ML20133L987
| ML20133L987 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 10/21/1985 |
| From: | Hiatt S OHIO CITIZENS FOR RESPONSIBLE ENERGY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#485-881 OL, NUDOCS 8510240405 | |
| Download: ML20133L987 (69) | |
Text
p-
=
t-1 o;
a
~.L/ - 85
%=m D
p.
OCT23ggggw UNITED STATES OF AMERICA y
% a. faa s
NUCLEAR REGULATORY COMMISSION 8Cera.yCf g EddqfM Berore the Atomie Sorety and Licensing Appeal In the Hotter of
)
)
THE CLEVELAND-ELECTRIC
)
Docket Nos. 50-440 OL ILLUMINATING CO. ET AL.
)
50-441 OL
)
(Perry Nuclee.r Power Plant,
)
Units 1 and 2)
)
APPELLATE BRIEF OF OHIO CITIZENS FOR RESPONSIBLE ENERGY Susan L.
Htott CCRE Represenective 8510240405 851021 PDR ADOCK 05000440 o
PDR hSSl
m
?
e L
l TABLE OF CONTENTS Page l
iii TABLE OF CITATIONS...................................
1 I.
INTRODUCTION........................................
1 II. ARGUMENT...........................................
1 A.
ISSUE NO.
B.
HYOROGEN CONTROL.....................
1 1.
Background.......................................
2 2.
Errors..........................................
(o) Scope or the Issue 'and Standards for its Adjudication l
2 (b) The PID is Based on Unreliable Evsdence 13
-(c) The PID is Illogical. Contrary to the Ueight or Evidence, and Applies the Wrong Bureen or Proor 16 25 (d) Conclusion..................................
25 B.
ISSUE NO. 16. TDI DIESEL GENERATORS 25 f
- 1. Background.....................................
l
- 2. Errors........................................
26 (o) LBP-85-35
...................................H26
.(b) Hoy 28. 1985 Memorondum and Order (Hotion to Reopen
'31 the Record)..................................
33 (C) Conclusion..................................
C.
ISSUE NO.
6.
ATW5/SLCS........................... 33 33.
1.
Background.....................................
l
- 2. Legislative History or ATW5 Rule............... 34 l
[
3.
Errors-or the MoJority in LBP-84-40 35 I
I E.
t
~~
~
D'. ISSUE N0.'13. TURBINE MISSILE HAZARDS 39 39 1.
Bock 9 Pound.....................................
40 2.
Errors.........................................
E.
ISSUE NO.
9.
DOSE RATE EFFECTS ON POLYMER DEGRADATION 47 47 1.
Background.....................................
48 2.
Errors.........................................
F.
NEW CONTENTION ON AIRLOCK TESTING 53 53 1.
Background.....................................
54 2.
Errors.........................................
57 III. CONCLUSION......................................
ATTACHMENT. NRC Memorondum dated June 29, 1983 iw-11
T t
TABLE OF CITRTIONS Page COURT CASES 1
porter County Chapter or the I ook Wolton Leogue'or Americo.
12
~
Inc.
v.
NRC. 606 F.2d 1363 (D.C. Cir. 1979)..............
Power Receeor Developmene Co.
v.
International Union or-Elec-trical. Radio, and Machine workers, 367 U.S.
396 (1961) 56 Union-of Concerned Scientists v.
NRC. 735 F.2d 1437 (D.C. Cir.
7.
8,
- 11. 12. 29, 41. 49 1984).............................
York Committee for o Sofe Environment v.
U.S. NRC. 527 F.2d 812 23 (D.C. Cir. 1975).......................................
NRC CASES Alocomo Power Co. (Forley Nucisor plant). ALAB-182. 7 AEC 210 42 (1974)...................................................
Corolino-Power and Li9ht (Sheoron Horris Nuclear Power Plant.
55 Units 1-4).-CLI-74-9. 7 AEC 197 (1974)...................
Cleveland Electric Illuminotin9 Co. (Perry Nuclear Pouer Plant.
Unses 1 and 2). A. LAB-298, 2 NRC 730 (1975) 7
- 45. 52 ALAB-443. 6 NRC 741 (1977)........................
ALAB-675. 15 NRC 1105 (1982)~........................
1 44 LEP-82-114. 16 NRC 1909 (1982).....................
LBP-83-3, 17 NRC 59 (1983)................'.......
41, 44 47-52 LBP-83-18. 17 NRC 501 (1983).......................
40-47 LPB-83-46. 18 NRC 218-(1983)......................
32 LBP-83-52. 18 NRC 256 (1983).......................
September 6.
1983 Memorondum and Order (correction in LBP-40, 45-83-46)...............................................
25 LBP-83-80. 16 NRC 1400.(1983)......................
March 29. 1984 Memorandum and Order (Turbine Missile 40, 44, 46 Reconsideration)...................................
33, 35-39 LBP-84-40. 20 NRC 1181 (1984)....................
r-
.~
- t
- t e
March 14, 1985 Memorondum and Order (Horions on Hydrogen 1,
2~
control contention).....................................
Horch 26. 1985 Hemorandum and Order (Horion for Appointment 26 or Board Witness).......................................
April 9 '1985 Memorandum and Order (Horions for Summary 30 Disposition or Issues 1.
- 15. and 16)......................
Hoy 28, 1985 Memorondum and Order (Horion to Reopen Record)
- 26. 31-33 LBP-85-33, 22 NRC ___. August 30, 1985 54-57 LBP-85-35. 22-NRC ___. September 3, 1985...... 2-31, 33 l
October 4, 1985 Memorandum and Order (Horion for clorification or Initial Decision).......................
9 Consolidated Edison (Indian Point. Unit 2), CLI-74-23, 7 AEC 951 6.
(1974).................................................
Consolidated Edison (Indian Point. Units 2 and 3). ALAB-304. 3 6
NRC 1 (1976)............................................
Consolidated Edison (Indian Point. Units 1-3), ALAB-319, 3 NRC 6
188 (1976)..............................................
Duke Power Co. (Cotowbo Nuclear Station, Units 1 and 2), ALAB-46 355, 4 NRC 397 (1976)....................................
Duke Power Co. (Perkins Nuclear Storion, Units 1-3). ALAB-591.
3 11 NRC 741 (1980)........................................
Duquesne Lsent Co. (Beaver Volley Power Station. Unit 1), ALAB-7 408, 5 NRC 1383 (1977)...................................
GPU Nuclear Corp. (THI Units 1 and 2, Oyster Creek Nuclear Gener,a t a ng, S ta t s on)., CLI-85-4i 21 NRC 561 (1985)...<...... 12 Houston Lighting & Power Co. (Allens Creek Nuclear Gene'roting 45 Seatson), ALAB-629, 13 NRC 75 (1981).....................
Konsos cas and Electrie (Wolf Creek Nuclear Generating Station, 3
Unit 1). ALAB-321, 3 NRC 293 (1976)......................
LBP-84-27, 20 NRC 125 (1984)........................
9 Long Island Lighting Co. (Shoreham Nuclear Power Storion). CLI-56 84-8, 19 NRC-1154 (1984)...............................
Louisiono Power and Light (Woterrord Steam Electric Storion, 9
Unst.3), LBP-82-112, 16 NRC 1901 (1982)..................
i e -*<
v 7,__,
F 9
s s
Maine Yankee Atomic Power Co.
(Noine Yankee Atomic Power 4.
54-56 station), ALAB-161. 6 AEC 1003 (1973)................
Metropolitan Edison (THI Unit 1 Restort), CLI-88-16. 11 NRC 674 1.
17 (1980)................................................
Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 ond 2), ALAB-284. 2 NRC 197 (1975) 51 orrshore Power systems (Flooting Nuclear Power Plants). ALAB-7.
8.
49 489. 8 NRC 194 (1978).................................
Pacific Cos and Electric (Diablo Canyon Nuclear Power Plant).
41 ALAB-054. 8 AEC 1184 (1974)..............................
(Diablo Canyon. Units 1 and 2). ALAB-580. 11 NRC 227 (1980)
.................................................14 30 ALAB-598. 11 NRC 876 (1980).........................
(Seonislaus Nuclear Project, Unit 1), LBP-77-45. 6 NRC 159 50 (1977)..................................................
Portland General Electric Co. (Trojan Nuclear Plant). ALAB-451, 7
6 NRC 889 (1977)........................................
Potomac Electesc Power Co. (Douglas Point, Units 1 ond 0). ALAB-8 077. 1 NRC 539 (1975)...................................
Public Service Co. or Indiano (Horble Hill). ALAB-461. 7 NRC 313 7
(1978)..................................................
Public Service Co. of New Hompshire (Seobrook Station. Units 1 19 and 2). ALAB-422. 6 NRC 33 (1977).......................
puelic Service Co, of Oktohoma (Block Fox Station. Units 1 and 0).,ALAB-573. 10 HRC 755 (1979)........................
42 Public Service Electric and Gas (Hope Creek Generating Station.
03 Untes 1 and 2). ALAB-429. 6 NRC 029 (1977)..............
18, 46 ALAB-518, 9 HRC 14 (1979).......................
couthern californio Edison (son onorre Nuclear Generatsng Station. Units 2 and 3). ALAB-068, 1 NRC 383 (1975) 6 Statement of Polsey on Conduct or Licensing Proceedings, CLI 53 8,
13 NRC 452 (1981)..................................
Vermone Yankee Huelear Power Corp. (Vermont Yankee Huelear Pouer 6.
56
-Storion), ALAB-138, 6 AEC 520 (1973)................
c-Y
e t'
~.
Virginia Electric and Power Co. (North Anna Nuclear Power 5totton, Units 1 and 2). ALAB-555. 10 NRC 23-(1979) 13 Washington Publie Power Supply System (Honford Unit 2). ALAB-7 113. 6 AEC 251 (1973).....................................
Wisconsin Electric Power Co.
(Point-Beach Unit 2). CLI-73-4. 6 6
.AEC 4.(1973)..............................................
STATUTES Administrative procedure Act, 5 USC 556 and 557........ 7 Atomic Energy Act 54 42 USC' 2133 (b) (2)...................................
Section 189 (o). 42 USC 2039(o)......................
4.
7, 9,
10, 12. 29. 41, 49. 53 4.
5.
7 Seceion 191. 42 USC 2241........................
9.
- 10. 41 Section 192....................................
45 National Environmental Policy Act of 1969.............
REGULATIONS 44 10 CFR 2.4 (P).........................................
12 10 CFR 2.206.........................................
7.
49 10 CFR 2.711........................................
7 10 CFR 2.718...........................................
10 CFR 2.720(h)-.......................................44 10 CFR 2.232..................................... 23 25.-31 39 41 10 CFR 2.749......................................
54-56 10 CFR 2.758........................................
10 CFR 2.760 (c)......................................
13 f
1 10 CFR 2.762(b)........................................
+
36 10 CFR 2.764...........................................
10 CFR 50.12........................................ 54. 55 2-5,
- 11. 15, 24 10 CFR 50.44 (c) (3) (iv)-(vii) 48 '49 10 CFR 50.49.......................................
VI
I O
- 18. 25
'10 CFR 50.55(e).....................................
3, 4.
6, 8-11, 17, 49, 54, 57 10 CFR 50.57................
33-37 10 CFR 50.'62.......................................
31 10 CFR 50. Appendix A.
GDC 1..........................
io CM SD. A ppt "d ;* h > GbC Y * * * ** * * * ' ' ' ' ' ' * * *
- 4l
- 29. 31 j
10 CFR 50. Appendix A, GDC 17......................
28, 50 10 CFR 50. Appendix B..............................
- 54. 55 10 CFR 50. Appendix J.............,,,,..............
17 10 CFR 100............................................
FEDERAL REGISTER j
8 35 FR 5318 (March 31. 1970)...........................
9 36 FR 8862 (May 14. 1971).............................
10 48 FR 14926 et se9. (April 6, 1983)..................
- 34. 38 l
49 FR 06038 (June 06, 1984).........................
i 50 FR 3498 et seq. (January 25, 1985)
O.
5,
- 11. 15, 17, 20 e
OTHER 40 Federal Rules or Civil Procedure, Rule 56(f) 48 I
Regulatory Guide 1.33.................................
1 1
Regulatory Guide 1.115................................ 46 46 Se'ondord Review Plan, Section 3.5.1.3.................
i.
SECY-83-293...........................................
34 1
1960 U.S.
Code Congressional and Administroeive News 5
1972 U.S.
Code Congressional and Adminiserceive News 9.
10 l
1980 U.S.
Code Congressionoi and Administroeive News 10 1
4 Vi.l
~.
o i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COHHISSION Bercre the Atomic $3rety and Licensing Appeal Board l
In'the Hotter or
)
)
THE CLEVELAND ELECTRIC
)
Docket Nos. 50-440 OL ILLUMINATING CO. ET AL.
)
50-441 OL
)
(Perry Nuclear Power Plant,
)
Units 1 one 2)
)
e APPELLATE BRIEF OF-OHIO CITIZENS FOR RESPONSIBLE ENERGY
~
I. If4TRODUCTION j
' pursuant to 10 CFR 0.762(b), Intervenor Ohio Citi: ens for Responsible Energy l
('0CRE') hereby files its brier in support or its sppeal of the decisions or the T
l Licensing Board identiried in OCRE's Notice or Appeal, riled September 19, 1985.
Tnese decisions have been grouped by the issue addressed for briering. All j
(
cstatsens to Licensing Board decisions are to the slip opinions and not to the published opinions.
i II. ARGLHENT.
A. 155UE f10. 8, HYOROGEN C0f4 TROL 4
- 1. Back9 Pound
}
. Issue No. 8, os admitted and finally reworded by the Licensing goord (arter o tortuous history involving disputes among the parties on ene scepe or eiscovery and the opplication or Heeropoliton Edison (TMI 1 Restort), CLI-90-16, l
11 NRC 674 (1980) one Cleveland Electric Illuminating Co. (Ferry tiuelear Power Plant Units 1 and 2), ALAB-675, 15 NRC 1105 (1982))-(see March 14, 1985 Memorondum and Order (Motions on Hydrogen Control Contention)), stated:
The Ferry hydrogen control system is inodequate'to assure that large omcunts or hydrogen con be sorely occommodated without a rupture or the containment and a release or susbstantial quantities or rodioactivity to the environment.
Thss issue, os reworded by the Board, concerned compliance or the Perry t-
-t e
m
.m-4-,
yg-<-
4 ia p
y.-
4y-.g
-:L-Mark III contoinment degraded core accident hydrogen control measures (o distributed igniter system) with the new provisions of 10 CFR 50.44(c)(3)(iv)-
(vii) (50 Fed. Re9. 3496, January 25, 1985). Horch 14 Memorandum ond Order at 7.
This rule basically requires shot BL'R Mark III plants have o hydrogen control system copoble of handling the hydrogen resulting from o 757. metal-water reaction without loss of containment integrity. The system used must be supported by a suitoelo program of experiment and analysis, including a showing that essential equipment will survive a hydrogen burn environment (if inerting is not uses). This is o cose of first impression on the opplication of this new rule.
The issue was the subject of an evidentiary hearing held April 30 - May 3 1985. Tr. 3:12-3762. Applicants, Stoff, and OCRE all submitted proposed findings of fact and conclusions of low on the issue.
After considering the evidence on the issue, the Licensing Board, finding that Applicants had met their burders of proof. dismissed the contention and authorized the Director of Nuclear Reactor Regulation to tssue operating licenses for Ferry 1 ond 0 subject to, inter olio, two license conditions pertatning to hydrogen control. LBP-85-35, Concluding Portaal Initial Decision on Emergency Planning, Hydrogen Control and Diesel Generators ('PIO*), dated September 3, 1985.
Because the Licensing Board in thss decision hos disregarded the Atomic Energy Act, the Commsssion's regulations and cose low, and the weight of the evicence, OCRE seeks its reversal.
C. Errors (0) Scope of the Issue and Stondords for its Adjudicotson Tne porties have continually differed over the interpretation of the Commission's new hydrogen control rule. See OCRE's Proposed Findings, filed
~.
3-June 13, 1995, at 13: Applicants' Proposed Findings, filed June 3,1985, at 12-136 Appiscones> Response to OCRE Motion to Reword Issue N8, dated February 6, 1985, or 6-8s OCRE Reply to Applicants' Response to OCRE Motion to Reword Issue MS, riled February 11, 1985, 10 CFR 50.44(c) (3) (vii) (B) and other ports or the rule ((tv)(B) and (vi) (B) (3)) oppeor, ir taken literally, to give the Storr the sole power to determine whether compliance with the rule has been ochieved.
The testimony presented by Starr and Applicants, not surprisingly, endorsed this interpretation.
OCRE orgued that, were the Board to accept this interpretation, it would be obdicoting its responsibility os Judges. as the NRC Storr is not the trier or roct in this proceeding.
The scheduling provisions or section (via), on what consettutes a satisroctory preliminary (as opposed to o final) onolysis, proved especially controversiol. Appliconts presented their interpretation as essentially a challenge to the jurisdtetion or the Licensing Board. Or course, o board hos the power to rule on the scope or its jurisdiction when it is challenged.
vanias Cos & Electrie (Wolf Creek Nuclear Generating Station, Unit 1), ALAB-321, 3 NRC 293, 098 (1976): Duke power Co. (Perkins Nuclear Station, Untes 1-3),
ALAB-591,11 NRC 741, 740 (1980).
The Board refused to accept its responsibility and rule on the proper scope of the preliminary analysis of the hydrogen control system, required before c=eration obove 5% power by 10 CFR 50.44(c) (3) (vii) (B), so that a rinding or compliance or non-compliance with the regulation could be determined, os required by 10 CFR 50.57(o) (0).
Instead, the Board used on illegal and subjective ' reasonable assurance or sorety in the interim' standard. PID at 25-26, 33, 46.
The only sorety rinding the Board is empowered to make is whether the Perry
-V-rocility is in compliance With the Commission's regulations, as that stondord encompasses the other sorety findings or 10 CFR 50.57(o). porticularly the areasonable assurance thor public health and sorety Will not be endangered' ond nor inimical to public health and soretya stondords,10 CFR 50.57(o)(3) (i) and a
(6).
Moine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003,1009 (1973).
Thus, the Licensing Board should have first established the proper scope of the preliminary analysis and then determined Whether Appliconts had complied With the hydrogen rule for those matters Within the scope or the preliminary analysis.
AlthCugh the' Board did not explicitly oddress the question or What the Starr's role is under this rule in a contested proceeding, its decision represents on implicit acqusescence to Applicants' interpretation.
A most telling example is the Board's chorocteri otion or 10 CFR 50.44(c) (3) (vi) (3) as requiring the use or ' occident scenarios that are accepted by the f1RC Storr*
(PID at 24), while ignorsng the substantive requirements or that section.
Because o basic misunderstanding or the obligations and authority or the Licensing Board as opposed to the Starr pervades not only the PID but several earlirr decisicns os well, it is necessary to develop this point thoroughly.
e As the Licensing Board is o creature or statute, it is there that any discussion or its duties must begin. Section 191 or the Atomic Energy Act (42 USC 0241) outhori:es the Commission to establish a licensing board 'to conduct such hearings os the Commission may direct and make such intermediate or final decisions as the Commission moy outhorice With respect to the granting, suspending. revoking, or amending of ony license.
.' The reference to hearings on granting, suspending, revoking or omending licenses clearly kies the Board's authority to proceedings held pursuont to Section 189(o) (40 U3C 2r39 (o)).
2 The legislative history of Section 191 clorifies that the phrase
' intermediate or final decisions os the Commission may outhori:e* was intended j
I to give the Commission discretion to revieu o licensing board's decisions before i
becoming final agency action. See 1962 U.S. Code Congressional and administrative News, 87th Congress, Second Session at 2009, 2212. That uording-does not diminish o Licensing Board's jurisdiction cVer the scope of licensing, i.e.,
interim or final.
The legislative history also makes it elect thor o board's authority comes 1
by delegation from the Commission.
Id. ' Applicants have orgued that, in the cost of the hydrogen rule, the Commission chose not to delegate evoluotion of the final analysis or determination of the scope of the preliminary analysts to the Board, but rather gave those functions to the Stof r in 10 CFR 50.4'1 (c) (3) (vii) (B). While the rule is not o model of clority on this point, this i
interpretotion is such a radical departure from Commission practice and y
I precedent that it is doubtful that the Commission Would hove intended this i
without explicitly saying so.
(In f act, o truly literol reading of Section (vii)(B) of the rule. Which j
states only that a preliminary analysis is required for o Staff determination tho,t full po*wer operation is soft, does not diminish o Board's authority at oli, 4
1 The Federal pegister notice also clorifies that deferment of the final analysis is discretionary and not mondatory.
50 FR 3500 (ao completed final supporting onalysis moy be delayed.
." (emphasis added).)
i The essence or the reading of 10 CFR 50.44(c)(3).(vii)(B) endorsed'by Applicants is thor, once o preliminary analysis hos been accepted by the Storf, operotton ocove 5% power con commence, ond the rinal analysis, to be submitted later, is beyond the Board's Jurisdiction.
However, this is tontomount to interim licensing, of unknown duration, With the terms _of final licensing to be 1
T
. ~
- ~.-.- - - -_.- - - -.- -._
_4 i
1 l
i established by the NRC Starr. Never.before has this been sanctioned by the Commission or its adjudicatory boards.
It is clear that the NRC Storr cannot issue o iteense while unresolved 1
contested or suo sponte issues are still pending with the Ltcensing Board, even j
tr the Storr is satisfied on these matters, consolidated Edison (Indian Point, Units 1-3), ALAB-319. 3 NRC 168, 190 (1976).
It ts also clear that, in a contested proceeding, the staff is not o priveleged party. In roct, the stoff's views are no more binding on the Board i
than are those or ony other party, os the staff is Just another party. Vermont I
vankee nuclear power Corp. (Vermont Yankee Nuclear Power Station). ALAB-130 6 AEC 500, 532 (1973): Consolidated Edison (Indson Point Nuclear Generating i
station, Units 2 & 3), ALAB-304, 3 NRC 1, 6 (1976): southern colifornso Edison 1
(son onorre Nuclear Generating station 2 & 3). ALAB-260, 1 NRC 383. 389 (1975).
i l
It is well established that o Licensing Board connot delegote a contested 1
issue to the Storr ror post-heoring resolution, on action which Applicants' j
interpretation or the rule would endorse. The Commission hos stored:
I As o general proposition, issues should be dealt wtth in the hearings and not
+
left over for later (and possibly more snrormol) resolution... the mechanism of post-heartng resolution must not be employed to obviate the basic findings prerequisite to on operating license - including a reasonoble assurance that the facility con be operated without endangering the health and sorety or the I
j
, pubisc.
In short, the ' post-heoring' opproach should be employed sporangly and only in clear cases, In doubtful cases, the matter should be j
resolved in on odversary fromework prior to issuance or licenses, reopening l
}
hearings if necessary.
I 1
i consolidated Edison (Indian Point, Unit 2). CLI-74-23, 7 AEC 951-950 (1974),
i i
citing Wisconsin Elecerte power Co. (Point Beach Unit
),
{
(1973). The Appeal Board hos rollowed this reasoning:
}
1 l
When governing statutes.or regulations require a Licensing Board to make porticulor findings before granting on opplicant's requests, o boord may not delegate its obligorions to the Storr. The responsibilities or boards are independent of those or the Storr under the Commission's system, and the Board'$
duties connot be fulfilled by the Storr, however conscientious its work may be.
4 I
-m
..ww-<---
,-,,4,--e
.y 4.mw--,--
~----,..-.---,,-wm,-----
,c-n,--.a
,g,r
.~
,~.---,.,.u n.+
n-n.
.q _
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit's 1 and 0),
ALAE-096, O NRC 730, 736-37 (1975). See o1so unshington Public power supply System (Honford Unit 0). ALAB-113, 6 AEC 051, 050 (1973): Public Service Co. of Indsono (Norble Hill), ALAB-461, 7 NRC 313, 318 (1978),
These pranesples are offirmed by Unson or concerned scientists v. NRC, 735 F,03 1437 (D.C. Car, 1964) ('llCSl), which held that removing a material issue f rcm the licensing heoring violated Section 189(o) of the Atomsc Energy Act, Once o proceedsng ss snitiated, the hearing 'must encompass all material factors bearing on the licensing decision roised by the requester,' ggi or 1443.
Eecouse, os noted ecove, Section 191 of the Act empowers licenssng booras to both conduct hearings (held under Section 189(o)) and tssue decisions, the right to a hearsng under Section 169(o) perforce includes the right to o decision nosed on evsdence in the record, Administrative Procedure Act, 5 USC 556 and
$57. Ccmpare UCS or 1446, 'the Commission,
must assure that there is meaningful public porticipation' in its proceedings.
Applicants would no doubt orgue that all matters beyond what the Stof f conssdered oppropriate for the preliminary analysts uould be exempt from thss requsrement, os they would neither bear on the licensing decssion nor be
- matersol, It is certainly true that a boord hos no jurisdiction of ter issuonce of a full-power, full-term license, Portiond General Electrie'Co. (Trojan Nuclear Plant), ALAB-451, 6 HRC 399, 691 (n, 3) (1977): Duquesne Light Co.
(Beaver volley Power Storion, Unst 1), ALAB-403, 5 NRC 1383,1386 (1977),
But Applicants' ossertion is circular reosoning, os the time of QL issuonce ss a matter entirely Within the Control of the Licensing Board, Indeed, the Licensing Board even has the outhority, pursuant to the brood cose management powers or 10 CFR 0.711 and 0,716, to set schedules for the completion of the Stoff's onolyses, Of f shore Power Sys tems (Floating Nuclear i
l
[
.g-Power Plants). ALAB-489. 8 NRC 194 008 (1978).
'CD3ecisionmaking within the Commission should be both ' sound and timely.'
If this is to be ochseved, the boards and staff must coordanote their operations.' 8 NRC ot 203.
'CIn the3 obsence of any rigid scheduling criterio by statute or regulation.Cthe3 responsibility for scheduling lies With the licensing boords... Cond3 olthough entstled to recognition, the convenience of the litigants connot be deemed dispositive or scheduling matters.
The poromount consideration is where the brooder public lies.'
8 NRC at 008, citing Potomoc Electric powee Co.
(Douglas Point, Units 1 ond :), ALAB-277.1 NRC 539 (1975). Since congress intended the public, os well os the $ toff, to have o role in assuring the sofe operation of nuclear power plones and intended that the $tof f be held accountable for its actions (UO5 at 1447). the broader public interest lies not in deferring issues for post-heoring resolution by the 5 toff, but rather in using the Board's scheduling powers to permit on-the-reccrd resciution by the Board.
There is strong evidence thok both Congress and the Commission intended Licensing Boards to consider nothing less than o full-power, full-term, and finot operating license. When eliminating the 18-month " provisional' operating license cuthori:ed by 10 CFR 50.57, the Commission stated:
Te porary limitorions on operation conside ed necessary for public heoith and safety uill be incorporated in the full-term operating license os conditions.
The elimination of the provisional operating license does not preclude the Ccemtssion from imposing oli the limitorians in the full-term operating license which may have been required in the provisional operating license. 35 Fed. Peg.
5318 (Horch 31, 1970).
It is thus clear enot the Licensing Boards are expected to outhori:e full-term cperation, and that license conditions are merely temporary limitations in o full-term license needed to protect the public health and safety.
(Obviously license conditions are not vehicles for deferring the consideration of significant issues, os hos occurred here.
This is discussed in greater detail
_9 below.)
When omendsng 10 CFR 50,57 to outhorize o licensing board to permat low
'l power operotson ond testing, when this has been requested by on opplicant, the Commsssson stated:
The Commission believes that, under the present stotutory structure, low power testing should be conducted under on operating license and that no operating license should be issued before o hearing is held ir o request for a hearing by a person whose interest may be orrected by the proceeding hos been mode,,
Ir a hearing is requested and held, no license to operate the rocility at any power may be granted over the objectson or any party unless the Atomic Sorety and Lscenssng Board hos mode the requsred findings and issued on appropriote initial decision, 36 red, Reg, Bet: (Hoy 14, 1971),
5sgniricontly, two Licensing Boards have interpretoted thss regulation to cesent a request for low-power operotson under 10 CFR 50.57(c),
the mean tnot, Board could only consider full-power licensing, Louissono power and Licht (Uoterrord steam Electric station, Unit 3), LEP-80-112, 16 NRC 1901, 1900-03 (1950): Kansas cas and Electrie (voir Creek Generating Storion, Unst 1), LBP 07, 20 t;RC 105,126 (1984),
i j
The Lscenssng Board has recently concurred in this interpretotton, October 4, 1995 Memoraneum and Order (notion for Clarificorion or Initial Decision) or 2, If it is inopprocriote to consider low-power licensing in a full-power operati'ig license proceeding, obsent a specific petition under the oppropriate regulaeury stondords, then it is improper to consider interim acceptance criterio and 1teensing on o contested issue obtent statutory authori:oeion,
{
Congress hos twice (ecch for limsted periods or time) provided the needed seotutory outhority to permit cperottor, or o nuclear rocility before the hearing reautred by section ist(o) or the Atemt: Energy A:t is held, The legislative hsstory or the 1972 version or Section 190 or the Act distinguishes between the temporary ostrating Itcenses or the omendment and the 'rull-term (forty years),
full power license
- being contested in the hearings held under Section 189(o),
1972 U,5, Code Congresssonal ond Adminiserotsve trews, 9 nd Congress, second
- ~. _ _
_ _ _ _. _ ~
..m 4
to -
I Session, at 0351-50.
The 1982 omendments were potterned orter the 1970 version.
1982 U.S. code l
t congressionoi and Aaministrative News, 97th Congress, Second Sesston, at 3596.
l The Senate Report (No.97-113) distinguishes the ' interim licenses
- outhori:ed t
I i
by tne omenoments from the 'rinal operating license' subject to the beorang i
I reauirements or Section 189(o).
Id. at 3595.
The regulations promulgated I
thereunder by the Commasston also use this longuage. 48 Fj J,. Reg,. 14926 et s99.
(Aprtl 6, 1983).
In rock, the Commission explicitly states:
t
)
Before the enactment or pub. L.97-415, in a cose where o heoring is held, the j-Commission locked the authority to outhori:e fuel loading and low-power i
operation and testing on the basis or its sorety and environmental evoluotions o l
utility was required instood to owoit outhori:otion in the course of the hearing
- process, see 10 CFR 50.57(e). 48 Fed. Reg. 14927.
i Even unoer tne omendments, Congress mode it clear that porties would still I
have the right to raise any issue in a hearing on the final operating license, pursuant to Section 1s?(a).
Section 19:(c).
Signiricantly, one or the rindings I
1
)
required for issuonce or o temporary operating license was that there is
[
j reasonable ossurance that operation or the racility during the interim period r
i
~
l w3uld provide odequate Protection or the public heoith and sorety.
Section l
l 190 (b) (2) : 1980 U.S. Code Cong, and Adm. News at 3596-97. Although Sectaen 19
}
expired at the end or 1993, the Licensing Board is still utili:1Dg its sorety l
I
- stancard, 4
I
'It is enus clear that, obsent a request under the special procedures of 10 CFR 50.57(c) or ene now-expired Section 192, o Licenssng Board cannot consider i
cnything less than a full-power, full-term, final operating license. Since the l
final onolysis required by the hydrogen control rule is port or the final, fulla 4
term licensing, it must be within the Licensing Board's Jurtsdiction. Had OCRE I
4 insisted that the final analysis be completed before licensing, the Board could i
t l
not outhori:e lacensing without a hearing on the matter and a decisson reaching ene findings reautred by 10 CFR 50.57(o).
However, OCFE did not orgue this, but ir. stead c.svonced a reasonob'_eness test for cerining the scope of the preliminary f
l i
l.
- // -
t 4
i i
i i
I See OCRE Proposed Findings at 50-53.
Since, os noted above, the onalysis.
i I
hearing must encompass all issues raised by intervenors (ggg at ?443), the soord J
i could not have accepted o preliminary analysis requiring less than what was i
2 i
proposed by CCFE. And, rather than using a subjective 'sorety an the interim
- 4 1
i t
stondord, the Board should have required full resolution or the matters raised
)
1 in the preliminary analysis (as defined by OCRE) before licensing.
1 1
In lignt or the reasonobleness stondord suggested by OCPE (which is j
3 consistent with the supplementary information in the Federal Register notsce.
the Commission's stondords for scheduling the final onolysis (Section (vii)(D)),
i the standard opplied prevsously for Grond Guir, and the evidence in the record j
)
(OCRE Ex. 19. Tr. 3740-46)), the Board's standard is completely unreosonoble.
J j
It is opporent f rom the PID that the only criterto which need be mee to satisfy i
the soord ore that the preliminary anotysis mention the substontive requirements 4
l of the rule and that it be opproved by the Storr. PID at 25.
No evoluotion or surrtetency was required. The asorety in the interim stondord is no guorontee a
1 j
er sorety at oil, since a degraded core occident involving hydrogen generotton con c: cur in the interim period Just as eosily as arter submittol and opproval 4
f er the final analysis. The Board hos in errect permitted operation or the Perry racility without making i
the prerequsstee sorety findings or 10 CFR $0.57(o).
Instead, these rtndings are derecred for toter resolution by the Storr.
l i
Because the Board's illegal sto,ndard undargirds the entire portion of the l
PID on hydrogen control, it must be reversed.
J l
(To dispel ony douot which may linger os to the degree to WhiCh the i
Commissien intended to place discretion on this issue with the Starr, OCRE r,as I
ottoched port or the legislative history of 10 CFR 50.44(c)(3)(iv)-(vii),
o I
memorondum and ottochment from Thomas F. Dorion to Walter H. Butler and Horton I
.f2 -
R. Fleishman. This attachment clearly demonstrates that the rule was never intended to insulate the Starr's ocetons from Licenstng Boord scruttny.)
The Board, not content to delegate What it considered the final analysis and its substantive resolution to the Storr, hos even dererred matters which it round relevant now.
By using the venscle or license conditions, the Licensing Board has delegated contested issues to the NRC Starr for post-heoring resolution.
Condition 7 snvolves anolyses or pressure survivobility, which is not r.erely o conrarmatory matter but requires on evoluotion or suf ficiency.
The Board explictly celegated this matter to the Starr, on idle gesture, os the Starr opproved the matter in the first instonce.
PID at 48.
Similarly, the race that procedures ore needed to operate the Perry igniter system (condition N 6) begs the question of their odequocy.
The Board refused to consider this matter, however, and stated that 10 CFR.006 provides a mechonism for consideration or the procedures' odequacy in other proceedings. PID or 28-09.
This reasoning is inconsistent uith the Commission's rulings that 0.006 Petitions should not be used to avoid on existing forum in which on issue should me more logically considered. Cpu Huclear Corp. (TMI Units 1 and 2, Oyster cr'eek Nuclear Generating Storion), CLI-85-4, 21 NRC 561, 563 (1985).
This reasoning otso controvenes Section 189(o) or the Atomic Energy Aer in that it dentes o hearing on on issue that even the Board round material to licenstng. see Ucs, supro. The provisions or 10 CFR 2.206 do not guarantee o hearing, of there is no requirement thor o proceeding be initiated in response to o 2.206 requese. Ucs at 1442-44: Porter co. chooter or the I: oak voiton League or Americo. Inc.
- v. NRc. 606 F.2d 1363, 1367 (D.C. Cir. 1979).
The Board should have retained jurisdiction or these motters for exploration by oil porttes or o heartng.
</ 3 '
(b) The PID is Based on Unrelioble Evidence The Licensing Board must base ses decision on reliable, proboeive, and substontial evidence.
Thus, as a matter or rirst importance, the Board should determine the weight to be accorded evidance in the record.
Testimony from incompetene, unqualified, untruthrui, or evasive witnesses should clearly be given little, ir any, weight.
Testimony based on unovoiloble onolysr.s snould also be given little weight, os there is no way to determine their occuracy and surriciency. OCRE in its proposed findings urged that some or the testimony advanced by Applicants and Starr be given little or no weight because er these roctors.
The Board, without explanation, rejected 'os unsubstantiated
- OCRE's arguments thor some or the witnesses were evasive, untruthrui, or incompetent (PID ot 26), despite evidence demonstroring this and despite the roct that the Beard round it necessory to admonish the witnesses for their evosiveness on several occasions at the hearing. See, e.g.,
Tr. 3329-30, 3479, 3503, 3660.
Also see OCRE's Proposed Findings or Fact and Conclusions or Low, riled June 13, 1995 ot 24, 05-06, 30 (rn. 1), 32 (rn. 2), and 34, citsng Tr. 3313-15, 3593, 3077-76, 3582, 3650, OCRE Ex. 18 (contradictory statements or Appiscones' witness All?/), Tr. 3670 (qualifications or starr witness Notorroncesco), Tr.
3:55, 3543-46 (credibility or Appliconts' witness Fuls), Tr. 3517-18, 3522, 3627 (competence or Applicants' witness Lewis).
The Board relied upon inte dixit overments of the wstnesses and other material that was not in the record and was incopoble or being examined by CCRE.
Or course, o Licensing Board decision resting significant rindings on expressions or expert opinion not susceptible or being tested on examination of the witness is o rit condidate for reversal. Virginio Electric and Power Co.
(North Anna Nuclear Power station, Units 1 and 2), ALAB-555, 10 NRC 03 (1979).
o
-/17-see otso poeirie cos and Electric (Diablo Conyon Nuclear Fower Flont, Units 1 i
ond 2), ALAB-580,11 NRC 227, 229-30 (1980). holding that relionce on secondary sources (e.g., o witness' opinion or o document) is no substitute for the Board's examination of the octual document and is legally impermissible.
Indeed, o licensing boord finding expressing opproval or on unseen document is
'so much weste ink.'
l The Board relied on a witness
- description or onalyses or stresses at cerective welds in the containment vessel at 50 psig when the onolyses were not even avoiloble for OCRE's scrutiny. PID at 96, Finding 103: Tr. 3315.
1 The Boors relied upon the statements or witness Lewis that flame speeds lower than that ossumed in the CLASIX-3 containment response model used by Applicants have been measured, despite the roct that he could not (or would not) identiry the the experimental basis for his statements With surricient particularity to determine the opplicobility to containment-scale conditions.
PID at 102 Finding 132 Tr. 3521-22.
The Board oiso relied upon the ipse dixie ossertions or Applicants' witnesses that drywell looboge or hydrogen (or the mognitude ossumed by on unovoilable General Electric calculation) would not ofrect the results or thesc onotyses or hydrogen transport and combustion, despite the fact that the witnesses admitted that the errects had not been evolunted. PID at 45: Tr.
3500. 3628-29.
Or course, OCRE has requested this and any other analyses performed by General Electric relevant to Issue No. 8 during discovery.
See OCRE's 13th Set or Interrogatories to Applicants, dated July 30,.1964, specifically Interrogatory 13-10, which Applicants refused to onswer, The Board relied upon analyses or drywell copocity, equipment survivability, 4
and secondary fires performed for the Grand Gulr plant which were not a part or
e
/f. --
the record and were not mode available by Applicants during discovery. PID at t
- 98. Finding 114 103. Finding 136. and 106. Finding 148.
See OCRE's 13th Set of Interrogatorses to Applicants, dated July 30, 1984s i
Interrogatory 13-7 specifically requested all documents prepared by or for r
I Mississippi Power and Light, the Grand Guir licensee. Applicants objected to I
this and many other interrogatories which would have provided a basis for their testimony. Having deroulted on their discovery obligations. Applicants should not have been permitted to rely upon such materiol.
f i
The Board claims that referencing other studies at other plants (such as i
Grand Gulf for Perry) is specifically sanctioned by the rule. PID at 24, 35.
I 46.
The only such sanction in the rule itself pertains to PWRs with ice condenser containments. Section "(vii) (B) Woives the Preliminary analysii for i
plants similar to those referenced in the notice of rulemoking. Only Sequoyoh I
and H Guire are referenced in the Federal Register notice. While it is stated 5.
that * (p)reviously opproved generic or reference 'onolyses may be employed in I
lieu or plant specific onclyses where the generic analyses con be shown to be l
opplicable' (50 FR 3500), this statement is mcde in the context or accident t
i scencries ond hyerogen source terms, where generic opplicobility is obvit,us. Furthermore, 3
nothing in this statement relieves the Licensing Board or its responsibility to ensure that the reference onolyses are truly opplice.ble, oppropriate, and occurate.-
~The Board relied upon a witness
- conclusions os to the ability of the RCIC t
system to maintain coolont makeup in o station blockout occident despite the race that'the witness was not romiliar with the details of the unavailable i
analysis.
PID at 106, Finding 146: Tr. 3660.
1 The Boord relied upon the ipse M ossertions or on obviously unqualtried witness os to equipment hotch 0-ring compression set resulting from hydrogen 3-.
.,#y.
-.-,---y
.,,,,,-,-,---,-r------
y__.e n
,,-,-,m-
--,----..%-r,
-. - ~ +, -
.,,-.e e-....
-/f-eurn temperatures. PID at 97, Finding 108.
The witness' statements were CIEarly not based upon his own knowledge and therefore were not subject to examination.
Tr. 3650 (see OCRE's Proposed Findings or Fact and Conclusions or Law, June 13 1985, or 99 25-06).
The Board's rindings on the ability or penetration seals to withstand the high temperatures resulting from dirrusion flomes are based on ipse dixit assertions or the witness and not on any reliable analyses or evidence. PID ot 45, 98 (Findtng 113), Tr. 3623-24.
The Board relied upon on ossessment or hydrogen combustion made by Starr witness Notorroncesco, who is cleocly not a combustion expert. PID at 39, 102 (Finains 133): Tr. 3670-84 (voir dire).
The Board's rejection or CCRE's position that the 1/4-scale tests or diffusion Flames should Consider dirrusion r10mes resulting from o 75% metal-water reoetion (PID at 40-49, 197 (Finding 150)) is based on Applicones' use of the BWR Hectup Code.
Tr. 3620. The Board prevented OCRE rrom cho11enging this CCde during the heorang.
Tr. 3691-96, 3740, 3744.
It is extremely unfair to rely on evidence which the Board refused to let OCRE impecen.
The Board relies on the icse dixit ossertions or Applicants' witness that vtalent suppression pool loods into the drywell resulting from hydrogen comeustion were considered for Crond cuir with no cdverse errects (PIO at 108 (Finding 153)),. when the evidence indicates that the motter is still unresolved.
Tr. 3493-96.
(The Board's refusal to consider pool loads resulting from conservative assumptions (PID at 51) otso contradicts CCRE Ed. 19, in which the scorr required the most severe pool loods to be evoluoted.)
(c) The FID is 111ogicol, contrary to the Weight of Evidence, and Applies the Wrong Burden of Proor That the Licensing Board had to ignore crucial evidence, maschorocteri:e
_f7 OCRE's arguments and proposed rindings, create 6t:orre theories for refustne to consider the roces, and continually place the burden of proof on OCRE demonstrates the weakness and poor quality or its decision, The Boord's orgument (PID ot 08) that it need not be concerned wtth radioactive releases from contoinment venting as trtply flowed. First, it neglects the Board's own wording or the hydrogen control issue, which changed but little from the time when the stondord for its littgotion was Netrepoltron Edtsen (TNI 1 Restort). CLI-80-16,11 NRC 674 (1980). which specified 10 CFR 100 os tre regulation under which hyorogen control could be then litigated. Second.
it contoins the circular reasontng that Perry wt11 not be allowed to operote if the hydrogen control system proves snodequate, forgetting that it is the Board's responstbtlity to determine this for this contested issue. Third, the Board I
neglects ses primary I
ouer to assure that the public will not be harmed by rootooctave releases from Ferry. To assume, without considering relt(ble evioence, that radioactive releases from containment venting will olways be within the regulatory limits is o cereliction of tre Ecord's duty to determine whether FNFP will comply wtth the r
regulottons.
The Boord's increeable statement that it is surricient to know thot o vent potn'will te chosen (PID ot 08) ignores the roct thot contoanment venting creates o teok in contoinment. Tr. 3443. The hydrogen control rule intends to ensure that excessive rodtation dose to the pubite is prevented by maintaining o leo 6-tight contoihment. 50 FR 3500.
The portion of the Perry energency procedure guidelines provided to the Boord by OCRE's letter of July 15 1985 4
wntch showed that containment venting would be initiated regardless of radicoctave release rate, should have coused the Board to question the venting concepe. But the Board insteod hos roith in Appisconts' os-yet unfinished plans.
.jg.
The Board's onolysts of the station blockcut scenorto as devosd of reasoned secassenmoksng. The Board states there is a low prebobsisty or o statson blockout event. PID or 37.
There as no evsdence sn the record to support such o closm, All trot as present is Appisconts' overments that the probouility as low.
Tr. 3609.
The Appeal Boord's standards for eetermansna preenettities or a:cident scenorsos require o reosoned easts for the numerscal proboesisty of doen sndivsdual event in the sequence.
Pubite servtce Elecerse and Cos (Hope creek Generating stoeson Units 1 ond :). 9 NRC 14. 09 (1979); pe.4b-$nt.
As for the assitty of the R0!C system to motntosn coolont irventory in o storson blo:6out occident, the 10 CFR 50.55(e) report prostied to the Board of 00PE's letter of July 15 1985 sndscotes that that system would be unovottoble eve to excesssve cotte voltoge drops, o problem which Aspisconts have not promssed to correct. To accept Aspisconts' conclusory testimony despite this situation is avoiding the fo ts, not ConfrontinJ them.
It muse te re:011ed that Appliconts orgued that the probootlity of a degrosed core a:cident in genero1 (ond even for tnose scenorsos anoty:ed; 14 1cs.
A plicones' testimony at 10-16 (f r. Tr. 3:41).
There is no retsocle evsdence that a station olockout occident is any less 1thely.
The Board admits enot the consequences of a station blockout degraced core acessent generating signif scont ouontities of hydecgen ore more severe than tee two scenortos onoly:es ey Appisconts. P!O ot 36, 105-106 (rindings 144, 145),
this ceang so, station blockout poses a greater rash. Risk. not sust probooststy, should be the cetterton.
The foet that the Storf Will require on evoluotton of stotton elockout in ene finol anotysts (P!D at 37) provados no ossuronce wnossoever, os o stotion blockout o: Cadent con occur before then just os ecstly as of ter.
(As admitted by the Board, Appisconts may not have to consider station blockout at ott (PID at 36. 109 (randing 139)). so the finon anotysts may provide no ossurance of
-/9-sorety on this motter at all.)
The Licensing Board clearly rotted to confront the rocks in this cose, os required by puelse Servsce Co. or New Hampshire (Seobrook Station. Unsts 1 and
- ). ALAB-400 6 NRC 33 41 (1977).
Instood, the Board ignored substantial evsdence in the record contrary to its conclusions.
Tne Ecord states thot Sandio Nottonal Loborotorses accepted the CLA5!X code results with reservottens ettsna OCRE Ex. 01 ot 11. P!D at 39.
However. 011 that is stated on that page or the e=htbit is that the distributed tonster system (not the CLA51X code) as considered marginally odequate.
The Eoord ignores the severe crittetsms or the CLA5!X code and its snput assumptsons througmout that e=nsbte.
- See, e.g.. OCRE Ex. 21 ot 17-10 93-94. 199.
I The Board completely ignored OCRE Ex. 00. Wh6Ch contained the hRC Storf's
(
re:cmmerdotton tnot the CLA5!X-3 code not be used.
The Goord tenored the evtaence that hydrogen agnator locotton and the spray shield of the igniter ossembly would of fect Combustion Chorocteristics (tgnition atmsts. OCRE Ex. 21 at 195-96) and occepted, without explonotion. Appliconts' uttnesses' statements to the contrary (P!D ot 41-40, 90 (Finding 01). 91 (Fanding 04). 10: (Finding 131)) despite the Board's own recognitton of ichdto's easertise in the field of hydrogen ecmbustion. Tr. 3687. The Board atmtlarly ignored emportmental dato (NTS tests fr. 36 7) substanttotang Sondio i concerns.
The Board fcund that the ApTECH onolysts of dereettve contonnment welds did not tone creast for the annulus concrete tenoring the fact that OCRE Ex. 10. o starr report or o meeting on this subsect. contosna contrary informotion. PID ot 3:.
The hoord usehoroctert::es 00AE's orguments on the morgans an the APTECH onoirsts (0CRE Ed. 13 at 7-0).
P!0 ot 31.
The ponne or OCpt's discussion
.Ao-(OCRE's Prcposed Findings at 00-03) was that margins occeptobie for dessgn basis loads may be inodequate for more severe conditions. Controry to the Board's assertton. OCRE did not ignore conservatisms an the onolysis.
Id. ot 00.
Tre soord contrived on orgument for avoiding the issue or containment spray avottomility os on input to containment response anotyses, despite its own comission that sproys are on important hoot transfer mechanism and'despite the Storres tetter enor sproy avoilootlity ss questionoble an a degraded core occtdent ond snould not be token credit for in such onalyses. P!D at 43-44s CCRC Ed. 19 et /.. See otso OCRE Ex. 21 of 10, 94 The Boo o clotml that CCRE's orguments on contoinment sproy avottobility constitute o eno11enge to the spray system dessgn itseir, which should es constdered an o soporately odmitted contention. PID or 43-44.
(The Boord samslorl/ rejects CCRE's orguments on other asstems and scenortos. PID at SS.)
OCRE did not intend to litsgate the adequacy or the containment spray and RHR systems rather, its orguments, in the cose or contoanment sproy avo11obtitty, only meant to examine whether assuming sproy ovoslobility during a degraded core acendente in Stent or the Perry design, is a conservotave or even rentistte ossumption.
The evidence sndicates that it is not, and taking credte for sprays cc,eotes a significont nonconservatism in Appliconts' containment response onolysis wnsch the Ecord hos igncred.
In the cose or RHR systems, it must be snown that coerotton of the hydrogen control system will not o@3covote the course or on occident,
$0 FR 3500. Because, in the Perry design, containment heat removal, suppression pool cooling, and ECCS runctionootlity are all interrelated (Tr. 3440-05). the octual os-tutte contagurottens or enese systems and the procedures for their operotton must be awomaned.
Tne assue or hydrogen control is complex ond connot be considered in o voeuum. The Boord's statement tnot these systems are onotyced elsewhere in the
al-overall sorety analysis (PID at SS) reveals o lock or comprehensson or the centrol issue in the matter of hydrogen control: that systems, structures, and components designed and onoly:ed for design basis conditions are now expected to suevtve much more severe conditions.
The Board's oeceptance or the negative pressure copobility or the Perry containment (PIO ot 34) is entirely illogical, since that acceptonce reises on the assumed oction cr containment vacuum breakers, which the Board round to be insurftetently quattried for pressure. PID at 47 104 105 (Findings 141, 140):
Appliconts' Ex. E-1 at 14-15.
The soord rejects CCFE's corporison between CLASIX-3 ond HECTR. claiming that uncurtosnties in input porometers opply to HECTR os well as to CLA5fX-3.
PIO ot 40.
This reasoning ignores the roct that the HECTR runs cited by OCRE used insut porometers identical to those used in CLA$!X-3 for the purpose of unserstanding code behavior. OCRE Ew. 01 at 17-18: OCFC Proposed Findings, Appendix C.
The Board mischoroctert:ed CCRE's arguments an its Proposed Findings (at 37) that the presence of tent:ing rodtotton in contonnment will occelerate r1ome aseess. The Board clotms that CCRC osserted that ions:ing rodtotion will cause deflagrotton to setenation transikten. P!O ot 43.
The fact is that CCRE spe:aficolly ochnowledges App 1tconts' witness' testimony that rodiotton levels uculd be insufficsont to cause o detonation.
The Board ovoids considering the effect of iont:teg radiotion on flone speeds (ond whether, in light of this, the flame speeds used in Appliconts' contoirment response analyses are oppropriate) n/ lonelling the evidence 'old and outdated.' otthough no one, including Aspiteones, ever made this clotm.
The Board's conclusion that the CLA51X-3 containment response model is conservotive (P!D ot 47, 57) is not supported by evidence in the record. The
f g.
Board's rinding is based rather on neglect or nonconservative snput assumptions regardsng flame speeds (OCRE Ex. 01 or 17), spray avoilobility, sproy errectiveness in the wetwell (OCRE's Proposed Findsngs at 38-39. Tr. 3550).
sgnstion limits, and combustion completeness (Tr. 3516: OCRE Ex. 21 or 18) ond code behavior such as overpredicting heat transrer (OCRE Ex. 20s CCRE's Proposed Findsnas at 40). The Board otso neglects the rock that the CLASIX-3 code rails to meet Applicants' own standords for validotion or onolytical models. OCRE's Proposed Fsodings at 39-40: Tr. 3382.
The Board's assertson that e <perimental ooto confirms CLA51X-3 (PIO at 39) ignores CCRE's analysts i
l I
(OCPE's Proposed Fsnoings at 40 OCRE Ex. 21 at 199) or why this is not fitprising and why it does not validate the code for opplicotton to the comportmento11:ed Hork III contosnment.
The Boord similarly ignores the roct 1
that variotsons an the scenarios analy:ed (e.g., earl'/ recovery or the DWB ocescent ond extension of the containment response analysis until all hydrogen is consumed, rather than teamsnoting the calculotson when hydrogen release stopb. Tr. 3534-40,'OCRE Ex. 01'ot 09. OCRE Proposed Findings' at 40-43) result in for more severe condiesens, The Ecord, while rinding that certoin ecmponents are not yet qualirted for dessgn basis occident conditions, did not impose any license conditions or take on/ otrer opplicable octions. PID ot 47.
If there ss no ossuronce that these items will survive design bosss environments, then survival in a hydrogen combustion event as even more uncertain.
The Board's inoction is illogicols at the Very leost the Board should h0Ve stoposed license conditions requiring avoltricotton or these items before fuel lood.
The Board's occeptonee or Applicants' ossertions regarding the potential for and errects or secondary fires ignores CCRE Ex. 04, ubich shows that, even for ccmbustion or teon hydrogen-asr mixtures, p/rolysts and gastrication or cable
[
-;23 -
L. _
insulation, even ir not octually igniting the coble, con release gaseous species which ore combustible and con influence the pressure and temperature profiles in containment.
Id. ot 1005. The Board oiso claims that Applicants considered secondary fires in their preliminary onalysis (PIO at 53). when in roce the preliminary analysis does not consider the matter at all. Applicants
- Ex. 8-il l
Tr. 3560.
The Board stated that loter versions or Sandio's HECTR containment response model show lower temperatures and pressures than the version used in OCRE Ex.
01, aespite the rock that the only reliable evidence on this point showed higher pressures from o toter version. PID at 39 57: Tr. 3738. 3741-40.
It must be reco11ed that for o Board to odmit evidence and then rail to explain why it vos rejected is grcunds for reversal. Public Service Electric and Gas, (Hope Creek Generating Storion, Units 1 and 2), ALAB-429, 6 NRC 229, 037 (1977).
The Licensing Board hos otso placed the wrong burden of proof on this issue.
The Commission's regulotsons clearly establish that Applicants bear the burden of proor.
10 CFR 2.732 York Committee for o Sore Environment v. 0.5, NRO, 527 F.2d 81: (D.C. Cir, 1975). However, the Board has continually viewed the evtsence on Issue a in the light most roverable to Applicants and least revoroble to OCRE.
l In race, the Boord explieltty puts the burden on OCRE to show that the
- HEATING 6 cooe used by Appisconts in onolyses or equipment survivobilsey is nonconservative. PID ot 46.
The Court or Appeals ruled that, under the NRC's
~
stondords, porties opposed to licensing clearly do not have either the burden of proor or the burden or going forward, York Committee, supra, 527 F.2d at 816, notes 10, 13.
The Board's rulings on the containment integrity question also shou that the l
l I
L
-at H -
burcen was placed (olbeit at implicitly here) on OCRE. OCRE's reasoned randtngs on the true limiting penetration, margins avoiloble in the use or octual material properties, and the errects of dead Icod. elevated temperature, and contosnment vessel out-or-tolerance on containment copocity (OCRE's Proposed Findings or 20-22) are summarily rejected, while Appisconts' assertions are summarily arrirmed.
PID or 29-30.
The Board asserts that the r00 tors Cated by 0CRE ore not additive, although Applicants never established that.
The burden is thus placed on OCRE to show that these roctors are additive and 3ignifiCont, when employing the proper burden or proor Would have required App?.iconts to convinctngly demonstrate the sorety or their racility.
Similorly, OCRE's concerns regarding the opplicobility or the ASME service level C limits and onolytical methods (OCRE's Froposed Findings at 25-28) are summarily rejected by the Board, which claims that the evioence shows Applicants' onolyses to be odequate. PID at 32-34.
A view or the evidence (e.g.,
Tr. 3382-87, 3401, 3403-06) in occordonce with the correct burden or proor Would reoch the contrary Conclusion, In roct, the Board illegally took credit for Applicants' A5ME code service level D onolyses or the contoinment vessel to support its conclusion (PID at 34, i3, Finding 92) when 10 CFR 50.44 (c) (3) (iv) (B) (1) specifies the more conservative AIME level C os on oppropriote stonsord.
The Board summarily orrirms Applicants' statements that oil vonds in the drywell well have been round (PID at 35). whereas opplication or the correce burden or proof would requite Applicants to prove thise os CCFE's Proposed Findings (at 29) scentirted reasons raising doubt that this had been (or cculd ce) occomplished.
(see also Tr, 3415-16.)
Similarly, oppitcation or the correct burden or procr would require Applicants to onoly*e whether decoy heat removal would be odequate, ConsidertnG
.__--a
.25 -
heat oddition"to the contoinment atmosphere from hydrogen combustion, rather than summarily arrirming Applicants' excuses why this need not be done. PID at j
51-53.
See OCRE's Proposed Findings or 48-49: Tr. 3448-85.
The only view or the evidence on Issue.8 consistent with 10 CFR 2.732 is that presented in OCRE's June 13 Proposed Findings. To the extent that the PID is inconsistent with OCRE's Proposed Findings, it is erroneous.
(c) Conclusion To reach tts conclusions on Issue 8 in the PID, the Board hod to ignore evioence in the record, mischorocteri:e evidence, contrive irro'ional orguments t
for avoiding evidence, apply the incorrect burden of proof, defer contested motters for post-heoring resolutton by the Stoff, and employ on illegal stondord i
or sorety.
Ir ever o decision was ripe for reverso1, this is it.
B. ISSUE NO. 16, TDI DIESEL GENERATORS
(1983)), stored:
Applicone has not cemonstrated tNot st con reliooly generate emergency-on-site power by relying on four Transomerico Delaval t*TDI'] diesel 9enerators, two for each or its Ferry units.
The basis for the contention is the poor quality or design and manurocture, os revealed by Applicones' own reports made pursuont to 10 CFR 50.55(e) and the crankshort railure at Shorehom.
This issue Was the subject or on evidentiary hearing held April 9-10, 1985 (Tr. 2152-2517): testimony centered on the revolidation progrom or the TDI Owners Group. The Board in the PID round that Applicants had met their burden l
or proof on the issue and dismissed the contention, but established as a license l
condition the open items identified in SSER 6 (p. 9-7).
PID ot 123.
On April.30, 1985 OCRE had moved to reopen the record on Issue _No. 16 to comit a report or o check volv6.roilure in o TDI engine at Grand Guir. April l
- R.6 -
- 30. 1985 Moeion to Reopen the Record on Issue N16. Applicants and Stoff filed responses to the motion, and on May 28, 1985 the Licensing Board denied the motion. Memorondum and Order (Motion to Reopen Record).
Becouie these decisions are contrary to the weight of evidence and utili:e incorrect legal standards, OCRE seeks their reversal.
(By motion doted February 11. 1985,0CRE had sought the oppoi,ntment of Mr.
Gecrge Dennis Eley as a Board witness.
OCRE would have colled Mr. Eley as its own witness but for its.inobility to poy his fees and expenses. The Board denied OCRE's motion, stating that it was not possible to determine the need for a Board witness prior to the development of the record on the issue. March 26',
1995 Memorondum and Order (Motion for Appointment of Board Witness). At the conclusion of the hearing it was opparent to OCRE that, olthough the testimony of Mr. Eley would have been helpful, it was not necessory as OCRE's cross-exomination had elicited evidence adverse to Applicants. See OCRE's Proposed Findings, filed May 22, 1985. ot'8.
It is obvious from the PID and the May 23 order that the' Board's conclusion did not stem from insufficiency or misunderstanding of the evidence, but rather was a predetermined outcome, and no omount.of evidence to the controry would induce the Board to reach a different a
result. Thus, the Board witness question is moot, and OCRE withdraws the-portion of its September 19 Notice of Appeal pertaining to the March 26, 1985 Memorandum and Order.)
i-
- 2. Errors (o) LEP-85-35 In considering the evidence on Issue No. 16 the Board repeats many of the
- errors mode in its consideration of Issue No. 8.
First, the Board i9nores or mischorocterizes evidence in the record contrary to~its conclusions.
The Board ignores Starr witness Kirkwood's disopproval of Applicants' u_.a.
l t
-;U7 -
evoluotion (which the Board occepted) of the Perry engine roundation.
PID at 75, 100-101. Finding 2001 Tr. 2417-19. As shown by OCRE's Proposed Findings.
Applicants' rebuttoi testimony on this point (Tr. 2496-97) did not undermine the Storr's conclusions since it contained no information not previously considered by the Storr.
The only relioble evidence on the roundation demonstrates that it is unocceproble.
The Board similarly ignores evsdence that the maintenance and surveillance progrom may never be implemented or may not exist for the lire or the plant.
PID at 64: OCRE Ex. 2. Tr. 2305.
The Board claims that there is no basis for OCRE's position in the record, but the evidence clearly supports OCRE's sneercretation. See OCRE's Proposed Findings at 18-19.
In roer, recent Applicant-5 torr correspondence on the TDI diesels corrotorates OCRE's view.
In o letter dated August S. 1985 (provided to the Ecord and parties by a letter frcm Starr counsel dated August 21, 1985).
Applicones reveol, centrary to thest promises mode at the hearing (Kommeyer Testimony at 24i Christensen Testimony at 9-13), that they are now evoluoring wnecher er not to implement the recommendations or the Owners Group in the DR/GR report, and that any Which they will implement will be completed ' prior to stortup from the first Perueling outoge."
.The Bcord accepts Applicants' mischaracteri otion or the dericiency cocumented in OCRE Ex. 8 os o rondem cr isolated railure (PID ot 65; Tr. 2 31.
2263). when it is clear that the problem resulted rrcm TDI's poor design and monurocturing practices, for which the Owners Group program was supposed to ecmpensate.
The dericiency thus represents a roilure or the Owners Group progrom. See OCRE's Proposed Findings at 23-24.
Tne Board completely mischorocterizes the evidence on cylinder block crocksng.
The Board claims that OCRE's interpretation or o possose in Storr Ex.
5 is erroneous, when there is no dirrerence between the possose and OCRE's
o
. u_ _ -
parophrose of it.
PID or 72-73.
The Board oiso finds Dr. Bush's disagreement With the Owners Group on the allowable depth of stud-to-stud crocks to be irrelevant, os no crocks yet exist in the Perry blocks. However. Dr. Bush noted that the reason for the obsence of cracking is the low number of operating hours on the engines.
Tr. 2413.
The Board also based its decision on unrelioble evidence.
In fact, the Board octually relied upon a witness' seotement (concerning the length of time i
emergency power is needed for core cooling) which the Witness later retracted uncer questioning by the Board. PID or 72s Tr. 2274.
The Board also disregards the commission's regulations, cose low and precedent, and the Atomic Energy Act.
The Licensing Board exhibits a blatone disregard for Appendix B to 10 CFR 50 by refusing to consider the chorocter of the TOI owners Group and its obvious lock of independence from commercial interests, when that Crgani:Otion's activities are relied upon to revolidate diesel engines manufactured under a deficient quality assuronce program. PID or 63.
Criterion I of AP,pendix,B clearly es,tobl.ishes that quality assurance plans are not to be evoluoted separately from the organization responsible for their i$plementation, os the Board would co.(PID at 63), but rather that the organi:Otion's independence from cost and schedule influences must be demonstrated.
The evidence shows that the Owners Group rails this test.
OCRE Ex. 25 OCRE Ex. 4s OCRE Ex. 5.
As explained in OCRE's Prcposed Findings (pp. 13-16). the chorocter of the Owners Group has ramifications extending to all focets of the issue.
It offects
- i the weight to be given to the numerous promises ond commitments mode by Applicants os to the implementation of the progrom and to the Stoff's future E
assessments and monitoring of the diesel generator issue, os the CWners Group e-e w
r 5=
.2,9 -
hos influenced the Storr through its lobbying errorts. OCRE Ex. Os OCRE Ex. 5.
In referring License Condition 5 (PID or 123) to the Storr for o determination or complionce, the Board hos violated Section 189(o) or the Atomic Energy Act (see y21, supro) and has illegally delegated a contested issue to the Storf.ror post-heoring resolution.
Condition 5 references the open items at p.
9-7 or 55ER 6.
Or these seven items, only (4), (5), and (7) are truly conrirmatory issues, in the sense that they involve simple tests or inspections not suttable for exploration in on odjudicatory hearing. Compare Ucs, supro, 735 F.2d at 1449-50. The other items, however, involve onolyses, complex tests (the sufficiency or which is o disputed motters CCRE's Proposed Findings at 27-09, re torsiograph tests),
and the odequocy or the motntenance and surveillonce program, ogoin o disputed moeter (OCRE's Proposed Findings or 18-19).
These ore hardly matters which i
should be resolved outside the evidentiory hearing.
Tne Boord also erred in relying upon Starr opproval or the TDI diesel generators (See Findings 160, 165, 107, and 193), os that opproval is preliminary and for interim durotton. A rinal evoluotion hos been dererred until orter the first cerueling outoge.
Tr. 2305: OCRE Proposed Findings at 20-23, 36, Finding 20. This is tantamount to interim licensing. As noted above, the' Licensing Board does not have the statutory outhority to consider anything less than o rinol, full-power, rull-term operating license.
The Starr itself concedes that all elements or the Owners Group program ore necessory for ccmpliance with GDC'17. Starr Ex. 1 at 6.
The progrom should thus be rully implemented and reviewed prior to Itcensing. Cleorly a rinal operating license connot be based on o Preliminory and interim sorety evoluotion.
i The Board's statement that 'Intervenor concedes that Perry hos not opplied j
l
(
-3o.
for on interim license * (PID ot 66) misses the point entirely. The Board's finding that the Starr review or the Perry TDI engines is extensive (id.) riies in the race of its earlier decision denying summary disposition or Issue No. 16.
In its April 9, 1985 Memorondum and Order (Notions for Summary Disposition of Issues 1, 15, and 16), the Board ocknowledged that the Starr's review or the engines was brier and prelsminary, and considered that a mojor reason for eenying summary disposition. April 9 Memoroneum and order at 20-21.
The roctors listed in the PID (at 66) as supporting the extensiveness of the Starr's review are the very some rectort cited by the Starr in support or. summary disposition. See, e.g., the Arridovit of Drew Persinko Regarding Issue 16, riled with the Februory 25, 1985 NRC Storr Response to Applicants' Notion ror Summary Dispostrion or Issue M16.
They cannot be both ' preliminary and brier
- ond ' extensive." Of course, the Board disregards CCRE's discussion of why some or these_roctors (particularly previous Starr conclusions at other sites where TDI diesel.reliobility was not litigated before o licensing board) should be given little or no weight. See OCRE's Proposed Findings at 21-22.
The Board's relionce on the Storr to ossess the errect or added loods to the diesel generators (PID at 73) osain is tantomount to delegation to the Starr.
As shown by OCRE (Proposed Findings at 29-30), the octual loods and periods or Cperation throughout the life or the plant are unknowns thus, the only conservative assumption is to apply the standard in the procurement specification SP-562: continuous operation _oe 7000 kw.
Tr. 2187-88. Only this stondord will satisry the statutory mandate that licensing boards are to consider nothing less than rinal, rull-power, and full-term licensing, os discussed above.
The Board pieces the wrong burden or proor in its decision on Issue 16-os well. Placing the burden or proof on Applicants, where it belong), would require that the turbochorgers be considered unocceptoble due to the likelihood e
e m '
e
_. ___~_._
_3/ -
1-or.,vone.railure', which con demolish the(turbocharger.
PID at 68..Thpt this errect hos not yet been seen in nucleor turbochargers provides no assurance that i
i it will never hoPpen.
The Board would otso opparently require 0CRE to prove I
that Applicants' procedures for establishing the adequacy of the foundation are unocceptable (PID at 75) (although, os noted above,.there is evidence in the i
record on this point which the Boord ignores). -Other notable examples or this cre the decision on Dresser coupling replacement (PID at 74), the rejectacn or SP-56: os the stondord by which compliance with GDC 1 ond 17 should be measured i
j (PID at 63), the relevance or the San Onorre crankshort crocking to the ability or the DEMA standards and torsiograph testing to predict crankshort adequacy 1
(PID at 69-70), and the decision on the engine base and bearing cops (PID at 67-48).
~
i The Board osoin views the evidence in the light most.rovoroble to Applicants e
n and least rovorable to OCRE.
In roet, in every instance in.the PID, the benerit or 'the doubt. is given to Applicants.. The only view or-the evidence on Issue 16
~
consistent with 10 CFR 2.732 is that contained in OCRE's Proposed Findings, and to the extent that the PID 'dirrers' rrom that document it is erroneous, t
-(b) May 08, 1985 Memorandum and order (Motion to R'eopen Record) ('MSO')-
,In its motion to reopen the record, OCRE 011#99d that_the railure or_the check Vo1Ves ok.Grond Culr-represented acroilure'of the Owners Group program to.
prevent roilures attributoble to TDI's poor quality practices. See' April 30, t
-1985 OCRE Motson at 2.
l The rocts set forth in the NRC Storr* s response to OCRE's motion amplified OCRE's concern. Not only had the check volves in question been' reviewed and' r
opprovec.rorftheir opplicantion by.the Owners Group. but the some_.volves also railed at Shorehom.. Arridovie or Drew Persinko,'ottoched to Hoy 15,-1985 NRC' D
~ 5 toff Response to OCRE Not' ion to Reopen the Record..(In spite or these i
t-
~~
s
., ~,,
m,
..$.g,
=
occurrences, the Staff reaches the inopPosite conclusion, revealing that the Storf never believed that the Owners Group Program would result in a problem free engine.
Id.)
Applicants While admitting that the volves has been reviewed by the Owners choroctericed their f ailure os a 'rondom isolated failure' (Affidovlt of-
- Group, Edward C.~ Christionsen, filed with Appliconts' Nay 9,1985 Answer to OCRE Motion to peopen ene Record on Issue N16), a conclusion obviously vitioted by the roslures at shoreham.
Whsle concecing the timeliness and ssgnificance of OCRE's motion (two of the three stondords for reopening the records Pacific Gas and Electric (Diablo Conyon Nuclear Power Pione, Units 1 and 2), ALAB-598, 11 NRC 876, 879 (1980)),
the Board, finding " substantial merit' in the orguments of Applicones and Stoff, denied OCRE's motion. In a most telling statement, the Board claims that 'there is no conceivoble circumstance by which this Board's decision on Issue 16 -
i t
whatever its decision may ultimately be - could be offected by.the Proffered t
evioence.' May 28 H&O at 2.
2 This cecision is entirely erroneous as it accep'es the illogicci conclusions of Appisconts and Stof f whzeh are contrary to the f acts. The Board's statement that the evidence could not offect the outcome of Issue 16 basically reVeols that the Board had predetermined sts outcome and that no evidence to the contrary Would induce the Board to reach a different result' r
In addition. the Board's standard for reopening the record is inconsistent wherein the with its prior standard articulated in LBF-83-52, 18 HRC 256 (1983),
Ecord stated that the third criterion (if a different result would be reached)-
u was inopplicable to motions to reopen filed before the issuance of the initial decision. - LBP-83-52, slip op, or:2. This interpretation is entirely sensible and logical, and the Board should have opplied it consistently. To do otherwise
~
i
' is orbitrary ond copricsous.
4
,w r.--..---w
=. -. -
v (c) Conclusion i
For.the foregoing reasons, OCRE urges the Appeal Board to find the Licensing
~ ecordas'dacisions'on Issue 16 sn Le?-85-35 on'd the May 28, 1935 Memorandum and Order to be contrary to the ueight Dr evidence, the Atomic Energy Act, and the Commissior,*s regulations and to reverse (t.au occordingly.
I I
C. ISSUE NO. 6. ATW5/SLCS 4
.1.
Bocxground
.LBP-34-40, 20 NRC 1181 (Hemorandum and Order (Denying Motion for Summary
[
Dispcsition on CCRE Issue No. 6 ond Dismissing the Contentic1)) ( 'M&O ')
is a split decision concerning OCRE's Issue No. 6, uhich, os admitted by the Licensing Bocrd, stoked:
Applicont snculd install on outcrAoted stondby liquid control 5iscem C'5LC5'] to mitisote the consequences or on ontscipated transient uithout serom C* ATW5'3.
'Arter.issuonce or the Commission's new ATW5 rule. 10 CFR 50.62. OCRE moved 1
for summary disposition or this issue in its rovar os the Perry.5LCS has outcmotic copobility.- see OCRE Motion for Summary Disposition or' Issue No. 6.
i dated July 6, ICG4.
It is CCRE's interpretation or the ATWS rule that BWRs with outomatic SLCS copoeility be required to. utilize it.
.As the replies or Applicants and Storr to CCRE's motion indicated o di recen:e or interpretation of 10 CFR 50.60(c)(4), porticularly the phrone
'olready aesigned and built,' the Licensing Board then requested briers from the porties on this matter. OCRE submitted a detailed onolysis or ene legislottve history of the ATWS rules the' legislative history supports OCRE's interpretation.
The former Choirmon.ogreed that the legislative history supports OCRE's interpretation. - The moJority, however.. ignored the legislative history and i
contrived on illogicol' orgument to justiry its dismis' sol o'r OCRE's contention.
L t
5 -
c z
. 2. Legislative History or ATW5 Rule As noted obove, the correct resolution of Issue No. 6 hinges on the interpretation or 10 CFR 50.62(c)(4) consistent with its legislative history.
This regulation in port states:
4 The SLC5 initiotion must be automatic and must be designed to perform its function in a reliotle manner for plants granted a construction permit orter l
July 26, 1984, and for plants granted a construction permit prior to July 26, 1984, that have already been designed and built to include this recture.
A literol interpretation, os advocated by Applicants and Starr, would exempt EWRs that did not have on outomatic SLCS oiready designed and built as or the 4
errective date or the rule.
However, information in the Federal Register notice indicates that the decision to exempt certain plants from automation (despite the signiricont risk i
reduction ocheived therefrom) stems from o generic value/impoet onolysis based cn information supplsed by the Utility Group on ATUS. 49 FR 26038 (June 26, 1934).
The legislative history CCntoined in SECV-83-293, specifically, Enclosure D, the ATW5 Task Force Report, provides insight into this decision.
The costs for SLC5outemation(udonwhichtheruleisbased) include 53.35 million for design, engineering, and insto110tioni $10.0 million for downtime for installations $5.0 million for spurious trips and $4.2 million for AFUDC, operation, and maintenance.
(See September 7, 1984 OCRE Brier on the History and Intent of the ATW5 Rule at 9.)
Thus, the source of the phrose ' designed and builta is the lump sum for these oChiVities Considered in the value/ impact analysis.
The Task Force assumed that existing plants would be subject to the rull $23 million for outomating the SLC5. New plants (which are assumed to oiready be designed With this recture) See 49 FR 26038), clearly, would be subject to for less. Most signiricantly, there would be no downtime for installation.
The situation now existing for Perry with respect to the costs or SLCS
-3S-outomation is closer to o new plant than to on operating plant. The automatic SLCS is already designeds ports or it are installed to finish the installation would cost, by Applicants' estimates, $100,0C9. Dissenting Opinion or Chairman Bloch, MS0 at 19.
It installed before operation, there are no costs or downtime.
Most signiricantly, the final ATWS rule os approved by the ACRS required SLCS outomation in BWRs having the copobility to automate the system. See Sept.
7, 1984 OCRE Brier, Attachment 7.
An interpretation or the ATWS rule consistent with this history would thus mondate automation or the Perry SLCS.
- 3. Errors or the Hojority in LBP-84-40 The majority commits numerous errors to justify its conclusion. First, the legislative history or the ATWS rule pertaining to the interpretation or
'olready designed and built' is completely ignored.
The majority instead relied upon a legal interpretation or 10 CFR 50.62(c)(4) by one Starr engineer, on interpretation obviously contrived to fit the circumstances of Perry Unit 1.
MSO ot 9, 11-12.
The moJority concludes, without basis, that the Commission considered in its rulemaking the situation at hond: o CP holder having a SLCS copoble or outomation at extremely low cost but which refuses to utili:e that recture.
The majority only opplies its interpretotion to Perry Unit 1, leaving it ato future cases to determine whether reactors which are not in on advanced skoge or construction' should automate the SLCS. H&O at 12.
However, this category includes Perry Unit 2, and this is on OL' proceeding for both Perry units.
The 9
majority completely avoided its responsibility to decide this issue for Unit 2, ond such avoidance is tontomount to the illegal action of delegating the issue to the Starr for post-heoring resolution.
In rock, the majority, in rejecting OCRE's ossertion that a literal i
36-interpretation or 'olready designed and built' would create the opportunity for CP holders to evade the rule, explicitly states that it will be the Storr's responsibility to enrorce the rule for reactors not as advanced in construction os Perry 1, o class or plants which or course includes Perry 2.
H&O ot 6.
The majority's railure to consider OCRE's argument that a literol interpretation creates the potential for evosion or the rule is rotal error, as that orgument is centrol to the proper interpretation or the rule and its application to this cose. A literal interpretation or 'olready designed and built' would enable CP holders having on automatic SLCS design to avoid ieplementing its function by not building it as automatic. That is precisely what has hoppened here. The September 7, 1984 submittals or Starr and Applicants show that the true design or the SLCS, as supplied by General Electric, is automatic (contrary to the moJority's opinion, M&O at 7).
Applicants odmit that their drowings showed on SLCS with automoric initiation from August 1982 to February 1984.
Applicants Response to ASLB Request for Information on ATW5 Rule and the Perry SLC5 ot 6.
Only arter the issuonce or General Electric FDDR KLI-964 did insto11 orion or the automatic SLCS cease, Arridovit of John A. Grobe Concerning Issue 6, ottoched to NRC Starr Response to Board Request for Inforaation Regarding the New ATW5 Rule. The moJority conveniently ignored these rocts and continued to pretend that the Commission had considered this specific situation in its rulemoking and selection or the longuage in Section 50.62(c)(4), despite the revelation from the legislative history that ' designed and built' resulted from the lump sum assigned to these ockivities in the generic value/impoet analysis.
It is also obvious that the Commission believed that BWRs having outomotsc SLCS designs would be built to implement i
that design,.See OCRE Brier at 8.
The majority, for from arritming the Commission's intentions in the ATW5 rule, has made o mockery or them, rendering l
t k
~37~
10 CFR 50.62(c)(4) toothless With regard to plants now under construction by rewording a CP holder's deliberate evasion or the rule. Had the Commission wanted to limit SLCS outomation to new plants only it would have said so, but the mocority's decision hos created this errect.
The majority is simply wrong when it states that ' Perry's dilemma crises from nothing more principled than a roll or the dice' (M40 at 15).
It was not merely coincidental that the Perry SLCS was virtually complete at the time the ATWS rule was adopted. Rother, the record shows that Appliconts rejected the true GE outematic SLCS design and instead built a manual syscem, o conversion costing them $80,000. Leidich Arridovit, Exhibit E.
It is clear that neither tre Commission nor the ATWS Tosk Force considered this situation in promulgating the ATUS rule.
4 Tne majority continually mischorocterizes the ATWS rule os exempting BWRs
'in on advanced stage of construction
- rrom outomating the SLCS (M&O at 6,11),
when the literal interpretation of 10 CFR 50.62(c)(4) which the majority endorses would in rock exempt a BWR granted a CP on July 25, 1984, os the SLCS would be neither designed nor built in such a situation.
Or course, the legislative history reveals the source of ' designed and built,' but the majority refused to consider the purpose and intent of the rule in its decision.
The majority rejects Applicants' own rigure of $100.000 (which the majority mischcrocterizes os CCRE's estimate, Ms0 at 2, 13) for SLCS outomation by concluding that o 'rull rigorous site specific value impoet analysis' would have to be performed to confirm the estimate (MSO at 13), despite the obvious roct that generic rulemoking is undertaken to avoid such site specific onolyses.
The majority then advances the incredible theory that, in this Perry-specific analysis, sunk costs relating to automation of the SLCS should be considered forward costs. NGO at 14.
j
,,33 The moJority errs in stating that design costs would have to be expended (M&O at 14).
The record shows that the Perry automatic SLCS is already designed.
The moJority also mischorocterizes the Work needed to convert the Perry SLCS to outomatic as ' substantial
- M&O at 8-9.
In roct, the Arridovit of Gary R.
_Leidich on As-Built Status or SLCS Initiation (ottached to Applicants' Sept. 7..
1984 riling) lists only 32 cables (three or which are portially. installed), 8 relays, and two switches os requiring installation. Compared to the thousands or cobles, relays,.ond switches installed in the plant, this number is truly insignificant.- And, it is not surprising.that minimal work is'needed, os the original SLCS design (os built into the equipment ordered from GE) colled for outematic initiation.
Id.
The majority, in oddition to overestimoting the costs or outomoting the Perry 5LCS, hos denigrated the importance or this sorety feature. The moJority continuo 11y refers to SLCS outomation as a 'morginola improvement (MSO at 13, 16)'or os encompassing no 'important unresolved sorety question * (H&O at 11, 14).
These comments reveal o basic misunderstanding or the importance er the ATuS issue (which was Unresolved Sorety Issue A-9)and or automatic SLCS initiation in BWRs. The history of the ATW5 issue set forth in the Sept. 7.
1984 OCRE Brier (as well as the discussion in the Federal Register notice on the rinal ATW5 rule) clearly demonstrates the extreme sorety_ significance or ATW5 in BURS and the important contribution to screty made by automoting the SLC5.
The majority also advances the belier that "no greater weight ottoches to one side or that equation than to the other' (M&O or 11 on sorety vs. costs or SLCS automation). This view disregards the Cleor' instructions or the Commission l
in 18 CFR 2.764(r)(1)(ii) regarding the implications or the TMI occident.
l Certainly, ir acompliance with existing regulations may turn out to no longer worront opproval or a license opplication,' sorety must be considered paramount,
_3 9 -
but the majority ignores these instructions, Perusing to copture o significant sorety improvement at low cost.
The majority also engages in a discussion or regulatory uncertainty to buttress its findings.
MSO at 14-15.
Aside from oddressing matters or policy better left to the Commission, the majority neglects the roct that Applicants were rully prepared for regulatory uncertainty; indeed, this is why the Perry SLCS hos both manual and automatic options available.
In conclusion, the majority's illogical reasoning cannot withstand close scrutiny. The mojority hos ignored and distorted the record to reach its erroneous conclusion.
In contrast, Chairman Bloch correctly interpreted the rocts and the regulations in the interest or public sorety. The majority opinion should be overturned and the dissenting opinion or Chairman Bloch arrirmed in every respect.
D. 155UE NO. 13. TURBINE MISSILE HAZARDS
- 1. Eockground On May 31, 1983 the NRC Storr moved for summary disposition in its rover or OCRE's Issue No. 13, which stated:
Applicant has not demonstrated that the plocement and orientation or the Perry Nuclear Power Plant turbine-generators is in compliance with regulatory requtrements that limit the risk that low-trajectory turbine missiles will strike sorety-related torgets, thereby endangering the sore operation of the racility.
OCRE's response to the Storr's summary disposition motion Wos o request, purfuont to 10 CFR 2.749(c), that summary disposition be refused os there had been insurricient Opportunity for discovery ond information vital to the resolution or the issue (specifically, o report that was to be submitted by General Electric, the Perry turbine-generotor vendor, in June 1983 (55ER 3 at 3-i 9)) was not yet available for OCRE's evoluotion. OCRE oiso set rorth several l
stotements or material roct teruting the Storr's onolysis in SSER 3 regarding f
the likelihood or turbine roilure and missile generation in the interim period l
-~_. _. - -
t.l0 i
prior to final resolution of the issue according to the Storr's plan. See OCRE Response to NRC Stofr's Motion for summary l
Disposition of Issue N13 (June 23,1983) s CCRE's Amended Response to NRC Storr's Motion for Summary Disposition of Issue N13 (June 29,1983).
t In a decision so riddled with errors that the Licensing Board had to make moJor corrections later, the Board granted Summary disposition of Issue No. 13.
4 LEP-83-46,18 NRC 218 (Memorondum and Order (Summary Disposition of Turbine 3
I Missile Issue)) ('MSO'), corrected by September 6, 1983 Memorandum and Order i
'(Correction in LBP-83-46).
i i
.On October 14, 1983 OCRE moved for reconsideration or LBP-83-46 on the basis of a recently discovered-letter from Dr. Spencer H. Bush,' upon Whose.orticle the i
Board had relied extensively, which corroborated OCRE's position, see Motion for Reconsiderorion or the Licensing Board's August 9, 1983 Memorandum and Order Granting Summary Disposition or Issue M13, dated October 14, 1983.
On March 29, 1984 the Licensing Board denied OCRE's motion. March 29, 1984 Memorondum and Order (Turbine Missile Reconsideration).
l As the Licensing Board in these decisions hos exhibited a blotant disregard.
\\
r for the-the proper 19901 standards and the roctuoi r9 cord, OCRE seeks their c'eversal.
2.' Errors The Licensing Board again refuses to fulfil its obligation to resolve contested issues for full-power, full-term, and final licensing of the Perry i
facility. The Board instead accepts the Stoff's dererment or final resolution for three years and considers only the risk of turbine missiles _ for the interim period. MSO at 3.
The Board's reasoning at p.
13 of the MSO especially reveois
?
its lock or understanding of the nature of the unovoiloble General Electric i
onalysis (upon which final resolution of the issue will be based) and of its 4
P
("
uM
+
c
.-.i,,
_ qi -
responsibility to ensure that CDC 4 will be complied With for the life of the Perry plant.
Rother than OCCept this responsibility, the Board is perfectly content to delegate it to the NRC Stoff for post-heoring resolution, which, os noted ocove, is clearly improper. While the standard utili ed by the Board would have been oppropriate for a temporory operating license proceeding under t
Section 192 of the Atomic Energy Act, its application here has deprived OCRE or the right to a hearing on on issue material to final, full-term licensing, contrary to Section 189(o) of the Atomic Energy Act.
See UC5. supro.
Contrary to Paciric cos and Electric (Dicblo Canyon, Unit 2), ALAB-254, 8 AEC 1184 (1974), the Licensing Boord did not base its decision on relioble evicence in the record but instece upon faith that the Storf, on odversary party to the proceeding, uill reach the correct results sometime in the ruture. For example, although the Board ocknowledges the uncertainties in the occuracy of ultrosonic testing, it dismisses them with the incredible statement, * (w)e trust that the stof f either hos examined the dato, or Will shortly" to confirm its occuracy. MSO at 5, n. 11, emphosis added.
The Licensing Board's naive reliance on the Stoff's future activities controcicts the Boord's own prior standard.
Compore LEP-83-46 with the wise statements in LBP-83-3, 17 NRC 59:
Stoff's conclusion is not buttressed by supporting facts and reasons and does not negate the existence of a genuine issue of fact. Even or trial, were we to occept such unsupported staff statements we would be obrogating our responsibility as judges and substituting the stoff's judgement for our own.
On ultimate issues of fact, we must see the evidence from which to reach our own ineependent. conclusions.
LBP-83-3, slip op. ot 5.
The Board's flip-flop on this standard demonstrates the irrational and orbitrary and copricious nature of its MSO, The Board also opplies the incorrect legal stondords for summary disposition motions. Although OCRE specifically invoked 10 CFR 2.749(c), the Board does not even mention that regulation.
Its response to OCRE's main orgument that summary
_ _ = _
4 disposition should be refused pursuant to 10 CFR 2.749(c) is confined to two i
pages or the M&0. The statements or OCRE, made under oath, are rejected, while the Board engages in speculation that CCRE's inability to gain needed inrcreation resulted arrom railure to cenduct its cose diligently
- Or *because there is no serious sorety problem related to turbine missiles.' M&O ot 14.
The rederal case low cited by OCRE relating to the liberolity with which requests made unoer Rule 56(r) or the Federal Rules or Civil Procedure are to be
}
}
granted is completely ignored by the Board, despite the roct that 10 CFR 2.7 4 9 (c) is modeled orter Rule 56(r), and the rulings or the rederal courts thereupon-would certoinly provide useful guidance. Alobomo Power Co. (Forley Nuclear 1
2 Plant). ALAB-182. 7 AEC 010 (1974): Public Service Co. or Oklahoma (Block Fox 4
Station, Units 1 and 2), ALAB-573, 10 NRC 755 (1979).
J-1 j
The Boardsdenial or OCRE's 10 CFR 0.749(c) request (which the Board
~
i demonimated os o request for o continuonce) oppears to be based on its l
1 i
disopproval or CCRE's eutimate that six months would be needed for odditional i
f research and discovery. MSO or 14.
The Board railed to articulate wny that much deloy would be ur,occeptable. Appliconts' projected fuel load date at that tsme was December 1984. OCRE's Amended Response at 3.
Clearly a delo'y or six f
months in the consideration or one issue would have hormed no one. Considering the roct that no hearings were then scheduled (nor held until April 1985), and i
that the Ecord, apparently through neglect, took 5-1/2 months to rule on OCRE's October 1983 Motion for Reconsideration or LBP-83-46, the Board's decision is entirely irrotional. OCRE reali:es that hindsight has better vision than foresight and that the progress of.the proceeding may not-have been onticipated in August 1983. However, ir a six month.continuonce was too long to the Board, it should have proposed reasonable alternatives, such as o continuonce for 0-3 months at first. With the motter to be reviewed then to determine ir more time was needed.
Instead, the Board simply denied OCRE's-e
-,~-
.m.,.,m..
- $f3 -
~;
request. The railure to consider oiternatives for more reasonable and roir than outright denial further demonstrates the irrationality of this decision.
The Board, in railing to comprehend OCRE's 10 CFR 2.749(c) request, assumes i
that the substantive statements or material roct proferred by OCRE represented the sum total of its coce. Fcr ?wample, the Board states that intervenors did not challenge the turbine overspeed protection program. MS0 ot 2.
It was not possible to challenge this or any other ospect of the program due to the unovoilobility or information. The first complete description of the turbine overspeed protection system ovoiloble to OCRE was contained in the Arride/st or D.P. Timo and L.H. Johnson, attached to Appliconts' Answer in Support or NRC Starr Motion for Summary Disposition or Issue No. 13, dated June 24, 1983.
signiricantly, this information was not available through discovery, as Appli:onts claimed to have no contractuoi ogreement with General Electric Turbine Divisson which would mowe such information availocle, and Applicoats stated that they did not know which documents they would use, what witnesses they would call, or what their defenses would be on Itsue No. 13.
Appliconts' Answers to OCRE Interrogatories 9-1, 9-2, 9-3, and 9-13 (riled March 8, 1983).
i Appliconts foiled to update their discovery responses on this issue, i
ye t. Applicants were oble to present in support of summary disposition I
l orridovits by General Electric employees contoining spectric information which they earlier had claimed to be unavailo' ale to them.
This is one or the reosons the motion for sumr.ory disposition should have been refused under.50 CFR 2.749(c), os 0CRE uos unable to rerute, without rurther i
i discovery, Applicants' arridovits.
l l
The substantive issues er material rock presented by OCRE were not intended to be the sum total or its case on Issue No. 13.
Rother, they were facts gleoned from a cursory review of voluminous material recently obtained througn discovery and were meont to cause o reosonoble mind to inquire further. OCRE's main defense against summary disposition was the 10 CFR 2.749(c) request, o roet toto 11y lost upon the Licensing Board.
The Board states that OCRE's citation to on article by Patrick Heosler did not constitute evidence and that CCRE should have obtained on arridovit from Heosier. fl&O. ct 6-7.
This orsument. contravenes 10 CFR 2.749(o), which states that a party responding to o summary disposition motion may serve its answGr with or without arridovits. The Board's insistence upon on arridovit otso resulted from its erroneous conclusion that Dr. Bush's Nuclear Sorety article was suesequent to Heosler's; however, the Boord retained its requirement even ofter discovering its error. September 6 1983 M&Os March 29, 1984 M40.
To be consistent, the Board should have required on orridovit from Dr. Bush before relying upon his article. Only arter OCRE relied upon a letter from Dr.
Bush did the Board desire on orridovit from him.
March 29, 1984 MSO.
This again is inconsistent with the Board's previous summary disposition rulingss it had never before required arridovits from intervenors.
Indeed, the Board's ruling in this respect is tantamount to placing the burden of proor on OCRE ond not on the prcponent of summary disposition, even though it is well established thor opponents or summary disposition do not bear the burden or proof, os the Licensing Board itself ocknowledged in earlier decisions; see, e.g.,
LEP-82-114,16 NRC 1909 (slip op at 3-4)
LBP-83-3, 17 NRC 59 (slip op. or 4).
It must also be pointed out that it would not have been posssble for OCRE to obtain orridovies from either Dr. Bush or Mr. Heosler, os they were employees or the Pacific Northwest Loborotory (MSO at 10), o Storr contractor, and as such are considared NRC employees.
OCRE could not, obsent a showing or exceptional circumstances, obtain the arridovit or o particularly named NRC employee.
The Boord occepts the statements or Stof f and Appliconts without a moment's hesitorion, yet subjects the statements or OCRE to the most exacting scrutiny.
ys-MSO or 3-6, 9-10.
This constitutes placing the burden or proof on OCRE rather than on those supPortin9 summary disposition, contrary to Clevelond Electrac Illuminating Co. (Perry Nuclear Power Plant Units 1 and :). ALAB-443. 6 NRC 741 752-54 (1977).
The Boora in roct ocknowledges precedent articulating the correct burden or a
proor for summary disposition, but rejects it in rover or what it terms o cose that is most directly in point,' Houston Lighting S Power Co. (Allens Creek Nuclear Generating Station). ALAB-609.13 NRC 75 (1981). M&O at 8.
Allens Creek cirrers radically from the situation at hand. First, it did noe snvolve a request under 10 CFR 2.749(c) that summary disposition be refused. Secondly, it did not concern compliance with the Commission' sorety regulations but addressed on issue crising under the National Environmental Policy Act or 1969, the consideration or olternative energy sources. Third, it did not address conflicting orridovies or expert witnesses, os chorocterized by tr.e Licensing Board (MSO at 8), but rather involved a response to summary disposition resting upon mere ollegations and denials. which railed to controvert the rocks set forth by the movont showing that the alte 'notive energy source, o marine biomass form, suggested by the intervenor was remote and speculative. Nothing in Allens Creek suggests that the burden of proor rests upon those opposing summary disposition.
The Board's response to informatzon undermining its conclustons oiso illustrates the irrational, orbittory and copricious nature or its actions on this issue. Arter discovering major errors in LBP-83-46, the Board, wnile odnitting that the errors were not just editorial but in roct were substantive, nonetheless rearrirms its original concluston, September 6, 1983 M40. Contrary to the Board's chorocteri:otion, the assumed sequencing was o ma,7r reason for relying on the article by Dr. Bush and rejecting that or Mr. Heosier in granting summary disposition in LBP-83-46.
M&O or 7, 9-10.
- -.. - _ ~ - - _ _ - - -. _ _.
~ -
-ve-
~
When confronted by a letter from Dr. Bush to the ACRS giving logical reasons Why the Storr position should not be oecepted on roith without corroborating dato (OCRE's October 14, 1983 Reconsideration Horion), the Board denied that it had relied upon Dr. Bush, instead claiming reliance on the arridovit of Timo and Johnson. Horch 29, 1984 NSO.
In LBP-83-46 the Board said it was influenced by the orriovit and considered it odditional corroboration for Bush. H&O at 11.
(Actually, the Boord should not have considered the Timo-Johnson arridovit at i
011. os Applicants had deroulted on their discovery obligations with regard to this information.) For from being concerns or a general nature, 1
Dr. Bush's letter raises very specific concerns directly relating to the Proper outcome or the issue and costing grove doubt on the Volidity or the Storr's approach. The Licensing Board's response to CCRE's Reconsideration Motion indicates that the Board had mode up its mind to dismiss Issue No. 13 and that no information. no matter how signifacont. could change that foregone I
conclusion. Certainly this.is the epitome or orbitrary and copricious behavior.
The Licensing Board has oiso endorsed a preliminary and unopproved Starr position an granting summary disposition of Issue No. 13.
The Starr position in 1
1 S$ER 3. upon which its summary disposition motion is boSed, stems from proposed revistons to Regulatory Guide 1.115 and Section 3.5.1.3 or the Stondord Review Plon, even though the present guidelines are still in errect. See Attachment 3 to OCRE Response to NRC Storr's Motion for Summary Disposition or Issue N13, dated June 23, 1983.
It must be noted that Starr popers not yet formally adopted have no legal significance. Duke Power Co. (Cotowbo Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397 416 (1976).
The Starr's proposed standards consist or o denigration or its present stondords.
It is teproper for the Storr to base its position on a denigration or o process which it itself had
. promulgated, public Service Electric and Gos (Hope Creek Generating Station, Unies.1 ond 2), ALAB-518e 9 NRC 14. 09 (1979). These reosons alone demonstrate
~, - - - _.
. ny }
- that the Board 8s uncritical acceptonce of the Starr's position Was especially inoppropriate.
In summary. the Licensing Board's decisions in LBP-83-46 ond related orders illustrate irrotional, illogicol, and unreasonable odjudicotton. The Board opparently believes, at least on this issue, that o full and complete record is unnecessory for its decisions, and that it is not necessory to have the intervenor's input to that record before acting.
The Board's misopprehension or the rocts, contradictory rulings, and total disregard or the low demand reverso1.
E. ISSUE NO. 9. DOSE RATE EFFECTS ON POLYMER DEGRADATION I. Background on January 14, 1983 the NRC Storr filed for summary disposition in its rovar or Issue No. 9, which stated:
Applicont hos not demonstrated that the exposure or polymers to radiation during the prolonged operating history or Perry would not.couse unsore conditions to occur.
The issue was based on research performed at the Sandia National Loboratory shouing that polymers exposed to the some cumulative dose but at lower rates experience more degradotion than polymers exposed to higher dose rates. OCRE opposed the Storr's motion by rilings doted February 7, 1983 (OCRE Response to NRC.Storr Motion for Summary Disposition or Issue N9) and February 23 1983 (OCFE Reply to Appisconts' Ansver in Support or NRC Starr Motion for Summary Disposstion or Issue #9).
On March 30, 1983 the Licensing Board granted summary disposition on all but one aspect or Issue N9, concerning the inspection and maintenonce program to be utiti:ed by Applicants to detect polymer degrodotion. LBP-83-18 17 NRC 501 (Hemorondum and Order (Polymer Degrodotion: Summary Disposition)) ('H&O').
On April 14, 1983 Applicants filed a motion for reconsideration and clarification or LBP-83-18, in effect seeking summary disposition of the issue 4
-.4/d3 -
in ses entirety.
OCRE coposed this motion by a riling dated April 08 1983.
Durang o ecnrerenca call held May 9. 1983. the Licensing Board granted Applicants' motion.
Tr. 807-808.
Because these orders are inconsistent with the oppropriate legal stondords, OCRE seeks their reversal.
- 2. Errces The Starr's main orguments supporting summary disposition of Issue No. 9 were that the Commission's (then) siew rule on environmental qualification or elecerscal equipment. 10 CFR 50.49, precluded constderation of the issue and l
that Applicants were required by Regulatory Guide 1.33 to implement a moaneenonce ond inspection progrom (which would be revtewed by the Storr) which bould detect polymer cegrodotion.
In LBP-83-18 the Licenssng Board ancorrectly accepted the Storr's first premise, at least as to the long-term, rinal resolution or the matter, and correctly rejected the second.
The Board concluded that 10 CFR 50.49 precluded it from inquirang into the final. full-term, full-scale'qualiricotion or electrical equipment, depcite the rect that 10 CFR 50.49(e) (4) requsres on evoluotion or dose-rote errects. MSO at 8.
The Board accepted the Storr's ollegation that the scheduling provassons an ene rule, wnien requtres compliance no later than November 30, 1985. would remove the matter from the Board's jurisdiction.
So the Board, believing that Perry would be licensed long before November 1985, odopted o 'sorety in the intertm period' stondord for its resolution or the issue. M&O or 0. 9, 10-17.
As discussed above, on contested issues o licensing board hos no outhority to consider anything less than a full-power, full-term, final operating license.
Thus, the Licensing Board's stondord was clearly illegall the Boord.should have oetermined whether dose-rote errects and related synergastic errects (recognized as importont by the Boardi HSO at 15-16) would be properly considered in the rull-scale equipment quatirication.
The Board's oction, or course. illegally
- q7-delegated that matter to the NRC Storr for post-heoring resolution.
The reasoning used by the Board (and the Storf) to reach this standard was extremely flowed. First, the phrase 'no later than November 30,1985* (10 CFR 50.49 (g) does not oiso mean 'no earlier thon's there is nothing preventing a licensee or on opplicant from meeting the requirements or on earlier date, nor does the regulation prohibit a boord from requiring submittals at on earlier date if that is necessory for o decision.
See Offshore Power Co. (Flooting Nuclear power Plants). ALAB-489. 8 NRC 194. 200 (1978). holding that a board may order the Staf f to publish documents by a certoin date to avoid delays 10 CFR 2.7 tl, cuthori:ing the prestding officer to lengthen or shorten the time limits in the Commission's re9ulations for good cause.
Second, to clotm that the Board is bound by a projected licensing date, beyond which it has no outhority, is circular reasoning, os the Board itself controls the date of licensings in o contested proceeding, no license con issue until the Board has mode the findings in 10 CFR 50.57(o).
Third, the Board's reasoning contravenes the very wording it osstened to Issue No. 9: that ' exposure of polymers to radiation during the prolonged operating history of Perry' will not cause sorety problems.
Thus, the Board's in gr,ont of summary disposition hos removed a material issue from the hearing, vsoloticn of Section 18?(o) of the Atomte Energy Act.
See ggi, supro.
OCRE had argued that. since Issue No. 9 includes mechanicol as Well as electricol equipment. 10 CFR 50.49 would have no errect whatsoever on tnot portion of the contention, even assuming. orguendo. that the portion of the assue concerning electrical equipment would be ofrected thereby. The Board agreed that Issue No. 9 encompassed mechonicol os well os electrical equipment.
MSO at 5-6.
Hcwever, the Board concluded that CCRE had not established that the radiation-induced degradotton of polymers in non-electrical equipment would cause o sorety problem. M&O ok 10.
The Board's conclusion ss entirely 111oJical. The Board claims that there is a natural inference that electrical uses of polymers have sorety significance, since on electrical ' system was designed to control plant equipment and that railure would disrupt control,' M&O or 10, n. 16.
Bue, the electrical systems control mechanical components such as Vo1Ves, which utilice the suspect polymers, It is inconsistent to e,sume that the railure or a control system is unsore while railure or the controlled Component is not unsore.
The Board's assumption that seals and gaskets con become degraded without cousing a sorety problem (id,) is not supported by evidence, and requiring on intervenor to provide evidence that sorety is adversely ofrected by degradot.on places the Wrong burden or proor, which, os noted above, belongs on the profonents or summary disposition.
The Board's assumption is at odds with its own observation that the observed modes or degrodotion ' ore more relevant to non-electrical uses than to electrical uses' ond that 'research concerning radiction-induced degrodotion or polymers used in electrical wiring opplies to other uses or polymers' as well, H&O ot 6.
The Board claims that CCRE did not identify the non-electrical uses or polymers at Ferry with any more specificity than to assert that ' polymers have been used in 'seois, goskets. 0-rings, seats, and tubing used in purely mechanical components such os volves.
M&O at 10.
This is untrue, In on updated discovery response riled February 7, 1983, and specifico11y referenced, by the very possage the Board quoted, in OCRE's response to the Storris motion, OCRE submitted relevant portions or o polymer materiots list developed by Applicants. This list identified the components by plant equipment number, monurocturer, model number, and description, identified the plant ~ environmental
- ene
- di/ -
in which the components are located, and listed the polymer used and how it is used. See OCRE Supplemental Response to Applicants' Second set of Interrogatories and Request for Froduction of Documents to Intervenor Ohio Citi: ens for Responsible Energy, dated February 7, 1983, onswer to question 17, 4
- p. 2, and attachment.
It is importone to reali:e that that CCRE was completely dependent on information totally within Applicants' possession and control for. identifying polymers, components, locations, and projected doses and dose-rates.
It would be unreasonoble to expect CCRE to provide greater specificity than Appliconts themselves had provided.
Ironically, the Board reali:es these difficulties with respect to electrical coble insulation (MSO at 11, n. 21), yet rejects eCRE's scentsfication of non-electrical components, identified with for F'ecter particulartty, as insufficient. The Board's exclusion of mechanical equipment was entirely irrotional.
In cetermining that the interim operation of Perry will not cause a safety problem due to polymer degrodotion, the Board makes o number of inferences from Applicants' ofridovits filed in support of summary disposition and invites correboration of these inferences in on offidavit to be filed by Applicants ofter summary disposition was granted. N&O at 10-12, 13.
'Allowsng gaps in the evidentiory PGCord to be filled by post-summary disposition offidavits is clearly unfair and improper, jee Northern States Power Co. (Froirie Island Nuclear Generating Plant Units 1_ond 2), ALAB-284, 2 NRC 197, 205-006 (1975). Arter summary disposition is granted. OCRE hos no means (e.g., discovery or cross-examination) by which to challenge the offsdovits, If the Board had any doubts obout the validity of Applicants' position, it should simply have denied summary disposition and explored the matter at a hearing where all parties have the opportunity to test the evidence.
~
- g;L -
The Board's actirn is tantomount. to placing the burden or proor on on
' opponent of summary disposition. Since summary disposition is o harsh remedy, depriving the litigants of the right to cross-examine o witness, which has been described as the essence or on odjudicatory hearing (Perry, ALAB-443, supra, 6 NRC at 755). the record must be reviewed in the light most roverable to-the opponents or summary disposition, who need not show that they would prevail,'but only that there are issues to be tried. Pacirie Cos and Electric Co.
(Stonislaus Nuclear Project, Unit 1), LBP-77-45, 6 NRC 159, 163 (1977).. The Board identifies a number of uncertainties ossociated with this issue (M&O at 12,15,16,17),
and even chorocteri:es Appliconts* orsuments os confirming the existence er genuine issues of roct (M&O at 4), but nevertheless grants summary disposition and removes the resolution or this contested issue from OCRE's grasp. Certainly.
this action connot be consistent with the clearly-derined standards for summary disposition.
On the matter or Applicants
- inspection and maintenance progrom, the Board correctly denied summary disposition, stating that * (o)ssurances that opplicont will odopt on adequate plan are insufficient to demonstrate that its Plan is (or will be) odequate' (M&O at 3) and noting the uncertainties in predicting dose-e rotes and their errects, making the odequacy of the plan a material issue (M&O at 17-18). However, on reconsideration, the Board bought Applicants' obsurd claim that requiring litigation of the plan would be inconsistent with 10 CFR 50 Appendix B, Criterion-II, which,'occording to Applicants' interpretation, does not require elements of a quolity assurance program before they are needed.
Tr.
811-816. The Board granted summary disposition on this matter and required Applicants to oscin submit a post-summary
' disposition orridovit describing their maintenance and surveillonce program.
Tr. 829.
m
._m N
33
._ 'The Board's errors here are'substantially the some os discussed above, on the impropriety of filling gops in the record With offidOVits incopoble of being j
{
challenged by opposing porties, on the Board's considerable authority and discretion to order submittols at earlier times than would ordinarily be-required by the regulations, and on the obligation of the Board itself to q'.
consider the final, full-term resolution of contested issues, which may not be deferred for post-heoring resolution by the Stoff.
It oppears that the Boord was influenced by Applicarts' claim that a hearing on the mainteDonce and surveillance Program would cost them money that would not i
Tr.-816-816.
While such considerations otherwise be expended before fuel lood.
might be useful in scheduling hearings on the matter, it is improper to consider them for the purpose of determining the scope of a hearing. Neither the Atomic Energy Act nor the Commission's regulations permit such considerations in 4
granting or denying heon*ng requests.
In fact, the Commission hos clearly stated that a party's lock of financial resources does not relieve that party or its hearing obli9ations.
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).
yet the Board, based upon unsworn and unsubstantiated ovetments,.bos relieved Appliconts of their obligation to present their maintonence and surveillance program, os it relates to this contested issue, at a hearing so i
f thor all porties (and the Board) could test its odequacy. The Board again defies Section 189(o) or the Atomic Energy Act by orbitrorily removing a f~
fJ contested issue from the hearing, i
In summary, LBP-83-18 and the Board's Order at Tr. 827-828 ore irrotional, orbitrary, and copricious and inconsistent With the low. As.such, they.must be
(
reversed.
F. NEW CONTENTION ON AIRLOCK TESTING
- 1. Eockground
+.,-s 4
iv
-e
.wir1-,w, w
.;-,.I, w,-s, ty v-y,w--
4-On July 5,1985 OCRE submitted its Motion to Reopen the Record and to Submit a New Contention, by which OCRE opposed Appliconts' request for on exemption f rom Section III.D.2(b) (ii) of Appendix J to 10 CFR 50.
The requested exemption would eliminate testing'of containment personnel oirlocks by internal Pressuri:otion of ter periods when containment integrity is not required, o proctice considered financially burdensome by Applicants. OCRE's opposition to
.the exemption is based on noncompliance with 10 CFR 50.12(o), in that the
- exemption is not outhori:ed by low, will endanger life or property, and is not in ene public interest. Additionally, the exemption as essentially a challenge to Appendix J ond, as such, must be subject to the provisions of 10 CFR 2.758.
On August 30, 1985 the Licensing Board in LBP-85-33 (Hemorondum and Order (Motson to Reopen Record and Submit New Contention)) '('M&O*) dismissed OCRE's motion. Secouse the Board disregarded its obligation to resolve contested issues and to protect the health and safety of the public and ignored the opplicoble legal stondords. OCRE seeks oPpel10te review and reversal of this decision.
- 2. Errors The Licensing Board viewed OCRE's motion as challenging the Commission's ou,thority to grant exemptions and thus, as a challenge to 10 CFR 50.12 itself.
MSO ot 3.
A proper reading of OCRE* s motion will reveal that OCRE was not challenging the regulation, but instead offered on interpretation of it.
10 CFR 50.10(o) empowers the Commission to grant only those exemptions which
'cre authorized by low. Clearly this means that specific' Congressional authority is needed.,and neither the Atomic Energy Act'nor its legislative history
'contains such authorization.. See OCRE Motion at 2-3.
Rother, licensing is conditioned onLa finding of unconditional compliance with the Commission's safety standards. 42 USC 2133(b)(2): 10 CFR 50.57(o)(0): Maine Yankee Atomic Power Co. '(Maine Yankee Atomic Power Storion)i L ALAB-161, 6 AEC-1003, '1007
._a
. ~.
e
-SS-
-(1973).
For from being a challenge to the regulations, OCRE's orgument offered on interpretation consistent with the Atomic Energy Act ond.the Commission's stondords and precedents.
The Board cited Corolino power and Light Co. (Sheocon Harris Nuclear Power Plant, Units 1-4), CLI-74-9, 7 AEC 197 (1974) as prohibiting challenges to 10 CFR 50.12. However, this cose apparently concerned the limited Work outhori:otion provisions or 10 CFR 50.12(b) for o CP proceeding, not a permanent exemption from the Commission's sorety regulations under 10 CFR 50.12(a). In any event, the cose in irrelevant as OCRE is not challenging the rule.
The Board rejects OCRE's claim that consideration of financial hardship (the sole motive for Applicants' exemption request) is improper. The Board dismisses the Supreme Court coses cited by OCRE (Motion at 3-4) With one terse sentence:
In our view, the coses cited by OCRE have no direct opplicobility to the issue or exemptions involved here. M&O at 3.
The Licensing Board takes comfort in a proposed revision to 10 CFR 50.12 which would include financial hordship os o justification for on exemption 05 i
providing insight into the Storf's current practices. M&O ot 4.
A proposed rule, however, hos no effect until enacted, and until changed, the current rules are in force. The present rule does not authorize exemptions to relieve financial burdens. Whatever the Stoff may have done in other situations and 1
cases is not relevant. The question is, in this specific. instance in this contested proceeding, whether the proposed exemption is 19901 The Licensing Board ovoids a correct decision on the opplicobility of 10 CFR 6
2.758 by noting that Appliconts did not octually ossert that compliance with the Appendix J requirement would not serve the purpose of that requirement. MSO or 5.
However, this action ignores the clear precedent that complionce With the Commission's regulations is essential to o finding of ' reasonable assurance' i
l that the f acility will not endanger the heoith and safety of the public..-Hoine I
66-Yonkee supra, 6 A C ot 1009.
It has also been made clear that a claim that a rocility is sore to operate even ir in non-compliance with the regulations is in errect a challenge to the regulations. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power station). ALAB-138, 6 AEC 520, 529 (1973). See August 5, 1985 OCRE Response to Starr and Applicant Answers to OCRE's Motion to Reopen the Record and to Submit o New Contention at 5-6.
Actually, OCRE's orgumenes on the opPlicobility of 10 CFR 2.758, the need for Congressional authori orion for exemptions, and the illegality or consicering rinoncial burdens are inextricobly intertwined.
The Appeal Board's 1andmark Vermont Yonkee (ALAB-138) and Moine Yankee (ALAB-161) decisions firmly established that, pursuant to the Atomic Energy Act, compliance with the Commission's sorety regulations is the sine qua non or odequate protectton to the public health and sorety, and that arguing that a reactor is sore if in DonCompliance is tontomount to on impermissible attack on the Commission's rules, significontly, the Appeal Board based its findings on the very cose cited by OCRE:
Power Recctor Development Co. v.
International Union or Electrical, Radio, and Machine Workers, 367 U.S. 396 (1961).
In roct, the Appeal Board explictly states that boloncing of costs and benerits does not occur under the Atomic Energy Acts rather, the stondores or that Act and the regulations promulgated thereuncer are termed 'unconditionol.' Maine Yankee, 6 AEC at 1007. The Licensing Board's utter railure to oderess OCRE's claims (which ore toto 11y c)nsistent with the Atomic Energy Act and the rulings or the Appeal Board and the Supreme Court) Constitutes o rotal riow.
The Licensing Board rejects OCRE's citation or Long Island Lighting Co.
($horehom Nuclear Power Station). CLI-84-8, 19 NRC 1154 (1984) by asserting that that cose would only opply to o contested issue.
H&O at 6.
The Board implies that for it to consider the matter would be raising a suo sponte issue.
Id.
However, by filing its motion OCRE has made the matter o contested issue.
But
o
- J67 ~
the Board refuses to consider the merits of OCRE's or9uments on the safety signtriconce of the exemption. MSO or 4, 6.
The Board instead invites the Commission and the storr to evoluote the sorety significance or the exemption.
Id.
Or course, obsent on explicit rererrol to the Commission, the matter Will foil into-the Storr's, hands."
This avenue will cbviously provide no relier to OCRE, in light on its unsuccessrul attempt to sway the Storr by its letter or May 8 (Exhibit to OCRE's Motion) and since the Storr has so readily granted similar exemptions at other rocilities.
(The Board should not have taken this os a sign or on insignificant sorety issue, but should have reviewed the matter itself.)
So the Licensing Board osain obdicates its responsibility to decide contested issues and to make the findings required by 10 CFR 50,57(o) by illegally rererring the matter to the NRC Starr for post-heoring resolution.
In conclusion, the Licensing Board's avoidance or its statutory responsibility on this issue Ond neglect or the proper legal standards guarantee the reversal of its erroneous decision.
The Licensing Board should be directed to reopen the record and admit OCRE's contention for on evoluotion on the eersts.
III. C0t4CLUSI0f4 For the foregoing reasons, OCRE concludes that the decisions or the Licensing Board appealed herein ore contrary to lou and inconsistent with the rocts. OCRE pray that the Appeal Board Will reverse and vocate these decisions and remond these matters to the Licensing Board for proper consideration consistent with the Appeal Board's opinion.
Respectfully submitted, 7
e susan L. Hintt OCRE Representative 8275 Munson Rd.
Mentor, OH 44060 (216) 055-3150 hC-rb@i2 M M[6 nea+
i W
UNITED STATES g
8 NUCLEAR REGULATORY COMMISSIO 7 i
o a-9 c WASHINGTO N. D. C. 20555 JUN % 91983 k
MEMORANDUM FOR:
Walter H. Butler, Chief g
Containment Systems Branch Division of Systems Integration r
Office of Nuclear Reactor Regulation i
Morton R. Fleishman Regulatory Analysis Branch Division of Risk Analysis q*#fd gffb
'5
' Office of Nuclear Regulatory Research z(h FROM Thomas F. Dorian, Attorney fp Regulations Division
{
1 Office of the Executive Legal Director yUN
~
SUBJECT:
CRGR MEETING: HYDROGEN CONTROL RULE gj 0 td$
The attached note from J. Scinto makes some good points.
In addition, Bill Olmstead had some discussions with Ed Case concerning the application of the interim rule to BWR Mark I ind II containments.
It appears that the staff now believes that the assumptions they were making with regard to BWRs with inerted containments are not as realistic as they should have been.
Consequently, Case wants to interpret 9 50.44(c)(3) to be met if a Mark I applicant can show that inerting is the " primary means for controlling combustible gases." The result of this convolution is to find that the rule is met without the need for internal or external recombiners for Mark Is.
This, of course, raised the question as to whether Mark II' utilities could also make such a showing.
Section50.44(f)may'alsobesusceptibletosuch an interpretation but it is not clear to me that the staff wants to indulge in the same creativity in the latter case. The staff seems to be hinging all.of this on an evaluation of accident scenarios which result in containment failure probabilities which in the former case are deemed improbable and in the latter case are deemed within the design basis envelope. At any rate, it would seem that the final rule ought to be dressed up to better accomplish what the staff plans to do rather than continuing to engage in legal gymnastics to turn the rule into something else.
I would like to discuss this subject with you.
7 bb homas F. Dorian Attorney Regulations Division Office of the Executive Legal Director
Attachment:
As stated 1
c June 8, 1983 Note to Bill Olmstead
SUBJECT:
CRGR MEETING - HYDROGEN CONTROL RULE A number of points were made by the CRGR suggesting improvements in the language of the hydrogen control rule and I indicated that OELD would be willing to assist in drafting the language to be more precise.
The specific changes involved are:
1.
In paragraph 50.44(C)(3)(iv)(b), the first portion of the sentence is the very broad and ambiguous concept that the containment integrity model must be demonstrated to use a method accepted by the NRC staff.
I made a point of the undefined nature of this provision.
It simply calls for models accepted by the staff without any standards for the staff's judgment.
In response, the staff indicated that they specifically meant to accept models such as the two accepted in connection with Sequoyah and McGuire; that is, a finite element structural analysis of the containment using actual material properties for the containment material derived from con-struction records rather than the simplified calculations using nominal material properties called for by the ASME Code.
I think this part of the proposed rule can be improved significantly either by explicitly identifying
~
the particular analytical methods here in'the regulations or using language in the regulation itself with broad standards and provde some context by discussion in the Statement of Considerations. That's what I would tend to do - something like " containment structural integrity must be demonstrated by the use of a recognized analytical technique with sufficient supporting justification to demonstrate that it accurately describes the containment response to the structural loads involved", or, some similar characterization
. indicating that the model must be a correct modeling and give a general standard for staff judgment. We have to have at least sufficient objective standards so that the staff's judgment can be tested in a challenge before the Licensing Board, if necessary.
If we use broad language of the type I suggest then the Statement of Con-siderations ought to give an example of what's meant by this, using the two examples from Sequoyah and licGuire.
The other standard that needs to be described is the standard for accept-ability.
I just don't recall what they used at McGuire and Sequoyah.
I can remember they talked about factors of 21/2 and 3 in the various discussions.
Also, when they did the finite element analysis model and they came up with the substantial containment strength - like 60 pounds. The staff then said it was okay to go up to pressures like 30 pounds (it could have been closer than 2 to 1, I'm not sure).
They need to have some sort of standard for the acceptability of the' results _oL.the model as well as a standard for judgment.
for Tne adequacy Tf'the model.
~.. _ _.
e bit can be done in a general fashion; that is, have a requirement that the model be a valid model which demonstrates an adequate margin of safety, and in the Statement of Considerations, give it context by discussing what we mean by valid model and adequate margin of safety.
2.
The other point which needs modification is (vi)(B)(3). Again, its in the very general language requiring the use of " accident scenarios that have been accepted by the NRC staff".
There was a lot of strange discussion on that. One person suggested that they meant scenarios that have been accepted by the staff prior to the date of promulgation of the rule.
Others did not agree.
In any event, it is a bad way to write it.
If we mean only scenarios okayed before the rule is finalized they should identify the specific accidents, sequences and scenarios that have previously been approved and not put a rule out that requires people to hunt around to find out what the rule requires.
I don't believe the words say that.
I believe the words ar.e open ended and would permit any sets of scenarios; once they are accepted by the Staff they become "have been accepted".
In any event, the CRGR general comment is that there :hould be something more specific.
Further, the whole complicated story in the Statement of Considerations relating to Table 1 and Table 2 is too complicated and too complex. CRGR indicated the staff should fig ire out what hydrogen release rate values provide an adequate envelope of hydrogen release characteristics to permit the design an,1cceptable hydrogen control system. The staff should know enough by now to simply pick numbers for release rates which adequately characterize the range of values needed to design an adequate H2 control system.
The staff seemed confused at this point and I'm not quite sure they know where to go with this. issue.
It sounds to me like they can probably use some ' help in sorting out what they ought to be doing in this regard. In any event, my reaction is that they need to at least have some appearance of a standard for acceptability.
pgoeScinto v
4 t
8
CERTIFICATE OF SERVICE This is to certify that copies Of the fore 90ing Were served by 1
depQsit in the U.S. fla i l, first class, postage prepaid, this 2/2#
day of 473MA, 1985 t o the Service List.
W.W Susan L.
Hiatt SERVICE LIST
~
COLLEEN P. WOODHEAD, E50 JAMES P. GLEASON, CHAIRMAN OFFICE OF THE EXECUTIVE LEGAL DI ATOMIC SAFETY & LICENSING BOARD RECTOR 513 GILHOURE DR.
U.S.
NUCLEAR REGULATORY CONH.
SILUER SPRING, MD 20901 UR5HINGTON, D.C. 20555 t
DR. JERRY R. KLINE DOCKETING & SERUICE SECTION ATONIC SAFETY & LICENSING BOARD OFFICE OF THE SECRETARY U.S.
NUCLEAR REGULATORY COHN.
U.S.
NUCLEAR REGULATORY CONH.
UH5HINGTON, D.C. 20555 UR5HINGTON, D.C. 20555 HR. GLENN O. BRIGHT l
ATONIC SAFETY & LICENSING BOARD TERRY J. LODGE, ESO.
U.S.
NUCLEAR REGULATORY CONH.
[
.UASHINGTON, D.C. 20555 O
H 43524 ALAN 5. ROSENTHAL, CHRIRHAN DOURLD d.
EZZONE, ESO 1
ATONIC SAFETY & LICENSING APPEAL A55'T PROSECUTING RTTY BOARD i
LAKE CO. ADMINISTRATION CE>frER U.S. NUCLEAR REGULATORY CONH.
105 HRIN ST.
WASHINGTON, D.C. 20555 PRINESUILLE, OH 44977 f
DR. W. REED JOHNSON JOHN G.
CARDINAL, ESO ATOHIC SAFETY & LICENSING APPEAL PRO 5ECUTING ATTV BOARD A5tfrRBULA CO. COURTHOUSE U.S.
NUCLEAR REGULATORY CONH.
JEFFERSON, OH 44047 UASHINGTON, D.C. 20555 HR. HOWARD A.
WILBER ATOHIC SAFETY & LICENSING APPEAL BOARD U.S. NUCLEAR REGULATURY COHH.
UASHINGTON, D.C. 20555 l
l f
i I
JAY SILBERG, E50.
I SHAU, PITTHAN, POTTS, & TROUBRID GE
(~1800 N ST. NU i_ WASHINGTON, D.C. 20036
--.