FSAR in support of the proposition that air traff1t at Lost Nation would grow.
However, it does not provide a basis for estimating the extent of the growth.
Since Lost Nation has been conceded to be 15 miles from Perry, the amount of growth would have to be very great to have any impact on the calculation of risk, particularly since there is no allegation that there are
'. plans for any physical expansion of the airport. There would still need to be more than three times as many " movements" before there would be any impact on the risk calculation.
Even at that point, in order to affect the overall risk calculation, there would need to be,
enough additional flights to increase the overall risk to Perry by over 50 percent.
Sunflower has not provided any basis for expecting such an increase.
In the course of the conference, Sunficwer indicated that it might like to challenge the staff guidelines regarding risk.
However, there was nothing in its written contention suggesting any challenge to the guidelines and there was noth'ing said at the conference to suggest that Sunflower has, at the present time, any basis for challenging those guidelin'es.
Consequently, we find that even if Sunflower's factual allegations are accepted in their l
entirety, they have no implications for this proceeding and this l
contention is not admissible as an issue.
l R.
ATWS Contention l
l Sunflower's fifteenth gro'ur.d of intervention was:
The applicant should be required to provide a redundant and diverse automatic shutdown system to mitigate the consge-quences of anticipated transients without scram.
The FSA3 l
Special Prehearing Co~nference:
75 indicates that applicant is not sufficiently protected against ATWS.
It is now conceded that about 20 transients per year are typical of new reactors with about 6 tran-sients per year typical af ter several years.
Applicant's protection from ATWS is currently insufficient.
[ Emphasis added.]
We have decided to admit a portion of this contention, as follows:
ISSUE #6:
Applicant should install an automated standby liquid control system to mitigate the consequences of an anticipated transient without scram.
At the Conference, the Board attempted to ascertain what part of the FSAR stated that there was insufficient protection against ATWS.
It also attempted to find out who concedes that 20 transients per year are typical of new reactors.
However, these efforts were to no avail.
(Tr. 414-416.)
Instead, the Board was sgiven additional " data" that in each of the years 1978 to 1980 there have been over 2,300 anticipated transients without scram.
(Tr.
416.)
In view of the potentially serious nature of an ATWS event, these data seem exaggerated.
Indeed, further questioning indicated that Sunflower was making no distinction between serious ATWS events (of which there have been none) and the many small malfunctions cr mistakes reported on license event reports each year.
(Tr. 417-418.)
It seems to us unlikely that a group that appears to know as little about ATWS as Sunflower could knowingly raise a substan-tial safety matter with respect to that long-recognized problem.
However, the emphasized portion of Sunflower's contention raises an important question about which Applicar.t currently seems undecided.
Special Prehearing Conference:
76 On page 418 of the transcript Applicant said that Perry will have a standby liquid control system that will be automated.
- Later, Applicant corrected this impression and said it was not yet committed to an automated system at present but probably would be eventually.
(Tr. 436-437.) We note that such a systen is one form of " redundant and diverse automatic shutdown system," mentioned in the :ont'entions. We note that the Staff has recommended an automated system as one of several requirements to aid in dealing with ATWS in GE BWRs and that the recommendatior, was made more than two years ago.
(PUREG-0460, Vol. 4,) Anticipated Transients Without Scram for Light Water Reactors at p. 21).
In view of the potential importance of the ATWS problem and the apparently undecided state of the Applicant's approach to ATWS we have decided that Sunflower's contention should be interpreted to raise this narrow point. The specificity f actors relied on are (2),
(3) (here Applicant has supplied the factual basis) and (6). We ha"e decidcJ that the remainder of this contention is not a'missible
, as an issue.
Factor (3) is inost crucial.to the refusal to admit portions of the contention.
5.
Fast Flaming Contention The contention that Perry's electrical wiring is suscep-tible to f ast fl aming was withdrawn voluntarily and shall not be an issue in this proceeding. (Tr. 418.)
Special Prehearing Conference:
77 T.
Strength cf Containment Contention (1) The Contention Sunflower alleged that, "It has not been established that the Mark III containment structure accounts for buckling."
It also contends that there are dynamic and static loads which the shell must bear but which 1-is not designed to withstand.
It states that "the final testimony on the structure has not been completed."
At the hearing, Sunflower could not specify the dynamic and static loads it was referring to.
(Tr. 419-420.)
(2) Arguments Against the Contention In its pretrial brief, Applicant objected that it did not know what dynamic and stLtic loads intervenor was referring to and it cited 3.8.2.4 of the FSAR as accounting for buckling.
At the
,, conference, Applicant admitted that it had not finally tested its containment because cons'.ruction has not been completed.
Applicant also asserts that issues concerning testing of a plant should be admitted only if there is some basis to suspect that there is something wrong or that there is some cause for concern.
(Tr. 427.)
(3)
Conclusion This contention is not admissible as an issue.
Applicant is disadvantaged by the lack of specificity becau.e it does not know what loads are being alleged so it cannot respr a Pserning the
. (Factor (2).)
ability of the containment to withstand t's
Special Prehearing Conference:
78 Nor has intervenor responded to Applicant's citation to its FSAR (Factor (1).)
The portion of Sunflower's contention concerning final tests of the shell require", further consideration.
The problem with this contention is that it is correct in stating that a test eich i.=ct be done1has not been done; however, if Sunflower has its conter. tion admitted oa that ground alone, then any intervenor could have an issue admitted concerning every test which must later be performed.
We are unwilling to permit challenges concerning unper; formed tests to go as f ar as Sunflower suggests.
It cannot chal-lenge Parry for nct performing an unspecified test, whose safety im-portance is impossible to judge.
Although we are sympathetic to the
. plight of intervenors who must consider contentions now about things that are yet to happen in the future, we believe contentions as to future events need be admitted only on highly important matterr.
It is for that reason that we admitted the emergency planning conten-tion, whim is an allegation that an explicit regulatory requirement has not been r:$et.
But we would not extend this same leniency to every contention regarding an uncompleted test.
Under the circumstances, an evaluation of the specificity f actors requires us to conclude that no sufficient basis has been established for this contention.
Should intervenors p'rovide a more specific basis for suspecting the adequacy of the containment or the appropriateness of the planned tests, then they would be permitted to attempt to show cause for the late admission of such a
Special Prehearing Conference:
79 contention.
As time passes, it will of course become increasingly more difficult to show cause.
U.
Control Rod Ejection and Cooling Lake Contentions These contentions were withdrawn and shall not be admitted as issues.
V.
Blockage of ECCS Pump Suction Line Strainers Sunflower contends that during a loss of coolant accident
" thermal shielding and insulation may be ripped off or otherwise released or separated from in [ sic] containment building piping where it would block off the drain of water, preventing it from being recirculated for cooling from the sump pwnp."
- However, Applicant represented that it has no sump pump which could be blocked off.
Furthermore, Apalicant cited FSAR @6.2.2.2 as explaining why insulation is very unlikely to block the strainers in the ECCS suction lines.
intervenor had na res~ponse to these factual assertions.
(Tr. 432-434.)
Consequently, this contention shall not be admitted as an issue.
In particular, Sunflcwer f ailed to show how its contention related to a specific cited portion of the FSAR.
(Factor [1].)
W.,
Diesel Generator Contentions (1) The Contentions Sunflower alleges that:
Special Prehearing Conference: 80 The diesel generator which powers components in the :iigh pressure core spray system and the diesel generators which power the rest of the plant are not reliable in automatic start-up and operation because they are identical to generators that have failed. NUREG/CR-0660.
(See Tr. 443 concerning the correct identification of the cited doc ument. ) At the hearing, Sunflower asserted that at least one of Perry's diesel gener
_rs is " operating on standby continually and
., that [f ailure to lubricate]...the shaft bearings would cause a failure of the generator."
(Tr. 438-439.)
OCRE's contention concerning diesel generators is similar, alleging an unspecified violation of 10 CFR Part 50, Appendix A, criterion 17, " Electric Power Systems."
However, OCRE specifically requested that there be three independent diesel generating systems with at least two different suppliers / manufacturers for the units.
~
(2) Arguments Against the Contentions Applicant stated in its brief that it has three diesel generators for, each plant and that they are manuf actured by two
- different man.uf acturers. Applicant also cites in its brief, FSAR 58.3 and argues that:
Nowhere do Petitioners explain how the information in
[NUREG/CR-0660]..., which predates the FSAR, negates the information submitted in the FSAR.
General reference to a 250- plus page document cannot be considered a basis which is " set forth with reasonable specificity."
(3)
Conclusion Intervenors have not provided a basis for believing that
Special Prehearing Conference:
81 the Perry system for on-site generation of power is unreliable.
The citation of NUREG/CR-0660, which was rrepared before the FSAR, is not helpful because intervenors have not shown any deficiency in the FSAR related to that NUREG.
Intervenors did not respond at all to Applicant's citation of_ a portion of the FSAR.
They were ignorant of even the most elementary aspects of the system about which they are concerned.
Sunflower did not know how many generators Perry has.
(Tr.
435,437-440.)
It could not explain what it meant in its contention by saying that Perry's diesel generators are " identical to generators that have failed."
(Tr. 435. )
It stated, without a reference, and it repeated in response to a question, that Perry's generators "are running on a standby basis." (Tr. 437.) And when
,, Applicant denied that any of its generators would be kept running, it did not not offer any response.
For its part, OCRE was unable to comment about whether Applicant had already implemented the safety measures it requested.
j l
(Tr. 441.)
Even af ter OCRE's representative had consulted with Mr.
f Jeffrey Alexander at the suggestion of the Board (Tr. 441-442, 534),
l she was unable to comment on this issue.
(Tr. 452-654 shows no such comment.)
OCRE did assert, after consultation with Mr. Alexander, that it vtanted " assurances that the generators have not been exposed to the elements outside, the rain, and have not been damaged in any vtay before being used."
(Tr. 558.)
But this was an entirely new assertion that was not related to the filed contention and the
Special Prehearing Conference:
82 Board's liberality in permitting clarification of contentions does not extend to entirely unrelated statements such as this.
Under these circumstances, intervenors are s'orely deficient with respect to specificity factors (1), (2) and (3) and there is insufficient reason to admit the issue pursuant to factor (6).
X.
Clam Biofouling Contention (1) The Contention OCRE alleges that Asiatic clams, corbicula fluminea, have dirplayed strong proclivities to foul steam-generating plants like Perry 1 and 2.
It cites L. B. Goss, et al., " Control Studies en Corbicula for Steam Generating Plants," First International Corbicula Symposium, Tex. Christian U. at 139 (1977).
It then s asserts, without further citation to authority, that, "There is at least a fifty percent chance that Lake Erie is suitable for co_rbicula."
OCRE fears that clam fouling could "cause partial blockage of intake vessels and condensers, leading to a loss of coolant accident."
It asserts that chemical control may not be environ-mentally acceptable and tnat Applicant should meet the operational and financial requirements for preventing or controlling fouling.
(2)
Arguments Against the Contention Applicant asserts that the cited Goss study only speaks to the presence of Asiatic clams in the Tennessee Valley region.
It neither mentions Lake Erie nor predicts where they might occur.
The contention alleges
Special Prehearing Conference:
83 that '[t]here is at least a fif ty percent chance that Lake Erie is suitable for corbicula", but provides no basis for this assertion.
In addition, at the conference, Applicant noted that OCRE had been asked what kind of research its expert had conducted as a basis for his conclusions; and OCRE chose to rely on the principles it asserts are found in Allens Creek rather than to respond to the question.
(Tr. 547; see also Tr. 445-446 [ request for information],
Tr. 538-541 [ refusal to supply requested information] and Tr. 552
[ inability to supply Mr. Alexander's resume].)
Applicant also stated that in response to NRC Bulletin 81-03, its environmental consultant is looking again to reassure the company that these organisms are not found near Perry; but they never have been found in Lake Erie, where there are other power
, plants creating environmental conditions in which they presumabl
-7 would thrive were they present.
(Tr. 548, 549.) Furthermore, one can look for them; as Applicant allegedly has done and has recorded in its Environmental Report.
(Tr. 548.)
There is, Applicant asserts, no possibility that clams could enter the closed cycle cooling system and cause a loss of coolant accident.
Intake and discharge tunnels are stated to be 10 feet in diameter.
Even were clams to enter, they could not reason-ably be expected to close up so large a diameter.
(Tr.550,558.)
(3)
Conclusion We conclude that this contention should be admitted as an issue, as follows:
Special Prehearing Conference: 84 ISSUE #7:
Applicant has not demonstrated that Asictic clams, corbicula fluminea, will not foul its safety-related cooling systems and it has not demonstrated how it could adequately cope with these clams should they be present."
The B,oard is displeased by the uncooperative attitude of OCRE with respect to this issue, but it has decided that it is not yet appropriate to impose sanctions, such as adverse factual
. findings, pursuant to its general authority. See 10 CFR 2.718.
However, a future failure to supply requested information can result in a decision that OCRE is wrong on that issue and that the underlying f acts are adverse to its position.
The principal issue concerning the admissibility of the centention is whether there is a basis for expecting these clams to appear in Lake Ecie.
None of the parties has asserted that they
- have been found there.
- However, Applicant did not persuade us that it used a biological search method that ruler out the possibility that a very small nanber of corbicula, which could become a large number, are now present in Lake Erie.
(See Tr. 545-550.)
The sole authority cited by OCRE for the likelihood of cor-bicula being present is the expert opinion of Mr. Jeffrey Alexander, who is principal representati 9 of an intervenor in this case and therefore lacks credibility as an objective witness.
In addition, Mr. Alexander refused to divulge the empirical basis for his conclu-sion or even to state the nature of the research on which the con-closion is founded.
Furthermore, his status as a marine biologist and expert en clams rests en assurances given by another 0CRE repre-sentative, Ms. Hiatt, wi.o told the panel that he was unable to at-
Special Prehearing C6nference:
85 tend the conference because he was taking examinations for his mas-ters' degree.
lhere is little doubt in our mind that we could reject this contention for its lack of basis.
Mcwever, we take official notice of a letter of May 22, 1981, from Mr. Richard P. Crouse of Toledo Edison to Mr. James G. Keppler, Regional Director of Region III of the Nuclear Regulatory Commission.
In that letter, Mr. Crouse responded to IE Bulletin No. 81-03, dealing with corbicula.. Toledo Edison's response was that:
Corbicula is a fresh water clam that has recently been found in Lake Erie - the source and receiving water for Davis-Besse.
Late last f all and again this spring, on May 14, 1981, field investigators from Detroit Edison discovered substantial numbers of Corbicula at the mouth of the overflow canal at the coal-fired Monroe Power Plant, located on the western shore of Lake Erie.
The density of the clams was about 15 individuals per square foot.
~
Attachment at 1.
Under the circumstances, we must admit OCRE's contention.
On the other hand, OCRE did not respona to Applicants' statements 1
that clams cannot be found in the core or primary cooling system; and they are not known to hav6 been found in such systems, i
Consequently, it does not seem credible to the Board that clam biofouling could cause a loss of coolant accident, in the accepted l
l technical sense of that term.
We interpret the contention to reiate to the likelihood of corbicula fouling the auxiliary cooling systems.
Since some of these systems are required for safety, the presence of corbicula is potentially a problem and one that I
Special Prehearing Conference:
86 Applicant will have to account for unless it can prove that these clams are not found in Lake Erie.
Y.
Steam injury Contention (1)
The Contention OCRE cites an accident at Sequoia Unit 2, in which five workers were burned while testing a valve on a steam line and it asserts that Applicant must show "that technicians and maintenance workers necessary to the safe operation of the plant are not injured by escaping stea.n."
At the conference, OCRE added that "even if
[ injured] technicians are not necessarily nuclear operators...,
it may lead to serious consequences within the plant."(Tr. 560.)
(2)
Arguments Against the Contention s
Applicant asserts that the Sequoia accident occurred at a Westinghouse-designed pressurized water reactor and that there is no reason to believe it could happen at a GE-designed boiling water reactor.
Furthermore, the injured maintenance workers were not reactor operators and "there is no basis presented for any safety significance of the Sequoyah injuries or their applicability to Perry."
(3)
Conclusion This contention shall ne' be admitted as an issue. OCRE has not shown why valve maintenance would be a problem at this particular plant (specificity factor (3)) and, even if its
Special Prehearing Conference: 87 contention is accepted as true it has not provided a basis for concluding that an accident of this type would compromise the safe operation of the plant. (Factor (5).) Hence, OCRE has raised an issue concerning the safety of workers.
This issue is relevant to the concerns of the Occupational Safety and Health Administration of the United States Governmcnt.
However, OCRE has not demonstrated why this potentially important worker-safety issue also is an issue in Commission proceedings.
Z.
Pressure Vessel Cracking (1)
The Contention OCRE contends that cracks in the pressure vessel would be very difficult to detect or repair.
ItcitesNature,vol.283ay84
..(February 28,1980).
(2)
Arguments Against the Contention Applicant argues that the Nature article relates to a de-bate in the House of Commons concerning a series of pressurized water reactors being considered in Great Britain.
Consequently, OCRE has not shown that there are special circumstances concerning cracking in the vessel of this particular reactor.
Applicant and staff argue that this contention cannot be admitted under the rule in Wisconsin Electric Power Company (Point Beach Nuclear Power Plant, Unit 2), ALAB-137, 6 AEC 491 (1973) and Consolidated Edison Co. of New York (Indian Point Unit No. 2), CLI-72-29, 5 AEC 20 (1972).
That rule assertedly requires a showing of special circumstances for the admissibility of pressure vessel cracking s
Special Prehearing Conference:
88 contentions.
(See Tr. 565-566.)
Applicant also said, both in its brief and at the conference, that FSAR 65.3.1.6 contains Applicant's in-service inspection program, which it assert's is in compli~ance with the regul,ations.
(Tr. 566.)
Hence, the contention appears to be a challenge to Commission regulations, prohibited by 10 CFR 62.758.
(3)
Conclusion This contentitq is not admitted as an issue.
Applicant cited a section of its -SAR and OCRE did not show why that reference was not dispositive.
(Specificity factor (1).) The centention also does not specify any particular deficiency in Perry and consequently does not fulfill specificity factor (2).
Furthermore, OCRE has not demonstrated the presence of "special circumstances" under the Indian Point mie, an adjudicatory principle binding on us in addition to the requirement that a basis for a contention be specified.
If that is not already eriough reason to reject this contention as an issue, we also agree witi.1pplicant that it appears to constitute a challenge to Coamission regulations concerning l
reactor vessel integrity.
We conclude only that it appears to constitute a challenge to the regulations because it is not
- ufficiently specific to be sure, i
AA. Reactor Pressure Vessel Machining Defects Contention OCRE contends that Applicant must conduct further testing i
I
Special Prehearing Conference:
89 of the reactor pressure vessel prior to the criticality stage be-cause of defects whicn occurred during machining.
It cites Interim Report 50-440-148 (November 5, 1975).
Applicant said that the cited Interim Report states:
A hole for an LPRM [ local power range monitor] in-core housing (aproximately 2 inch diameter) was drilled at in-correct coordinates in the bottom head of reactor pressure vessel 1 because of an error in transferring coordinates from a drawing to an operator work sheet.
The CBI Nuclear Company system detected the deficiency and notified General Electric Company who in turn notified tha Cleveland Elec-tric Illuminating Company. At present, the CBI Nuclear Company propo fix is to install a plug in the same man-ner at the LF 1-core housings are installed.
Applicant then stated that it had filed a report that was acceptable to the Commission.
It gave a citation for the report and for the inspection report that foimd it : acceptable.
Applicant also cites the specific FSAR sec'. ions which indicate which pressure vessel -
. tests it will perform and argues that the further tests requested are provided for.
We find tnis contention to be'not admissible as an issue.
OCRE has not commented on how Applicant's solution to this problem is insufficient or on how its* proposed tests are inadequate.
(Spe-cificity factor (1).)
Furthermore. with respect to the tests Appli-cant is supposed to perform, there is insufficient specificity for applicant to know whether it is already planning to perform the same tests that are requested.
(Specificity factor (2).)
On balance, the specificity requirement is not fulfilled.
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90 i
BB.
Population Center Distance Contention
-(1) The Cont'ention
~
OCRE contends that Ferry's population center distance -is i
too short,in. light of the Rogovin report.and ti.e TMI' experience.
In f
j particular, OCRE alleges that the hypothetical fission product release was too low.
(2)
Arguments Against the t.catention i
Applicant'c brief argues that this issue was previously litigated and was in any event, controlled by 10 CFR 100.3(c),
t 100.11(a)(3) and 100.11(b), plus Technical Information Document
.14844, which is referenced in.
It argues that ti - Rogovin 100.11.
report did not recommend any alteration of-the siting *i+eria for
' reactors that' are now under coristruction and -that the TMT.adiation-i releases were far less than the dose assumptions contained in the
{
regulations.
Hence, use of the TMI releases wccid bc less conser-l vative than are existing regulations;. consequently, the TMI experi-l i
ence does not constitute new circumstances which might permit reli-tigating previously determined issues.
(See also Tr. 588-589.)
(3). Conclusion This. contention shall not be admitted as an issue.
[
Applicant analyzed this contention in i'.r written brief and I
gave its reasons for believing that neither the Rogovir. report nor i
l the TMI experi:nce provided new circumstances under which this i
previousi litigated issue could be reopened. OCRE was unabl~e-to h
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91 respond to this point.
(Tr. 590.) Consequently, it has not demonstrated grounds for reopening this issue.
(Factor (4).)
It is of course possible that OCRE intends to directly challenge I;RC regulations.
If it intends to do so, it must file a petiden pursuant to 10 CFR 2.753.
CC.
cat!DU Reactor Contention (1) The Contention OCRE a s that " Applicant should be required to operate a CANDU nuclear steam system because of its lower occupational and en-vironmental radiation doses.
AECL-5523 (1975)." At the conference, OCRE contended that this facility could be substituted for the 65 percent-complete Unit 1 and would not require its abandonment.
(2)
Arg nents Against the Contention Applicant says that OCRE has ci.ted a 1975 report and has not cited any information that w s not available during the con-struction permit stage.
Consequently, 10 CFR 9951.21, 51.23 and 51.26 prohibit consideration of this issue at the operating license stage.
Furthermore, Applicant says the proposed alternative would require abandonment of its f acility, an unreasonable alternative that I? EPA does not require to be considered.
(Tr.
593.)
Staff states that the construction permit authorized the construction of the present two unit boiling water reactor station.
It argues that an important purpose of the construction stage is to consider authorizing the construction of a particular reactor.
cN ?b
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92 Consequently, this has been litigated and nothing new has been introduced.
(Tr. 593-594.)
(3)
Conclusion This contention shall not be admitted as an issue.
At the construction stage, the principal issue for determination is the desiga of the facility.
In reliance on that decision, Applicant is expending hundreds of millions of dollars.
For that central issue to be relitigated at the operating license stage,startlingnewcircumstanceswouldneedtobedemonstrate5.
However, OCRE has not demonstrated anything new at all.
Its information was available before the construction permit stage was completed.
Applicant also is correct in pointing out that this contention would require almost complete abandonment of its facility. OCRE has n3t provided iny reason to doubt that abandon-ment of the design and construction plans, plus abandonment of com-pleted construction, would cause Applicant to suffer substantially more than a 5500 million loss. A statement that the loss will not occur by an OCRE representative with no relevant expertise is art inadequate basis to challenge this f actual assertion.
(Applicant's Brief on Contentions of Ohio Citizens for Responsible Energy, p.
23.)
Since OCRE has not provided a basis for estimating the ex-tent of the evironmental benefits accruing from shif ting to the N;DU alternative, it also has failed adequately to call into ques-h S @h
/Tr@%
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93 tion the entire NEPA balance which was struck at the construction permit stage.
(See section IV,C. of this memorandum for a full dis-cussion of what is needed to call into question the entire environ-mental balance.) (Factors (4) and (5).)
V.
DISCOVERY AND PROCEDURAL RULINGS A.
Objections to Interrogatories Discovery on admitted issues shall commence immediately, pursuant to 10 CFR s52.740 to 2.744.
As stated at the conference, parties are urged to include in interrogatories general statements of the purposes to be served by one or more of the interrogatories.
They are also expected to conduct their discovery eff iciently, pur-suant to a reasonable written plan for the orderly discovery of..
'information.
(Tr. 630-631.) The written plan shall te served on the other parties by A" gust 31, 1981.
The party that is servtc with an interrogatory shoulJ have notice concerning both the specific request and its geniral purpose.
This will permit the responding party to offer to supply substitute information if the specific requested information is not available or is believed to be privileged.
In this proceeding, no objection to an interrogtnory will be sustained unless the objector has made a good faith effort to communicate with the proponent of the interrogatory and tr discuss the probable objections. (" Required communication.")
During the re-quired communication, the parties should discuss alternative ways to comply with the request and, if necessary, the need for an extended i
l A,
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94 time in which to reply.
If a party asserts privilege for trade or commercial secrets, the parties ordinarily should negotiate a non-disclosure order so that the information may be exchanged de' spite the claim of privilege.
Informal agreements reached in these con-versations shall be binding, providing that they are not found to be contrary to the public interest and that a party files a memorandum
. of understanding within five days of the conversation and that memo-randum is not objectej to by the other allegedly egreeing party or parties.
Objections to interrogatories may be filed only if they state the date of the required communication and report with reasonable completeness the content of that communication.
If the parties have f ailed to resolve a claim of privilege through negotia-tion of a non-disclosure order, the party objecting to the inter-rogatory must submit a reasonable proposal for such an order or reasons why such an order is not appropriate.
B.
Coordination of Intervenors The Board considers it helpful to the fairness and effi-ciency of these proceedings that intervenors coordinate their efforts.
Effective coordination should conserve the scarce re-sources available to intervenors.
It also should reduce needless duplication of filings and protect Applicant and Staff from the unnecessarily resnanding to redundant requests.
In addition, the coordination process can establish an effective working relationship Y
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95 which can form the basis for coordinated strategy in responding to summary judgment motions and conducting the hearing.
Generally, the process should assist intervenors to present their argunents effectively.
At the discovery stage, intervenors should submit their in-terrogatories to the lead intervenor on an issue.
To the extent
. that there are overlapping interrogatories on the issue, the lead intervenor should communicate with the others and suggest ways of reducing unneeded redundancy.
It is the responsibility of the lead intervenor to act rapidly to determine the extent of overlaps and to discuss resolution of the overlaps with the otiier intervenors.
How-ever, the lead intervenor is not the representative of the other intervenors and has no authority to act without their consent.
Should, an intervenor insist on the inclusion of a particular inter-rogatory, that interrogatory must be included.
Our designation of lead intervenors is not conclusive.
If intervenors prefer to redesignate a lead intervenor for an issue
~
they may do so by agreement, filed with the Board.
Even it agree-ment is not possible, U,tervenors may move for a redesignation.
The designated lead intervenors shall be:
Issue #1, Todd J. Kenney; Issue #2, Sunflower; Issue #3, Sunflower; Issue #4, Sunflower; Issue #5, OCRE; Issue #6, Sunflower; Issue #7, OCRE.
s C.
Briefs on Admissibility of ATWS Contention In its Brief en Contentions, Applicant argues that a con-tention on ATWS should be excluded from this proceeding because of the effect of a proposed rulemaking on that subject.
In this in-rTVME
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96 stance, the Board has not seen the preamble to the proposed rule ao it does not know whether it is explicitly precluded from considering the issue.
However, it is unusual for there to be an explicit preclusion of issues in a preamble and Applicant is understood to be contending that the issue is barred from the proceeding regardless of explicit language in the preamble.
Consequently, we request
.' briefs from the parties to help us to decide whether Applicant is correct.
Briefs on this subject must be filed by August 12, 1981.
0RDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is this 28th day of July
., 1981 ORDERED (1)
Petitions to withdraw as parties, filed by the Grand River Winery, Jenny Steindan and Harold Stendam, are granted.
(2)
The petition to intervene filed by the Toledo Coalition for Safe Eneray is denied.
(3)
The petitions to intervene filed by Sunflower Alliance, Inc. (Sunflower), Northshore Alert, and the Ohio Citizens for Responsible Energy are granted.
1
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97 (4)
Sunflower's motion to dismiss the proceeding for la,k of jurisdiction is denied.
(5)
Sunflower's motion for a stay is denied.
(6)
The contentions filed by the intervenors are found not to be admissible unless they are included in the list of issues in paragraph (7) of this order.
(7)
The issues in
.1s proceeding are:
Issue #1:
Cleveland Electric Illuminating Company's (Applicant's) emergency plans do not provide reasonable assurance that appropriate measures can and will be taken in the event of an emergency to protect public health and safety.-
and prevent damage to property.
Issue #2:
Applicant has not demonstrated that it possesses or has reasonable assurance of obtain-ing the funds necessary to cover the estimated costs of operacion,. including the casts of reas-onably forseeable contingencies, for Perry Nuc-lear Power Plant, Units 1 and 2.
Issue #3: ' Applicant has an inadequate quality assurance program that has caused or is continuing to cause unsafe construction.
Issue #4:
The safety of Applicant's emergency core cooling system has not been demonstrated with appropriate experimental data because a full scale 30 degree sector steam test has not been performed.
Issue #5:
Applicant has not demonstrated the safety of its reactor from an unrecoverable loss of ccolant accident, which could occur from a pipe break in the scram discharge volume.
See NUREG 0785.
5
Special Prehearing Confere.nce:
98 Issue #6:
Applicant should install an automated standby. liquid control system to mitigate the consequences of an anticipated. transient without scram.
Issue #7:. Applicant has not. demonstrated that Asiatic clams, corbicula fluminea, will not foul its safety-related cooling systems and it has not demonstrated how it could adequately cope with these clams should they be present.
(8) Each. admitted issue shall be interpreted in _ light of the discussion in this memorandum.
(9) Each interrogatory or set of interrogatories shall be accompanied by a statement explaining its purpose.
(10) Parties m,ust consult -informally.and attempt to resolve problems concerning interrogatories before they file formal objections to those interrogatories.
(11) By August 31, 1981, parties shall serve on one another j
their written discovery plans.
-(12) Intervenors whom the Board has selected as lead-inter-venors for each Issue shall perform coordinating func-tions in an attempt to avoid unnecessary overlaps and resulting delays.
(13) Parties may file briefs by August 12,1981, on the effect of the proposed rulemaking on Anticipated Transients Without Scram on the admissibility of Issue
- 6.
(14) Pursuant to 10 CFR 2.751a(d) objections to this Order may be filed by a party within five (5) days after service of this order, except that the regulatory I
- sa -.
- n..
.a
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99 staff may file objections within ten (10) days af ter service.
(15) This is an interlocutory order, subject to infrequent-ly granted discretionary interlocutory review pursuant to 10 CFR 52.718(i) and 2.785(b)(1), but not appeal-able except~to the extent specified in paragraphs (16) and (17).
(16) To the extent that this Order grants petitions for leave to intervene and a request for a hearing, it is appealable to the Atomic Safety and Licensing Appeal Panel within ten (10) days after service of this order, pursuant to 10 CFR @2.614a(c).
(17) To the extent that this Order denies the petition.to intervene of the Toledo Coalition for Safe Energy, it is appealable to the Atomic Safety and Licensing Appeal Panel within ten (10) days af ter service of this order, pursuant to 10 CFR @2.614a(b).
m63 4
t Special Prehearing Conference:
100
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0 i
i s
\\
ATOMIC SAFETY AND LICENSING BOARD 1
[.
d Peter B. Bloch, Chairman i
A0MI.NISTRATIVE JUDGE Ql
[f
~
(f. Jerry /R. Klinh
.DMINISTRATIVE' JUDGE A
f Mr. Frederick on ADMINISTRATIVE E
l July 28, 1981 Bethesda, Maryland 1
l i
l I
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