ML20012E270

Nuclear Regulatory Commission Issuances for September 1989. Pages 167-229

ML20012E270
Person / Time
Issue date:	01/31/1990
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V30-N03, NUREG-750, NUREG-750-V30-N3, NUDOCS 9004030101
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{{#Wiki_filter:--. 1 1' NUREG-0750 Vol. 30. No. 3 - Pages 167-229 .) l R q NUCLEAR REGULATORY. COMMISSION ISSUANCES J September 1989 o This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licent.ing Boards (LBP). the Ad. ministrative Law Judge (ALJ). the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM). The summaries and headnotes preceding the opinions reported herein-are not to be deemed a part of those opinions or have any independent - legal significance. l-l l i l U.S. NUCLEAR REGUL ATORY COM MISSION 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) ~ l F t l 9004030101 900131 PDR NURgg l 75 R PDR g. ~..

.c -63 * ;, '- -l ..i y;_. ; 1 j 4 i i COMMISSIONERS Kemeth M. Carr, ChairmM l 'i l Thomas M. Roberts f-Kometh C. Rogers James R. Curtiss 6 L 4 6 Christine N. Kohl, CtWrman, Atomic Safety and Lacerning Appeal Panel-B. Paul Coner, Chief Administrative Judge, Atomic Safety and ucensing Board Panel t i 4 I i l l' l-f ? w ,e-e. .,-,e ne. -e w -, - -. ~ .r-,- a ,,w- --,+ u-vn.,,-,n-.m

9. t * ?,..g-i 4 -CONTENTS i ( Issuances of the Nuclear Regulatory Commissk.n L JOSEPH J. MACKTAL Docket 01 4-89 008 L MEMORANDUM AND ORDER, CLI 89-18, September 11, 1989... 167 1. PUBLIC SERVICE COMPANY OF.NEW HAMPSHIRE, et al. (Seabrook Station, Units 1 and 2)- Dockets 50-443 OL,50-444 OL' ORDER, CLI 8919, September 15, 1989...................... 171 l Issuance of the Atomic Safety and Licensing' Appeal Board 1 (: FLORIDA POWER & LIGHT COMPANY (St. Lucie Nuclear Power Plant, Unit 1) Docket 50-335 OLA (SFP Expansion) DECISION, ALAB 921, September 20,1989.................... 177 -) Issuances of the Atomic Safety and Licensing Boards l. i COMBUSTION ENGINEERING, INC. l (Hematite Fuel Fabrication Pacility) 1 Docket 70-36 MLA (ASLBP No. 89 593 01 MLA) - 1-(Special Nuclear Materials License No. SNM 33). MEMORANDUM AND ORDER, LBP-89 25, September 25,1989.. 187 l. MAURICE P. ACOSTA, JR. l (Reactor Operator License for San Onofre Nuclear - Generating Station, Units 2 and 3) l -- Docket 55 08347 (ASLBP No. 88 577 02 EA) (Operator License No. 6010-2) (EA 88164)' INITIAL DECISION, LBP-89 26 September 28,1989,.......,,. 195 ill l I i ~ L

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wa g opm. m FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Oenerating Plant. Units 3 and 4) Dockets 50-250. 50 251 DIRECTOR'S DECISION UNDER 10 C.F.R. I 2.206 DD-89-8. September 25.1989............................... 220 U.S. DEPARTMENT OF ENERGY and NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (Gallileo Mission) DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206 DD-89 7. September 25, 1989............................... 215 i 1 !i ~ .I '1 j 'l lV 1 l 1 l 1 4

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Cite as 30 NRC 167 (1989) CLi 8918 UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION COMMISSIONERS: Kenneth M. Carr, Chairman Thomas M. Roberts Kenneth C. Rogers James R. Curtiss in the Matter of Docket No. 01-4 80 008 ' JOSEPH J. MACKTAL September 11,1989 "Ite Commission denics a motion for reconsideration of CLI 89-14, in which the Commission had declined to disqualify itself from deciding any future matters involving the Petitioner. DISQUALIFICATION: STANDARDS RULES OF PRACTICE: DISQUALIFICATION -t l When a party requests the disqualification of an individual member of a l tribunal, such as a Commissioner, that individual must make the initial decision.- However, when a party requests the disqualification of more than one member of a tribunal, those members may issue a joint opinion in response to the motion. DISQUALIFICATION: STANDARDS RULES OF PRACTICE: DISQUALIFICATION Each individual member of the Commission decided the question of his ow1ri qualifications; no member of the Commission ruled on another member's right to participate. In this case, the Commissioners simply saw no reason to issue four separate opinions. 167

k cMn. > y.. n MEMORANDUM AND ORDER 5,';., (. ' I. INTRODUCTION j This matter is before us on a motion by Mr. Joseph J. Macktal, asking : that the Commission reconsider CLI 8914,30 NRC 85 (1989), in which the Commission declined to disqualify itself from deciding any future matters ' involving Mr. Macktal. For the reasons stated herein, we deny the motion for reconsideration. l 4 II. FACTUAL BACKGROUND - The facts are well known to those involved ir. this matter. We have set them out at length in our previous decisions and 6nd no reason to restate them at any length here. See Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI 89-6, 29 NRC 348 (1989); In re Joseph J. Macktal, CLI 89-12, 30 NRC 19 (1989) ("Macktal J"); In re Joseph J. Macktal, CL1 13, 30 NRC 27 (1989) ("Macktal 2"); In re Joseph J. Macktal. CLI 8914, 30 NRC 85 (1989) ("Macktal 3"). Briefly, the Commission's Of6cc of Investigations ("Ol") issued a subpoena to Mr. Macktal on June 3,1989, seeking the specific details of his allegations regarding (1) a " bribe" to induce him to withdraw an employment discrimination claim before the Department of Labor (" DOL") and (2) safety defects. at Comanche Peak. The subpoena requested Mr. Macktal's appearance on June 15,1989, at the NRC's 01 Of6cc in Arlington, Te.xas, less than 2 hours' drive ' from his residence, t Subsequently, Mr. Macktal filed a motion for a protective order seeking to condition his appearance before 01. The Commission denied that request on June 22, 1989, and established a new return date of July 6,1989. See - Macktal 1. On July 3, shortly, before the date he was to appear before Commission representatives, Mr. Macktal 61ed a motion seeking reconsideration of that decision. The Commission denied that request on July 5,1989, noting that-the request did not stay Mr. Macktal's required appearance. See 10 C.F.R. 6 2.771(c). See Macktal 2. Mr. Macktal also 6 led a motion on July 3 seeking disqualification of the en-tire Commission from reviewing any further matters involving him.-The Com-mission denied this motion on August 16, 1989.' See Macktal 3. Mr. Macktal' immediately filed a motion for reconsideration of that decision, it is that motion. I which now lies before us. l l 168 .t l l-i l ? d l 3 i

Lf TII. ANALYSIS l Mr. Macktal bases his request on nine specific considerations which fall into three general categories. First, Mr. Macktal disputes the factual accuracy of spe. cific statements in CLI 89-14 (Motion,111,2,4, and 5). Second, Mr. Macktal complains generally about the Commission's treatment of"whistleblowers" and soccifically about its treatment of his concerns (/d.,16). Third, Mr. Macktal. faults the application of the disqualification tests by the Commission in CLI 89-14 (id.,113,7,8, and 10). As to the claims of factual inxcuracy in CLI-8914, Mr. Macktal has not - l~ presented any information that provides us with any reason to modify our L carlier decision. Simply put, the Commission has been attempting to conduct [ a legitimate inquiry into some matters raised by Mr. Macktal. The inquiry is a matter within the Commission's responsibility and authority, in sunport of which the Commission's subpoena powers have been appropriately invoked. 42 i U.S.C. 6 2201c, Mr. Macktal has as yet failed to comply with the subpoena. Mr. Macktal argues that the NRC Commissioners are biased and should be-L disqualified from further involvement in his " case," but he does not make any l showing why individual Commissioners cannot participate fairly in decisions concerning the obtaining or use of information' from him relevant to the l Commission's jurisdiction, We believe that the record indicates sensitivity to his concerns. Not only did we delete the portion of our decision in CLI 88-I 12 that Mr. Macktal found offensive, but we also have directed OI to grant L confidentiality to him if he can demonstrate that he meets the applicable criteria. l for confidential treatment. See Macktal 1, supra, We also agreed to select a date for return of the subpoena that Mr. Macktal's attorneys advised us was convenient to both Mr. Macktal and to themselves. Id. Finally, e selected a date that provided Mr. Macktal with 30 days' notice of the time for appearance from the issuance of the original subpoena. Id. Finally, we see no merit in Mr. Macktal's dissatisfaction with our application of disqualification tests in CL189-14 and accordingly no reason to disturb our l earlier decision. We see no bias or prejudice, pervasive or otherwise, real or ~ apparent, in the Commission's interactions with Mr. Macktal. However, Mr. Macktal does raise a matter that will benefit from clarification here. He alleges that the Commissioners failed to decide individually whether to recuse themselves, contrary to established agency procedure. We did not depart ' ~', from prior practice in CLI 89-14. When a party requests the disqualification of an individual member of a tribunal, such as a Commissioner, that individual must make the initial decision. See, e.g., Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI 84 20, 20 NRC 1061 (1984)(request for disqualification of Chairman Palladino). However, when a party requests the disqualification of more than one member of a tribunal, those members may 169 h c

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\\.. issue a pint opinion in response to the mouon.- See, e.g Long Isidad Lighting j Co. (Shoreham Nuclear Power Station, Unit 1), LBP 88 29,28 NRC 637 (1988) i (request for disquali6 cation of two members of a licensing board). - In this case, Mr. Macktal requested the disquali6cauon of all four current j members of the Commission. Each member of the Commission reviewed that j request and concluded that he could review manen arising in the future mvolving i Mr. Macktal, ne Commission then issued a joint opinion ruling on the request. Each individual member of the Commission decided the question of his own qualifications; no member of the Commission ruled on another member's right to participate. We simply saw no reason to issue four separate opinions. { l L IV. CONCLUSION We have reviewed the considerations advanced by Mr. Macktal and find that ,l none of those considerations causes us to reconsi(.cr our decision in CLI 89-14. nere continues to be no justiGcation for us to disqualify ourselves from any. proceeding to inquire into Mr. Macktal's allegations herefore, we deny the ' i

motion, It is so ORDERED.

Ibr the Commission SAMUEL J.~CHILK i Secretary of the Commission - Dated at Rockville, Maryland, i this lith day of September 1989. 1 I si 170 1 I

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' CLI 8919' j UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION COMMISSIONERS: i I p Kenneth M. Carr, Chairman l Thomas M. Roberts Kenneth C. Rogers James R. Curtiss i -I l in lhe Matter of Docket Nos. 50 443 OL-1 50 444 OL PUBLIC SERVICE COMPANY OF l NEW HAMPSHIRE, et al.' (Seabrook Station, Units 1 and 2) September 15,1989= ne Commission derles Applicants'l request for an exemption from the requirement to conduct an onsite emergency planning exercise within 1 year. I before issuance of a full-power license. Applicants made their request under 10 C.F.R. 6 50.12; the Commission has, therefore, considered and rejected it under that rule. Because the Commission wishes to expedite this decision so that the - parties will have it promptly for planning purposes, and because it had the views of the parties and of the Staff, who would decide a section 50.12 petition in the - I first instance, the Commission rendered this decision even though the request should not have been brought directly;to the Commission.< De Commission directs the Staff to issue its report on the exercise no later than October 16, 1989. RULES OF PRACTICE: EXEMITION REQUESTS Applicants' assertions of harm from delay of an " endless loop" of exercises are speculative and do not support an exemption. l 1 171 i I 4 !=

1 t RULES OF PRACTICE: EXEMPTION REQUESTS [ '4- . De Commission has reserva%ms whether indirect costs of comphance with l the rule, such as ensuing litiyAtion cJ Costs 6owing from delays caused by litigation, are properly considered in evaluating an exemption request REGULATIONS: INTERPRETATION (10 C.F.R. Il 2.758,50.12) RULES OF PRACTICE: EXEMFI10N REQUESTSt PETITION FOR WA!YER De Commission need not parse out the distinctions between a petition j for waiver under 10 C.F.R. 62.758 and a request for exemption under 10 1 C.F.R. I$0.12. It does, however, emphasize a similarity: neither is intended i under the rules to be brought directly to the Commission. It would, therefore, expect that except in the most exceptional circumstances, which ute not present here, such requests will be Gled with the appropriale board or staff of6cer. EMERGENCY PLANNING: EXCEPTIONS TO REGULATIONS i EMERGENCY PLANS: PUBLIC HEALTH AND SAFETY REGULATIONS: INTERPPETATION (10 C.F.R. I $0.12) Putting aside the question whether it is legally permissible to balance safety and the need for power, the Commission Ands in this case the generalized c' projections of need for power are insuf6cient to outweigh, under 10 C.F.R. ISO.12(a)(2)(vi), the public interest that underlies the safety provisions of the ,1 Commission's emergency planning rules. j .w l .3 l ADMINISTRATIVE PROCEDURE ACT: EXPEDITED I PROCEEDINGS f l LICENSING DECISIONS: EXPEDITION AND THOROUGHNESS l l RULES OF PRACTICE: EXPEDITED PROCEEDINGS f he Commission believes that procedures for expedition can alleviate Ap- ,11icants' concerns without working any unfairness on other parties and without diminishing the protection provided to the public by the emergency planning ~ regulations. De Commission's responsibility under the Administrative Proce-dure Act to decide cases vithin a reasonable time makes it appropriate for it to establish expedited procedures when necessary. I 1 172 + s I i + 6 l c + .-..n,,, s.r+ +,.,. ~, - -v-.- n, ~,. - -. -.

ORDER l i Ris Order responds to " Applicants' Application for an Exempt 9n from the Requirement of 10 CFR Part 50, Appendix E. Section IV.F.1, for the Conduct of an Exercise of the Licensees' Onsite Emergency Plans Within One Year Before !sstaance of a Full-Power Operating License" (" Application" or "cxemption request"), dated August 11, 1989. On consideration of the Application and the parties' responses,' all of which unequivocally opposed the exemption, the - Commission denics the Applicants' exempdon request for the reasons briefly stated below. Dispensing with a comprehensive recitation of the nearly 8 years of this licensing proceeding, we begin with the current schedule, he Atomic Safety and Licensing Board set November 30,1989, as its target date to issue a decision that will decide all remaining presently admitted contentions in this proceeding. included in that decision will be the resolution of the contentions relating to the Applicants' emergency plan for those portions of the emergency planning zone located in the Commonwealth of Massachusetts, and to the full participation emergency exercise conducted in June 1988. Lacking the adrr.ission of any new contention, the order expected on November 30,1989, would have the potential to authorize issuance of the full power license and conclude this proceeding. Pursuant to the Commission's reguladon, from which Applicants seek relief in their irstant petition, if more than a year has passed since a full participadon exercise, an exercise of the Applicants' onshe plan must be held within 1 year before license issuance.' That circur.1 stance has transpired, and an exercise has been scheduled for the last week in September. Intervenors have stated that they want the opportunity to litigate the results of i the exercise. Applicants are concerned that such litigation could be protracted, causing delay in issuance of a license, and ultimately eventuating in the need for a full participation exercise in June 1990, beginning an " endless loop of litigation." Long hland Lighting Co. (Shorcham Nuclear Power Station, Unit f 1), CLI 88 9,28 NRC 567,570 (1988), t 3 The fauowmg aspanses more filed: New England Coahuan mi Nuclear Ib11uuan's oppanue,. to Apphcams' Request far an Laempuan from the Requawnent to Esense the orma Emergency I".an wioun a Year Pner in issuance or Opersung Lu a or, in the Ahernaun, Request for a llenne on Appheams' Appbcauan, daad August 21. la89 Repara r/ MesaAo no Ambcanu' Appbcauan fa. an Laempuan fran the Requusmeni of 10 C.F.R. Pan So, Appendia E, secuen !Y.F.1, esied August 21.1989 Response and otipcuan to Appbcams' Apphcauan far an L'empum from t e Requuwnent of 10 CFR 1%n 50, Amendia E, secuan IV.F.3, dated h August 21.1989, and hied tiy the seacoast Anu.1%Uuuan tangue (sApLk and NRC staff Response to A,$ cams' Appbcauan for an Laempuun from 10 C.F.R Pan 50, secuan IV.F.I (onsas Esertue one Year Befare Full Ibwer lacess), dated August 28,1989, I The fuu.parucipsuoi saarrue must be seressed if necessary to meet the requuumem that suoi an esercus he held enthui 2 yesa er usuance or the opersung hcenst i 173 l i I b

j Applicants'snade their aquest under 10 CE.R. I 50.12, the Comnussaan has, l 'i ' therefore, considered it under lhe provisions of that rule.8 Rir the reasons stated by the Staff,' we and that Applicants have made an insuf5cient showing under l 10 C.F.R. I 50.12(sX2Xil). I Under 10 C.F.R. 650.12(aX2Xiii), we 6nd that Applicants' assertions of harm from delay of an " endless loop" of exercises are speculative. Moreover, as to Anancial costs, we have reservations whether hidirect costs of compliance j with the rule, such as ensuing litigauon or costs Aowing from delays caused by litigation, are properly considered in evaluating an exemption request. This is so i because those very grounds that would most support the need for an adjudication would be those most likely to cause delays. In such circumstances the rule would work at a contrary purpose to the regulatory purpose inherent in affording an i opportunity for hearing. Finally, Applicants urged a public interest exception due to an alleged need i for power. Putting aside the question whether it is legally permissible to balance safety and need for power, we find in this case the generallzed projections of l need for power are insuf6cient to outweigh, under 10 C.F.R.150.12(aX2)(vi), a the public interest that underlies the safety provisions of the Commission's j cmergency planning rules. The Commission believes that given the fact that the onsite plan has pre.. viously been exercised and adjudicated, in the event the exercise provides the occasion for any admissible comention,s procedures for expedition can allevi-t ate Applicants' concerns without working any unfairness on other parties and without diminishing the protection provided the public by the Commission's emergency planning regulations. As we have had occasion to say before, we believe that our responsibility under the Administrative Procedure Act to decide ' cases within a reasonable time makes it appropriate for us to establish expedited proca.dures when necessary. Shoreham, CLi 88 9, sagra,28 NRC at 570. In - this regard, we direct the Staff to issue its report on the exercise no later than October 16,1989. 3 1n lighi d as decem we aasd net pass as ths eminmaans between a pannem fe waiver under 30 CEA 51758 and a request for an esenymen meer 10 CIA 950.12. we de, however, migdissise a anninsaty: naher is wasnded under the ndes to be brought dussily to cie Cemensam. we wadd iheufoss, espost that enesyt in the enesi ensapuanal _.. . which a., not poussut base, mesh sequests will be Aled wuh the appsupnsis ( board er maff adhear. *nie Conneeman u kept uderned af the emuus of edjusbesiesy procemenes and has the authonty to duum that sedi a numer he forwasded to k erustly when that is wanuned in ihas immanes, heesues we wish to sapedue ihas decisese so that the panies will have k pnsnptly for planung purpenas, and huseos we have the views of Gus partes ed of the sosti who would decide a mesuen 50.12 pauman a ths trat instamma, the Cennuseson wdl sender a danmar6

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have neds hke ergenous we agene wnh then as well 8 tn order to have any eenen.e a e essess condased is a hasnns. C ease low amahlasha the aamd to ausse a ruedamensat see. Ses seat oised f4hhng Co. (Shosuham Nucler Pa== simien. Una 1). ALAa. d 903. is NRC 899 (19881 la addaan, the eneris for lais sled esammans ese apphenble se any - Alad on the emne emessise, as they ese is all eensamus aled ahm the anguial da,ie hv which emummens ese east i I 174 l l l l ? ,e + s e- ,.s w -o,-- -. m

e .. 'i:.;7 lyw.v i The Applicants' exemption request is denied.' i It is so ORDERED. Ibr the Commission' r SAMUEL J. CHILK i Secretary of the Commission Dated at Rockville, Maryland, this 15th day of September 1989. I r I t i r i i e t 'Any sequem fa a haanns an the enempuan sequest u also daued, 'Cammamaner Cuiuas ed nas perucipou in dus Order. 175 t [ e

l Atomic Safety and Licensing Appeal Boards issuances P ATOMIC SAFETY AND UCENSING APPEAL PANEL i Chnabne N Mohl, Charman Alan S. RosentW Dr W Reed Johnson c Thomas S Moore Howard A Wilber G. Paul Bollwerk, Ill l + i 4 b P 4 I l.--...-.,___-_.-..-- ... - - -. ~. -. -... -........ -. -.. _.. -. -, ~. - - -. - -. -.. _,. -. - - - -. .. - -.., - -. -. - ~.....

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ALAS-921 f I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION [ a i ATOMIC SAFETY AND LICENSING APPEAL SOARD ( Administrative Judges: l Thomas S. Moore, Chairman i Alan S. Rosenthal i Howard A. Wilber t s in the Matter of Docket No. 50 335-OLA (SFP Espansion) FLORIDA POWER & LIGHT COMPANY y (St. Lucie Nuclear Power Plant, j' Unit 1) September 20,1989 The Appeal Board affirms the Licensing Board's initial decision. LBP 8912, 29 NRC 441 (1989), sustaining the agency's earlier issuance of an operating license amendment to Florida Power & Light Company permitting the rcracking l of the St. Lucie Unit I spent fuel pool to increase its capacity. t RULES OF PRACTICE: BRIEFS 1hc Commission's Rules of Practice require that"[a]n appellant's brief must clearly identify the errors of fact or law that are the subject of the appeal." 10 C.F.R. I 2.762(a)(1). l RULES OF PRACTICE: BRIEFS A party's appellate brief must contain sufficient information and argument to allow the appellate tribunal to make an intelligent disposition of the issues sought to be raised on appeal.- See Carolina Power and Light Co. (Shearon 177 l P 4 g ? t +

Harris Nuclear Power Plant), ALAB 856,24 NRC 802,805 (1986);id., ALAB. 843,24 NRC 200,204 (1986); id., ALAB 837,23 NRC 525,533 34 (1986); 3' Pennsyhania Power and Light Co. (Susquchanna Steam Electric Station Units I and 2), ALAB 693,16 NRC 952,955 57 (1982); Duke Power Co. (Catawba Nuclear Station Units 1 and 2), ALAB 355,4 NRC 397,413, reconsf.feration e denied. ALAB 359,4 NRC 619 (1976). RULES OF PRACTICE: BRIEFS l As in the case of all litigants, the intervenors rnust bear full responsibility for any possible misapprehension of his arguments caused by the inadequacies of his bncf. See Wisconsin Elrctric Power Co. (Point Beach Nuclear Plant. Units I and 2), ALAB-739,18 NRC 335,338 n.4 (1983). RULES OF PRACTICE: APPELLATE REVIEW An Appeal Board will only " reject or modify (factual) findings of the Licensing Board if, after giving its decision the probative force it intrinsically commands, we are convinced that the record compels a different result." Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264,1 NRC 347, 357 (1975). EVIDENCE: EXPERT WITNESS It is well established that an expert witness may rely upon analyses performed by others. Sec Philadc/phia flectric Co. (Limerick Ocncrating Station, Units 1 and 2), ALAB 819,22 NRC 681,718 (1985), aff' din part and nview otherwisc declined CL186 5, 23 NRC 125 (1986), remanded in part on other grounds sub nom. Limerick Ecology Action, Inc. v. NRC,869 F.2d 719 (3d Cir,1989). t RULES OF PRACTICE: BURDEN OF PROOF llis the applicant that bears the ultimate burden of proof in NRC operating license amendment proceedings and not the NRC staff. Thus, the adequacy of ' the staff's review is not the proper focus for such proceedings. Sec Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2),1 ALAB-728,17 NRC 777,809 (1983). j t 178

i APPEARANCES ) Campbell Rich, Stuart, Rorida, intervenor pro se, i Harold F. Reis, Michael A. Bauher, and Patricia A. Cosnella, Washington, D.C., and John T. Butler, Miami, Rorida, for the applicant, Rorida Power & Light Company. Patricia A. Jehle and Bernard M. Bordenick for the Nuclear Regulatory [ Commission staff. j DECISION Campbell Rich, a pro se intervenor in this operating license proceeding, has appealed the Licensing Board's May 9,1989, initial decisioni sustaining the agency's grant of an amendment to the applicant, Rorida Power & Light i Company, permlutng the teracking of the St. Lucic Unit I spent fuel pool to increase its capacity. Mr the reasons that follow, we affirm the Licensing i Board's decision. f I. On August 31,1987, the Nuclear Regulatory Commission published a notice r in the federa/ Reginct that it was considering issuing a lic ense amendment to the applicant authorizing an increase in the St. Lucie Unit I spent fuel pool storage - capacity from 728 to 1706 fuel assemblies.8 Among other things, the notice stated that the proposed expansion was to be achieved by rcracking the fuel pool with high-density storage racks employing Boraflex as a neutron absorber for criticality control.2 According to the notice, the rack vendor had licensed at least ten other racks of essentially the same design so no new or improved technology would be employed in either the construction or analysis of the new i 3 LBP-4912,29 NRC Mt. 2 52 Fat Res 32,852. 3 As suted by the tuensing Board, Baronen is an effecuve murses of neuunns. h is peduced by wurarmly dispaning Baron carh.de parucles in a polymenc siheme encapsulank wiuch performs as the manno slannes The neutron-absortung elenant is Bonn since 1980,85% et all tush-density reas ontered by U.s. uubuas have used Borensa a dw prefernd *pasan" maistw! ror neutron absorpum. lius involved twwnyerse esparew U.s. cunmercial nuclear power plams, t3P-8912,29 NRC at M8 (cuauans arruned). 179 i D

l-racks.' The notice further indicated that the Commission was considering making i a "no significant hazards" determination with respect to the license amendment; thus the notice also set forth the NRC staff's analysis of how the applicant's I amendment application met the standards contained in 10 C.F.R. (50.92(c) for mahng such a determination? in response to the notice, Campbell Rich, a resident of the immediate area of the St. Lucie facility, filed a request for a hearing and a petition to intervene in the proceeding. Dereafter, on March 4,1988, the staff issued an environmental assessment and a fmding that the applicant's proposed spent fuel pool expansion posed no significant radiological hazard? Pursuant to the Commission's regulations, once the staff has made a "no significant hazards" determination, the amendment may be issued immediately and any hearing is held subsequently to determine if the amendment shall remain in effect? De Licensing Board then granted Mr. Rich's petition to intervene, admitting seven of his proffered contentions? After dismissing one of the admitted contafjons on the intervenor's own motion and granting the applicant's motion for summary disposition as to part or all of four others, the Licensing Board heard evidence on the remaining portions of three contentions? At the three-day hearing, the applicant and the staff each presented three expert witnesses and numerous exhibits, while the intervenor presented no evidence and confined his case to cross examining the applicant and staff witnesses. On cach of the issues before it, the Board then-found that the prepondcrance of the evidence favored the applicant. It concluded.. therefore, that the previously issued license amendment should remain in effect." In reaching its decision, however, the Board placed a condition upon the amendment, requiring that the applicant design a program to assess the effect of irradiation on the Boraflex pancis if certain test samples placed in the spent fuct pool are subjected to gamma radiation equal to, or greater than,1 x 10' rads," II. According to his appellate papers, the "[ilntervenor is appealing the (Licens-ing] Boat il Decision as regards the issues surrounding the integrity of Boraficx '52 Ied Res at32.852-53 814 at 32 s53 55. '33 Fed Res 7065 (1988). 7 See 10 C.FA I50.9Ita)(4). 8,e t.BP-8810A. 27 NRC 432. af'd, At.AB 893,27 NRC 627 0985). 3 'Jee 1.BP 884,28 NRC 435 (1988). 7 38.BP 8912,29 NRC at 4460, 1 H14 at 45s 59. ? 180 1 y

p. .. pp (,r-. j i l as suggested by Contenuon 3 and Comention 6."58 As litigated, contenuon 3 claimed that the effects of heat and radsation on Bora8ex panels used in spent fuel pool racks have not been adequately considered or analyzed, while con-i tention 6 alleged that the use of Bornflex in high density racks from the Joseph Oat Corporation is a new and unproven technology. While the intervenor iden-i tines the Licensing Board's decision respectmg these two consentions as the focus of his appeal, his eight page appellate Sling fails to identify clearly and to brief adequately the " issues sur70unding" these contenuons that the intervenor purports to raise. The Commission's Rules of Practice require that "[aln appel-l lant's brief must clearf.y identify the errors of fact or law that are the subject of the appeal."28 We have pointed out repeatedly that a party's appellate brief must contain sufficient information and argument to allow the appellate inbunal i to make an intelligent disposition of the issues sought to be raised on appeal.84 Here, the intervenor's brief comports with neither the letter of the regulations nor the spirit of our decisions. Nevertheless, because we do not hold a pro se intervenor to the same standard that we expect a lawyer to meet.2s we have tried, as best we can, to glean from the intervenor's appellaic papers the essence of the errors he alleges. As in the case of all litigants, however, the imervenor must bear full responsibility for any possible misapprehension of his arguments caused by the inadequacies of his brief. As best we can discern from his brief, the intervenor raises no questions of j law. Rather, he only challenges several of the Licensing Board's factual findings with respect to contentions 3 and 6. Although the intervenor never mentions the standard of review for such findings, it must be remembered that "we are not free to disregard the fact that the Licensing Boards are the Commission's primary l fact finding tribunals."" Hence we will only " reject or modify 6ndings of the l Licensing Board if, after giving its decision the probative force it intrinsically commands, we are convinced that the record compels a different result."l' in other words, "we must be persuaded that the record evidence as a whole compels 12 g,,,,,,,,.s Appeal af tmual Decision Guns 16,1989) et 1 [herumafier "Imarvenar's Bne("1 U 10 C.F.it 61762(d)(1). 8'see Carchas Pe=er end ts 4 Co. (sheanni Harns Nuclear Power Plant), AtAB.tS6. 24 NitC 802,805 0946K ut. AIAB 643. 24 NRC 200,204 0946); est ALAB-t37,23 NRC 525,53).34 09s6); Penaryhema Power r endlater Co. (suaquehanno steam Docute suuart, Umw I and 2), AIAB.693.16 NRC 951955 57 09 2t Du4e Penwr Ce, (Caiawbs Nuclear stauen. Umu I and 2), AIAB.355,4 NRC 397,413, escenadsressen demed. AIAB 359,4 NRC 619 0976). "See Merepekwa Edson Co. (Diese %)s !alend Nuclear suumi Umt ik AIAB.772,19 NRC 1193,1247 09&d), rev' din part en eaner greandr. CLI Bs.2. 21 NRC 282 0965k PmWac Service fleesric and Car Ca. (salem NucJest ounaroung suuan, Umt 1), AIAB450,14 NRC 43. 50 n.10981), aqr'd sis 6 nea6 Temesh, s/Lemer Allo =wys Cree 4 v. PuWac Service Electric A Car Ca 687 F.2d 732 (3d Cir.1982). l'See Esconna Electric remer Ce. (Point Bandi Nucler Plant, Unas i and 2), ALAT* 9, is NRC 335,338 e 4 0983). IlNar:4ern /ndena Public Servece r (BaiDy oenereung sinuan. Nuclear 1), AIAB 3GI,2 NRC 158, 367' 0 975). y 18 Negers Maas=4 Pemer Corp. (Nine Ele 1% n Nuclear siauan, Una 2), AtAB.264, I NHC 347,3510975). l 181 4

F a different conclusion and we will not overturn the hearing judge's 6ndings simply because we might have reached a different result had we been the initial fact finder." in his brief, the intervenor seemingly argues that several of the Licensmg Board's findings regarding comennons 3 and 6 are erroneous, he record as a whole, however, does not support his claims. His is not surprising because the imervenor offered no affirmative evidence at the hearing to support his two contentions, and all testimony and documentary exhibits on the comentions were presented by experts for the applicant and the staff. nc Licensing Board made its findings based upon this expert testimony and our review of the record satisfics us that those findings are thorough, fully supported by the evidence. .i and correct. Thus, under the standard applicable for reviewing factual fmdings, they must be affirmed. l. Although the argument heading in his brief reads "nc effect of exposure to cicvated temperatures on Barallex," the intervenor does not appear to question the Licensing Board's findings on this subject. Rather, as best we can tell, the i intervenor seems.to complain that the trial Board's findings on the combined cffect of heat and radiation on Boraflex are not supported by credible evidence.# In its decision, the Licerning Board found that the NRC required the testing ,{ of Botaficx under physical conditions more severe than the environment to which the material would be exposed in actual use before the agency accepted it as an appropriate neutron absorbing material, in its fully supported findings, the Board detailed the history of heat aging tests at 350'F and long term pressure bomb tests at 240*F in a boric acid solution, to which Boraflex was subjected in order to establish its stability under excessive environmental conditions, it also found that the I t. Lucie Unit I spent fuel pool temperature hovers around 100'F, l which is well below the qualifying test temperaturcs, and that Borallex will never be exposed to temperatures in excess of 200*F anywhere in the St. Lucie pool.ti De Board made fu!!y supported findings on the effects of radiation on l. Borallex as well.22 Nr example, it found that radiation exposure tests were i I conducted on Boraficx at the Nrd nuclear research reactor at t e University of h l Michigan. Although none of the published results of the various exposure tests l. reported on the combined effect of temperaturc and radioactivity per se,"(slince the reactor temperatures are much higher in the reactor than in the spent fuel pool, synergistic effects of heat and radiation would be included in the reported in reactor irradiation studies."" As support for this latter determination, the 3' Central Nhc th,a.r Nclear Corp. (Duas %1e taland Eclear sisuus. Una No.1). ALAB 581. 26 NRC l 46s.473 L1987). Einwrvermr's Bnst at 13. 21 LBP 89-12,29 NRC at 449. See segh, rot Tr.139, at 14. 22 LBP-8912, 29 NRCates4st. Uld at 449. 182 i e 1

1 ) Board cited the testimony of one of the staff's expert witnesses, Dr. James i Wing, a chemical engineer at the NRC. But the intervenor, in effect, claims that he discredited this witness with his cross exammation, so his testimony ( shculd be disregarded. Even accepting the intervenor's position for the take of argument, the Board's fmding on the combined effect of heat and radiation on Borallex is amply and independently supported by the testimony of Dr. Krishna P. Singh, one of the applicant's expert witnesses. Dr. Singh is currently president of Holtech International, a company engaged in the design and supply of spent fuel pool storage racks for the domestic and international nuc! car power plant industry, his company is the subcontractor responsible for the design, analysis, and licensirg of the St. Lucie racks for the rack vendor and manufacturer (and Dr. Singh's former employer), the Joseph Oat Corporation. By education, Dr. Singh holds B.S., M.S., and Ph.D. degrees in mechanical engifte.+.ig, and he has extensive expenence in the design of spent fuel storage racLa utilizing Boraflex.8' In his direct testimony, Dr. Singh specifically stated that the extensive tests run on Boraficx at the Ford reactor between 1979 and 1981 were designed - to identify the physical and chemical characteristics of this matenal under a vancty of radiation levels, raf ation rates, and severe environments, including temperatures substantially greater tisan those found in the St. Lucie pool.3 Rus, the intervenor has presented nothing that undercuts the support of the Licensing Board's finding on this matter. 2. Once again his argument is far from clear, but the intervenor also asserts that the Licensing Board found "that shrinkage of 3 4% is to be anticipated during the normal service life of the material."2' He further claims that the " Licensee's own witness, Dr. Turner, provided data that showed shrinkage of 4% and even greater at radiation levels that will be encountered by the material in 3'sesh fol. Tr.139. Eah A. he mternnar also seems no suggest that Dr. singh, comrary to the Lacenseg Board's deurnunahan (!_BP. 8912,29 NRC at 447). was nas a quahfied espen because he was, m fact. a metauvrgical specuhm and not a che.iust and so must rely upon the work and knowledge of othen mth regards to the insegnty and suiabihty of the polymer Bora6ct." Intervenor's Bnei at 2. De shon answer to what appean to be his be!ated auemp to have Dr. smsh disquah6ed as an etpen mmens is that the intervenar faded to raise a umeJy objecum to this mmess's qual 6caums below, so be canna now be heard to complam. Mareover. the murvenor is etmply wrong when he states *at Dr. singh tesu6ed he was "a metaturgical speciahat" Dr smsh hCs a doctoraw m mechanical sigerartng and has had educauanal coune mwk m orgaruc and analyucal chamastry dare can he no real quesuan as to hia quah6caums to insufy em @4 manen at hand. Funher. the mwrvanor's claim mai Dr. singh is somehow unquahfied, because he rehad upon the knowledge of ether esperu far data e the pmporues and sunatmhty of Bars 6es,is totaDy without ment. It is well estabitshed $st an expen mmeas may rely upe analyses performed by cahers see Puadrip4m Electne Co. (larnene oenersung suuan, t'nas I and :). ALAB.419 22 NRC 681. 718 0985), af d sa peer and renew esAntwue dect and, CLI 4fr$ 23 NRC 125 0946), reaunded l in part on e 48' froanadr 8an6 aosi. tosiereid Lebry Acsion. Jae. e.,uc. 869 F.2d 714 04 Car.19891 Here. Dr. segh pnmanly rebed upnn $e espertue of Dr. stanley E. Turner, a nuclear chemist and samtnesa, whose guahnauans me inurvenar has not chauenged. See segh. Tr.14&47. Turner. fol. Tr.139. Enh A. segh, fot. Tr.139. at 15 26 g,,,,,,,,,,, gn g,, 3 183 9 9 h

i service."" In light of this purported fmding and evidence, the intervenor appears l to argue that the Licensing Board somehow erred in sustaining the license ( amendment because it contains "a dimensional change [ limitation) of 2.5't frorn the origino!" for the Boraflex material." What is cicar from this arLument is that the intervenor badly misapprehends the Licensing Board's decision, the record evidence, and the license amendment. t Contrary to the intervenor's allegation, the Licensing Board simply did not f fmd that it was anticipated that the Boraflex would shrink three to four percent during the normal service life of the material." Nor did Dr. Turner tesufy that Bora' lex shrinkage would be four percent or greater, instead. he indicated i that dimensional changes of the Borallex samples would be on that order." .{ Indeed, Dr. Turner stated that actual measurements of Boraflex samples in spent fuel pools showed a maximum shrinkage of 2 to 2.5 percent.' but for purposes of determining the magnitude of the effective muluplicauon factor for t criticality concerns, he assigned a conservative value of four percent shnnkage for the calculations.S Contrary to the intervenor's apparent belief, however, dimensional changes and shrinkage are not synonyms, as those terrris are used ' in the evidentiary record. Dimensional variations include changes in addition to. just shrinkage." Furthct, and again contrary to the intervenor's apparent belief, the license amendment authorizing the rcracking of the St. Lucic Unit i spent fuel pool I contains no license condition or acceptance criteria on the high4cnsity racks to the effect that a dimensional change in tbc Boraflex of no more than 2 5 percent from the original is all that is permitted. As best we can determme, the inter-venor has confused the license amendment with a statement found in the staff's Safety Evaluation Report describing the applicant's in service surveillance test-ing program." That program is not part of the license amendment; rather it is part of the applicant's plant procedures for St. Lucie." As the Licensing Board l stated in describing that ancillary testing program, "[allthough Bomflex is ex. l pected to satisfactorily perform its intended function, the surveillance program ensures that any radiation effects beyond those expected and accommodate 1 :n the design will be detected well in advance (probably years) of the need for re-medial action."" In short, the record does not support the intervenor's charges. l Vid l Uld Dsee 1.RP 8912,29 NRC at 45451,459. "Tumer. Tr. 3s7. M Tumer. rol. Tr.139. at 67.

1. see Turner. Tr. 403 06 i

Dsee staft Enh. I ai 5. M Wsusam. rol. Tr.139, at 3. MLSP.s912. 29 NRC ai 453. 184

I y jj ...J.r c y ? g ~, S i

3. Finally, the intervenor appears to complain about the Licensing Board's 6ndings concerning the acrmal use of Region 1 of the spent fuct pool and the

? l effects on enticality of possible gap formauon in the Boraflex pancis of the racks I in that region." In its decision, the Licensing Board reviewed the design and construction of both Region 1 and Region 2 storage racks, noting that "[t]he essential difference between Region 1 and Region 2 storage rack modules is i that the Region I racks are provided with additional neutron-absorbing material l in the form of Boraflex 30 as to control the higher potential reactivity that would result with fresh nuclear fuel."" It found that the racks for both regions were appropriately designed to take into account shnnkage caused by irradiadon of Botafica and that the Region I racks were specially designed tr> allow for l controlled gap formation at designated points." The 'doard also four41 that the applicant had appropriately evaluated the effects on criticality caused by the formation of such gaps arid that the formation of gaps would not Challenge the margin of the staff's acceptance,:riterion for criticality." Further, the Board 7 determined that "[s) pent fuel is norrnally discharged to Region 2, while Region I is used to store fresh [unitradiated) fuel prior to refueling and for contingencies such as the possible need for a full-core offload."a It concluded, therefore, that " shrinking and subsequent gap formation should thus be nonexistent or minimal in th Region I racks." The Board indicated, however, that"[t]he one exception which does result in some gamma irradiation of Region I cells occurs because of the in service surveillance program which [ applicant) has undertaken,,. [that] includes two cells in Region I with separate sets of sample coupons."*8 Because the applicant's test program intentionally exposes two cells of one of the Region I racks to gamma radiation, the Board imposed a license condition on the amendment designed to monitor the integrity of this Region I rack.'2 We have reviewed the record underlying all of the Licensing Board's 6ndings on the design and construction of the high density recks and the adequacy of the applicant's criticality calculations and can fmd no reasonable basis for the charges the inter.cnor levels at these findings "Ihe Board's findings are all well supported and adequately explained. Speci6cally, the record evidence is - clear on the normal use of Region 1 of the spent fuel pool and the Board'a, 6ndings in this regard are correct. There simply is no record suppo*t for the i mtervenor's assertions, and it appears he has confused the meaning of reactivity 1

• tai== a ner si + s FIJP-8912. 29 Mtc et 441 8 14 at 451.

"Id siests1

1. 14 si 459.

id 14

• I14 P

185 s T b .e

.s and radioactivity in his reading of the record. Nor it dere any tesis for his apparent claims that the applicant's cnucality calcuiauons are somchow suspect and cannot form the basis for the Bot.rd's fihdings because the stalf did not independently venfy them. With minor exceptions not relevant here, it is the t applicant that tears the ultimate burden of proof in NRC operating license amendment proceedings and not the staff.; Thus, contrary to the inten'enor's wi.irent belief, the adequacy of the staff's review is not the proper focus for' such proceedings." For the foregoing reasons, wo qffirm the Licensing Board's deci> ton in LBP. 89-12, 29 NRC 441, sustaining the staff's earlier issuance of the operating license amendment.- it is so ORDERED. FOR THE APPEAL BOARD Barbara A. Tompkins Secretary to the Appeal Board. i a e I ~ t t I l l t "See rech Car and &luww Ce (Dist4e Canyon %cteer Pmr Plas I;rms 1 and 2). Al.AS 728.17. RC N 777,104 0 933). i l 186 i e p t 3

Atomic Safety and Licensing Boards issuances i e i ATOMIC SAFETY AND UCENSING BOARD PANEL l t

8. Paul Cotter,* Chief Administrative Judge l

RODert M Lazo,* Deputy Chief Administrative Judge (Decutive) Frederick J. Snon,* Deputy Chief Administrative Judge (Technical) I Members Dr George C Anaerson Dr Cadet H. Hand. Jr. Dr Emmoth A Luet*e Chanes Bechhoefer* Dr. Jerry Hvoour* Dr Menneth A. McColiom i Peter B Biocha Dr Davd L Heinck Monon B Marguhes* Glenn O Bnght Ernest E. Hin Gary L. Milmoihn i Dr A D: son Callihan Or Frank F. Hooper Marshall E Mdler James H Carpenter

• Helen F Hoyt*

Dr Oscar H Pens

• Dr Rchard F Cow Ehrabeth B. Johnson Dr David R Schink Dr George A Ferguson Dr Walter H Jordan tvan W Smflh*

Dr Harry Foreman Dr Mchaet A Krk Duggan Dr Maren J. Steindler Dr Rchard F Foster Dr Jerry R Khne* Seymour Wenner - t John H Frye Ill* Dr. James C Lamb til Sheloon J Wolfe James P Gleason Gustavo A. Linenberger* - ( 4 i l l l i t e

• Permanent panelmembers I

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{ 9 Cite as 30 NRC 187 (1989) LBP46 26 i l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND UCENSING BOARD PANEL l Before Administrative Judge: Charles techhoofer l l in the Matter of Docket No. 70 36 MLA (ASLBP No. 89 59341 MLA) i (Special Nuclear Materiale License No SNM 33) COMBUSTION ENGINEERING,INC. (Nematite Fuel Fabrication Facility) September 25,1989' "The Presiding Officer in a materials license proceeding grants two addidonal intervention petitions and defers action on another. The Presiding Officer schedules the filing ofissues by Intervenors and a prehearing conference to define i and clarify the issues in controversy and to consider the remaining intervention petition. Based on information derived from the hearing file, he also poses l questions to the Applicant and NRC Staff on a safety matter suggested by the expressed concerns of Intervenors. RULES OF PRACTICE: INTERVENTION l + An organization that, although filing a timely intervention petition, bases its standing on representation of named members who joined the organization after that filing must be considered a late filini; petitioner. A Presiding Officer may admit the organization only after balancing the factors set out in 10 C.F.R. 5 2.1205(kXI) applicable to late-filed petitions. 187 l l l s E f b . - ~

RULES OF PRACTICE: INTERVENTION In an informal prococding, the critical factors governing late-filed petiuons f are more limited than those applicable to similar petitions filed m formal proceedings. A Presiding Officer may, however, look to all the factors set out in in C.F.R. 6 2.714(a)(1) applicable to formal proceedings for guidance in i determining whether to accept a laic filed petition in an informal procec4ing. RULES OF PRACTICEt INFORMA L HEARINGS Although the Rules of Practice for infortnal hearings do not specifically require the filing by Intervenors in each case of statements ofissues, a Presiding Officer may require such a filing where necessary to clarify the issues and to i avoid having Intervenors prepare complete cases on issues that may not in fact be litigable. MEMORANDUM AND ORDER (Additional InterveMion Petitions, Issues, and Schedules) By my Memorandum and Order (Requests for a Hearing) dated August 18, 1989, LBP 89 23,30 NRC 140 (hcrcinafter LBP 89 23),I gratted the request for ^ a hearing and petition for intervention of Ms. Martha Dodson. I defericd ruling on petitions submitted by Sen. Jeremiah W. (Jay) Nixon, Ms. Karen Sisk, and the j Coalition for the Environment. I requested certain additional information from each of the petitioners (as well as from the Intervenor, Ms. Dodson) concerning certain aspects of their petitions and established a' schedule for submission of this information. Timely supplements to their intervention petitioits were filed by Ms. Dodson on August 22, 1989, by Sen. Nixon on September 2,1989, and by Ms. Sisk and the Coalition for the Environment, respectively, on September 5,1989. The Applicant filed its response on September 18,1989. For reasons set forth below. I am granting the intervention petitions of Sen. Nixon (in his individual capacity) and of Ms. Sisk (also r.a an i dividual). As of this time, the Coalition has not established its standing to partitipate but. - before finally ruling on its petition, I will permit the Coalition to provide further information if it wishes to do so. I am scheduling a prehearing conference on October 25, 1989, to define and clarify matters properly at issue in the proceeding and also to permit the Coalition to provide further information concerning its petition. 188 t e 4 e

1. Petition of Sea. Nisce in LBP 89 23, I determined that Sen. Nixon's stated concerns were suffi-cient to consutute matters properly subject to challenge in this proceeding. I also determined that Sen. Nixon would not have standing to intervene as a rep. resentative of his constituents, but that he might have standing to intervene as an individual. I provided Sen. Nixon with an opportunity to supplement his l l petition if he wished to intervene in his individual capacity. ~ In his supplement. Sen. Nixon indicated that he does wish to intervene in his individual capxity, and he set forth his interest in terms of a residence close i to the facihty, use 6f roads and by ways of the area with great frequency, and i use of Joachim Creek near the facility for recreational purposes. De Applicant i offers no additional objections beyond those previously expressed (concerning Sen. Nixon's statement of concerns, as well as his standing to participate in a 1 representative capacity) to Sen. Nixon's participation as an individual. I find that $cn. Nixon has adequalcly established his standing to intervene as an individual t and, given my carlier determination that his statement of concerns was adequate, that he should be admitted in his individual capacity as an 'ntervenor. I i 2. Petition of Ms. Karen Sisk In LBP-89 23, I determined that Ms. Sisk's stated concerns were sufficient for intervention but that she had not adequately described how the interests she had set forth would be affected by the amendment. I gave her an opportunity to supplement her petition, and she did so. She described the location of her residence and other propeny near the facility, and she reiterated her concerns i about both accidental and mutinc emissions from the facility. Ms. Sisk also expresses her wish to intervene both individually and as a member of the Coalition for the Environment. De Applicant objects to her participation in both capacitics but olTers no new objection (beyond those previously expnssed with regard to her concerns) to her individual participation. (The Applicant continues to question the relevancy to this proceeding of certain of her concerns.) I fmd that, in her individual capacity, Ms. Sisk has satisfied the requirements for intervention, and I am admitting her in that capacity. I will treat her request to be admitted as a member of the Coalition when I deal with the Coalition's l petition, infra. 3. Petition of Coalition for the Ensironment in LBP 89 23, I determined that the Coalition appeared to scck admission as a representative of certain members, some of whom it referred to as residing in 189 i

9' Jeffenon County; but that, since it had not identified any members who sought to be represented by the Coalition and had authorized the Coalition to represent them, it had not fulfilled the requirements for intervention in a representative l capacity. I authorued the Coalition to supplement its petition. t in its supplement, the Coalition identified two members - Ms. Dodson and Ms. Sisk - for the purpose of establishing its standing in a representative capacity. Both of these individuals postcss adequate standing and, indeed, have each been admitted to this proceeding on the strength of that standing. ne Applicant strongly objects to the admittance of the Coalition on the basis of these two members, who arc identified as having joined the Coalition in August 1989 (primarily as a result of my ruling in LBP 89 23 that the Coalition had to identify specific members), and, perforce, after the time when intervention petitions were required to be filed. The Applicant asserts first that, on the basis of these two members, the petition must be regarded as late filed (without adequate justification for the late filing), citing Washington Public Power Supply System (WPPSS Nuclear Project No. 2), LBP 79 7,' 9 NRC 330,335 (1979). That opinion denied the petition of an organization which, after the time when i intervention petitions had to be filed, sought to enlist members near the site in order to fulfill its standing requirements. l The lateness question, while present as the result of the tardy joining of the l organization of members on whom standing is based, would not necessarily preclude admission of the Coalition. Another Licensing Board admitted an organization whose member on whom standing was based _was presumed to have joined the organization after the date for filing of intervention petitions; that Board balanced the factors for tale intervention petitions and found that they favored admission of the organization, even if deemed to be h.tc. Ilouston Lighting and Power Co. (South Texas Project, Units I and 2), LBP 7910,9 4 NRC 439,448 n.3 (1979). In affirming that ruling, the Appeal Board remarked that the organization could be considered "' late',,. only in a legalistic sense" i (its petition in fact having been filed a day early, as is the case here) and that the applicant could not reasonably complain that the " late" intervention would unreasonably delay the proceeding. /d., ALAB 549,9 NRC 644.,648 49 (1979). In an informal proceeding of this type, only two factors technically govern late filed intervemian petitions - (1) whether the lateness was ecusable, and (2) whether grant of a late filed request would result in any um prejudice or injury to other participants.10 C.F.R. I 1205(k)(1). Here, th; igeness appears to be attributable to legal inexperience and hence is excusaule, and grant of intervention status to the Coalition would not seem to produce further delay in the proceeding or prejudice to any other participant. For that reason. I would be prepared to overlook the technical, legalistic lateness of the Coalition, However, another objection to the Coalition's participation advanced by the Applicant is more significant. In the first place, it is not clear to me that 190 7 -f

hw Ms. Dodson and Ms. Sisk are in fact seekmg to be represented by the Coalition. Ms. Dodson states (in her August 22,1989 filing) that she wishes to intervene personally, although she is willing to permit the Coalition to senc as lead intervenor. For her part, Ms.' Sisk indicates that she wishes to intervene both as an individual and as a Coalition me.mber; she also states that she wishes the Coalition to serve as lead intervenor (Supplemental Information dated September 5.1989). As the Applicant observes Ms. Sisk's expressed desire to participate ~ as an individual negates her authorization for the Coalition to represent her interests. The most that can be said is that she has authorized the Coalition to serve as lead imervenor with regard to issues of common interest. Finally, it is not clear to me whether Ms. Sisk may simultaneously represent herself and also be represented by an organization. The Applicant claims that she may not do so, but it cites no authority for this proposition, b'or am I aware of any precedent on '.his question, it appears sensible, howr'ver, not to afford a party two bites at the appic, at least where, as here, the Coalition has not indicated whether it is advancing any claims that the individual members are unwilling or unable to advance on their own behalf. [ In an informal proceeding of this type, the lateness factors set forth in 10 C.F.R. Il2.714(a)(1)(iii) and (iv) are not technically applicable, but in my opinion they are generally relevant to my determination whether to admit the Coalition as a late filed intervenor. I have no information that would indicate whether or not the Coalition would assist in the development of a sound record, [ and it also appears that the Coalition's interest may be adequately represented by existing parties - i.e., Ms. Dodson and Ms. Sisk. On the basis of the record as it now stands, I would have to deny intervention to the Coalition on the basis of these considerations. At the prehearing conference which I am scheduling, I will permit the l Coalition to provide further clarification of the status ofits proposed inten'ention. By that time, it will be required to have filed a more definitive statement of ^ any issues it wishes to raise. Beyond that, it has mentioned certain unnamed members in Jefferson County, but if the Coalition wishes to rely on any members other than Ms. Dodson or Ms. Sisk, it will have to identify them. Pending receipt of further information, I am deferring any ruling on the Coalition's intervention petition. I 4. Statement of Issues 1 Following the admission of intervenors as parties to the proceeding, the next course of action under the informal hearing rules would be for parties to submit written presentations, under oath or affirmation, of their arguments and documentary data, informational material, and other supporting written evidence. This presentation must describe in detail any deficiency or omission in the license 1 191 i t v

application, with particular references provided. The relief sought must also be detailed.10 C.F.R. Il2.1233(c) and (d). In this proceeding, however, it appears that there may well be disputes as to whether certain matters referenced by the Intervenors in their statements of concern may in fact be litigable. In my opinion, there are outstanding quesuons as to the scope of the proposed license amendment and the effects that may be engendered by it. In addition, there are unresolved questions concerning the petition of the Coalition. Failure to resolve these quesuons prior to the submission of wntten presentations under 10 C.F.R. 62.1233 would likely result in unnecessary paperwork for many parties. For that reason, I have decided that the most efficient manner to supplement the record in this regard would be to hold a prehearing conference, as authonzed by 10 C.F.R.12.1209(c), preceded by a filing of issues in dispute (but not full statements of their cases) by all Intervenors and petitioners.' As suggested by the Applicant in its September 18, 1989 filing, the state-ment of issues should demonstrate the deficiencies or omissions in the license application, the relationship (or " nexus") of the issues to the proposed license amendment, and the source of the intervenor's (or petitioner's) belief that there are deficiencies or omissions in the application. In particular, an explanation of the relationship to the license application of the alleged unphnned release of radioacuvity on August 28 or 29,1989, referenced by Ms. Sisk and by the Coalition, would be useful. Finally, based on certain of the concerns set forth by the Intervenors, and after examination of the hearing f:le, I am identifying one safety matter for which I tun posing questions to the Applicant and NRC Staff pursuant to 10 C.F.R. I 2.1233(a). These questions are set forth below, De prehearing conference will be held on Wednesdsy October 25, 1989, beginning at 9:00 a.m., at the Student Center Building. Viking Room, Jefferson College, Hillsboro, Missouri On the evening of Tuesday, October 24, 1989, I will hear oral limited appearance statements pursuant to 10 C.F.R. 62.1211(a), The limited appearance session will take place from 7:00 to 9:30 p.m. (or until the last person present has delivered his or her statement, whichever is carlier)- at the Arts and Sciences Building, Litdc Deatre, Jefferson College, Hillsboro, Missouri. Although limited appearance statements are not considered part of the decisional record, I may ask the parties to develop information for the record 3 I advtsed all perus by telephsme or my ima.a to hold a prehearmg conference, and all pafuss oncept the Appbcant favored that approach. hs Applicom whde agreeing that suumanu or assues este desirable, opmed that I shmod oweit receipt of those suiemems befars deisrmmmg whenher a prehearmg cornference was necessary. However, thers are sufracient areas where wouen staiemems of issues by parues wdl inevtuhly call for fauowup siqueen such as. for enample, the scope of the proceedmg and mauers that may be affected by the hcense amendrnent Iw that reanni. 6L would appear that weiung for ths suiemenu of issues before desermimng whether a preheareg conference should be convened wadd unnecessardy essay the prucendang 192

(or at least have the Staff consider information) concerning mauers raised in such statements and not directly covered by issues identified by the parties. l l S. Questions for Applicant and Staff ' [ l In their statements of concerns, each of the Intervenors has menuoned poten-tials for criticality accidents and relcases of radioactive chemicals, particulates, and gases. My examination of the hearing file has brought to light a question t l_ concerning the criticality standard that ought to be applied in this proceeding. Thus,' as part of its May 1,1989 application for a license amendment, and l-again in the further information filed on August 18,1989, the Applicant has set forth certain criticality consideranons as part of its description of the process of filling of bulk storage hoppers. It states that "the K,,is 0.974410.0032." It is my understanding, however, that the K,, nortr: ally found acceptable by the NRC l Staff is 0.95. See ANSI /ANS 8.11983, as incorporated in NRC Regulatory l l Guide 3.4," Nuclear Criticality Safety in Operations with Fissionable Matenals l at Fuels and Materials Facilitics," Rev. 2 (March 1986). In addition, the current license includes a provision limiting the K,, to not in excess of 0.95 unless i specifically authorized (l.icense SNM 33, Amendment 13,131). 'Ihcrefore, ! have the following questions: Applicant: 1. What justification are you providing for using a K,, greater (i.e., less r conservative) than 0.957 2. What changes in your applicadon, if any, woLild restilt if you were to be limited to a K,, of 0.95 or less?

3. What would be the effect on your operations if I were to include a provision in your amended license comparable to 131 of your E

current license, covering the information submitted in 18.3.4.1 of your amendment application? Stafp i 1. What is your current policy for permitting a K.n less conservative than 0.95? 2. Do you plan to include a provision comparable to 131 of the current license to cover the higher K,, included in the May 1,1989 application or the August 18,1989 statement of additional information? Answers to the foregoing questions should be provided to all parties and petitioners prior to the prehearing conference. (If the Staff review is not yet at the stage where it can answer my second question to it, it can so state.) Although these questians are likely to be discussed at the prehearing conference, the Staff, i 193

l 1 l which is not a party to the proceeding, may limit its answers to wTiuen answers; j it need not participaic at the prehearing conference, although it is invited to do i so, irrespective of its party status. l s 6. Settlement I urge all parties to attempt to settle any issues in this proceeding. The ( preheanng conference that I am scheduling could usefully serve as a medium i to settle outstanding issues. I call upon all parties to auempt to resolve their i differences in this manner. l 7. Order l Ibr the reasons stated, it is, this 25th day of September 1989, ORDERED: 1. The intervention petitions of Sen. Jeremiah W. (Jay) Nixon und Ms. Karen Sisk are hereby gramed. Action on the petition of the Coalition for the Environment is deferred, l 2. All Intervenors and petitioners must file a statement of proposed issues no later than Wednesday, October 18,1989, using expec3s mall for copics intended I for the Applicant and for me '(If ordinary mail is preferred, the statements should be filed by Monday, October 16, 1989.) De Applicant and NRC Staff i are requested to provide responses to the questions posed by me at p,193, supra.

3. A prehearing conference is scheduled for Wednesday, October 25,1989, beginning at 9:00 a.m., at the Student Cemer Building, Viking Room, Jefferson College, Hillsboro, Missouri. On the prior evening, I will entertain oral limited appearance statements, from 7:00 to 9:30 p.m. (or such earlier time as would permit the last person present to make his or her statement), from persons who are not parties (or petitioners) in the proceeding. These statements will be heard at the Ans and Sciences Building Little Deatre, Jefferson College, Hillsboro, Missouri,-

Charles Bechhoefer, Presiding Officer ADMINISTRATIVE JUDGE l Bethesda, Maryland l September 25,1989 194 L ? e D

f .- ~ *p)v l Cne as 30 NRC 195 (1989) LDP 46 26 l l l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: B. Paul Cotter, Jr., Chairman Harry Foreman l Jerry R. Kilne L in the Matter of Docket No. 55 08347 (ASLBP No. 88 577 02 EA) (Operator License No. 6010 2) (EA 88164). MAURICE P. ACOSTA, JR. (Reactor Operator License for San Onofre Nuclear Generating Station, Units 2 and 3) September 28,'1989 The Licensing Board sustains an order of the NRC Executive Director of Operations suspending the reactor operator license of Mr. Acosta and refusing to renew it on the grounds of Mr. Acosta's positive tests for use of marijuana, r in sustaining the Director, the Board rejects a test that would have balanced a good work record against a positive test for marijuana use. REACTOR OPERATOR LICENSES: FITNESS FOR DUTY - (DRUG USE) Simply questioning the chain of custody is not sufficient to defeat the f representation that the chain of custody over urine samples used to perform drug use tests was properly maintained.' 195 - i + ~ _ ~ m 7

REACTOR OPERATOk LICENSES: FITNESS FOR DUTY (DRUG USE) \\ Absent evidence of error, a suggestion of chain of-custody errors is rejected where multiple samples or the same samples are analyzed by muluple labo. ratones with chain-of custody procedurcs, and cach test by each laboratory is consistent with each other, and where different and independent chemical tests of a sample result in consistent fmdings. l REACTOR OPERATOR LICENSES: FITNESS FOR DUTY The dutics of a reactor operator are complex and require the conunuous exercise of cicar judgment. An impairment of that judgment constitutes a threat to the public health and safety. t REACTOR OPERATOR LICENSES: FITNESS FOR DUTY (DRUG USE) A balancing of a predominantly good work record and frequent negative drug use test results against three positive drug use tests must be rejected because even the infrequent use of marijuana by a reactor operator poses too serious a s danger to public health and safety. i REACTOR OPERATOR LICENSES: REVOCATION / SUSPENSION ' Where a reactor operator was afforded opportunities to cease drug use and retain his position as a licensed operator after cach of two previous positive drug use tests but failed to do so, the repeated use of drugs is sufficient to cause his operator's license to be revoked, and his prior work record, however favorabic, is not a factor that can alter that resull l REACTOR OPERATOR LICENSES: REVOCATION / SUSPENSION Under the Atomic Energy Act a license can be su! pended for any reason for which it would not have been isstad initially and a record of marijuana consumption over a 2-year period would have barred the issuance of a license. Thus, the Commission may decline to renew a license on these grounds because such conduct prevents the Commission from having reasonable assurance that the operator could continue to operate a nuclear reactor competently and safely. l 1% l l 1

REACTOR OPERATOR LICENSES: CEYOCATION/ SUSPENSION The risk posed by repeated use of marijuana is, pursuant to the Atomic Energy Act, of such magnitude as to warrant the Commission to suspend immediately a reactor operator's license pursuant to 10 C.F.R. 5 55.61 and to refuse to renew that license pursuant to 10 C.F.R. I 55.57. INITIAL DECISION By letter dated July 1,1988, hiaurice P. Acosta timely appealed

• the suspension of, and refusal to renew, his Rextor Operator's License by the Nuclear Regulatory Commission (NRC or Commission). The Commission's action was taken on June 15, 1988. 53 Fed. Reg. 24.383 (1988). Following appointment of this Board and discovery, a hearing was held in San Diego, California. on hiay 24 25,1989, hir. Acosta did not present any testimony at the hearing.

For the reasons set forth within, we uphold the Staff's decisions with respect to hit. Acosta's license. i 1. STATENtENT OF TIIE CASE On July 1,1982, hiaurice P. Acosta received a license to operate the Unit 2 and 3 reactors at the San Onofre Nuclear Generating Station owned and operated .j by the Southern California Edison Company (SCE). The license was renewed most recently on July 1,1986, for a 2-year penod, and. on hiay 12, 1988, another request for renewal was filed. In September of 1981, SCE published its policy concerning off duty drug - I l use which, inter alia, barred marijuana use by pcopic like hir, Acosta who j had unescorted access to protected areas. Tr.15 211 NRC Staff Exh. 5. The l SCE program evolved from phased disciplinary actions of varying severity to, l in 1986, termination after the third positive drug test. NRC requires that such license applicants state that they have to drug or narcotic habit on NRC Ibrm 3%, and, since 1987, NRC has required an evaluation of license applicants by a medical practitioner which includes an evaluation for drug abuse.10 C.F.R. Il55.21,55.33 (1988). 3 The appeal ns na receaved by the tacenses Panet unul trud-Augiast; ous Boa il was appanted August 18. 1988. De trne to complets dancovery was entended. and, fouoses Lnal, a bnertng schedule was estabhshed staft's propmed findegs of fact and canctusions of tse were umely fJed, but appcDant raded to rile anyoung 197 I r

s - i On June 15, 1988, the NRC Execudve Director for Operations issued an unpublished " Order Suspending License (Eliective immediately) and Denial of Application for Renewal of License" (the Order). The Order recited that under the SCE drug testing program Mr. Acosta had tested posidve for marijuana on March 6,1986, May 12,1986, and May 28, 1988, and that afict each of these initial screening tests had been confirmed, SCE had counseled Acosta to emphasize that his access authorization to the reactors was contingent on i abstaining from the use of illegal drugs. R410 wing the third conftrmadon, SCE administratively suspended Acosta's protected area access. Staff Exh.1. As authority for suspending and refusing to renew Mr. Acosta's license, the Executive Director's Order stated that The character of the individual, mcludmg the indmdual's estrene of sound judgment, is a f considerauon in issums an operator license. See Secuon IB a of the Alumic Energy Act i of 1954, as amended. In determining whether or not an indsvidual seeking a license to he s a reactor q>erator has the necessary charrier, including sound judgment, the Commission may tde into account a histor) of illegal drug use by the apphcant. /d. at 2. Section 182 of the Atomic Energy Act, as amended (the Ac0 specifies. l the factors, including character, to be considered by the Commission in issuing a license and authorizes Commission issuance of implementing regulations. 42 r U.S.C. 6 2232(a) (1988 ed.). Those regulations are found in Part 55 of Title 10 r.f the Code of Federal Regulations. r Subsection (a) of section 186 of the Act provides in pertinent part that Any 14ense may he revded,, because of conditions revealed by.. any report, record, or inspection or other means which would warrars the Commission to refuse to grant a l heenie on an original application... or failure to observe the terms and provisions of this a Act or of any regulauon of the Commission. 42 U.S.C. 6 2236(a) (1988 ed.). See also 10 C.F.R. 5 55.61(b)(2) (1988). While recognizing that Acosta's positive tests "did not necessarily establish that the Licensee was incapacitated at the time the samples were taken," the + Order stated that Acosta's history suggested a " pattern of behavior and lack of sound judgment that may be inimical to the public health and safety." Staff Exh. I at 3. Consequently, the Executive Director concluded tha: the Commis-sion did not have reasonable assurance that Acosta would perform his dutics "with sufficient alertness and ability to safely operate,,." the San Onofre nuclear reactors. Id. Finding that Mr. Acosta's history of positive drug tests established adequate grounds under section 186 of the Act and implementing regulations and that permitting Acosta to conduct licensed activitics would be inimical to the public health and safety, the Executive Director for Operations suspended Mr. Acosta's license and refused to renew it. Staff Exh. I at 3-4 198 + 9 e P P 4 se

"( 1 f.

y ~j[y in his July.1,' 1988 answer and request for hearing Mr. Acosta cited an April 15, 1985, and a March 11; 1987 Appraisal of Work Performance, issued before and '.sfler the first two positive marijuana tests, reporting that his A tiability and professionalism exceeded SCE's requirements.2 The letter enclosed the. performance appraisals and twenty-nine co-workers' testimonials to Mr. Acosta's competence and professionalism..He argoes strongly that his ability to serve as a reactor operator was never impaired in 16 years of -.

nuclear work, including 8 years' service at SCE, and that his performance was !~ so satisfactory that SCE had selected him for senior reactor operator license training. During opening statements, Mr. Acosta's counsel argued' that two of the pos-itive tests resulted from passive inhalation. On cross examination, Mr. Acosta's counsel questioned the reliability of the tests themselves, both with respect to l chain-of custody procedures and the threshold level for making a positive find-ing of active marijuana use.

II. - : DECISION '

A. Results of Mr. Acosta'sTests 1. The Southern California Edison Testing Program' Under the SCE csting program,* all urine samples. cdiccte'd from San Onofre personnel are first collected and labeled in San Onofre facilitics. After collectbn the samples are split; one part, or aliquot, goes to SCE laboratories for prelimmary assessment of temperature, specific gravity, and chemical screening, and the other aliquot is reserved to send to a contractor laboratory if SCE analyses show a possible positive result on drug screening. Tr. 39-40. The ( contractor laboratory analyzes at least three separate aliquois of samples sent to them. All must be positive before the laboratory declares,a positive result. Tr. 40. A total of four aliquots is therefore analyzed for each urine sampic.' Tr. 44 Chain of-custody documents preparco by SCE are forwarded to the CE resetor operator appraisals are conducted inannualiy. Mr. Acosu's neat appmasal was scheduled far August - 1989, su Tranaenpt of october 18.198s Prehearms Conference at 27. 3 Camsel also argued that the sCE randnm drug screeruns program violated Mr. Acosu's nahts asamst unrossanable search and seizure under the founh amendrnet to the Consutuuct and violated lus nght to pnvecy ' ? under arucle '. of the Cahfarrua Constituuan Tr. 6 7, Nether canautuuo.aal argurnent war, pursued further. and us and no reason to consider them in this Decisiart l

• The suff subpoenaed thies witria ses to tesury an the sCE drug-testing program.- Alberi Eugese Talley, an ICE employee, curruruly manages the subm.ance abuse program at the san onofre plant and previaualy had a sufr.

role m developmg the carnpany pokcy on drug abuse. Tr. tel7..Dr. touts Jambor a toseology manager for smithKhne Laboratones in Van Nuys. Cahforma, and holds a PtLD. m ar.alyucal charmstry. Tr. IW c8. Dr. Alan l Kaha is taborsiory Director at BPL Toascology Laboratory a part of Central Diagnosuc laboratory (CDL) in - Tarzana Cahfortua. holds a Rt D.. and he ea:ensive expeneice manaams ionicology laborsioner Tr.153-$s. 199 e r ] =. a

t l.' contractor laboratories with each urine sample that is sent. The contractor laboratory maintains the permanent chain-of+ custody records. Notations made ~ by SCE personnel are also forwaried to the contractor laboratory, and forms l containing notations made by SCE employees are retaineel by SCE.:Tr.170-74 SCE has performed about '40,000 drug tests since its prtgrarn began le. 84 . No evidence was offered to suggest that atty tester at the San Qnofre site ever ' falsified drug test data. Tr. 78. De most widely used tests for marijuana (and the ones' used to analyze : Mr. Acosta's samples) are the Enzyme-Multiplied Immunoassay Technique (EMIT), and the gas chromatography / mass spectrometry test (GC/MS). Flynn-t Cone Testimony, ff. Tr. 278, at 3, 8. Mr. Acosta was involved in intensive drug testing at least from March 1936 to June '1988. Staff Exhs. 2,3, and 4. Acosta Exhs.1 10. During this tirne at Icart thirteen urine specimens were collected at closely spaced interval > and scrd to contractor laboratories for drug analysis Most of these analyses were found - to be negative for marijuana metabolites and all were negative for any.cdier prohibited drug. Three specimens collected from Mr. Acosta were rcported. to' be positive for marijuana by the' laboratories. %c positive specimens werc collected on March 6,1986, May 12,1986, and Msy 28,1988. Staff Exhs. 2, 3, and 4, respectively. Two of the three samples taken from Mr. Acosta that ' showed positive results were analyzed by SmithKline Laboratories. Staff Exh',.'2 and 4.,That laboratory reported that the March 6, IP6 sample was positne - on the screening test (EMIT) andcontained 17 micrograms per liter (gg/L) by - 4 l th_c quantitative test (GC/MS) and that the May 28,1988 sarnple, consisting of three independent samples, ranged from 50 to 70 pg/L by the screcrung test ind 1317 pg/L by the GC/MS test; a he May 12,1986 samp!c was sent to Central Diagnostic Laboratory (CDL) { in Tarzana California, for screening analysis. Upon fmding 129 nmograte per milliliter (ng/m15), a positive result on thc screening artlysis, the sampic was j subsequently sent to the Poison Laboratory in San Diego, California, which was under contract to CDL to perform GC/MS analyses. That laboratory found 45 i ng/ml marijuana metabolite in Mr. Acosta's urine by tht GC/MS method. Staff Exh.3. SmithKline Bio-Science Laboratory which produced the results shown in ' l Staff Exhibits 2 and 4 maintains strict chain of c'ustody on sarnples it receives ; l 5 for analysis. When SmiahKline receives a' sample, it removes an al,iquot for j analysisi The vials were received in the laboratory labeled with Mr. Acosta's name, a client rmmber, ;md laboratory numbers, all of which were affixed to the i sampic at the San Onofre sitc. The identifying numbers that appeared on the 5 The unit or ag herog ams prilaur, as equivalent to ese et.1 ormeasuremenk nanogrLms per em11diwr. which is used als(whm m 0.as Doctsum. surT Enh. 4. 200 ' t s b 4 is i) t;; .,g 4

-l f . sampic vials also appear on the SmithKline reporu.: Tr.11517. Mr. Acosta's - " sample" of May 28,1988, was in reality three sampics independently collectedi labeled, and documented by SCE and processed by SmithKline. Staff Exh. 4 This was done because Mr. Acosta's first sample of that date showed abnormally. low specific gravity which might indicate excessive dilution possibly due. to the intake of fluids prior to the test. Tr. 54 55.--'The results from the three independent samples were consistent with cne another within what appears to be normal sampling and processing error. Results for the three samples showed, in chronological order of collection,17,15, and 13 pg/L. Tr.170. The sample that was analy:'ed by CDL (Staff Exh. 3) was done'with an additional transfer-of. custody step because, while the initial screcrung was performed by CDL in their laboratory, the final confirmatory analysis could not be performed by them and accordingly they transferred an aliquot of Mr. Acosta's specimen of May 12,1986, to the San Diego Poison thboratory for tSe CC/MS confirmatory analysis. Tr.156,161. In accordance with ordinary ; bustacss procedures, a chain of custody form and request for analysis was cr.cated prior to transferring the sample. The form and sample were conveyed - in a lo: Led bag by courier to the Poison Laboratory where it was delivered to-their entry persooncl. Results of the Poison Laboratory analysis were provided - to CDL by phone /md hard copy. Tr.156 57. CDI.; in turn produced the report-to SCE as shown in Staff Exhibit 3. The result from the Poison Lab GC/MS analysis was consistent with CDL's semiquantitative analysis in that CDL and j Poison Lab both found the May 12,1986 specimen to be the highest in marijuana metabolite of any of Mr. Acosta's three positive samples, I l 2. The Chain of Custody issue Through cross examination,'Mr. Acosta challenged the chain of custody for

j his urine samples collected and tested by SCE and its contractor laboratories.

The Staff objected to this line of inquiry on the grounds that Acosta had-stipulated to the truth of the matters-contained in Staff Exhibits 2, 3, and 4, the laboratory results showing marijuana-metabolites in Mt Acosta's urine. j Mr. Acosta on the other hand asserted that he had only stipulatt,.1 to the fact that ; l the staff exhibits were in fact 'he reports that were submitted by the contractor i laboratories. 'Ilr.172. The. Board permitted Mr. Acosta to pursue this line of inquiry but ruled that simply' questioning the chain of custody would not be. sufficient to defeat the representation that the chain of custody on Mr. Acosta's = l urine samples was properly maintained. Tr.176-77.' l Although chain-of-custody documents specifically rebting to Mr.: Acosta's - sample of May 12.1986, likely exist at CDL, they were not produced at hearing - nor were they later supplied to the parties as requested by the Board. Tr.161-62. A:. ault of the opcarent misunderstanding between the Staff and Mr, Acosta' 201 i l i k i l

e,{ y y about the stipulation, none of the witnesses were prepared on cross examination to document specifically the chain of custody for each of Mr. Acosta's unne ,pecimens. Each witness, however, demonstrated professional awareness of the need for chain of custody procedures in laboratory practice and described chain-of custody procedures followed by his place of employment in the ordinary. course of business. De Board found the witnesses knowledgeable and credible. Mr. Acosta presented no evidence to suggest that there was any defect in the chain-of-custody procedures followed in handling his samp!cs. De Board concludes that each of the three critical facilities that haskc wine specimens taken from Mr. Acosta. SCE, SmitbKline Bio-Sciences Laboratory, and CDL has chain-of custody procedures for the handling of urine samples and - that each follows its procedures in the normal course of business. However, that: conclusion is not dispositive of the question raised by Mr. Acosta as to whether error specific to Mr. Acosta's samples might exist. The Board finds no evidence that all three of Mr. Acosta's positive samples could have been mislabeled, tampered with, or wrongly attributed to him, We consider, first, that chain-of custody procedures are in place in each of the j organizations that handles specimens for drug testing. Each organirxion is. experienced in handling large numbers of urine specimens, ' Second, we find that none of the drug testing reports show discrepancies or inconsk, tent labeling - or results that would be suggestive of error or tampering. Third, there is considnble redundancy or potential for replication built into the procedures for sampic handling. For example, each finding of positive result is based on at least four analyses, one for screening at SCE and three for screening or confirmation - at contrxtor laboratories Each is performed on an aliquot of the original sample by independent methods. Each aliquot requires independent transfer of sample numbers and name. Thus,' there is an opportunity for discrepancy or error in transcribing descriptive sampic information on any one aliquot, but there is no evidence of any such error. For example,.the sample collected on May 28, 1988, was in reality three independent samples. Each was handled with independent labeling and process- ] ing. De analytical results were consistent with one another. In fact they show a systematic decline in concentration with the passage of time which is consistent ' f with the fact that marijuana metabolites have about a 24 hour biological half life in the body. Tr,228. Those results further support the conclusion that all three j samples were taken from the same person and were handled in the analytical process without error in labeling or tampering. Similarly, the sample of May 12, 1986, was analyzed by two different laboratories, CDL and Poison Lab.' The results they produced were consistent with one ancther since both laboratories found very high levels of marijuana metabolites by their respective independent methods. Rese consistent results support the conclusion that there was no mislabeling of aliquot at the respective 202 ia h i .s - - N-

~cv:(' g.W ~ laboratories for this sampic.cWe note further that Mr. Acosta has been tested numerous times, mostly with negative results. His is supportive of a conclusion I that no systematic or malicious tampering with Mr. Acosta's samples occurred over the testing period. Finally, we note that there is no evidence of any instances -i of deliberate falsification of data at San Onofre.'. ^ De foregoing analysis does not rule out absolutely the possibility of iso ' l lated error in the handling of Mr. Acosa's urine sampics.' Nevertheless, the procedures followed by SCE and its contractor laboratories contain replication - - i and opportunity to check for discrepancies in data recordsg, and for internal l consistency within data sets, in this case there is not a scintilla of evidence-of recording discrepancies. The data sets are internally consistent for the data, l shown on Staff Exhibits 3 and 4, While there was no opportunity to subject the first positive test (Staff Exh. 2) to such independent scrutiny, the fact remains that that sampic also was subject to at least three (and likely four) independent ( analyses. Tr. 7172. Consequently, the suggestion that chain-of custody errors might have oc- - curred with respect to urine samples collected from Mr. Acosta stands as a bare hypothesis unsupponed by any factual data in this record. We find that the likelihood of chain of custody error in the handling of Mr. Acosta's sampics is de minimis and that the preponderance of evidence supports the opposite con; clusion. Based on the foregoing, the Board concludes that the data attributed. - to Mr. Acosta as presented 'in Staff Exhibits 2, 3, and 4 were accurately at-' tributed to him and that they..wcre obtained from urine specimens collected from Mr. Acosta on the dates specified. ~ 1 1 3. Accuracy of Test Results l ~ In cross-examination Mr. Acosta questioned the accuracy of the test results that are given in Staff Exhibits 2,3, and 4. His principal concern appears to be whether the chemical methods used by SCE and its contractor laboratories. could be in error by falsely reporting the presence of marijuana metabolites in Mr. Acosta's urine (a " false positive" error). Dr. William E. Flynn, M.D., and Dr. Edward J. Conc testified for the Staff. on the matter of reliability of chemical testing for marijuana metabolites in urine. Dr. Flynn is a medical doctor and practicing psychiatrist on the faculty of the Department of Psychiatry, Georgetown University Hospital, where he is Director, Alcohol and Drug Abuse Clinic.:Dr. Cone holds a Ph.D in chemistry-and is employed as Chief, Laboratory of Chemistry and Drug Metabolism of the. Addiction Research Center at the NationalInstitute on Drug Abuse. Flynn-Cone Testimony, ff. Tr. 278, at 12; Exhs. I and 2. Mr. Talley of SCE and Dr. Jambor of SmithKline Laboratories also provided relevant testimony.on the reliability-L 203 l. l i l - --n n.. e s - -, 4 ,.r-- , +., .,r,. a

'l f of the testing procedures. The Board found the witnesses knowledgeable and credible on the reliability of drug lesting techniques. nc NRC Staff objected to inquiries into the accuracy of test results reported in Staff Exhibits 2,3, and 4 because it believed that Mr. Acosta had stipulated j to the accuracy of the results prior to trial. Mr. Acosta claimed, however, that l he had only stipulated that Staff Exhibits 2. 3, and 4 were business records; ^ produced in the ordinary course of business. De Board ruled that Mr. Acosta.- could inquire into the accuracy of test results. Tr.17175. When manjuana is smoked it is distributed to various' parts of the body and breaks down into metabolites that are excreted in the urine. The EMIT ' 1 ~ test is performed by adding a reagent to urine that contains antibodies that bind specifically with marijuana metabolites.- A second reagent that also binds ~ with antibodies and is labeled with an enzyme is added.' This reacts with the unfilled antibody sites and results in reduction in the enzyme xtivity off the introduced reagent, ne remaining (unbound) enzyme activity is measured spectrophotometrically. That measurement identifies the amount of marijuana metabolite in urine and makes'possible 3 measurement of marijuana in the - original sample. The EMIT test is accurate for the detection of marijuana-metabolites in urine. Flynn Cone Testimony, ff. Tr. 278, at 3 4. EMIT was; used as a screening test for Mr. Acosta's samples. Id. at 8; Tr. 39-40. The GC/MS-test is specific' for onc ' marijuana metabolite,11 r.or-delta-9 tetra-hydrocannibinol-9 carboxylic. acid (THC acid).. In'this test the urine sampL.s first subject to a number of chemical treatments which separate THC acid from urine, partially separates the THC acid from other compounds, and converts it to a derivatized chemical form which is amenable to detection. The detection step is accomplished with a GC/MS instrument. The partly' purified J sampic is first passed through a chromatographic column which separates the I altered THC acid from other compounds by virtue of differential migration rates through the column. De time (rctention time, Rt) required to pass through the column is specific to each compound present in the sampic. As THC molecules : cmerge from the column at a characteristic Rt they are ionized into inolecular fragments in a reproducible way by the mass spectrometer, The fragments yield . a pattern or fingerprint which is measured by the mass spectrometer every few. l milliseconds. The integrated response is drawn as a tracing or chromatogram. l Proper performance of the test requires measurements against standards that + i are used to characterize retention times on the column (Rt), jon patterns,Lthe : '~ abundance of THC acid present, and responses of standards and control samples j used in instrument calibration. If the unknown sample matches the known. standards in these respects, the unknown can be identified as THC acid and the " amount present can be determined. The specificity and accuracy of the GC/MS method is such that it is the accepted standard for confirmation of drug tests in l forensic cases. Flynn-Cone Testimony, ff. Tr. 278, at 4-7. ) 204 3 2- .i ? e T-t-v-L- e -"Y&

) i ,1 I Mr. Acosta questioned the witnesses as to whether false positive results could l L be obtained by the foregoing procedures. However, he presented no evidence 'I and the witnesses knew of no mechanism that might result in false positive - determinations on Mr. Acosta's unne samples. Tr. 87, 114, 189 90. I E While no evidence,of any false positive occurrence was presented, the Board -

i mfers that falsc-positive results could appear if unne innocently contains some l

compound that reacts similarly to marijuana metabolites in the tests or if a ~ (' - urine specimen is either accidentally or deliberately contaminated with marijuana - 4 metabolites. When questioned about the EMIT test, Dr. Cone could think of no compound that would mimic marijuana metabolites in that test..Tr.190.- There is no testimony in the record concerning cither accidental or malicious l* contamination of urine sampics with an extrancous source of marijuana metabo - I lites. However, the Board notes that Mr. Acosta was tested for drug use at least thirteen times during the period from March 1936 to June 1988. Staff Exhs 2, 3, and 41 ' Acosta Exhs. I through 10. Ten of these samples were negative: .and three were positive for marijuana metabolites. Ten out of thirteen negative l results further supports our conclusion that there are no systematic errors of. contamination in the routine laboratory procedures at issue here. As previously noted, each urine specimen is' tested four times on separate aliquots drawn from the original sample. An EMIT test is performed at SCE laboratories for screening purposes, two EMIT tests are then performed at the' l contractor laboratory, and finally a GC/MS test is performed by the contractor-1 for confirmation. Tr.109-10.' When all tests are completed, they are reviewed ' by an SCE medical doctor for consistency and specifically for the possibility' that the person tested might be taking some legal substance that might account for a positive result. Only after this review and with all four tests positive does SCE find that the drug test is positive. TY. 38-45.' A positive irnlysis on an individual. specimen is found. if the specimen p contains marijuana metalelit::s in sufficient quantity to exceed predetermined cutoff icvels. The cutoff levels are different for the EMIT test and the GC/MS : test, it is currently SCE policy to use a cutoff level of 50 ng/mi of marijuana metabolite as determined in the EMIT test although in the past it has used 100 L i

ng/ml. Tr. 75 76, 97 99. laboratories use 50 ng/ml in EMIT tests' and 10 ng/ml as cutoff for the GC/MS test. Tr.11013. De two tests differ because EMIT measures an array of several metabolites in urine while the GC/MS test measures a single metabolite. EMIT results are therefore 'always higher than GC/MS results for the same positive sampic although there is no constant ratio of the two. Tr.117-18. The cutoff levels are selected in consideration 'of the -

accuracy and precision of the test. Tr.11819. De GC/MS test has a 99% level ~ of confidence of detection at the 10-ng/mi level; the EMIT test has approximately - 95'4 probability of detection at 50 ng/ml. The probability of correct detection + improves as the concentration of metabolites increases above the cutoff level. l 205 t l =i

• i i

m*.p Both tests have a coefficient of variation'of approximately 10E Tr.11819, 124, 225 27. The Board is persuaded from its review of methodology that the chemical analyses of Mr. Acosta's urine specimens were performed using reliable procc-dures that are highly unlikely to produce false-positive errors. The possibility of. false positive error in the analyses is low because a finding of positive result by SCE is based on four independent analyics, after review of the case by an expert to rule out the possibility that legal substances could have produced a positive result. Ibrther, the EMIT test and the GC/MS test are both highly specific for-detection and measurement of marijuana metabolites, and the tests have indepen-dent chemical and physical bases for the measurements. The EMIT test depends on a specific chemical reaction between antibodies and several metabolites fol-lowed by spectrophotometric measurement,' while the GC/MS test depends on r separation of a single metabolite by' gas chromatography and detection by the physical method of mass spectrometry, 'The independence and_ specificity of the .l respective methods gives strong corroboration to the expert's opinion that there are no extraneous chemict.1 molecules that might be present in urine that could 1 i positively interfere with the test results We find it particularly unlikely that an - I extrancous molecule could produce false-positive results in two tests that differ - in their physical and chemical bases for detection and measurement,' Finally, we find that no discrepancies in data recording or internal inconsis-tencies in data sets have been reported for Mr. Acosta's results. The margins for error in the tests of about 10% and the confidence levels of detection at the respective cutoff levels for the two tests further support the conclusion that the tests are reliable for detection of marijuana metabolites in. urine,' While the EMIT test that is used for screening has lower levels of confidence of detec-tion than GC/MS, none of the quantitative results reported for Mr. Acosta are marginally close to the cutoff levels.' The results from both EMIT and GC/MS are sufficiently high that they can bc distinguished from the respective' cutoff ~ levels with high confidence. in view of the foregoing, the Board finds that the marijuana test results reported in Staff Exhibits 2,3, and 4 are accurate and reliable and that there-is no evidence that any of the results can be attributed to false-positive errors- . arising frorn the analytical processes.- 'l t t i 'The durd unne sample caue: tad as May 28,1988, showed 50 ngterd by the DtrT inst which is a the cutaff level. However, die oth7 rwo sample couected earher that day were unamingumasly higher than the cutoff level. All three or thees sample sacended the cutoff level or the oC/Ms test by a apuficant margart s ./ I 4 g

p- . a - Q kh f t d 4. The Passin Inhalaalon Claim Mr.'Acosta argued that the 6rst and third of the urinalysis / drug screening ; examinations that he took were positive, because he was exposed, immediately before those tests, to an environtrent containing smoke from what he believed: at the time to be marijuana cigarettes. : TV, 6; see also Prehearing 'Tr.15. Mr. Acosta presented no evidence to support his passive inhalation claim. De Staff presented extensive testimony through Dr. Cone (ff. Tr. 278, at 911) to show that Mr. Acosta's passive inhalation claim was without merit. Dr. Cone described a series of studies he conducted regarding the extent to - which passive inhalation of marijuana smoke condd result in positive drug tests c ~ (id. at 8; Tr.190-91).- The studies demonstrated that very extreme conditions must be endured for a person to reach the marijuana levels found in Mr. Acosta's - . test results. Tr.194 95. In one such study wherein subjects were exposrd to the l smoke of sixteen marijuana cigarettes with a marijuana potency of commonly. - used cigarettes, the urine levels were equal to or higher than those found for - Mr. Acosta. The study showed that absorption of amounts of marijuana sufficient ; to test positive for up to 24 hours required substantial exposure to large amounts ~ of smoke for an extended period of time in a small, unventilated room. Subjects J k in that study had to wear goggles to remam in the room because of the smoke irritation.. Passive exposure resulting.in marijuana metabolite levels found in : Mr. Acosta's urine was hardly likely to be found in a social situation.~ Tr ~ 195,. 202.- I In other studies in which five male subjects were exposed to the smoke from four marijuana cigarettes for a period of I hour in a small unventilated room, - the highest THC acid concentration in the urine of cne person was,12 ng/ml. ) immediately after the exposure. 'One other suttet had 8 ng/ml THC acid in his urine and the other three had none. Flynn Cone : Testimony, ff. Tr,278, at 9-10. Peak levels in urine occur immediately after exposure, and they decline with the passage of time. It would be extremely.unlikely for levels found in'. Mr. Acosta's urine to occur several hours after a passive exposure. Tr. 203 04 When Dr. Cone's experiments =were altered to emulate a' social situation - l l by simply improving the room ventilation by leaving a door open, none of the j subjects being tested for passive inhalation had marijuana metabolites m thel 4 l urine. Tr. 205. l Mr. Acosta.had 17 ng/mi-and from 17 to.13 ng/ml (in' three tests) inj l= unne on the occasions for which he asserts passive inhalation. Staff Exhs. 2,: l 4 Dese are all higher than any experimental result found by Dr. Cone except under the most extreme conditions which are unlikely to occur in a social situation. Mr. Acosta's test'rcsults are reliably distinguishabic from Dr. Cone's test results within the error margins of the test. Tr.' 227. Further, ' i Mr. Acosta presented no evidence concerning the circumstances surrounding the l 207 - h l. i L, ' +

1 t alleged passive -,,.. t mud less any evidence suggesting that the extreme j conditions d 4 Dr. Cone actually prevailed. Accordingly, the Board l finds that.

laim that his urine tested positively for marijuana j

because he v / exposed to marijuana smoke is without meriL B. Impact of Marijuana Use i 1. Complexity of Reactor Operator Duties and Responses i N.K. Hunemuller, Reactor Engineer in the Operator Licensing Branch of the' l P Division of Licensee Perfortnaace in the Office of Nuclear Rextor Regulation (NRR), and LA. Zwolinski, Deputy Director, Division of Licensee Performance i and Quality Evaluation in NRR, lesdfied on the scope of dutics, responsibilitics,- and responses of a rextor operator such as those at the San Onofre facility,. Tri 278 at 3-30. Bey stated that the reactor operator's primary responsibility.- 1 !s for the safe and efficient operation of his assigned equipment. < Idc at 15, 24 He is responsible for operation within the requirements of the opernting. li:ense, technical specifications,' NRC orders, approved station procedurcs, and l operating instructions he unit reactor operator is authorized to shut down the j reactor if he determines the safety of the unit is in jeopardy or if operating parameters exceed the reactor protection setpoints and an automatic shutdown has not occurred. Id. The station operating procedures also set out additional reactor operator responsibilitics, most notably, taking timely and' appropriate-action during abnormal or emergency situations. Id. at 1617.l s The reactor operator is also often responsible for directing others in the pet. formance of plant functions. Id. at 22-23. The reactor operator must be fa. miliar with a large number of station procedures including individual systems normal operating procedures, integrated plant normal operedng procedures; an-nunciator or alarm response procedures, selected equipment.or test sunciljance procedures; abnormal conditions operating procedures, tad emergency c9eraz-r ing procedures. Id. at 23. . The witnesses testified further that it is not enough for a reactor operator to learn his job and perform it by rom. There are far too many procedurcs/ In addition, it is the reactor operator's obligation to determine from the purpose of a particu ar procedure whether it is applicable to a given situation %c reactor i operator must constantly exercisc judgment based on his knowledge of plant procedures, technical specifications,' equipment, and his continuing assessment of the condition of the plant. Id. De Board concludes that the dutics of a reactor operator are complex and [ require the continuous exercist of clear judgment.. It further concludes that impairment of that judgment constitutes a threat to public health and safety.. i 208 t ? { -6 s ? ~_.

2. Effect of Mar (fuana on Performance Against this background; Dr. William E. Flynn Icstified to the effects'of marijuana usage? Dr. Flynn emphasized that the most significant effects of marijuana in the case of a reactor operatof were those relating to the mental function, particularly impairment of cognitive and psychomotor activitiesi Flynn ; Testimony, ff. Tr. 278, at 1216. He testified that in the area of learrung, the detnmersal effect of marijuana appears to operate pnmanly - through its inHuence a short term memory.- Marijuana affects a central area of the brain, interrupting normal nerve conduction pathways and makmg recent bits of information unavailable for cornparison. The learning process requires such compansons as well as evaluation of infonNtion for meaningful retention to take place. Laboratory and classruom i expenence show that a person using marijuana does not retam informanon and, consequently, _ j - has difAculty maintaining a reasonable auention span. He other prime area of research has been on those psychornator activities involved in -l gerating compten machinery such as driving autornobiles, Rying airplanes, etc. De - demands of an operator in a reactor control room are at least equal to the demands on - an individual driving an automobile or flying an airplane. A vanety of defects produced by - the use of marijuana have been demonstratedi 1. Difficuhies in tracking, i.e. following a stimulus such as a light or verbal or wntten 3 directions over a penod of ume. A consistent findmg is that an individual under j the innuence of marijuana cannos maintain tracking. In dnving this shows up as an inability to maintain consistent dmances between automobiles. 2. Difficulties in responding to penpheral stimuli. The indisidual has less success responding to lights, directions, etc.. that are off to the side of his suention. In drmng situations, this may involve missing turneff signals, etc. 3. Rote responses in simple situations are unimpaired but respor ses in comptes situauons are dramatically impaired %r example,in a drivmg simulation where 3 the individual must respond to ar. m dent or directions for avoidance behavior l by using his memory and judgen..n and making compansons his performance is impaired. he greater the complexity of the required response, the more the impairment is apparent. _f 4. Inability to perceive impairment in funcuoning. h is regularly observed that the i manjuana user does not see his own mistakes and has a false high opinion of his 'l own performance. This misjudgement of performance is nut restricted to creauve l activity as in the case of the individual who thinks he has wnucn a masterpiece .j that is seen as worthless on sober reRection. h also applies to individuals who 'Dr. Flynn receiven his M.D desrae imm Georgetown 1 mversgy school of Medicme in 1957, lie is certaed vi - psycivatry by the Amencan Board of Psychiatry and % urology. lie has pracuced psyctustry for some 30 years. 'I spectahzmg in the area of drug abuse smco 1972. In this role he duected the Alconol and Drug Abuse Clanic at Georgetown Umversuy for the past 15 years. In addiuon to clamcal prscuce wherman he has treaiad hundreds of =, drug users and addacts, he has tau 6 t at has own and other msututaats and has served as a ccmsuhant to many h agencies, includmg the Psychaatac Advisory Board-Vug.ma state Beant of Medical Emanuners, the CIA, and the Wastungton Redaluns. lie wmes and lecturai saiensavely on drug abuse and addicuat. Flynn Tesumuny, ff. Tr. 278, Cumculum Esponence/Vuas. 209 i i 'l. I i l i

9 3, p ' think they ase doing sauemely weu in an abaacle course saly to learn that they - havu knocked over au the barners. . It is imponent to note that these impairments can persist for some hours shar the ' individuals were aware that he/she was high. In empenmersal situadens. ahhough - the subjecuve expenence of being high had passed. the cognaive and psychomotor impairment persisted.. most of these effects are seen after smoking small-amounu. The concenusuon of manjuana in an individual after smokmg 12 cigareues can vary tremendously dependent upon the individual's sue. weight. manner of smoking etc. . These effects have been estimated to last anywhere from 410 hours following the time the ind.vidualis high. s Fivnn Testimony, ff, Tri 278, at 1215.~. Dr. Flynn, based on the testimony of. Messrs. Hunemuller and Zwolinski, pointed out that the functions and responsibilities of reactor operators (the complex responses necessary in the operation of reactors, and,.in particular,' emergency situations) require a considerable amount 'of. careful sequencing of steps, repeated judgments about the necessity of further safety measures, and a critical ability to use extremely accurate judgment. 'Ihe routine duties of a reactor operator might not be affected at all by some levels of marijuana, but, in. a complex situation, the operator's performance would be unpredictable.lThe t reactor operator has to be able to react in a flexible manner to' unpredictable events; Hunemuller, Zwolinski Testimony, ff. Tr 278, at 27 29;'The person impaired by marijuana cannot do that. The reactor operator needs to be acutely - aware of his own level of functioning: : a person impaired by marijuana lacks that awareness. In other words, the reactor operator's performance andjudgment must be completely and consistently predictable, and that is impossible for-someone in a stage of marijuana impairmenL l Dr. Flynn concuned with Dr. Cone's' opinion that the results of Mr. Acosta's test are conclusive that he was a marijuana user at the time of the tests. Flynn : l Cone Testimony, ff. Tr. 278, at 9 11 12. Dr. Flynn concluded that three positive unne tests for marijuana suungly indicate an inability to refrain from drug L use and the presence of a chronic problem. Any person in a sensitive responsible posinon, who tests positive repeatedly, when there is a clear knowledge of the likelihood of funher ' testing. demonstrates a definite inability to refrain from drug using behavior. These positive test results could indicate a lack of awareness by this individual that he has a problem with marijuana use. I believe there would be a very strong likelihood of relapse to a use of a small. arnount of marijuana or to a very large amount. -lhe individual without a perception of his _ problem would be constandy risking the possibihty that one day he would repon for work accidenully under ;he influence of marijuana. The repeated incidence of testing posidv, l 1 1 210 l. l h e } k 4 r S -y ea v d -*e 6

p ] l, .{IthN l wou,d 'suggest that the individual had poor impulse conuol and very hule percepuan of the ' danger he was causing to himself and to those amund him. = Flynn Testimony, ff. Tr. 278, at 11 12. In a letter to the Director of the NRC Of6cc of Enforcemes, dated July 1, 1988, and presented to the Boarti at the Prehearmg Conference on October 18. -l 1988, Mr. Acosta points out: 1 :. In the meetings I've had with Southern California Edison (SCE) representauves I've been i l ' sold neither my knowledge level to perform my job, not my abihties to perform my job, not my 6tness for duty has ever been questioned due to se failuies of the drug screen tests. These statemenu were made wnh a uruon rentesentauve present at the meetmgs. I have enclosed eqUs of my two most recent Appraisal of Work Performance; the fitu i. dated April 15, 1985, the second dased Mardi 11,- 1987. As you can see, the appraisal l improved even though I had failed two tests during the time frame from April 15,1985 to. March II,1987, and as stated on the appraisal, my reliability and professionalism eseceds the requirements as set fonh by SCE.1 have worked hard to achieve this status, and the appraisals are a true sellection of my dedication to the safe and efficient operations of SONGS uruu 2 . and 3. i ( Mr. Acosta submitted exhibits in his defense showmg numerous negauve i l~ drug test results during the period from March 1986 through March -1988 I (Acosta Exhs,110) and favorable work performance appraisals prepared by his supervisors at SCE. Acosta Exhs.11 12. Mr. Acosta's defense apparently contemplates that the Board should apply a= l balancing test in deciding whether to sustain the Staff's order in this case. On l that theory, the balancing of a predominantly good' work record and frequent negative test results against three incidents of drug use could result in a decision in his favor. We must reject such a balancing test, however, because even the infrequent use of marijuana by a reactor operator poses too serious a danger to public health and safety. i Mr. Acosta had been afforded the opportunity to cease drug u'.c and retain his position as a licenset operator after each of Ids first two positive tests. 'Tr. 36.-

37. In these circumstances, the Board finds that the repeated use of drugs by Mr. Acosta is sufficient to cause his operator's license to be revoked, and that' his prior work record, however favorable, is not a factor that can alter.that l

judgment. The Board is persuaded that Mr. Acosta's three positive urine tests for marijuana establish his use of marijuana. The Board is further persuaded that br, Acosta knew the risk he ran by continuing usage. Consequently, the Board. cannot tind that level of trustworthiness and reliability required of one in the . sensitive position of reactor operator. The Board must be concerned, first and j foremost, about the risk to the health and safety of the public, lj l l. I 211 J ) i }.

q d III. CONCLUSION Accordingly,' we find that Mr. Acosta has used marijuana on three separate occasions as evidenced by the confirmed marijuana screer.ing tests of March 6,. 1986, May 12,1986, and May 28,' 1988, and, concomitantly, that Mr. Acosta's claim of passive inhalation is not sustained by the record.. We fmd that the _- Southern California Edison testing program was accurate, complete, and fully reliable as the basis for the foregoing conclusions. We find further that the dutics. i of alrcactor operator are such that Mr. Acosta's confirmed ' usage of manjuana [ presents an unacceptable risk of danger to the public health and safety'in the ' operation of a nuclear reactor by him. We find that it'is clear as a matter of law under the Atomic Energy Actz ' that a license can be suspended for'any reason for which it would not have' been issued initially and that Mr. Acosta's' record of marijuana consumpti_on from 1986 through 1988 would have barn 4 the iuuance of a license to him! Similarly, we find that the Commission may decline to renew a license on the' same grounds because Mr. Acosta's conduct prevents the Commission from: having reasonable assurance that Mr. 'Acosta could continue to operate the-reactors at Units 2 and 3 competently and safely. Accordingly, we conclude that the risk presented by Mr. Acosta's conduct is, pursuant to the Atomic Energy. , Act, o such magn tude as to warrant t e Nuclear Regulatory Commission to f i h suspend immediately Mr. Acosta's license pursuant to 10 C.F.R. 5 55.61 (1988). and to refuse to renew his license pursuant to 10 C.F.R. 6 55.57 (1988).8-y Pursuant to 10 C.F.R. 62.760 of the Commission's Rules of Practice, this' Initial Decision will constitute the final decision of the Commission thirty (30). ( days from the date of its issuance, unless an appeal is taken in accordance with 10 C.F.R, 6 2.762 or the Commission directs otherwise. This Decision may bc appealed by filing a Notice of Appeal within ten (10) days after service of this Initial Decision pursuant to 10 C.F.R. 69 2.762,2.785 (1988),' Anything in the record not expressly addressed in this Decision is rejected as unsupported by the record as a whole or as unnecessary 'o reaching t l our Decision, i l 8 We ma' e no rinding as to what course of acuan or conduct on Mr. Acosta's pan winald be suf$ctent la reestabliah s a level of rehabshty and trustworuuness of judgment that weald warrant the Nuclear Regulatory Commission's issuance of a new reactor operamr heense to Mr. Acosta m the fuime. 8ar see 10 CFA H 26.25,26.26 (19s9). : 54 Fed. Reg. 24.497 98 0 989). 'Each appellant must fde a basi sugenans its posttica en appeal wuhm thirty 00) days after Ahng its Neuce of Appeal (farty (40) days if the stafr is the appellan0. Withm durty 00) days after the pened has sapund for the Alms and scrnce of the basfs of an appellanta (forty (40) days m the case of the stafr), a party who is not an amallant may file a bnet in suppott af, or m opposauon to, the appeal of any other peny. A respondag pony shaU lue a smale. 848Pesive bnet eely, regardless of die msnber of appeuants' bnets nied. See 10 CFA $ 2.762. ' l 1 l '212 i I-t e I e. p w

t f t . Order For all the foregoing reasons and upon consideration of the entire record in i this matter, it is, this 28th day of September 1989, ORDERED: That the June 15, 1988 Executive Director for Operations' Order Suspend-ing License (Effective immediately) and Notice of D::nial o! At plication for Renewal of License is sustained and that Mr Acosta's applicusu to renew his reactor operator's license is denied. T!iE ATOMIC SAFETY AND - ' LICENSING BOARD 6 Dr. Harry Rreman ADMINISTRATIVE JUDGE Dr. Jerry Kline ADMINISTRATIVE PJDGE B. Paul Cotter, Jr., Chairman 4 ADMINISTRATIVE JUDGE - Bethesda, Maryland i September 28,1989 I P s 213 4 l l-i +

l JJ5 1 J aa oggy Directors' Decisions Under 10 CFR 2.206-4 ? u k I \\ \\[r i V S-4 4 .............-......,._,,..,--,,..~.,_..,...,...~m.. ~ -...,..... '

Cite as 30 NRC 215 (1989)' DD 89 7 L-UNITED STATES OF AMERICA l l NUCLEAR REGULATORY COMMISSION 1_ OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS ' ? Robert M. Bernero, Director t In the Matter of -l ? U.S. DEPARTMENT OF ENERGY and NATIONAL AERONAUTICS AND SPACE ADMINISTRATION - (Gallieo Mission) September 25,1989 L ( - i ne Director denics the requmt of the Nuclear Energy Accountability Project that the Nuclear Regulatory Commission (NRC) intervene and stop the launch of l the Galileo spacecraft scheduled for October 12, 1989. De Galileo spxecmftL l' will carry substantial quantities of plutonium 238. De request relied upon Public Law 94 79 as authority for the NRC to stop the launch. De Director' concluded that Public Law 94 79 did not apply and denied the request on this - basis. DIRECTOR'S DECISION UNDER 10 C.F.R. f 2.206 INTRODUCTION. By a petition dated September 3,1989 (Petition), Thomas J. Saponto, Jr., on - behalf of the Nuclear Energy Accountability Project, of Jupiter, Florida, filed a request pursuant to 10 C.F.R, 6 2.206 that the Nuclear Regulatory Commission (the NRC or the Commission) intervene and stop the scheduled October 12, 1989, launch of the Galileo spe: craft. The Petitioe alleges that the launch of the Galilco spxecraft, which contains considerable quantities of plutonium 238, would be in violation of 42 U.S.C 65841, which the Petition states prohibits the NRC from licensing any shipments by air transport of plutonium in any form, whether exports, imports, or domestic shipments, with-the exception of 21S ..s u.

l li >j_,,g., c ',. '1 certain medical devices, until the NRC certifies that a safe container'has been developed and tested and shown to survive cenain lests. Dc Petition alleges a number of health and safety concerns should the launch fail and should the plutonium be dispersed in the atmosphere. By Imer to Mr. Saporito, dated September 15,1989, I acknowledged receipt of the htition of September 3,1989, and informed Mr. Saporito that a formal ^ i 4 decision with respect to this matter would be issued within a reasonable time. My Decision in this matter follows. BACKGROUND ( The Galileo mission has the scientific objective of conducting comprehensive investigations of the Jupiter planetary system by making in siru and remote i measurements of the planet, its cr.vironment, and its satellites.. The Galileo spacecraft is scheduled to be launched October '12,19@, or. shordy thcreafter,' aboard a space shutdc to attain a temporary orbit around Earth. Aflet deployment. from the space shutde, Galileo's upper stage rocket will be used to propel the spacecraft from the Earth orbit into the escape trajectory toward Jupiter. The spacecraft will arrive in the vicinity of Jupiter after an interplanetary transit of ' l 6 years and 4 months. Part of this period will be occupSd with a maneuver i involving a Venus and two Earth flybys to attain the energy repired for the trajectory to Jupiter. The Galileo spacecraft will employ two radioisotope thermoclectric genera-tors (RTGs) to provide its electrical power. Each RTO produces approximately 285 watts of electrical power from approximately 4400 watts of heat provided by the radioactive decay of approximately. 132,500 curies of plutonium 238. The spacecraft also employs about 129 lightweij,ht radioisotope heater units (LWRHUs), each containing about 2.7 grams of plutonium oxide, or about 33.6 I curies, and producing about 1 watt of heat. Altogether, the plutonium 238 on-the Galileo spacecraft will total about 49 pounds of plutonium oxide, ne RTGs and LWRHUs which provide electricity and heat to the Galileo-spacecraft are devices produced in research and development efforts of the U.S. Deparunent of Energy (DOE).' They are tailored to the energy needs of space missions like the Galileo mission, and are designed to be resistant to the hazards of such missions. From time to time NRC observes the safety review of these devices. 216 .i I' l l0 i 1 i

- l:x., y DISCUSSION Pursuant to section 2.206,^ any person may 61e a request to institute a. proceeding pursuant to 10 C.F.R. 5 2.202 to modify, suspend, or revoke a license, or for such other action as may be proper. Mr. Saporito's Petition is, in the - context of section 2.206, a request that the NRC intervene in the planned launch of the Galileo spacecraft. Mr. Saporito's Petition presents two principal arguments in support of the. request. One is that the launch of the Galileo rpacecraft carrying plutonium - would be in violation of 42 U.S.C, 5 5841, more correctly Public Law 94 79, to - the effect that the Commission shall not license any shipment by air transport of - plutonium in any form with the exception'of certain medical devices._ The other - -{ is that if the launch of the Galileo spacecraft carrying plutonium is allowed to proceed, the launch would cause undue risk, placing the public health and safety in grave danger.' The Petition relics upon Public Law 94 79 as authority for the NRC to stop the i . launch, nat law provides,in part: "ne Nuclear Regulatory Commission shall - not license any shipments by air transport of plutonium in any form, whether. exports, imports, or domestic shipments...." Certain medical devices are. l excluded, and the restriction is to apply until the NRC certifies that a safe container has been developed and tested "which will not rupture under crash .I and blast testing equivalent to the crash of a high-flying aircraft." , As can be determined from the plain meaning of the statute, it is to apply only to air transport, i.e., transport from_one point on the carth's surface to another such point by a vehicle that moves through, arid is supported by the lift i. provided by, air. Indeed the statute itself makes reference to the term " aircraft." he vehicle that is to launch the Galileo spacecraft is a rocket, not an aircrafL. Nor does the Galileo mission involve an export, import, or domestic shipment of - plutonium. Consequently, the provisions of Public Law 94-79 are not applicable - .I to the Galileo launch and do not provide authority to stop the launch as alleged by the Petitioner, A review of the legislative history associated with this statutory provision supports this conclusion here is nothing in the legislative history to suggest that the provision was to apply to a rocket powered launch such as the Na-tional Aeronautics and Space Administration's (NASA's) planned launch of the l Galileo spacecraft. Consequently, Public Law 94-79 does not provide any basis - l for the action requested by Petitioner.* i 'As naad above, the RTGs and 1.%Tdn are psoduced by doe. The doe niains owneratup or dasse devices. which am used by NASA as e doe cansactor in this neard. Cannequendy, these domes would na be subject to NRC authonty under Public law 94-79. 7 217 t tj k s .B

Mr. Saporito's other argument is that the launch of the Galileo spacecraft - carrying plutonium will cause undue risk, placing the public health and safety in grave danger. His Petidon_ cites twenty items ("a" through "t") as grounds - for his position, s Plutonium 238 is a hazardous radionuclide and the use of it as plutonium i oxide in the power supplies for the Galileo mission entails some risk. It is because of the risk involved that a considerabic ' investment in science and engineering has been made to bring the plutonium-heated devices to the stage. of development in which they will be flown aboard the Galileo spacecraft. The ceramic form of the plutonium dioxide, its iridium encapsulauon, and the form j of graphite in the surrounding package were all selected to make the RTGs L resistant to the potentiai hazards of missions like the Galileo mission. Sampic RTOs and LWRHUs (with dummy fuel) have been subjected to an array of tests to demonstrate their resistance to fire, explosion, and impacts. Furthermore, the RTGs and LWRHUs, separatc!y and in the normal Gallico ' spacecraft configuration, and in many configurations associated with accidental disassembly of the spacecraft, have been subject to analysis to evaluate their response. Potential accidents in the near carth phases of the Galileo mission have been analyzed to determine the range of threats to the integrity of the plutonium-loaded devices. These threats include reentry ablation, heat, explosion-generated shock and pressure, and impact with air, water, soil, rock, and explosion driven fragments of the space shuttle and its external rockets, { A comprehensive federal safety evaluation process has been carried out -with regard to the Galileo mission and the employment of the plutonium-l loaded devices for energy on the Galileo spacecraft. In addition to the

sponsoring agencies, DOE and NASA, an Interagency Nuclear Safety Review J

Panel (INSRP) was formed to provide an independent evaluation of all safety aspects. involving the RTGs and LWRHUs..The federal safety evaluation process contained three principal segments, which produced a Preliminary Safety Analysis Report (PSAR), an Updated Safety Analysis Report,' and a-Final - Safety Analysis Report; each SAR was reviewed by the INSRP, and the safety' cvaluation was subsequently strengthened by further analysis and tests This process culminated in a Safety Evaluation Report (SER) produced by the INSRP. This SER and its supporting material formed the basis for the recommendation for launch approval; launch approval has been obtained from the Office of the President.

i CONCLUSION ne Petition provides no basis for the NRC to intervene in NASA's planned i

launch of the Galileo spacecmft. The' cited statute.does not apply to the f ) 218 1 4

i planned launch and provides no basis for the requested action. Furthermore, j a comprehensive federal safety evaluation process has been carried out with -l t regard to the employment of plutonium loaded devices for energy on the Galileo d mission. There has been appropriate and due consideration of the risks involved. I find no basis in the Peution for the extraordinary relief requested of intervention in the Galileo launch. Accordingly, the Petition of Mr. Saporito is denied in its entirety. I FOR THE NUCLEAR . REGULATORY COMMISSION- .i Robert M. Bernero, Director Office of Nuclear Material Safety. and Safeguards Dated at Rockville, Maryland, this 25th day of September 1989. t + i P t P 219 l 4 x e b v 9 4 e

,i.a og Mj g. ~ Cite as 30 NRC 220 (1989) - 00496 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION - Thomas E. Murley, Director in the Matter of Docket Nos. 50 250 50 251 FLORIDA POWER & LIGHT COMPANY j (Turkey Point Nuclear Generating Plant, Units 3 and 4) September 25,1989 De Director of Nuclear Regulation denics a Petition filed by Thomas J. Saporito requesting in.icdiate action-with regard to Wrkey Point Nuclear Generating Plant, Units 3 and 4 Specifically, the Petitioner requested that the NRC cause the cold shutdown of the facility and the suspension of its operating licenses, investigate the extent of an alleged drug usage problem and review the Licensee's corrective measures; take actions concerning the Licensee's program' for reactor vessel materials surveillance and analysis, because the Petitioner asserts that the reactor vessels at Units'3 and 4 are experiencing vessel embriti tiement; and modify the licenses to require that'the Turkey Point Operations Superintendent hold a senior reactor operator's license, because, according to the Petitioner, operation of the facility by an Operations Superintendent who is not the holder of such a license would involve a significant increase in the probability and consequences of a nuclear accident. RULES OF PRACTICE: SHOW.CAUSE PROCEEDING ne principle is firmly established that parties must be prevented from using 10 C.F.R. 6 2.206 procedures as a vehicle for reconsideration of issues previously decided, or for avoiding an existing forum in which they more logically should be presented. 220 a e D i

l s ( . a. f,;. y - RULES OF PRACTICE: SHOW CAUSE PROCEEDING The institution of proceedings pursuant to 10 C.F.R.'l2.202 is appropriate only when substantial health and safety issues have been raised. TE'CilNICAL ISSUES DISCUSSED-Reactor Vessel Embrittlement; Reactor Vessel Material Surveillance Program,' Appendix'H of 10 C.F.R. Part 50; Pressurized Thermal Shock Screening Criteria.10 C.F.R. 5 50.61; . Fracture Toughness Requirements, Appendix G of 10 C.F.R. Part 50. DIRECTOR'S DFC!SION UNDER 10 C.F.R. I2.206 INTRODUCTION On June 20,1989, Thomas J. Saporito, Jr., filed a request with the Executive Director for Operations pursuant to 10 C.F.R. 6 2.206 that the NRC take certain ' - l actions-with regard to the Turkey Point Nuclear Generating Plant, Units 3 and 4.' The request of June 20c 1989, was supplemented by later submittals, dated - June 22 - as amended by a submittal dated August 12 - and July 3.1989,

E These documents were referred to the Office of Nuclear Reactor Regulation for j

consideration' pursuant to section 2.206. The documents will be jointly referred - l to herein as "the Petition." Specifically, the June 20 submittal requests that the NRC take immediate action to cause the cold shutdown of Units 3 and 4, cause the suspension of Operating Licenses DPR 31 and DPR-41, cause an investigation by the NRC-to ascertain the extent of the drug usage problem at Turkey Point and review the Licensee's corrective measures, and or-M remedial action in accordance - with the new Fitness for Duty rule. As a basis (or these requests, the submittal l alleges that the Federal Bureau of Investigation (FBI) arrested an operator at - j the neighboring Turkey Point fossil plant who s:ated that Turkey Point "ran oni cocaine" and, as the FBI's; investigation is not yet concluded, that the NRC cannot be fully aware of the extent of the drug problem at the facility. The June 22 submittal requests, in addition, that the NRC take immediate l^ action to (1) test archive weld metal test samples germane to Unit 4 in accordance with Charpy test parameters; (2) evaluate Charpy test data obtained to ascertain the degree of embrittlement of the Unit 4' reactor vessel: (3) evaluate the - embritt!cment and determine whether continued operation of the recctor can be safely achieved within the criterion of 10 C.F.R. Part 50, Appendix 0; (4) t 221- .r {- t l e 4 ? f

e: ensure that the Licensee will test archive weld metal samples at regular intervals in the future to ensure a close monitoring of the degree of embrittlement: (5). cause the termination of the integrated surycillance testing program currently being utilized by the Licensec, whereby Unit 3 archive wcid metal test samples are evaluated and determined to be representative of embriulement conditions germane to Unit 4: and (6) cause an NRC cvaluation of the reference temperature criterion of 300 degrees established for the safe operation of a pressurized water-reactor to consider whether the criterion should be lowered to offset the effects of pressunzed thermal shock. As a basis for these requests, the submittal alleges that Units'3 and 4 are experiencing reactor pressure vessel embnttlement; In support of this, various documentation is relied upon. %e July 3 submittal requests that the NRC take immediate action to modify Operating; Licenses DPR 31 and.DPR 41 to require that :he Wrkey Point Operations Superintendent be required to hold a senior reactor operator's license on the pressurized water reactors germane to the facility. As a basis for this request, the subminal alleges that operation of the facility by an Operations Superintendent who is not the holder of such a license would involve a significant increase in the probability and consequences of a nuclear accident, and involve a significant reduction in the margin of safety, DISCUSSION A. Substance Abuse ne June 20 submittal requests immediate action to cause the cold shutdown of hrkey Point Nuclear Generating Plant. Units 3 and 4, and the suspension of the associated Operating Licenses DPR 31 and DPR 41 In addition, the- { submittal requests that the Commission cause an immediate investigation to ascertain the extent of the drug usage problem and to review the corrective j i measures taken at hrkey Point and order remedial action in accordance with i the new Fitness for Duty rule, which authorizes such action where safety is o potentially affected because an individual is unfit for duty, 1 On June 14, 1989, a hrkey Point plant employee was one of threc people arrested in connection with a widespread, ongoing FBI narcotics investigation in. South Florida. The arrested employee _ was a fossil plant operator. As,the protected area for the hrkey Point nuclear plant also encompasses the fossil 4 1 plants, the arrested employee had access to the protected arcaJ Dis access authority was subsequently suspended. However, this employee did not have access to vital areas of the nuclear plants which contain equipment required for safety. He other two people arrested:by the FBI were not employed at the hrkey Point plant and did not have authorized access, in addition to the threc 222 1 l l 4

i people anested, a number of people in the geographical area were interviewed by the FBL ne NRC Staff is closely monitoring the Licensee's actions in response to the FBI arrest and the ongoing FBI investigation. The actions taken by the Licensee l . in response to the FBI investigation appear to be prompt and appropriate. These actions include immediate testing of all managers, supervisors, and personnel in positions significant to safety; testing of all other bargaining unit personnel who volunteered; and subjecting all personnel authorized unescotted access to the Turkey Point Nuclear Generating Plant to mandatory random testing for substance abuse, effective June 28,1989. Since the anest of the fossil plant employee on June IM.,1989, ahd as of _ ' August 7,1989, approximately 1950 persons with authorized access to Turkey - Point have been tested for substance abuse. His represents approximately 60% of the persons with' authorized access to Turkey Point as of that date. Of the approximately 1950 persons tested, six were reported as having confirmed ' positive test results. Authorized access for three of the six persons who tested 3 positive was suspended for 45 days. During the 45-day suspension,'these threc. people can be retested for substance abuse and, if they pass, access will be restored and they will enter into a frequent followup testing program for.1 year. [ If they fail to be reinstated during the 45 day suspension, they will not be - allowed access to Arkey Point and further disciplinary action will be taken by the Licensee. Employment for the remaining three people who tested positive was terminated. On the basis of the data received to date, there is no indication of a widespread problem of substance abuse at the hrkey Point Nuclear Generating Plant. De NRC Staff will continue to monitor the Licensee's actions concerning this matter to ensure that public health and safety are not endangered. No further actions ; i beyond what is currently being donc ere deemed warranted by the NRC at this time.8 Therefore, the request in the June 20 submittal related to substance abuse is denied. l B. Reactor Vessel Materials Surveillance l De June 22 submittal requests immediate action =to cause the suspension I of Operating Licenses DPR 31 and DPR-41 and to take' imraediate actions concerning the Licensee's program for reactor vessel materials' surveillance and analysis. The Petitioner asserts, as a basis for the request, that the reactor vessels. j l Ion May 24. 1989, the Cenrnustan inausd the naal rule. "Fimens for Duty Pmsrams (s4 Fed. Reg. 24.468). T)us rule mandenes the subbshman or a program to dsier and denect instances or subsunce abuse an the part or 1 persons autharued unesconed access to nuclear power plarus. The ofrecuve date rar unplemenuuan or the new rule by beensass is January 3,1990. Thus.the Peuuoast's reliance on the rule as a basis ror irnmediais action is nusplaced. 223

r i

i h ( h -.--L - ~ ,-ed. - - e - - ~ - - - w.t v

u ,d, s I at hrkey Point Units 3 and 4, are expenencing vessel embrittlement. In support of this asseruon, numerous documents are cited.2 For the purposes of. this discussion, the Petitioner's requests have been .J separated into the following categories: (1) Terminate the integrated surveillance program for Wrkey Point Units 3 and 4 whereby Unit 3 archive weld test samples are evaluated and determined to be representative of embritdement conditions germane to Unit 4, require the testing and evaluation of weld metal test samples gennane to. Unit 4 in accordance with Charpy test parameters and criteria, and analyze the test results to ascertain the degree of Unit 4 reactor vessel embntdement.. In this connection, the Petitioner asserts, among other matters, that reasonable doubt exists that the - fracture toughness requirements of Appendix 0 to 10 C.F.R. Part 50.- for upper shelf energy have been met. (2). Ensure that future archive weld metal samples will be tested by the Licensee at regular intervals to ensure a close monitonng of embrittlement and safe. operation pursuant to 10 C.F.R. Part 50, 3 Appendix 0. (3) Analyze the reference temperature criteri.wi of 300'F established by the Commission for safe operation to consider whether it should be lowered. With respect to Category (1), above, the Licensec requested, in letters dated February 8 and March 6,1985, a license amendment to combine the existing reactor materials surveillance program at the hrkey Point units into a single integrated program that conforms to the requirements of 10 C.F.R. Part 50,- Appendix H. Notice of the requested amendment was published in the Federal Register on March 12,1985 (50 Fed. Reg. 9919). On April 22,1985,' the NRC } Staff issued Amendment 112 to Operating License DPR 31 and Amendment 106 - to Operating License DPR 41, which authcrized, in accordance with section ILC of 10 C.F.R. Part 50, Apxndix H, the use of the integrated surveillance program at Wrkey Point. He Petitioner, in raising this issue, is seeking to use section 2.206 procedures to reopen a matter that was the subject of an amendment that was noticed in the federal Register and fully considered. The Petitioner had the opportunity to request a hearing and failed to do so. De principle is firmly established that l 2 By louer dated August 12.1989. the Nuaner sutwruned a haung of dutyeaht docwnenu wiuch he =y=ad I be coruidared as an "amendrnent" to lus June 22 subnuual, to be consdered as addauenal evidence m support or the bests and jusuncauan for the June 22 submanal. llus " amendment" camsuas solely of a hsung or documeus, wuhout any explansuon as to how these documanu sugert the buenar's asseruons. As the Pauuuner has not pamded any speeds usrarmauen wuh regard to thans documenia. further acuan wuh regard to has Augun 12 subemaal is unwarranied. see, e.g., Phladelpha EJacane Co. (tarnend oenereung suuan. Umu 1 and 2). 7 DD s511,22 NRC 149.154 (1985). s 224 l. ? l l l l 1 l r l i-

,,%v.... parues must be prevented from using section 2.206 procedures as a vehicle for i reconsideration of issues previously decided,'or for avoiding an existing forum - i in which they more logically should be presented. E.g., GeneralPublie Utilities - Nuclear Corp. (Dree Mile Island Nuclear Station, Units 1 and 2; Oyster Creek Nuclear Generating Station), CLI 85 4,21 NRC 561,563 (1985)._ I De Petitioner has not provided new evidence that would cause the NRC Staff. to reconsider its approval of the subject program. Surveillance samples will be removed from the reactor vessels in Units 3 and 4 and tested in accordance with the approved integtuted surveillance program and the results will be evaluated by the Licensee and separately by the NRC Staff. No immediate action is required to test samples germane to Unit 4. De subject of reactor vessel embrittlement in Unit 4 was recently reviewed by the NRC Staffin conjunction with the issuance of Amendment 134 to Operating License DPR 31 and Amendment 128 to Operating License DPR 41, in a letter. dated September 21,1988, the Licensee equested that the subject amendments incorporate revised heatup and cooldown pressure temperature limit curves that would be applicable up to 20 effective full-power years (EFPYs) of service life. The curves in the Technical Specifications at the time of the request were applicable up to 10 EFPYs. Notice of the requested amendments was published in the Federal Register on October 19,1988 (53 Fed. Reg. 40,988). The subject - amendments were issued by the NRC Staff on January 10,1989.. As discussed 7 in the Safety Evaluation issued for the amendments, the NRC Ste.ff found that (1) the revised pressure-temperature limits were in compliance with the fracture toughness requirements of Appendix G to 10 C.F.R. Pett 50; (2) the integrated surveillance program complies with Appendix H to 10 C.F.R. Part 50; and (3) the reactor vessel critical materials at Units 3 and 4 will remain below the pressurized thermal shock (ITS) screening criteria for their licensed life in' compliance with the requirements of 10 C.F.R. 6 50.61, in response to the Federal Register notice dated October 19,1988, concerning the issuance of Amendment 134 to Operating License DPR-31 and Amendment 128 to Operating License DPR 41, a Petition for Leave to Intervene, dated l= November 17, 1988, was filed by the Center for Nuclear Responsibility, Inc., and Joette Lorion, which raised contentions relating to the Peutioner's June 22 : submittal. In a Memorandum and Order (Ruling upon Contentions), LBP 8915, 29 NRC 493, dated June 8,1989, two contentions were admiued by the Atomic Safety and Licensing Board, as follows: a. Contention 2 yserted that capsule material in Unit 3 has _ been irradiated for a significantly shorter time than capsule material in - Unit 4, his contention was admitted, limited to the relevance of the I difference in operating time between Units 3 and 4. l 1 j 225' l

b. ' Contention 3 was admitted, limited to whether the correct copper per-centage was used in predictirig the reference temperature (RT,) of the critical beltline materials for setting pressure-temperature limits.

As stated in the Atomic Safety and Licensing Board order, hearings on the admitted contentions are scheduled to commence'on December 12,1989. All documentation associated with the hearings will be placed in the local Public Document Room and will be available for the Petitioner's review.5 As described above, the NRC Staff evaluated reactor vessel embriulement in Unit 4 in conjunction with Amendments 134 and 128 to Operating Licenses DPR 31 and DPR-41, respectively, and determined that there are no public health or safety concerns associated with the continued operation of Unit 4. If any concerns raised in the hearing are determined to be valid, the Staff will take the appropriate action at that time. Moreover, all of the documentation relied on - by the Petitioner was considered when the amendments were issued. Therefore, further action on this concern is not warranted. Three Mlle Island. CLI 85 4, supra. 21 NRC at 563. De submittal also asserts that reasonable doubt exists.that the fracture toughness requirements of Appendix 0 to 10 C.F.R.'Part 50 for the Charpy upper shelf energy have been met. The basis for this statement is a letter from the Staff to the Licensee, dated May 31,-1988, which indicates that additional data and analysis are necessary for the Staff to complete its review of the fracture toughness analysis of the beltline welds for the Thirkey Point reactor vessels. The Licensec's fracture toughness analysis was submined in letters dated May 3,1984, and March 25,1986, to comply with the requirements in section V.C of Appendix 0 to 10 C.F.R. Part 50. The requirements of this section apply to reactor vessels that have had their Charpy upper shelf energy reduced below 50 - foot pounds by neutron irradiation. This section requires that the Licensee (1) perform a volumetric examination of 100% of the bcIlline materials that do not satisfy the requirements of section V.B; (2) provide an analysis to demonstrate equivalent margins of safety for continued operation; and (3) provide test data from supplementary fracture toughness tests. The Licensee has satisfied these requirements by (1) performing ultrasonic examinations of beltline welds in Unit 3 and Unit 4 during July 1981 and November 1982, respectively; (2) submitting fracture mechanics analyses in letters dated May 3,1984, and March 25,1986; and (3) providing supplementary l fracture toughness data from the Heavy Sectional Steel Technology program in its letter of March 25,1986. 3 the Peuconer has Alsd a peution barare the Atenue sareiy and licensing Board to mais a hnuted appearance dunna the heanng. In a document enutled " Amended Ptuuan rar a Limited Appearance staiament" Aled August 30.1989, iha Nuclear Energy Accounubahty Project has indacaiad that it will represett the Pauumer's imerosis ut the proceeding. - 226 l l i l l l l ~.

The information requested in NRC's letter of May 31, 1988, was needed to evaluate the Licensce's conservative analysis (contained in its letters of March 3,1984, and March 25,1986) which was submined to justify continued operation up to 40 EFPYs. Currently, the hrkey Point units have operated for approximately 10 EFPYs. Amendments 134 and 128 to Operating Licenses l DPR 31 and DPR-41, respectively, authorized operation only up to 20 EFPYs. Operadon beyond 20 EFPYs will require the subminal of another amendment . j and further evaluation by the NRC Staff. As discussed previously, there are no public health or safety concerns associated with operation up to 20 EFPYs. L Therefore, the informadon requested in the May 31.1988 letter to Jusufy 40 EFPYs of operation is not required immediately and no action by the NRC is necessary at this time. With respect to Category (2), above, the requirements for future testing of archive weld metal samples are specined in the integrated surveillance program that is contained in the hrkey Point Technical Specincadons, 64.20. Compliance with the Technical Specifications is required as a condition of Operating Licenses DPR 31 and DPR-41 for hrkey Point Units 3 and 4, respectively. As such, compliance with the Technical Specifications is subject to verification by the NRC through periodic audits and review. Therefore, no + further action is warranted regarding this concern. With respect to Category (3), above, the reference temperature value of 300'F (for circumferential weld materials) which is used in PTS screening is specified in section 50.61, he Petitioner's request is, in effect, a request to change the requirements of section 50.61, and, as such, is not appropriate for consideradon under section 2.206. Rather, it may constitute a petition for rulemaking that should be submitted in accordance with 10 C.F.R. 5 2.802. Under section 2.802, any interested person may petition the Commission to issue, amend, or rescind any regulation. The Petitioner may wish to review the requirements for a petidon l for rulemaking contained in section 2.802 and censider submittal of the request to revise the reference temperature criterion of 300*F under section 2.802. I C. Operations Superintendent Qualification - he July 3 submittal requests immediate action to modify the Licensee's l Operating Licenses DPR 31 and DPR 41 to require that the hrkey Point l ~ Operations Superimendent hold a senior reactor operator's (SROs) license on the pressurized water reactors germane to the facility.- In a letter dated September 12,1988, the Licensee requested that the Technica9 Specifications be changed to permit the holding of an SRO license from a I similar plant (i.e., another pressurized water reactor) to serve as an acceptable qualincation for the Operations Superintendent at Turkey Point. Nodce of l consideration of issuance of the requested amendments was published in the 227 y- -.v-r y e

r E Q &$. " '.w s rederal Register on November 2,1988 (53 Fed. Reg. 44,250). No requests for hearisq or petitions for leave to intervene were filed. On March 27, 1989, the Commission issued Amendment 135 to Operating License DPR 31 and - Amendment 129 to Operating License DPR-41, approving the requested change - . d in qualification requirements for the Operations Superintendent. On May 16,1989, the Peutioner submitted a Request for Hearing and Petition for Leave to Intervene (amended May 18) with respect to these amendments. In the Commission's Order Denying Request for Hearing, dated May 30,1989, the Petitioner's request was denied as untimely, indicating that no good cause was shown for such untimeliness. The July 3 submittal appears to be an auempt to circumvent the rules for - timeliness. De submittal raises the same issues mised in the Request for Hearing and Petition for Leave to intervene, dated May 16,1989, which was denied by the Commission on May 30,1989. Furthermore, the submittal does not raise any new issues not previously considered by the Commission in the issuance of the amendments. 'therefore, further action regarding this concern is not warranted. c CONCLUSION ~ The institution of proceedings pursuant to section 2.202 is appropriate only when substantial health and safety issues have been raised. See Consolidated Edison Co. of New York (Indian Point, Units 1, 2, and 3), CL1-75-8, 2 NRC 173,176 (1975), and Washington Public Power Supply System (WPPSS Nuclear Project No. 2), DD 84 7,19 NRC 899,923 (1984). This is the standaid that' has been applied to determine whether the actions requested in the Petition are warranted. For the reasons discussed above, no basis exists for taking the actions requested in the Petition, since no substantial health and safety issues have been raised by the Petition. Accordingly, the Petitioner's request for action pursuant to section 2.206 is denied. l 228 i a a

c. A copy of this Decision will be Sled with the Secretary for the Commission's review in accordance with 10 C.F.R. 5 2.206(c). FOR THE NUCLEAR REGULATOP.Y COMMISSION Thomas E. Murley, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 25th day of September 1989. l P 's l l t ..r.. iec -m.u3e, coco 229 t}}