ML20090C702

Nuclear Regulatory Commission Issuances for February 1984. Pages 487-554

ML20090C702
Person / Time
Issue date:	02/29/1984
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V19-N02, NUREG-750, NUREG-750-V19-N2, NUDOCS 8407130393
Download: ML20090C702 (75)

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U.S NUCLEAR REGULATORY COMMISSION 4

l 8407130393 840229 PDR NUREG 0750 R PDR

Available from NRC/GPO Sales Program Superintendent of Documents Govemment Printing Office Washington, D.C. 20402 A year's subscription consets of 12 softbound issues, 4 indexes, and 2 hardbound editions for this publication.

Single copies of this publication are eveilable from National Technical Information Service, Springfield, VA 22161 Microfiche of single copies are available from NRC/GPO Sales Program Weshington, D.C. 20666 I

4 Errors in this publication may be reported to Vicki E. Yaner, Division of i

l Technical Information and Document Control, Office of Administration, i

U.S. Nuclear Regulatory Commission, Washington, D.C. 20666 (301/492-8925)

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COMMISSIONERS Nunzio J. Palladino, Chairman Victor Gilinsky Thomas M. Roberts James K. Aseelstine Frederick M. Bemthal 4

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i Alan S. Rosenthal, Chairman, Atomic Safety and Ucensing Appeal Panel

8. Paul Cotter, Chairman, Atomic Safety and Licensing Board Panel i

l NUREG-0750 i

Vol.19, No. 2 Pages 487 554 1

NUCLEAR REGULATORY COMMISSION ISSUANCES February 1984 j

i This report includes the issuances received during the specified period from the Commission (CU), the Atomic Safety and Ucensing Appeal 9oards (ALAB), the Atomic Safety and Ucensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rufemaking (DPRM).

l The summaries and heednotes preceding the opinions reported herein are not to be deemed a part of those opinions or to have any indepen-dont legal significance.

U S. NUCL E AH REGULATORY COMMISSION s

i Prepared by the Diviolon of Technical Information and Document Control, Office of Adminlettetion, U.S. Nuclear Regulatory Commission, Washington, D.C. 20066 (301/492-8925)

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CONTENTS Issuar,ces of the Atomic Safety and Licensing Appeal Boards UNITED STATES Ul:PARTMENT OF ENERGY PROJECT M ANAGEMENT CORPORATION TENNESSEE VALLEY AUTilORITY (Clinch River Breeder Reactor Plant)

Docket 30 537-CP MEMORANDUM AND ORDER, ALAB.761, February 2 9, 19 8 4........................ 487 Issuances of the Atomic Safety and Licensing Boards CAROLINA POWER & LIGilT COMPANY (ll.B. Robinson Steam Electric Plant, Unit 2)

Docket 50 261 OLA (ASLBP No. 83 484-03.LA)

ORDER DISMISSING PROCEEDING, LBP 84 il. February 10, 19 8 4.......................... 5 3 3 TEXAS UTILITIES ELECTRIC COMPANY, er al.

(Comanche Peak Steam Electric Station, Units I and 2)

Dockets 50 445,50-446 (Application for Operating License)

MEMORANDUM AND ORDER, LBP 8410, February 8, 19 8 4........................... 509 i

WASilINGTON PUBLIC POWER SUPPLY SYSTEM (WPPSS Nuclear Project No.1)

Docket 50 460 CPA (ASLBP No. 83 485 02 CPA)

MEMORANDUM AND ORDER, LDP 84 9, February 1,1984............................

497 Issuances of Directors' Deelslens BOSTON EDISON COMPANY (Pilgrim Nuclear Power Station)

Docket 50 293 INTERIM DIRECTOR'S DECISION UNDER 10 C.F.R. 12.206, DD 84 5, February 2 7, 19 8 4.................... 54 2 111

GENERAL PUllLIC UTILITIES NUCLEAR CORPORATION (Three Mile Island Nuclear Station, Unit 2)

Docket 50-320 DIRECTOR'S DECISION UNDER 10 C.F.R. f 2'.206'.

DD-84-4, February 17, 1984,

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Atomic Safety and i

Licensing Appeal Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL Alan S. Rosenthal, Chairman I

Dr. John H. Buck, Vice Chaean Dr. W. Reed Johnson i

Thomas S. Moore 1

Christine N. KoN Gary J. Edlee Dr. Reginald L. Gotchy Howard A. Wilber I

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Cite as 19 NRC 487 (1984)

ALAB 761 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

i Gary J. Edles, Chairman Dr. W. Reed Johnson Howard A. Wilber in the Matter of Docket No. 60 637 CP UNITED STATES DEPARTMENT OF ENERGY PROJECT MANAGEMENT CORPORATION TENNESSEE VALLEY AUTHORITY (Clinch River Breeder Reactor Plant)

February 29,1984 Acting on appeals by two intervenors frorn Licensing Board actions (following termination of the Clinch River project and the Licensing Board's dismissal of the intervenors from the proceeding for a construc-tion permit (CP) for the project) that, inter alla, limited the intervenors' participation in the Limited Work Authorization (LWA) proceeding (on remand to consider issues of site redress) to giving limited appearance statements, the Appeal Board vacates the Licensing Board action limiting LWA participation and denies the remainder of the appeals.

LIMITED WORK AUTHORIZATION (LWA): AVAILAHILITY Under 10 C.F.R. I 50.10(e), an applicant for a construction permit may seek early approval of certain types of site preparation activity by requesting issuance of an LWA.

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CONSTRUCTION PERMIT PROCEEDINGS: INITI AL DECISION A licensing board is required to issue an initial decision in a case in-volving an application for a construction permit esen if the proceeding is uncontested.10 C.F.R.{ 2.104(b)(2) and (3).

LICENSING BOARDS: AUTIIORITY TO REGULATE PROCEEDINGS Licensing boards have the authority to regulate the course of a pro-ceeding and to limit an intervenor's participation to issues in which it is interested.10 C.F.R. (( 2.718. 2.714(e) and (f).

RULES OF PRACTICE: RESPONSIBILITY OF PARTIES Parties may not dart in and out of proceedings on their own terms and at their convenience and expect to enjoy the benefits of full participation without responsibilities. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691,16 NRC 897,907 (1982).

APPEARANCES Barbara A. Finamore and S. Jacob Scherr, Washington, D.C., for the appellants Natural Resources Defense Council, Inc., and the Sierra Club.

George L. Edgar and William D. Luck, Washington, D.C., for the ap.

pellees Project Management Corporation and the U.S. Depart-ment of Energy.

Sherwin E. Turk for the Nuclear Regulatory Commission staff.

MEMORANDUM AND ORDER Opinion for the Board by Messrs. Edles and Wilber:

1.

This proceeding involves a request by the joint applicants for.1 permit to construet the Clinch River breeder reactor. Under the Comminion's 488

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regulatiorn, Jn gplicant for a construction permit may seek early ap-proval of certain types of site preparation activity by requesting issuance of a limited wotA authorization (LWA).' The applicants did so in this case and, in a partial initial decision issued on February 28,1983, the Licensing Board disposed of various site suitability issues and authorized l

Issuance of the LWA.2 Intervenors Natural Resources Defense Council (NRDC) and the Sierra Club filed an appeal from the Board's decision, accompanied by a request for a stay pending appellate leview. We denied the request for stay,8 si'd appel' ate proceedings began.

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,_While the appeal was pcr. ding, the Licensing Board was moving for-ward with,the remaining construction permit phase of the proceeding.

y On June,21,1983,Nhr.Jntervenurs filed a motion with the Licensing Boed to withdraw their cetentions on the outstanding permit issues be-cause FUruledirdsaurces prohibited their continued full participation in s

the uperminh evidentiary hearings. At a confercnce with the parties held att Jyic 29, the Licensing Board granted the intervenors' request l

to sithdraW their contentions.' The Board went on to observe, however, that "it woulet appear to the Board... that the Intervenors no longer are parties to it.is proceeding... and that the Intervenors will be dismissed as parties to the tonstructiori permit proceeding."8 The intervenors did not imppeal the INrd's deciss;1. Evn'eritiary hearings in this now uncon.

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tested phasep! the procet 'ing were he'd during August 1983, and the parties thereafler submitted the upal'#cposed findings of fact and con.

I cl5ioris qf law as the final step before lisuance of the Board's initial derbion.*

' 'In October 1916.1, Consress,4eclined to' appropriate further fisuds for

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1-the Clinch River pr$'et and it bec.ime cleat that the project would soon bqi-rnhated. On November 23,9ADC filsd a motion with the Licens.

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.[ iht boa'rd seeking to re enter the proceeding,in order to raise the issue i

of the elTest of the termination of the project on that part of the case still 3

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j p.iding beforill*: Board. On the same day, the intervenors filed a

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+ > k,, 'o C r R i sa io<et I Rbil 8 17 NNC 118. la rat. er** e%Forsuon Mtmues tEsan enn twrote issuance of the LW 4 be.

L cause the (Anet esion granted it.s ##lesants an esempoon trem the requirement to obtain sa LW A Dernte t% a) f 4 work. cLl-te 23, le htC ell Il982L The esernation was shellenged 6t> court Ps the invec + 't ss.t the Commsenson's dedwi was reverted anJ remanded N.sartet AescensA e Wirate Cew-d e *.WG WJ F 2d 62) m C. Cir 1942L site peerarstion mark ment rorestd. heeeves.tecames the

's tourt sIv sne4 to grant e 4av or the Commessaen's decision rhe Commission slanfied its et teet decimon seut realiFared Hs grarrt or the esempty g ta an pronton issueJ on January $,1983. CLl 8).1, if N RC l.

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motion with us to terminate appellate proceedings, vacate the partialini-tial decision in the LWA phase of the case, and authorize revocation of 4

the LWA. On December 15, we granted the motion insofar as it request-ed termination of appellate proceedings and vacation of the LWA partial initial decision, but remanded the matter to the Licensing Board for con-i sideration of whether any conditions to ameliorate environmental im-pacts of site preparation should be imposed.7 On January 20, 1984, the Licensing Board issued an order denying NRDC's request to be readmitted to the proceeding.s The Board concluded that "[tlhe attempts of NRDC to re-intervene after deliberate-ly withdrawing all remaining contentions and terminating its status as a 4

party, are not conducive to orderly practice."' Simultaneously, the i

Board issued a 90 page Memorandum of Findings containing its analyses and conclusions regarding numerous issues in the construction permit i

proceeding.ie Lastly, the Board issued a notice in response to our remand order setting March 14,1984, as the date for a conference to dis-cuss appropriate measures for site redress from the activities conducted under the LWA. That notice authorized "former intervenors" such as NRDC and the Sierra Club to participate in the conference "by making appropriate limited appearance statements (10 C.F.R. i 2.715)."H NRDC appeals from the Board's order denying intervention and both NRDC and the Sierra Club appeal the Board's determination restricting them to " limited appearance" status in the proceedings on remand.

Regarding its request to re enter the construction permit phase of the 8

case, NRDC claims that the need for orderly practice should not bar readmission because the Board's dismissal was without prejudice.

l NRDC also objects to the Board's failure to address the criteria for, late intervention. As to the limitation of both groups to " limited appearance" status at the upcoming conference, the intervenors claim that they have

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participated fully with respect to LWA issues from the outset of the case 1-and that termination of the LWA appeal proceedings should have had i

no effect on the;r ability to participate in those LWA proceedings still pending before the Licensing Board.

The applicants and the NRC stali filed answers opposing the interve-1 nors' appeals. Essentially, the applicants claim that the intervenors' action in seeking and obtaining termination of appellate proceedings and

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vacation of the parualinitial decision in the LWA portion of the case, 7ALAB.731,10 NRC 13)?.

8 OrJet RegatJms NRDC Motion to lniertene tunpubint w.

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3 18 LBP 84419 SRC til j

H hee of Conferente with Parties On 20.1994 at : v.-einhedt 490

courled with their soluntary withdrawal from the remainder of the case, effectively extinguished whatever concingent rights may have existed.

The staff argues that the Licensing Board's dismissal of NRDC and the Sierra Club as parties was consistent with the limitation of NRC proceed-ings to parties manifesting an interest in discrete issues. The staff also as-serts that the requirement that NRDC and the Sierra Club make only limited appearances at the upcoming site redress conference is proper be-cause neither is any longer a party to the proceeding.

For reasons explained below, we find that NRDC and the Sierra Club are entitled to participate fully as intervenors in the proceedings on remand, but that the Licensing Board did not act unreasonably in refus-ing to authorize NRDC to re-enter the remainder of the construction permit ph'ase of the case.

II.

A.

At the time we issued our order terminating appellate procccdings in connection with the LWA decision, and remanding the case to the t

Licensing Board for consideration of site redress issues, N!tDC and the.

Sierra Club were parties to the proceeding. Nothing in our rcmand order y was designed to alter their status as intervenors in the LWA portion of' the ase. Thus, to the extent the Licensing Board, without explanation, r.ow purpor'es to restri;t thcir participation in the upcoming conference to " limited 'appearrnce" 'itatus, its action is inconsistent with the remand ordered in' ALAB-755.- Moreover, although the Licensing r

Board's recent'announcerrierit clotids the issue of these Parties' contin-ued status in thioverril case, nuQing in that Rctfrd's June 29 decision suggests an inteat to deprive either NRDC or tb Sieria Club ofits right

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s2 The follo -.ng excerpts from she June 29 confet 'nce before the Licenang Board are illuminating.

Chairman Maler- "You are a party as to whatever you may have raced or done c,n appeal. I th.nk there is no controversy as to that. But above and beyond that which is pending now before the Appeal Board and which it has jut sdiction, this Board does not have any junsdiction of mat-ters that pass to the Appeal Board.. There is one other matter that has been alluded to. That is I whether our order dism6ssines intervenorses parties so this or future constrution permit proceed-inge should be without prejudice. Let me say sitpois that the Board dae4 not intend to rule upon that matter.. Thetsfore. this ruims at this time a neither with prejudice or without prejudice.

We we aMe by whantver is done by the Appeal Bo 4 is whaarver decnsens Jr mehr make or this r

Board mig 58 rt.ake M he future " Tr. 7313,7332 R'emphams added) f' Mr. Edgar (aps4*.dts' counscih "... twiw ese reshts Intervenors may have vis-a-vis the P LWA prcreedma and the Beard's decision esists s.ad they are not affected by what the Board n.t do at this timt. " T r. 7314 e

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Mt. Turk (st rcounsel): "!wle certainivf) not n0 want them to be prefudiced from prose-chang the alWat which they hase cady fud in the first F1:lfAnd m the event the Grst PID is reversed ad(vther evidence must 9e taken.. theGwe would not oppose their participation as i

' to those matters." Tr. 7316 l'.

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The applicants argue that, insofar as the LWA proceeding was concerned, the intervenors never advanced any contentions related to the environmental impact of site preparation activities.i2 The staff Mmilarly contends that NRDC had t'o interest in the redress issue as I

long as no construction perrnit was to be issued.14 We reject these r

arguments.

To begin with, it cannot be said that the intervenors have manifested no interest in the question of site preparation. They argued before the Commission during the exemption proceedings that site preparation ac-tivities alone may result in significant adverse impacts. The Commission rejected their arguments in part because site redress was available in the event the project were to be terminated.u Moreover, the focus of the proceeding before the Licensing Board thus far has been on the use of the land for construction of the project.u (In that context, as the applicants and the staff point out, the matter has been uncontested.) Now before the Board, for the first time, is the ques-tion of site redress in light of the abandonment of the project. These in-tervenors have been active participants in connection with the LWA as-pects of the case and we do not believe that their decision to concentrate their attention on technical issues unrelated to use of the land at the ear-lier stages of the proceeding should prevent their participation now that site redress has become the only issue in the case. Redress is a matter with which the intervenors are concerned and we see no public interest purpose in circumscribing their participation at this stage."

1 B.

NRDC's request to re-enter that phase of the case dealing with non-LWA issues stands on a somewhat difTerent footing. Although the LWA and construction permit aspects of the case are simply separate phases of the same proceeding, licensing boards have the authority to regulate the course of the proceeding and limit an intervenor's participa-tion to issues in which it is interested.88 In this case, as the stafi points out, the Board's June 29 decision had the effect of declaring that neither

- NRDC nor the Sierra Club would be permitted to' participate further in that portion of the case still pending before the Licensing Board on 33 Applicants' Answer to Intervenors' Appeal (February 21.1984) at 2.

le NRC starts Brierin opposition (February 21.1984) at 21.

O CLI.82 23, supra 16 NRC at 424 n.4.

4S.c. ror example, LBP-83 8. sr.pm.17 NRC at 247-50.

I? C/ Northere Siares Powr Co. (Prairie Island Nuclear Generating Plent, Units I and 2). ALAB-244. 8 AEC 857. 804.70 (1974). erecesurrerwr Jened. ALAB-252. 8 AEC !!75, eff'd. CLI.751. I NRC 1 (1975) hntervenor should not be " benched on the sidelines

• even trit was not an onginal proponent or an issuel.

Is 10 C F.R. H 2.718 and 2.7141e} and (D.

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issues unrelated to the LWA. The intervenors did not appeal the Board's determination. Rather, they assumed the risk that the Licensing Board might eventually take some action on non.LWA matters inconsis-tent with their interests. Although termination of the project is a new development, it is plainly not one that should have been wholly unantici-pated when the intervenors withdrew. At that time, it was not unrea-sonable for the intervenors to assume either that the Licensing Board would simply complete the remaining phase of the case and, in due course, issue a further partial initial decision, or that Congress might de-cline to provide further funds for the Clinch River project, with the result that the project would be terminated. Thus, we cannot find that the Licensing Board acted unreasonably in denying the request to be readmitted. As we observed in our Midland decision:

Parties may not dart in and out of proceedings on their own terrns and at their con-venience and still expect to enjoy the benefits of full par 9cipation without the j

responsibilities.2o I

NRDC argues that, in reachirig its decision, the Licensing Board did not in terms consider the five factors ordinarily evaluated when deciding whether or not to permit late intervention.28 We do not believe that an express evaluation of those factors would lead to a difTerent result.

To begin with, and most important for decisional purposes, we think that NRDC's participat;on in the remanded LWA proceedings will fully protect its interests. Thus, we find against NRDC on factor 2. The project, after all, has been terminated, and the only issues that need to be resolved concern site redress. NRDC sought to re-intervene in the non-LWA proceedings to argue that (i) the conditions for grant of a co'n-struction permit cannot or have not been met, and (ii) the program ob-jectives for the project will not be achieved.22 The applicants concede that NRDC is correct in both respects,n and nothing in any of the Licensing Board's issuances is to the contrary. So we see little left for l' NRC staff's Brierin Opposition (February 21,1984) at 13.

20 Consumers foner Co. (Midland Plant. Units I and 2). ALAB-691.16 NRC 897,907 (1982).

21 Those rive factors, set torth in 10 C F.R. l 2.714(a)(1), are as iollows-(i) Good cause, irany, ror railure to Gle on time.

(ii) The availabihty orother means whereby the petitioner's interest will be protected.

(iii) The entent to which the peuuoner's participation may reasonably be expected to assist in de.

veloping a sound record.

(iv) The extent to which the petitioner's interest will be represented by entsting parties.

b) The eurent to which the petitioner's participation will broaden the issues or delay the proceerling.

M Sr Motion or Natural Rewurces Defense Couned. Inc. to Intenene tNovember 23.1983) at 5-6.

U &c Applicants' Answer to Intenenors' Appeal (Fet ruary 21,19541 at 3.

193

I further resolution. To be sure, the Licensing Board has issued, over NRDC's objection, what it styles a " Memorandum of Findings. The nature of that Memorandum is unclear. But its status is perfectly clear:

it has no operative effect.24 Thus, we perceive no genuine harm to NRDC from its issuance.

Second, this is not the most compelling case of good cause for late intervention. As explained above, intervenors were already participating in the construction permit phase of the case and elected to withdraw at a time when termination of the Clinch River project should clearly have been one foreseeable outcome (indeed, the intervenors may well have elected to conserve their limited resources in contemplation of that outcome).

It is unclear to what extent factors three, four or five are relevant to a proceeding that is effectively over land will soon be terminated formally for mootness. In any event, we believe that factor two is decisionally overriding in the context of this case.

The Licensing Board's determination to limit the intervenors' partici-pation in the proceedings on remand to a limited appearance statement is vacated as inconsistent with ALAB-755. In all other respects, the appeals are demed.

It is so ORDERED.

FOR THE APPEAL BOARD Barbara A.Tompkins Secretary to the Appeal Board 24 The Memorandum is not a partial initial decision in the usual sense. Although vrious issues are

" resolved" in the applicants' favor and none appears to remam for later resolution. the Memorandum

(

does not authorize issuance of any form of license. Nonetheless, the Board specifically declined to char.

actenze iu Memorandum as an " advisory opmion." t.BP.84-4,19 NRC 288, 293. Rather, it observed.

"tilhis Memorandum of Findings lis) somewhat unprecedented procedurally.... It is sufreient to issue only a memorandum tailored to the unusual posture of this proceedics, for whatever assistance it may provide to the NRC now or in the ruture." M at 291.293, Perhaps, "as with the subject of a once popular sorig, being a combmation thereof, it is nest.*er swan nor goose, but truly *swoose.'" SJgmaw l

Tramver Co. v. Umred Sisars,275 F. supp. 585, 569 (E D. Mich.1967), gvorms Chemrals m Arprrare Shements - Afatiosd Afrh. so the East, 326 I C C. 657. 66511565).

M4

Opinion of Dr. Johnson, dissenting in part:

I do not agree that the intervenors are still a party to the proceedings on remand. Our remand of the case to the Licensing Board was only for the purpose of considering site redress, clearly a matter unrelated to any issue then on appeal. Thus, the Licensing Board's notice according NRDC and the Sierra Club the right to participate on only a limited ap-pearance basis is not inconsistent with ALAB-755.

My interpretation of the intent of the Licensing Board's determination of June 29,1983 (see note 12 of the majority opinion, and accompany-ing text, supra), is that intervenors were dismissed except for matters they had raised expressly on appeal. The majority finds (and I agree) that a licensing board may, pursuant to 10 C.F.R. 5 2.714(e) and (0, limit participation to those issues in which a party has demonstrated a genuine interest. In my view, the intervenors have not manifested any geneine interest in the redress issue sufficient to justify their participa-tion as full parties. Significantly, when they sought immediate termina-tion of the LWA appellate proceedings, they did not attempt to raise the redress issue. Rather, they urged us simply to order revocation of the LWA, presumably satisfied to leave to the applicants and the staff alone whatever redress may be needed. They have also not demonstrated any genuine expertise in the question of redress, and I see no public purpose to be served by their participation on the redress issue above and beyond that allowed by the Licensing Board.

N,

495

d+

r, s

t Atomic Safety 1

and Licensing Boards issuances i

ATOMIC SAFETY AND LICENSING BOARD PANEL i

B. Paul Cotter, ' Chairman Robert M. Lazo, 'Vice Chairman (Executive) aK Frederick J. Shon, 'Vice Chairman (Technical)

Members at Dr. George C. Anderson James P. Gleason Dr. Unda W. Utde Charles Bechhoefer*

Andrew C. Goodhope Dr. Emmoth A. Luebke'

)

Peter 8. Bloch' Herbert Grossman*

Dr. Kennth A. McCollom Lawrence Brenner*

Dr. Cadet H. Hand. Jr.

Morton B. Margut'me' Glenn O. Bright

• Jerry Harbour

• Gary L. Milhollin Dr. A. Dixon Caliihen Dr. David L Hetrick Marshall E. Miller

• J James H. Carpenter

• Emest E. Hill Dr. Peter A. Morris' Hugh K. Clark Dr. Robert L. Holton Dr. Oscar H. Paris' Dr. Richard F. Cole

• Dr. Frank F. Hooper Dr. Hugh C. Paxton Dr. Frederick R. Cowan Helen F. Hoyt*

Dr. Paul W. Purdom Valentine B. Deale Nebeth B. Johnson Dr. David R. Schink Dr. Donald P. de Sylve Dr. Walter H. Jordan Ivan W. Smith' Dr. Michael A. Duggan James L Kel!ey*

Dr. Martin J. Steindler f

Dr. George A. Ferguson Jeny R. Kline' Dr. Quentin J. Stober Dr. Harry Foreman Dr. James C. Lamb Ill Seymour Wenner p

Richard F. Foster James A. Laurenson' John F. Wolf John H Frye til' Gustave A. Linenberger*

Sheldon J. 'Wolfe' l

l Y

i

• Permanent panel members l

c r.

^

Cite as 19 NRC 497 (1984)

LBP 84-9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Herbert Grossman, Chairman Glenn O. Bright Dr. Jerry Harbour in the Matter of Docket No. 50 460-CPA (ASLBP No.83-485 02 CPA)

WASHINGTON PUBLIC PC'.',ER SUPPLY SYSTEM (WPPSS Nuclear Project No.1)

February 1,1984 in a proceeding to determine whether Applicant has demonstrated

" good cause" for the construction completion date in the construction permit to be extended, the Licensing Board grants Applicant's and NRC Staffs motions for summary disposition in Applicant's favor.

CONSTRUCTION PER311T: EXTENSION OF COSIPLETION DATE (GOOD CAUSE)

Where the Applicant has demonstrated valid reasons for delaying construction, the Board will permit the construction completion date to be extended without reaching a judgment on the advisability of complet-ing the plant.

CONSTRUCTION PER311T: EXTENSION OF CONIPLETION DATE (REASONABLENESS OF PERIOD)

The reasonableness of the period of the requested construction com-pletioti date extension cannot be challenged on grounds ofinsufficiency.

l 497 l

1 1

CONSTRUCTION PERMIT: EXTENSION OF CO.\\lPLETION DATE (IIEALTil, SAFETY AND ENVIRONMENTAL EITECTS)

A consideration of the health, safety or environmental effects of delay-ing construction cannot be heard at the construction permit extension proceeding, but must await the operating license stage.

MEMORANDUM AND ORDER (Granting Applicant's and NRC Staff's Motions for Summary Disposition)

Memorandum This is a proceeding to determine whether Applicant should be granted an amendment to extend the completion date stated in its construction permit. Intervenor contends that " good cause" does not exist for the ex-tension of the construction permit completion date, as required by Sec-tion 185 of the Atomic Energy Act and 10 C.F.R. 50.55(b), and that the extension requested is not for a reasonable period.

Applicant and NRC Staff have moved for summary disposition on the basis of affidavits and other documents annexed to their respective motions. Intervenor opposes the summary disposition motions and re-quests that an evidentiary hearing be convened.

We grant Applicant's and NRC Staffs motions for summary disposi-tion and dismiss Intervenor's admitted contention.

I.

BACKGROUND On July 21,1981, Applicant filed an application for an extension ofits construction permit completion date from January 1,1982 until June 1, 1986. On March 18, 1982, Intervenor, the Coalition for Safe Power (CSP), filed a request for hearing. On October 8,1982, the Commission issued an Order, CLI-82-29,16 NRC 1221, concerning CSP's request for hearing, which provided Commission guidance on the scope of con-struction permit extension proceedings and determined that only one contention raised by CSP would be litigable if properly particularized and supported. The Commission Order referred the petition tiled by CSP to a licensing board to determine if the other hearing requirements of the Commission's regulations had been met and, if so, to conduct an appropriate proceeding.

498 i

1

l On January 17, 1983, Applicant served on the Board and the parties copies of a request to the Staff that its pending amendment request for an extension to June 1,1986 for completion of construction be modified to allow completion by June 1,1991. Applicant stated therein its under-standing that the request would be treated as a modification of the pend-i ing amendment rather than as a new amendment request.

The original requested extension, until Jude 1,1986, was premised on the construction having proceeded slower than anticipated. Interve-nor challenged that extension on the ground that poor management prac-tices had resulted in delay and that, consequently, there was no good cause for the delay. Intervenor acknowledged that Applicant had not in-tentionally delayed construction.

The supplemental request for extension from June 1,1986 until June 1,1991, however, was necessitated by Applicant's intention to halt its construction for up to 5 years. Intervenor challenged that additional period of requested extension as not satisfying the " good cause" require-ment of the Atomic Energy Act and Commission regulations, and the 5-year period as not being a reasonable period of time.

In our unpublished Orders of February 23,1983 and March 23,1983, we rejected any contentions that might relate to the original period of requested extension in the pending application, from January 1,1982 until June 1,1986. We determined that allegations of poor management practices resulting in construction delays are not sufficient to satisfy the Commission's guidance in CLI-82-29, supra that equated a lack of good cause with being dilatory. Since Intervenor had made no showing that Applicant's requested extension until 1986 was the result of Applicant's being dilatory, we would not entertain any contentions regarding that time period.

However, with regard to the supplemental period of extension, from June 1,1986 until June 1,1991, we admitted the following contention:

Amended Conte:: tion No. 2 Petitioner contends that the Permittee's decision in April 1982 to " defer" construc-tion for two to fne years, and the subsequent cessation of construction at WNP.t.

was dilatory. Such action was without " good cause' as required by 10 C.F.R. 50.55(b). Moreover the modified request for extension of completion date to 1991 does not constitute a " reasonable period of time" provided for in 10 C.F.R. 50.55(b).

It is this contention, the only one adrnitted in this proceeding, that Applicant and Staff move to dismiss in their respective motions for sum-mary disposition.

l l

499

II. STATEMENT According to Applicant's discussion of the facts,it was the Bonneville Power Administration (BPA), an agency of the U.S. Government estab-lished by the Bonneville Project Act of august 20,1937, that required the halt in construction of WNP-1. Applicant has under construction three nuclear projects, WNP 1, WNP-2, and WNP-3. The financing of WNP-1 has been solely through the sale of bonds. Under agreements to which Applicant and BPA are parties, Applicant has agreed to construct WNP 1 and has assigned 100% of the capability of the facility to BPA.

BPA is accorded substantial oversight responsibility and contract approv-al authority. In addition, the issuance of all bonds is subject to approval by BPA. Because the construction of WNP-1 is financed entirely through the sale of bonds, Applicant asserts that BPA controls the pace of construction as a result of its authority to withhold approval for bond sales.

3 As Applicant further describes the situation, in April of 1982 BPA i

published a draft powerload forecast which indicated that WNP-1, WNP-2 and WNP-3 were needed in the region, but that short-term sur-pluses of electricity could occur prior to 1990. Therefore, BPA recom-mended that construction of WNP-2 and WNP 3 proceed at full pace while the completion schedule for WNP-1 be delayed for a period of up to 5 years. Applicant developed alternatives to the BPA recommenda-tion, but BPA advised Applicant that none of these alternatives was acceptable; that the BPA recommendation was the only prudent course of future conduct; and that BPA would not approve any financing plan inconsistent with its recommendation. As a result, Applicant decided to defer the construction of WNP-1, recognizing that BPA would not permit the sale of bonds needed to continue construction of the facility.

In support of its motion for summary disposition in Applicant's favor, Staff also relies upon BPA's refusal to approve further bond issuances for continued construction of WNP-1 as " good cause" for deferring construction.. Staff agrees that Applicant would lack the financial 4

resources to' complete construction without BPA's support. Staff also relies upon one cf the reasons cited by BPA for recommending deferral of WNP 1, a slower growth rate of electrical power demand than origi-nally projected, as constituting a valid purpose for deferring construction. NRC Staff Motion at 5.

Intervenor, on the other hand, concludes that Applicant, rather than BPA, was responsible for-the deferral of WNP-l. Intervenor submits that Applicant requested the deferral from BPA and concurred in it.

Rosolie Affidavit at 2; Intervenor's Answer to ' Summary Disposition 500

Motions at 6-7. Intervenor asserts that Applicant had options other than deferral: it could have placed the project in indefinite mothball as it did with Projects WNP-4 and WNP-5; it could have terminated the Projects; or it could have entered into negotiations with the private utilities owning 30% of WNP-3 in order to have them defer WNP-3, rather than having to defer WNP-1. Id. at 7-9.

Furthermore, Intervenor asserts that the Board should go behind the decision to halt construction (whether made by Applicant or BPA) to consider the reasons for not financing continued construction at this point. Intervenor asserts that the reasons given by Staff and Applicant as inducing the BPA decision (which Intervenor asserts was Applicant's decision) to defer construction, a temporary lack of financial resources and a slower growth rate of electrical demand, are not the full story. It contends that escalating rates caused by the WPPSS construction pro-gram was a significant factor; that the private utilities would not agree to deferring WNP-3 in lieu of WNP-1, although WNP-1 was more complete; that more recent analyses by BPA show electrical growth to be even less than projected; anu that there may be no future financing available to resume construction. Intervenor would like to call an expert witness to support its position that there will be a lack of need for power from WNP-1 (in addition to a consequent lack of future financing) in order to support a finding that there is no good cause to extend the con-struction completion date, notwithstanding that there might have been good cause to delay construction. In other words, whatever causes exist to delay construction, such as currently low electrical demand and i

temporary lack of financing, are more extreme, namely, even lower electrical demand and a permanent lack of financing, so as to require cancellation of construction. Id. at 10-11.

Intervenor also contends that the requested extension of completion date is not for a reasonable period of time by dint of its being insufficient. According to Intervenor, BPA and Applicant may well be considering a 5-12-year deferral of WNP-1, not a 2-5-year deferral, ac-cording to other documents. Furthermore, because of the downward trend in forecasting electrical demand and the unavailability of financing within the time period requested, Intervenor contends that Applicant cannot meet its burden of proving that financing will exi" to tesume construction within the 5-year period requested. Intervenor's Answer at 12-16. Finally, Intervenor asserts that the safety and environmental sig-nificance of the requested delay must be considered for at least the rea-sons that there is some concern over equipment deterioration during the extensive delay in completion of construction and that the original cost-501

)

benefit analysis at the construction permit stage is completely outdated.

Id. at 16-19.

III. OPINION A.

Good Cause Section 185 of the Atomic Energy Act, as amended,42 U.S.C, f 2235, states, in pertinent part:

All applicants for ticenses to construct or modify production or utilization facilities shall, if the application is otherwise acceptable to the Commission, be initially grant-ed a construction permit. The construction permit shall state the earliest and latest dates for the completion of the construction or modification. Unless the construction or modification of the facility is completed by the completion date, the construction permit shall expire, and all rights thereunder be forfeited, unless upon good cause shown, the Commission extends the completion date.

In furtherance of this section,10 C.F.R. l 50.55 reads in pertinent part, as follows:

/ ) The permit shall state the earliest and latest dates for completion of the con-2 n,.ction or modification.

(b) If the proposed construction or modification of the facility is not completed by the latest completion date, the permit shall expire and all rights thereunder shall be forfeited: Provadal, homewr, That upon good cause shown the Commission will extend the completion date for a reasonable period of time. The Commission will reccgnize, among other things, developmental problems attributable to the experi-mental nature of the facility or fire, flood, explosion, stnke, sabotage, domestic violence, enemy action, an act of the elements, and other acts beyond the control of the permit holder, as a basis for extending the completion date.

In its guidance to this Licensing Board in CLI-82 29, supra, the Com-mission interpreted the foregoing statute and regulation as afTording only a narrow scope to this proceeding within which Intervenor was free to prove only that "WPPSS was both responsible for the delays and that the delays were dilatory and thus without ' good cause'." 16 NRC at 123l. In Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB-722,17 NRC 546 (1983), involving only WNP-2, the Appeal Board elaborated on those directions from the Commission to the Licensing Board. It interpreted "dilatoiy conduct in the sense used by the Commission" as meaning " intentional delay of construction with-out a valid purpose." Id. at 552. Consequently, it held that, "unless the applicant was responsible for the delays and acted in a dilatory manner (i.e., intentionally and without a valid purpose), a contested construction f

502 1

i r

l I

permit extension proceeding is not to be undertaken at all." Id. at 553.

Since, with regard to WNP-2 there had not been any Intervenor allega-tion of Intentional delay (Applicant sought no halt in construction, as here, but had only suffered involuntary delays in meeting its construc-tion schedule), the Appeal Board afGrmed the Licensing Board's dismis-sat ofIntervenor's contentions.

In the instant case, Applicant has made a strong showing of not

" intentionally" causing the halt in construction, with af0 davit and docu-mentary support ofits position that the Bonneville Power Administration caused the delay by withholding its approval of bond issuances for fur-ther construction, the only avenue for financing available to Applicant.

Intervenor makes no attempt to dispute BPA's power to control the pace of construction through its control over the financing of the project, but insists that it was Applicant, rather than BPA, who instigated the decision to defer construction and that BPA only concurred in it. In-tervenor seeks the opportunity to prove that Applicant's decision to delay construction, not having been compelled by BPA, was also without i

a valid purpose.

Although we see little in Intervenor's transmittals to us in opposition to the motions for summary disposition to support its position that the recommendation of deferral was instigated by Applicant, rather than BPA, we would not grant the motions for summary disposition on that score. Corporate dealings and motivations are sufficiently arcane, not-withstanding the matters placed upon the public record in the form of corporate minutes, resolutions, and recommendations, to afTord a liti-gant the right to go behind these records to seek the testimony of partici-pants in the corporate transactions. Intervenor has not taken discovery depositions, possibly for lack of finances, but that would not preclude it from examining for the first time at an evidentiary hearing the appropri-ate of0cials of WPPSS and BPA to identify the actual decisionmaker.

Ilowever, even if we could place the intention to delay on Applicant, rather than BPA, we would still have to hold for Applicant on the un-disputed material facts relating to the purpose for the delay, on which we find very little disagreement among the parties.

Without dispute, what prompted the decision to delay construction was a lack of financial resources to complete the construction of WNP-1 and WNP 3, and the forecast of no electrical demand for the output of WNP-1, at the targeted completion date of July I,1986. Intervenor, in fact, posits that the situation is more precarious than given by Applicant

- that there will be a lack of financing and a lack of demand for electri-cal power even after a 5-year hiatus in construction. Intersenor's Answer at 10-11, 14-16; Rosolic Affidavit at 3-1 503

l In ALAB 722, supra, the Arpeal Board indicated that "an intentional slowing of construction because of a temporary lack of financial resources or a slower growth rate of electric power than had been origi-nally projected would constitute delay for a valid business purpose." 17 NRC at 552 n.6. Since there is no dispute that the lack of financing and slower growth rate of electrical power caused the decision to defer construction, we should have little hesitation in deciding that Applicant's j

delay in construction met the Appeal Board's test of being for a valid business purpose. Intervenor, however, relies on further dicrum in ALAB-722 (id. at 553) that the " ultimate ' good cause' determination is expected to encompass a judgment about why the plant should be completed and is not to rest solely upon a judgment as to the Applicant's fault for delay." Intervenor asserts that there is not merely a temporary lack of financial resources, but a permanent one, and a long-term lack of electrical demand that would negate any reasons for completing a plant.

Intervenor's Answer at 10-11.

Intervenor's argument flies in the face of the Commission's directives to us in CLI-82-29, supra. There the Commission, in no uncertain terms, focused exclusively on the " reasons that have contributed to the delay in construction," rather than good cause for completing construction.16 NRC at 1228; see also id. at 1229,1230 and 1231.

While ALAB-722, supra, appears to be at some variance with the Com-mission's directives to us to focus exclusively on causes for delay, rather than for completing construction, even that dicrum would require a judg-ment about whether the plant should be completed only if Applicant has not first satisfied the test of either not being responsible for the delay or having delayed construction for a valid purpose. Since the Applicant, in this case, has halted construction, either intentionally or at the direction of BPA, for the valid reasons of a lack of financial resources and a slower growth of electric power, we need not reach a value judgment on the advisability of completing the plant.'

Intervenor also seeks a hearing on the other options it asserts were available to Applicant in place of its deferral of construction for the

• The Appeal Board has not illuminated the basie for its focus on the future, rather than on Applicant's past conduct seemingly at vanance with the Coir: mission's directives to us, other than to conclude that ttus is called for by section 185 or the Atomic Etwrgy Act. t7 NRC at 553. Consequently, we offer no opinion on why the Appeal Boaid would permit at maury into the advisability of building a plant when it is for the benefit of an applicant that has faded the Commmsson's test of not tiemg dilatory but would not permit such inquiry for the benefit of an mtersenor wishms to scrap the plant. An applicant for a construction permit extension has, presumabih already satisfied its requirement of demonstrating the need for power at the construcuon permit stage and should not have to demonstrate that need again i

unless, under special circumstances, such a dem.mitration is deemed necessary or the operannt kvase stacc. See 10 C.F.R. (( $1.21 and 51.23(ei. and 5:stement of Considerauon, 47 Fed. Res.12.940 11952).

504

5-year projected period. These other asserted options of placing the proj-ect in indefinite mothball, terminating the project or negotiating with pri-vate utilities who own 30% of WNP-3 to delay WNP-3 instead, might have been more " prudent" according to Intervenor Rosolie Affidavit at 2-3; Intervenor's Answer at 9. Nothing stated by Intervenor in its answer or submitted in support of it raises any question about the deci-sion to delay construction being at least a rational business decision, albeit not the decision Intervenor might have made under the same circumstances.

We see no merit in the Board's seeking to substitute its own judgment for that of Applicant in selecting one of a number of rational alternatives available to Applicant. The one apparently favored by Intervenor (ibid.),

of halting construction on WNP-3 rather than WNP-1, cannot support a denial of the requested extension. If the Applicant is attempting to sal-vage both nuclear plants by temporarily halting construction on one of them, that cessation of construction activities has a valid purpose regard-less of which plant is chosen. We see no reason to attempt to force the cancellation of the plant chosen to be delayed (through a revocation of the construction permit) merely because some reasonable persons would have chosen to delay the other plant. Nor do we see any justifica-tion for the Board to question the reasonableness of Applicant's decision of deferral because Applicant did not choose, instead, either of the other two more extreme alternatives suggested by Intervenor of indefinite mothballing or termination.

We are not faced with an allegation that Applicant has actually decided to abandon the plant. IIad Intervenor made such an allegation and of-fered some factual support for it we would not be so quick to grant sum-mary disposition in favor of Applicant. A finding by us of abandonment might permit us to dismiss Applicant's application as being moot. See Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB.605,12 NRC 153 (1980). Here, Intervenor has not gone beyond an attempt to prove that future power demands and lack of fiaancing will cause an abandonment of the plant when Apphcant is faced with resuming construction. IfIntervenor were convinced that Ap-plicant had irrevocably decided to abandon the plant, it is doubtful that it would continue to expend its resources on its interventions in this and the operating license proceedings.

-B.

Reasonable Period of Time Intervenor also challenges the reasonableness of the period of time requested for the extension. Intervenor asserts that the 5-year requested 505

extension is unreasonable because it is insufficient. It would like the op-portunity to prove that the plant could not be completed by 1991. Inter-venor's Answer at Il-16.

We cannot fairly read into the Atomic Energy Act or the regulations thereunder any basis for challenging the reasonableness of the period of requested extension on grounds ofinsutTiciency. Were there some over-all time (rather than reasonableness) limitation on the total construction period or on the period that might be requested which Applicant is at-tempting to circumvent by requesting the needed time in increments, we might be persuaded otherwise. However, no such limitation is appar-ent to us. By requesting an insufficient period, Applicant could only injure itself because it would then be forced to apply for another exten-sion and demonstrate good cause anew in order to complete the plant, when its original " good cause" demonstration could have supported an extension for the total period required.

Perhaps we would view differently Intervenor's arguments with regard to the insufficiency of the period requested if we could accept its further argument that the total period of extension must be examined I

with regard to the safety and environmental aspects of the deferral of construction. Indeed, Intervenor's argument that there may be equip-ment deterioration during a lengthy delay in construction that should be considered during a construction completion date extension proceeding (Intervenor's Answer at 17) has considerable superficial appeal.

Certainly, one cannot easily disassociate the question of whether an ex-tension should be granted from the realization that the granting of the extension might well lead to a deterioration in equipment. Similarly, one could postulate environmental efTects from the prolongation of the con-struction period. However, were we to choose the most propitious moment for evaluating the elTects of a prolonged or delayed construction period on safety and the environment, we would choose a time after the effects became apparent, namely, at the operating license stage. A hear-ing at this juncture would be mostly speculative. We note that the Licensing Board in the WNP-1 OL operating license proceeding, com-posed of the same members as here, has admitted a contention (Contention 20) that questions unnamed construction defects that might result from Applicant's method of preserving the construction during the period of deferral. Washington Public Power Supply System (WPPSS Nuclear Project No.1), LBP 83 66,18 NRC 780,797 98 (1983).

A deferral of consideration of the safety and environmental effects of the delay in construction to the operating license stage not only makes the most sense, but it comports with the Commission's interpretation of 506 i

i

Section 185 of the Atomic Energy Act as not requiring the relitigation of health, safety or environmental questions between the time a construc-tion permit is granted and the time the facility is seeking authorization to operate.~ CL1-82-29, supm,16 NRC at 1228. And, since the health, safety and environmental effects of the prolonged construction are not to be questioned at thi; juncture, Applicant also can derive little benefit from understating the period needed for completion of construction, as i

alleged by Intervenor.

i C.

Legal Standard Under 10 C.F.R. { 2.749, this proceeding should be dismissed if the filings indicate that there is no genuine issue as to any material fact. In deciding Applicant's and NRC Staff's motions for summary disposition we have construed all of the material facts in favor ofIntervenor. We have assumed, notwithstanding the strong evidence offered to the con-

)

1' trary by Applicant, that the decision to halt construction was Applicant's, not BPA's. We have accepted Intervenor's assertions that there were more prudent alternatives to a temporary halt in construction, such as cancellation of the facility, placing it in mothball, or halting construction on WNP-1. We have also assumed for the pur-

' pose of deciding this motion that the period of extension requested isn't sufficient and that the economic situation will eventually cause an aban-donment of the facility. We nevertheless reach the position that Appli-cant has demonstrated good cause for delaying construction by demonstrating valid reasons *for doing so even though there may be 4

more prudent alternatives and the opticn selected may prove fruitless.

Having found good cause for the deferral of construction on the uncon-4 troverted material facts, we must grant Applicant's and StafTs motions for summary disposition without inquiring further into the advisability of constructing the nuclear plant.

Order I

For all of the foregoing reasons and based upon a consideration of the entire record in this matter,it is, this 1st day of February 1984, ORDERED That Applicant's and NRC Staffs motions for summary disposition in favor of Applicant are granted and Intervenor's sole contention is dismissed, terminating the proceeding.

507

~

w

l Within ten (10) days after service of this Memorandum and Order, which constitutes a Gnal disposition of this proceeding before the Licens-ing Board, Intervenor raay take an appeal to the Appeal Board by filing a notice of appeal pursuant to 10 C.F.R. (( 2.762 and 2.785. A supporting brief would then be due within thirty (30) days after the notice of appeal is filed.

Pursuant to 10 C.F.R. { 2.760 of the Commission's Rules of Practice, this Memorandum and Order will constitute the final decision of the Commission thirty (30) days from the date of issuance unless an appeal is taken in accordance with 10 C.F.R. f 2.762 or the Commission directs otherwise. See also 10 C.F.R. (( 2.785 and 2.786.

TIIE ATOMIC SAFETY AND LICENSING BOARD Glenn O. Bright ADMINISTRATIVE JUDGE Jerry liarbour ADMINISTRATIVE JUDGE Herbert Grorsman, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland February 1,1984 508

Cite as 19 NRC 509 (1984)

LBP 8410 UNITED SfATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

l l

Peter B. Bloch, Chairman l

Dr. Kenneth A. McCollom l

Dr. Walter H. Jordan in the Matter of Docket Nos. 50-445 50 446 (Application for Operating License)

TEXAS UTILITIES ELECTRIC COMPANY,* et al.

(Comanche Peak Steam Electric Station, Units 1 and 2)

February 8,1984 Based on a review of the history of the case, the Licensing Board con-cludes that Applicant had a fair opportunity to prove its case concerning quality assurance for design and that there is no reason to correct a previ-ous decision to clarify that the Board's conclusions were based on the record.

1 QUALITY ASSURANCE FOR DESIGN: APPENDIX B Criterion XVI of Appendix B to Part 50 requires the prompt identifica-tion of design deficiencies, but it does not require that those deficiencies be called "nonconformances." No particular terminology is mandated.

'Preucusly. Texas Uuhues Generatmg Company.

509

QUALITY ASSURANCE: RELATIONSIIIP TO 9 50.55(e)

Criterion XVI of Appendix B to Part 50 is consonant with 10 C.F.R. 6 50.55(e). The former requires a system for promptly identifying deficiencies, including design deficiencies. The latter requires the prompt reporting to the NRC of serious deficiencies.

RULES OF PRACTICE: NEW ARGUMENTS Absent some special procedural consideration, proposed findings of fact may make new arguments about record evidence. Allegedly contrary precedent is not persuasive.

RULES OF PRACTICE: MOTION FOR RECONSIDERATION (NEW ARGUMENTS)

Motions for reconsideration are for the purpose of pointing out an error the Board has made. Unless the Board has relied on an unexpected ground, new factual evidence and new arguments are not relevant in such a motion.

RULES OF PRACTICE: STANDARDS FOR APPLICANT TO REOPEN TIIE RECORD Applicant is not subject to the same standards for reopening the record as are intervenors. it is neither logical nor proper to close down a multi-billion-dollar nuclear plant because of a deficiency of proof.

Ilowever, repeated failures of proof would jeopardize intervenor's right to due process and would require the denial of a license.

TECIINICAL ISSUES DISCUSSED Pipe supp' ort stability U-bolts cinched up around pipes U-bolts made of SA 36 steel, clamping force Local pipe stresses from pipe suppor's U bolts, overtensioning Relationship of ASME Code and AWS Code, pipe supports Richmond Inserts, axial torsion.

510 j

l l

MEMORANDUM AND ORDER (Reconsideration Concerning Quality Assurance for Design)

This Memorandum and Order considers the motions of the parties to reconsider our previous Memorandum and Order (Quality Assurance for Design).I I.

APPLICANT'S RECONSIDERATION MOTION t

Applicant requests that we revise our Design Decision so that we make it clear that I

the evidentiary record is presently not adequate to determine whether Applicant's pipe support design process satisfies Appendix B (a view which Applicant shares) and that further evidence will be required.2 l

Applicant's concern arises because it feels that it did not have adequate notice that this matter was being litigated and because we incorrectly in-I terpreted Applicant's Findings. We disagree.

First, we note that our findings were explicitly related to the burden of proof as reflected in otte record. We acknowledged our lack of confi-dence that our record reflected the real world; hence, we permitted Ap-plicant to submit a plan to increase this Board's confidence in the plant's design. Thus, Applicant will have an opportunity to demonstrate its compliance with the requirements of Criterion XVI of Appendix B.)

llowever, Applicant had not given us any basis for hedging our findings further. Our knowledge is limited to the evidentiary record, which is the basis for our findings, and we are required to make findings based on that record.* We have done so.

If Applicant did not have a fair opportunity to demonstrate the adequa-cy of its quality assurance program, then we might agree to hedge the language we use in finding a deficiency. Ilowever, Applicant had an i

I We adopt the terms me deGred in our previous decision, LBP-83-8I,18 NRC 1410 (1983) (Design Decision). All three motions fos reconuderation were Gled on January 17,1983 and shall be referred to as Applicant's Reconsideration. 5mTs Reconsideration, and CASE's Reconsideration.

2 Applicant's Reconsideration a 2 2

Although our larttuage suggested that Applicant and stair thought Appendia B did not apply to design. a more accurate statemer t of the position or these parties mas that Critenon XVI of Appendia B, which requires the identincation and prompt correction of deGciencies. did not apply to design. our dect.

sion could have been clearer on th.s roim, but we beheve the dessussiori en the deciuon adequately stated our concerns.

4 See Common =es44 E.taan Co v8-rc1 Nuclear Power Station, Units I and 21 LBP 84 2 l9 NRC 16 (1984) toperating hcense denied be on the esisting record).

511

l abundance of opportunities to present its case and did not avail itself of them.

A.

Relevant Background Our Design Decision sets forth the history of the Walsh/Doyle contention, but pertinent parts need be repeated to place Applicant's current claim in perspective. Based on testimony from Walsh and Doyle, CASE has argued that there were deficiencies in several design documents. CASE also argued that Applicant had not completed non-conformance reports related to design documents and that it had not filed 10 C.F.R. { 50.SS(e) reports of significant design deficiencies.

Applicant answered that the deficiencies found by CASE were in pre-liminary design documents and were of no significance because they would be corrected before the plant was completed. It also argued that Appendix B did not require it to complete nonconformance reports for design deficiencies.

In another matter, which seemed unconnected to this question, Appli-cant has even argued that Appendix B does not require that reports called "nonconformance reports" or "NCRs" need be completed for construction deficiencies. This argument apparently is correct with re-spect to all deficiencies (including construction and design) because Ap-pendix B, Criterion XVI, provides substan'ive criteria for identifying and correcting deficiencies but does not mandate any particular label for the reports concerning thosc deficiencies.

B.

Applicant's Initial Argument With these contextual matters in mind, let us now set out in full the portion of Applicant's Findings that it would now have us interpret as arguing only that Appendix B does not require that any particular label be attached to nonconformances:

l 6.

Documentation of *Nonconformances*

With respect to the allegation that Nonconformance Reports ("NCRs") should have been written against pipe support designs which were found to be inadequate, the NRC Staff testified, and the Board agrees, that 10 C.F.R. Part 50. Appendix B does not address inadequate designs but rather addresses the conformance of in-l stalled hardware and the inspection thereof to the design. With respect to 10 C.F.R. Part 50. Appendix B, Cnterion !!! concerning design control, that provision estab-i lishes revkw procedures, and does not involve reporting of nonconformances. (Tr.

l 6707 10 ) Accordingly, we Gnd there is no requirement for the identiGeation ofinad-equate pipe support designs as nonconforming conditions. The iteratae 11esign proc-ess for p!pe supports finduuing the internal checks in that process) discussed herein 512

l supra. Section ll.C.I. assures that inaccquate designs or unstable supports are identi-fled and corrected.5 C.

Analysis We do not find this language to be consistent with Applicant's regula-tory obligation. We consider the following language in Applicant's Find-ings to be clear: " Appendix B does not address inadequate designs but rather addresses the conformance of installed hardware and the inspec-tion thereof to the design." The meaning of this passage, that the prompt identification of design deficiencies is not required by Appendix B, was echoed by a statement that "there is no requirement for the iden-I tification of inadequate pipe support designs as nonconforming conditions." This language concerns requirements, does not place

" nonconforming" in quotes and is, simply, an unqualified statement that Criterion XVI is inapplicable.

Our conclusion that Applicant has not interpreted Appendix B, Criteri-on XVI, correctly in this proceeding also is related to the general conduct of the case. CASE has attempted to show deficiencies in particular design docuntents. Instead of demonstrating the existence of a system to identify and correct deficiencies, Applicant chose to show that:

the designs raised by (CASE's]... witnesses were taken from the initial stages of a carefully designed and comprehensive iterative design process and thus do not (nor were they intended to) reDect the quality of the final pipe support designs at Comanche Peak.*

We do not consider this to be isolated language. It represents Appli-cant's litigation approach, in which the Staff concurred. There has been no recognition that errors in design documents are an independent concern, regardless of whether they may be corrected before the plant is completed. Each design document must be a quality document. Al-though errors may be made, significant errors - particularly errors of which Applicant has been made aware through employee concerns and litigation - should be promptly identified, " documented," and corrected with reasonable speed.

We understand that Applicant now contends that it has such a system.

However, the adequacy of this system for documenting and correcting design deficiencies (and construction deficiencies resulting from the 5Archcant's Findings at 27 28.

• IJ at 18.

513

1 implementation of deficient designs') has not yet been demonstrated

• and CASE will have an opportunity to litigate both the adequacy of the system and the adequacy ofits implementation.9 It also is not clear how Applicant's design program complies with the requirement of Criterion I that " persons.. performing quality assur-ance functions (for design].. report to a management level such that this required authority and organizational freedom, including sufiicient independence from cost and schedule when opposed to safety considerations, are provided."

It is diflicult for us to sympathize with Applicant's surprise that its compliance with Appendix B was being litigated. The contention being litigated is a quality assurance contention and the Walsh/Doyle design concerns were admitted as a portion of that broad contention.

Furthermore, these specific concerns about quality assurance for design were covered by Chapter XXV in CASE's Findings and Applicant had an opportunity to respond to those findings.

During the May 1983 hearings, both the Board and CASE asked ques-tions concerning the SpecialInspection Team's conclusion that Applicant would correct deficiencies before the plant was completed Furthermore, as the Design Decision states, questions concerning the reporting of nonconformances were addressed in September 1982. At that time, Ap-plicant did not argue that things labeled "nonconformance reports" were not required for design. It argued that, "[t]he item under consider-ation during design where you are going through an iterative process is not a nonconformance until you complete the design."lo Furthermore, 7 ee CASE's Answer to Motions for Reconsideration. February 1,1984 (CASE's Answer) at 12. argu-S ing that Critenon XVI of Appendix B requires a system for reportmg all construction deficiencies.

including those caused by faithful adherence to a defcient design.

s Criterion XVI requires that conditions adverse to quality be promptly identified and corrected. Com-pare Applicants' Reconsideration at 19. "serstriccat conditions adverse to quality are identified."

(Emphasis added l Although Criterion XVI restrxts the requirements to identify the cause of a condition and to docu-ment that condition to sigerfirset deficiencies, the requirement to Meert/jr conditions is not restricted by use of the adjective. "sigmficant." We anticipate receivmg evidence concerning how Applicant's system actually handles specific deficiencies that have been detected.

'Sce CASE's Answer at 1719 In this regard, we recosmze the prodigious efrort put in by CASE's unpaid volunteers, but we urge it to assist the Board (and the other parties) in bems able to determine which aspects of prior exh4 bits bear on any new arguments presented by Apphcant. In particular. we re-quire CASE to make a good faith efrort to see that new O! mss be susceptible of being understood with-out numerous cross-references. The cros> references are necessary to document what is m the record, but the Board and parties cannot readsly undertake extenssve tours through already-filed documen's without an explanation in a filed pleading of what CASE beheves those documents stand for.

We also note that the Board appears to be more ready to admit its mistakes than are the parties. We encourage others to be more ready to admit their mistak6s and to concede pomts erroneously decided in their fasor.

10 Reeds. Tr. 5185 Finneran agreed that "until des gn of the ir stallation is complete there is no non-conformance cond; tion." Tr. 51% S<e s6a Taylor istafrs Reudent inspector for Construction). Tr.

(Consusued) 514 w

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immediately after this question on nonconformances, Applicant elicited information from its witnesses concerning the use of CMCs, which it ap-parently considered to be a related question. At that time, Mr. Finne-ran's testimony about CMCs did not include the reporting of design defi-ciencies as a purpose of that document.88 Although Applicant will be permitted to show that it has an adequate quality assurance system for design, we do not consider it appropriate to modify any of our conclusions on this matter. Our conclusions fairly rep-l-

resent the state of the record.

D.

Applicant's Argument About 9 50.55(e)

We found that the "need far prompt identification of deficiencies

[ pursuant to Appendix B, Criterion XVil is consistent with 10 C.F.R. {

50.55(e)(1)" and that fulfillment of the { 50.55(e)(1) requirement to report significant deficiencies requires that the " ongoing quality assur-ance program for design... have the capacity to spot, track and resolve significant design deficiencies on an ongoing basis."12 Applicant asks us to reconsider this position and to state that { 50.55(e) "does not impose any requirements concerning the timing of activities under Appendix B."" This we refuse to do. We have merely interpreted two sections of the regulations to be consonant with one another, a standard method of regulatory interpretation. The requirement for the " prompt" detection of deficiencies in Appendix B assures that significant deficiencies should be promptly detected and reported pursuant to { 50.55(e). We fail to un-derstand what other position Applicant would have us adopt.

E.

New Arguments Applicant would have us rule that new arguments presented in Find-ings are to be disregarded. Ilowever, its basis for this argument rests on two flimsy legs: (1) that it is a basic characteristic of administrative procedure that a party have the opportunity to know and meet the argu-ment of the other party,14 and (2) that Union Electric Co. (Callaway Plant, Unit 1), ALAB-740,18 NRC 343,350 (1983), contains language i

"Ap.*cnda B, in deahng with nonconforming conditions, does not adJtess nonconforming 670h design. It cnly addresses the conformance of the installed hardware and the mspection thereor to the design."

11 Tr. $185*

12 Design Dnium,18 SRC at 1414. ser Apphcant's Reconsideration at 9.

U Appucaat's Reenmideration at 9

• cs K Dnis. Admmis:rative Lam Treatise 6 701 s1M51. Apphcanti Reconsideration at 14A ppncane 17, 515

suggesting the need to present "an analytical disagreemene" to an oppos-ing witness for his consideration.

The first leg of this argument presents a truism that is inapplicable in this proceeding. Applicant has had an opportunity to learn about CASE's allegations through discovery. It could have asked for a prehear-ing conference to discuss in advance the parties' positions. It could have asked for the advance filing of findings (as we have ordered for subse-quent hearings) or a trial brief. It did have an opportunity to file a reply to CASE's Findings. And if new arguments were made that required additional evidence, it could have moved to reopen the record for that purpose. We conclude that Applicant had an ample opportunity to know and respond to CASE's arguments.

As to the second leg of the argument, we find little factual support for the proposition that Applicant was prejudiced in any way by late-filed arguments and we do not interpret the Callaway case as barring new arguments in an intervenor's proposed findings.

Applicant has the following introductory remarks to make about its po-sition that new arguments are barred:

The reason to foreclose new arguments is that Applicant was not afforded the oppor-tunity to meet the new argument with responsive evidence or cross-examination. In 4

addition, we have identified below three instances in which the Board clearly relied on new arguments in reaching its conclusions.18 Because the Board also relies on record materialin deciding these questions, however, we do not ask the Board to reverse its conclusions but to revise them to reflect that a decision on these ques-tions would be premature without alTording Applicant an opportunity to respond.

in this passage, Applicant clarifies its position on new argtiments. It does not claim prejudice from any arguments made by CASE in CASE's i

findings. Its sole claim to prejudice is that it was not permitted to re-spond to arguments made by CASE in its reply to the aflidavits filed by the Staff concerning open items left after our hearing session.

We note that both of the arguments to which Applicant alleges that it had no opportunity to respond were, as Applicant admits, based on record evidence. The arguments were clearly set forth by witnesses.

They related to open items that were addressed by Applicant in its findings. Furthermore, Applicant was under a clear directive by this Board to address all (potentially significant) evidence, including adverse evidence, relevant to its proposed findings and conclusions. Applicant had both the opportunity and the obligation to explain the relevance of 18 IFootnote from Arpbcant's Fmdings:1 See Memorandum and orderat 13. s 35 lis NRC 1419 n.35]

(tcrsional momems in Rwhmond inserts and shield mall thukness near t.s '.rrer lateral restramtt l

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in Applicant's Reconsideration, there wis another opportunity to file airguments concerning these matters. With resfect to axial torsion in the Richmond Inserts, Applicant eschewco 2iis o;portunity to present any new arguments. It mer.ely states that if his "obtained the independent

'tpinions of o.utside expees on this +oint" and it asks the Board to ereconsider t'hficcord on this' matter.i* With respect to the thickness of i

the wall near the upper lateral restraint. Applicant does not make any arguments at this time either. We find no prejudice to Applicant from this alleged lack of an opportunity to respond.

^ 1%or do we find the citation of the Callaway case to be persuasive. In i

1that case, the Appeal Board was consideringin argument made in an in-4 tervenor s proposed fir dings, based on a citation to extra-record scientif-

% k material that could have been officially noticed.it We applied the Cal-s

' ! sway principits by refusing to (d) on yimilar citations to scientific mate-rial in this case.18 The Appeal lhard's language in Callaway re'ated to a situation in which interver. ors had piesenled no witnesses and had not even conducted croIsi-exam}tiation fallaway does not support Appli<

cant's argumet,t ' th.t we most igfus'e to consider new arguments con; s,

cerning evidence that is already in the record.

We do not change our coiiciusion that, absent some procedural considl era 69n not present in thb ca<c, proposed findings may make new argu-reenis about r'ecord evidence-f

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T.' Specific Factual Findle'u

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bmd a fames o.n.cntirely new arguments A'id evidence concerning ing-t ters that have beerr litigated. This'is not proper in'a Motion for

,' Reconsidera: ion, which is an extraordirfary liling alleging error in a deci-s sion of the BoQd. A motion for reconsidstption should not include new i

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e strate prejudice to Apphcant resultir.g fwn our of terprets%cn t&v ei rnwswe r Gv durhonry v

e tilartsulle Nuclear Plant. Untis t A. 2A,.n and :St \\L6%463.MM 341,132 (197tL in which late 61ed docunients were considered h the grreat BWfd Sever *r (*r their r'me importance to put*!ic health )

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relates to a Board concern that could not reasonably have been anticipated.

Although we need not address in this decision any improper new argu-ments or evidence, we have chosen to address sorne of those arguments in order to communicate the Board's understanding of these matters and to facilitate the eflicient progress of this case. There will be tim: to ad-dress these arguments more fully after new evidence is taken with re-spect to the Plan the Applicant is filing at the Board's request.

1.

Mr. Michael A. Vivirito Applicant requests that we revise our decision to be less critical of Mr.

Michael Vivirito than we were in the Design Decision,18 NRC at 1420 n.37. After reading Applicant's comments and reviewing our decision, we conclude that some softening of our language is appropriate.

Mr. Vivirito was in many ways an impressive witness, with good con-i trol of technical matters and an ability to explain complex matters to us in a way that we could understand. His testimony concerning thermal ex-pansion was particularly helpful to us.

Our concem with Mr. Vivirito's testimony is that he seemed at times to be too ready to dismiss matters as falling within his engineering judgment, without providing the Board an adequate explanation. He also presented to us some testimony that, while carefully described as "only background," nevertheless could have implied to Gibbs & Hill employ-ces that Mr. Vivirito has so:ne feeling that regulatory requirements for seismic analysis are unnecessarily strict. Since we are aware of the impor-tance of compliance with regulatory criteria and of the tendency of the industry to feel that it is over regulated, we became uncomfortable with the statement Mr. Vivirito made to us. The statement bore the possible meaning that Mr. Vivirito did not feel that rigorous compliance with seis-mic requirements was necessary to the safety of the plant and we were concerned that members of his organization could adopt this attitude, ap-parently held by a senior official of their company.

Although we continue to be sensitive to this issue, we think we were overly critical of an isolated comment made in one portion of a lengthy regulatory proceeding. We do not have reason to believe that this single passage of testimony reflects an attitude that prevails at Gibbs & Hill.

We expect that Mr. Vivirito's sincere efforts to listen to the Board's con-cerns and to assist us in our decision process is more reflective of Gibbs

& Hill's attitudes toward regulation than was this one remark We apolo-gize for making too much of this one statement.

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.s, App!icent tr'ie)s bri extra-record materials to rebut the Board's linding that Mr. Keraft ku some supervisory responsibility. Although Applicant has ne',yet presented evjdence on this point, we are confident that it will dc so in order to establish its point. Similarly, Applicant has pointed s

out to us that we mistakenly attributed an incident that occarred at the Fast Flux Test Facility to the Comanche Peak facility.i'

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These factual errers occurred in a portion of our decision where we were trying to ascertain the first date on which Applicant was aware of possible instability problems. The result of this change of facts is,

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date of Applicant's knowledge is some time in 1931.8 Since there are no data in our record concerning how Applicant dealt with this deficiency,25 e

e and since' the burden of proofis'on the Apriicant, we have no basis for

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" concluding that it was handNd in a ryasonably prompt manngr'. We will have to awai;further evidence ta reach a conclusion on the edequacy of l

Applicant's system for promptly resolving design deficiencicf J

In deliberating about this point, however, the Board has become r

aware thatlhe, entire m'atter ofinstability has been handled in an incom-e plete mantiEr in ou(record. There are abstract discussions of the natm f ','.

of pipe support instability, including hard-to-understand descriptiom.of.

a model tlut 15"not in our record, discussions about a pen standirbn #

I end, language about instabilities that exist only when a pipe is "riisdng" and other abstract discussions. What is needed is a review of a oetailcd,,

worst-case sample ofiabout five of the thirty caces of instability iny'es E

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,the relati6pship between the design process and the stability of pipe g'_

supports bme of the rdevant issues are:- (1) whether the forces and

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• 28 Testimony of 4 stafr metrw that t*ie croblem was "idennCes durins the normal design review pr<.

cW does not is Abbshhat the Weblern wat ident Ged and res ularly in light (I' the Boarrs findingt'concefmns the ade h'4ved with reasonable promptn a.:y of cinching up U bolts to p'tvent m

totauon See A)qetana's rir' Sings at 40.

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the nature of the instability, including the conditions under which it would exist and the likelihood of those conditions oc arring, (4) the extent to which Gibbs & Hill was provided with all the information about the performance of the support that they needed for the purpose of doing a revised pipe run analysis and a local pipe stress analysis, (5) the reason that these supports were unstable (6) how Applicant identi-fied these instabilities and the process by which it resolved (or is resolving) them, including the paper trail of that process, and (7) the potential safety significance of these deficiencies.

i The Board acknow edges that its conclusions about the adequacy of Applicant's program to identify analogous problems or to promptly cor-rect design deficiencies was a conclusion based on a record that may have been incomplete. The Design Decision should be interpreted to be consistent with this statement.22 3.

Walsh and Doyle Applicant states that it never intended to impugn the veracity of Walsh and Doyle22 and has asked that we clarify that fact for our record, which we gladly do. When the Board stated that Applicant had used the limited role of the STRUDL Group to question the credibility of Mr.

Walsh and Mt. Doyle we might have more correctly stated that tiley used the. limited cole of that group in the total design sequence as a way of arguing that the testimony was entitled to less weight.

We also accept Applicant's request for clarification concerning the breadth of knowledge of Mr. Walsh and Mr. Doyle. It accords with our understanding that Walsh and Doyle had a limited rerrscal siew of the entire support design process, by virtue oi use function t.f the group they worked inl, but] they had a broad hori:ontal view from which to observe a large number of support designs in the combined year

'and one-half they were employed in the STRUDL group.24 22 our summary or our own conclusion was that Arphcant has "not demonstrated the existence or a system that promptly corrects design deficiencies

" Design Decision,18 NRC at 1412. our conclu-sions mere based on the evidentiary record as it esisted. See afsa Design Dectsson.18 NRC at 1453 (acknculedstrip that rurther proorand anal >ns cou!J cure the Boasd's difTiculties).

23Apphcant's Findirgs at 23-24. Comerre. however. CASE's Answer en Doyle Depostion at 3. twe are not anare or the issue or the Circus Br*sArr to * *nch CASE rerers. but we are conrident that it mui be brought to our attention w hen inumidauon rnaturs are Lt.gisted )

24 Applicant's Reconsiderauon at 26.

MO e

We do not think that Mr. Walsh or Mr. Doyle disagree with this charteterization.25 On the other hand, we continue to believe that there would be serious reper:ussions for our confidence in the design of other portions of Comanche Peak were we to continue to be uncertain as to whether there I

were serious deficiencies in the design process for pipe supports or in specific designs for pipe supports.

l 4.

Specific Stability Questions Applicant urges that we reconsider our finding 26 in which we ques-tioned whether the rate of unstable NPSI supports would be similar to the rate of unstable supports by the other two pipe support design groups. Applicant's request is based on the Affidavit of Mr. Finneran, dated June 3,1983, and apparently not relied on either in Applicant's Findings or Applicant's Reply. Our review of that document, which was l

submitted to the Board at its request and should be considered to be in j

evidence, persuades us that the design review had progressed further than we had thought.27 Consequently, if evidence persuades us of the ad-equacy of that review, including the appropriateness of Applicant's defi-nition ofinstability (which has not been discussed) and the thoroughness of its survey examination, we will at that time accept its conclusion that only 21 of 13,681 supports, drawn from all design groups, were unstable.28 Such a finding would, of course, go a long way toward giving the Board confidence in the stability of supports.

Ilowever, we decline to accept Applicant's suggestion that we may have inadvertently relied on a SIT Report discussion regarding " piping systems" in drawing conclusions about piping supports. The full quote from page 28 of the SIT Report is [ emphasis added):

It is not general industry practice to explicitly address the overall stability of piping systerns together muh their supports in design guidelines. Rather, it is standard industry design practice to address only the structuralintegrity of supports in design guidelines. The Applicant's practice corresponds to this industry practice. Thus, no j

explicit design guidelines address overall stability. Functional adequacy, including i

1 25 ft would appear to be time for the stafr and Applicant to confer in detail with Mr. Walsh and Mr.

Doyle about o# the deficiencies they allege. $ce CASE's Answer in Doyle Amdavia at 4 (there appear to be further problems that Mr. Doyle and Mr. % alsh have not yet brought up).

26 Design Dectsson at 1426 n 68 Note that tr reference should be to Applicant's Reply rather than to Apphcant's Fmdings.

27We interpreted Appbcant's citahon of ea.

' testimony to have been a representation that the reuew had m pregreswd as far as it apparently has progreved. Apphcant's Reply at 13 n.6. rehed on earner tesumeny and did not cite the finneran Amdavit which was riled 3 months previously.

2 Finneran Amdaut at 3 5.

521

stability, of the overall piping systern is typ:cally a result of the normal iteratise design and review process.

We relied on this passage for a finding that there were no design guide-lines that address stability of pipe supports.2+ We do not understand how the iterative design process would substitute for such guidelines, al-though we may be persuaded of that through further proof.

Furthermore, as we explained, we rejected the SIT's conclusions, found in the unquoted remainder of the paragraph we have cited, that stability problems may be avoided by cinching up U bolts around pipes.

We note that this discussion appears within a section of the SIT Report devoted to " Stability of Pipe Supports Designed for CPSES."a Immediately fo!!owing the paragraph we discussed above, there is a para-graph about the identification of unstable, nonrigid supports in Appli-cant's design process.li This discussion does not, however, track Appli-cant's review process from the time Applicant became aware ofinstabili-ty problems, probably because the SIT was not concerned about the question of whether or not deficiencies were being cured promptly.

A consequence of the SIT's approach, as explained in our record, is that the Board was left without a reasonable explanation of: (1) why design guidelines concerning stability were not necessary, and (2) whether design deficiencies are corrected promptly. Our conclusion is that this aspect of our decision is correct.

On another matter, we find that we properly construed the SIT Report's statement tha "[d}esign modifications under consideration

[ emphasis addedl by the Applicant are intended to prevent rotation of the box frame around the axis of the supported piping."32 If the SIT meant to indicate that this problem had been resolved, the word

" consideration" was ill-chosen. If the SIT would like to clarify its tes-timony or the Applicant woui! like to document its resolution of this problem, this aspect of our reco. I might then be resolved to Applicant's satisfaction, but we do not think ti.e SIT Report bears the meaning Ap-plicant urges.33 29 Design Decision,18 NRC at 1426.

M SIT Report at 27.

31 M at 28.

33 M 33Apphcant's Reconsiderabon at 24.

i hben

5.

Eriction on Pipes Attributable to U-Bolts We accept Applicant's clarification that it uses SA-36 steel in U-bolts, rather than the equivalent SA-307 steel we said it used.n Ilowever, we decline to rule on Applicant's new argument concerning the interpreta-tion of ASME Code Section XVII-2462.1-31. In particular, we do not know whether the quoted section applies by analogy to the use of SA-36 steel to produce clamping forces that will restrain rotation of a pipe 35 and we have no evidence either about how great those clamping forces are or how great they need to be.

We do not consider it essential to our findings that Applicant may have initially designed its U-bolts to be cinched down. Although we con-sider the SIT Report, on rereading, to be somewhat ambiguous on this point, our finding on this subject merely helped us to feel that we under-stood how this possible problem of improper use of U-bolts arose.

Should we be convinced that U-bolts were designed to be cinched i

down,* we would still need to be convinced that they exert sufficient clamping force to prevent rotation. If they do not exert sufficient force, the argument about the initial concept of U bolts will only deprive us of an explanation that helped us to understand how this might have arisen.

Applicant's argument does not persuade us that the U-bolts will exert sufficient force to restrain rotation.

In concluding our discussion of this point. we would note that the sys-tematic discussion of instability which we have asked for, above, could help us to understand the nature of the stability problem and relate it to this question of clamping force. There is nothing in our record that quantifies in any way the amount of clamping force necessary to avert instability.

6.

Clamping Force The Board agrees with Applicant's statement that ASME Code Section XVII-2461.1 1 does not state that local stresses from SA-307 steel are too great, but we never gave that section that interpretation. The only purpose of our mention of this section in the context of local pipe 34 Applicant's Reconsideration at 20 llomever, the label attached to this steel does not seem to be sig.

nificant smce the different labels apparently refer to the same material applied to different uses. See CASUS Answer in Do>te Afridant at 4.

35Although his statemerit is not yet in evidence. Mr. Doyle beheses that AS\\tE Nvl!.2462 applies and that Apphcant is not in compliance with it. CASES Arswer in Dosie Afrklmt at 4 This matter may be htigated a Mr. Doyle apparently will testJv tand produce esiderce) t'ai the mJrWIdc!Urer did not miend these U-bolts to be cirnivd down. CASE's \\r.sm er m Dwe Deremian at ?

523

stresses was to negate the possible inference from that section that SA-307 steel could not induce excess stresses. As we said, that section does not, however, exclude that possibility.37 With respect to clamping forces, we admit that there is substantial per-suasive force to Applicant's new argument that we have erroneously equated forces in pounds with stresses in psi.3: However, we are still without any explanation of the magnitude of the local stresses caused by l

the " soft" pipe clamps and we are confident that such an explanation should be easy to provide in the course of Applicant's forthcoming explanation ofits treatment oflocal stresses from stiff pipe clamps.

At Applicant's request, we have also reexamined our discussion of the Stafrs testimony about inspections of U-bolts.39 We find no error.

The Staff relied on the inspection as a way of assuring that the U-bolts have not been overtensioned.*o However, "overtensioning" should be l

understood in the context of the combined load to be faced by the U-bolts, including subsequent thermal and seismic stresses that are not ob-served during the walkdown. We conclude that Staff was incorrect in placing any substantial reliance on walkdown inspections as a method for determining that the preloading stresses are acceptable.

A further concern of Applicant is that we should not have stated that its engineers may not have been "sufficiently sensitive to plant safety."*i However, our statement came in the context of a discussion of whether localized stresses have been adequately considered with respect to st(ff pipe supports. In that context, it is our understanding that the stresses exceed a reasonable margin of safety but that Comanche Peak's engineers did not attend to that problem, even though an analogous problem concerning " soft" supports had been called to their attention by CASE. If we should subsequently receive evidence that reasonable consideration was given to localized stresses from stiff pipe supports, we would then find it appropriate to rescind our characterization of the engineers.

With respect to whether or not Mr. Doyle presented " detailed calcula-tions" of thermal stresses on U-bolts, we may have made a semantic error in so characterizing his testimony, but Mr. Doyle discussed test data that he used to extrapolate data he considered relevant to the U-bolt problem.*: CASE's findings discuss the precise amount of thermal 37Desten Decision,18 NRC at 1431.

38Apphcant's Reconsideration at 31.

391.1 at 30.

40 stT Report at 32.

41 Applicant's Recontderamn at 32. arms Design Decision.18 NRC at 1434.

• 2 casus Findsnss at IVJ o 524

i expansion that would be expected for a pipe /U-bolt assembly covered with 900* insulation and also calculates the portion of the U-bolt that would not be in contact with the pipe at all. Given Mr. Doyle's earlier calculations of stresses from pretensioning, which equal or exceed the total allowable, these " calculations" or " extrapolations" from experi-mental results required that Applicant answer.43 Applicant also asks that we acknowledge that the responsibility for local pipe stress analysis has been assigned to Gibbs & Hill; however, the evidentiary support offered for this statement is a weak reed. Appli-cant points to a portion of the SIT Report dealing with Welded Stepped Connections.44 That section states that Gibbs & Hill analyzes " local ef-fects due to integral attachments." However, it does not discuss any re-sponsibility to analyze local effects from nonwelded attachments and it is our understanding of the iterative design process, based on a portion of the record made subsequent to the filing of Walsh/Doyle Findings, that level of detail usually provided to Gibbs & Hill is insufficient to make local stress analysis possible.45 We are also not aware of any local stress analysis performed on nonwelded attachments or of any analysis that demonstrated that such an analysis was not necessary. With respect to "stifr' supports, at least, it appears to be necessary but not to have been done.

7.

A WS Code In its request for us to reconsider our findings on the AWS Code, Ap-plicant does not appear to have understood the basis for our conclusions, so we will attempt to state them in different terms. Appli-4 cant claims to comply with the ASME Code by performing weld qualifi-cation tests. However, it has not described those tests to us so we do not know the extent to which compliance with those tests would satisfy other industry standards found in the AWS Code. Applicant has admit-ted that some AWS Code sta'idards are applied by reference despite the ASME Code standards. We want to have a basis for determining whether Applicant has correctly defined the standards that should be applied by reference and those that need not be applied because they are obviated by compliance with the ASME Code.

83 This argument. which we consider to be larsely semantic. does not seem subently senous to have found its may mto Apphcant's mouen.

44 stT Report al 49 48 Taylor, Tr.8922 25.

525

l Applicant also has questioned our Dndings about when Mr. Doyle in-formed it that AWS Code provisions should be applied to Comanche Peak. Applicant appears to be correct that the finding is based on a CASE finding that was not supported by the record.* However, this error is not relevant to our basic concern about wh.-ther AWS Code pro-visions are being applied to Comanche Peak. It is relevant to the ques-tion of whether Applicant has promptly correctea welding deficiencies brought to its attention. In the instance of the Beta provisions, adopted on May 11,1982," it would be helpful if Applicant explains and docu.

ments how its quality assurance program for design handled this problem with respect to each of the design groups, including how the problem was detected and what was done to assure the acceptability of previously -

i made welds.48 With respect to other AWS provisions, the operation of the quality assurance program need not be explained unless we first find that there were deficiencies in not applying those other AWS provisions.

With respect to the application of Korol and Mirza criteria to NPSI rear brackets,* we accept Applicant's clarification that it has not adopted those criteria. However, we still wish to know whether the particular rear brackets are adequately designed.

Concerning repair of welds by " capping," we disagree with Applicant that Mr. Doyle did not submit relevant testimony.5o CASE's findings argue that complete fusion is needed for an adequate weld and it cites Mr. Doyle's testimony at Tr. 6262 in support of that proposition. Appli-cant never answered this argument and has not shown a basis for believ-ing th.it its repair procedures are properly qualified or are acceptable. We agree with Applicant that Mr. Compton supported its position and not CASE's,5i but we are unwilling to accept Mr. Compton's unexplained ac.

ceptance of cap welding as " customary" as assurance that the welding

r l

repair procedure is adequate.52 4

7 4

1. Applicant's Reconsideration at 3s.

47 CASE Exhibit 716 at 4 (page 3 orguedefines).

4: S,e CASE's Ans=ctin Doyle Depontion at 7.

1. Design Decision 18 NRC at 1436.

30A pplicant's Reconsderation at 36.

58 Tr. 7957 58.

52 It would have been helprul to us to have had Applicant's comment on this point prior to reaching our decissort inevitaNy. review or one party's findings withcut the benefit or an adtersary comment mill lead to too-ready acceptance or that party's point or t ee. In this instance, et too readily accepted CASE's charactenzation or the Compton testimony.

t 526 l

4

8.

GenericStiffness Values Applicant correctly perceives that our problem with generic stiffness values is not with the study submitted to justify those values but with Applicant's initial justification.53 In this instance, the SIT made an ad-verse finding and Applicant never explained why its design had the al-leged deficiency. This apparently was part of the Applicant's and Staft's approach, which was to show that deficiencies had no consequence but not to address how deficiencies had arisen or whether they were ade-quately addressed by quality assurance.

We also agree that the one specific design problem mentioned at 1443 of the Design Decision was not related to the generic stiffness problem.

This might more properly have been discussed in a separate section of our decision, called " Potential' Rotation of the Plate in One Support."

9.

DifferentialSeismic Displacement i

Applicant's current explanation, which was not available to us prior to issuance of the Design Decision, persuades us that Applicant may be able to explain this problem to our satisfaction. However, our record is still devoid of evidence concerning how it came about that PSE violated its own design guidelines, how this event came to be reflected in the design quality assurance system, and whether this problem was resolved promptly, as required by 10 C.F.R. Part 50, Appendix B, Criterion XVI.

10. Testing ofRichmondinserts We fail to understand from Applicant's argument why the Board may have been incorrect in its Richmond Insert findings. Although it is true that the Staffs findings, adopted by the Board,54 failed to mention shear cone analysis done by the Applicant,55 Applicant has not persuaded us that this omission is relevant to the Staft's findings concerning

" allowable tension loads."56 The SIT Report concluded that, "[als a result of the Applicant's assumptions as to shear load capability (in Ap-plicant's calculation of allowaole tension loads], the specified shear load allowables are 50 percent higher for the 1%-inch insert than the value 53 Applicarit's Reconsideration at 37-38. However. CASE intends to challenge the appropnateness or using the stiffness study to generalize to other plant systems. This rnatter should be covered by the Plan Arrhcant intends to submit. CASE's Answer in Doyle Affidavit at 8.

34 Design Dermon. IS NRC at 1443-46.

55 Arphcant's Recon $deration at 1940

%Devan Decivon.18 hPC at 1445. NRC statT Response to Applicant's Reconsideration. January 27 1984. at 6 7.

I i

l 527 l

recommended by the manufacturer."57 The SIT Report found this to be a deficiency both because this was an inadequate safety margin, in the absence of further testing, and because " standard industry practice re-quires that testing be done to confirm the [ published allowable shear]

values."se Applicant correctly states that the ultimate question is whether "the plant, as built. can and will be operated without endangering the public health and safety."5' However, we wish to be assured that design quality assurance for pipe supports (including Richmond Inserts) has been adequate. Ifit has not been adequate, then we will examine other design issues before reaching a conclusion about the ultimate question of the safety of the plant.

1 II. Axial Torsion This is a part of our decision to which we addressed unusual attention.

Our reasoning was set forth in the Design Decision,18 NRC at 1446-49.

Of the two principal analyses set forth in our record, by Chen and 1

Doy!, we prefer the view expressed by Mr. Doyle, and Applicant has not even attempted to explain why we have erred. The fact that Appli-cant has had " independent opinions of outside experts" corroborating its view is certainly not even entitled to our attention.a II. STAFF'S RECONSIDERATION MOTION The Staff requests us to rescind that portion of our decision in which we state that the Staff argued that Appendix B iid not apply to design.

On one issue we consider that the StafTs point is s tiid, and an analogous point made by Applicant is also valid.

Obviously, both the StafTand Applicant have always. lieved that Ap-pendix B, Criterion III, which addresses design of a plan, explicitly, ap-plies to the design of a nuclear power plant. To this extent, both have ac-knowledged the applicability of Appendix B. However, both Applicant and Staff have taken an approach to this litigation that seems inconsis-tent with the realization that Criterion XVI, " Corrective Action," applies to the design of a plant. That is what we think Mr. Taylor meant when i

37 SIT Report at 19, SS lL l'(r.mphasis added by Applicant in Applicant's beortsideranon at 401 racvk Gas and Orctne Co.

i (Dntro Canyon Nuclear Power Plant. Unas I and 2). ALAB 756,18 NRC 1340,1343 (1983).

Arrt<2nt's Reconsideration at 41. CASE correctly points out that these are *rhatom" experis who.

M

"[hlasseg struck.. move on without tross-examination er reeuttat" CASE's Anseer at 25.

t

$28

he said " Appendix B

. does not address nonconforming design. It only addresses the conformance of the installed hardware and the inspec-tion thereof to the design."** Because Criterion XVI does not require reports called "nonconformance reports" for construction or for design, we can think of no other appropriate interpretation of these remarks than that Criterion XVI does not apply to design.

We are pleased that both Applicant and Staff now agree that Appendix B is applicable to design. In particular, Applicant seems to agree that Cri-terion XVI is applicable to design. We infer that the Staff also agrees f

with that position.

III. CASE'S RECONSIDERATION MOTION In general, we do not interpret CASE's Reconsideration as a challenge to our decision. It is more in the nature of anticipatory objections to the Plan that Applicant will file in response to our decision. To the extent that we suggested criteria for such a Plan, these were just suggestions, not binding on either party. It will be open to CASE to attack CYGNA as an inappropriate design review organization, providing that it has the evidence to do so.52 It will also be open to CASE to attempt to diminish the credibility of the CYGNA report, should one be submitted, should it be able to establish a legitimate conflict ofinterest concerning the rela-tionship between Texas Utilities Electric Company and CYGNA.

IV. REOPENING THE RECORD CONCERNING APPENDIX B CASE argues, quite forcibly, that Applicant should not be permitted to submit evidence concerning its compliance with Appendix B, Criteri-on XVI. CASE believes that Applicant already had its opportunity to~

~

present the evidence and that it did not do so. We believe CASE's point is a serious one and set forth the following extensive quotation from its filing:

Applicant has had more than ample time and occasion to propose additional hearings if at any time they felt they were warranted Applicant chose not to do this. Instead.

41 Taylor. Tr. 6707.

43 We will not determine the merits of the connict of-interest controversy at this time because the matter has not been fully htigated. However. the current state of the record tends to minimue the irn.

portance of the conAict of-interest allegation. Applicant's Answer to Case's \\torion Dr Reconsideraticn of Board's 12/28/83 Memorandum and order (Quahty Assurance (cr Designs, February 1.1984. Afrida-vit of David H. Wade (attached).

529 l

i Apphsant he sutmied the Licensing Board and parties to a constant birrage of pleadings and argurnerS to hurry up and close the record because " delay" by the Board could adserseb er'rst Applicant's phony fuelload date.

Applicant was arguing n far back as September 16.190. that "the record as it stands right now n more than adequate for the Board to make findings on the allega-tions raned by Mr. % abh and Mr. Doyle." (Tr. 5416/11 14.) Applicant's constant haranguing to c/me Me rccord has continued right up until the Board's 12/28/83 Order when Apphcant Gnally perceived that it had had its chance and had blown it.

Throughout their pludirg. Applicant admirs that the Board cannot find t!.at Ap-phcant's pipe support design process satisfies the requirements of 10 C.F.R. Part 50, Appendix B. It argues that the Board should not find it in violation of Appendix B but should instead, without any basis in the record, allow Applicant to basically go back and start oser at thts late date. CASE can just imagine the response of the Ap-plicant and NRC Staff had CASE made such a suggestion! In fact, the Board has refused to allow CASE to supplement the record in some instances a! ready..The Board cannot use a double standard in these proceedings.63 Regrettably, we are unable to accept CASE's suggestion because we do not consider reopening by either party to be entirely symmetrical.64 We are permitting Applicant to reopen the record without a showing of good cause because it does not seem to us logical or proper to close down a multi-billion dollar nuclear plant because of a deficiency of proof. While the:e would be some " justice" to such a proposition, there would be no sense to it.

Furthermore, we note that intervenors receive several procedural ad-vantages in our proceedings that also are not fully symmetrical and that compensate for the application of different standards for reopening the record. First, the Board has the authority to raise important issues sua sponte, thereby protecting public safety and the environment even when intervenors may not have raised the issues. Second, the Board has the responsibility to assure the adequacy of the record, thereby causing it to pursue more fully matters of public safety that may not have been fully H CASE's Answer at 5 6 44 We have considered whether CASE's point about reopenmg the record is irrelevant because the record has never been closed flomeser. there is no clear guidance concernmg whether the record should have been closed We coruude that the cacse relationship betw en the questions orleaving the a

record open for inadequacy or clound the record anJ entertainmg a monon for reconsideration requires the use of similar standards m these two situaticns.

In this case, there as a special rewn to consider these two questions to be similar. Prior to our deci-sion to lease the record open me 'ud already gnen the parties a chance to rile supplemental briefs ac.

companied by afridault on two m aen - the A% s Code and P:pe Clamp stresses - that we still consid-er to be inadequately addrened m n.t record We conclude that it is approrna:e k sonuder tre pos:ure cf tms case to be similar to the posture of a case in which appheant has filed a ~ction to trepen the epJ Conwaaently. me have chosen to ad-dress the applicabihty to this caw c ac preuous y enunwed surJards for recpenirs the record.

530

4 d

a pursued by intervenors. (For example, the Board has considered certain l

construction deficiency questions even though CASE failed to file find-ings on those issues.) Third, the burden of proof generally falls on applicants, who must therefore attempt to appreciate and rebut, by a pre-ponderance of the evidence, all the implications of all issues raised by intervenors.

in one sense, the reopening of the record does not seem fair. CASE has been put to unnecessary expense because it will have to prove its case twice. In addition, the need to continue disputing an already closed issue is an unnecessary tax on its volunteer resources. Because of the burden imposed by our decision and the lack of precedent for failing to apply the standard for reopening the record to Applicant, we have ex-tended to the parties, including CASE, an invitation fo request that we refer the Design Decision for review by the Appeal Board 65 I

i V.

THE ITERATIVE DECISION PROCESS l

We are hopeful that the Board's response to the pending motions for reconsideration will serve two purposes. First, to correct errors that have been brought to our attention. Second, to help to clarify matters in our i

decision that the parties had difficulty interpreting or that they consid-cred to be in error.

Our efforts to eccourage the filing of motions to reconsider are, we realize, somewhat unusual. However, we consider the exercise to be a j

constructive way to refine issues and manage the remainder of the proceeding.

i We anticipate that the next round of hearings should be the last. At j

some point, prolongation of hearings would represent a denial of due

]

process to one or more of the parties. We encourage the parties to pres-i ent their evidence and to prepare their required Proposed Findings with care, being sure to present a reasoned basis for the decision sought from the Board.

ORDER For all the foregoing reasons and based on consideration of the entire record in this matter, it is, this 8th day of February 1984, ORDERED 4

68 Deten Decmon,18 NRC at 1456 i

531 a

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f That Footnote 37 be struck from our Memorandum and Order (Quality Assurance for Design), LBP 83-81, prior to publication.

That LBP 83-81 shallin other respects be unmodified but that it shall be interpreted in light of the Memorandum accompanying this Order.

FOR Tile ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE

{

Walter H. Jordan (by PBB)

ADMINISTRATIVE JUDGE Kenneth A. McCollom (by PBB)

ADMINISTRATIVE JUDGE Bethesda, Maryland 1

532

Cite as 19 NRC 533 (1984)

LBP.8411 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

i Morton 8. Margulies, Chairman Dr. Jerry R. Kline Dr. David L Hetrick i

In the Matter of Docket No. 50 261 0LA (ASLBP No. 83 484 03.LA)

CAROLINA POWER & LIGHT COMPANY (H.B. Robinson Steam Electric Plant, Unit 2)

February 10,1 g84 The Licensing Board dismisses this proceeding finding that the with.

drawal of all remaining contentions by the sole intervenor has eliminated the basis for which the adjudicatory hearing was ordered.

ORDER DISH 11SSING PROCEEDING We ordered the holding of an adjudicatory hearing on the application of Carolina Power & Light Company to amend its license for operation of the II.B. Robinson Steam Electric Plant, Unit 2, to permit repair of the steam generators by replacement of major components. The decision was based on four contentions that were submitted by the liartsville Group, a party intervenor.

Prior to the commencement of the adjudicatory hearing on February 7,1984, the !!artsville Gmup withdrew one of the contentions and on 1

533

9 i

motion of the Applicant we ordered the dismissal of another. During the course of the hearing the liartsville Group withdrew its two remaining contentions thereby eliminating the entire basis for which the adjudica.

1 tory hearing was ordered. The need for a hearing no longer exists and therefore the adjudicatory proceeding is dismissed.

The matter of the amendment of the license may be handled by the Nuclear Regulatory Commission Staff.

It is so Ordered.

FOR Tile ATOMIC SAFETY AND LICENSING BOARD Morton B. Margulies, Chairman ADMINISTRATIVE LAW JUDGE 1

Dated at Bethesda, Maryland, this 10th day of February 1984.

I 1

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534

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4 Directors' Decisions Under 10 CFR 2.206 i

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• 9

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Cite as 19 NhC S35 (1984)

DD 84 4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Harold R. Denton, Director in the Matter of Docket No. 50-320 (10 C.F.R. 9 2.206)

GENERAL PUBLIC UTILITIES NUCLEAR CORPORATION (Three Mile Island Nuclear Station, Unit 2)

February 17, i fM4 The Director of the Office of Nuclear Reactor Regulation denies a pe-tition submitted by hfarvin Lewis requesting that the Commission post-pone the lifting of the reactor pressure vessel head at the Three hiite Island Nuclear Station, Unit 2.

TECHNICAL ISSUE DISCUSSED: PYROPIIORIC CONDITIONS Based upon the staft's ;eviews and experience to date, thcre does not appear to be an undue risk to public health and safety from the possible formation of pyrophoric materials in the pressure vessel.

DIRECTOR'S DECISION UNDER 10 C.F.R. I 2.206 By letter dated September 13, 1983 to the Secretary of the Commission, Str. Starvin Lewis requested that the Commission post-pone the lifting of the reaetor pressure vessel head at Three Afile Island Nuclear Station. Unit 2 (TNti 2). Str. Lewis' letter was supported by a letter dated November 1.1983, from Professor Earl Gulbransen of the 535

l l

l l

l University of Pittsburgh to the Secretary of the Commission. Attached to Professor Gulbransen's letter was a paper on the effects of oxygen, nitrogen and hydrogen on the mechanical properties of zirconium. Sir.

Lewis' letter and the supporting letter from Professor Gulbransen were referred to the Omce of Nuclear Reactor Regulation for treatment as a petition pursuant to 10 C.F.R. { 2.206 of the Commission's regulations.

I have reviewed the information contained in hir. Lewis' petition, the information in Professor Gulbransen's letter of November 1,1983, and other inforn ation pertinent to the issues raised by the petition. For the reasons stated in this decision, Str. Lewis' request is denied.

PETITIONER'S ASSERTION AND REQUEST Mr. Lewis contends that pyrophoric materialsi may well exist within the reactor pressure vessel (RPV) and that the quantity of these mate-rials is unknown. As a consequence, hir. Lewis believes that the lifting of the RPV head is a " dangerous maneuver" wh ch could result in a py-rophoric event. hir. Lewis bases the likely existerce of pyrophoric mate-rials within the RPV on the conditions which esisted within the vessel during the Thil accident. hir. Lewis contends those conditions were favorable for the formation of pyrophoric zirconium or zirconium hydride, which can react violently when exposed to air. Consequently, hit. Lewis requests that the RPV head lift be postponed pending a "public review" of the pyrophoricity issue. hir. Lewis' contentions are supported by Professor Gulbransen, who ;tiso asserts that finely divided zirconium or zirconium hydride may well have been formed during the accident. Given the potential pyrophoricity of these materials, Professor Gulbransen warns that these materials must be kept under water pending further characterization of their pyrophoric nature. lie urges that the greatest caution be exercised before proceeding with the RPV head lift.

STAIT REVIEW OF TiiE PYROPilORICITY ISSUE By letters dated hlay 25, hiay 26, and July 20, 1983 General Public Utilities Nuclear Corporation, the Thil Unit 2 licensee, forwarded to the NRC safety evaluation reports to support the planned reactor vessel Un-i rwrm m, are ihes. **xn are carase or,imim, isc:,eousn m air 536

1 J

derhead Characterization Study.2 This study was conducted during the months of August through October 1983 to gather data for the RPV head lift and involved a number of difTerent activities. These activities included the lowering of the water in the reactor vessel to a level approx.

imately I foot below the top of the plenum (see Figure 1), the measure-ment of the radiation ficids underneath the RPV head, the measurement of the radiation fields around the RPV head and service structure, the I

visual inspection under the RPV head with a TV camera, the measure-ment of the topography of the core cavity with an ultrasonic device, and the removal of six samples from the core debris bed. Inasmuch as these activities, specifically the lowering of the water level in the reactor vessel, involved the uncovering of equipment (the plenum cover) which was previously covered with water, it was necessary to address in advance the issue of exposing potentially pyrophoric material to air.

Accordingly, the issue of pyrophoricity was addressed by the licensee as part of its Underhead Characterization Study. Th-reafter, the hazard posed by pyrophoric materials in the TMI-2 reactor vessel was extensive-ly evaluated by the NRC staffin its review and approval of the Unden-head Characterization Study.) The staff was particularly concerned with the potential for pyrophoric reactions of materials on the plenum cover and of samples removed from the core debris bed. The stalTdetermined j

in its safety evaluation that:

(1) the presence of steam (I.e., an oxidizing agent) and the tem.

perature conditions during the accident would make it unlikely that significant quantities of zirconium hydride in a pyrophoric condition were produced during the accident, (2) the primary system flow dynamics during the TMI 2 accident would not likely have transported large quantities of pyrophoric i

material, if formed, to the top of the plenum, and (3) any pyrophoric materials in finely divided form would be dis-persed and mixed with inert materials of core debris which

]

would prevent the development of pyrophoric conditions.

Following the staft's approval, the Underhead Characterization Study was conducted by the licensee. As described below, all of the visual ob-servations of the reactor vessel underhead conditions and laboratory 3

i

}

2 s,e f.etter rrom B K. Kansa to L.H. Barrett, 4410-83 L-0098. UnderneaJ Charactentauon study (May 23.1983); Leiter rrom B K. Kansa to L.H. Barrett. 4410 83-L 0100, l'nderhead Characteritanon I

sER. Core Topography Addendum (May 26. 1983): Letter rrom B k Kansa to L H, Barrett, 4410J13 L 0133, Underhead Characterustnn sER Core samphne Adder %ra aJuiv 20.198D 3 Details concernens the staff's review are round in the rollowins letters t ener from L H Barreit to B K Kansa. NRCfrMI-83 043, Reactor venet Underhead Characteridanen Verv [6aluaaon Oulv 13, 198D. Letter rrom L H. Barrett to B K. Karisa. NRC/TMI-83-053. Resm to Core Dcbris Safety Listuation Re wrs (sER) ( Augun 19. 1983).

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l analyses of the chemical and pyrophoric properties of samples obtained from components within the reactor vessel and from solids filtered from the reactor coolant support the conclusions reached by the staff in its safety evaluation report.

The activities undertaken during underhead characterization to address pyrophoricity concerns were as follows. As a precaution prior to the lowering of the water level below the top of the plenum, the licensee conducted a closed circuit television underwater inspection of portions of the plenum cover and observed that only an insignificant layer of material, approximately I millimeter in depth, was present on some of the plenum surfaces inspected. This observation verified the staft's con-clusion that it was not likely that significant quantities of materials had been transported to the top of the plenum during the accident. Following the visual inspection, the licensee obtained two samples of the material j

from the plenum surface and the samples were tested for pyrophoricity by various attempts to initiate a pyrophoric reaction. The tests included e spark test (i.e., an attempt to ignite the material with an electrically I

generated spark) and a llame test (i.e., an attempt to ignite the material with a propane torch with approximate flame temperature of 2300*F).

l The spark test is perhaps the most reliable test for establishing the py.

rophoric characteristics of a material in question as it provides an initia.

tor (i.e., the spark) for a reaction, if one can occur. The flame test is an extreme test that would show whether the material in question has any tendency to ignite at all or whether the materialis completely inert.

For comparison with the tests on the plenum samples, the spark and flame tests were performed with some " cold" (l.c., commercially available, nonradioactive elements and compounds) materials in pow-dered form, including iron, zirconium, and zirconium oxide. The particle size for the iron and zircunium powders was 62 microns or less and the particle size for the zirconium oxide was 125 microns or less. The cold tests demonstrated that the zirconium powder would ignite for both the spark and flame test; however, the material did not ignite spontaneously in the laboratory at atmospheric pressure and ambient temperature (i.e.,

approximately 70*F). The powdered iron and zirconium oxide failed to ignite in either the spark or flame test.

The spark and flame tests on the samples removed from the plenum also failed to ignite the material, indicating the presence oflittic,.if any, pyrophoric material and the absence of any pyrophoric characteristics. In fact, the plenum s:.nples showed no more tendency to ignite than the

" cold" iron and zirconium oxide samples. Both the " cold" laboratory tests and the tests on the plenum samples were videotaped by the licen-see and the videotapes were reviewed by the NRC staff.

539

In addition to the pyrophoricity tests described above, the licensee per-formed chemical analyses of solids littered from the reactor coolant system and of the thin films scraped from the surfaces of the control rod drive mechanism (CRDhl) leadscrews removed from the reactor vessel head. See Figure 1. These analyses indicated the absence of zirconium metal and hydride particles. Based on the visual examinations, analyses and tests which indicate the probable absence of pyrophoric materials on the plenum cover, the NRC approved the lowering of the RPV water I

level to approximately I foot below the plenum surface, which enabled the licensee to proceed with the underhead characterization efTort. The water was lowered to this level to simulate the radiological conditions that will exist for the RPV head lift. As a result, the plenum cover has been exposed to air since August 20,1983, without any adverse impact.,

This condition has been visually confirmed by closed-circuit television inspection conducted subsequent to the lowering of the water level.

Additionally, the six samples which were removed from the core debris bed have been exposed to air for several months with no indication of pyrophoric reactions.

The information resulting from the visual observation of the plenum and the analyses and tests on materials removed from within the RPV indicates that: (1) little material is present on the plenum surface, (2) the material on the plenum surface is not pyrophoric, (3) material fil-tered from the reactor coolant system during the accident lacks any py-rophoric content, (4) material scraped from CRDht leadscrews lacks any

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pyrophoric content, and (5) samples of material removed from the dam-I aged core have not shown any tendency to undergo a pyrophoric reaction. Accordingly, the staff concludes that there is little potential for a pyrophoric event with the plenum cover exposed to air. The informa-tion provided by htr. Lewis and Professor Gulbransen is of a general nature concerning pyrophoricity and the dangers that phenomenon poses for the head lift. The staff does not disagree with the petitioner that pyrophoric conditions could have developed in the RPV following l

the Thti accident. For that reason, prior to the receipt of the petition, l

the staff considered the issue of pyrophoricity as it relates to the licen-see's proposed Underhead Characterization Study. Based upon the staff's reviews and the experience to date as described above, there does rmt appear to be an undue risk to public health and safety from the powi-ble formation of pyrophoric materials in the pressure vessel.

With regard to hit. Lewis' and Professor Gulbransen's cautions about proceeding with the RPV head lift on the basis of pyrophoricity concerns, it should be noted that the water level in the reactor sc>se: is crmntly at i foot below the plenum coser. This level is precisely that fN

Cite as 19 NRC 542 (1984)

DD 84 5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OFIN8PECTION AND ENFORCEMENT Richard C. DeYoung, Director in the Matter of Docket No. 50 293 (10 C.F.R. I 2.206)

BOSTON EDISON COMPANY (Pilgrim Nuclear Power Station)

February 27,1984 The Director of the Oflice of Inspection and Enforcement grants in part and denies in part a petition submitted by the Massachusetts Public Interest Research Group requesting that the NRC take action with re-spect to the state of emergency planning at Pilgrim facility. Among the specific relief requested was the initiation of the 4 month period speci-fied by the Commission's regulations within which to correct the alleged deficiencies at the Pilgrim facility and consideration by the Commission as to whether the state of emergency preparedness in conjunction with the alleged poor safety record at the Pilgrim facility warrants immediate shutdown or operation of the facility at reduced power.

TECIINICAL ISSUE DISCUSSED: EMERGENCY PLANNING The Federal Emergency Management Agency takes the lead in ofTsite emergency planning and reviews and assesses State and local emergency plans for adequacy. The NRC assesses the licensee's site emergency plans for adequacy and makes decisions with regard to the overall state of emergency preparedness.

EMERGENCY PLAN: EMERGENCY PLANNING ZONE The Commission's regulations preclude an Emergency Planning Zone l

(EFZ) radius significantly in exceu of 10 miles. An EPZ of about 10

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miles is considered large enough to provide a response base which would support activity outside the planning zone should this ever be needed.

EMERGENCY PLAN: EVACUATION PLAN The Commission has adopted an approach to emergency planning in which evacuation is only one of several possible responses to an emergency. It is unlikely that evacuation of the entire plume EPZ would 6

be required in the event of an accident. Pending a final determination regarding the adequacy of evacuation time estimates, it is reasonable to conclude that the public health and safety will be reasonably assured in i

the interim by continued licensee compliance with Commission require-ments regarding emergency planning and other health and safety re-quirements aimed at keeping the probability of serious accidents very low.

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INTERIM DIRECTOR'S DECISION UNDER 10 C.F.R. I 2.206 INTRODUCTION l

in its " Petition of the Massachusetts Public Interest Research Group l

for Emergency and Remedial Action" (Petition) dated July 20, 1983, the Massachusetts Public Interest Research Group (hereinafter referred to as Petitioner) requested that the Nuclear Regulatory Commission (NRC) take action to remedy alleged serious deficiencies in the offsite emergency response plans for the Pilgrim Nuclear Power Station in Plymouth, Massachusetts. Among the specific relief requested was the initiation of the 4 month period specified by the Commission's regulations, specifically 10 C.F.R. f 50.54(s)(2)(ii), within which to cor-rect the allegeo deficiencies at the Pilgrim facility and consideration by the Commission as to whether the state of emergency preparedness in conjunction with the alleged poor safety recordi at the Pilgrim facility 3 The Petition, in the relief it requested, made reference to the poor safety record at the Pdgrim reedity as a reason ror granties the relief. As sta'ed 6a the september 6.1983 letter to the Petitioner, with regard to Pilgrim's safety record smce 1981. in med 1982 the licensee initiated a Performance Improve.

ment Plan pursuant to an SRC order (47 Fed. Re. 4t*1 (19821) to imp ove the plant's performance s

This plan, whnh was sabmitted to the NRC on July J0.19112. has senior utility management involve.

ment in assurmg quality and has resulted in marked improvement in Pilgrim's operating record over the (Contsnoed) 543

warrants immediate shutdown or operation of the faality at reduced power.

The Petitioner's requcst is based upon a report by the Petitioner en-titled " Blueprint for Chaos II: Pilgrim Disaster Plans Still a Disaster" (hereinafter referred to as the Chaos !! Report), the " Comments of At-torney General Francis X. Bellotti Relative to Off Site Emergency Plan-ning for the Pilgrim Nuclear Power Station" (hereinafter referred to as the Comments of the Attorney General), and upon two reports by the Federal Emergency Management Agency (FEM A)

" Interim Findings: Joint State and Local Radiological Emergency Response Capabilities for the Pilgrim Nuclear Power Station, Plymouth, Massachusetts," dated September 29,1982, and " Report on the Pilgrim Nuclear Power Station Siren Test, June 19,1982," dated January 1983.

In its Chaos 11 Report, the Petitioner has reviewed offsite emergency planning for the Pilgrim facility and claims to have identined certain de6-ciencies with regard to the size of the plume exposure pathway Emergen-cy Planning Zone (EPZ), advance information provided to the public on what actions to take in the event of an emergency, required notincations during an accident itself, and evacuation planning and sheltering includ-ing the adequacy of reception and medical facilities. In each of these areas, the Petitioner makes various recommendations as to actions which it believes are required to improve the state of preparedness at the Pilgrim facility. The Petition states that the Ondings of the Chaos 11 Report are supported in part by a telephone survey of 100 residents of the EPZ conducted by the Petitioner. The survey was conducted between February and May of 1983.

In further support of its Petition, Petitioner references the Comments of the Attorney General which also question the adequacy of emergency planning for the Pilgrim facility. SpeciGcally, Petitioner argues that the Comments of the Attorney General support Petitioner's claims that the EPZ has been drawn too small and that evacuation plans are inadequate.2 The Comments of the Attorney General are based in part upon a study prepared for the Attorney General by MilB Technical Associates of San Jose, California.

past 2 peers. The fan statemane Assessment or Licensee Perrormance report. for the period Jufy I.

1982 to June 30, 1983. gave Pifsrim a Category I ("high-level performanse7 rating in emergency planmng. a Category 2 ("sainfastory performance") ratang in plant operst ons and an overall eategory 2 raung in the eight ran6tional areas assessed since late 1998, there has been conunveJ 6mprovement en Pitgrim's performan6e with respect to operational safety. A sahsractory lesel e(management attention and mvehement m plant safety matters now entsts.

3 The Comments of the Attornev General were forwarded to FDI A on knu 2! 1942 % hile the Comments of the Attorney fieneral rane other issues related to the Pilgnm editi, the Cornments are rehed urn by the PeStp'ner neiy to support its claims regard ng the adequo 4 the nrrect f r/ site and esatuauon planning Sv Petition at 6, Chaos il Report at 26 544 l

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s DISCUSSION both the NRC and FEMA. The NRC Fi 4

ewed by (45 Fed. Reg. 55,402) became effectivep M mergency Planning and the NR

• Nye joiriCy developed crite(w for im lovembe c

regulaf,ansd (Qifii lly'the ifgencies have d p ementing these l

rnent enolled, "Crkria (pr Pre'paratiot and Evaluation ance docu.

Emergerhi litspotise Plans and Prepar dnessln Sup of Radiological Power Plat:.$," NUREG 0654/ FEMA ALP 1 e

ort of Nuclear

" Memorandum of Understanding 11The too escribed in a Radiological Emergency Planning and P/cparedness"etwe (45 Fed. Reg. 5847). Umer ahe.Memorand

, of January 1,19X0 i, '

FEMA takes the leatt/t, off54tc er9crgency planningum sesses State and local'e.pergery piits for adequacy Thand re the licensee's site emnignoi plans for adeq e NRC assesses with regard to thc overafl wte of emergency prep r duacy at the Pilgrim facility la x.cordance with t a e ness. The NRC pre @edness rule in emergency ptaaning, ents of the final s

NRC Rr3!EW

's plan in 1979 in cent : clieThe NRC pitiatet the oroess o l

a plication fer Pilgrim W ' 2. Following the rule chwith 1980, an upgraded s e

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. 4RC's evaluation of the licen facility. The results ot o nergert y plan and an examination of the implementati conducted during an Emergency Preparedness Imptem on ordig p'sn, (EP3A) on July 13 24, 1981

, are summarized in inspecti6n'Reporten 50 293/81 15 dated June 22, 1932.

that certain corrective actions were requir d b The findings of the EPIA indicand emergency plan and in te imp!cmentat e

y the licensed i'a ttG order to achieve an effchive emergency:ren of,its emergenchplarptt EPIA also identi0cd areas oflesser significance where t imiv.ove its emerg'ency preparedness. The l!censee re e censee cou'd cerns identified by the NRC in a letter datg l 16ty 28 1932

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.e to the con-licensee concluded that the significant findif:gs whi h h

, whercip the in the EPIA report had been adequately e

ad been identd.ed of the licensee's response to the EPIA repartaddressed. Followin

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NRC met with the licensee to discuss the status of EPIA findings. The NRC agreed with the licensce's actions on sixteen of the twenty signifi-cant findings, and only four of the twenty significant findings required further discussion. These four areas were dose assessment, recommend-ed protective actions, in plant surveys, and procedures related to emergency repair and corrective actions. After discussion of these four items, it was resolved that the licensee would take the necessary correc.

tive actions. In its November I,1982 correspondence, the licensee reported that all planned actions relevant to the significant findings had been completed, informed the NRC of the progress on actions planned pertaining to the improvement items, and transmitted its response to the emergency plan evaluation findings. The licensee's response ad-dressed each item identified in the EPIA. On December 29,1982, the NRC Region i OITice acknowledged the corrective actions that had al-ready been taken and those planned by the licensee and informed the licensee that all corrective actions would be examined during a future inspection.

The licensee's action on the significant findings was verilled during follow-up inspections conducted by Region I of the NRC on March I 4, 1983, and June 21 August 15, 1983, and summarized in Inspection Reports 50 293/83 05 dated April 20,1983 and 50 293/8317 dated September 8,1983. Within the scope of the follow up inspections, no violations were observed and only one inspector follow up item was identified.

in addition, on March 3,1982 and June 29, 1983, the licensee con.

ducted full scale emergency exercises which were observed by both the NRC and FEMA. The NRC's findings are presented in inspection Reports 50 293/82-09 dated March 24,1982 and 50 293/8316 dated July 29,1983, in which it was determined that the emergency response actions taken by licensee personnel were adequate to provide protective measures for public health rnd safety. As a result of these review activities, there continues to be reasonable assurance that onsite emergency preparedness is adequate to protect the public health and safety.

FEMA REVIEW FEMA, in accordance with the Memorandum of Understanding, has reviewed the adequacy of offsite ernergency preparedness at the Pilgrim facility. A preliminary review of the Massachusetts State Radiological Plan was conducted in October 1981 by the Regional Assistance Com-

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I mittee (RAC)) Based ord the preliminary review, the R.AC concluded tipt the plan was in an advanced but ingomplete stage and that further

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revision to the plan was required in order to conform to the guidance i I tritena of NUREG-0654. The NRC requested that FEMA review the

'r process for prompt Notective action decisionmaking in Massachusetts bised on draft State plans and information submitted to the RAC in eviO.982. On June 11,1982, FEM A issued an interim finding that the edrent protective action decisionmak;ng process in Massachusetts was 2

adequate to provide for public protection. Formal submission of l

emagency plans to the RAC by State and relevant local jurisdictions wss fol%wed by the first joint radiological emergency response exercise on Match 3,1982. The exercise involved emergency preparedness or-

,ganizations at both the State and local lesels. The performance of these I'

0;pnizations in implementing their radiological emergency response I

plans was observed. Deficiercies were identified as a result of this excr-

)

cise ard corrective acdons initiated by the parties involved. On Septem-ber 10,1982, FEMA REgun I issued its " Exercise Report - Jo:nt State j

and Local Radiological Energency Response Exercise for the Pilgrim Nuclear Power' Station, Plymouth, Massachusetts, March 3,1982." By i

memorandum dated November 2; 1983, FEMA provided to the NRC its l

" Interim Findings - Joint State and Local Radiological Emergency Re-l sponse Capabilities for the Pilgrim Nuclear Power Station, Plymouth, Massachusetts" dated September 29, 1982. The interim findings were based on a summary evaluation of the Massachusetts Radiological Emergency Response Plan and the exercise of the State and local emergency response plans held on March 3,1982. Although deficiencies were idergtified which required corrective action, FEMA found that the Massa' husettsstate ar.d local emergency plans and preparedness for coping with the offsite efTects of radiological emergencies that may occur at the Pilgrim Nuclear Power Station were adequate to protect the public.

The second joint radiological emergency response exercise at Pilgrim was held on June 29, 1983. A seventeen-member Federal team was as-signed to evaluate State, local and field activities. By memorandum

!jated November 29,1983, FEMA transmitted to NRC its " Final Report

/of the Joint State and Local Radiological Emergency Response Exercise IThere esists in each of the ten standard Federal Regions a Regional Assistance Commitice (R AC)

(formerly the Regional Admory Committee) chaired by a FEMA Regional omcial and havirig members trom the Nuclear Regulatory Com nission. Department or Health and Human services. Department of Energy Department of Transportation, Environmental Protection Agency. the United states Derart.

ment of Agnct;lture and Department of Commerce The RACs ass si state and local governn.ent otr..

cials in the docicpment of their raJiologreal emergency response plans, reytew plans. and obserse eter.

cases to evaluate the adewaq of these plans and related preparedness. A destnption or the RAC aunts ity and responutulities a found in 44 C F R. Part 350.

i 547 1

for the Pilgrim Nuclear Power Station, Pl.s mouth, Massachusetts,"

dated September 26, 1983 (1983 Exercise Report). The 1983 Exercise Report identifies no deficiencies that would Isad to a negative finding.*

Deficiencies requiring corrective action were identified by FEMA in two areas - the State police radio notification system and the transmission of meteorological information. FEMA also identified other deficiencies and additional areas ofimprovement for consideration by the State and local authorities regarding their offsite emergency preparedness program. FEMA will furnish a copy of the 1983 Exercise Report to the Commonwealth of Massachusetts and will request a schedule of actions for the correction of deficiencies. A copy of the 1983 Exercise Report l

was sent to NRC Region I on January 12,1984 for its use in coordinating with FEMA Region I in ensuring that the identified deficienciea re ad-dressed in a timely marmer.

Following receipt of the Petition, the Petition and the supporting Chaos 11 Report were forwarded to FEMA for its evaluation and review since the Petition questioned the adequacy of ofTsite emergency pre-paredness at the Pilgrim facility. By memorandum dated November 9, l

1983, FEMA provided to the NRC its final report entitled " Analysis of l

Emergency Preparedness Issues at Pilgrim Nuclear Power Station Raised by the Massachusetts Public Interest Re:>earch Group (MASSPIRG),"

dated November 3,1983, attached hereto as Appendix A. The Novem-ber 3,1983 report indicates that FEMA has reviewed the Petition and has.ilso consulted with members of the RAC and officials of the Com-monwealth of Massachusetts. This review resulted in FEMA confirming Its interim finding re erred to above that the Commonwealth of Massa-r chusetts has demonstrated that there is reasonable assurance that the public would be adequately protected if there were an accident at the Pil-grim Nuclear Power Station. In addition, in its November 3,1983 report, FEMA indicated that the results of the 1952 Exercise Report

~

l' ave been superceded by the results of the 1983 Exercise Report. In effect, the numerous deficiencies identified by FEMA in its 1982 Exer-cise Report have been corrected or otherwise resolved. Thus only two deficiencies requiring corrective action, as described above, remain outstanding.

l 4 on August 5,1983. FEM A Headquarters revised their procedural pohey on esercne obwrvation and evaluauon an order to provide a more uniform, workable approach ror use by the ten FEM A regional or.

Oces in their esercise reportmg process. Tne guidance provides ror reporimg de6ciences which would Icad to a negatne finding. deficiencies which require corrective action but otherwise mou'd not lead to a negaine finding. and other dediciencies where a correctable weakness is rioted ror which coricc'ne action should he considersd Deficencies that would lead to a negaine findmg mould cauw a finJing that orTsite einergersy preparedness is not adequate to provide reasonable assurance that apprcpriate protectne measures could be taken to protect the health and safet) ct'the pubt:c.

54g

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The NRC has reviewed the November 9,1983 FEMA response and concurs with the conclusions reached therein. Ilowever, further discus-sion is appropriate regarding the fo!!owing issues raised by the Petitioner and addressed in the FEM A report.

I. Capability of the Licensee to Make Accurate Release Estimates The FEMA report notes at 6-7 that the role of the licensee in prepar-ing release estimates upon which to make protective action determina-tions is more properly an NRC evaluation responsibility than that of FEMA. The NRC agrees that the licensee's capability is a proper area for NRC evaluation. During the EPIA, described previously, NRC l

inspcctors conducted walk through impections with members of the licensee's onsite emergency organization. These inspections were con-ducted in the areas of control room dose projections, dose assessment, event classification, offsite notification, offsite monitoring and environ-mental assessment. The inspections identified deficiencies in the areas of the dose assessment scheme, basis for recommented protective ac-tions and related procedures and training. The licensee took corrective actions on these deficiencies and, as mentioned above, follow up inspec-tion on the EPIA findings conducted by NRC Region I verified that cor-rective action had been taken by the licensee on all significant findings identified during the EPIA. Additionally, on March 3,1982, a team of NRC observers was on hand to witness the full scale exercise held at Pilgiim. During the conduct of the exercise, eleven NRC team members made detailed observations in various areas including: detection, classification and assessment; a:rection and cootdination of the emergen-cy response; notification; and dose projection and consideration of pro-tective actions. The NRC team concluded that, while there was some room for improvement, there were no items which exhibited a potential for significant degradation of emergency response. Similar observations were made at the second full-scale exercise at Pilgrim on June 29,1983.

In this instance, the NRC team concluded that the licensee demon-strated the capability to implement its emergency plan and emergency plan implementing procedures in a manner which would adequately pro-vide for the health and safety of the public.

II. Size of the EPZ The Petitioner suggests that the EPZ size may require considerable expansion. Ilowever, this is in effect an attack on the Commission's regulations, specifically 10 C.F.R. j 50A7(d(2). The Commission's 5 19

regulation sets EPZ size at "about 10 miles." While the regulation would allow leeway for a mile or two in either direction based upon local l

l factors, it clearly precludes an EPZ radius significantly in excess of 10 l

miles as suggested by the Petitioner. See Southern Cahfornia Edison Co.

(San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-39,15 NRC 1163,1177 84 (1982), aff'd, ALAB-717,17 NRC 346 (1983).

Ilowever, even considering the Petitioner's assertion on its merits, the information provided by the Petitioner does not support enlargement of the EPZ.

The FEMA report of November 3,1983 makes refere ice to the MilB Technical Associates Study used by Petitioner to support its request that the EPZ size for the Pilgrim facility should be enlarged. Petitioner's re-quest is based in part on a review of preliminary Calculation of Reactor Accident Consequences (CRAC) results conducted by MIIB Technical Associates for the Attorney General. The MilB Study is entitled

" Review of Calculation of Reactor Accident Consequences (CRAC 2)

Results and Liquid Pathways (NUREG 1596) Study: Implications for Emergency Planning in the Vicinity of the Pilgrim Nuclear Power Station." Under contract to the Department of the Attorney General for the Commonwealth of Massachusetts, MIIB Technical Associates reviewed the CRAC computer code and its results for the Pilgrim Station and NUREG/CR-1596 " Consequences from Liquid Pathways After a Reactor Meltdown Accident," August 1981. The Petitioner argues that the MilB conclusions regarding the CRAC code require enlargement of l

the Pilgrim EPZ. The MHB study attempts to apply a generic study to a i

site-specific case. The CRAC calculations were carried out for a report which was wntten to support the formulation and comparison of possible siting criteria for nuclear power plants, and generic rather than site-specific parameters were used.5 A realistic estimate of the risk from severe accidents at each plant was not attempted for that report.

The plume EPZ6 for the Pilgnm facility is based upon NUREG-0654 guidance criteria.1 The joint NRC/ EPA Task Force that developed NUREG-0396 considered several possible rationales for establishing the 5 Technical Guidanct for siting Criteria Development, Nt; REG /CR 2239, December 1982. In NUREG/CR-2239. a genenc rather than plant-specific power level was used; regional rather than site-specific assumptions regarcing evacuation and relocation were used, and genene releases were assumed.

as orposed to the cesign-specific release categones used for licensing.

6 The plume esrante pathway Emergency Plannmg Zone (EPZ) established ror the sate is located en.

tirely withm the sta:e of Massachusetts. Its boundary entends 93 to 12 miles from the site and includes portions of the tr.wrsttips 7 The guidance cr:tena of Ntl REG-0654 are denved from NUREG-0396. EPT $20/1.?g 013, "Planmns Bats ser tr e Develorment of state and Local Government Radiolegical Emergency Response Plans in suppet cf Latit Water Reactors." Decemdct 1978, which provides the concept of genenc Eme gency Pirn ng Zones.

550

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size of the EPZs. These included risk, probability, cost effectiveness and an accident consequence spectrum. The Task Force chose to base EPZ size on a full spectrum of accidents and corresponding consequences tempered by probcbility considerations. It was the consensus of the Task Force that a plume EPZ of about 10 miles would provide an adequate planning base beyond which actions could be taken on an ad hoc basis using the same considerations that went into the initial action determinations. In its statement on " Planning Basis for Emergency Re-sponse to Nuclear Power Accidents," 44 Fed. Reg. 61,123 (1979), the, Commission noted that an EPZ of about 10 miles is considered large enough to provide a response base which would support activity outside the planning zone should this ever be needed.

The Petitioner contends that, based upon the referenced CRAC code results, sin enlargement of the current Pilgrim plume EPZ is warranted because the projected doses exceed the EPA Protective Action Guides (PAGs)8 outside the 10 mile EPZ. Both NUREG-0654 and NUREG-0396 recognize, based upon CRAC code results, that the PAGs might be exceeded beyond the 10-mile plume exposure EPZ in the event of the worst possible accident and meteorological conditions.

However, a 10-mile plume exposure EPZ was still chosen as a planning basis in NUREG-0654 because:

a. projected doses from the traditional design basis accidents would not exceed Protective Actbn Guide levels outside the zone;

b. projected doses from most severe fuel degradation sequences would not exceed Protective Action Guide levels outside the zone;

c. for the worst fuel degradation sequences, immediate life-threatening doses would generally not occur outside the zone; and

d. detailed planning within 10 miles would provide a substantial base for expansion of response elTorts in the event that this proved necessary.

On balance, the MHB Study referred to in the Comments of the Attor-ney General and used by Petitioner in support of its Petition does not i

8 The EPA has developed and the NRC has adopted a " Manual of Protecuse Action Guides.nd Pro.

techve AcDons ror Nuclear Incidents." EPA 520/175 001. reme4 February 1980. which provices guid.

arme entena for put hc health ofTscials in determining the need for and m choosing the appropnate pro-tecuve actions The Protectm Acuon Guide (PAG) is the projected dose to individ als m the popula-hon which warrante tsbng prr ective action a g sheltenng or evamuon.

531 i

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provide an adequate tmis for reconsideration of the specific size of the Pilgrim plume El'D til. Evacuation Time Estimates in reviewing the Petition, the NRC staff considered information available to it concerning Evacuation Time Estimates (ETEs) and deter-mined that, as Petitioner suggested, potential bottlenecks to effective evacuation of the EPZ may exist on the periphery of the EPZ. It would be important to control traffic beyond the EPZ so that such trallic, e.g.,

on Route 3, did not lead to evacuation traffic congestion. Two notable points beyond the plume EPZ which could cause congestion are Route 3 at Route 128 and Route 3 at the Sagamore Bridge. These points could lead to larger ETEs than those now used. The NRC staff reviewed the ETEs now used while reviewing the construction permit application for Pilgrim, Unit 2, and has now determined that this matter should be spe-cifically brought to the attention of FEh!A for its consideration in the review of ETEs for the Pilgrim facility. Consequently, this matter was referred to FEh1A on January 20, 1984 for consideration aad my staff has requested a response from FEh!A by hfarch 30, 1984. Therefore I am deferring resolution of this part of the Petition until after I receive FEh! A's response.

I see no adequate reason to suspend operation of the Pilgrim facility pending this response. The overall state of emergency preparedness is adequate. No deficiencies which would lead to a negative finding on pre-paredness have been identified by FEh!A. The sole remaining issue is the adequacy of ETEs for planning an emergency evacuation. The Com-mission has adopted an approach to emergency planning in which evacu-ation is only one of several possible responses to an emergency. See NUREG 0554, NUREG-0396 and 10 C.F.R. i 50.47(b)(10). It is unlike-ly that evacuation of the entire plume EPZ would be required in the event of an accident. Pending a FEh1A determination on the adequacy of the ETEs, it is reasonable to conclude that the public health and safety will be reasonably assured in the interim by continued licensee compliance with Commission requirements regarding emergency plan-ning and other health and safety requirements aimed at keeping the

'In its November 3.190 rerert. FENIA notes that current SRC studies related to accident source terms. probabilities, and (orweguences are curected to result in a revision to NUREG.0654. which coulJ lead to reconsideration of custmg EPZ revirements. Carrent NRC proposals include a graduated response capabihty within the present r Pl. rnsobing additional requirements for predetermined prompt actions withan the first fem mdes of the re.ictor The SRC is no. considenns at this time ahenes the oserall sue of the E PZ.

552 l

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r probability of serious accidents very low.io Cf. Consolidated Edison Co. of New York (Indian Point, Unit No. 2), CLI-83-16,17 SRC 1006 (1983).

In view of the overall adequacy of emergency preparedness for Pilgrim and the low likelihood that an evacuation uould be required as a re-sponse in the event of a radiological emergency at Pilgrim, Petitioner's requests that the NRC (1) issue a finding that the state of emergency preparedness at Pilgrim does not provide reasonable assurance that pro-tective measures can and will be taken in the event of a radiological emergency, (2) suspend operation of the plant or order operation at re-duced power, or (3) start the 4-month time period for correction of defi-ciencies are denied at this time.

CONCLUSION In summary, both onsite and offsite emergency preparedness at the Pilgrim facility have been given continued review by both the NRC and FEMA. Onsite preparedness has been determined to be adequate based upon direct NRC evaluation of the licensee's emergency planning capa-bilities and based on the results of the continuing inspection program in this area conducted by Region i of the NRC. Offsite emergency prepa-redness has been reviewed by FEMA and it has been found that offsite plans are adequate and capable of being implemented. The most recent examination of offsite emergency preparedne.n by FEMA specifically considered the allegations raised by Petitioner and specifically found con-tinued assurance of the adequacy of ofTsite emergency preparedness to protect the public health and safety. Consequently, I conclude that the overall state of emergency preparedness at thd Pilgrim facility is suffi-cient to assure the public health and safety while the remaining issue of Evacuation Time Estimates is considered by FEMA.

Accordingly, the Petition's request for action pursuant to 10 C.F.R.

j 2.206 has been denied in part and deferred in part as described in this decision. Once FEMA provides the Commission with its findings regard-ing Evacuation Time Estimates, the staff will provide the Petitioner with a copy of FEMA's evaluation and will inform the Petitioner of the staff's decision as to whether further action should be taken.

10 on December 10. 1983. the Pr! grim raality was shut down for inspection of pipe cracktr's m the recirculation system and for replacement of defectsve pipes. It is anticipated tnt the facility mil te shut Joan for approurtutely 6 months This should enable the stafT to resche the mue of the adequacy of the ETEs prior to plant surt up.

553 i

As provided by 10 C.F.R. { 2.206(c), a copy of this decision will be filed with the Secretary for the Commission's review.

Richard C. DeYoung, Director OfTice ofInspection and Enforcement Dated at Bethesda, Maryland, this 27th day of February 1984.

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