ML19338E183
| ML19338E183 | |
| Person / Time | |
|---|---|
| Site: | South Texas  |
| Issue date: | 09/22/1980 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Citizens Concerned About Nuclear Power, INC. |
| References | |
| CLI-80-32, ISSUANCES-SC, NUDOCS 8009250042 | |
| Download: ML19338E183 (2) | |
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i HOUSTON LIGHTING AND PCWER COMPANY )
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(South Texas Project, Units 1 & 2) )
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Docket Nos. 50-498
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50-499
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MEMORANDUM AND ORDER (CLI-80-32)
Citizens Concerned About Nuclear Power, Inc. and Citizens for Equitable Utilities (hereafter collectively referred to as " Citizens") have requested a hearing on an order issued by the Director of the Office of Inspection and Enforcement on April 30, 19d0 which requires Houston Lighting and Power Company (hereafter, " Houston"), holder of a construction permit for the South Texas Project, Units 1 & 2, to show cause why safety-related construction activities at that site should not be stopped in 90 days and remain stopped until such time as the permitee completes a number of changes in its operations and procedures.
45 Fed. Reg. 30753 (May 9, 1980).
This request will be denied, though alternative relief will be accorded to Citizens in the context of a pending operating license proceeding for these facilities.
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Background
f The histor -
much of the controversy surrounding the i
South Texas Project is catalogued in some detail in the Director's Crder to Show Cause, as well as in a Notice of Violation and a Notice of Proposed lbposition of Civil l
Penalties for $100,000, issued on April 30, 1980.
In short, the Notice of Violation refers to 28 items of non-compliance by Houston, illustrated by approximately t0 incidents.
These help to substantiate a critical conclusion reached in the Order to Saow Cause -- i.e.,
the " lack of detailed knowledge and involvement (in the construction of the South Texas Project] has hindered Houston Lighting and Power Company'n abil.cy to maintain acequate control" over Brown & Root, Inc., its contractor.
45 Fed. Reg. at 30755.
As a result, Brown & Root was alleged to allow conditions at the site to deteriorate to such a level daat an inn,ediately effective suspension order was ' issued by the staff.
Th at order and the grounds for its termination focus on correction I
l of the particular problems through the imposition of alternative management schemes relating to implementation of an effective quality assurance / quality control program.
These changes were proposed by the staff only af ter 12 separate NRC investigations 2-1/2 year period, during which there were conferences over 1 with iouston, several prior itens of non-compliance, a
deviation, five immediate action letters and presently l
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3 numerous substantiated allegations of harassment, intimidation and threats directed to quality assurance / quality control personnel and false statene ; in the Final Safety Analysis Report ("FSAR").
As the Director of the Office of Inspection and Enforcement concluded, "[t]he facts reflect widespread noncompliance by the licensee and its principal contractor, Brown and Root, with 10 CFR Part 50, Appendix B of the Commission's regulations."
45 Fed. Reg. at 30755.
Houston was given the opportunity to file a written answer to the Order to.Show Cause, with the requirement th a t such ansuer "specifically admit or deny each allegation".
45 Fed. Reg. at 30756.
Furda ermore, Houston "or any other person whose interest may be affected by this Order" was permitted to request a hearing.
Id.
The Director stated that if a hearing is held, the issue to ba considered would j
be "whether the licensee shall be required to take the actions specified in Section V(A)" of the Order to Show Cause.
45 Fed. Reg. at 30756-30757.
Houston responded on i
May 23, 1980 to the Order to Show Cause, the Notice of
_ Violation and the Notice of Proposed Imposition of Civil Penalties.
Most of the allegations in the Notice of Violation l
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were substantiated by Houston.1!
But in failing to specifically affirm or deny charges of harassment, intimidation and lack of support of quality control inspectors by quality control management, Houston alleged that "the absence of information l
1/
In response to the following items, Houston replied daat each item of non-compliance was " substantiated":
f ailure to complete backfill compaction in accordance with a qualified procedure; failure to take prompt. corrective action when test apparatus failed, halting testing; failure to establish procedures for systematic sampling as part of soil testing program; failure to document soil lift thickness and number of passes of equipment as part of QA records; non-conformance reports, examination checks / inspection books and field requests for engineering action-trend analysis are inadequate; concrete placement activities problems not corrected in accordance with prior commitments; failure,to follow procedures with regard to qualification of civil and 4
concrete QC inspectors; failure to control documents in daat i
contractor's QA Manual copies are out of date; failure to control welding as a process with regard to cleanliness; failure to-control radiography, a special process, leading to poor radiographic quality; failure to record weld-related linear indications on accompanying interpretation sheet; i
failure to control liquid penetrant examinations; failure to follow procedures in daat a procedure was used af ter an expiration date; failure to take corrective action when cadwelders need requalification; failure to take corrective action in a reasonable time and management did not get the problems resolved with regard to nonconformance situations identified through the Brown & Root Site Internal Surveillance activity; failure to follow procedures to document and j
correct unsatisfactory surveillance conditions; failure to control the use of a nonconforming hammer for penetration; f ailure to control the dimensions of the split spoon in soils test control; failure to provide for, and conduct, supplemental audits as part of the Houston QA plan and audit system; failure of Houston to perform adequate audits in that unsatisfactory conditions were not observed; failure to perform audits on the prescribed frequency; failure of 3rown
'& Root to perform in-depth audits of site activities; failure to inspect reinforcing steel tir loose rebar prior to concrete i
. placement; failure to control cJ,ign changes in root openings and weld dimensions; and failure to follow ASME R&VP Code per 10 CFR S 50.55a for radiograpev qualification technique.
5 which woulo identify persons, places and dates" has made its task
" impossible".
However, it did state that "our review indicates that such instances probably did occur" and in Houston's reply to the Order to Show Cause, discussed in more detail later, it responded that "the substance of the allegation (with respect to certain incidents of harassnent and intimidation) is conceded in response to the first item of noncompliance. "
Houston contended that it had taken "important steps... to assure that QA/QC personnel have the requisite freedom and authority to identify problems and determine that they are adequately resolved, free from production pressures" and that "this concern has been brought under control".
It promised further steps and vigilance to assure that these problems do not recur.
It also identified six
" root causes" for the items of noncompliance which it promised to attack.2/
Finally, it recognized that "[u]pper management has 2/
These six " root causes" were said to be:
1.
Translating specifications and requirements into clear and simplified procedures down to the job level.
2.
Improvement of systems for documenting nonconforming conditions and systematic trend analyses to identify programmatic weaknesses.
3.
Upgraded training and indoctrination of personnel at all levels in quality-related tasks with special emphasis on the project goals of reliability and safety.
4.
Stronger system controls, reflected in procedures which assure that quality-related activities are initiated, controlled and properly documented.
5.
Improvement of the system of audits to verify adherence to procedures and identify deficiencies for resolution at the appropriate level of management.
6.
Increased visibility of, and active participation by, upper management in QA/QC activities.
While identification of these " root causes" may be helpful to an analysis of the problems at the South Texas Project, they might also be said to raise a question of overriding significance:
are these problems themselves symptoms of some other and more basic deficiencies?
6 the responsibility to assure that quality functions have a high degree of visibility to enhance quality awareness throughout the project."
4 In responding to the Order to Show Cause, Houston incorporated the text of its response to the Notice of Violation.
It admitted that " clearly lack of detailed involvement by management was a contributor to the problems noted" in part of the Order to 5how l
Cause, but it reiterated its view that odner " root causes" were also involved.
It promised to respond to the specific inquiries put to it by the Order to Show Cause within 90 days, at which time it would also address She allegation that "two apparent f alse statements ' in the FSAR were identified regarding test and observation [ work} actually performed.
In reply to the Notice of Proposed Implementation of Civil Penalties, it also incorporated its response to the Hotice of Violation and forwarded a check for
$100,000 in payment.
On May 28, 1980, Citizens requested a hearing on the order to Show Cause.
It argued that the " violations found in the [NRC) investigations of Novenber 19 79 through February 1980 are not isolated events but rather part of a consistent and disturbing pattern."
It cited a July 1977 Brown & Root inter-office memo as some evidence daat quality assurance / quality control personnel were intimidated as early as three years ago.
Citizens argued daat charges of intimidation "cVer a three year period during which more than fif ty percent of this plant was constructed is enough."
Even af ter the latest NRC investigation, alleged Iitizens, harasst. arc
7 intimidation and firings on " trumped up charges" of quality control inspectors had occurred.
Referring to inadequacies in the backfill work, voids in the conctete, defective welding, failure to follou proper procedures, 2nd " th e constant repetition of the same problems", Citizens clained that these are " clear indicators that quality has not been assured since major project work began."
Citizens noted that the above charges, substantiated by the Commission's own investigation, directly support Citizens' contention before the Licensing Board in the operating license proceeding for the South Texas Project, Units 1 &
2.
It claimed that "[n]ot having the public hearing [on the enforcement order] will adversely affect the ability of the
[ Licensing Board] to evaluate this project and the ability of Intervenors to support their contentions before the
[ Licensing Board]."
As Citizens sees it, a hearing would lead the NRC staff to call as witnesses presently unidentified persons whose investigative interviews support the enforcement order, and this in turn would allow Citizens to gather additional testimony from these witnesses.
Citizens is concerned that with rapid turnover at Houston's facility, these witnesses will be unavailable for future discovery and that only the intervenors will be denied their identities.
Furthermore, Citizens expressed its apprehension that " th e basic approach of the NRC Order to Show Cause is that problems
8 to date will be corrected by future reform and the project will then go forward."
In Citizens' view, this "would be a de facto resolution of the very contention (Citizens is]
arguing before the [ Licensing Board]."
Even if the issue raised by Citizens were lef t open for adjudication in the licensing proceeding, in its opinion the failure to have a hearing on the enforcement order would be tantamount to denying to it "the evidentiary basis for the NRC actions in the Order to Show Cause."
Citizens argued that other, practical reasons support its hearing request.
For example, taking issue with the statement in the Notice of Violation that "no items of majer safety significance were found which related to the staff charges," Citizens has expressed a desire to develop more f acts on this issue by further probing of quality control employees.
In addition, it stated an intention to tie into P
the NRC staf f allegations which supply the basis for the Notice of Violation the " prior history of similar problems. "
Through this analysis --
what might be called an effort to look at the whole forest instead of individual trees --
Citizens would attempt to convince the Commission, through the adjudication of the enforcement order, that the "only appropriate action responsive to the long history of abuse is revocation of the construction license" held by Houston.
Citizens recognized that its contention about plant construction, raised in the operating license proceeding, might lead the Licensing Board' to conclude that Houston's operating license application should be denied.
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9 Citizens noted diat in the interim "the project will have gone forward and more millions of dollars will have been spent....
The evidence is already available to take conclusive action nou."
Citizens also argued that the public is entitled to a " full airing of all relevant information regarding the a
safety of the nuclear plant" so that future plans can be made.
Finally, Citizens sees the petition process under 10 j
CPF 2.206 as unlikely to yield the results it seeks.
"(Ilf the Commission does not see fit to revoke the construction license based on what is already known, a denial of a 2.206 request seems likely."
On June 13, 1980, Houston responded to Citizens' request for a hearing.
It argued that Citizens is not entitled to a hearing as a matter of right because, by its desire to address the issue of Waether the Order to Show Cause contains a complete factual analysis of the problems at the South Texas Project site and contains an adequate enforcement remedy --
i.e., suspension until certain conditions are met, instead of revocation --- citizens has raised an issue that goes beyond the scope of the Order to Show Cause.
Houston relied upon Public Service comoany of Indiana (Marble Hill L
Nuclear Generating Station, Units 1 & 2), 11 NRC 438 (1980) and Wisconsin Electric Power Comoany (Point Beach, Unit 1),
NRC (May 12, 1990).
Furthermore, Houston argued that Citizens would _ not he prejudiced by failure to hold a hearing on the enforcemcat order; to the contr;ry, alleged Houston, Citizens can use its ciceovery rights in the y
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10 operating license proceeding and the Freedom of Information Act, 5 U.S.C.
S 552 and 10 CFR S 9.3 et sec., to determine the identity of quality control employees who provided the l
allegations in the Order to show Cause.
Finally, Houston contended that Citizens has not made a case for the Commission to exercise its discretion to convene a hearing on the enforcement order.
In Houston's view, "[t]here is no issue of fact upon which to join issue in a discretionary hearing at this time -- except the unsupported, but implicit, suggestion l
of [ Citizens] that the Director [of Inspection and Enforcement]
erred in charting the course set forth in the Order."
If this is Citizens' complaint, stated Houston, it may file a 2.206 request immediately or subsequent to the Director's evaluation of Houston's response to the actions required by the Order to Show Cause.
Houston is candid, however, in stating its view that Citizens' request for a hearing, if construed as a 2.206 petition, should be rejected, i
The NRC staff filed its response to Citizens' request I
on June 24, 1980.
The staff argued that Citizens was not in l
any way injured by the Order to Show Cause, and, hence, that Citizens had no standing to request a hearing as a matter of i
righ t.
Citing Public Service Comcany of Indiana, suora, the staff stated that to allow Citizens to have a hearing on the issue of whether a stricter enforcement action should have been taken would be contrary to the Conmission's " policy that encourages licensees to consent to, radner than contest,
11 enforcement actions."
Furthermore, the staff noted diat the Director held out the possibility of further enforcement action, depending upon Houston's actions in response to the Order to show Cause, and that Citizens is always free to subnit a 2.206 petition.
As to the question _ of a discretionary hearing, the staff claimed that "such a hearing is neither necessary nor appropriate."
As the staff sees it, "the issue which the Petitioners really desire litigated is the issue which goes to the heart of the operating license proceeding, i.e.,
whether there is reasonable as,surance that the facility has been constructed soundly and therefore can be operated safely."
It is precisely this issue, contended the staff, that is outside the scope of the enforcement action.
Responding to Citizens' allegations of prejudice if a hearing is not held, the staff stated that Citizens has full discovery rights in the operating license proceeding and that, in fact, the Licensing Board in that case has expedited a hearing on the very issues sought to be raised by Citizens.
See Houston Lighting and Power Co. (South Texas Project, Units 1 & 2) ASLB Memorandum (March 10, 1980).
In the staff 's view, "should there be any matter which the Board believes justifies additional enforcement
- action, e.g., suspension, then such matters would be promptly referred to the Director for his consideration. "
Furthernore, the staff stated that "the fact daat the Licensee has consented to the Order (to Show Cause] and the imposition of a civil penalty should be of some support to the Petitioners in the operating license proceeding."
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12 On July 28, 1980, Houston filed a detailed response to Section V of the Order to Show Cause.
It stated that it has undertaken major changes in its organization, personnel and procedures since the NRC investigatipn.
For exanple, its Executive Vice-President has been assigned responsibility for the South Texas Project, virtually on a full-tine basis, and the CA De-partment Manager reports directly to him.
Additional quality assurance specialists have been hired, and there has been retrain-ing of key Houston personnel.
The system of audits has been upgraded.
Houston also noted that Brown & Root has taken several steps, including attitude improvement, revision of procedures and personnel changes and additions.
All of these changes by Houston and Brown & Root are to assure the adequacy of ongoing work, develop a program for commencing previously suspended activities on an orderly basis, and verify the adequacy of work previously completed.
Houston concluded:
These commitments, ' faithfully executed, provide assurance daat the construction activities at STP are, and will be, conducted in accordance with appli-cable requirements, and consistent with the public health and safety, and therefore should not be stopped. 3/
3/
Houston's July 29 document is quite lengthy.
Because the
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adequacy of its technical contents can better be judged by j
the Director of the Office of Inspection and Enforcement, we have not endeavored to quote extensively from it, I
although we have examined the entire document insofar as it is relevant to our ruling on Citizens' request for a hearing on the order to show cause.
1
13 Legal ~ Discussion Concerning a Hearing on the Enforcement Order 4
We agree with Houston and the staff that under the holdings in Public Service Coneany of Indiana, supra, and Misconsin Electric Power Company, supra, Citizens is not entitled to a hearing on the ' enforcement order as a matter of right.
Like the complainants in those two cases, Citizens is arguing that the remedy proposed by the Director is insufficient to protect the public health and j
safety.
Thus, it is not adversely affected by the Director's action inposing increased regulation on Houston, but is radaer aggrieved by the Director's failure to take stronger action.
Furdiermore, by its very terms, the Order to Show Cause states that if a hearing is held, the issue to be considered would be i
"whether the licensee shall be required to take the actions i
specified in Section V(A) of that order", and not whether other, t
i more stringent actions should also be required.
The cited cases l
j have rejected a right to a hearing in these circumstances.
Citizens has offered a number of reasons why a hearing should be granted as a matter of discretion.
It claims that a hearing would require the NRC staff to call as witnesses several persons who have not yet been identifiede but whose interviews i
support the Director's order.
Th is, in turn, would allow Citizens to learn the identities of those persons and to further question I
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14 th en.
However, as Houston suggests, Citizens can file either interrogatories with the staff or a Freedon of Information request with the Commission in order to learn the identities of persons with knowledge about the incidents covered by the Direc-tor's order.
These possibilities are a far cry from Citizens' fears that failure to have a hearing on the enforcement order would be tantamount to denying to it the " evidentiary basis for the L'.C actions in the Order to Show Cause. "
We also find no support for Citizens' proposition that if Houston undertakes the reforms suggested by the Order to Show Cause, this would be a "de facto resolution of the very con-tention" that Citizens is presenting to the Licensing Board in the operating license proceeding.
A decision by the Director of Inspection and Enforcement in an enforcement action does not bind a Licensing Board in an operating license adjudication from making a decision which would further restrict, or even deny a license for, the operation of a facility.
The Board must make
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15 its decision based upon the record in the case before it.
j Similarly, we do not believe that a hearing on the enforcement order is necessary on the ground that it could result in a relatively early revocation of a construction permit, while the Licensing Board in an operating license proceeding will be swayed by the fact that the project has further progressed and millions of dollars more have been spent.
As the D.C. Circuit said in Porter County Chapter of Izaak Walton Leacue of America v. NRC, 606 F.2d 1363, 1370 (D.C. Cir. 1979) one should i
not transform a projected tendency to inertia into a pre-sumption of infidelity to duty.
(cite omitted).
It is not the public, but the utility, that nust bear the risk that safety questions it projects will be resolved in good time, may eventually prove intractable and lead to the denial of the operating license.
Th us, it is not true, ar Citizens alleges, that a " full airing of all relevant information regarding the safety of the nuclear plant" can come about only in a hearing on the enforcement order.
To the contrary, the operating license proceeding can very well serve this goal.
Pioreover, as Houston and the staff noted, an 4
informal public hearing was scheduled (and has now been held) in Bay City, Texas to address the issues covered by the Director's action.
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l l-16 Thus far, we have indicated why we believe that a discre-tionary hearing on the enforcement order is not the appropriate forum for the trial of Citizens' allegazions.
The staff, how-ever, has suggested the possibility of a 2.206 petition.
He must l
candidly state, as Houston has done, that the filing of such a petition is likely to be an exercise in futility in this in-stance.
The Director has reached a conclusion as to the appro-i l
priate remedy and Citizens has been unable to provide new evi-dence which could be expected to cause the Director to recon-l sider; in fact, it is precisely because Citizens is lacking such i
evidence - diat it has called for a full hearing on the enforcement order where it can develop that evidence.
If Citizens' charges l
l are to be given appropriate consideration, they will have to be i
addressed in some other way.
Legal Discussion Concerning the Operating License Proceeding l
The Licensing Board in the operating license proceeding recognized the seriousness of the charges made by Citizens, and it proposed to expedite a hearing on those charges "so that, if ectrective action is required, it may be undertaken as early as possible in the construction schedule. "
ASLAB Memorandum at 2 (March 10, 1980).
Even more recently the Board stated:
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[ Citizens]... recognize [s] that it would not be appro-priate for a hearing on (the quality assurance-related contentions) to begin prior to the Commission's action on the show-cause hearing request.
The Staff has also taken that position before us.
We agree.
The matters raised by the show-cause order appear to include the substance of (these] Contentions 1 and 2 (although the relief which we could grant might wel: be broader Oban the relief sought under the show-cause order)
We reiterate, however, th a t, whether die hearing is held under the aegis of the show-cause proceeding or this proceeding, the prompt resolution of the QA/QC issue is, in our view, in the public interest.
To the extent that the Commission were to determine that hearing of the issues in this proceeding is preferable to hearing them in a show-cause proceeding, we. would, of course, be prepared to admit into controversy any issues comprehended by the show-cause order but not presently included in Contentions 1 and 2.
ASLAB tiemorandun at 3 (August 1, 1980).
We agree with the Board that expedition is necessary, but for an additional and important reason that goes to the core of Citizens' complaint daat Houston should not be operating a nuclear facility.
The history of the South Texas Project -- at least 12 separate NRC investigations over a 2-1/2 year period, resulting in con-i ferences with the licensee, several prior items of non-compliance, a deviation, five immediate action letters, and now substantiated allegations of harassment, intimidation and threats directed to QA/CC personnel and apparent false statements in the FSAR -- is relevant to the issue of the basic competence and character of Houston.
Central to that issue are two questions:
whether the f acts demonstrate that the licensee has abdicated too much responsibility for construction to its contractor, Brown & Root, j
Inc., and whether the facts demonstrate an unacceptable failure
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18 on the part of Houston to keep itself knowledgeable about nec-essary constructiori activities.
Either abdication of responsi-bility or abdication of knowledge, whether at the construction or operating phase, could form an independent and sufficient basis for revoking a license or denying a license application on grounds of lack of competence (i.e.,
technical) or character qualifica-i tion on the part of the licensee or license applicant.
42 U.S.C.
S 2232a.
In large part, decisions about licenses are predictive in nature, and the Commission cannot ignore abdication of responsibility or abdication of knowledge by a license applicant when it is called upon to decide if a license for a nuclear facility should be granted. Al We believe that the above issues relating to technical com-potence and to character permeate the pleadings filed by Citizens.
They do deserve a full adjudicatory hearing, as they will no doubt get in the operating licence proceeding, and they do deserve expeditious treatment because they could prove disqualifying. E Accordingly, we agree that the Licensing Board in the operating license proceeding should proceed with its expedited.~ tearing on 4/
Equally, and perhaps of more concern, the Connission cannot ignore f alse statements in documents submitted to it.
Con-gress has' specifically provided that licenses may be revoked for " material false statements", see section 186a of the Atomic Energy Act, and we have nu doubt that initial license
-applications or renewal applications may also be denied on this ground, certainly if the falsehoods were intentional, FCC v. UOKO, 329 U.S. 223 (1946), and perhaps even if they were made only with disregard for the truth.
Leflore Broadcasting Co. v. FCC, F.2d (D.C. Cir. No. 78-1677, June 5, 1980); Virginia Electric & Power Co. v. NRC, 571 F.2d 1289 ( 4 d1 Cir. 1978).
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jy We include, of course, the false statements charge in diis
. category.
19 the quality control-related issues (including the allegations of f alse statements in the FSAR).
As the Board has already deter-nined to proceed in this manner, no formal order is necessary.
However, we expect the Board to look at the broader ranifications of these charges in order to deternine whether, if proved, th ey should result in denial of the operating license application.
For this reason, we are ordering the Board to issue an early and separate decision on this aspect of the operating license pro-ceeding.
No prejudice should result from this approach and no additional time or resources should be necessary than if the matter had proccmded to a final, but integrated, decision at a later date by the Licensing Board.
Separate views of Chairman Ahearne and Commissioner Hendrie are attached, as well as the additional views of Commissioners Gilinsky and Bradford.
It is so ORDERED.
Fop the Commis'sion I
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SAMUEL J. CHILK
" Secretary of the Commission Dated at Washington, D.C.
thisdichay of Septenber, 1980.
C'nairman Ahearne's separate views:
I concur in the result but do not join in the opinion.
The opinion contains a large number of extraneous comments which I cannot fully support.
In addition, in light Of the recent Appeal Board opinion in Atlantic Research,*/
I find it necessary to state that I do not concur in the additional views of Commissioners Gilinsky and Bradford.
Cammissioner Hendrie's separate views:
l Although Commissioner Hendrie concurs in the Majority opinion, he does not concur in the additional views of Commissiorers Gilinsky and Bradford.
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ADDITIONAL VIEWS OF COMMISSIONERS GILINSKY AND BRADFORD As we stated in our dissenting opinion in Wisconsin Electric Power Company, supra, we believe that the results in that case and in Public Service Company of Indiana, supra, are wrong.
We would i
have ' preferred to re-examine those holdings here.
However, the denial of a discretionary hearing on the enforcement order is not contra ry to the public interest in safety and health in this case.
The party requesting that hearing, Citizens, is already a party to the pending operating license proceeding involving the same issues raised in the enforcement action and, as a resu? t of our action today, those issues will be resolved on an expedited basis in the form of a partial initial decision.
There are a few 4
other points, howeve r, that we feel should be mentioned in connec-tion with that operating license proceeding and the guidance given
-the Licensing Board.
Fi rr. t, as the 'rde r s tates, through the use of inte r roga to r ies or a Freedom of Information Act reques t, Citizens can seek to lea rn the identities of persons with knowledge about the matters i
covered by the Order to Show Cause.
Thereaf ter, Citizens could attempt to contact these persons informally or take prehearing depositions of them to obtain more information, and could attempt sto call them as witnesses in the operating license proceeding.
Second, the Commission has indicatei that abdication of responsibility or abdication of knowled could form an indepen-
' dent and sufficient basis for denying c revoking a license.
This view has been accepted by the Courts in their review of license-related actions of the Federal Communications Commission.
Operating under a statute which formed part of the model for tne licensing scheme in the Atomic Energy Act,1! that agency has viewed both abdication of licensee responsibility and abdication of licensee familiarity with or knowledge about its operations as grounds for license revocation or non-renewal.
- See, e.g.,
Cosmopolitan Broadcasting Co. v.
FCC, 581 F.2d 917 (D.C. Cir.
1978) and United Broadcasting Co.
v.
FCC, 565 F.2d 699 (D.C. Cir.
1977).
Finally, as in Public Service Company of Indiana, supra, 11 NRC at 443, we would have requested the Director to brief the Commission prior to lif ting the suspension order.
If further action is necessary at that time to protect the public health and safety, this would enable the Commission to order that such action be taken, should it choose to do so.
However, given the obvious Commission interest in this proceeding, we believe that the Director is likely to inform the Commission of any significant steps that he is about to take.
1/
Like Section 18 2a of the Atomic Energy Act, Section 309 of the Communications Act, 47 U.S.C. Section 309, conditions the granting i
of licenses on technical, financial, ch a ra c t e r, citizenship and any other qualification deemed appropriate by the agency.
See G.
l Trowbridge, Licensing and Regulation of private Atomic Energy Activities, 34 Tex.
L. Rev. 842, 848 (1956).
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