ML20012E263

Nuclear Regulatory Commission Issuances for October 1989. Pages 231-323

ML20012E263
Person / Time
Issue date:	01/31/1990
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V30-N04, NUREG-750, NUREG-750-V30-N4, NUDOCS 9004030044
Download: ML20012E263 (100)

Text

_ _ _ _ _. _.. _ _. _ _

i i

,1 NUREG-0750 l

Vol. 30. No. 4

[

Papss 231323 3

M.* 8 J.

i v

maaooet t

78.*o*.*J NUCLEAR REGULATORY 888o*e*E COMMISSION ISSUANCES l

b l

October 1989 l

l i

1 l.

?

I This report includes the issuances received during the specified period from the Commission (CLI) the Atomic Safety and Licensing Appeal f

Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Ad.

I ministrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).

J L

The summaries and headnotes preceding the opinions repoMed herein I

1 are not to be deemed a part of those opinions or have any independent j

l legal significance.

J i

t 4

4D.OOOO 11 i

iE I

i DQ;g.g 9,$.

Prepared by the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington DC 20555 (301/492-8925) t 9004030044 900131 PDR NUREQ 0750 R PDR u

m

i I

booooe si l

o T #.*.9 O..

W WEMOW SI LOOW.eE

,16 O O O S S I DOOOOOS l

l COMMISSIONERS Kenneth M. Carr, Chairman Thomas M. Roberts Kenneth C. Rogers James R. Curtiss

' I

,=

2:OAA.O.O 4

(

Christine N. Kohl, Chairman, Atomic Safety and Licensing Appeh: Danel g

B. Paul Cotter, Chief Administrative Judge, Atomic Safety and Lloonsing Board Panel somei i

Desees.e P

p b

a

..,-..,-..-..____,.,_..-_,-....y..%-

~.._w,,

~_..a,,...---....

..,y,,,,,-,-.,,..,.-e-e-.r..-,

,...--v__.en,-.

,r w

i I

l CONTENTS i

Issuance of the Nuclear Regulatory Commission PUBLIC SERVICE COMPANY OF NEW IIAMPSHIRE et al.

I (Scabrook Station, Units 1 and 2)

I Dockets 50-443 OL,50-444-OL M OI MEMORANDUM AND ORDER, CL189-20. October 19, 1989..... 231

.M-X O t p@@C0001 Issuances of the Atomic Safety and Licensing Appeal Boards

. j MAURICE P. ACOSTA. JR.

(Reactor Operator License for San Onofre Nuclear t

Generating Station, Units 2 and 3)

Docket 55 08347 (Operator License No. 6010 2) (EA 88164)

MEMORANDUM. ALAB.923, October 25,1989.................

261 PUBLIC SERVICE COMPANY OF NEW IIAMPSillRE et al.

(Scabrook Station, Units 1 and 2)

Dockets 50-443 OL,50-444 OL (Offsite Emergency Planning issues)

MEMORANDUM AND ORDER, ALAB 922, October 11,1989.... 247 issuances of the Atomic Safety and Licensing Boards i

COMBUSTION ENGINEERINO, INC.

(Hematite Fuel Fabrication Pacility)

Docket 70 36 MLA (ASLBP No. 89 593 01.MLA)

(Special Nuclear Materials License No. SNM 33)

PREHEARINO CONFERENCE ORDER, LDP 89 31. October 27,1989............................... 320 NORTHERN STATES POWER COMPANY (Pathfinder Atomic Plant) c I

Docket 30 050(M.MLA (ASLBP No. 90 599 01 ML)

$ DOS O O y (Byproduct Material License No. 22 08799-02)

O MEMORANDUM AND ORDER, LBP 89 30, October 24,1989.... 31I

.4 9

930 4

lii

.,., -.,., _.. ~., _..

,,,-___..s

,,,,,m._,,,,m,

-6m..,

v.-e--

.e

l PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.

J (Seabrook Station, Units 1 and 2)

)

Dockets 50-443 OL,50-444 OL (ASLBP No. 82-47102 OL)

)

(Offsite Emergency Planning)

)

MEMORANDUM AND ORDER. LBP 89 28 October 12,1989.... 271 j

3QGO9Oi l

6 OOS I

ROCKWELL INTERNATIONAL CORPORATION

, OMSe G (Rocketdyne Division)

J Docket 70 25 (ASLBP No. 89 594-01 ML) (Special Nuclear Material 64OOGee t

SOOOM(

License No. SNM 21)(Request to Renew for 10 Years)

FS'OO Oe 9)

MEMORANDUM AND ORDER. LBP 89 27, October 5,1989..... 265

'OOOeet I

[QQO ggg)

ROCKWELL INTERN ATION AL CORPORATION (Rocketdyne Division)

Docket 70 25 (ASLBP No. 89 594 01 ML)(Special. Nuclear Material License No. SNM 21)(Request to Renew for 10 Years)

MEMORANDUM AND ORDER, LBP-89-29. October 13, 1989.... 299 I

L weeone <

iv 2c.....

F e

v 4

.,.,__,-.,,,,,.,,.,..,.,..,.....,._,...m.,.

i l

i I

i l

l-es t

6 esa.

commission 1

ei lSSuanCOS et DOOOOOOD -

4

_ _........_J

oic e l

l l

I l

i s

O s

1 j-i,

_.~.. _.__ _ _._

l l

1 l

Cite as 30 NRC 231 (1989)

CLl-89 20 UNITED STATES OF AMERICA LNOOON NUCLEAR REGULATORY COMMIS5'ON

e000444 MOHth.

gggggg(

COMMISSIONERS:

90004SC

OOOOOO%

e Kenneth M. Catt, Chairman Thomas M. Roberts Kenneth C. Rogers i

James R. Curtiss in the Matter of Docket Nos.60-443 OL I

$0-444 OL PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.

i (Seabrook Station, Units 1

)

and 2)

October 19,1989 The Commission denics a second request for a waiver of its financial l

qualification rules. The Commission holds that the assurance of availability I

from governmental ratesetters of a source of funds adequate for safe operation pursuant to a full power license is not overcome by the probability of some delay in receiving such funds, nor has any significant link between Applicants' -

financial situation and a safety problem been shown.

i FINANCIAL QUALIFICATIONS: APPLICAllLE STANDARD FINANCIAL ISSUE: FUNDING Ftrl'URE COSTS 4

40000oq ne anti-CWIP law, in the no full power Ilcense circumstance that the Com-gj mission hypothesized in CL18810,28 NRC 573 (1988), would operate so that gg recovery of constmetion costs and costs of low-pour operation could never be g g}

allowed. Nothing in the anti-CWIP law prohibits including operating costs in,

,g g g g -

the rate base when the plant is operating to serve the public, as it will be fully gl authorized to do if it receives its full power license.

Y 94W99 231 l

..,. ~

3 l

l i

l l

I I

FINANCI AL QUALIFICATIONS: APPLICAllLE STANDARD

{

O FINANCI AL ISSUE: FUNDING FUTURE COSTS While a delay in rate relief is possible, and some minimal delay is probably likely, such a delay is of the kind that the Commission recognized in its ODO rulemaking and accepted as a circumstance that would not undercut the rule.

,s 6

+

No party has shown that the potential delay for a rate relief to cover operating OO.

cxpenses is exceptional and outside the range of regulatory delay acknowledged E OOOO4 by the Commission.

C900604 FINANCIAL QUALIFICATIONS: APPLICAllLE STANDARD FINANCI AL ISSUE: FUNDING FUTURE COSTS The Commission has not been shown any other factor that would make i

it unreasonable for it to continue to rely on the presuraption of reasonable l

ll assurance of adequate funding for public utilitics. Commercial operations that I

would trigger rate relief are reasonably to be expected within a few months i

from the grant of a full power license. Materials provided by MassAO appear to indicate that PSNil has access to adequate revenues and cash on hand to cover its share of Scabrook's operating costs during the period in which it has not yet reached commercial production.

FINANCI AL QUALIFICATIONS: APPLICAllLE STANDARD FINANCI AL ISSUE: FUNDING FUTURE COSTS l

The grant of a full power license, without more, by reducing the possibility of cancellation and making eventual recovery of prudently incurred costs likely, may be expected to significantly enhance the ability of the company to raise cash in the credit markets, i

FINANCIAL QUALIFICATIONS: APPLICAllLE STANDARDt PUllLIC llEALTil AND SAFETY CONCERNS Q

RULES OF PRACTICE: CONTENTIONS (SPECIFICITY AND

. D.A A' O' 4 ilASIS)1 STANDARD OF PROOF 4

CL18810 cannot fairly be read that the Commission found that.where s

excepdonal circumstances at full power undcrcut the rationale of the exception for public utilitics, there is necessarily a significant safety problem, in it, the Commission contrasted the circumstances of full power with low-power testing operations where it said there was no conceivable incentive for cost cutting.

EO 232 s

,,,..e_

What was inconceivable at low power was merely stated o be concrimble at full power. But the standard for showing a significant safety probacm has never been "what is conceivable."

s D O O O.S O WEOWOce gggg FINANCI AL QUALIFICATIONS: APPLICAllLE STANDARD; PUBLIC HEALTH AND SAFETY CONCERNS g g g g g g, SN RULES OF PRACTICE: CONTENTIONS (SPECIFICITY AND

$$9 6 9 BASIS); STANDARD OF PROOF OOO De indication of a significant safety problem must be something more than hDDOO simply showing that exceptional circumstances undercut a rule with some basis in safety. The vast majority of Commission rules have some basis in safety,

- ^ '~^

It used the terminology "significant safety problem" to note that it intended to require something more than a theoretical - or conceivable - Issue, but insisted on there being a real matter that required resolution.

FINANCIAL QUALIFICATIONS: PUllLIC llEALTH AND SAFETY CONCERNS OPERATING LICENSE (S): HEALTil AND SAFETY REGULATIONS ne Commission secs no indication that PSNH's financial uncertainty will overcome the substantial protections that the Commission has in place by all its requirements to prevent the occurrence of a significant nuclear safety problem.

Any scrimping on compliance with safety requirements will be dealt with promptly and aggressively.

REGULATIONS: INTERPRETATION (10 C.F.R. 6 2.758)

RULES OF PRACTICE: PETITION FOR WAIVER; WAIVER OF RULES OR REGULATIONS Under section 2.758, boards are not permitted to make a rule waiver decision, but a board must simply certify a rule waiver petition after fmding that the petitioner has met extremely high standards. What the Commission has protected by this process is the ability of the Commission itself to decide, as a matter of iD O S.O O 6 p licy, when and to what extent its codified regulations are to be waived.

l OO(

S RULES OF PRACTICE: WAIVER OF RULES OR REGULATIONS I

Only the Commission has the necessary authority and perspective to respond O

to whatever exigent circumstances it finds upon review of a waiver request.

'S 99960 233 6

i There is procc; dent for the Cornmission to take special steps, short of rule waiver, I

to deal with potentially significant safety issues. Parties should expect that, where appropriate, the Commission will attempt to find practical solutions to alleged safety issues associated with petitions to waive its rules.

OO@OeOe 900999 $ $

FINANCI AL QUALIFICATIONS: PUBLIC HEALTil AND SAFETY COOOeee CONCERNS OPERATING LICENSE (S): HEALTH AND SAFETY REGULATIONS pgrg O O S S I The Commission expects here that the Staff shall be particularly sensitive 0000eeg to any signs that cost-cutting is impinging on safety, The Commission has DOGGe O O I coa 5i5 teat'Y Preferred to Pl*ce it5 reli* ace on th' *bility of it5 ia5Pector5 to discern the indicia of corner cutting that could lead to a lack of safety rather than on its ability to make fmancial predictions.

MEMORANDUM AND ORDER For a second time in this operating license proceeding,8 we are called upon to decide with respect to financial qualification whether there are special cit.

cumstances that warrant the exceptional action of a waiver of the Commission's rules,8 On both occasions, we were asked to waive those rules which, in sum, effectively find that public utilities are financia;ly qualified because they are as-sured a source of funds for safe operation. The first waiver was sought in order to embark on a financial qualification review with respect to the Applicants' financial ability to operate their Seabrook nuclear facility at low power. We found that there were special circumstances which undercut the rationale sup.

porting an assumption of financial qualification for public utilities, but once we had established certain decommissioning requirements for low power operation, r.o significant safety problem remained that would justify such an undertaking.

CLI 8810,28 NRC $73 (1988). Today, we find, as we will amplify below, that the circumstances do not undercut the assurance of the availability from governmental ratesetters of a source of funds adequate for safe operation pur-suant to a full power license.8 Nor have we been shown any other significant V

'~[

3 A gewp of New England owners, led by Pubbe service Campany of New Engshus Omndy *Appbc4nts*').

GOOOOA(

'- ' ha=" 'a ar-* 5*aak 5="aa * '=': ra 5is k**d 'a N'* *=r hi'*-

eS.

Two requests far waiver or encopuan from the rules wm presented by Apphcents in uus proceeding The first, to reduce the nne of Ois EPZ was rejecsed by the Licenseg Dosad, t3P 8712.25 NRC 324 0987); uw second.

to seek an esempuen fran the segurement rar an mane emergency esercise wiuun 1 year of the issuanos of a fuD power bcenas, wea decided by us and aunilady rejected. CLI-8919,30 NRC 1710989).

S 3 3ee CL1-8810, sym,28 NRC at 597.

~

99G

.o.:.y.1.4 234 l

l

' i i

1 i

f I

link betwen Applicants' financial situation and a safety problem. Accordingly.

we do not grant the waiver sought.

6O00000:

DMOeet 1.

nACxanouNo seeOcest 0000oe6 A,

16,yafn, work catabiished by CLt.as.to t@@006ef'

.OOOOeeC Less than a year ago in tNs docket, we constfued and app!.d the Commis-6 G O O O e Stg si n's waiver rule,10 C.F.R. 6 2.758.* We applied a three-part test for certifi.

lO0Ooeoe

• c*u " Waim Peddon to the Commission. Two parts foHowed Imm the explicit terms of the rule:

(1) The waiver petitioner must have presented "special cifcumstances" in the sense that the petidonct has properly pleaded one or more facts, not common to a large class of applicants or facilides, that were not considered either explicitly or by necessary implication in the rulemaking proceeding leading to the rule sought to be waived; (2) those special circumstances must be such as to undercut the rationale for the rule sought to be waived.

28 NRC at $97,

'Ihe third prong of the test was implicit in longstanding Commission law, that a rule waiver would be granted only in unusual and compelling circumstances, Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI.

89 3,29 NRC 234,239 (1989), and explicitly served nodce that the Commission would not exercise its discretion to waive a rule for less than significant safety reasons:

(3) from the petition and other allowed papers it should be evident that a waiver is necessary.to address, on the merits, a significant safety problem related to the rule sought to be waived.

CL18810, supra,28 NRC at $97.

Applying that test, the Commission found that the bankruptcy of Public i

Service Compan;' of New Hampshire (PSNH) and the applicability of New r

Hampshire anti-CWIP statutes were "special circumstances," In addition, the 5

Commission assumed without deciding that delay and cessation of project 3m

• su.4 si sw Ph ga-Anu CWIP matuus pndubs Of nu outhonty from sothermng inemseed reis based on the sosis of sensuveunn g gr 1 Cd

+

mr U wont in pmerens, only when me plant besms comnescial operauon or dahvenna power to the puhhe, may any g(

of those costs be poseed an to the pubhc kn the fem of increased teles. We need not daarmine wheaher New Hamgehim's ann Cw!P presibtLion will termmaw when the seabrook facihty fumishes est geareue to the und or et soms later pasnL. In the normal enume of events it would como misuvely sean ther commenems opersuons gg under a full power beensa. For es met acent ten facihues to be gamed a full-pows opereuns hceve the sverage urns to schsve full commercial opersuan was 4 nianths from the daie of heenes issuance. See NURI!o-0020, teensed operanna Reactos, status summary Repon Daw as of 634s9," Vol.13, Na 7,pearise 0949).

f g,

la some cases a low-power heense had not been gramed in advance, and thus the tims was lengthened by inclusion of the dursuan of low power tsung and time that was necessary to accomphsh any remedst work.

e

e:.e e t 235 4

e - _

w

.y~.

-.m--

payments by some of the minority owners qualified under the first part of the j

test as a "special circumstance."

He Commission next found that bankruptcy and anti CWIP in combination

• undercut the rationale of the rule. His was so because under anti CWIP "the utility cannot, strictly speaking, recover any portion of the costs of low power testing" so long as it was not licensed to and did not produce commercial t

power. De Commission, on the strength of its recogniuon in its rulemaking that regulatory delays and phase ins by the raternaker did not undercut the

'OOrM e e I rationale of the rule,'said that the anti-CWIP provisions, standing alone, might not be criticai for most utiiities, but that inose provisions in combination with MOMO O PSNH's bankruptcy did undercut the rationale of 2 rule because the bankruptcy W M DSeI signalled that the anti CWIP provisions' bar of a source of funding had been

{!O O D O O G critican to PSNH, WMG (

The Commission then looked to the underlying rafety purpose of the rec,uire-t WWO99C ment to conduct a fmancial qualifications rey!cw from which the rule sought to i

@ @ @ M G -(

be weived provided an exception for public utilities, ne Commission concluded gggggQ Q) that the sole reason was to " provide some added assurance that a licensee would my not, because of fmancial difficulties, be under pressure to take some safety short-cuts." CL18810, supra, 28 NRC at 600,8 With this framework, we briefly set forth the administrative history of the petition for waiver certified to us by the Atomic Safety and Licensing Appeal Board (" Appeal Board") ALAB 920,30 NRC 121 (1989).'

4.came ti wu nat pmaai io ma d.msian, eie Cormnmian usum.a wahaui decidmg *a ** maanty ownes' de;ey or cessauen of project paymenu else undercut the purpose of the tule for low power when in combansuan wie bankruptcy and anu CWIP, CU-IB 10, s,vws,28 NRC at $99.

'/d at 598 a.25, caraag 49 Fed. Reg 35J47,35349 (1984).

The Commusum quoted its 1984 rulamaking-A Anancial duabihty is not a safety hasard per as because the bcensee can and under dw Commassie's segulauans would be 'ibbged to samply cesse qiersuana if necessary funds to openw esftly wese nas available. At enast, the Atanue Enerly Comnussian,in defung the nale, must have intuiuvely eencluded that a bconens in fmancially straitened ctrcumstances would be under more pressus to cammin safety violabora er take safety *shoncuu" than one in good fmancial shops. Accordingly, Se dmfiers of the suis sought to achieve some level of assurancs, pnar to beansms, that bconsees would not be farsed by haancial cutumstances to choose between shuuing down or takmg shoncuts while the bconse was in effect id at 600, casing 49 Fed. Reg. at 35J49. The Commusion then commented shau

• {w)hstever may be the legatamacy of Gus safety purpose for fuu power opersuan, h sustehus reason to suppose that the safety rationals would hevo any bearmg on s lumtad beanse for low power tesung, shoncuts in safety at fuU power conceno6fy eculd evoid shutdowre er denung and themby eenuibuie to prester plant availabdity and svenue frern power sales. But shonruns in low power tesung safay will nat lead to generstian of more revenus that would benant the plant owners" ft (ernphams added).

' tese than a week before MassAo Eled the peuuan cerufied to us, scoconst Anti-Pouuuan tangus (sAPQ moved far admusian of e Anancial quabncauan emianuan assenedly based on hs assurnpuan that ma Camrmasian had effecuvely waived Se Anancial quebncatian sacepuan by recagruing that su sula was undercut by fuu peer.

The mouce was demed by the tuensing Dostd. sAPL did not take e aparaw appesh however, sAPL submmed a bnef an surrart of MasaAo's apput of de tacensms Dosr(s repcuan of his psiuan, it was sAPL's bnsf that carned the day far the MesaAo before the Appeal Board

$$h&

Ot i

236

(

2 1

S 90444h --

7 7 -

-

• 7 ' r * "7

-.,_.~.,

+

i l

l I

i J

r II. The Massachusetts Attorney General's Petition for a Waiver b~OOO4Oel n Febmary 1,198R the Manachuscus Anorney Ocnml (ManAO), Sted r

a petition under 10 C.F.R. 6 2358 (the pt tition) that the rule exempting utilities l

~gg g g g g

from a financial qualification review be waived so that Applicants would be OOOOOI required to "cstablish prior to full power operation, Anancial quatincations aO00066 sufncient io cover the cost of scabrook unit l's operation for the period of the t

OMNO l license " Petition at 2. "Ihe petition argued that the continued existence of two

?.O O0499 %

of the "special circumstanm" found to exist in CLI 88 10 - (1) the bankruptcy, l

M M OOO1 and (2) delay and cessation in project payments - was sufficient to undercut 09'00@O S '

the rationale for the rule. Massachusetts also asserted that the Commission's I

reasons in support of its conclusion that there would be no signincant safety probicm at low power would not hold at full power. To the contrary, asserted s

Massachusetts, there are incentives to take shortcuts in safety at full power, the J

amount of money to operate the plant at full power is significant, and the safety risks at full power are substantial.

Staff joined Applicants in opposing the petition, and on March 8,1989, the Licensing Board denied it. LBP 8910,29 NRC 297 (1989). The Licensing Board found that the MassAO had failed to rebut the presumption that the ratesetter would allow Scabrook's rate base to include the costs of safe operation that were prudently incurred. Id. at 303. In addition, the Licensing Board found the Affidavit of E.A. Brown, President and Executive Officer, New Hampshire Yankee Division of PSNH, to be of particular importance.14. at 304. The Massachusetts Attorney Ocncral appealed and was supported in that appeal by SAPL.

C.

ALAB 920 After receiving briefs,' hearing oral argument, and rccciving response to a request for supplemental briefing, the Appeal Board decided the matter before it on August 21,1989. De decision concluded that a primafacir case for waiver had been made.

En route to its ultimate conclusion the Appeal Board had rejected the orig.

l.

inal position of the MassAO set forth in his petition and brief, he rejection specifically included any argument that bankruptcy standing alonc sufficed as a basis for waiver. See ALAB 920,30 NRC at 131. nc Appeal Board also DA;O 0 O.6 found no warrant for speculation respecting ultimate ownership of Public Ser.

OG vice Company of New Hampshire's share and other uncertaintics respecting what e4 eee-S9991 4 1

J C e * *~e a 237

1 b

l i

1 Jegulatory ratesetting authority will govern Scabrook.8' Nonetheless, addxssirg l

itself to MassAO's " secondary argument," incorporated from SAPL's brief, the l

Apped Board found that the effect of anti CWIP could be felt for as long as y

18 months into operations at full power and thus that the same combination that g

the Commidor, found to have undcrcut the rule at low power also would be present at full power. 'Ihe Appeal Board then considered whether there was a significant safety question em! decided thsl"under the Commission's analysis [in gvggg N

CL18810), operation above five percent, unlike low power testing, potentially gives riw to a 'significant safety problem' warranting waiver of the 1984 rule."88 COO OI ALAB 920,30 NRC at 134.

l CO O OO

'Ihe Appeal Board provided an additional reason for referring this matter to COOOOO4 the Commission. That reason springs from the Appeal Board's concern that under the UCS case 88 any review by the Staff of financial qualification requires a rule waiver, and from the Commission's conclusion, shared by the Appeal Board, that the utility's bankruptcy " clearly signals that something very unusual l

and serious has occurTed." ALAB 920,30 NRC at 136, in these circumstances the Appeal Board believed the matter should be referred to the Commission for decision.

D.

Positions of the Palties On receipt of the Appeal Board's certification of the petition, the Commission l

promptly established an opportunity for the parties who opposed the waiver to address the Appeal Board's finding and for a response to those papers by the MassAO and any other party wishing to respond. " Applicants' Response to the Commission's Order of August 22,1989"(Applicants' Responsc) was filed l

on Sept. 7,1989, as was the "NRC Staff's Opposition to Waiver of Financial Qualifications Regulations Applicable to Full power Operation of Scabrook" (Staff Response). Responses were filed by the MassAO (MassAO's Response) and by SAPL (SAPL Response) on Scpt. 26, 1989. SAPL also provided supplemental information in a cover letter which the Commission has considered.

l l

80 The Asyeal Board noted that the bosnse recites "that Public service 'has eactusive responsibaty and canual over q

the physical consuveucui, opersuan and maintenanas of the [seabrook) facaty'" and thus, under our regulauons, that a transfer could not be erfected without Comnussion approval. A1.AD 920,30 NRC at 131 n.so.

81 The Appeal Board clauned addiuonal suppon frcun the Cornnusuon's fadure to esempt public utilaues frorn tia gj 1987 rule requinns all heensees to noury the egency upon the riling or bankrupicy peuuona 12 MO Union of Cancerned scientast v. NRC,735 F.2d 1437 (D.C. Cu.1984). cars. drmedne nomi. Ar4euar Power A Lisk Co. v. UC3. 469 U.s.1132 09ts).

34$9 j 238 I

i n

w.

.w-.

,...n 4

m__

_4

..=__;__m

.-~

,_.mm.

.um_.

a.

..m_.

-._..m.

. ~.

l

)

i l

1.

Position of the Aprilcants j

Applicants argue that the Commission's holding in CL1-8810 is not trans-i g g g g g g gj ferable, as the Appeal Board would have it, to the circumstances surrounding l

SMO O e(

full p wer icensing because in CL18810 the Commission was presented with j

gg,ggg g gg the possibility that after low power operations there would not be the grant of a

'WOOOOO4-full-power license, in addition, they argue that the Appeal Board erred in con-sidering regubi ry delay f 11 wing anti CWIP as $lgnificantly different from the OOMI regulas ry delays f und by the Commission not to affect recovery of operating WGOMS(

OOD

• n addition, Applicants criticia the Appeal Board for speculation that the OOOOOO%

regulatory delay will be sufficient to cause a problem and for not addressing, in its consideration of safety significance, the Licensing Board's reliance on the -

i affidavit of the President of New Hampshire Yankee.

2.

Position of the NRC Staff Staff asserts that the Appeal Board improperly overreached to determine that a primafacie case for waiver had been made. Staff's next major point is that i

the Appeal Board wrongly concluded that the CLI 8810 tests for waiver had been met for the relevant period of the full powcr license. Staff understands the relevant time to be that period before a power level is reached that would justify inclusion of costs in the rate base regardless of when higher rates are in fact permitted.

Finally, the Staff maintains that the Appeal Board erred in finding Staff's j

actions improper under the UCS case, in Staff's view, it may gather information on fmancial qualification in order to advise the Commission on whether a waiver is necessary.

3.

Position of the MassAG and SAPL" MassAO argues first that PSNH's bankruptcy meets the Commission's three-l part test: (1) Bankruptcy is a special circumstance; (2) the operation of the anti CWIP lawi' and the effect of the bankruptcy on the extent and timing of any rate recovery of the construction and operation costs undercut the assumption on which the rule is based; and (3) safety sl nificance is present because "[nlo i

.4'45:0.0 i m re powerful exampic (than banbptcy) of a company encountaing sevue OO II we treat the patuana of MaasAo and sAPt.underone heading since each has specifically adopted the argwnents of the other.

gg.

MassAo also argues as a separats pasni that the Appeal Board was corroet in finding that the delay in cost

$,$ $ g (

recovery due to anu CWIP does nos dmppear an the grant of a tull power lacess, and no6as that ths Apeal g

Board found that same delay was a vinnal censiniy.

q SSG94S 239

...~.

__J,

~

- -... -. -. ~. -..

pressures to cut corners can be imagined." Respo'ise of MassAO at 3. See also SAPL Response at 2 5.

MassAG next argucs that recovery of the construction and operating costs of Seabrook will occur outside of the uormal ratemaking process and will LOOGOO 0OO M Gg 3e,ignifeantiy and materiariy delayed. He esserts that the *tankruptcy has triggered an entirely different rate setting process" froin that contemplated by eSOOSH the Commission. MassAO Response at 7. See also S APL Response at 512, OOOOOS9 arguing that anti-CWIP will remain in force until the plant is "used and useful,"

@OON 9 not merely providing net power to the grid. SAPL's response additionally COOOOOO emphasizes that financial qualification review is needed in light of the defaults 46 ON4 or certain other Seabrook owncts. Ser SAPL Responso at 1214 J9OOOOO

_ _ _. ~ ' ~

II. DECISION The Commission has reviewed the record on the waiver peutbri before the Licensing Board and the Appeal Board and has particularly considered the Appeal Board's certification (ALAB 920) and the papers of the parties. One fundamental issue - the effect of the delay in a rate increafa, beyond full power licensure - governs our result, and thus we turn to it directly. Thereafter, we address tb remaining matters requiring our attention.

A.

Whether Delay of a Rate Increase Undercuts the Rule The Appeal Board correctly recognized that bankruptcy, not aloncis but in combination with the anti-CWIP law, was the basis for our holding at low power that special circumstances had been shown which undcrcut the basis of our regulation exempting public utilitics from any requirement to demonstrate fmancial qualification. Bankruptcy remains a factor in full power licensing.15 but the critical dispute centers on whether the potential for delay in receiving the increase to cover the costs of safe operation is a special circumstance that undercuts the basis of the Commission's exemption for public utilitics.

One side would have it that the following circumstances obtain: (1) the Commission had not considered anti CWIP in its rulemaking: (2) the delay in

_-= 7 9 - y d,

IS Tius as not to osy that bankruptcy standmg alone could no. undercut the purpons of the rule We do not here speculsis on what circumstances could shcts such a rindmg. tut sunply note that the cW' of dus Chapter Il neergsrusauan do not, truofar as me are aware, undercut either the presumpuan that en adequais source of funds for safe openuon will be aUowed by the rsieseuer or that the Appbcanis will be able to uns these funds far sparsuona.

I'It is less clear that defauha will amam after the gram of a fuu-power heense in that full power opersuons can g

be sapacted to prendo a source of revenus. Momover, the sums defaultod by defauhmg owners do not appser Sl agruficant and appear to have been made up by other coowners os needed, la any ownt, our analysis does not depend on dus factor.

t O

i i

receiving the costs of construction was due to anti CWIP; (3) the anti CWIP.

caused delay in receiving a rate increase on construction costs makes critical gS CO$,0 81 an immediate rate increase to cover operation costs; and (4) such a raise is eme prohibited by anti CWIP until the plant is "used and useful." Therefore, the g g g:g argument concludes, anti CWIP remains a special circumstance relevant to full

,gggg power which, together with bankruptcy, continues to undcrcut the assumption gl.

of the rule that a source of funds for safe operation will be available, ggggggg Applicants argue the other side" that anti CWIP by its terms is not a factor ggg g that diminishes the assurance that ratemakers will allow sufficient rates to pro-

ggggggg, duce adequate funds for safe operation at full power, on which the Commission relied when it promulgated the rule excepting pubhc utility operating license

- - ^ ~

applicants from financial qualification requirements.

We believe that the Applicants' argument better reflects our intent. It was not simply a delay in recovering costs from low power until full power that dictated our result in CLI 8810. Rather, because significant hurdles lay between the App!! cants and a full-power license, the possibility that such a license would not issue following low power was at the heart of the matter. The anti CWIP law, in the no full power license circumstance that the Commission hypothesized in CLi 8810, would operate so that recovery of construction costs and costs of low power operation could never be allowed, indeed, this conclusion infused the i

Commission's entire consideration of the issues presented in CLI 8810 and led to a requirement for assurance in the sum of $72.1 million for decommissioning after low power if that became necessary. We are satisfied that had Applicaftts then held a full power license, the anti CWIP law would not have been a factor, much less have played such a critical role, as is argued by Petitioners here, when Applicants undertook low power testing. Nothing in the anti CWIP law, as we understand it, prohlb/fs including Scabrook's operating costs in the rate base when the plant is operating to serve the public, as it will be fully authorized to do if it receives its full power license."

While a delay is possible, and some minimal delay is probably likely, such a delay is of the kind that the Commission recognized in its rulemaking and accepted as a circumstance that would not undercut the rule. No party has shown that the potential delay in New llampshire for a rate relief to cover operating expenses is exceptional and outside the range of regulatory delay acknowledged by the Commission, 1

e'

O

9,0 O 4e

" no se -eens ui.noonas f-e.ay wa.,o-i.v.i is,.acha mai sausses $. ry,, ems..a.

BM power is hemg supphed to the pubhc. For that imervn term, staff argues that power levels would be so low that m

the same halengs that opphed at low power would be appbcable for $e same reasons. Beyond that point, the g

staff says that say delay is too speculauve to warram sensiderstion. We sgree that delays ses speculattve but, as SMke discussed in $4 foDowing tent, our dension here is based on the ground that the Commission considered such delays in tis rulemahng

" Ahhaugh we place no vshanos at h, we fmd that Mass Ao's faDure ortgmally to make the antic'IP argumera et fuu power and reluctance to espouse it when suggested is et least an in& cation that he too found h a bed tit.

hhMhhM i

241 O

i

)

I 1

f Purther, the Commission has not been shown any other factor that would make it unreasonable for us to continue to rely on the presumpdon of reasonabic assurance of adequate funding for public utilitics. As noted above, commercial l

operaions that would trigger rate relief are reasonably to be expected within MO O*OO O b a few months from the grant of a full power license, in addition, materials

'W provided by MassAO appear fo indicate that PSNH has access to adequate M

S4 revenues and cash on hand to cover its share of Scabrook's cperating cosu l

jM DOO during the period in which it has not yet reached commercial production."

l 4

Moreover, the grant of a full power license, without more, by reducing the r

t

% 10.'

(L possibility of cancellation and making eventual recovery of prudently incurred W M Wgg(

costs likely may be expected to significantly enhance the ability of the company Mg Qgggj to raise cash in the credit markets. Cf. Coaliftonfor the Environmenf v. NRC,

_._,_._i 795 F.2d 168,175 (D.C. Cir.1986). Thus the Commission finds that the grant of a full power license can, as presumed in the generic exemption for public utilitics, reasonably ensure that Applicants will be able to bridge the gap of any reasonably expectable regulatory delay and will be assured recovery of the costs of safe operation, Because the rule serves its pufpose under these circumstances, no waiver is warranted, and none will be granted, B.

Indication of a Significant Safety Problem Olven our determination above, we need not reach a discussion of whether a safety significant problem would be shown were the rationale of the rule

" PsNirs 1(kQ fihng wh the sLe indicate hi PSNil hkcly docs have adequate revenues to cover its 36% share of sembrod speauona, potucularly an the few momhs betwom inuance of the fuu power opesung beense and row veoovery auowed by the biew Hampehus PUC. In any evem, the fihng does not support lmerveners' posiuan that them is clearly such a lack of funds as to aus e signincam ufety problem. The fams shows that PSNH geweied openung encene 6.6..operaung evenuta ther saponses o6her than imsrost and lates) of sitt innen for the 3 month pened ending June 30,1999 (campered wah s21.9 mWon for 1988). For Ow Gmesh penods admg en luna 30,1959 and 1961, en aspecuvo amaums are s46.2 mhan and s58 4 mAart AddiuenaDy, cash flow im Ow 6 mandis ending a June 30,1989 and 1988 was s60.3 maan and s1214 rrulhan, twpecovely.

'tash end t.osh equsvenema on hand," which are good indicators of the degros of shan. norm er medium term i

entvency, was s913 milhan as d June 30,1989, su PsNirs rdmg of sEC Form to-Q for Quenerly Pened

)

Ended June 30,1949, provided as I.thibit D to Response of MassAo.

30 MassAo isus us that margarituuan plans are under cesideration in bankruptcy ca a sad on all expressly tanungem on Gw eensummauan of mio aeroements. 'the agreemanu provide for tempcssry ineneses est do not psovide revenues to the utihty unul after fmal court opproval of the reorgatuution plan and necessary toquastuons em compleia. MamAO itesponse et t MusA0 thus concludes *nt if *heensum were to occw pnor to um compleum of $s bankruptcy a pmenuaUy very lengthy ums pened would esist in which a bankrupt utihty wnuld 1

have e full. power openung boense wuh no or vutuauy no aw vocavery of Se casu of consuucuan and openuan of sembrod." 14 at 8. We dunk that MasaAo's promise does not necomarily soltan audi a eenclusion. li i

ggggg j

oppears to us that diet are other more obytes emplansuons for an agtucment not to permit sevenaes to an acquinns inihty that has not receval ett necesary approvals to fu acquauon than to sahibit en unent not to 8(

grant legaDy requted aw increases to the cunent utihty bconseos.

In uus regard,it is anno far fran obvicus to us that an u$ancum agamst a rate commission Imrn e proceedmg ageout a uuhty need also be read, as sApt, mods it, to bar a successful appbcouon for a row increase needed far.

Y safe opersuan of a nuclear facihty. And, weft it to be so stad,it would, in appropnate carcienstances, be subject to ahersuon by the court that assued iL e

242-q i--

D

i i

l l

undercut. However, we believe it is useful to address the Isrue in light of the misunderstanding by the Appeal Board, MassAO, and SAPL, of the g gg g g g Commission's discussion of its finding that there was no significant safety gggg problem at low power Even were the Commission to agree with the Appeal N O O O O O'g Board, and we do not, that MassAO had made his case that special circumstances l

e I

= were present that undercut the rationale of the rule, we disagree that the pleadings

DODOS 0) -

of these parties indicate in terms of CLI 88-10 that a waiver is "necessary to MO OI address... a significant safety problem related to the rule sought to be waived."

O O O'O O O O!

28 NRC at 591 In CL18810, the Commission said:

S 6 O O 9 4 4 -

D00 09 0 Ol wh ie cr - x he the iesitimacy or ihis sar iy ro.co e i 'l for roti-rower over iioa. ii t

stretches reasm to suppose that the safety rationale would have any bearing on a limited

[

license for low-power testing. Shortcuts in safety at full power conceivably could avoid t

shutdowns or derating and thereby contribute to greater plant availability and revenue from i

power sales. But shortcuts in low power scating safety will not lead to generation of more revenue that would benefit the plant owners, Imw. power testing does not generate revenue from power sales. he only purpose of low power testing is to further ensure plant safety

. Here is every incentive to do the job well and no rationalincentive to cut corners.

28 NRC at 600 (emphasis of "only" in original; other emphases are added).

Contrary to the apparent or professed understanding of the Intervenors,22 and the apparent r:ading that led to the constraint felt by the Appeal Board to certify the instant petition to us, CL18810 cannot fairly be read that the Commission l

found that where exceptional circumstances at full power undercut the rationalc of the exception for public utilities, there is necessarily a significant safety problem. In the quoted material and following text, the Commission contrasted the circumstances of full power with low potver testing operations where it said there was no conceivable incentive for cost cutting. And, in many other ways, the Commission made clear that in its view there could be no significant safety problem at low power that required attention in the circumstances that prevailed.

What was inconceivable at low power was merely stated to be conceivable at full power. But the standard for showing a significant safety problem has never been "what is conceivable." Thus the Commission dM not intend to and did not resolve the question for full power, The Commission made no determination on a matter not before it and I?ft for a later day, if necessary, to decide in the circumstances then before it whether a significant safety problem was presented

.- 7 by any certified petition for waiver on which it was ruling.

B,...~wam g

e 2 The only safety purpose of the rule discerned by the Canmission was the intattive judgment eat some addiaanal assurance could result from avoidmg a situeuan where a lack or funds could cause pressure to cut corr.:rs. CLI.

s8-10, sera. 28 NRC at 600 Nanothelesa. the Commission retamed as pnncipal rebance on other regulatory means to ensute the pubhc heahh and safety.

6 22 sAPL would have us beheve that it read our language in comparms low power with full power as so strorig as to have consututed a waiver of the rule at fuU power. We reject that roadmg 2

243 1

O e

.,;.-.~

--,.--.n

... ~

L

(

i u

l l

l-

' I l

i 1

. 1 Also, there can be no doubt that the Commission intended that the indication of a significant safety problem be something more than simply showing that

]

g g g g g f' exceptional circumstances undercut a rule with some basis in safety. Since the g

vast majority of Commission rules have some basis in safety, if that was all-l I

the Commission meant it would have been superfluous for the Commission to l

g lO announce to its Boards that it did not want a rule waiver certified absent the indication of a significant safety problem. The Commission used the terminology E

"significant safety problem" to note that it intended to require something more EO3 than a theoretical - or conceivable - issue, but insisted on there being a real OO matter that required resolution.n i%NIO O (

As we stated earlier, even were there to have been a showing in the matter i

before us that the rationale of the rule was undercut, the Commission sees E

no indication tha: PSNH's financial uncertainty will overcome the substantial protections that the Commission has in place by means of all its req' irements u

to prevent the occurrence of a significant nuclear safety problem.8d In the event any full power license is granted, the Commission requires a greater.

than usual presence by the Staff throughout power ascension. This will be the case at Seabrook as well. After normal full power operation is under way the Commission can direct greater than usual surveillance, if there is any indication that it would be advisable to do do. Any scrimping on compliance with safety requirements will be dealt with promptly and aggressively.

l C.

The Commission's Role in Section 2.758 Rule Walters We have concluded. in the part of the process that is tantamount to a review of the certification of the petition, that the petition failed to make a primafacie.

case and to indicate a significant safety problem. Because the arguments of the parties suggest that the Commission's role in a 10 C.F.R. 6 2.758 procecoing l

is simply to affirm or overrule the certification of the referring board, we think it is important also to discuss briefly the Commission's role, even though the-Commission does not here reach the policy decision that is contemplated under its regulation in section 2.758 in that it has found that Intervenors did not make a primafacie case.

U

~

Under Commusion precedent and the Commission's rulemakmg panouncement. predicuans that PsNil will g g g g g'g not properly use its source of funds may not be addressed in Enancial queh6cauan hasnngs were they iniuaied.

Fmancial quahficauan rmew u saus6ed if there is an adaluate source of fundmg. 49 Fed. Reg. at 35.749. Ilow 4

funds es spent is a management truegnty assue, 3' We cannot now know whether a case could seshstically be hypothesued where we would daturb the 6nancial quahncauon rule etcepuan for pubbe utihues. Perhaps pubbc puhues' status makes them less hkely to succumb i

to a temptauen to cut corners to save money because the prospect of savings a not a seahstic one. When funds 4

expended for safe opersuon are recoverable and when a rate of pm6s is allowable on the investment peruon, any incestive to cut corners could be highly speculative. In any event, we need not decide this genene matter at this ume.

E 1

l

?

e

~,ne v -

+ ~ ~ -~~~,

-a n-

~

.-m

=

I I

i Under section 2.758 the boards are not permitted to make a rule waiver deci-sion, but a board must simply certify a rule waiver petition to the Commission 00eoeoe afier finding that the petitioner has met extremely high standards - compelling

.O M O S S Oj circumstances in which the rationale of a rule is undercut. What the Commis-

.(S.000994 sion has protected by-this process is the ability of the Commission itself to DOOOO9 G.

decide as a matter of policy, once a prima facie case has been made, when, ggggggg and if so, to what extent its codified regulations are to be waived. This is done N O O S S (M nly after an inf rmed judgment in the totality of the circumstances, recognizing -

ggggggg*

and evaluating any relevant circumstance that in the judgment of a majority of gggggg the Commissioners should be taken into account." Only the Commission has

- ~ ~ - ~ -

the necessary authority and perspective to respond to whatever exigent circum.

stances it finds upon review of a waiver request.8' Indeed there is precedent in this proceeding for the Commission to take special steps, short of rule waiver,-

to deal with potentially significant safety issues. : Specifically, we refer to the decommissioning requirement imposed at low power. Typically, parties should expect that where appropriate the Commission will attempt to find practical solutions to alleged safety issues associated with petitions to waive its rules.

The Commission expects here that the Staff shall apply-the_ necessary j

resources to monitor Seabrook's compliance with safety regulations. The Staff

~

shall be particularly sensitive to any signs that cost-cutting is impinging on t

safety. The Commission has consisiently preferred to place its reliance on the ability of its inspectors to discern the indicia of corner cutting that could lead to a lack of safety rather than on its ability to make financial predictions. See, e.g.,

49 Fed. Reg.13,N4,13,N6 (1984), in addition, other financial protections will be in place before a full power license is granted as a result of our requirement that Applicants be in compliance with property insurance and decommissioning plan requirements relevant to full power before such a license is issued.

In consideration of the foregoing,'we find that no financial matter need be.

cxpected to disturb a finding of reasonable assursme that Seabrook's operations q

will be consistent with public health and safety if it is allowed to operate at full power.

.m

. 4e q h: C D

it is sigiuncant that under 10 C.F.R. 6 Sal 2(a)(2Xvi) the regulations permit the grant or a rule exempuon where

' 'gg fg%

"there as present any other matenal circumstance not consulered when the regulauan was adopted for which it would be in the pubhc interest to grant an enarnpuon." No less tautude would be available to the Commtssion under secuan 2.758 when decidmg to let an exampuan stand. is.. m this case NOT to waive a rule.

2n on a selsted pomt, we agree with the Appeal Board that the staff may not make Enancial quahncauon

.A determinauons relauve to beensms without a rule waiver. on the other hand the staff is surely cornet that g

it may make threshold mquiry suf5cient to decide whether to seek a rule waiver. Any such threshold anquiry wdl be conducted outside the adjudicatory portion of an ongoing operstans hcense proceedmg staff mqumes without more cannot be sufActent to waive the rule comrary to the Commssaion's carefully constructaJ accuan 2.758 regulauon.

245

~

- -.. -- -.. -.... ~. -.....- -. - ---. - -......

t

)

l 1

J

)

It is so ORDERED, Tbr the Commission" b

C S C O S,0 Oh SAMUEL J. CHILK S Mggg(

Secretary of the Commission ECin e m a c1 ggggg g_

Dated at Rockville Maryland, this 19th day of October 1989.

g pg WDEmpee e 9000'6901 SGOO444

_ ___ w i

i I

P l

idi5deosel nome l

MSW 0

" - -- n.... - a.w..,. %. m.,_.i... o,,,t,,,, %

o 37g g s.

ia io.,, a ti.

SS S n A

1 246-C%34WG$4 i

l l

l b

)-

i p,--y

,,-e,,e-

,-,,a-,e

--wn--r w

w ww a,*~vme w

--ww-a mw

~-- %

• w'=------

- - - - -- " - - ~~---- ----'-------- --

p A

A IG O,0 0 8 9 1 i

ano yggggf*

Atomic Safety and l

ygggggo -

Licensing Appeal

• • • • • • 4 Boards issuances D900900-6m ni a ma a m.. a m

ATOMIC SAFETY AND LICENSING APPEAL PANEL '

Chnenne N. KoN, Chairman Alan S. Rosenthal Dr. W. Ree.' Johnson Thomas S. Moore r

i Howard A.Wuber G. Paul BoNwerk,111 i

l I

1 I

i

~

. ~

LOA

(

1.

d

'l i

'l

)

1 Cite as 30 NRC 247 (1989)

ALAB 922 DO @ O O O e, 1

SSOODS S 9 UNITED STATES OF AMERICA DoOOeeG NUCLEAR REGULATORY COMMISSION twoosset.

ATOMIC SAFETY AND LICENSING APPEAL BOARD c o.... a.

OS O O O O (

Administrative Judges:

e G. Paul Bollwerk, lil, Chairman Alan S. Rosenthal Howard A. Wilber In the Matter of Docket Nos. 50-443-OL e

50 444-OL.

i

. (Offshe Emergency Planning issues)

PUBLIC SERVICE COMPANY OF I

NEW HAMPSHIRE, et al.'

(Seabrook Station, Units 1 and 2)

October 11,1989 ~'

l On appeals from LBP 88-32,28 NRC 667 (1988), the Appeal Board (1) holds that risk-based dose reduction / consequence testimony proffered by intervenors as relevant to whether the emergency plan for the New Hampshire portion of the Seabrook EPZ provides " adequate protection"is not admissible because the emergency planning requirements of 10 C.F.R. I 50.47 are not intended ;o imple-ment the " adequate protection" standard of section 182(a) of the Atomic Energy.

Act; and (2) certifies to the Commission the question whether that testimony.

m

1. g Na-O:O 8 nonetheless is admissible as relevant to a determination (in accordance with the h3M Commission's guidance in tong Island tighting Co. (Shoreham Nuclear Power W.

Station, Unit 1), CLI-8613,24 NRC 22, 30 (1986)) that an emergency plan is to achieve " reasonable and feasible dose reduction under the circumstances."

O 247 9

1 j

o J

i j

-1 EMERGENCY PLANNING: - FINDINGS (NRC)

RULES OF PRACTICE: CONSIDERATION OF ISSUES l

An operating license proceeding (in contrast to a construction permit proceed-

'O'O O O O ing) generally is intended to be s forum for resolving only those issues contested by the parties; therefore, any finding by the Licensing Board of " reasonable as-

,O E

.O =

surance" under 10 C.F.R. 6 50.47 regarding emergency planning matters must M

OO' be in the context of the contentions presented by the parties for litigation.10 C.F.R. Part 2, App. A, i VIII(b).

moeweec.

ATOMIC ENERGY ACT: INTERPRETATION gggggg 4 EMERGENCY PLANNING: BASIS FOR REQUIREMENT Eme.rgency planning requirements are intended to be second tier, " extra-adequate protection" requirements under section 161 of the Atomic Energy Act, 42 U.S.C. 6 2201, rather than first tier " adequate protection" requirements under Atomic Energy Act i182,42 U.S.C. 6 2232.

APPEARANCES John Traficonte, Boston, Massachusetts-(with whom Alan Fierce, Boston, Massachusetts, was on the brief), for the intervenor James M. Shannon, Attorney General of Massachusetts.

Diane Curran, Washington, D.C., for the intervenor New England Coalition on Nuclear Pollution.

Robert A. Backus, Manchester, New Hampshire, for the intervenor Seacoast Anti Pollution League.

Paul McEachern, Portsmouth, New Hampshire (with whom Matthew T..

Brock, Portsmouth, New Hampshire, was on the brief), for the inter.

venor Town of Hampton.

Thomas G. Dignan, Jr., Boston, Massachusetts (with. whom George H.

.I

. %A >.:.nn O O,O O Lewald, Kathryn A. Selleck, Jeffrey P. Trout Jay Bradford Smith, and Geoffrey C. Cook, Boston, Massachusetts, were on the brief), for ROI the applicants Public Service Company of New Hampshire, et al.

S 4

Sherwin E. Turk for the Nuclear Regulatory Commission staff.

1 leDCD10)e c 2.ts 4

1 MEMORANDUM AND ORDER

'eOSeeo(

ggggg g Before this Board are the appeals of the intervenors Attorney General of ggggg g Massachusetts (MassAO), the New England Coalition on Nuclear Pollution i

(NECNP), the Scacoast Anti Pollution League (SAPL), and the Town of Hamp-ggggggg ton (TOH) from the Licensing Board's December 30,1988 partial initial deci.

g gg E.ODEOOO.

sion on emergency planning for the New Hampshire portion of the Emergency l

Planning Zone (EPZ) for the Seabrook Station.' In that decision, the Licensing OOOOOI*

Board found that the New Hampshire Radiological Emergency Response Plan OCOOeOOf (NHRERP) met the Commission's emergency planning standards.

Intervenors have raised a variety of challenges to the numerous legal and factual findings made by the Licensing Board in support of its determination.

Recognizing the ebstantial task intervenors have placed before us, at oral argument intervenor PAPL suggested that we render a partial determination on an issue that seeming'y is at the vortex of the various appeals and assertedly is relevant to the ongoir.g Licensing Board proceeding relating to the Massachusetts portion of the Seatrook EPZ.2 Specifically, SAPL asked us to addmss whether.

t the Licensing PLard correctly interpreted and applied the " reasonable assurance" standard of 10 C.F.R. 5 50.47(a) in making a number of decisions regarding.

Scabmok emergency planning.

Because we agree with intervenors that this issue is cardinal to the resolution of a number of matters in this proceeding, we have decided at the beginning-of our review to set forth our views on the interpretation and application of the

" reasonable assurance" standard. We find that, contrary to interyenors' position, because the regulation was not intended to implement the Atomic Energy Act's

" adequate protection" standard it does not, on that basis, require the type of risk-based, dose reduction / consequence analysis in which they asked the Licensing Board to engage. Much less apparent is the answer to their alterralive assertion -

that this analysis is required under the terms of the " reasonable and feasible dose reduction" guidance set forth in the Commission's 1986 Shoreham emergency.

i planning decision, CL186-13.5 Because of our uncertainty over the resolution L

of this issue, which occupies a central role in this case and, we believe, in i

emergency planning generally, we have decided to seek additional Commission guidance, by way of certification, prior to rendering an ultimate determination

!i on the matter.

IO h Under 10 C.F.R. 6 50.47(a)(1), an operating license for the Seabrook Station.

O cannot be issued "unless a finding is made by NRC that there is reasonable l

OI 3.BP 88-32. 28 NRC 667 (1988).

1 8

g App. Tr. 4143.

I Long /slauf Lghag Co. (shoreham Nuclear Pbwer stauon. Uma 1), C1.! 86-13,24 NRC 22 (1986).

q E SIO:6.9 6 i

249 4.

1 i

4

.. + -

,..._,,,,...,.r

s assurance that adequate protective measures can and will be taken in the e

event of a radiological emergency," Intervenors, principally the MassAO and TOH, challenge the Licensing Board's application of this regulatory standard I

in a number of different contexts, including its rulings on admission of a.

D O O O O O Ol MassAO contention, the admissibility of evidence proposed by the MassAG, SMM$

and the Licensing Board's general approach to the' issues of evacuation and DWOSSO sheltering for the summertime population that uses the Atlantic Ocean beaches l

,WOGOGG t within a few miles of the Scabrook Station,' Because the issues raised by '

l N Ol intervenors concerning the preper interpretation of section 50,47 appear to have lWHOOgg(

been explicated most fully during the Licensing Board's consideration of the l

M@gg O l admissibility of certain testimony proposed by the MassAO, we frame our review ggggggg of intervenors' general concerns in the context of that particular matter.

-_G 1.

BACKGROUND Emergency planning for the summertime population using the New Hamp-shire seacoast beaches near the Seabrook Station is a longstanding issue. Drring the construction permit proceeding for the facility, and by petitions filed pur-suant to 10 C F.R. 6 2.206, various of the intervenors now before us tried unsuc-cessfully to bring before the agency tne question of the viability of emergency planning for the New Hampshire scacoast beaches.5 Thereafter, as participants in the operating license proceeding, intervenors proposed a number of different

' Massachusetu Attorney General's Dnef an Appeal (MarI 24,1989) at 32 88 thereinafter Mas:Ao Bnef]; Town :

of Hampton's Bnef m suppen of Appeal (Feb. 10,1989) at 9-42 (heremaher Toll Bnef)c 8 More than a decade ago, vancus of the miervenors as well as the h1C staff argued before us that, m addiuan to the emergency plannmg effons required under 10 Cf.R. Pan 100 for the low population sone (LPZ) wahm a 1.5 mile raeus of the facihty, consideration should be given to amersetcy planrung cuiside the tfZ, parucularly for the summerutne beach populadon. We found the lack of any eura tfZ emergency plannmg requirement under then-eusung regulations precluded us imm granung this request, but suggested that these emergency plannmg cecerns should be addressed by way of a rulemakmg proceedmg. ALAB 390,5 NRC 733,747 (1977). In dochnmg review of our decision, the Cmimimon endorsed the nouon that rulemakmg was appmpnate and that it be given pnanty. New Engloed Pe=er Co. (NEP Umts 1 and 2), CLI-7714,5 NRC 1323 (1977).

In May 1979 and assin in June 1980, several intervenors to c.is proceedmg tiled or supported peuuons requestmg that pursuant to 10 Cf.R. 4 2.206 the Director of Nuclear Reactor Regulauon (NRR) hah esams seabmok facihty construction until adequate emergency plannmg measures beyond the LPZ were developed and evaluated by the Commission. The NRR Dtrector demed these requests on two grounds. Initially, the Director cued the fact that a scabrook entrs tf2 population evacusuon study was under way, DD-80 6.11 NRC 3710960).

Thersahar, the Director found that conunued facihty consuucuan was not a safety hazard and that emergency P annmg adequacy would be assessed durms the then ongoms facihty opersung beense pmceedmg. DD 8114, l

14 MtC 279 0981). When intervenor SAPL sought ju&ctal review, the United sistas Coun of Appeals for the aae 9 -

Distnet of Columbts Circun upheld the Director's determmauons as consonant wah the ducretion efforded hun b

under secnon 2.206. Seacoar Anti Pohsion League v. NRC,690 F.2d 1025,1030 33 (D.C. Cir.1982). In doms so, however, the Coun noted the Commishan's representation that "if it appears at the opersung beense review that the mfeastbthty of EPZ evacua6on renders it impossible for (appbcanu) to provide the requisite ' reasonable assurance / the operaung heense will not be granted," sf. at 1030, as well as the Commission's assurances that its uhunais judgment about the adequacy of ernergency plannmg would not be affected by the considerable cosu -

apphcanu would incur in facihty consuucuen, sf. at 1033. Tnese are staternenu, intervenors now assert, that support their posinon about the proper intepretauon of the " reasonable assurance" standard. Ser ifa note 42.

r h

g 250 k

i 4

4 i

mv.~---

.._ --_ __ ~

I contentions relating to the NHRERP ultimately proposed for Seabfook, This

-- i included one filed by the MassAO in February 1986 that questioned whether W@.O,&Og {

the emergency msponse plans for the New Hampshire seacoast communities

& O N.S G within the Seabrook EPZ " provide reasonable assurance that adequate protec.

ggggggg tive measures can and will be taken in the event of a radiological emergency at OOOOOSG the Seabrmk Statim,"'

g g gg*

Applicants opposed the admission of this contention,' as did the NRC staff,'

W D O D'S S S Thereafter, despite the MassAO's strenuous assertion that there clearly was a ggggg g *

. regulatory basis for the contention,' the Licensing Board found it lacking in this 99006OS regard, The Licensing B ard rejected the MassAO's interpretation of emergency planning as not in accord with the Commission's explication of its emergency 6 The Massa 0's t===="-i decland:

N dreh edialogical energency espanse plans for the [New Hampehus seacoast c wndun the sabrock EPZ) do not provide sessanabis aamrence that adequale peonective messmus can and wiD be taken in the swan of a r=Aalael emergency at the Seabreak sution, as reqared by 10 C.FA (50.47(aXI), because in the eveu of a severs accidet on a eunawr weekend name or aU of the beach ans transies populanens widun thoes eeunuranes cannat under many plauaible -- -

.H conditions be prosacted by means of ovecustion even from eady death and beesues there am not adequeu -

plans or provanans for shehoong die bench ens transieu within those eenmuunes.

Comannan et Annasy th==1 Franas X. Biletti Relative to Emagency Planrang far the New Hanpahim Beach C

- (Sept. 9,1983) at 2 [herunafHr MassAo Emergency Planning Castesian). This contantion, enginany bd in 1983, was sesubanned in Feisuary 1966 pumuent to a 1.ioensing Board order affenhng intervenors an apparamuty to b new -

en the mast meant redraft of ths NHRERP. See t' of Anansy Omeral Francis X. BeDeui Relative to Emergency Pimmung for ths New *

. Beach Carnmunities (Feb. 21,1986) at 1.

1 Appbcams asked ths Imnsmg Board to demiss the MassAO communen as totaDy at odds with the pnneiples that emergency plusung is not usanded to guammus absolues picencean to the pubhc for an accident scenarias or to mandais a paracular level of prosecuan. Appl. cants' Response to off. Site EP Canismons subnsued -

by Massedeuseus Auerney Omeral (Mar. 5,1986) at 15 [hesenaher Appbcanss' Response to 06. sus EP Coraemons) see else the,,

" Applacents' Brief with Respect to (1) the Mass AG Caniennon and (2) the ScrCaBed "Muhipic E'Es"lasus (Apr. II,1986) at 3. Also, applicaras asserted that ernargency plaming,

s requuemens am not insended to impoes new perfonnance or sinns enaarie far maclear plants; seconhnely, the

(

MashA0 could not use this consonnen to Engste the ultinute issue of facihty meing ahesdy resolved by the seabmok canaruction permit proceeding desertumation that the piars met the siting cruaria in 10 C.F.R. Part 100.

l A

' Rampanse to off.sua EP Canonians at 1517.

I The staff opposed admission of the comemnon to the degne it coald be insarpeused as seeking to htigets the dame consequences of any specific radiolq5ical accident er accident sequence or as asserting that emergency planning must ensure a par.icular level of dase prainanan to die general public. NRC staff's Response to Connendens Filed by Towns of Hampton, Hampton Falls, Kensingum, Ryo and south Hampton, and by the Massadmaestts i

]

Anwney Ouneral NECNP and sAPL Ansch. on MasaA0 Canonian (Mar. 14,1986) at 2 [hsreirafter NRC staff's Rerpanse to Conunnons, Atiedt ei MassAO Comsman). The staff stated, however, that the comannon could be admined if recam as a chaDengs linuted to wheiher adequae shshonng was being piovided to the beach nce. M at 1.

- - - - ~=

N MassAo declared that the regulatory basis for ins -s-h was the " peta annatance" mandard of

" 7 " * '

section 50.47(a)(1), as weD u the aquuement in assnan 50.47(b)(10) that an emmesney plan pnwids e "rense of Mj protective annons? See Answer af Amorney Osneual Fracis X. Bellani lo the staffs'[ sic), Appucess*, and Suas g'

of New Hampehus's ""T-- - in His Cantannen Relative to Erangency Planning he ihe New Harnpuhus Beach Comn-man (Mar. 24,1986) at 6 [hsrunaner Massa 0 Answer en Emergency Pimuung Comennon]. See also the si.,,

" Brief of Anarney GeneralFrancas X. BeDemiIn support of Adnattirq:Has Conuntian Relative w

in Emagency Planung far the New Hampshus Beedt Communities (Apr. 16,1986) at 2 3. The MassAo uns -

,N refused to accept the NRC maff's suggened redaft of his cometian, esseens it requimd an analyes of the adequacy of both shebanng and evenuseon, inchashng consadorenen of the need fcr other namesens such as tuoflic control management or evacuation netwask L.r.

. ahernative peeeective options such as evacuation on -

l foot, and prohituties on summer fecibty openuceL MassAO Answer en Emergency Planning Comannan at 6 7.

251 l

F

l i

P planning requirements Declaring that the Commission had not required "a zero i

risk standard" for emergency planning, the Board described NRC regulatory.

requirements as designed to promote flexible emergency plans that will provide i

g;g dose savings for a spectrum of accidents,5' This is to be done, however, E*.

g g (g gg without isolated consideration of a particular accident sequence or a particular level of dose savings," Agreeing with the staff's characterization that the MassAG's contention was based on the " apparent belief that protective actions '

g must be developed which assure that any panicular level of radiological dose-g consequences do not occur in the event of an accident,"22 he Licensing Board t

L O

dismissed the MassAG contention as failing to state a violation of a regulatory NOI basis 85 M

k Foiled in this quest to gain Licensing Board consideration of his assertion that the NHRERP failed to provide " reasonable assurance that adequate protective measures can and will be taken," in his role as the representative of an interested state the MassAG in September 1987 proffered direct testimony he asserted was =

relevant. The four parts of this testimony, each presented by a different witness, consisted of the following:

(1) a description of "the technical basis for the current NRC emergency planning rules," presented by Steven C. Sholly;55 (2) an attempt to model "the radiation doses to'the population that would.

follow releases of radioactivity" from the plant, based upon " accident.

sequences that are similar to the NRC's generic versions, but which take into account reactor specific differences at Seabrook," presented by Dr. Jan Beyea;t' (3) an analysis of "the potential for an atmospheric release, similar to that designated as PWR1... to occur from a steam explosion or high pressure melt ejection event" coupled with an analysis of certain variables believed to have the potential to affect plume rise, and potential variations in the source code, presented by Dr Gordon Thompson;l' and J

10 Memorandum and order of Apr. 29,1986, at 44 (unpublished).

l "14 at 4445.

12 i

NRC staff's Response to Centendans Anach. en MassAo Contenuan at 4.

13 Memorandum and order of Apr. 29,1986, at 45,1hereafter, we denied the Mas Ao's request far review, andmg that his conunned right to parucipate in the proceedmg as the represemauve of an interested state vendered his a 1 interlocutory and that he had failed to meet the stact standards for interlecutory discretianary review, y.

-838,23 NRC 585,589-93 (1986). In that opinion, we also suggested the Mas:Ao's abihty to panicipate gg3{Ubgg g regarding other admined contentions,includmg those volanns to evacuadon and snahenng. might afford hun the oppostisuty to raise tus cancerns without liugatiris the parucular contemian at issue,14 et 593. Ahhough it is E j 18 g.

apparent his attennan is now cemered upon ether maners, ses ipe pp. 255-58, the MassAo nonetheless continues to maintain that he was ptejudiced by the rejecnon of his contention, see MassAo Bnef at 35,50 n.39.

I 34 Commonweahh of Massachuseus Testimany (sept. 14,1987, as conected Nov. 17, 1987).

1d at 12.

"Id at 13-14.

I 1714 at 15.

OOMMSSY 252 1

e

?

,,,.y e-..

....y

..m,

l

'l r

(4) a discussion of the health consequences that might result from radiation I

doses associated with the foregoing events and conditions postulated in i

002O S O Ol-the testimony, prest:nted by Dr. Jennifer Leaning."

O In a motion in limine, applicants demanded exclusion of this testimony, CC O

denouncing it as an improper attempt to reintroduce the MassAO contention lO M OO4, struck by the Licensing Board in its previous ruling." Applicants also declared lMM that, because they need show only that the emergency plan "is designed to ODODSD4 achieve reasonable and feasitie dose savings given the circumstances of the site CMSOl in question," the MassAO's evidence, which intended to show dose savings and 149MGO-(

dose consequences in absolute terms, was irrelevant."

The MassAG defended the testimony, first on the ground that it was probative y _. _.. m.

of the actual level of protection afforded the population at risk, a necessary com-ponent in any " reasonable assurance" finding because of emergency planning's status as a primary safety standard.2 Although conceding that it may not be necessary for the applicant to make an affirmative showing of the actual level of protection in the absence of a site specific challenge, the MassAO asserted that, once the issue was raised, the testimony he was proffering was an appropriate vehicle for assessing emergency planning adequacy.22 In addition, the MassAO stated that even under applicants' proposed standard,-

dose savings cannot be considered " reasonable" if, despite emergency planning -

measures, the doses received are still so high ti,at the " savings" achieved do little or nothing to mitigate the received doses' adverse health effects. The -

MassAO maintained that the evidence he proposed would address directly this issue of actual dosage received and, therefore, was relevant to any determination of whether the dose savings afforded by the plan are " reasonable."22.

After entertaining oral argument on app!! cants' motion," the Licensing Board made a bench ruling that it described as." extremely important to the case."2s The Board found that, in seeking the testimony's admission, the MassAG -

apparently was not attempting to argue that specific dose saving fmdings are -

necessary, or to litigate a " worst case" scenario, or to assert that emergency-planning must provide zero risk - any of which would be improper under the Commission's emergency planning requirements." Instead, the Board declared, isId

" Apphcants' objection in the Nature of a Moum la Uniina to the Admissien into Evidence er Cm. hh DeO &O:OD I

of Massachusena Teauman, to i. i. 29:2>.i rhereinaner Aro Motion is un..ai.

u gg gg "Id at 68.

21 Attomey oenemi James M. shannon's Response to the Appbcants' objection in the Nature of a Motion In Ununa (Oct. Is,1987) at s 4 thersmafter MassAo Response to Motion la Unsina).

2I14 2314 at 4-5.

N Tr. 5531-s2. In its oral amarks, the stalt dectand that it concuned in the apphcants' motion. Tr. 55s3.

25 Tr. 55%

"Tr. 5599 600.

i

&O

$k l

253 4

i-P m.

..,y

...y.,,

,-r..

1 l

what the MassAO ultimately wished to have considered was the issue of whether,.

. I under the NHRERP,"there are too many people at too great a risk" so that the plan lacks the requisite " reasonable assurance that adequate protective measures -

DOO Oe o of c*" 8"d *"i 6' '"" ""d*"*" " S7(*Xi h" 1

gggggg De Licensing Board, however, declined to accept the MassAO's proposed testimony, holding it inadmissible as outside the boundaries set by existing

'3gggg g g Commission policy guidance on emergency planning standards.28 ne Board OOOOON found this guidance in three sources: the Commission's San Onofre emergency O

planning decision," one of its Shoreham emergency planning decisions, CLI-

$.SUO Oe e S 8613,= and the Statement of Considerations supporting the rule on emergency.

l I

ODO O O O I planning in the absence of state and/or local government cooperation?

l90ooeoe According to the Licensing Board, the Commission emphasized in San Onofre that the focus of emergency planning efforts should be upon" prudent risk reduction measures" without dedicating resources to " extraordinary measures."32 Even more to the point, the Board stated, was the Shoreham decision in which, defining for the first time the pivotal phrase'" reasonable assurance that adequate protective measures can and will be taken," the Commission declared that an adequate plan did not have to attain a preset minimum radiation dose saving or a minimum EPZ evacuation time, but only achieve reasonable and a

I feasible dose reductions in the circumstances at that facility?3 The Board found -

further emphasis on this latter point in the 1987 rule change in which the-l Commission stated that an emergency plan is to be evaluated for adequacy -

without reference to numerical dose reductions and without comparing it to other real or hypothetical plans.3' Because the MassAG testimony did propose j

consideration of specific broad dose assumptions, dose consequences, md related l

health effects, the Board concluded the testimony was outside the Commission's i

~

i established boundaries for proper evaluation of emergency plans and should not be admitted into the proceeding 35 u

i-l

" Tr.5601.

2: Tr. 5606 09.

"JourAm Cal (ornia Edson Co. (san onofre Nuclear Generating station, Uruta 2 and 3), CU.83-10,17 NRC 528 (1983), rev' din part, CUARD v. NRC,753 F.2d 1144 (D.C. Car.1985) 30 4

CW.8613. 24 NRC 22 (1986).

2..

33 52 Fed. Reg 42.M8 (1987). 'Dtis Commissian rule was upheld upon judicial review in MarsacAarsru v. Unasd WOO 4 sr.re,. 856 r.2d 378 (i.i C,. i988).

32 Tr.5606.

33Tr. 5606 08.

3*Tr.5608.

33 Tr.5606,5959 61. In January 1988 the MassAo sought interlocutory review orthe ticensing Board's November bench ruhng by way of directed cerufscation, a request we derued as 'banifestly" too late. A1 Aa.884,27 NRC 56, 57 58 (1988),

I h-254-

. 1

.i e

6

+

w T

II. ANAIXSIS C

- gggq As the foregoing description of the controversy over the MassAO's proposed NOOO testimony illustrates," the parties have espoused substantially different views of NO ODO O U what the " reasonable assurance" standard of section 50.47 means in the context of this proceeding," Before us, intervenors MassAO and TOH assert that the OOODO8G focal point of this dispute is precisely where the " reasonable assurance" standard

%OOOM of section 50.47 falls within the two tiered regulatory scheme established by the WOODOOO Atomic Energy Act of 1954 (AEA), as amended." Under this two-tiered system,

$@OOOO O 4 which was recognized by the United States Court of Appeals for the District of 0900900

__mm

-\\

H

.I

\\

3'In this paceedag, h parues have sapended considerable effort discussing ths *mlevance" of the Massa 0's tesumony; however, this discussion seenungly is de6cient in idanufying saaetly what the teshmony is, or is not, nlevant to. b Mas A0 apparently beheves it is relevant to en overan Ucensms Board Endmg that there is

• reasonsWe assuance ht adequale protecnve measures can and will be taken" under seen<m 5447. See Mass AG Bnet at 7H5. h is asubbshed, however, that an epersung bcense proceeding (m contrast to a sonstruction pernut proceedmg) generaDy is intended to be a forum for resolving $ose issues contested by the parnes.10 Cf.R. Pan 2, App. A, iVI!!(b). hs, any Board Endmg concerning "ressmaWe assurance" must be in se conwst of the dispuied mauers presenied by the perues for bngeuan. See IU Cf.R. 41760s. In order to be relevant, *erefore, j

h Massa 0's tesumany must relate to some intervenor contenuen properly befom the Ucensing Board. -

Intervenors have not estabhshed that the issnmany is nlevant to any admiusd contention. his ordmanly would end our considersuon of the matter. Nonetheles, kt this instance, the issue of admusibihty is properly befon un became, as a procucal maner, sat issue is insaincably intertweed with h quesnan whaher, as the MasaA0 I

assens,ses segwe note 13, the Ucensing Board erred in dumussms his contenuon. Indeed, as both the opphcants

{

and the staff acognized before the Ucensing Board, the tesumany and est csaisnuon 30 hand.in. hand. See Appbcants' Mouan la foune at 4 (MasaA0 testimmy is effort to mantroduce disnussed contennon); Tr. 5533 34 (staff's percepuan of proffered issumony is what Massa 0 "Itad a mmd" to suppen dismused conianuan). See sino Massa 0 Emergency Plannmg Causnuon at 3 4,69,11 (basis for contenuon is seabrook specinc accident consequence analysis bems prepared by Dr. Beyes).

"In addiuon to complainu about the rejecnon of his proffend tesumany and lus Fabiuary 1986 comention, the -

)

Massa 0 devoies consideraNe effort before is to "deconstrucung" the Ucensmg Board's December 30 ininal j

i decision to show that the Ucensmg Iscard has utibred what he characterises as an onpropcr %est efforts under i

h circumstances" standard proposed by applicants. See MauAG Bnsf at 52 n.40, Accordmg to ths MasaAG, under this standarJ omergency planrung requirements are not " site.sactudmg" or "hosnse-Wocking" regulanons, but rather require only ht plannmg "nnect the planners' best effons in baht of the cucumstances." 14 at 33 34.

hs Massa 0 Ands evidence of the "best efforts" approach in the Ucensmg Board's conclusion that the comral usus in the evacuauan eres is not whether the evacuauon ums asumates (Eus) under the NllRERP am too long to provide reason:We suurance that evacuanon is an adequate protecuve measure, as the Massa 0 coniended, but rather whether the ETE: were occurate. Id at 46-48. In the case of shehenng. rather than espionng whether i

ahehenna is mandated as an " adequate protective measure," the Mas A0 complams that the Ucensms Board merely looked into what shcher is available and how it will be uuhted for the beachgoing population in the.

circumstances.14 at 45 72. Funher, the Massa 0 assens. the Ucensing Board opphed a *best effons" standard i

4 "]

whei, after Endes that evacuation was essenuaDy the only viable protocuve measure, it rejected truervenors' j

npeated asseruons ht the requusment in secsion 50.47(b)(10) for a "ange of procecnve measures" enandates A

plannmg for both evacuanon and shshermg. in favor of en interpreunen $at a range of protecnve measures need be considend only when a range is available.14 at 72 75.

We do not address here the specines of each of these asseruens as they chausnge the vanous lacensma Board daarnunauons about whether the choses of plaruung measu es or the deuils of their implementauen ful611ed h *rnasonable assurance" standard, except to note that the ulumate determmauan regardmg the MassAG*a e

testunony will control intervenors' asserunn that a nak/ dose consequence analysts was perunaru to making these i

daarminauons, l

42 U.s C. I 2011, et seg.

38

. j

.O:O O D I

l 255 l

l

Columbia Circuit in Union of Concered Scientl3t3 v. NRC (UCS I)," section 182(a) of the AEA authorizes the Commission to establish those minimum standards necessary to provide " adequate protection for the public health and safety."" This is in contrast to the " extra adequate protection" provisions of 000eood secti n 161(b), (i) of the AEA,*1 which empower the Commission to impose ggggg additional safety requirements, Intervenors declare that, like the Commission's siting and engineering design ggggggg requirements, section 50.47 of the regulations clearly is an " adequate protection" ggggggg standard intended to implement section 182 of the AEA." And, following on Y

this hypothesis, intervenors assert that to determine whether emergency planning

- kOOOI for a particular facility aft'ords the minimum, baseline level of safety required O

DOOI by the Commission's own construction of the " adequate protection" standard IO O09OO I as recognized by the court in UCS I, the central concern is the nature and extent of the risk that exists in light of the emergency plan." As a consequence, the intervenors claim it would have been entirely appropriate for the Licensing Board to consider, by way of the MassAG's proposed testimony (and other issues presented by intervenors), whether, even with the NHRERP in place, plant operation still imposes too great a risk upon too many people, thereby establishing that Seabrook emergency planning is insufficient to provide the requisite " adequate protection."**

Whatever facial appeal.intervenors' arguments that section 50.47 is an i

" adequate protection" requirement may have, they are promptly dispelled by a j

review of the regulatory history of that provision. When it initially promulgated section 50.47 in 1980, as authority for the regulation's creation the Commission cited "Sec.161b., i., o.... (42 U.S.C. 2201),"" It is hard to imagine a more compelling indication that, contrary to intervenors' central p"emise, emergency

1. 824 F.2d 10s,11418 (D C. Cir.1987). See sho Ucion e/ Concerned Scienr4str v. NRC,380 F.2d 552, 556-57 (D.C. Cir.1989) (UCS 11) Ahhough the constr-issue in both UCS I and UC311 was es propnety of me Comnussion's "backfit" rule governmg the unposiuon of new or modined safety requiremenu on previously heansed reactors, the descnption of the AI A segulatory echame set fonh in those cases is appbcable in the cuntext of emergency plannmg "42 tis C. 62232(a)

M i2201(b),(i).

'l

" As proof of emergency planning's rarst. tier status, intervenors point to 0) the Cormmaston's use of the term -

l "rsasonable assurance"in the regulauan, which they contend has been used previously as the regulatory eqmvalent i

of" adequate protectim," MasaAo Bnef at 37 rL27 (citing Maine Yankee Aapsue Poi er Co. (Mame Yankee Atonuc Power Station), ALAB.161. 6 AEC 1003,1009 (1973)); (2) autements in Comnussion rulemakings on emergency i

planning desenbmg. among o64r dungs, me " essential

• nature of emergency plannmg and its imponance in ccenpanson to other engineenng design and siting reqmrements, M at 39 43; and 0) statemenu by the couru, a

-+,~ e

,r.- 2, m.

2 former Commission Chairman, and agency hugauan counsel desenbmg the nature of the Commissmn's emergency P anning sosponsibahues, a at 44. Toll Bnef at 23 24; App. Tr. 39 (quoung Bnef for Nclear itegulatory l

191 p'E O'O 6

l

. '{g Comnussion at 19, HaaracAnseur v. Unned 3seses,856 F.2d 378 Ost Cir,1988) (%s. 87 2031,87 2(03,88-

,'a-#

1121)).

l k.,2.3..Q4 y

p "MassAo Bnef at 37 38; Toll Bnef at 1314.

T

-,m.-:-

c -

2. -- '

Mas:Ao Bnef at 83.

J

,S.3 J(

45 45 Fed. kes 55,402, 55.413 (1980).

.,f[&k

>b, _ ? : 92 v

.y-

, 3 _ y ;y. -:.g s. *:

256

..-a

,v.. 3 s3m i

E

A

~

planning requirements are intended to be second-tier, AEA section 161 safety I

provisions rather than first tier," adequate protectioti" requirements under AEA FOG 04OE section 182.* we thus have no difficutiy conciuding that intervenors' argument S OOMel that the MassAO's testimony was admissible to show that the risk imposed' DOOOGGE by facility operation with the NHRERP would exceed the AEA section 182 eOO OGG 4

" adequate protection" standard is without basis.d7 D@6 A more compelling case is presented by the MassAG's additional argument-

@ 0 O O eel in support of admission of his testimony. He contends, in line with the DOO04GO Commission's guidance in Shoreham that an adequate emergency plan " attempts qgg g gg1 to achieve reasonable and feasible dose reductions under the circumstances,""

that evidence intended to show the actual level of dose savings and dose consequences resulting from a plan, such as he proffered,' is admissible as relevant to a determination of whether the plan's dose reductions are, in fact,

" reasonable ""

Because it has been prepared by appropriate state emergency planning officials, it is reasonable to assume that the NHRERP is a " feasible" plan and, in line with the Commission's Shoreham guidance, dose reductions resulting from its implementation clearly would be " feasible" as well. As the MassAG "More recently, the second her status of emergency planning was indicated in the Commissim'a 3Aoreham

~

emergency planmns decision rehad upon by the tacensing Board. There the Commission declared that "[olur emergency plannmg maulauena are an tmponant pan of the agulatory framework for protecung the pubbc hoahh and safety Dut they differ in character from most of our ettmg and engmeenng design requiremenu which are duected at schiev ng or mamtamms a mamurn level of pubhc safety pmtecuan? 24 NRC;u 30.

The differece between emergency plannmg requiremems and the agency's stung and engineenna design requuements in terms of the latter's role m esubhshmg mmunum safety standaids was further highhghted by the Comnussion in the sutement of Considernuona supparuns the 1987 emendments to section 50.47, regardmg review entena for uuhty emergency offstle plans designed to 611 the gaps created by state andAir local government nonparucipsuon. In mspondag to comments quesuomns whether emergency plannmg is as imponam to plant safety as proper facthty operauen and design, the Comnussion acknowledged language m the statement of Considerauons supporung es 1980 emergency plannmg rule that characterued emergency plannmg as '"an easennel aspect in the protaction of the pubbc health and safety'" and eat "'emergmcy preparednas as util as proper siung and engmeenna design features are esadedto protect the haahh and safety of the pubhc.'" $2 Fet Reg at 42,081 (q oung 45 Fed. Reg at $5,403,55,404 (emphasis added to ensmal)).1he Commission found, however, that these sutements were not cetrolhng for two suasons:- (1) its declaration in that same document that emergency plannmg " bolstered" engmeenna design and siting features, and (2) the adop6cn in that rulemalung of a 12Gday remedial clock fw correcuan cf major emergency preparedness de6ciencies - a feature it noted was in sharp cetrost to the immediate shutJown that would be warremad for the correction of major enameerms denciencies (4 at 42,08182. The Commission's conclusion, consistent with its earber SAore4em i

decision, was that these factors estabbahed that emergency plannmg was treated "acmewhat differently" from

1. ameenna safety features under the emergency planning regulatory structure it crossed in 1980. Id.

en intervonors also have argued that refusal to car. sider the MassAo's nakMose eduction instimony based upon the ng*gggg Comrmasion's "no specine done reducum" guidehnen estabbshed in the ShoreAem case (or upon the opphcams' v

"best effons under the circumstances" aundard) would be improper because these approaches are not " objective" gM$M enough to implement an "adequaic protection" sunderd. See MasaAo Response in Mouan la limiae at 5 9; ToH Bnst at 23-24. Even assuming the " reasonable assurance" requtrement anses from the AEA acc6cn 182

" adequate protechen" standard, this proposiuan is questionable in baht of the Distnct of Columbia Cucuit's recent observation that "the ' adequate protecuan' standard may be given coment through case by. case apphcauons of bhe Canmission's) technical judgmect rather than by a mechanical verbal formula or set of objecuve sundards."

UC3 #. 880 F.2d at 558.

as

(

24 NRC at 30.

"MassAo Bnet at St.

i 257 i

l 1

4 i

J a

- - ~ - -

,c

_~

n

+

,1

\\

l i

l' l

presents the matter, however, the question still remains whether the NHRERP will meet the Shoreham decision's cordunctive requirement that the plan achieve i-

" reasonable" dose reductions, thereby providing " reasonable assurance" under i

0 G 6 0 4.0 %

section 50.47. The MassAO asserts that any dose reductions that do result 40406 g from Seabrook emergency planning may, in fact, provide little realistic dose 000eee reduction to the affected population, ultimately failing to provide protection from DCOOGGe doses that have serious health consequences. In such instances, the MassAG CN contends, the plan's dose reductions cannot be considered "rcasonable". under

$4'e'gg g (

ally appropriate defmition of that term. Further, because his testimony was intended to show the potential dose redur'tions and dose consequences that QQggggg would arise under the NHRERP in certain emergency scenarios used as part yggg g g g-of the NHRERP planning basis, the MassAO concludes that it was relevant to 7

the material issue of whether the plan's dose reductions would be " reasonable" and thus should have been admitted.80 Applicants and the staff argue that the Commission's guidance on emergency planning establishes that the MassAG's evidence. was inadmissable as not relevant to any issue properly before the Licensing Board.85 As support for this conclusion, they rely upon the Commission's guidance in its Shoreham i

i decision that emergency planning requirements do not mandate that an adequate plan " achieve a preset minimum radiation dose saving or a minimum evacuation time."s2 In addition, they cite the Statement of Considerations for the 1987 i

rule amendments incorporating standards by which to evaluate em;rgency _

l planning when state and/or local government cooperation is lacking. There, the Commission declared that under NRC practice emersency plans are evaluated for adequacy without referent.e to numerical dose reductions which might be accomplished, and without comparing than to other emerger.cy plans, real or hypothetical... IElvery emersency plan is to be evaluated for adequacy on its own -

j merits, without reference to the specific dose reductions which might be accomplished under i

the plan or to the capabilities of any other plan.83 On the basis of this guidance, applicants and the staff state, any information relating to dose consequences or dose reductions is extraneous to the Commis.

l Under ths MasaAo's interpretation of the SAoreassi standard. even thoug's an energency plan might be found 80 to meet the specific of esction 50.47(b) and comply with the appbcable pidance in NUREG-

, _ Je c.

.my..m q; -_ _

065MutA 11P.1 (Rev.1).*Cruana for Preparsiian and Evalustian of Ra&ological Emergency Repense Plans and Properedness in support of Nuclear Poew Planas." theueby providing what undoubaadly m feasible" dose p

B'gj 8852 Fed. Reg at 42,084.

reshuties, the plan nonsiheless could be found insdaquate to support hcensing if it also failed to provids the j

"ressanable" does reduebans necessary for an overall Sading of " reasonable assurance that adequats protective measures can and will be taken"in accordance with section 50.47(a).

83Bnet of Apphcanas.AppeDess (Apr. 24,1989) at 611,1517; NRC staff's Brief in Response to Intervenors' A

a (June 5,19s9) si 45-48.

q 1

24 NRC et 30 -

258 i

O l

4

~ ~ - -

e

.n,--

. l

- 1 1

{

sion's determination of " reasonable assurance," without regard to the purpose 08 OOOG f r which it is introduced. As a consequence, they conclude that the MassAO's testimony pmperly was excluded as irrelevant.

y a

g One can reasonably take the view that the Commission's Shoreham declara.

,O OOO tion of the purpose of emergency planning (achieving " reasonable and feasible" NOOOOO dose reductions) permits at least consideration of the overarching issue whether, OO despite the " feasible" dose reductions, the remaining dose consequences are suf-NOOOOO$

ficiently severe to preclude finding those reductions " reasonable."" On the other p@O O O 4 e e hand, the Commission's (perhaps superseding) guidance eschewing reference ~

)

CCO O O ( * -

to " preset minimum dose savings" or " numerical dose reductions which might l

be accomplished" seemingly demonstrates a different concern:

i.e., given the-

" extra-adequate protection" status of emergency planning requirements, the fo-cus of any " reasonable assurance" Dnding should be on the objective review of planning efforts and plan implementation for conformance with the requirements of section 50.47(b) and the guidance in NUREG 0654/ FEMA REP 1 (Rev.1),

" Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants," rather than on more subjective judgments about whether a particular plan affords an " adequate" level of protection or entails too great a degree of risk. Because existing Commission statements do not provide a clear response to this issue, and because this ques-tion is of pivotal importance to the emergency planning matters before us (and possibly before the Licensing Board as well) and has important policy implica-tions for emergency planning in general, this is one of those limited instances in which it is appropriate to solicit further guidance prior to deciding the matters before us. Accordingly, pursuant to 10 C.F.R. 6 2.785(d), we certify this issue '

to the Commission.

1 For the foregoing reasons, we cert (/y to the Commission the issue whether the MassAG's testimony, which seeks to address the dose reductions / dose -

consequences that will arise under the NHRERP in the event of certain planning basis accidents, is admissible as relevant to a determination of whether, in accordance with the Commission's Shoreham guidance, the NHRERP will achieve " reasonable and feasible dose reduction under the circumstances" so l

-~

as to provide " reasonable assurance that adequate protective measures can and

,g " ~~'

will be taken" in accordance with 10 C.F.R. 6 50.47(a).

"see stro Cincianers 7as a ElecMc Co. (wm. IL Zimmer Nuclear Ibwer Stauan.11 nit No.1), At.AB 727.17 NRC 'l60,765 0983)(emergency planmng's 'oversu objective [is] cia avoulance of as much radianon espasure as possible"). of course, quae apart from Die issue er the s&nission of evidence such as that proffered by the MassAo is the quesnan of what weight,ir any,it should be given.

spov 259 6

l

._._..,,..,n

.g,,

a,.~.,,,.

i l

.i It is so ORDERED, 4

FOR'THE APPEAL BOARD i

coeo e ar o.c.o.c.e.s c H

Gt er;"g> -

.DeOOOGG Appeaisoaro

!WOOOGG4

.D O O O S S EE

'9660444 D 9 0 0 9-0 0)

..w J

L l

l-l l

.. : =

L uo

.....J..._~_.._.-.---~...._.--.-~..._.--..-,--,.

l l

4 Cite as 30 NRC 261 (1989)

' ALAB 923 OSU B,.. M

' NUCLEAR REGULATORY COMMISSION UNITED STATES OF AMERICA 4

(

ATOMIC SAFETY AND LICENSING APPEAL PANEL-V

%'pWEMOOGG4 Ogggggg.

Christine N. Kohl, Chairman I

in the Matter of Docket No. 55-08347' (Operator License No. 6010-2)

(EA 88-164)

M AURICE P. ACOSTA, JR.

(Rosetor Operator License for San Onofre Nuclear Generating Station, Units 2 and 3)

October 25,1989 '

i

'Ihc Appeal Panel Chairman issues a memorandum announcing that no :

Appeal Board will be established to conduct sua sponte review of the Licensing Board's initial decision upholding the NRC staff's suspension and determination not to renew a reactor operator's license.

i l

APPEAL BOARD:. SCOPE OF REVIEW (SUA SPONTE) :

RULES OF PRACTICEt SUA SPONTE REVIEW' In the absence of an appeal, it has long been customary appeal board practice in cases involving the licensing of nuclear facilities to review on its own "any fmal-disposition... that either was or had to be founded upon substantive -

l'

.,.1 determinations of significant safety or environmental issues." Washington Public MOOODOI Power Supply System (WPPSS Nuclear Project No. 2), ALAB 571,10 NRC 687, -

692 (1979) (emphasis in original).

e,6 4,e A

4 3539499<8 1-JL 261 d

(

[

h 4

e-

.m-,mmna..,-.,wN,u-w

,5

..m-,.

,.-~.,._,,y-,,,--

---re.,-y--,-

g

1 1

1 APPEAL BOARD: SCOPE OF REVIEW (SUA SPOATE)

RULES OF PRACTICE: SUA SPOATE REVIEW DGG O O O O h a n mi isses, intenention minsts, and procedurai rnanus are ordinarily gggggg excluded from appeal board sua sponte review. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB 691,16 NRC 897,908 (1982), review declined.

IO.OOO O O !

CLI.83 2,17 NRC 69 (1983).

S0000S%

DeCOOGSI eOOOg96 APPEAL BOARD: SCOPE OF REVIEW (SUA SPOATE)

NDOOOO I RULES OF PRACTICE: SUA SPOATE REVIEW eeoceos REACTOR OPERATOR'S LICENSE: SCOPE OF REVIEW (SUA SPONTE)

An appeal board will not be established to conduct sua sponte review in any case where a licensing board decision.ipholds the NRC staff's suspension, revocation, failure to renew, or other termination of a reactor operator's license under 10 C.F.R. Part 55. Where a licensing board decision reinstates or grants an individual operator's license and there are no appeals from such decision, howeve.r, an appeal board will be designated to conduct sua sponte review of any significant public health and safety or environmental issues. See generally Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-911, 29 NRC 247,250 (1989) (the purpose of sua sponte review is " protection of the public interest in general (as opposed to a particular litigant's interest) by -

providing another independent level of review of significant health, safety, and environmental issues on which a substantial evidentiary record already exists");

MEMORANDUM.

On September 28, 1989, the Licensirg Board issued its i.'ioT decision in this proceeding involving the NRC staff's suspension of and refusal to renew the reactor operator's license held by Maurice P. Acosta, Jr., an employee of i

Southern California Edison Company (SCE) who was authorized to operate the controls of the reactors at the San Onofre Nuclear Generating Station (SONOS),

~' ---

e-Units 2 and 3. See LBP.89-26,30 NRC 195. The basis for the staff's order was 20;Oi8 that Mr. Acosta's documented history of using illegal drugs " suggests a pattern -

4 of behavior and lack of sound judgment that may be inimical to the public health i

g and safety." 53 Fed. Reg. 24,383, 24,384 (1988). Consequently, the staff stated that it

en g e s;g 262 S

a 4

r

- +,

'f 1

J does not have the necessary reasonable assurance that [Mr. Acosta) will carry out his duties t

in the future with sufficient alertness and ability to safely operate SONGS and observe all 4

n..

mi applicable requirements includmg obligations imposed by SCE's policies and procedures, as t

V '

- M weu as the NRC's requirements.

I l 7

OO NG lbid. After a formal hearing, the Licensing Board upheld the staff's action.

h D@@O OS SJ No one has appealed the Licensing Board's decision.1 In the absence of an (

'f 9

G appeal, it has long been our customary practice in cases involving the licensing DeSOUWS U of nuclear facilities to review on our own "any fmal disposition.. that OOeoesc cither was or had to be founded upon substantive determinations of significant

>QQQQQQ safety or environmental issues." Washington Public Power Supply System (WPPSS Nuclear Project No. 2), ALAB 571,10 NRC 687,692 (1979)(emphasis -

in original). Economic issues, intervention requests, and procedural matters, however, ordinarily are excluded from such sua sponte review. Consumers g

Power Co. (M!dland Plant, Units 1 and 2), ALAB-691,16 NRC 897,908 (1982),

review declined, CL183 2,17 NRC 69 (1983), The instant case, in which the.

Licensing Board sustains a staff decision to suspend and not to renew a reactor operator's license, falls more properly into the latter category of cases.2 That is, where an operator's license has effectively been terminated, the issues generally involve that individual operator's rights alone and are essentially economic and procedural in nature, rather than raising questions that implicate the public health and safety or environment.

Accordingly, an appeal board will not be established to conduct any sua sponte review in this case or others where a licensing board decision upholds the staff's suspension, revocation, failure to renew, or other termination of a reactor operator's license under 10 C.F.R. Part 55. Where a licensing board decision reinstates or grants an individual operator's license and there are no appeals t

. from such decision, however, an appeal board will be designated to conduct sua sponte review of any significant public health and safety or environmental issucs? See generally Long Island Lighting Co. (Shorcham Nuclear Powcr.

I Under the Commission's Rules of Pracuce. any nonce of appeal from t.BP 89-26 should have been Aled (i.e.,

i maded) no later than october 17,1989. see 10 C.F.R. Il 2.762(a). 2.710.

2 Hadhand itself did not readdy At into either the " review" or "no review" category. Nonetheleas. an appeal board conducted sina sposte review because the case msed serious quesuons about the integnty of the NRC's hearing I'"

grocess.16 NRC at 908 Two sladvely recent cases involved deciaims by a single admimstradvs judge (rather than a heensing board) hM M M,S hl that granted reactor operstars' heenses. see David w. #4id (Senior Rector operster License for Beaver Valley Power stauan. Unit 1). LDP-48 22. 28 NRC 176 (1988); A(fred /. Morabito (Semor operstar license for Beaver -

R'G Valley Power stadon, Umt 1), LDP.8810,27 NRC 417. as modsjied. LBP-8816,27 NRC 583. vecerad er moor,.

J CLI.88-4,28 NRC $ (1988). recomriderar,oa denied. Cts 8916,30 NRC 103 (1989). No appeal board was catabbshed to conduct sees spears review in those cases because the Commission imusted them by indavidual -

orders as informal proceedmgs. over which appeal boards had no junsdiction. This ddfers from the formal"show j

cause" adjudicauon before a three member licensing board that Mr. Acosta received and in which there is appeal board junsdicnort see 10 CER.12.700 er s<g.

(Coatsas.ed) 263

.-----r-e se,,

,e-we y,p.--

Station, Unit 1), ALAB-911, 29 NRC 247, 250 (1989) (the purpose of sua sponic review is " protection of the public interest in general (as opposed to a particular litigant's interest) by providing another independent level of review of significant health, safety, and environmental issues on which a substantial

{

DOOOOOI evidentiary record already exists").

J Cc6SCl under 10 C.F.R. 5 2,760(a), the Licensing Board's decision in LBP-89-26 lfS OOOOO O will become the Commission's final deci3 ion in this matter on October 30,1989, 4

C O. M O O O!

unless the Commission itself directs otherwise.

M M G4 C.c D O $ $ Ol FOR THE APPEAL PANEL

,89 6 6G$(

CHAIRMAN

• coo'oeoq

-_,_..m Barbara A, Tompkins Secretary to the Appeal Panel-i 1

t

-i m.

EnWi6ro <!

l

.Ot The Commsssion no. has pendmg a proposed tulemaking that would make all proceedmss for the srant.

,ene.ai. or u.en imo.i.d en nent or.n oper:1.r. u e.ub;e., io ihe no.iy p,omui,sied inro,mai haanns procedures in 10 Cf.R. Part 1 subpan t., s4 Fed. Reg. 3269 (19s9). see 54 Fed. Reg. 17,961 (1989).

Appeal boards have jurisdwtien ni subpan L proceedmas.10 Cf.R. 41125s. *nws,if the proposed rules are enacted, fuuire ca.es like Held and Mera6(so would be subject to appeal board review.

"g

• This memassndum is inaued pursuant to the Appeal Pens) Chairman's authority in 10 Cf.R. 6 2.787(a), (b)(2).

79,9 e 264 r

{

i l

i

.I a

,---e+.

,m.

.w-.

s,,=._,

. ~ -...

~w.--+

1 i

L lecooco j

b.eoose ko.coces e Atomic Safety Dooooeci,

D0:00@@

and Licensing mooo**

isecome Boards issuances' Decoeoo.

ATOMIC SAFETY AND LICENSING BOARD PANEL B. Paul Cotter,* Chief Administrative Judge Robert M. Lazo,* Deputy Chief Administrative Judge (F.xecutive)

Frederick J. Shon,* Deputy Chief Administrative Judge (Technical) ;

i Members

- O m

Dr. George C. Anderson Dr. Cadet H. Hand, Jr.

Dr. Emmoth A. Luebke Charles Bechhoefer*

Dr. Jerry Harbour

• Dr. Kenneth A. McCoRom.

Peter B. Bioch*

Dr. Deved L Hetnck Morton B. Margubes*

Glenn O. Bright Emest E. HW Gary L Milhoen l

Dr. A. Otxon Calkhan

. Dr. Frank F. Hooper Marshan E. Meer

• -a*

James H. Carpenter

• Helen F. Hoyt*

Dr. Oecer H. Parte

• g Dr. Rehard F. Cole

• Ehrebeth B. Johnson Dr. Deved R. Schink Dr. George A. Ferguson. Dr. Waher H. Jorden Ivan W. Srnith' i

Dr. Harry Foremen Dr. Mchael A. Kirk-Duggan Dr. Martin J. Steindler g

Dr. Rchard F. Foster Dr. Jerry R. Khne*

Seymour Wenner

.; a i

i John H Frye Ill*

Dr. James C. Lamb lil Sheldon J. Wolle

?."

James P. Gleason Gustevo A. Unenberger* '

L Ot W iO 019!

o,.

m.~m

.Mg V.-

7 a s v-e. *.-e+

~

}'. :.

i' y! g_1);: )X

.w.-.:y&,...

. qx>3,5 :;r.

tu A ev

• Perrnanent panel members t

v l

1 i

i k

j j

e

. -. -. =

i Cite as 30 NRC 265 (1989)

LBP 89 27 e&OALSO e gg UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION gg twenome T-=== - mg ATOMIC SAFETY AND LICENSING BOARD ERobeNmoree E

OOO Before Administrative Judge:

ire w o e c o 1

Peter B. Bloch q

' In the Matter of Docket No. 70 25 (ASLBP No. 89 594-01 ML)

(Special Nuclear Material License No. SNM 21)

- (Request to Renew for 10 Years)

ROCKWELL INTERNATIONAL CORPORATION (Rocketdyne Divlolon)

October 5,19891 -

l 1

The presiding officer issued a schedule for the initial stages of a complex Subpart L case. 'Ihe time from the issuance of the hearing notice to possible i

determination of the case is about 10.5 months.

l 1

J RULES OF PRACTICE: SCHEDULE FOR COMPLEX CASE UNDER-SUllPART L After the filings provided for in the schedule issued by the presiding officer.

l QC r--

c -

are completed,2e presiding officer will be in a position to decide the case or to decide whether to ask additional questions of the parties or to call witnesses to give oral testimony.

I All Rhngs in this case chauld bear the date of bg in the upper right hand corner of the Erst page of the hg.

pyewswa I

265 i

e e

RULES OF PRACTICE: REQUIREMENTS FOR QUALITY FILINGS UNDER SUBPART L, EXPLAINED The presiding officer makes a variety of substantive and format suggestions t

about how parties may make their filings effective, iOG@ G e e a D000s90 ISOO O99 8 MEMORANDUM AND ORDER 00000eQ (Scheduling)

NMS (

000O99d in the course of the September 29,1989, prehearing conference, held in Van OOOO 9 9 (

Nuys, California, I adopted a schedule for the filings in !Ns case and also stated O @ O O D o 0:

some grouna ruies that would apply to those filings. Tr. 238, 245 50, 252 55.

The purpose of this Memorandum is to state the adopted schedule clearly in one l

place and to suggest a few refinements that may improve the efficiency of the proceeding. To the extent that this order may be inconsistent with the orders j

entered on the transcript, this written order shall control.

A few introductory words are in order. For each of the stages of the case, it '

is required that filings be recclwd by each of the parties required to be served by the date spec (/ icd. (Parties may choose the form of service providing that receipt is timely.)

The Chatsworth Library has been chosen for the purpose of depositing the case file for the convenience of Intervenors. Materials should be deposited there within the next 10 days.

I The purpose of specifying each of the stages of the proceeding in this Memorandum, and of imposing conditions on the filings, is to ensure that the filings will be useful in the decisional process and will have the fullimpact they deserve. If it should appear to any of the parties that some of the conditions should be changed, they may file for reconsideration of this Order within 10 days of its receipt. (Motions for reconsideration in this case will be timely only within 10 days of the Order as to which reconsideration is sought. Otherwise,

}

the Order becomes part of the law of this case.)

i I reserve the right to remain flexible in the interest of justice and will entertain j

motions for extension of time or other specific relieffor good cause. The cause must be stated clearly and must persuade me of its merits.

Should Rocketdyne (or all of the Intervenors) complete and transmit their work on any of the stages of the proceeding before the deadline date, then i

~~

the deadlines for later stages will automatically be shifted accordingly -

OCSARO@

commencing the time allotted to that stage from the time of receipt of the last Mi l

filing from the previous stage. Now, in the interest of setting a clear schedule that will bring this case to closure, I direct that the stages in filmg are 4

i

...O...

1 N

}

i i

l I.

INTERVENORS' DIRECT CASES - DUE JANUARY 3,19902 MMg {

Each concerns included in the dimet case must be clearly stated and accom-ggg panied by a relevant reference to a licensing standard contained in 10 C.F.R.

g g4 Part 70 and applicable to a general special materials license. (See Attachment A (not published) for a copy of Part 70.) For each concern,' the filing should j

gg' specify the relief that is sought should the concern be demonstrated to be true j

ggggg (e.g., denial of license or specification of a condition of licensing). Failure to S hO@O(.

c mply wim mis paragraph of my Order uWnvaudatMhc endm dscuulon of tin concern, which may be treated as if it had not even been filed - subject 6

- ' - - " ^ " ' ~

only to a discretionary ruling on my part that the matter is too important (to safety or the environment) for me to disregard it.

7 The direct case shall be well organized and clearly presented. Pages shall~

be numbered sequentially throughout, except for attachments, which either shall have their own clear numbering system or shall have numbers written in clearly by the person filing the attachment. Lengthy documents should include a table of contents; for very lengthy documents, page tabs art encouraged to make it easier to refer back and forth to different portions of the report. The method of binding should be secure. Clearly labelled graphs and charts are encouraged to help to make it easier to understand the material or to show the comparisons to l

which you wish to draw attention.

l Intervenors should be familiar with the record and should address each relevant portion of the application. Pailure to address relevant portions of the.

application may result in the Intervenor being unable to address those arguments -

at a later stage of the proceeding - when only rebuttal of new material will be permitted.

Arguments should be fully presented so that they can be understood, if I so choose, without having to check cited sources. Arguments also shall be clearly documented. They should comply with 10 C.F.R. 6 2.1233, which requires that the filing be under oath or affirmation. They may also clearly cite documents already in the record, such as the Application or answers to my questions.

2 y -

1f any of the deadhnes (either as stated in the order or scalculated because all of the parties whose has were

,A.A M, due complaed their has before the deadhne) should faU en a day that is not a busines day for the federal k ) AA _M government the due date shall automatically be understood to be the neat business day for the federal governmem.

.i tmervenon may substantiate only thoes concerns ratsed by them in their request /petinen in a lunited appearance L

statement that I have said is pan of the sequest/ petition, or at the prehmmary haanng. should informauon j

i imponant to pubhc health or safety or to the pmtecnon of the envimnment be developed that does riot relate to

,I a concern that has aheady been properly raised. then an Intervenor may mms to have me consider that concern.

l The mouan should be made promptly and should show good cause for the late fihns, mcludang why the bg is g

late and why it is imporunt.

• lt ts my expenance that the effective presentation of concerns requires carsful organizau% including allocation e

m.

of available resources. setung of pnonues. and suenuen to details. When an tmervenor suspects a defect in a Rocketdyne document, it may be helpful to seek a volumary discussion wnh Rocketdyne that might clarify the 1ssue. such voluntary discussions are. of course, not mandatory for cather party.

267

)

5 D

i AO04OO#

'Ihey may cite ther documents providing that copies of all relevant portions gggg g are attached and that the references are clear. Lengthy documents may be cited.

4OOOGeS with ut attachment if arrangements are made with me to have those documents

@0040l the file for this case or to exempt the documents from being added added t because they are readily available.

O OI Whenever Intervenors cite Rocketdyne materials, they should discuss them IO OOOOIII in a way that fully acknowledges the thrust of Rockwell's position as it rnight OOOOOOE state it, Then, Intervenors may state why they consider that position incorrect or 90GO 9 OOI incomplete. It is most helpful to me that whenever any party cites an opponent's argument that it state that opposing argument as sympathetically as possible.

That will help me to fulfill my responsibility to review the entire record of the case, it will also help the party in unc'erstanding the strengths or weaknesses of its own case.

In this initial filing, Intervenors should state crucial areas in which information is missing from the application and supporting materials. They may also ask relevant questions, directly related to specific concerns that have been properly -

raised'(see note 3, supra), to which Rockwell is invited to supply answers.

Intervenors that fall to identify areas of lack of infortnation at this time may be barred from proposing that I ask questions about those areas at a later stage of the proceeding.

II. ROCKETDYNE'S RESPONSE - DUE MARCH 3,1990 Rocketdyne shall respond to each allegation in a filing that shall meet all the suggestions for organization and clarity just set forth for stage I, including the suggestion that they accurately represent the full thrust of Intervenors' allegations. Rocketdyne shall interpret allegations as well as it is able, given its experience and the need to accommodate the inexperience of certain Intervenors; if it is honestly unable to understand an allegation, it rnay respond by stating its inability. Rocketdyne also should specify the relief it thinks appropriate under the circumstances (e.g., no relief or the willingness to accept a certain condition '

on licensing).

--=

Intervenors' questions rnay be answered in whole or in part. When they A 4 O:O'S are n t answered or are answered only in part, Rocketdyne should state its A

'*85 "8 f '"0('C3Ponding. Since discovery is not authorized under this subpart, Rocketdyne may simply state that the record appears to t>e clear and that it therefore does not need to answer the question. It may cite the portion of the existing record that responds to the concern. Rocketdyne should include -

a clear enough reference to (or abstract of) that portion of the record so that, should I choose to do so, I will understand the ground for not answering without physically turning to the reference.

268 i

9

Ill. INTERVENORS' REBUTTALS OF NEW 1

M ATERI AL - M ARCH 23,1990 4400009 O$

This rebuttal iestimony is permitted only with respect to new or surprise material included in Rocketdyne s response. Intervenors' documents should Og ply w th the same presentation and content standards applicable to their 2000 g a g it is particularly important that this rebuttal filing show full understanding of

ggggggg, the material being rebutted so that I will fired it easy to compare Rocketdyne's MO O 9 O O 4 new or surprise material to the material being set forth in rebuttal.

IV. ROCKETDYNE'S REBUTTAL - DUE APRIL 12,1990 This rebuttal is only for new or surpri.e material presented by Intervenors.

It may be accompanied by a motion to strike for failure to comply with the conditions imposed on rebuttal filings.

V.

INTERVENORS' ANALYSIS - DUE MAY 12,1990 Intervenors will fully analyze the record with respect to each matter of conmn to them. They may cite materials filed by any of the Intervenors.

They must show an understanding of Rocketdyne's arguments and face those arguments directly, showing which arguments are accepted and which are thought to be incorrect.

As in all previous filings, this one shouM be clear, concise, well expressed, and well documented both as to facts and law, if there are disagreements about the effect of regulations or other aspects cf the law, they should be briefed as part of this document

.ch citations to regulations, statutes, NRC decisions, my previous rulings, cout! Nanions, etc.

This is the time to cite areas of weakness in the record and to suggest questions that I should pose, either in writing or directly to witnesses. Discuss the need for me to ask these questions or to call witnesses.

It would be most helpfulif the tone of this analysis were sufficiently objective

• • 1 that I could adopt some or all of the analysis as my own opinion, resolving the D.DA O.O 6 issues.

k, VI. ROCKETDYNE'S ANALYSIS - DUE JUNE 11,1990 Respond directly to the analysis of each of the Intervenors, combining Intervenor concerns only where dtis is consistent with clear response. Do this OS4 269 l

l

i i

j I

i i

in a form that lends itself to adoption by me as my opinion. Respond as well I

to Interrenors' legal arguments and to their requests for me to ask questions or call witnesses. If Rocketdyne chooses, it may suggest questions or that I call h

g,ggg{

witnesses to address its concerns about lack of clarity in the record.

M O

VII, INTERVENORS' RESPONSES TO QUESTIONS - JULY 10,1990 i

O.M O.

O OI If Rocketdyne has suggested questions or the calling of witnesses, Intervenors l

M OSS(

may respond - clearly and concisely.

OCO 090 0i VIII, MY DECISION - AUGUST 10,1990

-~ ^ ' ^ ~

My deadline is, of course, the target date for my work. I shall endeavor to decide the case prior to this deadline, if consistent with developing a careful understanding of all the issues and arguments. If I find 1 must ask questions proposed by the parties or must call witnesses, then the fmal decision in the i

case may not occur for anotler month to 3 months, to allow time for answers or a hearing and for the filing of analyses,if required.

Respectfully ORDERED, Peter B. Bloch ADMINISTRATIVE JUDGE

[ Attachment A has been omitted from this publication but can le found in the NRC Public Document Room Oelman Building, 2120 L Street, NW, Washington, DC.)

.n rddo o o,e i

es l

1

. bSS.

SS I

. 0 0..,...

m

-~

i l

)

l l

Cite as 30 NRC 271 (1989)

LDP 89 28 f

gg UNITED STATES OF /,MERICA NUCLEAR REGULATORY COMMISSION g

O ATOMIC SAFETY AND LICENSING BOARD

,(

I O

Before Adminlettetive Judges:

g PSCOOOOE Ivan W. Smith, Chairman l

Dr. Michard F. Cole Dr. Kenneth A. McCollom

-l In the Matter of Docket Nos. 60 443 OL 60 444 OL (ASLBP No. 82 47102 OL)

(Offsite Emergency Planning)

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et af.

1 (Seabrook Station, Units 1 j

and 2)

October 12,1989 MEMORANDUM AND ORDER l

(Denying Intervenors' Motions to Admit 3

Low. Power Testing Contentions and Bases or to Reopen the Record, and Requests for Hearing)

INTRODUCTION On June 22,1989, during low power testing, the Seabrook reactor, operated by New llampshire Yankee (NHY), initiated a natural circulation test which IO 010.0 I called for a manual trip of the reactor if the pressurizer water level were to fall OD below 17%. During the test the water level fell below 17%, but the reactor O4 was not tripped until about 7 minutes later despite the fact that the operators S4 were aware that the test limit was exceeded. On June 23, NRC Region 1 9eeG1 issued a Confirmatory Action Letter (CAL) confirming its understanding with I

$999490 271 t

m

...,.,..,.-,____.__m.

___.--,,.,_,.m..~,._

m

-,.,.....,..,....,,.....m,.,m v,...,

l l

l NHY that it would obtain the concurrence of the Administrator of Region I before any restart following a complete review of the event, he circumstances I

surrounding this event form the bases for many pletadings including two motions GOODOe submitted by the Massachusetts Anorney General (for the Joint Interrenors) to S4 i admit contentions, bases, of to reopen the record for a hearing on the matter,'

OMG$ Q In short, the first motion with its single contention charges that the June 22 DOS $$(

event demonstrates that Applicants' plant operators and management are not O

adequately trained or qualified, and that they lack adequate managerial and ggggg g (

administrative controls to operate the facility at any level of power, he second ggggO motion supplements and repeats the first, and adds two more contentions, it is ggggggg discussed separately below, he Massachusetts Attornev General seeks a hearing on the matter under three theories, ne first casti tx Region I Confirmatory Action Letter as a new " proceeding" suspending the Seabrook low power operating license, thus affording the Attorney General a right to a hearing pursuant to section 189(a) of the Atomic Energy Act. Under the " suspension" theory, the Massachusetts Attorney General would be entitled to a hearing as a matter of right without I 1he eslovent pleadirgs to deu are:

1.;.- -._ Mouan to Adrmt Comenum, or, in $e Ahernauve, io Respen the Record, and Requot for liestms, July 21,1989 onarvenurs' Mouan).

Apphoenu' Answer to (Intervenes' Mauan), August 7,1999 (Appbcams' Ansoor)

NRC $iaff Resperse to [1mervenom' Maian], August 1s,1989 (NRC Euff Rapmas).

Imervenors' Mauan for Lesve to Add asses to low Power leeung Comanuan Fded an July 21,1989, and in Adnut Ivnher Comenuans Ansms imm tew Pbwer issung I;vems, or, m me Alarnauve, to Recrea the kacard and Second Request for Heanns, Autant 28,1949 (lmervenon'second Mouan).

Imervenor's Mauan to A& nit Reply to Apphcanu' and Staff's Respanse to Ilmarvenars' Mauan), September 1,1989 (Maucm to Aevut Raply)

Appbrenu' Respmas to [lmarvenars'second Mauen], Sepumber 11,1989 (Appbcanu' Response to second Mauan)

Appbcenu' Response to [Maum to Admh Reply), $spamber ll,1949 (Apphcanu' Repunsa to Mouan to Adnut Reply).

NRC Staff Response to Ilmervenon' Second Mauan), $epomber 14,1999 NRC sief! Response to IMouen to Adnut Reply), Sepsmber 14,1989.

Imervenon'Informauarut supplement iolheir tow Iwwer Cemenuens Fded on July 21 and August 28,1989, Sepamber 19,1989.

Mass Ao's Mauan forlasve to Fue o Reply to the Appbcenu' and Staff's Respanas to imervenan' August 28,1989 Meuan to Add Bases and Funhar low Power lesung Comanuens, Sepsmber 19,1989, and Reply tio same), Sepiomber 19, 1999.

Imervenors' Sece d infarnauanal supplernent tolhear tow Power Comanuans riled m July 24 and August a

wo e i.

28,1989, September 22,1989.

h$

on Sepismber 26, 1989, the Board issued a Memoundum and order (unpubluhed) commanung an the e,

unprecedonied number of Ataurney General pleedmas na authorued by the NRC Rules of Procuce w escused g

e all parues frun responding to unauthorsned p6esdansa, including sophes to mauans, unhas the Board invues such j

respanaes, That sesehed in the Ahng of 1menenors' Mouan for Reconsidersuan of the order, Sepamber 28, 1969.

NI NRC staff Respanse to

• Mass Ao's Mouan for taeve to Fde o Reply to the Appbcams' and sieff's Rapanses g

to Imervenon' (Second Mauan)," october d,1989.

Appbcama* Response to Imstvenom' Mouan for Reconsidersuan, Octobst d,1989.

h$ h '

l'J1

,P

.f

___.i_.-

meeting any additional procedural requirements such as moving to reopen the record. Intervenors' Motion at 4 8.

De second theory asserts that since the Commission must fmd that operator and management training and procedures are adequate before an operating 11 g

4 cense may be granted,8 such a fmding is " material" to the issuance of the license; i

N g,

therefore a hearing is required pursuant to the holding of Union of Concerned L'

Scientists v. NRC. 735 F.2d 1437,1443 (D.C. Cir.1984). Intervenors' Motion q

at 8 9.

gg g

Intervenors' Motion alternatively seeks to reopen the evidentiary record g*

(closed June 30,1989) of the full power operating license proceeding pursuant O

OOO to the provisions of 10 C.F.R. $ 2.734 under a Aird theorv -i.e., the low power events alleged in the contention are relevant to the grant of a full power license.

- ~ ^~

Id. at 810,12 25.

Applicants contest Intervenors' Motion on all fronts. First, according to Applicants, there has been no license suspension. De CAL is not a license j

suspension; no hearing rights ensue from it. In any event, the Massachusetts i

Attorney General would have no absolute right to a hearing even if the CAL were a license suspension. Applicants' Answer at 916. Applicants reject the i

notion that UCS confers any hearing right upon Intervenors because, among other reasons, the contention is late filed. Id. at 14. Responding to the argument by the Massachusetts Attorney General that the evidentiary record on the full power proceeding should be reopened, Applicants address the regulatory requirements for motions to reopen set out under 10 C.F.R. 62.734. Applicants argue that the Intervenors' motion does not address a significant safety issue nor does it satisfy the "five factor" test for late filed contentions as required by the rule.

Id. at 17 25. Finally, Applicants courder the Massachusetts Attorney General's jurisdictional claims with the argument that neither this nor any other licensing

}

board has jurisdiction over the subject matter of the motion. Id. at 25 28, i

Applicants also provided their response to the Confirmatory Action Letter and other factual information in support of their analysis of the significance of the June 22 event. Attachments to Applicants' Answer.

he NRC Staff responded with a factual and legal analysis of the Mas-I I

sachusetts Attorney General's " suspension proceeding" theory; ne CAL is not a suspension order and, even if it were, the Massachusetts Attorney General has no right to a hearing on it. NRC Staff Response at 2-6. With respect to gggggg Intervenors'second theory of the case, the Staff urges the Board to apply a " fun-damental flaw" test to the contention as in Long Island Lighting Co. (Shoreham g

Nuclear Power Station, Unit 1), CLI 86 II, 23 NRC 577, 581 (1986), and in O

Shorcham, ALAB 903,28 NRC 499,505 (1988). NRC Staff Response at 610.

9G 499O i

2 cg,, 3,, g, gp, y,,4,rsfor Peace v. MtC. 751 F.2d 12s7.1500 (D C. Cu 19s4)-

hM M$

273 i

)

O 4

c

..-.,,,.s

-,.,.---n-

l 5

i The Staff provides a detailed legal analysis of the requirements to reopen a l

l record under 10 C.F.R. I 2.734 supported by an extensive factual account of the j

June 22 events at Seabrook. NRC Staff Response at 10 21. Finally, the Staff does not concur in Applicants' jurisdictional arguments except to the extent Ap-0()Do e e O_ (

plicants argued that this Board has no jurisdiction in regard to a suspension of g 6 SQ the low power license. /d. at 21 n.8. We turn first to the question of jurisdiction.

SOOOOS4 COOOUN JURISDICTION WOOOGG(

NOOOOO The Massachusetts Attorney General states simply that this Board has juris-OOOOOOI diction over all issues raised in the contention, citing ALAB 916,29 NRC 434 0 C 0 0 9 O O!

(1989), in this proceeding.

Applicants contend, however, that all that the Appeal Board held in ALAB-916 was that, at the time a certain contention was filed concerning the onsite exercise, some licensing board thust have had jurisdiction and that this licensing board stood in the shoes.of the original licensing board at the time the filing was made. Thus, all that ALAB 916 can be read as holding is that this Licensing Board has jurisdiction to entertain and decide the motion. According to Applicants, ALAB 916 does not answer the question of whether any licensing board can in fact exercise jurisdiction over the proffered contention and that the contention does not relate to any emergency plan or its exercise. Rather, it is in the nature of a technical qualifications contention which should have been raised, if at all, prior to the time that the Licensing Boards concluded their efforts on the low power licerne and sent that aspect of the proceeding on to the Appeal Board, the Commission, and now the U.S. Court of Appeals for the District of Columbia Circuit.

Applicants maintain, therefore, that the contention simply is no longer litigable in light of the fact that the Commission has taken final agency action with respect to the low power license which encompasses the subject matter of this contention. Citing 10 C.F.R. 62.717(a) and Houston Lighting and Power Co. (South Texas Project, Units I and 2), ALAB 381,5 NRC 582,590-91,593 (1977). Applicants' Answer at 26. Thus, we understand App!! cants' argument to be that, while this Board is the right forum to entertain the motion, it is the wrong forum to evaluate the merits of the contention; that once the Commission issues a low-power license, the only avenue left to the Massachusetts Attorney General is through the filing of a request under 10 C.F.R. I 2.206.

',3 kO43 EROS Applicants continue their jurisdictional argument by recalling to the Board's wm a attention that, in September 1982, the Licensing Board admitted for litigation in the Scabrook operating license proceeding the following contention denominated B

Nil 13:

.94 1

274 l

h

i 1

l l

i l

The Applicant has not demestreted that the following and all other operations persmnal

'*""'"'""P*''"'"*d'"****"**""U""''**''*~

M 'O OS O O l

1.'A.2.3, II.'B.4. I C.'1 and Amendia C: (a) Station Manager,(b) Asaisunt Sution Manager, i

O i

(c) Senior Reactor Operators. (d) Reactor Operators, and (e) Shift Tedirsical Advisors.

DSSOS 1900099 Summary Disposition was granted with respect to this contention on May 11, l

1983.8 At the time the contention was admitted and when it was disposed of,

'S600$$

the Ma:sachusetts Attorney General, SAPL, and NECNP were all parties to the ggCMSg proceeding against whom res judicata would operate.

09004Og-por its pari, the Staff argues that the Appeal Board in ALAB 916, supra,29 NRC at 438 39, ruled that this Board has jurisdiction over all issues but those I

explicitly given to other licensing boards. 'Ihe matters on which Intervenors seek to reopen the record in regard to the issuance of the full power license is not before other boards and is, hence, before this Board. Nrther, the Staff l

is correct in its view that the doctrine of res judicata, although applicable to NRC adjudications, does not apply here. 'Ihe events of June 22, 1989, giving rise to the instant contention were not and could not have been the basis for Contention NH 13 summarily dismissed by the Board in 1983. As Applicants acknowledge, at 27 n.66 of their Answer, the doctrine of resjudicata has limited applicability in administrative proceedings where there are changed circumstances. Sec Alabama Powr Co. (Joseph M. Parley Nuclear Plant, Units 1 and 2), ALAB 182,7 AEC 210,216 (1974).

We believe that Staff's view on the issue of jurisdiction and resfudicata in regard to matters relevant to the issuance of a full power license is the better one.

In addition, as v.e find below, the Staff is correct in arguing that Intervenors' request (Motion at 3) that funher low-power testing remain suspended is beyond the jurisdiction of this Board as is any facet of an enforcement action in this proceeding. We address that aspect of jurisdiction in the following section.

SUSPENSION OR CONFIRMATORY ACTION?

Low power testing of the Seabrook Station has been halted and the Applicants have committed to the NRC that this testing will not be resumed without the prior approval of the Region ! Administrator. As we noted above, a Confirmatory

O O Acti n uuer (CAL) memoriaHm me NRC undenlanding with NHY, W q" "-

Attorney General argues that this action should be regarded as the equivalent of l

I initiating a proceeding to" suspend" Applicants' low powerlicense. Intervenors' Motion at 4 8. According to the Attorney General, because section 189a of the 3

Atomic Energy Act expressly lists a license suspension as one of the proceedings 3 Memorandam and order (unpubhahed) (Memanalains Prehmanris Canfarense and Rahng on Mnuans for h

summary Duposman) at 14-18 (May It.19s3).

5 i

.a j

275 e

Y

+

v--+

m w.y m_.-.---,,,.y-w....-..

.we

giving rise to a hearing, Imervenors are entitled as a matter of law to a hearing on all issues set out in the contention without meeting any further procedumi requirements such as secking to reopen the record recently closed. Id. at 6 7, z

gggggg The Staff csserts that, in fact, the Commission has not suspended Applicants' l

q low power license. Rather, Applicants voluntarily ceased operations in light of gg the June 22,1989 event, and have committed not la resume low-power testing gg gq without first obtaining the approval of the Staff.' For their part, Applicants point out that the CAL had none of the legal elements of a license suspension.

I N

An NRC license may be suspended, except in an emergency or for a willful EEOOOO I violation, only after the issuance of a notice of violation, after an opportunity ENNO O for the licensee to answer the notice, then by an order to show cause followed by NDOODO4 an opponunity for a hearing by the licensee.10 C.F.R. Il 2.201(a)-(b),2.202(a) and subsections (1)-(3).

a-As was made clear recently in Massachusetts v. NRC,878 F.2d 1516,1521-22 (1st Cir,1989), cited by the Massachusetts Attorney General (Intervenors' Motion at 6), labels alone will not determine whether a license has been revoked or suspended defacto. Even so, the court's articulation of this well-established principle in Afassachusetts v. NRC offers little solace to the Massachusetts Attorney General here, in that case the court was not deciding whether a CAL could amount to, or under the facts of that case, had amounted to a license sepension. The issue there was whether there was a reinstatement of a license, an action that does not afford to the Commonwealth any right to a hearing in that a reinstatement is not included among those matters set out in section 189(a) of the Atomic Energy Act. Massachusetts, supra, at 1522.

Indeed, if any part of the Massachusetts Attorney General's " suspension" theory is correct, the hearing he seeks is not to suspend any license - he contends that it has already been suspended. In essence he seeks a hearing to oppose any lifting of any " suspension." Putting aside the fact that a " lifting" of the " suspension" has yet to be proposed, he must be aware, by citing to Afolhersfor Peace, supra,751 F.2d at 1314, that section 189(a) of the Act does not provide for a hearing on the hfling of a suspension. Intervenors' Motion at 4 5 n.1, We accept the Confirmatory Action Letter at face value; it is not a suspension within the meaning of the Act and no hearing rights ensue from it to the Intervenors.

But even if the CAL were construed as a de facto suspension, Intervenors would still be in the wrong forum. Enforcement proceedings, including license b..6509 I

suspension actions, are brought under Part 2, Subpart B Such proceedings M9 4

are laitiated only by order of the Commission, which in turn depends on

'see Confirmatory Action Lauer imm Widiam T. RusseD. Region 1 Admirnstrater, to Applicams, et 1 (ausched I

to letter imm rJwin 1 Reis to Board hne 26. 1989).

m

1 i

)

I a request for a hearing by the affected licensee. See 19 C.F.R. 6 2.202(c).

Licensing boards do not have the authority to become involved in an enforcement l

4000800 matter until a hearing is requested by the person charged and ordered by the O l Commission. Metropolitan Edison Co. (Three Mile Island Nuclear Station, j

!MGS d Unit 1), CLI-82 31,16 NRC 1236,1238 (1982) (Commission vacates board

)

16O I

order imposing monetary penalty). Jurisdiction of a licensing board extends

)

l6 only to those matters encompassed in the Commission's notice of hearing, e.g., -

ggggggg Portland General Electric Co. (Trojan Nuclear Plant), ALAB $34,9 NRC 287,

'm 289 90 n.6 (1979), or those matters raised sua sponte in accordance with 10 gg g C.F.R. 6 2.760a. The Intervenors do not even suggest that the Commission has especially delegated to this Board any authority in enforcement matters

]

involving the Seabrook Station. *ltus the motion poses a conundrum, if we were to accept the Massachusetts Attorney General's " suspension" theory, such i

acceptance would deprive this Board of the very jurisdiction the Massachusetts

)

Attorney General seeks to invoke. Moreover, as the Attorney Generai should know well, only the person who will be adversely affected by the proposed action, in this case the licensee, would have the right to participate in an enforcement proceeding. Bellotti v. NRC,725 F.2d 1380,1382 (D.C. Cir.1983).

]

Therefore the Intervenors do not have a right to initiate or participate in a " suspension" hearing on the events of June 22 under section 189(a) of the

]

Atomic Energy Act.

WHETilER UCS AND MOTHERS FOR PEACE CONFER HEARING RIGHTS in the alternative, the Massachusetts Attorney General argues that Intervencrs are entitled to a hearing on the proffered contention, as of right, under doctrines announced in San Luis Obispo Mothers for Peace, supra, 751 F.2d at 1309, and Union of Concerned Scientists, supra, 735 F.2d at 1443. Intervenors' Motion at 810. As noted in the introduction, supra, the Massachusetts Attorney General argues that, since the Commission by regulation requires adequate operator training, management, procedures, and performance before a full-power operating license can issue, there is an absolute hearing right granted to intervenors on these matters under UCS and Mothersfor Peace. The argument N OOM" *~'" I is augmented by the claim that since the NRC has " suspended" further plant operations at any level until there is a full examination and corrective action" the NRC has operationally demonstrated that the issues proffered in the contention -

are material and relevant to the grant of a full power license, citing UCS, supra, 735 F.2d at 1443.

S S

J Applicants respond that, even assuming that there is an absolute right to seek a hearing on such matters, it must be exercised at the time the original i

UQ i:99 i

277 3

y

+

1 i

s i

5 notice for an operating license hearing issues. That time has long since passed.

i Now the contention is both late Gled, and being filed in a proceeding where the i

evidentiary record is closed. Public Service Co. of New llampshire (Scabrook Station, Units 1 and 2), ALAB 918,29 NRC 473,480 (1989), citing Duke Power I OO.8 O g O

Co. (Caiawba nuciear sintion, units i and 23, Cti 8319,17 nRC 1o4i (i983).

L N

M Therefore, according to Applicants, UCS does not relieve the Massachusetts COOOSS 4 Attorney General of his burden to satisfy the criteria of 10 C.F.R. I 2.734 for i

DO O M O Ol reopening an evidentiary record. For the reasons set out below, we arrive at the 9000@@(

same conclusion.

i

. DO O O O S Si intervenors argue that UCS and Mothers for Peace should be read as Oocoee(

overriding the 10 C.F.R. ( 2.734 standards for reopening a matter that is material DOO O 9 O Ol to licensins. Iniervenors' Motion at 11 12. The Attorney General cites excerpts from these two cases for the proposition that the court was essentially declaring

+

invalid the Commission's rule with respect to reopening closed records, at least insofar as exercise contentions were concerned. However, we agree with -

Applicants that the only regulation UCS addressed was 10 C.F.R. I 2.206 which the Court noted is a rule of " unfettered discretion" which is to be cornpared with reasonable procedural rules for accepting issues for NRC litigation such as sections 2.714 and 2.734. UCS, supra 735 F.2d at 1449. Mothers for Peace discussed the case law establishing one of the then extant two " decision-generated" standards for reopening - the one was one that required the movant j

to show that a d(/ferent result would obtain. E.g.,751 F.2d at 1316 & n.167.-

in any event, whatever the holding of Mothersfor Peace, Applicants remind us that section 2.734 was adopted after, and with cognizance of that case.8 Intervenors contend also that the successful completion of low power testing is a prerequisite to the issuance of a full-power license and argue, therefore, for an absolute right to a hearing under UCS by virtue of that concept alone.

Intervenors' Motion at 9. This is an argument previously made to this Board.

We saw no need to address the point before because there was no contention (thus no jurisdiction) before us to consider. Now, however, it is time to put an end to the almost frivolous argument that UCS requires that low. power testing j

must be satisfactorily completed before full power licensing. Obviously, as Applicants have argued, it is full power ascension that must await satisfactory low-power testing. Whether or not a utility seeks a license to operate at low power before the grant of a full power license is solely within the discrellon of the utility. Indeed, as Applicants wishfully observe, they would luive been free to " sit on the low power license and await the issuance of a full power license."

i l

-=

.gO O O O'O @

Applicants' Answer at 16. Accordingly we rule that the Massachusetts Attorney

. SM GMO4 Y,

8Agacanu' Answer at is, ceag 10 C.F.R. 41734(a)(3), smamera er Cannideranon. 51 red. Reg 19,539

]

g hg (May 30,1946).

i

~

c.....<

i d

a i

l 1

-e, a

• a w,

e,.-

c e,

General's argument that Applicants must demonstrate competence at low power ggg,ggg '

operation before the issuance of a full-power license is without merit.

l De NRC Staff addresses Intervenors' argument that they are entitled to a hearing on matters " material" to licensing with a new, but well-reasoned twist.

O NRC Staff Response at 6. Assuming that Intervenors' claim to a right to a ON*

hearing is correct (a proposition the Staff believes to he dubious), their proffered l

I contention does not pass muster.

$ODOWO D.

In UCS, gra,735 F.2d at 1447 49, the Circuit Court held that litigation of 64, contentions that involve issues arising late in the proceeding could be limited by C900$O@

the Commission to those material to the decision, i.e., " fundamental flaws," in contrast to minor or ad hoc problems, in leng Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CL186-ll, 23 NRC 577, 581 (1986), the Commission adopted the UCS standard, stating: "Since only fundamental flaws are materiallicensing issues, the hearing may be restricted to those issues." Also in the Shoreham proceeding, the Appeal Board further denned a fundamental flaw as one that " reflects a failure of an essential element of the plan" which can be remedied "only through a significant revision of the plan." id., ALAB 903, 28 NRC 499,505 (1988), in the onsite phase of this proceeding, ALAB 918, 29 NRC 473,466 (1989), the Appeal Doard stated that where " problems are readily corrected by providing supplemental training to some of the applicants' personnel,,,. such training does not involve any revision, much less a significant one, of the emergency plan." Therefore such problems could not be characterized as " fundamental flaws " Id.

The Staff acknowledges that the UCS and Shortham cases, and ALAB-918, cited above, all involved contentions arising out of emergency planning exerrim, but argues that the rationale of those cases is equally applicable to contentions arising out of low power or power ascension testing. -In fact in ALAB 903,28 NRC at 507, the Appeal Board recognized that the fundamental flaw standard is akin to standards for the admission of contentions involving quality assurance in that the question is not only whether a particular event transpired, but whether the event is indicative of pervasive problems. The Staff correctly states that. as with an emergency planning exercise, low-power testing is, as a practical matter, conducted near the end of the full-power operating license proceeding. In fact, such testing frequently occurs after the proceeding w

has been completed and full power license has issued.

0GO O a:0.01 The analogy is sound. Low power operation is, in a manner, similar to cmergency planning and exercises and should be considered testing and training, in fact, since a utility is not required to demonstrate competence at low power before the grant of a full power license, there is all the more reason to limit g

low power contentions to those alleging " fundamental flaws" in operational preparedness, ey.

279

Indeed, to conclude otherwise could lead applicants for operating licenses to forgo the very substantial safety benefits from low power testing before the issuance of a full power license in an effort to avoid the potential delays associated with litigating easily correctable minor and ad hoe procedural and OOoeeoe training probiems. in our view the sareiy benerits to be derived from iow power OMMO'O I

testing months before the issuance of any full-power license are substantial

'S 900e 9 6

- there are no incentives, economic or otherwise, to rush through the low-D m o O e el power evoiutions in order to ascend io futi power, Rather, under the low power

$ N OSG licensing scheme, the incentive is to effect deliberate, finely tuned corrections DEOO O 8 01 without one eye cocked to the rate base.

$@@@@$(

In support of its " fundamental flaw" approach the Staff submitted the affidavit De@oeoop of James O. Partlow and Victor Nerses (attached to NRC Staff Response)

(Partlow and Nerses Affidavit) to explain whether the events of June 22 revealed fundamental flaws in Applicants' management, operator training, or low power testing programs. NRC Staff Response at 7 8. De Paitlow and Nerses Affidavit tends to repeat and overlap much of the Staff's Martin and Eselgroth Affidavit presented on the subject of the safety significance of the June 22 event, discussed below. However, it is useful for its focus on the overall purpose of low power testing and the fact that a test is in fact a test.

Mr. Partlow is Associate Director for Projects, NRR Mr. Nerses is the Seabrook Senior Project Manager. Dey are well qualified to explain the significance of the June 22 events. See Statements of Professional Qualifications, Partlow and Nerses Affidavit. In their affidavit, they explain that,in evaluating the results of low power testing, the Commission's concern is not with minor or ad hoc problems that occur during the testing, but rather with pervasive or

" fundamental" deficiencies which could pose significant public health and safety problems. Id. at 3.

As described in Chapter 14 of the FSAR, the low-power test program is part of the Seabrook initial test program. De program is conducted to assure that the facility performs as designed and can be operated safely, that plant and emergency operating procedures are adequate, and that plant personnel are knowledgeable and prepared to operate the facility in a safe manner. As with any test program, it is expected that, in spite of adequate construction and preoperational testing and extensive training of personnel, occasional problems may be identified and personnel errors may occur, his is part of the testing process. Id. his seems very reasonable to the Board. Indeed any testing program that fails to reveal any problems or personnel error would be highly

~

60.8 e O O)O suspect as an uademaadias test.

Applicants' low-power test program was reviewed by the Staff and found to be consistent with regulatory requirements. De adequacy of Applicants' preparations for low power testing and the readiness of both the licensee 280 OSOO98 O

+

l l

1 l

personnel and facility have been conftrmed by the Staff and is documented in NRC Inspection Report No. 50-443/89 80. Partlow and Nerses Affidavit at 4.

gGS,O $ 0 De Staff conducted inspections of Applicants' conduct of low-power testing

'@60 during the period between June 13,1989 (initial criticality), and June 22 when g *ggg[

the reactor was tripped during the natural circulation test. Dese inspections BDOOOS0 determined that, with the exception of the errors made during the June 22 event, 4

the low power test program was satisfactorily implemented in accordance with ggggggg the license, and the plant performed as designed (Inspection Report No. 50-gg 4

443/89-81). Id.

ggggg*

In addition the NRC designated an Augmented Inspection Team (AIT) to cV review the event. De AIT concludes that " reactor plant safety was never in 4

questien, and with the exception of the significant error of not tripping the reactor

" ~

at the point first called for by the test procedure and loss of pressure control due to letdown isolation and pressurizer heater de energization, the operating staff performed well." Inspection Report No. 50-443/89 82, at 6: Partlow and Nerses Affidavit at 4 Althot!gh the AIT report correctly identifies the June 22 event as involving significant error, it is important to note that this event must be considered in context with all of Applicants' activities during low power testing. So viewed, this event constitutes an exception to what otherwise has been evaluated by the Staff as fully acceptable performance during the preparations for and conduct of low power testing. Such an exception does not constitute a failure of an essential element of the primary program or plan (for example, the operator training program), but rather rors in not meeting one specific requirement contained within the overall program or plan. To remedy this so as to prevent recurrence of the errors does not require developing a whole new program or plan or even a significant revision to the existing progam or plan. Partlow and Nerses Affidavit at 5.

Messrs. Partlow and Nerses agree with Gregory Minor and Steven Sholly, whose affidavit accompanies Intervenors' Motion, that some improvement in the training program is essential.' But they do not equate the need for "some improvements" in training with a failure in the essential elements of Applicants' plans, programs, or training program itself. Accordingly, the cognizant officials of the NRC Staff do not consider the performance of the manageraent and operators during the June 22 events to evidence a fundamental flaw. Id.

,a v 4 O O e'* 0. 0 4 The Staff acknowledges that it is not unconcerned with this matter, but that the iap3e, as uessrs. Paruow and Nerses explain, "does not require developing a SS

'Jous Amdevit of omsary C War and sieven C. shady July 21.1989 (bor and shoDy AmdsviO. There I

$$j are two War and shouy andavas. one accernpemas Innervanors'seced Manon. Neither affidsvu was sworn to or amtmed before any officer suihorned to admiruster oaths or to assive affirmanms. No explanatam was P e ded

+

281 9

4

1

. j j

l l

l l

l l

whole new program or plan or Men a significant revision to the existing program l

or plan." NRC Staff Response at 9, i

t lOOOOOO$

The Staff concludes its argument on the " fundamental flaw" facet of the i

WMMOOl contention with the observation that:

WSODOS4 g g D Q Q g Ql In At.AB 903, serra, the Appeal Board stated *[t}he test for a fundamental Raw is akin to ggg g that required for contentions alleging quality assurance (QA) denciencies." Under that test, the salient question is nce whether 6eficiencies occurred (it is expected that they will), but MDOENOb rather whether such errors are of suf6cient dimension to lead one to cceiclude that there han OOOM$ (

been a "pervative breakdown" in the QA program that raises legitimate doubt as to whether DG O OO O Oj the plant can be operated without endangenng the public health and safety. Eg., Union Electric Co. (Callaway Plant, Unit 1), At.AB 740,18 N",C 343,346 (1983). Applying this principle, it is clear that the June 22,1989 event reflects only an isolated instance of a failure to adhere strictly to apphcable procedure but does not represent a

• pervasive breakdou1t"in Applicants' low-power tesiing or operator trainmg program.

NRC Staff Response at 910.

While we agree with the Staff, we cannot automatically follow it to the conclusion that the contention falls because the evidence of the cwnts of June 22 do not reveal fundamental flaws in Applicants' plans and procedures.

At the contention-screening stage, the context within which Staff makes its argument, a contention need only allege with reasonabic bases and specificity a fundamental flaw. At the screening stage we are not yet concerned with what the evidence may later establish as is the case with motions to reopen the record. In this case the contention alleges, inaccurately as it turns out, serious deficiencies in essential elements of NHY's personnel training, policies, management competence and attitudes, and other operational elements which

}

were revealed by the noncompliance of June 22. Putting aside for the moment Intervenors' training allegations, it is not obvious that the balance of the contention also alleges defects that can be remedied "only by a significant revision" of plans, procedures, or whatever. However, in s judgment call for' the sake of completeness, we rule for now that the nontraining aspects of the contention meet the threshold test for alleging " fundamental flaws" as required by ALAB-903, sqpra,' 'Ihis is a hollow victory for the Attorney General, however, because his contention survives only long enough to perish when we apply the standards for reopening the record, below, ie&AODO4 ll l

• l

'Iniarvenars' proffered Reply to Appucanis' and suff*: Raspanses to iniarvmors' Madan eenplains that the staff is askmg die Board to *make new law" by entandmg the "fundamemal asw" sunderd to centennes relatmg I

to low power testag. let at s 10 We agree that, however vahd the staft's posinen may be, h is a new erphcanon of the " fundamental flow" test, naswuhsianding ins senilanty to the test for guahty assurance :

"s as delmasted in Celianary, snyra herefore we have camdered that aspect of aniarvenes' Reply as if it were raceved. However, the balance of the Reply is a nuature of argumeras set out in the anginal muuan, and in any event, is subsurned by Innerunass'second Moden and is not acaved.

M2 w

f i

i l

i With respect to the training allegations, Basis B.2 alleges that training (and l --

management) procedures for the operations shift crew are not adequate. Basis i

O.@.OJ B.5 alleges that management training programs are not adequate. Basis C alleges

[

U

" pervasive and fundamental defects" in Applicants' programs and procedures, G$

including the licensed operator training program and the training program for DOSG.

the technical and management staff. However, the support for these bases.

(

including the explanation for the bases provided by the Minor and Sholly

{

g g {y Affidavit (e.g.,122 at II), amount to no more than an allegation of the need for ggg supplemental training. We can nnd no rationale, support, basis, or specificity for COCO @ O O' the suggesti n that the ' training program is deficient, significantly or o$erwise.

'Ihus the teaching of ALAB.918, supra, 29 NRC at 485-86, in part, guides us to the conclusion that the training aspects of the contention do not allege a j

fundamental flaw in the training program and those aspects of the contention are therefore defective. A forflori the training aspects will not fare well when I

measured against the standards for reopening a record, as we next discuss.

INTERVENORS' MOTION TO REOPEN THE RECORD Motions to reopen a record are governed by 10 C.F.R.12.734.8 In another facet of this proceeding, in ALAB-915,29 NRC 427,432 (1989),

the Appeal Board stated:

(Tlhe Canmission expects its adjudicatory boards to enforce the section 2.734 requirements ngorously-i.e., to tejea out of. hand reopening motions that do not meet those equirements within their four crarners....

8 As perunent:

(a) A mauen to reapon e closed record to consider additional evidence will not be gramed unless the fotoning emana are saushed; (1) he monen must be urnaly, ascept that en oncepuanally grevs issue may be considered in the discreuen of the presiding ofricer even if unnmely pressmed i

(2) he monan must address e signincam safesy er _._

-_! issue, (3) he mouan must demonstraw that a maianally skffe.ent asuh would be or would have been likely had the newly proffered evidence been consAend ininally.

_}

(b) he mouen must be accompanied by one er more af$devins which set fonh the factual and/or 3

, htb" :h h.O O O technical besos for the movent's clawn that the critana d paragraph (a) of this seenan have been asus6ed.

Afr,d.nis musi b..wan by comp individuais enh h.o.iedge.f ihe fe.s anaged. m by saperu in ih.

gq disciplines apprivnais to the issues raised. Evidence semained ki afridsviis must meet the admissibibry standards set fonh in 42.743(c). Eedi of the saueria snust be espantely addossed, with a spacinc NMM' saplansnan or why it has been met Men nudtiple ausgaues an involved, the movem must identify Gq with parnculanty each issue it seeks to bugais and spectfy the fa.ual and/or toduucal bases whidi it behaves suppon the claim that this issue enesis the cruana in peregraph (a) of Gus secuen.

N O$

(d) A motion to reapon which minue to a consennen not pronously in controversy smang the parues must also sansfy the respurernents ror narurnsly emuenuans in i 2.71d(s)(1)(i) cuough (v) y l

283 t

4 4

d

Marcover, the accompanying affidavits and supporting material must be tantamount to evidence, and in excess of the basis and specificity requirements of 10 C.F.R. 6 2.714(b). Long Island Lighting Co. (Shoreham Nuclear Power l

Station, Unit 1), CL1891,29 NRC 89,93 94 (1989).

i I

\\

41 l

6,3 Timeliness l

E ON he Intervenors' Motion was filed on July 21,1989. Applicants provided a report of the June 22 incident to the Massachusetts Attorney General on July 14 4

Oiven the stringent requirements for supporting a motion to reopen the record, l

the intervenors acted prompdy if time is measured from July 14.

f6CG(

Applicants and Staff, however, argue that the Massachusetts Attorney General I

was put on nodce of the events through newspaper accounts on June 24 and 25.

l See Applicants' Answer, Attach. F. It is true that the Massachusetts Attorney l

General knew of the plant shutdown early from news reports, and in fact orally warned the Board and parties of his intention to file contentions on the matter soon after the news reports were published. Almost as an intuitive reaction, the Board then would have been less than warm to any effort by Intervenors to introduce a new issue, or to reopen the record of the hearing, based upon.

newspaper accounts. The Board and parties then had enough work to do j

without entertaining speculative or unripe pleadings. Nor do Applicants and j

Staff explain how the Massachusetts Attorney General could have ca ried his heavy evidentiary burden imposed by 10 C.F.R. !2.734(b) with nothing but newspaper accounts. The motion to reopen is timely.

I I

Safety Significance l

l i

Intervenors do not dispute Applicants' basic account of the June 22 event.

It is conveniently set out in NHY's response to the cal Applicants' Answer, j

Attach. A. He NRC Staff has provided, as far as we can determine, all available informadon on the incident with its response. Dese include the Partlow and l

Nerses Affidavit discussed above, the Martin and Esclgroth Affidavit,' and the l

August 17 report of the Augmented Inspection Team (Inspeedon Report No. 50-l 443/89 81), noted above. The background account below is excerpted from I,

Applicants' Answer:

j l

On June 22,1989, Seabrook Stadon, Unit 1, initiated, at approxi-

5 mately 12

19 p.m., a Natural Circulation Test. This test, which followed i

)

' Affidsvit or Thanas P. Marun and Puer W. Eselgrah. Mr. Mans is Deputy Regional Adminisvator. Repan

]

1. and Mr. Easigroth serves as Clusf. Pressurued Wates Reactor secuen. Rasmn L Mr. Marun was peesent in the centrol seam on June 22 and observed the events in question. Mr. Essigroth was em leader or the Augmented gg Inspection Team designated to analyse om event. Manm and Eselgroth Affidevit. Q4 Ad and Q7 A1.

M4$$4d 8

5 8

t a

r

- ~.,

.a

.c-.,

y.. -

l 1

i 1

I l

t i

completion of the low. power testing, was governed by Test Procedure

• • * ** **" " **d" P' " ' '" * *' P'"' "' '

hO(~')OG O e h io s:

OOOeeet gggQg g $ l H. Manual Trip Cnieria: The test mum be terminneed and the moeier uipped if I

OOOOOS5

""Yd * ' "'*i"8 *"""

p@e OOGSI*

5. Pai=ri=< war 14=i: < ns or =ari.in d d==ae d > 55.

l DO09GGS pgggggg (

This criterion, by its terms, requires the manual trip of the reactor at i

OGOOSOg.

a pressurizer level some 12 percentage points higher than would be required by license technical specifications auendant to normal operatifig l

procedures.

At 12:26:04 p.m., steam dump valve MS.PV.30ll failed open, which had the effect of causing the pressuriter pressure and level to continue to drop from then existing levels. The pressurizer level continued to drop until 12:28:53 p.m. when it decreased below 17%. At the time this occurred, there were present in the control room three NRC Staff

)

personnel, as well as other observers, Despite the fact that NRC personnel, on possibly three occasions, brought to the attention of NHY operating and test personnel the fact that the pressurizer level had decreased below 17%, the reactor was not shut down :mtil 12:35:54, or utne 7 minutes and 1 second after the pressurizer level had dropped

}

below 17%,3' This shutdown was preceded by a FYccessful effort to Close MS.PV.30ll, a resulting turn around and rapid recovery of pressurizer t

level and pressure, a return of pressurizer level to above 17% and, indeed, e

to a level of 21%, The manual trip was actually ordered, not in response to the previous drop in pressurizer level, but rather in response to the approaching of a pressure trip criterion.

i Subsequent investigation of the event revealed the following as to the safety consequences of the event:

Durmg the transient, all systems, with the escopion of the steam dump nlve MS.

PV.30ll, functioned as designed. At no time did reactor power increase above its initial value, nor mere any Technical Specincetion er design limits exceeded.

Pressuriut level remained well above the 5% pressuriser level manual ufery injection value and pressurist pressure, although increasing, never nached the DOO e'04 8

'"' "' ' ir " i"' s, sis. 4, no,s, d.,in,,h,,,.n,ien,

.h,,.n, adve,s,byact on skt heahh.nd safety of the psablic, no, dkt sen,eviewed anfety genestiont esist.

De Cluonology of livorus, Appendia A to the Repon of the Augmerned Impaction Team, s9.s2, hau only two occamons when an NitC Inspector discunned the need far e tnp ash NiiY periamal-ence at about 12.32 mih the stanup hianager, and ance at about 12.34 with the Ten Duertar. He thud repened dascussim of a need for a snp was amorg NRC penannel at about 12.33. See nois 13. spa hMM j

285

.v

I j

i l

l I

Licensee Event Report (LER) at 3.

As to the failure immediately to shut down the reactor, subsequent l

investigation concluded:

{

he Unit Shift Supervisor did not enanua'Jy tnp the reactor because he misinter-g g

preted the 17% pressuriier level value to he test terminatim guidance, which *as i

l E

more conserva ive than the $% pressuriset level safety irdectim requirement pro-

$( l vided in Station procedures. %e pre. test briefing given to the crew performing the l

Natural Circulation Teit was not effective. The required information s as presented Wgg to the crew but the requirement to perform a manual reactor inp at 17% pressurizer I

level was not fuDy understad

%NG$(

LER at 4 09'00ee o After the event had occurred and initial debriefing of the " players" had taken place, at 6:00 p.m., NHY personnel, headed by the Vice president-Nuclear production, had a conference call with the onsite NRC inspectors and NRC Region i personnel to discuss the event. During that conversation the NilY personnel made statements that, in part, constituted an unwarranted defense of the operator actions taken or not taken, an assertion that the operators' actions were more conservative than strict compliance with the test procedure, and that NHY procedure compliance policy was essentially adequate as written; in addition, a t

proposal was made that reactor restart be allowed to occur in parallel with N}{Y/NRC event evaluation. The call concluded with agreement that a followup conference call with NRC Region I would be held at 7:30 a.m. on June 23,1989, and that the reactor would not be restarted until NRC concurrence had been obtained.

The NHY CEO had still not been informed of these matters when he participated in the planned telephone call with NRC Region I at t

7:30 a.m. on June 23, 1989." NIIY subsequently acknowledged that the statements made in the 6:00 p.m. (June 22) telephone call were inappropriate and not in conformance with NilY policy.

On June 23,1989, NRC Region I issued a Confirmatory Action Letter (CAL) confirming NRC's understanding that prior to any restart of the reactor, NilY would complete review of the event, establish short term corrective actions, determine long term corrective actions and schedule same, review the results of each of the foregoing with NRC Staff, and l

obtain concurrence of the Administrator of Region I before any restart.

Applicants' Answer at 16.

@@@G 11We nota below (p. 290) that the Augmemed inspecuan 'leam and the hierun ard Easignah Affidsvit conclude that, contrary to Applicams' own account af the commumcauans omh the NRC, NIIY psamnal wers accurate I

and fully fonhnght in thstr spons 9

286 OSOSIS '

9

f i

Intervenors' Motion is supported by the Minor and Sholly Affidavit. Neither the Massachusetts Anorney General nor Messrs. Minor and Sholly contend that 90004eei the June 22 evert presented any direct danger to the public health and safety or W O O O G S Ol that the plant was at risk. Rather the Massachusetts Attorney General contends cSeOOSS6 that the events described above demonstrate that the Applicants cannot comply DOOOOGOl with 10 CJ.R.150.57; 10 CF.R. Part 50, Appendix B; 10 Cf.R. I 50.34(b)(6);

itOOOGG q

• and 10 Cf.R. 5 55.53(d). De Minor and Sholly Affidavit essentially recites the OOOOSS01 events as reported by NIIY and set out above. Affidavit at 5 6. Rey explain

' G OO O S S' (

their view of the applicable regulations and emphasize that cach of the five i

OO O 9 O Oi -

members of the operating crew had the authority to order a reactor trip when the test limits were exceeded, but all failed to do so in a timely fashion. %ey l

state that on three separate occasions members of NHY management present in 1

the control room were informed by NRC personnel that the manual trip criterion 1

had been exceeded but none acted to shut the reactor down. Id. at 10.

1 Messrs. Minor and Sholly conclude that a violation of 10 Cf.R. part 50, Appendix B, Criterion V, occurred" when the operators failed to trip the unit

)

in accordance with the procedure. Moreover, they state, it is apparent that the l

training program is not effective in this instance and "some improvement" in training is essential to prevent future violations. Minor and Sholly Affidavit at 11.

The Applicants conclude that no technical specification parameters or design limits were exceeded, nor was there any danger to the public, personnel, or i

equipment. But Messrs. Minor and Sholly stress that actual danger is irrelevant to Appendix B; procedures must be followed; and the failure to follow them carries with it significant safety implications. Id. at 11 12.

j hey also allege other events, suggesting that the noncompliance of June 22 is not an isolated event. Id. at 1213. We discuss in more detail the Minor and l

Sholly Affidavit in the context of the Staff's response to it below, ne Martin and Eselgroth Affidavit is very important to the resolution of the i

issue of safety significance. As noted. Mr. Martin was present in the control room and observed the events of June 22. Mr. Esclgroth was the leader of the Augmented Inspection Team (AIT). Id. at A4, A7.

De principal findings of the AIT are instructive:

The plant responded as predicted during the natural circulation testing.

But plant equipment was not ready to support the test. Dere was an MAS 4:0 O t oPc" work 'de' for testing the steam dump valve.

The Unit Shift Supervisor (USS), Senior Control Room Operator Bgg 4

(SRO), and Control Room Operators (CRO) were found, upon interview, to be highly competent, and clearly aware of their assignments. De

)

U'theas are quahiy assurance cmsna. Cntsnan V requuns documsmauon of actmuss affectmg quahty and that 1

the activuaes tis enducied in accardance wuh the documemataan.

- ~~

287 i

P

= -. - -

s

..~.,_.J

._,.g

--- -. -. ~. -..

i i

l USS communicated that he had no doubts about his responsibliity for the testing.

There was no evidence that training relative to natural circulation 04 testing had been given within about a year prior to the test.

C'.gge 04 I

gg The AIT reviewed the pretest briefing conducted for the operators by the Test Director and found it to be inadequate with respect to reactor

.g g g

'dP 'd'*d*' '** P*""8 * * * "d"***d PI'"' P*" "' '" * * "'

l 3OODOOE trolled, unfrenzied manner before, during, and after the trip. Applicable O$

emergency operating measures were carried out appropriately.

O NRC Staff members are aware that NHY management directed that NO O $

personnel should proceed with the testing in a controlled manner and SG0000G not feet rushed to compiete evoiutions.

M -

- - -M The USS stated that the reason he did not trip at the 17% level was i

l that the decreasing level was turning around. 3 AIT concluded that the cause of the event was a lack of importance or " sense of ownership" placed on the test procedure limitation by the USS as compared to i

other limitations such as those in the Technical Specifscation and plant operating procedures (which were not exceeded). Operating personnel f

l l

~

EA penan of dw elvmmnagy of eveu u dommund by ow Arr. danmunem that de conwave actimi had j

been taken. it. ensm denp valve closed, amneet e emnues befase Gw hllC inspecus fwst desuwsed Om need fw i

e inp with NHY passennal:

INSPECTOR i '

TIME EVENT OaSEltVATioMACT1oNs f

12.26.06 Seem dimmp tale 3011 has syne i

11.38.39 PNL lowl e IM Pal humous dessa'6eed 12.10.53 lesem PNt lemi 14.M j

Lanes PrJt ymmeses 1879.0 ps, 12.31:06 Sean desse als 3013 ename i

12.32 (shouc Netc tusyssen desumed amad sur ey emb Sewaar hemmeu 12.3L55 Avg elde.semes Tavs $3037'F 1233 (abme0 NIIC temposee dissuu and d.r.,..

e n.,,, %

.~

'4:0 0

^ * - "'-

nan m t ! nm 12.34 (obse0 NItc lusposes dissesed sued far op enh Tee nwsaw M.

Arf aspest. Appen&a A.'

es t 2ss t

4 1

9 a

ll I

= - - -.

misunderstood that the test procedure criteria were the controlling re-quirements under testing conditions, f

The Shift Superintendent did not provide effective supervisory in-I volvement in the conduct of the test.

4 Operating personnel now understand that the proper procedure was Ol.

to trip before the 1.ST 22 criterion on pressurizer level was exceeded.

(

The startup Wst group failed in its responsibility to terminate or

)]

interrupt the test even though the Startup Manager was made aware ggg(,

of NRC's concerns. De test organization gave inadequate direction D 6 0 0 4 0 0 1, Plant management observers present and with authority to direct the

- " " ' ~

termination of the test either,did not know that test limits were exceeded or, if they knew, failed to act to correct the failure to trip.

The NRC Staff is unhappy that the initial NHY management approach after the trip was to resolve equipment problems rather than address the importance of violating test procedures." A thorough review of the event did not take place until the NRC raised the issue with senior management.

The transient resulting from the steam dump valve problem and.

the failure to follow the test reactor trip criterion did not signincantly challenge the margin of safety. But the failures recounted above, including the post trip willingness to proceed before a thorough review are unacceptable to the NRC Staff.

Martin and Eselgroth Affidavit at A*/.

De contention alleges that operators and management " deliberately disre.

garded test procedures" requiring a shutdown of the reactor. Intervenors' Mo-tion, Exh.1. at 3. Messrs. Martin and Eselgroth disagree with the contention, having concluded that the operators believed the test trip criterion was guidance only. They point out that the operators knew what was happening with the plant, were in the final stages of recovery, and recognized that the plant was not in danger. Martin and Esclgroth Affidavit at A9. Their conclusion on this subject is defmitive. They have been, during and after the events, in the best position to judge the cause of the failure to follow the test trip criterion.

Messrs. Martin and Esclgroth also dispute Intervenors' allegation that vir.

tually all the senior management personnel present during the transient knew gg[fy;gg that continued operation violated test procedures. They state that only the Unit gg 3..

Shift Supervisor knew that the test trip criterion was exceeded, and as we noted gpyj ;-

above, he thought the criterion was only guidance. De Assistant Operations

- p 7-i Manager learned that the criterion was exceeded from an NRC representative 3: 199.1 a r..

un,vm.p,.a. m,p, %. e 3.

urm.,.

w.e l f 7 4 E'.g. Apphcanu' Answ., at 6 BS.4 G 694J g

289

- -. ~

during the event but it was shortly before the trip (for other reasons) by the time he confirmed the information and began to take action. Id. at A10. All.

De Staff affiants also disagree with the allegation in the contention that 1

senior management provided inaccun.te and incomplete information to the NRC

%OO on the shutdown. Surprisingly, Messrs. Martin and Esc 1groth do not even accept A

NHY's mea culpa to that effect contained in the response to the CAL. See OO.

G Applicants' Answer, Attach. A, at 4.

Dey state that as both the Licensee

@@ MSG (I (NHY) and the NRC gained knowledge of the event, the NRC has learned that O

the quality, completeness, and perspective of the information provided to the OOOOSS(

NRC was acceptable both during and immediately following the event.

DOO M O De conten'.lon alleges that senior management personnel refused to acknowl-000000 q edge the seriousness of the noncompliance and "even suggested restarting the reactor without resolution of the issue."' Intervenors' Motion at 4.

Again, Messrs. Martin and Esclgroth disagree with the contention, but they agree that the Vice President-Nuclear Production failed to recognize the seriousness of-the noncompliance, and did in fact suggest a restart without prior review or resolution of the issue. The Plant Manager, who recognized the significance of the noncompliance, did not effectively communicate with the Vice President.'$

Messrs. Martin and Esc!groth agree with Messrs. Minor and Sholly that "some improvements" in staff training are necessary as demonstrated by the performance of the operating, startup, and testing staff and supervision.. De 1

details of the remedial action will be developed in the normal course of the NRC's enforcement deliberations. NHY has revised procedures and is conducting training to correct the operators' misunderstanding evidenced by their hierarchical approach to procedural compliance. Overall Messrs. Martin and Esclgroth do not believe that at present the Licensee's training program inadequacies are so great as to materially change Region l's recommendation relative to the low power license. Martin and Eselgroth Affidavit at 13,19.

Amplifying on the Partlow and Nerses Affidavit, supra, Messrs. Martin and Eselgroth explain that two teams of NRC inspectors (approximately twelve inspectors) observed plant operations continuously for 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day for 13 l

days between May 27-June I and June 12-24. De conclusions reached by these inspectors are that operators and management are adequately trained, and that the operators were adequately supervised.

l Messrs. Minor and Sholly allude to inspection Report No. 89 03 covering inspections in February and April 1989 which refer to four incidents that highlight a reduction in attention'* to detail in the conduct of routine plant

- a'*

s _ _. 5 O O'O I

K 33 Messrs. Marun and Easigfoth nnte in passing that the NRC did not prept NHY inio nteving the Vice President of his respesibihues rar nuclear matters. Manan and Inlaroth Affidavu et Als.

M lb Athension" was missaisd as "addium" in the Minor and shelly Affidavit, and apparently an the irispecuan l

repart.14 at 11 It is carrectly etsied as *etienuan"in the Manan and Esalgenth Affidava at Q16.

290 O

operations. As noted above, they suggest that the event of June 22 may not have been an isolated event. Messrs. Martin and Eselgroth counter this suggestion i

De 4 4 4 O OJ with a discussion of the thoroughness of the Staff's observation of the low-power N OG startup test. They give NHY personnel high marks for professionalism and BMS O l attention to detail and conclude that the procedure adherence problems identified SOgGOS during the natural circulation test were the only violations observed during

MK=- Z $

approximately 2 weeks of low. power testing. No repetition of the weaknesses q3Dgggg described in Inspection Report No. 89-03 were observed - in fact there were l gmg {,

observations that the previously reported areas of weaknesses became strengths 09

0909, during low-power testing id. at Ais.

De Martin and Esclgroth Affidavit, as well as the Partlow and Nerses Affidavit. has provided the Board with an ample factual record to resolve the issue of whether Intervenors' Motion raises a signincant safety issue. We conclude that it does not. Some of the grounds for this conclusion, discussed above, are:

1.

The event of June 22 did not challenge plant safety systems or place the public, plant personnel, or plant equipment in danger.

2.

The event was an aberration. Many days and hours of low power testing were observed by qualified NRC observers. NHY personnel performed well.

3. The failure to trip resulted from a narrow omission in training and briefing by the NHY test personnel leading to a misunderstanding that the test reactor trip criterion for low pressurizer level uits merely gi idance, and that Technical Specification and plant operating procedures (which were not violated) controlled instead.

)

4 Overall training of NHY operators and management is good. Reme-dial steps have been taken to address any deficiencies in the training program.

5. There is no evidence of willful (l.c., with knowledge) noncompliance with NRC regulations or agreed-upon procedures.

6.

There is no evidence that NHY management (with the possible exception of the Unit Shift Supervisor) present in the control room knowingly allowed test limits to be exceeded. De evidence is to the contrary.

q 7.

There is no evidence that NHY misled the NRC in reporting the events g-lgfggg g or was not fully forthright. De Vice President-Nuclear Production lost his job for his cagerness to resume testing and for emphasizing equipment over procedures - a harsh action.

8.

Contrary to early news reports and intervenors' allegations, NHY g

g personnel did not defy or disregard NRC advice to scram after the 17c4 pressurizer level limit was exceeded.

Sm e @ @ie e 1

291 L

9. The June 22 noncompliance is not a part of a pattern of noncompli-ances in connection with the noncompliances reported in Inspection Report No. 89-03.

10. The noncompliance of June 22 does not reveal a fundamental flaw in 1000O Applicants' programs, procedures, or policies.

4

11. NRC Staff, particularly the NRC's Augmented Inspection Team Wp.

.k responded responsibly and forcefully to the noncompliance. Dey t

M O4 have expressed criticism and approval of NHY personnel objectively O

and where appropriate. The matter is best left in their hands.

l. '

(

12. Intervenors' Motion does not demonstrate that a materially different

$@MGOl result would have been likely had the contention and newly proffered l

QS0$$$g evidence been considered initially, his conclusion is virtually forced by the fr. cts leading to our conclusion that the motion does not address

_--I I

a significant safety issue or that the events of June 22 did not reveal a fundamental flaw in NHY's procedures, training, and policies. Under the circumstances, if the matter had been litigated before the close of the record, the most likely result would have been to see to remedial l'

action. Dis has been accomplished.

l l

Five Factors Since Intervenors' Motion failed to address significant safety or environmental issues or to demonstrate that a different result would have been likely had the newly proffered evidence been considered before the close of the record, there is no need to balance the five factors for late filed contentions set out in section 2.714(a)(1)(i) through (v). See section 2.734(d). Nevertheless, for completeness, we note our agreement with the NRC Staff that the Intervenors' Motion does not demonstrate that their participation in any reopened proceeding may reasonably be expected to assist in developing a sound record. Factor (iii). While we respect I

the experience and technical nuclear expertise possessed by Messrs. Minor and l

Sholly, in this case, they have not demonstrated any particular qualifications l

to address the issues set out in the contention. NRC Staff Response at 19 20.

p i

he root cause of the June 22 noncompliance was a failure to understand the regulatory significance of the test procedures and a failure to prepare properly for the natural circulation test. In essence this is n human factors matter. Neither Mr. Minor nor Mr. Sholly claims any expertise in this area" Nor have the Intervenors demonstrated thpughout this long litigation any special insight into

- - " +

Ogg@@D(

these matters.

9A I

Usse War and shady Ar6 davit Anadi.1. suiement er Pedessional Qah6caties or oregory C. Wm, and gggggg q Ansch 2. smement or Pieressional Quah6ceses et suvon C, shouy.

29' o.....n P

e I

w e

..y

. -.,,.~

c 3

-e

- I t

I t

i Moreover it is quite obvious that reopening the record and admitting the contention would broaden the issues and delay the completion of the proceeding.

.O!

t INTERVENORS' SECOND MOTION O

l I

OOO Intervenors' August 28, 1989 motion to add new bases and contentions Ol*

(Second Motion) is not a good pleading. Unfortunately it is a too familiar OOO example of the Attorney General's undisciplined and disdainful approach to S

SO \\

practice before this Board. Its tenor is petulant, complaining once again that 60C0O O O $

• this Board has failed to exert control over the filing of low-power contentions, i

Much of it, with interminable footnotes, is devoted to restating and glossing the arguments in the first motion, although the Attorney General is fully aware that the practice is not authorized by the rules. He argues again his views on Intervenors' rights to litigatet asserts again the strained proposition that the Confirmatory Action 1.4tter is somehow an enforcement procee4ing creating a cause of action for Intervenors. Again we are told about the heavy and unfair burden in meeting standards for reopening the record, and again given warning that yet more bases and contentions on low power testing may be expected.

Second Motion at 212.

Matters do not improve much when we finally move on to the new bases for the original contention (Ji LP 1) and the two new contentions (Ji LP 2 and 3). Id., Exh.1. The additional bases and contentions consist primarily of a 23 page restatement of the AIT Inspection Report 89 82. The new effort does not highlight how it differs from the original motion, leaving it to the Board to examine both prolix pleadings in search of differences. 'This is the Intervenors' responsibility, not the Board's. Similarly, the new bases and contentions do not separate what the Intervenors learned for the first time in the AIT report as compared to the earlier Response to Confirmatory Action Letter, again leaving.

I it to the Board to try to determine whether the new 1ases have been timely filed." Most of the facts reported in the AIT Report could have been, and many were, alleged at the time of the original contention, with one notable i

exception, discussed below, i

'Ihe second Mir or and Sholly Affidavit, attached to the Second Motion, was

" incorporated by reference into the body" of that motion. Second Motion at 18.

Epsft'5F" The affidavit is devoted largely to restating portions of the AIT Report. Simply N~

'19 9,9 incorporating the affidavit into the motion is not a skilled approach to legal s

~

l N'

pleading, it apparently anticipates that this Board will carefully compare the t

)

.f is Appbcenu' acepose to second Manon, et 4 5. Inu seven turns d informanan pWded in the second Mauen whieti Apphcenis' claim more evailable in earber docinerits. h was the Anonwy oenerare job to emplain cleady

)

E,

why the informeuen in the Art Repon was now. We are not inchned to assiamme the endier documents to fenet

}

out differences in order to aid Intervenors in their hn suon.

s L. -

?

%.f

--- x ~

293 i

i l

e-d 4

S

.-.g.~

w

-,,.,.e.--p-y e.,.,e-

.1, 9-

,,,,o-

,..e,e, c.,

-,w-,., -

,..,-3,ee

.,,e

-e_ge,i

,g,.

,,.,i,-

e,.

e.

affidavit with the motion, then with the bases, and the two new contentions, then compare that entire package with the onginal contention, its bases, then cult the repetitious allegations, and somehow extract from that blinard of information the issues the Intervenors seck to litigate.

Above we have discussed at length the Martin and EselgrMh Affidavit which gQ@

was based primarily on the AIT Report. Almost all of the allegations contained in the intervenors' Second Motion (by reference to the AIT Report) were

,g discussed by Messrs. Martin and Esclgroth. Yet the Attorney General makes 9OO E

no analysis of the detailed reasoning and the conclusions in that affidavit, thus ggggg g 4 again failing to isolate the issues from the mass of words submitted for our g

g CC 009 9 0 Te Second Motion, except as noted below, fails because it does not clearly D00 m 0 inform the Board and the NRC Staff about the issues sought to be litigated.

DO@@e0CI It does not inform the Applicants about the charges against which they must defend in that it does not adequately separate new information from previously available information, we also conclude that the Second Motion is not timely under the standards of 10 C.F.R. 62.734(a)(1), again, except as noted below.

Intervenors cite the AIT report (at 6.2):

Also, the apparent wiumgness of rnanagement to proceed with testing following the June 22 occurrence without first completing a thorough revrew and causal factor assessment is safety sigmficosit. (Emphasis supphed 1 From this statement we are urged by the Attorney General to conclude that the Staff agrees (with Intervenors) that the motion therefore addresses a "significant safety issue" within the meaning of 10 C.F.R. 6 2.734(a)(2). Second Motion at 17.

Applicants respond by defming " safety significant" as a matter that simply relates to safety, regardless of importance. A "significant safety" matter, on the other hand, is one that is important to safety. Applicants' Response to Second Motion at 7. While Applicants' semantical logic seems sound, it may be a case of overanalysis of a few words. Better guidance of the Staff's intended meaning may be gleaned from the Martin and Eselgroth Affidavit. 7here they conclude, based on the AIT Report, that the actual transient had " limited safety significance" and that based upon the " prior good performance of the licensee's staff and management" and the isolated nature of the failure to comply, Region I concludes that its prior recommendations (to issue a low-power license) are not materially affected. Martin and Eselgroth Affidavit at Q25. We cannot conclude from the overall tenor of the AIT Report and the Martin and Esclgroth 8 G 0 0.0 o ]o Affidavit that the NRC technical staff believes that the June 22 incident involved g4 a significant safety issue, which if initially considered, would have produced a different result.

g gg 0

OR S

M A M #4 294 WRPWWP9913 DOS O O~O G 1 g

O e

i i

0 Applicants initially reported that there was an incomplete work request for 1

testing on steam dump valve, MS PV 30ll. The failure of the valve was the

)

UOO O O OI cause of the unplanned plant cooldown. The test procedure required that the OO valve be available. Response to Confirmatory Action Letter at 29 30 (Attach. A EOOOO O!

to Applicants' Answer).

1 OOOOGS Intervenors' original contention contained no equipment quality control alie.

OOil+

gations. Now, however, Intervenors submit a contention alleging that:

900069G 3

M$$$ j low power testing has disclosed serious defects in the maintenance practices resardmg valves Jggggg and the quality control of such maintenance practices and the possibihty of design defects r

in certain steam dump valves,in violation of $0 CFR Append 4: B, V. XI. and XVI.

Second Motion, Exh.1, at 15, Contention JI LP 2.

The contention alleges that the information supporting the bases did not surface until the AIT Report, an apparent reference to the timeliness of the allegation. Exh. I at 16. The contention is a discrete, identifiable portion of Intervenors' Second Motion and can be reviewed on its merits.

Basis A of JI LP.2 suggests that there exists a pattern of reporting incom-plete work items as complete and ends with the conclusion that such actions may reflect large maintenance backlogs and continued financial and licensing pressure." Dere is no foundation for this allegation. Indeed Basis A is not even understandable in part because it depends upon a reference to IR 89 07 and IR 8811 for its context. Those reports were not provided as a part of the record and we have not tracked them down. We could infer from the references to them that the allegation lacks timeliness as readily as we could infer that a pattern exists. Basis A is lacking in founded specificity and is deficient on that ~

account.

Basis B of JI LP 2 comes straight from the AIT Report and is a part of a larger discussion of steam dump valves. Report at 13 15 (Attach. $ to NRC Staff Response). The team reviewed the history of the steam dump valve MS PV.301I which failed during the natural circulation test. De AIT noted that the valve was I

not ready to support the natural circulation test because the work order to test the i

valve was still open, but that confirmation of the availability of the steam dump l

system had, nevertheless, been signed-off. Post event testing of all the steam dump valves revealed that seven of the twelve valves showed either binding, y

K G s f4,O D (

scored stems, loose linkage, or tight linkage, The history (apparently including the post. event testing) indicated to the AIT that there is a valve niaintenance or E1 design problem. Id. at 14.

Dese fmdings and conclusions form the foundation for Basis B, Second i

Motion, Exh.1, at 17. De AIT Report is the first time the essence of the l

1*

steam dump valve failure episode, its significance, and its resolution have been reported. To the extent that Basis B and Basis C depend upon the AIT Report, j

9999990*

295 i

i

1 the contention is timely. We note, however, that Basis C alleges earlier valve failures as reported in IR 89-80 and IR 89-03. Again Basis C cannot be evaluated outside the context of the referenced reports which were not provided. Also, depending upon the earlier episodes alleged in the basis raises questions of

(~)O O.O e timeliness. We hold that Basis B and the portion of Basis C alleging that SOSOSe

"[t]his failure to establish and maintain operable steam dump valves may indicate

{ }OOS a more pervasive deficiency in the testing, verification and maintenance of gggggg salves in general is an adequately pleaded contention and, as noted, is timely.

Accordingly, we evaluate the contention under the standards for reopening a r gggg ggggg g g record pursuant to 10 C.F.R. 6 2.734 and whether the contention addresses a significant safety issue.

m OOOOb As we have been taught by the Appeal Board decision in Callaway, ALAB-60 G@ Oe o 4 740,,upra,18 NRC at 346, in any large and complex undertaking such as the building of a nuclear power plant there will be some construction defects

--""'W tied to some quality assurances lapses. The test, however, is "whether there has been a breakdown in quality assurance procedures of sufficient dimensions to raise legitimate doubt as to overall integrity of the facility and its safety-related structures and components." Applicants need not demonstrate error. free construction, but a demonstration of "a pervasive failure to carry out the quality assurance program, may well stand in the way" of a finding that the plant can and will be operated without endangering the public health and safety, in the context of a motion to reopen the record, any such allegation of a pervasive breakdown in the quality assurance prograr') must exceed the mere basis and specificity requirements of the intervention rule. Intervenors' showing must be tantamount to evidence, as we noted above, citing Shoreham, CL1891, supra,29 NRC at 93 94 Neither the Martin and Eselgroth Affidavit nor the Partlow and Nerses Affidavit expressly addressed the issue of the overall quality assurance program for equipment as alleged by Contention Ji LP 2, That issue was not before them in precisely that form; rather they were speaking to training and operating procedures. However the AIT Inspection Report was before the Staff's affiants.

Mr. Eselgroth led the team.

Low power testing of course is for the purpose of testing equipment, design, and personnel performance. It is not surprising that equipment failures will bc l

found. As noted above (p. 280), Messrs, purtlow and Nerses explained:

As described in Chapter 14 of the FSAR, the low-power test program is part of the l

Seabrook initial test program. The program is cmducted to assure that the facihty performs

'W A e @ O.O

• ' de'isa'd *ad caa be orerated 'a'ely. that plant and emergency operating procedures are adequate, and that plant personnel are knowledgeable and prepared to gerate the facility m Egg a safe manner. As with any test program, h is expected that. in spite of adequate construction 296 SM SSM4 9

f

.-.o..-m.----.

x

f

=

and preoputhnal tesdng and extensive training of personnel, occasional problems may be iden66ed avi personnel errors may occur. 'this is part of the testing process.

Afficavit at 3.

The NRC Staff observed low power testing 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> a day for about 13 days, i

' Mar'.in and Eselgroth Affidavit at A15. Clearly the nuclear and nonnuclear O

L components of the plan were tested, as required by the FSAR, under close scrutiny. No other indications of design or maintenance quality assurance E

I problems were reported. Messrs. Martin and Eselgroth; fully cognizant of the p' y' S D D O O O i

- defects found in the steam dump valves, stuck by their recommendation that the O N OI a

plant had bcen ready for low-power operation, including the Staff's review of me - - - -

maintenance and surveillance procedures. Affidavit at A22 yid A25. Moreover, the Augmented Inspection Team concluded that Applicants'short tmm and long.

term response to the valve failure problem was appropriate. AIT Report at 15.

l Messrs. Minos and Sholly in their second affidavit, discuss the undisputed safety significance of steam dump valves (at 5) and list the Appendix B criteria which they believe were not met with respect to the valves (at 4 5). Their suggestion that the question of whether there is a valve maintenance or design problem should be resolved before operation is resumed is in accord with the Applicants' long term plans for resolving the issue, which, as noted, has been 7

. approved by the Staff. However, Messrs. Minor and Sholly do not make a l

case for Intervenors' allegation that the failure to maintain the valves indicates a pervasive breakdown in Applicants' quality assurance program.

The Board concludes on the evidence before it that Contention 11 LP 2 does rol present a significant safety issue within the standards of 10 C.F.R. 6 2.734(a)(2) and is therefore rejected. Contention JI LP 3 and the additional.

bases for Contention JI LP 1 are also rejected for the pleading failures discussed

'l

above, i

t,

1 OS 1030 4 1

a

'a 4

O i

3920 297 1

ORDER The Intervenors' motions to admit contentions and additional bases or to I

reopen the record and requests for a hearing are denied.

Go o o o et 4OOOeSS THE ATOMIC SAFETY AND O O 099 01 LICENSING BOARD -

0000e96 0000e06 A

N$

TIVE JUDGE 0086606 O90000e' Kenneth A. McCollom ADMINISTRATIVE JUDGE Ivan W. Smith, Chairman -

l ADMINISTRATIVE LAW JUDGE Bethesda, Maryland October 12,1989 o

""g. gg",-

A 6

1 999:8 A

Wi4 pugs 4

]

2n e

6

Cite as 30 NRC 299 (1989)-

LBP 89 29 i

UNITED STATES OF AMERICA eGOOOg OON 'j NU LEAR REGULATORY COMMISSION DSSO0158 4 OO0006G.

ATOMIC SAFETY AND LICENSING BOARD i

>@@@OJOS U O

Before Administrative Judge-D@ OOOe@ C i

0900604 i

i Peter B. Bloch in the Matter of Docket No. 70-25 (ASLBP No. 89 594 01 ML)

(Special Nuclear Material i

License No. SNM 21).

(Request to Renew +

j for 10 Years)

ROCKWELL INTERNATIONAL CORPORATION (Rocketdyne Division)

October 13,1989 in response to a unilateral, interlocutory order of the Appeal Board, the presiding officer directed the Staff to clarify the status of the hearing file in this Subpart L (10 C.F.R. Part 2, Subpart L) proceeding.

RULES OF PRACTICE: INTERPRETATION OF 10 C.F.R. I 1233(a)

This section contains the technical requirement that the presiding officer may

)

request information only after a Notice of Hearing has been published and the l

hearing file has been created. Staff submittals of extensive information may.

c" not be the full hearing file unless it states that the full hearing file has been

.,-.c O.e-submitted.

4 i

e

RULES OF PRACTICE: TilRESIIOLD STANDARD SUGGESTED FOR SUA SPONTE INTERLOCUTORY ORDER ISSUED llY Tile i

APPEAL llOARD DG@ o.e o e 4 00064 Sua 3Ponte interlocutory orders of the Appeal Board in informal proceedings De90699 sh uld be used even sparingly, requiring at a minimum that a pany must face OOOOOSG scri us irrep rable impact r that there is a ruling that affects the structure of the proceeding in a pervasive or unusual manner. Public Scruce Co. of New O

Ilampshire (Scabrook Station, Units I and 2), ALAB 271,1 NRC 178 (1975).

ONODOO -

-In addition, the Appeal Board should consider the difficulty of acting without NO ON briefs from any pany and the risk that it may impose on unwilling parties the 000 O@O G, need to participate in a question not raised by them.

i RULES OF PRACTICE: 10 C.F.R. PART 2, SUllPART L -

PRESIDING OFFICER SHOULD NOT JUST MERELY CALL llALLS AND STRIKES The Presiding Officer has an affirmative responsibility to obtain a complete record by asking questions and rcquesting information. Such action by the Presiding Officer is encouraged by Subpart L.10 C.F.R. 5 2.1251(d), Statement i

of Considerations,54 Fed. Reg. 8269 (Feb. 28,1989). It also is consistent with j

universally applied principles of administrative law and the precedents of the Nuclear Regulatory Commission. Use of this authority is essential fm a board to fulfill its responsibility to protect public health, safety, and the em imment.

MEMORANDUM AND ORDER i

(Completeness of the Hearing File in Subpart L Proceedings) _

On October 5,1989, the Atomic Safety and Licensing Appeal Board issued an Order (unpublished) in which it strongly stated its unilateral conclusion - made sua sponte, without any appeal by a party - that the Presiding Officer has im-properly engaged "in a form of judicial activism (i.e., discovery) unprecedented in NRC licensing proceedings" and not authorized by the applicable procedural rules (10 C.F.R. Part 2, Subpart L).

6,4 OS O O Of The Appeal Board then directed the Presiding Officer to explain his " author-W0%%

ity for the role he has independently assumed in this proceeding."3 The stated q

3 The Appeal Board's order is of a type that obviously should be used spanngly. It is hhe an intedocutory appeal.

which is brnised even in formal proceedens to instances where a pony is faced wuh a sencus irreparable unpset -

A or by a tuhng that afracts the structure of the proceeduig in a pervasive or unusual manner. PmMc service Co. of Continued.

1 D

300 4

grounds for the Appeal Board's concern were three orders in which the Presiding Officer has asked questions of Rockwell.8 WOOOOO his case was assigned to the Presiding Officer on August 21,1989, and gggg g already has a substantial history, including two filings by the Staff.of record gggggg material that may now constitute the " hearing file" required by the regulations.

ggggggg Dere has been a limited appearance session in California on the evening of-O OOOO O@O D

O@

September 28,1989, and a preliminary hearing conference on the following day, Parties have been admitted, and a schedule for the case has been promulgated.

NOOOOM LBP 89-27, 30 '

'.C 265 (1989). Three orders have been issued requesting 4OOOOO4*

information fron..ockweli.2 The actions of the Presiding Officer have been taken in order to expedite this proceeding pursuant to Commission policy. Statement of Policy on Conduct of Licensing Proceedings, CL1818,13 NRC 452 (1981). The Commission says, I

at 453 of its Statement, that in the final analysis, the actions, consistent with airlicabic rules, which may be taken to conduct an cHicient hearing arc limited primarily by the good sense judgment, and managerial skills or a presidmg board which is dedicated to sccing that the prtxess mtwcs along at an espeditious pace, consistent witti the demands of fairness.

As soon as the case was assigned, the Presiding Officer determined that.

people who had requested to become parties (requesters) were required, to j

gain party status, to show that they had concerns that were germane to the l

Application, 10 C.F.R. 6 2.1205(g). It was obvious from the filings of the

{

requesters that they would need a copy of the rules of procedure (Subpart L) and of the Application, if they were to have a fair chance to comply with the e

I requirements in the regulations. Hence, the Presiding Officer: (1) requested that the Staff serve the Application and related materials on the parties and on himself;* (2) had Subpart L served on the requesters; and (3) set a deadline-i by which the parties were expected to comply with the rules.' Memorandum, August 31,1989 (unpublished).

m New flampshire (seabrook stauan. Uruta 1 and 2). At.AB.271. I NRC 478 (19"t$). Unilateral acuans, unbke

.h

.jw-uuerlocutory appeals. have the added problem that they are taken without banerst or bners.

hk$$M M

When no pany has raued concerns, a coun or admuustrs6ve body that chooses to act is out on a bmb by iuetr. he consequence or auch appellate intervendon is that the presiding or5cer is sequired to spend subsundal uma m maponse and them is a chance the perues may also have to become involved - even though they did not chouse to raise the issue - thus diverung everyone's suanuan tram the substance or the case.

2 Those orders will be discussed below. The last or those ordens may be found as Attachment A, below.

3 septanber 15,1989. sepumber ll,1989; and october 4.1989.

' A Memorandum or August 31,1989 (unpubbshed), annminced that the Apptrane had been sent to thh

- e --

7 requesters. Together with the Appbcanon. the sufr also riled slated matenals, consisurts or an EPA spon.

,hW.,

"sanu susana Field Laboratory sue Repon." July 31.1989. De attachmente to the Appbcauon included annual

? p

.f -

,.,iL,y revsews or radiological cetruts and annual envimrunenul assessnenu or operatims.

DS79 O:9@e?

t 301

While technically the orders requesting information from Applicants may not have been authorized at the time they were issued by 10 C.F.R. i1233(a),8 the OGOOe:OOI p ssible err r appears t be largely a technical one and has not harmed any ggggg party.' De Staff had served documents that constitute the bulk of the hearing gggg file before any questions were asked. The Staff has supplemented our record NOOOOOO with additional documents that may well complete that file?

lt is clear that the Presiding Officer did not engage in discovery, which is a SOO N

process authorized by the Federal Rules of Civil Procedure and other rules of T O OS O O I procedure for use by panies.'

MOOOD What has been done is to exercise authority to ask questions designed to

%OOODD0 ensure a complete record. De use of such authority is proper in proceedings m ~ -- ~

of this agency and it is not unusual, as is discussed below, it also appeari, to be appropriate under Subpart L, which prohibits " discovery" by "a party or

... participant" but which does not contain any prohibition of " discovery" by a presiding officer.10 C.F.R. 6 2.1231(d). Rather, Subpart L increases the burden on the presiding officer to ensure that the record is complete.

Nor has the Presiding Officer independer.tly assumed any authority. He was duly appointed and has exercised that authority conscientiously. Even if he committed a technical error - which probably will have no effect because it relates solely to the timing of actions taken in the proceeding - that does not mean that he independently assumed any authority. The power to judge necessarily entails the pour to err.

The Presiding Officer is obligated "not just to call balls and strikes"(a phrase i

whose legal background will be discussed below) but to raise questions that would help to complete the record so that a fair, informed, and efficient decision could be made.

I Such questions, if needed to complete the record, clearly seem to be contem-plated by section 2.1233(a), which provides:

%c presiding of6cer also may, on AL: or Aer initiatiw/ submit written questions to the parties to be answered in writing. under oath or afGrmation, and supported by amropriate documentary data, informational material, or other wrinen evidence. [ Emphasis supplied.1 l

.==

gggMDDJ 5

Tlus secum aquires est a nouce er haanng be pubbahed and the haanns Ale created before quesuans are Mq

.*n,.d.

O lhe last order. which apparandy insgered Gus acnon by the Appeal Bostd. was tasued a/ser me Presidmg I

of6cer had issued a federal Regirser Nauce but before that nouce was actuaUy pubbshed in the Federst Returer.

7 see Lauer from taland C. Rouse. dated october s. transmitung ' additional background informauen."

'81ack's Law Dscnonary 49 (5ih ed.1979).

'The presidmg ofricer's tmustive is, of course hrruted by 10 C F.R. (11251(d), wh:ch requires him to prornpt!y advise the Comrmssion if he is independendy esarruning assues r.at put in conuoversy by the parues.

~

l OOOO 302

-l

L Of course, this authority is made contingent on questions being asked after the y

NRC Staff has made the hearing file available.

A ODODO l At the present time, after reflecting on the nature of the requirement for a gg

" hearing file," the Presiding Officer needs clarification from the Staff about ggggg q whether the materials that have to this time bocn filed constitute the hearing gg'gggg file.'l This will inform everyone about whether all available data are already O

in the file or whether there are other installments to come. Conceivably, this O D O O.O O may provide the Presiding Officer with a basis for amending or withdrawing 000 $

questions that have alfcady been asked.

99

@OO-In asking questions, the PresidinS Officer does not know whether the answers will favor Ro: kwell or the Intervenors. In fact, he has no concern over who may be favored. His purpose is to complete the record.52

]

If Rockwell Iccls that questions that have been asked are not required for a l'i complete record, or if it prefers to delay responding to the questions until a later stage of the proceeding, it already has been issued a general invitation to file motions for reconsideration 82 Rockwell, which has experience in NRC litigation, appears to be well represented in this proceeding, its principal representative is Mr. R.T.1,ancet of its licensing department. Its principal spokesperson at the preliminary hearing and limited appearance session was Dr. Joseph Mills of its nuclear safeguards review panel. It also enjoys the legal advice of Mr. Richard Seamans, counsel i

for Rockwell, who was present at the preliminary hearing. 'IY 255.

)

l i

10The statement of Corwideriums, s4 Fed. Reg. 8269 (Feb. 28.1969) places a heavy responsibihty an the presidmg of6cer to contml the esploranan of issues raised by the perbes. cas poruan of the statement (id) pndubas the heanng othcer fran requesting oral presentanans before me wnuen 61 mas of the parues are received.

"Ihere would be no discovery. only if the psesidmg of5cer found that the wnuen presentanons were uuuf5cient to create an adequate record would orel presarmanens be permined." (Emphasis added.1

~i llowever, the statement of Considersnans goes on to sms that:

"Tasenually, the informal heanng is deigned to shcit informanan and ruolve issues pnmarily Areagh infiery by As prasmieng effker rs$er than through an adversarial cefrontauan between te parues. As a canaequence, he presidmg ofncer has bmad discreuan in controlhng the manner in which the issues 4

raised by the parues are to be esplared." (Emphants added.}

When the statement of Consideranons is viewed alonsude the segulanons themselves. it is clear that the presideg

~",

MMMMh of6cer has bmad authonty to ask wntien quesnans.10 C.F.R. 4 2.1233(a).

'g If there are any matsnals or snadies ut the possessim of the staff solanng to the way in wtuch pollunan on the 33 sne was depneited there, and Rockwell's responsibihty or lack of vesponsibthty for that pollunan, then the staff I

should include auch matenals un the haannt file.

U g

When a haanns is accompamed by estensive pubbcity esse is pressure on the Appheant to answer quesuons rather than to assert its nght not to answer them. This makes the Presuhng of5cer's discreuanary decision about I

a l

whether or not to ask quesuons a particularly imponant one. Hence, the Presadmg officer has been parncularly careful to reRect on quesuons before they are asked and to consult in advance with the technical adviser, who is an espenenced phynetst and a seasoned veteran of NRC proceedmas.

S U such a vnouan may be nled ws.hin 10 days of me service an Rockwou of ibis Memorardum and order.

303

a 1.

THE ROLE OF PRESIDING OFFICERS IN O Og D

ASKING QUESTIONS-I@BOODO O Rc purpose of this section of this memorandum is to address the Appeal e00OO9Q Board's assertion that the Presiding Officer's." activism" is " unprecedented in 6 9j NRC licensing proceedings "

S00099O A'

Court Precedent 9900900

. It is a well established principle of administradvc law, with respect to the Nuclear Regulatory Commission and all other agencies, that an agency is a representative of the public interest and cannot "act as an umpire blandly calling balls and strikes for adversaries appearing before it...." Scenic //udron Preservation Conference v. Federal Power Commission,354 F.2d 608,620 (2d Cir.1%5).

De principle applies to bankruptcy proceedings, where a referec in bank-ruptcy is expected to apply his expertise and is not simply an umpire calling balls and strikes. lie has an affirmative responsibility for the proper handimg of the estate..

j lt, of course, applies to the Federal Power Commission. Scenic //udson, supra; Isbrandisen Co. v. United States,96 F. Supp. 883, 892 (S.D.N.Y.1951), ag'd by.

equally divided court sub nom. AIS). Ludwig Mowinckels Redert v.'isbrandtsen

{

Co., 342 U.S. 950, 72 S. Ct. 623, % L. Ed. 706 (1952). It applies to the U.S. Nuclcar Regulatory Commission. Calvert Cliffs Coordinating Committee, Inc. v. AEC,449 F.2d i109,1119 p.21 (C.A.D.C.1971)

,i Before discussing the applicabic NRC cases, it is appropriate to discuss some.

of the language in Scenic fludson, supra that explains the court's adoption of the " balls and strikes" principic:

i

'the thread running through this case has been that the applicant is entitled to a hcense upon' making a prima facie case. My own personal regulatory philosophy compels me to reject this.

I avproach. This Commission of us own motion shouldseea to insure that afssilandsiequate record U presented to u. A regulatory commission can insure continuing confidence in its

' ggggg.gg decisions only when it has used its staff and hs own expershe in a manner not possible for i

the uninformed and poorly financed public. With our intimate knowledge of other systems Btr 34 and to a lesser catent of their plans,it should he possible to resolve all doubts as to alternative M

I s

The coun appears to entend the Comnussion's responsibihty to public safety uusreau es weu as to hIpA.

Computenaed research (usuis Westlaw) into federal court reports indacated that the phrase "bsus and stnkes" occurs ut 21 relevant modern cases, none or which cast any doubt on the viabihty or the scenic //udron pnncipal

.I e

i 304

/

scuces. his may have been done but the record doesn't speak. tat it do so. (Emphasis supplied.1

]ggg

, 4 '

g.

• • e For the iedministrative processl to be successful in a particular Geld, it is impwrative that

.t-W t '....M' controversies be decided as ' rightly' as possible, independently of the formal record the M{

panics themselves produce. he ultimate test of the administrative (process) is the policy.

j*

that it formulates.- not the fairness as between the parties of the disposition of a controversy on a record of their own making.13 g

D-4 The pohey requinng the NRC to protect the public health and safety and the l

ODO Y

environment in its proceedings is far stronger than any of the other contexts in -

which that idea has been applied. All that is necessary is to be present at hearings

~~~

and limited appearance statements and to observe the difficulty that the most capable, best informed of the inexperienced intervenors endure, Nuclear energy is a difficult subject. In addition, studying the regulations is also difficult, even for somewhat experienced judges; it is especially difficult for the uninitiated.

Surely all the arguments that other agencies should not merely call balls and strikes are dwarfed by the need of the NRC not to just call balls and strikes in any l

proceeding affecting public health, safety, f.nd the environment Consequently, Congress took the unique step of adding independent expertise to the Atomic Safety and Licensing Boards, thus assuring a mix of technical background from which knowledgeable questions might be asked and knowledgeable conclusions reached.

B.

NRC Precedents NRC precedent broadly adopts the Scenic fludson rule that a licensing board is not just an arbiter of balls and strikes. Ibr example, in Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB 443, 6 q

NRC 741,75152 (1977), the Appeal Board approved of the Licensing Board's discretionary decision to admit a report into evidence even though no party had made a timely request that it do so. In Pennrylwania Power and Light l

Co. (Susquehanna Steain Electric Station,1; nits 1 and 2), ALAB-641,13 NRC 550, 552 (1981), the Appeal Board refused to hear an interlocutory appeaP' relating to Board questions and stated that it would not have heard an appeal

- i gg even if the Licensing Board had " raised the... issue on its own motion "

15 Citing landis, The Admini.reamie Process 39 (1938).a pre-NEPA authority.

18 At that time, the standard fcr interlocutivy appeal (an matian of a pany) was whether *absers anmediate 5

oppenate review, tat would] threaten a pony with aenous inspenble harm or pervasir:'y affect the basic suuctun of the proceeding"(swgwAanna.13 NRC at 551) and the Appsal Board did not canaider a broadcrung ofissues -

in the proceedmg to consutute such harrrL e

64 i

i 305-

?

e

'1

i

- i

(

k g

In Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),

'00Oeeoe ALAB 772,19 NRC 1193,1248 (1984), the Appeal Board spoke approv.

j g

ingly of a Licensing Board that " required licensee to produce additional evi-gg g gg dence....""

seeeceoi N OS II. RESPONSIBILITY OF THE PRESIDING OFFICER 900006@l-GOeMSS

'Ihe decision about whether or not to ask questions or to wait to see whether DO O'OOOO I the parties will develop the record adequately for themselves is rarely an easy decision due to the complex nature of the extended proceedings that licensing judges preside over. To act too soon might prejudice the rights of the parties to pursue their own case. To wait too long, especially when it appears that certain j-gaps in the record might not be filled by the parties independently, might be to I

invite lengthy delay that can be avoided if the presiding officer's concerns are voiced earlier.

i There have been positive results when a p;esiding officer injected himself into operating license and license amendment proceedings when his judgment and the judgment of other board members called for it. For example, in the course of an evidentiary hearing in the Comanche Peak operating license case, the

+

Board took an extensive role in asking questions for Citizens for Sound Energy (CASE), which seemed unable to conduct efficient and effective examinations j

of witnesses.

Prior to the Board questioning in Comanche Peak, no one - not the Staff or the Applicants or the Board - understood the allegations of serious engineering defects being made by Jack Doyle, a career engineer who had once worked for

. Texas Utilities. As a result of the questioning, extensive safety deficiencies were identitied, confirmed by the Staff and, ultimately, resolved by the Applicants.

j Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units l ~

j and 2), LBP-83 81,18 NRC 1410 (1983).

The Board asked many written questions in Comanche Peak,- including:

LBP-85-32, 22 NRC 434 (1985) (extensive questions about the proposed comprehensive review of the design and construction of the plan 0; LBP 46, 20 NRC 1403 (1984) (Board expresses concern that Applicants' answer to a previous question about welding repairs was not responsive); LBP-85 37, p~

- C

..w.

DC!C04 3

Us,e also Teams thilities Caatratang Co. (Comanche Pod steam Electric sinuon, Units I and 2), LEP 83 69, 18 NRC 1084,1086 (1983) (grannng a mouan for seemanderuuon and staung. *1w)s must assure that relevant and matenal evidence beanns on the adrruned cantendon is sufraciently wou developed so that we can prepare a reasmed decision insolvmg the issues befois us"); ClevelandElecric tiesimissang Co. (Perry Nuclear Power Plant. Umts 1 and 2), t.BP-53-3,17 NRC s9 0983) (the Board independently dernes a mouon for summary M_

disposinon even though intervenors failed to respond); Daae Pawer Co. (Catawba Nuclear sonnen, Units I and 2), LEP 7s 34,' 1 NRC 626,6s3 (1975) ("a board unust, in order to carry out its pubbe interest obhganons. ensure Unst the peruas place on Lhe record sufrictent facts on wtuch to base a reasoned conclusion").

306 e

--v.,

22 NRC 601 (1985) (paint quality); LBP 86-36A,24 NRC 575 (1986) (quality assurance and trending); and LBP 83-43,18 NRC 122,150-53 (1983) (questions QGO;OAO' asked by the Board prior to the appointment of the Board chair).

It should be noted that the Comanche Peak case was resolved through a voluntary settlement among the parties, thus saving enormous expenditures on further litigation and possible attendant delay, it appears probable that the Board questions contributed to increased understanding among the parties which helped to establish the conditions for settlement, g

in Consumers Power Co. (Big Rock Point Plant), LBP-82 97,16 NRC 1439 A~gggggq (1984), the Licensing Board reached conclusions advelse to Consumers Power as a result of extensive questions that it asked concerning fuel pool criticality.

Although the Licensing Board was correctly reversed, on legal grounds that had not been argued before it, the Appeal Board reviewed the extensive-questioning conducted by the Licensing Board without a hint of disapproval thatl the questioning had occurred.14., ALAB 725,17 NRC 562,564 66 (1983).

In one aspect of the Point Beach tube-sleeving amendment case, an intervenor was declared in default when it refused to show up for a scheduled prehearingL conference and refused to answer the Board's questions about the validity of its excuse. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP 82-108,16 NRC 1811 (1982). At least two sets of substantive questions also were asked:

id., LBP-81 39,14 NRC 819 (1981); id., LBP 81-44,14 NRC 850 (1981).

In the Point Beach case, the Board appears to have effected great speed through its questioning. The Federal Register notice of the appointment of the Board occurred on August 25, 1981, and an authorization of a license amendment to conduct certain tube sleeving experiments was published on November 5,1981, Point Beach. LBP-8155,14 NRC 1017,1019 (1981). The :

questions asked were very helpful in reaching a rapid and proper determination.

in this case.88 III. CONCLUSION '

The Staff will be asked to clarify the status of the hearing file, including whether or not it is currently complete and, if not, when it may be made 9

complete.

WA4GC O 4

is Wucearia Eleesric Power Co. (Point Beach Nuclear Plant. Unit 1), At.AB-696, !6 NRC 1245.1262 64 (19s2),

closely reviewed Board procedures despite the rect that aversible error had not occurred. In the course or that avww, the Board was never enucized far asking quesuans of tu own. It was advbad that a *show cause"

]

procedure was not necessary and that the Board should not purposely deviate froen Cornmission procedural mies, which conuin enough flexibihty in diemselves to perma expediuan.

h$

307 i

e 1

I t

l IV. ORDER l

4 For all the foregoing reasons and based on consideration of the entire record MbbOiO O O k in this matter, it is, this 13th day of October 1989, ORDERED:

M A.

The Staff of the Nuclear Regulatory Commission shall clarify the status.

ND of the hearing file in this case within 10 days of receipt of this Order, 9 N OO6 B.

The Staff of the Nuclear Regulatory Commission shall include in the

,NM {

hearing file any materials or studies in its possession (that are not already in the l 6 : GIG l

hearing file) that relate to the way in which pollution at the Santa Susana facility 16Mg (-

was deposited there and to Rockwell's responsibility or lack of responsibility

.g g@g gg for that pollution.

~~ '

Presiding Officer, l

Peter B Bloch ADMINISTRATIVE JUDGE Bethesda, Maryland l

l l

3. :..

BIS 20OJ

.C 1

308 t

e O

._u.......,.....

ATTACHMENT A 3 GOO;O O O 4 UNITED STATES OF AMERICA -

mg g NUCLEAR REGULATORY COMMISSION ggg g emoonea h $(*

ATOMIC SAFETY AND LICENSING BOARD suoweeaOI Before Adminletrative Judge:

oeoceo q -

Peter 8. Bloch

=

=

In the Matter of

. Docket No. 70 25 '

(ASL8P No. 90 504 01 ML)

-1 (Speelal Nuclear Materlet j

Lloonee No. SNM 21) i (Request to Renew for 10 Yeare) i ROCKWELL INTERNATIONAL CORPORATION (Rocketdyne Divlelon) i i

MEMORANDUM' AND ORDER (Request for Information)

.e After reviewing the Affidavit of Robert T. Lancet, filed by Applicants on September 27,1989, I have some additional concerns and questions.

I have preliminarily and tentatively reached the following numbered conclu-sions, subject to further consideration should any of the parties submit contrary 4

filings or argument, that:

i

_D O S O!O50:9 -

1.

The following incidents, disclosed by Applicants, have in common that they were contributed to by a material defect or other design error that may 4

have been caused by careless engineering: (a) 9/23/88,~ improper material selection by designer"; (b) 6/20/88, " material incompatibility"; (c) 2/18/86,

" material defect" (appears to have resulted from improper plugging of the O

drain line - not clear the extent to which this is an engineering error);

(d) 9/26/85, " material failure" (not clear whether this resulted from improper i

309 l

9

i I

l f

f I

n D O O O O-engineering or even whether the disposition represented proper engineering -

see the similar incident on 2/18/86); (c) 4/13/84, " incompatible material"; (f)

O 7/1/82, failure of a gasket seal - with prescription for regular inspections but no indication of engineered gasket life or replacement period; (g) 5/22/81 -

(apparently inadvertendy omitted from Thble 1), sodium leak due to intergranular stress corrosion cracking apparently caused by direct contact between mineral

'NO O fiber insulation and the pipe, with,"no sheet metal oven between"; (h) 8/502,'

)S4DWOO(

" design error resulted in fatigue failure of thermowell"(failure of engineer to I

consider properly forces resulting from flow induced vibration); (i) 2/601, cause of incident not clear but solution is to re engineer the system to delete a hot-trap; and (j) 9/28#0, " material failure" (bellows seal valve to be replaced by a

~!

stem freeze seal type valve).

2.

This may represent a pattern of events that should have been trended.3 3.

The reports given may also show patterns with respect to procedure errors and operator errors, possibly due to training, quality assurance deficiencies,'or j

personnel selection here appears to be insufficient information on the forms to know whether any systematie errors of these types exist. There is no indication -

j on the forms that serious attention has been given to trending.

I respectfully request that similar reports (unusual occurrences, NCRs, RDs, environmental nonconformance reports, etc.) for events that occurred during the i

past 20 years, involving releases of radioactive materials, should be filed within 1 month, regardless of whether or not the standards of 10 C.F.R. Il20.105 and 20.106 have been exceeded. Applicants may file other comments on this i-memorandum within I month as well.

Intervenors may desire to litigate a concern derived from my inquiries. To do so, they may file their concern within 28 days or, if it relates to Applicant's -

response to this memorandum, within 15 days of the filing of that response.

l l

l Respectfully ORDERED, l

Peter B. Bloch -

,. w c. u ADMINISTRATIVE JUDGE

.'beeDD4 l

N 1

The Apphcauan is required by to CF.R. t 70.22(n. meludmg rootnois 2 to that section, to comply with 10

~

M Ml C.F.R. Pan 50. Appendia B, paruculady 1 XVI. which requires prompt idenuncauen and corrscuan or condinons adverse to quahty and - for signiricant condiuons - deiermmanon or the cause of the condiuor, and correcuve acuan to preclude repenuan.

1 i

e 310 e

t 4

~.

t Cite as 30 NRC 311 (1989)

LBP 89-30 D GCO;9 0 9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION D66CD'OS CD00004 Q -.

6(

ATOMIC SAFETY AND LICENSING BOARD PANEL C9001ereeO MDOOORSee-Administrative Law Judge:

gg g.gg Morton B. Margulles In the Matter of Docket No. 30-05004 MLA '

(ASLBP No. 90 599-01 ML)

(Byproduct Material License No. 22 08799 02)

NORTHERN STATES POWER COMPANY (Pathfinder Atomie Plant)

October 24,1989' RULES OF PRACTICE: STANDING A comprehensive review is conducted'of the elements that are necessary-to establish standing under 10 C.F.R. Part 2, "Subpart L - Informal Hearing.

Procedures for Adjudications in Materials Licensing Proceedings."

MEMORANDUM AND ORDER (Hearing Request)

On August 24,1989, the Nuclear Regulatory Commission published in the DOS.:O:0!O:61 Federal Register (54 Fed. Reg. 35,267) a notice of opportunity for hearing on the proposed amendment of Byproduct Material License No. 22-08799 02,~

issued to Northern States Power Company (Licensee), which would authorize it to perform final decommissioning of the fuel-handling building and the reactor -

g building of the Pathfinder Atomic Plant,'in Minnehaha County, South Dakota,-

in accordance with the Licensee's decommissioning plan. The notice states that the reactor terminated operation in September 1967. Subsequently, the fuel was 311 I

removed, the reactor was permarendy disabled, and 'the facility was refitted with three package boilers that burn fossil fuel.- The fuel handling and reactor i

$800$ OO l buildings were partially dismantled and decontaminated, placed in a safe-storage

. condition, and isolated from the balance of the plant.

NSO 1 By a joint petition timely filed September 22, 1989, Requestors Citizens -

3'0 0, W g g for Responsible Government, South Dakota Resources Coalition Technical in-6 @.

formation Project, and Catherine Hunt seek a hearing on the proposed amend-is proceeding is governed by 10 C.F.R. Part 2. "Subpart L - Informal ggggggg Hearing Procedures for Material Licensing Adjudications " 10 C.F.R. 651201 1263. On October 11,1989, pursuant to 10 C.F.R. 6 2.1207, I was designated

" ' " " " ~

to rule on the request for a hearing and, if necessary, to serve as the presiding officer to conduct a hearing. In turn, I have appointed, in accordance with 10 C.F.R. I2.1209(j), Administrative Judge Jerry R. Kline from the Atomic Safety and Licensing Board Panel as a special assistant to assist me in taking evidence and preparing a suitable record for review, Judge Kline's background will be-discussed further in this Memorandum.

Northern States Power Company has not filed an answer to Requestors' petition for a hearing. NRC Staff, by letter of October 18, 1989, informed me that it had decided not to participate in this proceeding as a party but that it is willing to assist upon request.

Considering the posture of the proceeding, it would be premature to re-quest Staff's assistance at this time. However, recognizing that the proposed amendment is to permit decommissioning and an NRC environmental impact statement or assessment will become part of the hearing file, a request for Staff participation may be made by me at some future time during the course of the proceeding.

This Memorandum will request additional information from each of the Requestors in order that there be sufficient information available to rule on the request for a hearing.

LEGAL REQUIREMENTS Section 2.1205(g) of 10 C.F.R. provides that in ruling on a request for a Od hearing, the presiding officer shall determine, inter alia, that "the requestor meeis the judicial standards for standing." Although the " Informal Hearing Procedures for Adjudications in Material Licensing Proceedings" have only recently been promulgated, i.e., February 28,1989, the judicial standards for standing have long been in effect Judicial concepts of standing require a showing that (a) the action sought in a proceeding will cause injury in fact and (b) the injury is arguably within the A

312 f

I e

l zone of interests protected by statutes covering the proceeding. Metropolitan-g gg g,g g Edison Co. (Three Mile Island Nuclear Station, Unit 1), CL1-83-25,18 NRC m---w g

327,332 (1983). A petitioner should allege in a Nuclear Regulatory Commission proceeding an injury in fact that is within the zone of interests protected by the 9

g Atomic Energy Act of 1954 or the National Environmental Policy Act of 1%9, IO OI*

as amended. Niagara Mohaw* Power Corp. (Nine Mile Point Nuclear Station, O

Unit 2), LBP 83-45,18 NRC 213,215 (1983).

EDOOOO O Economic interest as a ratepayer does not confer standing in NRC licensing O'MDS9C.

proceedings. Three Mile Island, CLI 83 25, supra,18 NRC at 332 n.4. Those D$QDOO@f economic concerns are more properly raised before state economic regulatory agencies. Public Service Co. of New Hampshire (Seabrook Station, Unit 2),

l CLI 84 6,19 NRC 975, 978 (1984). Economic injury gives standing under the National Environmental Policy Act only if it is environmentally related.

Tennessee Valley Author.ty (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418,1421 (1977). Assertions of broad public interest in (a)-

i regulatory matters, (b) the administrative process, and (c) the development H

of economical energy resources do not establish the particularized interest '

necessary for participation by an individual or group in Nuclear Regulatory adjudicatory process. Three Mile Island, CLI 83 25, supra,18 NRC at 332.

For an organization to have standing, it must show injury in fact to its organizational interests or to the interest of members who have authorized it to act for them. If the organization is depending upon injury to the interests of its members to establish standing, the organization must provide with its petition identification of at least one member who will be injured, a description of the j

nature of that injury, and an authorization for the organization to represent that j

individual in the proceeding. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP 82-43A,15 NRC 1423,1437 (1982).

j Where an organization has no members, its sponsors can be considered equiv-alent to members where they financially support the organization's objectives and have indicated a desire to be represented by the organization. Consolidated Edison Co. ofNew York (Indian Point, Unit 2), LBP-82 25,15 NRC 715, ~134 36 (1982).

An organization cannot meet the interest requirements for standing by acquir-ing a new member who meets the interest requirements, more than 2 months after

~"

the deadline for filing of intervention petitions, without establishing good cause O'6 9 9 9 6 G for the out of time filing. Washington Public Power Supply System (WPPSS d

(

Nuclear Project No. 2), LBP 79 7,9 NRC 330,335 (1979);

i 4

BSD 1

1-1usa esee i

313 4

7._

-.----r--,---

I l

THE REQUESTS FOR A HEARING OOO OOI Having reviewed applicable law, it is apparent that the Requestors have not

=

0 submitted sufficient information to make a determination on their standing to MSS 4 request a hearing.

R 000009G WWBODSS4 A.

Citizens for Responsible Government gg j@M@$ (

Requestor Citizens for Responsible Government describes itself as a nonprofit-09006OO corporation organized under the laws of the State of South Dakota, that is governed by a three member Board of Directors, and has no members.

It, and the three other Requestors all subscribe to the same set of st'.ted interests. They say in substance; j

(1) Requestors and their members are taxpayers with the State of South _

j Dakota. An inadequate or inappropriate decommissioning of the plant will cause state and local taxes to rise, to their detriment.

(2) Requestars and their members reside within and holJ property within -

the area reasonably expected to be impacted by decommissioning.

activities. An inadequate or inappropriate decommissioning will-jeopardize the health and safety of Requestors and their members and will diminish the value of their property.

(3) Requestors and their members are ratepayers within the area serviced j

by Northern States Power Company. An inadequate or inappropriate decommissioning will cause a rise in charges for electricity by the utility and affect Requestors in a detrimental fashion.

(4) Requestors and their members will be affected by the environmental.'

and radiologicalimpacts of the decommissioning. An inadequate or

• I inappropriate decommissioning will degrade the soil, water, and air j

in violation of state and federal laws and regulations.

Citizens for Responsible Government has not provided sufficient information.

I for determining its standing. The purpose of the corporation is unknown. It has no members so that it evidently cannot be proceeding in their behalf. Should it.

1 have financial sponsors that support the organization's objectives and desire to be represented by Citizens for Responsible Government, it can represent them,

u...

To do so, Requestor must identify at least one sponsor who will be injured, give

$$$O O 4 a description of the nature of that injury, and provide an authorization for thei j

organization to represent that sponsor in the proceeding.

Whether an organization seeks standing on its own, or in a representational.

capacity, it must specifically answer the question, "What is the injury in fact, within the zone of interests protected by the Atomic Energy Act or the National Environmental Policy Act, upon which Requestor relies?"

l 314

Looking to its four stated interests, I find that, as to (1), its economic interest gggggg as a state and local taxpayer does not provide a basis for standing in this proceeding. It is not within the zone of interests protected by the Atomic Energy g

g Act or the National Environmental Policy Act. Likewise, as to (3), Requestor's gg g

economic interest as a ratepayer is not protected by the Nuclear Regulatory Commission. The proper forums for such interests are state and local agencies.

As to interest (2), residing and holding property within an area expected to be NOMO I impacted by decommissioning activities so as to jeopardize the health and safety -

O0064 O.

of the Requestor, this can provide a satisfactory basis to establish standing.

D@COOOCy The interest as set forth is too general to be legally sufficient. A Requestor acting in its own behalf or in any representative capacity should set forth the nature of the property and its proximity to the plant, as well as for any residence relied upon, and should state more specifically how the health and safety of the '

Requestor is expected to be jeopardized. Citizens for Responsible Government should supplement its request with such information.

As to Requestor's additionally stated interest in (3), of not having the value of its property diminished, this injury cannot be considered, unless it can be shown that economic injury is protected against by the Atomic Energy Act or the National Environmental Policy Act.

As to stated interest (4), concerning environmental and radiological impacts of the decommitsioning that will degrade the soil, water, and air in violation of federal laws and regulations, again it is too general to be legally sufficient.

Information should be furnished to establish the locale of the soil, water, and air that is the subject of the concern, the relationship of the organization to it, and a statement as to the nature of the environmental and radiological impacts that are expected to cause the alleged degradation.

Requestors further stated interest in (4), for prohibiting violations of state laws and regulations, would bcst be handled by the appropriate state bodies, 11, South Dakota Resources Coalition The organization is described as a nonprofit, South Dakota Corporation having 120 citizen members and 10 member groups, it subscribes to the same interests that were previously set forth. The same rulings on interest made as 9

to Citizens for Responsible Government are equally applicable to South Dakota

6. W A S C O O (

Resources Coalition. Similar omissions or information, as previously discussed.

OO exist as to this Requestor and should be furnished so that a ruling can be made 4

as to its standing.

Because South Dakota Resources Coalition has members, it can representa-

@0 tionally participate for the interest of members who have authorized it to act for them. in so doing the organization must provide with its petition identification of at least one member who will be injured, a description of the nature of that D S O O O @ C' 315

s t

injury and an authorization for the organization to represent that member in the sG~OO @@ O k P' '**di"8-lt is noted from the signatures on the petition that Catherine Hunt is president OnawM9 or South Dakota Resources Coaiition. She also seeks individuai participation O

status on the basis that she resides in Garretson, South Dakota, within 20 miles O@eOSQ of the Pathfinder Plant, that she owns land and property that would be affected by the deco missioning and travels a road located within a few hundred feet '

N OSS4 South Dakota Resources Coalition may base its standing on representing 0900e0o Catherine Hunt. it being assumed from her office in the organization that she is L l

a member and has authorized the corporation to act for her, However, she must

-.-..m.

describe her alleged injury in greater detail than she has.

The proximity of a person's home or property can be relevant to standing depending on the radiological materials and the potential hazard involved.'There -

must be sufficient information provided to determine that there is a possibility of injury.

A presumption of standing may exist if one is frequently within a few h'undred -'

i feet of a site. Catherine Hunt should supplement the information she provided l

by describing the nature of her travel near the plant, including its frequency, C.

Catherine Hunt Catherine Hunt can have her interest protected by participating as an indi-I vidual or by having South Dakota Resources Coalition represent her interest. It -

would be detrimental to the process to have a person appear in the proceeding individually and to be represented by an organization. Assuming Catherine Hunt has provided all the necessary information to establish standing individually or for representation by the organization, she should elect whether to appear indi-vidually or to be represented by the organization, if she wishes to proceed with both rep?csentations, she should inform the presiding officer of the reasons for the need to do so. This should be done when the other additional information requested is filed.

- =

D.

TechnicalInformation Project 90000OO Technical Information Project is a nonprofit, South Dakota corporation E4 governed by a ten member Board of Directors and has nine member groups.

i Like the other organizations, its purpose is unknown. "Ihat information should be :

furnished along with the type of information requested of the other organizations.

In that its stated interests are identical to the others, the same ruling on interest is made as to Technical Information Project.

9440994 316 f

O e

It should be pointed out that an organization acting in a representational

.g ggggg capacity for its standing does so based on the interest of its members. In that Technical Information Project only has member groups, its acting in a.

g representational capacity only extends to its member groups and not to the O

l e in orm tion e u sted above of the Requestors shall be filed (mailed) by November 17,1989. Without this information, it is premature to determine IONMOIl whether Requestors' specified areas of concern are germane to the subject matter M

of this proceeding.

NOMf.

.:.~

1 Requestors have requested that, if a hearing is granted, it be held in Sioux Falls, South Dakota. It should be pointed out that under the rules, the granting of a request for a hearing is not synonymous with the granting of an oral hearing.

e Section 2.1233 of 10 C.F.R. provides that the hearing process will commence-with written presentations. Section 2.1235 allows for oral presentations upon a determination that it is necessary to create an adequate record for decision or in the discretion of the presiding officer. It is the Commission's practice to hold -

oral hearings in the area of the plant site. Should an oral hearing be held, it will be held in Sioux Falls, Minnehaha County, South Dakota.

Requestors suggest that any hearing date regarding this matter av ait com.

~

pletion of all necessary documentation, more particularly the Environmental

~

q 1

Assessment. The suggestion is consistent with the procedures set forth in the.

regulations, which will be followed. Section 2.131 of 10 C.F.R provides for i

the filing of the hearing file in the docket within 30 days of the entry of an order granting a hearing. It should " consist of the application and any amend-i ment thereto, any NRC environmental impact statement or assessment relating -

to the application, and any NRC report and any correspondence between the applicant and the NRC that is relevant to the application." Section 2.1233 of 10 C.F.R. further provides that after the NRC Staff has made the hearing file i

available, the parties and participants shall be afforded the opportunity to submit their written presentations.

summass====~m For future filings in the proceeding, whether of pleadings or statements, the

.amam ggg signatures that appear on the documents should be those of the individuals for g

whom the documents were prepared and not those of individuals signing for the -

g persons.

W De z

i 7

317 e

Ep

APPOINTMENT OF ADMINISTRATIVE JUDGE KLINE I

I have appointed Administrative Judge Jerry R. Kline as a special assistant IOO OO O O l for taking evidence and preparing a suitable record for review because of his O

technical abilities. He is well qualified, being an environmental scientist and

, M,0 6 6 e%g having served as an Administrative Judge for 7 years with the Atomic Safety SOOOOGG and Licensing Board Panel.

N Sj in an attached statement Judge Kline calls attention to certain facts that relate M S@@U to a family connection with the Licensec, which he believes do not disqualify IMNS (

him from participation.

090000o Judge Kline's participation in this proceeding has been held in abeyance pending (1) a determination of who the parties to the proceeding will be and-(2) a review is made of any objections from the parties as to his participation in the case. Following a determination of who the parties to the proceeding --

4 will be, they will be given 10 days within which to file any objection to his I

participation.

It is so ORDERED.

Morton B. Margulies, Presiding Officer ADMINISTRATIVE LAW JUDGE Bethesdt, Maryland October 24,1989 STATEMENT OF JUDGE KLINE Judge Kline advises of the following facts that might have a bearing in his participation in this case as special advises to Judge Margulies.

j 4

(1) My father, Frederick A. Kline (deceased), was employed by Northern States Power Company in Minneapolis, Minnesota, from approxi-mately 1931 to approximately 1970.

1 (2) My father drew a retirement pension from the company from approx-imately 1970 until his death in 1980.

i (3) My mother now receives a monetary pension from the company.

D M 5 b>O 6 (4) My mother lives in Minneapolis, Minnesota, and is not a member of.

E4 my immediate household which is located in Silver Spring, Maryland, (5) I am not a fiduciary on my mother's behalf.

l MS%%4 l

318 I

8 i

. __ _~.

.. ~.. - -

.l t

(6) My mother has no financial interest in the subject matter of this proceeding or any other interest that could be affected by the outcome 4

'O G O e 4 O.

of the proceeding.

4 I conclude that none of the foregoing facts require me to disqualify myself-G from this case under the standards of 28 U.S.C. 6455(b). The foregoing RMg information is disclosed to the parties so that they may have the opportunity to '

.i object to my participation in this case under the standards of 28 U.S.C. 6455(a) ggggg g g which requires a judge to disqualify himself if his impartiality might reasonably q

g gggg be questioned.

10006:0e 4 -

M

' Jerry R. Kline ADMINISTRATIVE JUDGE k

o l'

l l

4

\\

I G aa A.--

ll*fy w g(WC;?f57&

'A3-

~ j q

6 j-J

-s

..;,~.

n

.... ~wy 319 l

I:

3 f

m

.L.

.,L-...-,....-.

l Cite as 30 NRC 320 (1989)-

LBP-89 31 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION gQOOggg l

S MMM

-i IOOOOOD 1

ATOMIC SAFETY AND UCENSING BOARD PANEL-9000064 DdOOOcee4 Before Administrative Judge:

s 9OOO69G peoceee t 990OOOG Cheries sechhooter w. _.. m - -M in the Matter of Docket No. 70 36 MLA :

(ASLBP No. 89 593-01 MLA)

(Speelal Nuclear Materials License No. SNM 33) -

COMBUSTION ENGINEERING,INC.

(Hematite Fuel Fabriestion Feellity)--

October 27,1989 i

i ne Presiding Officer in a materials !! cense proceeding approves a stipulation between the Applicant and two Intervenors, grants the withdrawal 'of those Intervenors subject to the terms of the stipulation, dismisses a third Intervenor, grants the requested withdrawal of a petitioner for intervention, and terminates -

the proceeding.

PREHEARING~ CONFERENCE ORDER (Settlement Agreement and Termination of Proceeding).

His proceeding involves a proposed amendment to the materials license of Combustion Engineering, Inc. (Applicant),'to authorize the Applicant to operate new pellet production lines at its facility in Hematite, Missourt The undersigned -

gg}

has been designated Presiding _ Officer' Parties to the proceeding, which is being conducted under 10 C.F.R. Part 2, Subpart L, the Commission's Informal Hearing Procedures for Adjudications in Materials Licensing Proceedings,'are 3(

• 54 Fed. Reg. 31,749 (Augfi,1989).

ggg 320

~Y

the Applicant and three Intervenors: State Senator Jeremiah W. (Jay) Nixon, Ms. Martha T, Dodson, and Ms. Karen Sisk 2 The Coalition for the Environment O G o o e o e, had also sought admission to the proceeding; ruling on its petition had been deferTed.8 g g gg gggggg On October 25,1989, the Presiding Officer conducted a prehearing confer-gggggg ence in Hillsboro, Missouri.* Participating parties at the conference were the Applicant, Senator Nixon, and Ms. Dodson At the conference, the participat.

b O.

ing parties agreed to a settlement designed to terminate the proceeding, subject COO 0994 to specified conditions. De text of the agreement is set forth as an Appendix 000eeee to tnis order,.

OOOOO O 4

• in tBr.89 25, supra, I had directed the Intervenors and petitioner to file statements of proposed issues that they wished to litigate, Senator Nixon and Ms. Dodson filed statements which together included nine issues. By letter dated October 19,1989, the Coalition stated that it was withdrawing its intervention petition. Ms. Sisk neither filed a statement of proposed issues not appeared at the prehearing conference.

In LBP 89-25, sypra, I urged the patties to auempt to senic the outstanding issues, I suggested the prehearing conference r,t an appropriate medium for conferring on settlement. %c agreement presented to me at the conference represents a fruitful outcome of this effort. ' %c participating parties each agreed that, subject to my approval of the stipulation, the proceeding should (l

be terminated, Tr. 54 (Applicant); 'n. 53 (Sen. Nixon); 'n. 54 (Ms. Dodson),

As I stated at the conference,'I am accepting the stipulation (Tr. 48-49, 1

54). Its terms are not inconsistent with NRC regulations and represent a fair settlement for the parties. As I also announced,'I am accepting the withdrawal of the Coalition for the Environment and am dismissing the petition of Ms Sisk for failure to file a statement of issues or to appear at the conference (TY. 49, 54).*

2 By letter dated August 3,1989, the NRC staff, as permined by 10 CF.R. 5 2.1213, dachned to participate in to proceadmg he staff responded sausfactorily to consin quesuons that I posed to it.

)

3 Ruhnss on vancus intervention peuuuns appear in Memorandum and order (Requesta for a lisanng),12P 89-23,30 NRC 140 (1989), and in Memorandum and order (Addiuons!Intervenuon Pouuans,Isaues, and schedules),

t.BP-89 25,30 NRC 187 (1989).

'on me pnar eveung, october 24,1989, the Presi&ng of6cer heard bnmed appearance statemems from manbers of the pubbe, as authonzed by 10 CF.R. 5 2.12tl(a). The ennference and hmund appearance session were each announced in LSP-89 25, supre nose 3. Notice of te conference and hnnied appearsace session, dated september De-@O O

26. ' - ' r"6h d = 5' ' d *** 'o 5 <o=' 2 i"')-

SThe Appenas tonsists of a retyped versien of the ensmal, which included hand-wnaan changes to a typewntten docurnent. Copies of the ongmal are bound into the tronacart, followmg $s last page of each session (ff. Tr. s7 and 55). Petes of the october 25. 1989 transenpt wm untially numbered 118 but have been renurnbered

(

ss Tr 38-55, followmg consecuuvely the numbers of the october 24, 1989 session. has order refers to the renumbered transcnpt pages.

'ne Appheant advised that it had unsuccessfully suempted to contact Ms sisk concernes issues that she wished to raise (Tr. 41). I previsasly had ascertamed by islephone that es date for the conferwice was converuent for (Conanued) -

e, t

54 4 6:0 6 4 321 1

6 6

4

, I 9

Finally, the questions that I posed to the Applicant and Staff in LBP 89 25, concerning criticality standards inherent in certain of the concerns expressed by the initial intervention petitions, were satisfactorily answered. During the limited appearance session,1 asked for a report at the prehearing conference concerning DDOO4Oe the Applicant's plans for conforming to the Commission's regulations on offsite MMS (

emergency planning, which go into effect next year but, to some extent, were '

D M S,4 e e inherent in the relief sought by certain of the Intervenors' issues (Tr.19). After

?

~ S'OOOGG 4 receiving the proposed stipulation, I made no further inquiry on this question, M OSQ inasmuch as the terms of the stipulated agreement appear to respond to the

gtOOO g g (

Intervenors' concerns in this regard.

Mggggg Accordingly, on the basis of the foregoing, it is, this 27th day of October -

(989. ORDERED:

1 SC)O O O O 4 The stipulation of Senator Jeremiah W. (Jay) Nixon, Ms. Martha T. Dod-4 1.

son, and the Applicant, as set forth in the Appendix to this Order, is approved.

~ ~ ~ " ' ' ' "

2.

The withdrawal of the intervention petitions of Senator Jeremiah W. (Jay)

Nixon and Ms. Martha T. Dodson is approved, subject to the terms of the above-

. t referenced stipulation.

3. The requested withdrawal of the petition of the Coalition for the Envi.

ronment is granted.

4.

The intervention petition of Ms. Karen Sisk is dismissed for failure of Ms. Sisk to have filed a statement of issues or to have participated at the l

prehearing conference.

5. This proceeding is terminated.

6.

Pursuant to 10 C.F.R. 9 2.1251, this Order is effective immediately and

[

will constitute the fmal action of the Commission thirty (30) days after the date.

of its issuance urless an appeal is taken in accordance with 10 C.F.R. 0 2.1253.

As set forth in 10 C.F.R. 55 2.1253 and 2.762, any party may file an appeal from this Order within 10 days of service hereof. Appeals are to be filed with the l

Atomic Safety and Licensing Appeal Board and must conform to the standards set forth in 10 C.F.R. 5 2 ~162.

, Charles Bechhoefer, Presiding Officer ADMINISTRATIVE JUDGE Bethesda, Maryland M ~i October 27,1989 1

!3

=o (

4 g-

- j i

Ms. sisk (as well as for the other parucipants). %)en Ms. s6sk fued no statement of issues. I agam sought to.

contact Ms. sisk to ascertam her conumang interest in the proceedmg but was unable to reach her.

i 1

d ii

.v,

APPENDIX OOO040e Joint Stipulation Amt,ng Combustion Engineering, Inc.,

Sen. Jeremiah W. (Jay) Nixon, and Mrs. Martha Dodson ES' O\\.

1.

The amendmem does not authorize an increase in the limitations on

. g(p eV-1,4 quantities of radioactive material authorized on site.

ge'

'll 2.

The amendment will not authorize an increase in quantities of uranium

1. ca gQ M g(,

product transported to and from the site by Combustion Engineering.

NOOOOO i 3.

Combustion Engineering s intention is to remove low-levei radioactive waste produced by the pelletizing operations under the amendment from the site for disposal at an approved offsite facility, as reasonably available. Except for high efficiency filters (used to remove uranium from exhaust air), Combustion Engineering does not anticipate any significant increases in the quantity of low-level radioactive waste from this amendment.

4.

On or before July 27,1990, Combustion Engineering will comply with the NRC's new regulations on funding decommissioning (10 C.F.R.170.25).

Rese regulations provide greater independent assurance of the availability of funds for decommissioning than under the NRC's practices in 1979.

5.

Upon approval by the NRC, Combustion Engineering will provide an additional remote sampling site. In the unlikely event of releases of radioactive material in excess of license " action levels," Combustion Engineering will perform radiation surveys, including, as appropriate, offsite surveys.

6.

In the event of an offsite release - similar or more severe than that which occurred in August 1989 - Combustion Engineering will notify, as appropriate, offsite response organizations.

7.

Co nbustion Engineering will continue to work with the NRC to meet the NRC's regulatory requirements concerning the evaporation ponds.

His Joint Stipulation will become effective upon the Presiding Officer's approval of the withdrawal of the petitions of Senator Nixon and Mrs. Dodson and the termination of the NRC proceedings.

d n

i

~4 323

• U.$.GOVIBEMtpT PRINTING OFFICE: 1990-262-6'20:00016

- - - - -. _. -.. _.... _..