ML20024J231

Nuclear Regulatory Commission Issuances for July 1994.Pages 1-41

ML20024J231
Person / Time
Issue date:	09/30/1994
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V40-N01, NUREG-750, NUREG-750-V40-N1, NUDOCS 9410130023
Download: ML20024J231 (48)

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NUREG-0750 Vol. 40, No.1 j

Pages 1-41 i

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'h Charles Bechhoefer*

Dr. Davd L. Hetnck Marshall E. Miller Peter B Bloch*

Ernest E. Hill Thomas S Moore

• l G Paul Boltwerk lil*

Dr Frank E Hooper Dr Peter A. Moms

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Glenn O Bnght Elizabeth B. Johnson Thomas D Murphy

• Dr A Dixon Callihan Dr. Walter H. Jordan Dr Archard R. Panzek Dr James H. Carpenter Dr Charles N Kolber*

Dr. Harry Retn

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l Dr. Rchard E Cole

• Dr Jerry R. Khne*

Lester S. Rubenstein Dr Thomas E. Elleman Dr. Peter S. Lam

• Dt David P. Schink Dr George A. Ferguson Dr James C. Lamb til Ivan W. Smrth*

Q Dr Harry Foreman Dr Emmeth A. Luebke Dr George E Tdey Dr Richard E Foster Morton B. Marguhes*

Sheldon J. Wolfe j

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• Permanent panel members d

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Cito as 40 NRC 9 (1994)

LBP-94-19 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

James P. Gleason, Chairman Dr. Jerry R. Kline G. Paul Bollwerk, lil Thomas D. Murphy, Altemate Board Member in the Matter of Docket No. 40-8027-EA (ASLBP No. 94-684-01-EA)

(Source Material License No. SUB-1010)

(Decontamination and Decommissioning Funding)

SEQUOYAH FUELS CORPORADON and GENERAL ATOMICS (Gore, Oklahoma Site)

July 7,1994 In this proceeding concerning an NRC Staff enforcement order issued in accord nce with 10 C.F.R. Q 2.202, the Licensing Board concludes that a Native American tribe wishing to participate in the proceeding to support the Staff' enforcement order has established its standing and presented two litigable contentions.

i RUI ES OF PRACTICE: STANDING TO INTERVENE (INJURY IN FACT; ZONE OF INTERESTS) in order to grant an intervenor party status in a proceeding, the presidmg officer must find that the petitioner meets the contemporaneous judicial concepts of standing. This requires that the intervenor establish that it will suffer injury i

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i in fact relative to its interests in the proceeding and that those alleged interests are within the zone of interests protected by the statutes and regulations under which the petitioner seeks to participate in the proceeding. See, e.g., Cleveland Electric //luminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21,38 NRC 87,92 (1993).

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RULES OF PRACTICE: STANDING (REPRESENTATIONAL);

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STANDING TO INTERVENE (AUTIIORIZATION) j To represent the interests of its members, a Native American tribe must identify at least one member who will be injured and obtain authorization to represent that individual. See, e.g., //ousten Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 390-96 (1979).

RULES OF PRACTICE: CONTENTIONS (PLEADING IMPERFECTIONS)

Longstanding Commission practice suggests that the benefit of the doubt should be given to the potential intervenor in order to obviate dismissal of an intervention petition because of inarticulate draftsmanship or procedural pleading defects. See, e.g., Virginia Electric and Power Co. (North Anna Power Station, Units I and 2), ALAB-146,6 AEC 631,633-34 (1973). See also LBP-94-8, 39 NRC 116,120 & n.7 (1994), appeals pending.

MEMORANDUM AND ORDER (Granting Intervention Motion)

'this Memorandum and Order addresses the intervention petition filed by the Cherakee Nation in this ongoing proceeding regarding the NRC Staff's October 15, 1993 enforcement order imposing decommissioning funding requirements for Sequoyah Fuels Corporation's (SFC) facility near Gore, Oklahoma. In our prior decisions in LDP-94-5 and LBP-94-8,8 we found that petitioner Native Americans for a Clean Environment (NACE) had established its standing to intervene in this proceeding pursuant to 10 C.F.R. 6 2.714(a) and had presented 8 IllP.94 5. 39 NRC 54 t1994)(souximg). ruimg referral and approh predag: LBP-94 8. 39 NRC 116 u994)

(c<nummon). upprah pendmg 10

litigable contentions so as to sanction its admission as a party to this proceeding.2 We now conclude that Petitioner Cherokee Nation has established the requisite standing to intervene in support of the Staff's enforcement order and has presented litigable contentions, thereby warranting its admission as a party as well.

I.

IIACKGROUND Pursuant to our ruling in LBP-94-5, the background for which is fully detailed in that decision and will not be repeated here,' on March 29,1994, we issued a notice of hearing in this proceeding that subsequently was published in the Federal Register.* ne notice informed the public that NACE had been allowed to intervene in this proceeding and further invited any person whose interest may be affected by the proceeding to petition for leave to j

intervene. Acting on this notice, on April 20,1994, the Cherokee Nation filed i

a timely application for intervention that set forth several concerns regarding environmental contamination of tribal lands adjacent to the SFC facility.5 On May 5 and May 10, respectively, SFC and the Staff filed their initial responses to the Cherokee Nation petition.'

In its first filing, SFC opposed the Cherokee Nation's application, arguing that the tribe had not met the legal standards for intervention set forth in 10 C.F.R. 6 2.714(a)(1) because it failed to establish a cognizable " organizational" J

or " representational" interest in the proceeding; failed to show how its interest j

i 2 slC and its parent corporanon. "icneral Atonucs (GA) sought this heanng to contest the Staff's october 1993 enhrcenent nrder pursuant to 10 C F R. 5 2/202, which provides that "the beensee or any other person adversely affected" by c.n enforcenrnt order can request a heanng regarding tie order in LBP-945,39 NRC at 63-66. we ruled that under the ternu of 10 C F R. I 2.714(a)(1 A peuconer NACE can intervene in support of an enforcenent order an a procecihng insututed by the beensee under section 2 202. We also referred that ruhng to the Comnussion.

See 19 NRC at 75 76 Thereafter, with the inuance of tEP 94 8 adnutting NACE*s two contenoons, see 39 NRC at il8 2n. pursuant to 10 C F R. I 2 714a. SIC and GA took an appeal of our deternunauon that NACE could l

l intervene in surgmrt of the order (alor.g with our ruhng that NACE had estabhshed its standirig to intervene).

See (sICal Dnef on Appeal of ISP-94-5 and IEP-948 (Apr 7.1994) at 7-28. (GA's) Nonce of Appeal (Apr.

7.1994) tadqeng argunrnes in SICS appeal bnef) The Boanfs referred ruhng and the SIC and GA appeals currently are pending with the Corturusuon.

Wuh the Cherokee Nauon m the sane hugative posture as NACE. see Supplernent to Cherokee Nation's Combmed Response to ISICs) Answer in opposinon and N R C. Staff's Response to Cherokee Nation's Arphcation f ar order Allommg Intervention (June 3.1994) at 2 l hereinafter Cherokee Nanon Combined Response Supplenrntl. w need not revisit our ruhng in IEP-945 regarding intervention by interested persons sechng to support a Staff enforcenent order 3 See IEP-945, 39 NRC at 7.1 n 21.

4 59 f ed Reg 15.953 (19941

'See Apphcauon for order Allowmg Imervenuon (Apr 2n.1994).

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'See (SICS) Anset in oppouuon to Cherokee Nation's Apphcanon for order Allowing Intervention (May 5.

1994) { hereinafter SIC Imual Anmrl. NRC stafr's Response to the Cherokee Nanon's Apphcanon for Order Allowmg Intervention (May 10.1994)[ hereinafter Staff truual Responsel In addinon. GA hied a pleading staung that it adopted the argunems agamst permstung intervenoon set forth.in SICS answer See (GA's] Answer in oppouuon to the Apphcanon of *.he Cherokee Nauon for an order Pernutting Intervenoon (May 5.1994k 11

l would be affected by the proceeding; and failed to identify the specific aspect or aspects of the subject matter of the proceeding as to which it wishes to intervene?

In its response, the Staff likewise found the Cherokee Nation petition deficient for failing to address adequately the tribe's " injury in fact" and the adverse impact the proceeding could visit on the Cherokee Nation's interest. The Staff also asserted that it was unclear whether the Cherokee Nation was seeking intervention on its own behalf as an organization or on behalf of its members.

While concluding that the Petitioner had not submitted enough information to demonstrate its standing to intervene, the Staff nonetheless suggested that the Cherokee Nation be given the opportunity to amend its petition to correct the identified pleading deficiencies and to submit a valid contention.8 On May 19, while the Board was considering the parties' initial filings, the Cherokee Nation filed a combined response to the SIC and Staff responses?

That response outlines the Cherokee Nation's claim of ownership to the north bed and banks of the Arkansas River, which is approximately one-half mile 1, the southwest of the SIC facility, and included a letter from the Cherokee Nation Office of Environmental Services (OES) outlining the results of United States Environmental Protection Ar:ency (EPA) groundwater tests conducted on l

riverbed property.'" Asserting that the natural groundwater flow is to the west toward the tribal riverbank property, the combined response declares that if SIC "does not do an adequate clean-up of the site and nearby cribal property," tribal property would remain contaminated and would continue to be contaminated by water runoff from the SFC property." The response concludes by adopting the contentions previously filed by NACE and admitted by the Board.'2 On May 23, prior to receiving the Cherokee Nation May 19 conibined response, we issued an order allowing the Cherokee Nation the opportanity 1

to amend its intervention petition by providing any additional information it 7 5cc SIC imtial Answer at 1(L18 in a&huon to its argunrnt addresung the intervenuon factors in 10 C F.R.

12.714(avi). SFC auerted that occuan 189a(l) of or Atonne Errrgy Act (AEA),42 (1S C.12239(aXI), de ALA's principal provision affording heanng rights to intervenors, does not provide for imervenuon by the Cherokee Nanon as it serks to support the Staff's october 1993 aforcenent order because the order does not grant, suspend, revoke or unrnd a license. See id at 8-10 "See Staff Imual Responw at 3-8

'ctwrokee Nauon's Conduned Responw to [ sics] Answer in opposioon and N R C. Staff's Response to l

Cherokee Nauon's Apphcanon for order Allowmg lmervenuon (Mey 19,1994) l hereinafter Cherokee Naion ComNned Responsel Although the pages in diis hhng are not numbered, we refer to dern in their nurnetical order HY.4 at 2. Tir of S Irtter declared Ltmt heavy nrtals contsmnauon levels net "LPA Superfund critena" for contanunation Id., attached letter inwn Cums Canard, Cherokee Nation oES. to James Wdcomen (Sept. 24, 1992) ne Cherokee Nauon, however, does not emphun how ttus scenungly nonradiological co-taminauon is under the jurisdiction of the NRC rather than the t PA.

' Id at 3 i

12 5ce ad at 4 See oLw LitP44_8,39 NRC at 118-20 I

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n The order believed appropriate relative to its standing in this proceeding also requested that the Cherokee Nation supplement its petition by listing those contentions and supporting bases it wished to litigate." The other panies were given the opportunity to respond to that amended petition within 14 days after service.

Because the Cherokee Nation's May 19 combined response literally ctossed paths in the mail with our May 23 order, on June 3 the tribe provided a further supplement to its combined response. In that supplement, the tribe declines to submit any additional information regarding the basis for its standing and declares that it should be permitted to appear as a party in support of the Staff's October 1993 enforcement order." In its response to the tribe's May 19 combined response and June 3 supplement, SFC does not address the Commission's standing requirements; instead, SFC repeats the arguments it makes to the Commission in appealing LBP-94-5 by denying categorically that any petitioner can intervene in support of a Staff enforcement order.9 The Staff, however, does not oppose granting the Cherokee Nation intervention request so long as the tribe is limited to representing its own organiz.ational interests."

II. ANALY 4 A.

ine Cherokee Nation's Particularized Injury As it has often been stated, in order to grant an intervenor party status in a proceeding, we must find that the petitioner meets the contemporaneous judicial concepts of standing. This requires that the interrenor establish that it will suffer injury in fact relative to its interests in the proceeding and that those alleged U 5cr order (f.stabhslung I%ng schedules for Cherokee Nauon Amended Intervention Appbcauon and Con-tenuons Supplenrni and for Party Responses Tiereto)(May 23.1994) at 1 (unpublished). This order had the effect of granung the Cherokee Nauon's May 19.1994 monon for leave to file that acconpamed the tribe's May 19 combmed response to the imual SIC and Staff responws "See hf at 12 "Scr Orrokre Nanon Combmed Response Supplenent at 1-2.

"Scr (SICal Responw in opposinon to the Clerokee Nanon's Anended intmention Applicanon (June 22.

1994) at 2 'l in its fihngs regardmg our referral to the Comnussion of ceruun ruhngs in LBF 44 5 and its pending appeal from LDP-94 5 and LDP-94 8, sic has put before the Commimon the question of whether our driernumiuon in LilP-94-5 allowmg NACE to intervene in this procceeng should be sustained See supra note

2. (siCal Inmal Bnef in opposioon to the Ruhng in Section 11 A of 1 BPM 5 (Mar. II 1994). [SFCa] Reply Bnef m opposinon to the Ruhng m Secuan !! A of LDPMS (Mar. 17.1994L in both instances. SfC (jomed by GA) argues that persons seekmg to suppmt a staff enforcenrnt order cannot mtervene in an adjudicatory

{7occe&ng convened purwant to 10 C F R I 2 202 to contest the order 5cc NRC Staff's Responw to the Orrokee Nanon's Combmed Responw of May 19.1994,and Supplenent of June 3.1994 Oune 22.1994) at 4-6 & n 6 l hereinafter Staff Responw to Corr 3ined Responne/SupplementJ.

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interests are within the zone ofinterests protected by the statutes and regulations under which the petitioner seeks to participate in the proceeding."

As noted above, in its May 19 coinbined response the Cherokee Nation provides confirmation that it holds title to the banks and the riverbed of the l

t Arkansas River adjacent to the SFC facility. 1he Cherokee Nation further states that the natural flow of the groundwater in the area of the SFC facility is westward toward the Arkansas River and declares that SFC is in agreement with this assertion.2o in its combined response, the Cherokee Nation also alleges ti at groundwater runoff will continue to contaminate tribal property in the future, affecting the health and safety of tribal members who use the river and the tribe's economic interests in developing the property.2i The Cherokee Nation's allegations of environmental damage are proffered in the same factual context as those presented by NACE carlier in this proceeding.

As we noted there, "[w}e have no trouble concluding that the interest of [the Petitioner} in seeing that the Staff's decommissioning funding order is sustained falls within the zone ofinterests protected by the [ Atomic Energy Act (AEA)]."22 Moreover, as we stated in ruling on NACE's petition,"the Staff's October 1993 enforcement order makes clear [that] there is uranium contamination of the soil and groundwater on the SFC main processing facility and the nearby pond areas with sufficient safety significance to warrant remediation before the property can be released for unrestricted use."22 liiis contamination on the SFC site, in conjunction with the proximity of the Cherokee Nation's property to the SFC facility and the direction of groundwater flow from that facility, establishes that there is a real potential for decommissioning-related activities to have an impact on the Cherokee Nation's riverbank property.

Thus, based on the record before us, we are unable to conclude that there is "no potential for offsite consequences" relative to the Cherokee Nation property 28 As a from SFC site contamination and its decommissioning operations

'"Sec, e p, Clewland ficcaric Illumenanng Co (FYrry Nuclear Power Plant Umt t), C11-9121,38 NRC 87,92 (1993)

"The Orrokee Nanon cites everal caws in support of its claim of ownrrslup to the affected riverbank and nverbed along de Arkansas River less than a nule to de southwest of the SIC facihty Scr Orrokee Nation Comhmed Response at 12 Neider SIC nor the Staff has disputed this claim. our review of those cases (kes

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not give un any reason to doubt it either See Chwsaw Norma y Cherrhe Narkm,393 F. Supp. 224,246 & D.

Okla 1975)(duce. judge court)Gndmg dat the north portion of the Arkansas Rsver bed from the Canahan River fork to de Arkamas-Oklahoma border belongs to the Orrokee Nation in fee simple).

a 2nScr Orrokee Nation Contined Response at 3 & n.l. See alm tJtP-94 5. 39 NRC at 68-71, for a discunnion of the groumtwater patterns surroundmg the SIC facihty.

21 The Staff pomis out in its June 22 responne that the National Favironmrntal Pohey Act of 1969 (NE,PA) protects sone econonne interests injured by envuormental damage. See Staff Responne to Corrbined Renponne/Supplenrnt at 4 (catmg Socramcaso Mamaral Urd rv Ds.rtract (Randio Seco Nuclear Generanng stauon), ClJ-92 2,35 NRC 47, $6 0992)).

22,itPW5. 39 NRC at 67.

1 21 14 at 6849 tciting 58 Fed. Reg 55.087. 55.087 (1993)).

24 rerry, CI.1-93-21, 38 NRC at 95.

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t consequence, we find that the Cherokee Nation has sufficiently demonstrated injury in fact to provide the tribe, as an organization,25 with standing to intervene as of right in this proceeding.

B.

The Cherokee Nation's Contentions In our May 23,1994 order, we allowed the Cherokee Nation to amend its intervention application and instructed that the tribe list those contentions, with supporting bases, it desired to litigate in this proceeding. In its May 19 combined i

response that was submitted prior to the tribe's receipt of the Board's May 23 order, the Cherokee Nation restates and adopts the contentions of NACE, albeit without providing any supporting bases for those contentions.26 Longstanding Commission practice suggests that the benefit of the doubt should be given to the potential intervenor in order to obviate dismissal of an intervention petition because of inarticulate draftsmanship or procedural pleading defects.27 Because we have already found the NACE bases sufficient to warrant admission of the contentions they support, in this instance we conclude that no real purpose would be served by requiring that the tribe file a further supplemental response adopting those bases as well. Accordingly, we admit the Cherokee Nation's two contentions.2 III. CONCLUSION ne Cherokee Nation seeks to ensure that the Staff enforcement order contested in this proceeding is sustained, alleging that without the enforcement of that order there is the potential for continued radiological contamination 25 Dr Orrokee Nbon's intervenuon applice9on and its later supplenents are less than aruculate in explainmg whether the tnbe is neckmg to intervene to protect its own organizauonal interests or those of its members. of course, to represent the interests of its nenters. the tnbe must idrnufy al least one nrrnber who will be injured and obtain authornanon to represent that individual See, e #. Hasron Ughting auf Pmr Co (Allens Creek Nuclear Generaung stanon. Unit 1). AIAll 535. 9 NRC 377, 390-% (1976) The Cherokee Ntion has not done thw Nor:theless, because the tnbe has made a sufficient showing to establish its standing as an organiranon.

we need not reach the queshon of whether its penunn is sufficient to provide it with representational standing to votes: the interests of its indmdual nrmbers.

'See Cherokee Nauon Combined Response at 4 As restated by the tnbe, those contentions are:

1. The NRC has enforcenrnt authonry over General Atonics.

2. Guaranteed deconumswomng financing by General Atorrucs is required by NRC regulauons and is necenary to provide adequate protecuon to public heahh and safety, including the Inhe's nernbers, as well as the property interest of the tnhe See id U See, e g, nrganur flerinc and Awer Co (North Anna Power Stauon. Units I and 2), ALAB-146,6 AEC 631, 6 0 34 (1973). See al.m LHPM8,39 NRC at 120 & n 7.

2s Becauw NACE and the Clerokee Nation have proffered essentially idenucal contenuorts, at a future juncture ife hard will consider whether and to what degree conschdahon of their htigation presentauons is appropriate Sec 10 C T R 9 2 714(r) 15

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b of tribal property from groundwater migration. This continuing potential for contamination of tribal property from groundwater flow provides a cognizable injury to an interest within the zone of interests protected by the AEA. 'the alleged injury also appears to be sufficiently concrete and particularized. We j

thus find that the Cherokee Nation has established its standing as of right in this proceeding. Further, in adopting the already-admitted contentions of intervenor NACE, the tribe has presented litigable contentions. Accordingly, having fulfilled the requirements of 10 C.F.R. 6 2.714, the Cherokee Nation is admitted as a party to this proceeding.

Ibr the foregoing reasons, it is, this 7th day of July 1994, ORDERED that 1.

The Cherokee Nation's April 20,1994 intervention application is granted.

2.

Contentions 1 and 2 set forth in the Cherokee Nation's May 19,1994 combined response are admitted.

3.

In accordance with the provisions of 10 C.F.R. 9 2.714a(a), as this Memorandum and Order grants an intervention petition, it may be appealed to the Commission within 10 days after it is served.

THE ATOMIC SAFETY AND LICENSING BOARD James P. Gleason, Chairman ADMINISTRATIVE JUDGE Jerry R. Kline ADMINISTRATIVE JUDGE G. Paul Bollwerk,111 ADMINISTRATIVE JUDGE Bethesda, Maryland July 7,1994 16 i

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Cite as 40 NRC 17 (1994)

LBP-94-20 UNITED STATES OF AMERICA NUCLEAR REGtJLATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

James P. Gleason, Presiding Officer Jerry R. Kline, Special Assistant in the Matter of Docket No. 40-8724-MLA (ASLBP No. 94-695-03-MLA)

(Source Material License No. SUB-1357)

CHEMETRON CORPORATION (Bert Avenue, Harvard Avenue, and McGean-Rohco Sites, Newburgh Heights and Cuyahoga Heights, Ohio)

July 7,1994 MEMORANDUM AND ORDER (Request for IIcaring)

His informal adjudicatory proceeding, convened under 10 C.F.R. Part 2, Subpart L, involves an application by the Chemetron Corporation (Licensee) for a license amendment. He proposed amendment concerns the decommissioning of the 1.icensee's flert Avenue site in Newburgh lieights, Ohio, and its !!arvard Avenue site and associated buildings at the McGean-Rohco property in Cuya-hoga IIcights Ohio.

A request for hearing on the application has been submitted oy Chris Trepal on behalf of the liarth Day Coalition (Coalition), which is referred to as a nonprofit environmental organization serving northeast Ohio. Responses in 17

opposition to the Coalition's hearing request have been filed by the Staff and the Chernetron Corporation.'

IIACKGROUND The amendment at issue here authorizes the Licensee to decommission the sites listed above in accordance with a remediation plan submitted to the NRC.

Notice of an opportunity for a hearing on the amendment application, for any person whose interest may be affected by the proceeding, was published in the Federal Register. See 59 Fed. Reg.17,124 (Apr. I1,1994).

Under informal hearing procedures authorized by the Commission's rules, a petitioner for a materials license amendment hearing is called upon to describe areas of concern about the proposed licensing action and how the petitioner's interest may be affected by the results thereof. The presiding officer is required to determine that the concerns listed are germane to the subject matter and that the petition is filed on a timely basis. Finally, the requestor must meet the Agency's judicial requirements for standing. See 10 C.F.R. 6 2.1205(d)(g).

These standing requirements, identical to contemporaneous standards in other judicial proceedings, require some demonstration that the challenged action could cause an injury-in-fact and that such injury is within the zone of interests protected by statute. See Sacramento Alunicipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2,35 NRC 47,56 (1992).

1 There are several flaws to be noted in the requestor's petition which may, or may not, prove fatal to its request for a hearing on Licensee's amendment application First, the hearing request does not make clear whom the petitioner repr esents. An organization may meet the injury-in. fact standing test by demonstrating an effect upon its organizational interest or injury to its members.

See //ouston Lighting and Power Co. (South Texas Project, Units 1 and 2),

ALAll-549, 9 NRC M4, 646 (1979). Or it can represent a member of the organization who has a threatened interest if the representation is authorized by the member. See Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), ALAll-952,33 NRC 521,530 (1991).

Ilased on the petition's recital, the Coalition purports to involve itself in this proceeding as a focal point for residents of the area to raise concerns about the proceeding on their behalf. In this context, it does not appear to be an authorized representative of those residents; nor does it allege any potential injury to its own organi7ational interests. As pointed out in responses filed by both the Staff 8 Staff Notwe of P;iruchmquin and Rn;xinse in is*utioncr's Request br Heanng Oune 10. lW4)(staff Responwh 1.icenwe Chenrtron Corimrutnm's Amwer to Requent for Heanng by I.arth Day Cuahuon Oune 9. IW4) d.wenwe Answert 18 1

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i and Licensee, an institutional interest in providing information to the public is insufficient for standing; and for representational purposes, the petitioner fails

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to identify at least one resident who could suffer injury from the challenged action and who has provided authorization for representation to the Coalition.

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Accordingly, Petitioner fails herein to cite any injury, actual or threatened, to either its organizational interests or those of its members. And with respect to acting for the area's residents generally, nothing in the Commission's regulations authorizes requestors to undertake to represent the general public as if they were private attorneys general. Sec Babcock and Wilcox Co. (pennsylvania Nuclear Services Operatiens, Parks Township, Pennsylvania), LBP-94-4,39 NRC 47,50

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(1994). Also see Long Island Lighting Ca (Shoreham Nuclear Power Station, Unit I), LBP-77-11,5 NRC 481,484 (1977).

The petitioner sets forth ten areas of concern about the proposed license amendment but herein, the second flaw in the Coalition's request for a hearing makes its appearance. Under the Commission's informal proceeding rules in Subpart L, the Presiding Officer is charged with determining whether the areas of concern submitted by the petitioner are germane to the proceeding's subject matter. To exercise this responsibi!ity, the basis for the Presiding Officer's

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determination can only originate from information supplied by the requestor in its hearing petition The Petitioner's enumerated areas of concern, however, fail to demonstrate the connection existing between such creas and the license amendment in this proceeding. This is not to conclude that such connections do not exist, but merely that they are not manifest from the Coalition's filing.

It would serve no purpose to review the ten concerns individually at this time since most, if not all, suf fer from the same deficiency -inadequate information to ground a determination that the Coalition's concerns are germane to the subject matter of the proceeding. It is not necessary in the proceeding for a petitioner to set forth at this point all of the concerns it has about the proceeding, as the Commission recognires that such a requirement would be inequitable without access to a hearing file 2 However, as indicated, there exists the necessity for linking the concerns registered in its hearing petition to the matter under consideration.

As a result of the foregoing, therefore, the petition presented does not provide sufficient information for a determination that standing requirements have been met or that the concerns submitted are germane to the proceeding. The Coalition petition does reveal, however, a background of concern by the organization in the subject matter - it alleFes a " substantial interest in the site (s)," a " history of work and public interest advocacy on radioactive waste issues" and also a past participation "on behalf of residents" concerning the site. This familiarity, 2 5cc ComnuuinnT Statenrnt of Conuderanon,54 Fed keg 8272 Rrb 28,1989) 19 4

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..e,.

t interest, and involvement in the activities concerning the site combine to create L

a reflection that, provided the opportunity, the potential exists for the Coalition j

to clarify its petition and to establish standing as well as the relevancy of its concerns. Contemplation also needs to be given to the consideration that a civic organir.ation like the Coalition, which does not appear to be represented by counsel, may not be aware of all of the Agency's informal hearing procedural

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requirements. Accordingly, it would appear to be inappropriate to deny its

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hearing request at this point. The Presiding Officer's action on this petition will therefore he deferred to permit the Coalition to supplement its petition to provide r

further information to remedy the deficiencies outlined above.$ The Petitioner is I

granted a 3-week period, dating from the receipt of this Order to provide any additional information it cares to provide in support of its hearing request. And the Staff and Licensee will have a 2-week period thereafter to respond.

f ne Licensee, but not the Staff, raises lateness objections to the Coalition's

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petition on grounds that the petition was filed 1 to 3 days late and the grant of the hearing request would cause undue prejudice and injury to the Chemetron Corporation. Based on the papers filed, it is not clear when the requestor's petition was filed. It is dated May 9,1994, one day prior to the expiration of the 30 days allowed by the Federal Register notice, supra. NRC's practice reflects that filing is deemed complete as of the time it is deposited in the mail - not postmarked.10 C.F.R. 6 2.701(c). Due to the uncertainty concerning the actual i

filing date, which does not in any event involve an inordinate amount of time, r

and with the ruling herein granting additional time to supplement its hearing i

request in mind, it does not appear pertinent to dwell on whether the petitioner's request meets the Agency's lateness criteria. The Licensee's own response to the hearing request was substantially late in meeting filing requirements and any i

small delay encountered here should not, in light of the present circumstances of the case, he represented as constituting an untimely filing.

ORDER l.

Action is deferred on the Earth Day Coalition request for a hearing.

2.

A supplement to the Coalition's request may be filed within a period of 3 weeks after receipt of this Order.

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3 As the Appeal Board has pmmed out. remonable opportumnes to cure defects in peuuons dould be prowded See urgmw Herme and Anwr Co. (North Anna Power Stanon.11 nits I and 21. A1.AH 146. 6 AEC 631. 634 l

11971)

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3. 'Ihe Staff and the Chemetron Corporation may file a response within a 2-week period after service of any supplement.

FOR THE ATOMIC SAFETY AND LICENSING BOARD i

James P. Gleason, Presiding Officer i

ADMINISTRATIVE JUDGE Bethesda, Maryland July 7,1994 1

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Cite as 40 NRC 22 (1994)

LBP-94-21 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

G. Paul Bollwerk, Ill, Chairman Dr. Charles N. Kelber Dr Peter S. Lam i

in the Matter of Docket No. 030-30485-EA (ASLBP No. 94-685-02-EA)

(EA 93-284)

(Order Modifying and Suspending Byproduct Material License No. 37-28179-01)

INDIANA REGIONAL CANCER CENTER July 12,1994 In this license suspension and modification enforcement proceeding, the Licensing Board rules on prediscovery dispositive motions regarding ten issues specified by the parties for litigation.

ENFORCEMENT ACTIONS: LEGAL BASIS Under Atomic Energy Act provisions such as subsections (b) and (i) of section 161. 42 U.S.C. i 2201(b), (i), the agency's authority to protect the public health and safety is uniquely wide-ranging. That, however, is not the same as saying that it is unlimited. In exercising that authority, including its prerogative to bring enforcement actions, the agency is subject to some restraints. See, e.g.,

Hurley Afedical Center (One Hurley Plua Flint, Michigan), AU-87-2,25 NRC 219,236-37 & n.5 (1987)(NRC Staff cannot apply a comparative-performance standard in civil penalty proceedings absent fair notice to licensees about the 22 i

parameters of that standard). One of those constraints is the requirement of constitutional due process.

ENFORCEMENT ACTIONS: CONSTITUTIONAL DUE PROCESS REQUIREMENTS (NOTICE OF CHARGES; OPPORTUNITY FOR RESPONSE)

DUE PROCESS: ENFORCEMENT ACTIONS (NOTICE OF CIIARGES; OPPORTUNrfY FOR RESPONSE)

A party responding to an agency enforcement complaint has been accorded due process so long as the charges against it are understandable and it is afforded a full and fair opportunity to meet those charges. See Citizens State Bank v. FDIC, 751 F.2d 209, 213 (8th Cir.1984). Put somewhat differently,

"'[p] leadings in administrative proceedings are not judged by standards applied to an indictment at common law,' but are treated more like civil pleadings where the concern is with notice,

" Id. (quoting Aloha Airlines, Inc. v. CAB,598 F.2d 250,262 (D.C. Cir.1979)).

ENFORCEMENT ACTIONS: CONSTITUTIONAL DUE PROCESS REQUIREMENTS (NOTICE OF CIIARGES; OPPORTUNITY FOR RESPONSE)

DUE PROCESS: ENFORCEMENT ACTIONS (NOTICE OF CIIARGES; OPPORTUNITY FOR RESPONSE)

When there is ne claim of a lack of understanding regarding the nature of the charges in an NRC Staff enforcement order, the fact that the validity of the Staff's assertions have not been litigated is no reason to preclude the Staff from utilizing those charges as a basis for the order. The adjudicatory proceeding instituted pursuant to 10 C.F.R. 5 2.202 affords those who are adversely affected by the order with an opportunity to contest each of the charges that make up the Staff's enforcement determination, an opportunity intended to protect their due process rights. The "unlitigated" nature of the Staff's allegations in an enforcement order thus is not a constitutional due process deficiency that bars Staff reliance on those allegations as a component of the enforcement order.

RULES OF PRACTICE: COLLATERAL ESTOPPEL; RES JUDICATA j

issue and claim preclusion principles (i e., res judicata and collateral estoppel) are applicable in NRC adjudicatory proceedings. See, e.g., Ohio Edison Co.

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(Perry Nucitar Power Plant, Unit I), L3P-92-32, 36 NRC 269, 283 & n.27 a

(1992) (citing cases), petitionsfor review pending, Nos. 92-1665, 93-1665, 93-1672,93-1673 (D.C. Cir.).

ENFORCEMENT ACTIONS: SUFFICIENCY OF CIIARGES (IIEA.RSAY)

EVIDENCE: IIEARSAY RULES OF PRACTICE: IIEARSAY EVIDENCE

'Ihe fact that the NRC Staff's charges in support of an enforcement order may be " hearsay" allegations does not provide sufficient reason to dismiss those claims ab initio. See Oncology Services Corp., LBP-93-20,38 NRC 130,135 n.2 (1993) (hearsay evidence generally admissible in administrative hearing if reliable, relevant, and material). Rather, so long as those allegations are in dispute, the validity and sufficiency of any " hearsay" information upon which they are based generally is a matter to be tested in the context of an evidentiary hearing in which the Staff must provide adequate probative evidence to carry its burd-n of proof.

ENFORCEMENT ACTIONS: SUFFICIENCY OF CilARGES One or rnore of the bases put forth by the NRC Staff as support for an enforcement order may be subject to dismissal if it is established they lack a sufficien nexus to the regulated activities that are the focus of the Staff's e

enforcement action.

LICENSING IlOARDS: AUTIIORITY TO DISMISS ISSUES IN ENFORCEMENT PROCEEDING RULES OF PRACTICE: DISMISSAL OF ISSUES IN ENFORCEMENT PROCEEDING In a proceedmg regarding an NRC Staff enforcement order, consistent with the analogous agency rules regarding contention.4 filed by intervenors, see 10 C.F.R. 5 2.714;d)(2)(ii), if it can be established that there is no set of facts that would entitle a party to relief relative to a proposed issue, then dismissal of that issue is appropriate. See Oncology Services Corp., LBP 04-2, 39 NRC 11,23 n.8 (1994).

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t ENFORCEMENT ACTIONS: SCOPE OF PROCEEDINGS As is evident from the Commission's enforcement policy statement, regula-tory requirements - including license conditions - have varying degrees of public health and safety significance. See 10 C.F.R. Pan 2 App. C, flV &

n.5. Conseqtently, as part of the enforcement process, the relative importance of each purponed violation is evaluated, which includes taking a measure of its technical and regulatory significance, as well as considering whether the vio-lation is repetitive or willful. See id. llIV.B. IV.C. Although. in contrast to civil penalty actions, there generally is no specification of a " severity level" for the violations identified in an enforcement order imposing a license terminatmn, o

suspension, or modification, see id. 6 VI.C, this evaluative process nonetheless is utilized to determine the type and severity of the corrective action taken in the enforcement order.

ENFORCEMENT ACTIONS: SCOPE OF PROCEEDINGS in making a determination about whether a license suspension or modification order should be sustained, a presiding officer must undertake an evaluative process that may involve assessing, among other things, whether the bases assigned in the order suppor6 it both in terms of the type and duration of the enforcement action. And, just as with the NRC Staff's initial determination about imposition of the enforcement order, a relevant factor may be the public health and safety significance of the bases specified in the order.

ENFORCEMENT ACTIONS: SCOPE OF PROCEEDINGS As the Commission recently noted,"the choice of sanction is quintessentially a matter of the agency's sound discretion." Advanced Afedical Systems, Inc.

(One Factory Row, Geneva, Ohio 44041), CL1-94-6, 39 NRC 285, 312 (1994)

(footnote omitted). In this regard, a presiding officer's review of an NRC Staff enforement action would be limited to whether the Staff's choice of sanction constituted an abuse of that discretion.

MEMORANDUM AND ORDER (Ruling on Prediscovery Dispositive Motions) in this proceeding, Licensee Indiana Regional Cancer Center (IRCC) and Dr.

James E. Hauer, IRCC's Radiation Protection Officer (RSO) and sole authorized user, (collectively IRCC/Dr. Bauer) challenge a November 1993 immediately 25

effective NRC Staff enforcement order. The order in question suspends and modifies IRCC's byproduct materials license authorizing the use of a strontium-90 source for the treatment of superficial eye conditions. Currently pending before the Licensing Board are dispositive motions filed by IRCC/Dr. Bauer and the Staff. In their motions, the parties address the issue of whether one of the chief grounds for the Staff's order -- Dr. Bauer's involvement in a November 1992 incident at IRCC concerning the administration of a high dose rate (HDR) brachytherapy treatment under a different NRC license authorizing the use of iridium-192 - is an appropriate basis for that order. In addition, the Staff asserts that four of the central issues proposed for litigation by IRCC/Dr. Bauer are subject to dismissal from the proceeding.

Nr the reasons detailed herein, we find that the Staff is not precluded as a matter of law from relying on the November 1992 incident as a basis for ris November 1993 enforcem:nt order. We further conclude, as the Staff requests, that an IRCC/Dr. Bauer issue regarding " patient need" for strontium-90 skin lesion treatments should be dismissed. We decline, however, to grant the Staff's petition to dismiss several other issues concerning the medical appropriateness and puolic health and safety risks of such treatmeats and wtether the licensee's provision of a patient log constituted submittirg " complete and accurate information" to the agency as NRC ruies require.

I.

IIACKGROUND The November 16,1993 Staff enforcement order at issue in this proceeding suspends IRCC's authority under Byproduct Materials License No. 37-28179-01 to receive or use any strontium-90 and modifies that license to, among other things, prohibit Dr. Bauer from engaging in any activities under the license. See 581:cd. Reg. 61,932, 61,933 (1993). The order recites three principal bases as support for suspendmg and modifying 1RCC's byproduct materials license: (1)

Dr. Bauer's purported performance of activities with the strontium-90 source that were not authorized under the license; (2) Dr. Bauer's alleged failure to provide complete and accurate information to NRC inspectors during a November 11, 1993 inspection of IRCC facilities; and (3) Dr. Bauer's supposed failure to cause an adequate survey of a patient to be made during a November 16,1992 HDR brachytherapy treatment at IRCC that resulted in a significant radiation exposure 3

to the patient and members of the general public. See id. at 61,932-33. His third matter is also a subject in dispute in a separate enforcement proceeding involving the suspension of an irhiium-192 byproduct materials license held by IRCC's parent company, P,.cology Services Corporation (OSC). See, e.g.,

Oncology Services Corp.. OP-94-2,39 NRC 11,15 (1994).

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Acting pursuant to the Board's December 17,1993 initial prehearing order, see Memorandum and Order (Initial Prehearing Order) (Dec. 17,1993) at 4-5 (unpublished), on January 18,1994, the parties filed a joint prehearing report j

in which they specified the centrat issues for litigation in this proceeding. Sec j

Joint Prehearing Report (Jan. 18,1994) at 1-4 [ hereinafter Joint Prehearing Report]. Dereafter, in accordance with the Board's February 1,1994 prehearing conference order, see Order (Prehearing Conference Order)(Feb.1,1994) at 1-2 (unpublished), on February 28,1994, both IRCC/Dr. Bauer and the Staff filed dispositive motions relative to several of those issues. See NRC Staff Motion for Summary Disposition and Motion for Dismissal (Feb. 28,1994) [ hereinafter Staff Dispositive Motions]; Motion to Eliminate Basis for Suspension (Feb. 28, 1994) [ hereinafter IRCC/Dr. Bauer Dispositive Motion]. The parties also have availed themselves of the opportunity to file a response to these motions and to

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submit a reply to the opposing party responses. See NRC Staff's Response to Motion to Eliminate Basis for Suspension (Mar. 31, 1994); Response to NRC Staff Motion for Summary Disposition and Motion for Dismissal (Mar. 31,1994)

[ hereinafter IRCC/Dr. Bauer Response to Staff Dispositive Motions]; NRC Staff Reply to IRCC's Response t-NRC Staff Motion for Summary Disposition and Motion for Dismissal (Apr. 15,1994); Reply to NRC Staff's Response to Motion to Eliminate Basis for Suspension (Apr. 14, 1994).

In their dispositive motions, both the Staff and IRCC/Dr. Bauer seek a ruling on whether the Staff can rely on Dr. Bauer's purported involvement in the November 1992 iridium-192 IIDR brachytherapy treatment incident as a basis for the November 1993 enforcement order regarding strontium-90 use by IRCC t

and Dr. Bauer. In addition, the Staff asks that four of the central issues for litigation proposed by IRCC/Dr. Hauer be dismissed from this proceeding. Rese include whether use of strontium-90 for treating skin lesions on two patients was medically appropriate (IRCC/Dr. Bauer issue 1); whether use of strontinm-90 f or skin lesion treatments on two patients posed a risk to the public health, safety, or interest (IRCC/Dr. Bauer Issue 2); whether providing a patient treatment log constitutes providing complete and accurate information to the NRC (IRCC/Dr.

Ilauer issue 3); and whether substantial patient need exists for strontium-90 treatments at IRCC (IRCC/Dr. Bauer Issue 14).

11. ANALYSIS A.

IRCC/Dr. Ilauer Motion to Eliminate liasis and Staff Motion for Summary Disposition 1.

The " Improper Basis" issue in their joint prehearing report, the parties mutually identified the following as the fifth central issue for litigation (Joint Issue 5) in this proceeding:

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l Whether Dr. Itauer's alleged conduct under License No. 37-285404) (HDR license), which is subject to pending htigation, can as a matter of law, tie a basis for the suspension of Limnse No. 37-28179-01 (Strontium-90 heena)?

Joint Prehearing Report at 2. Both IRCC/Dr. Bauer and the Staff, albeit in somewhat different ways, seek a dispositive ruling on this issue.

In their pleading entitled " Motion to Eliminate Basis," IRCC/Dr. Bauer assert i

that the Staff's reference to the November 1992 incident as a grounds for the November 1993 enforcement order violates fifth amendment due process guarantees. His is so, they contend, because the Staff's allegations of conduct under the IIDR license are unadjudicated, and thus cannot provide a basis for the enforcement order. In addition, they maintain that the Staff's reliance on the November 1992 incident is iroproper because any allegations regarding Dr.

Bauer's conduct relative to that incident are irrelevant and immaterial to this

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enforcement action. As a result, IRCC/Dr. Bauer conclude, we must prevent the Staff from ming the HDR incident as support for its November 1993 order by eliminatin3 it as a basis for the order. See IRCC/Dr. Bauer Dispositive Motion at 4-11.

Asserting that there are no material factual issues relative to Joint Issue 5, th Staff declares that it is entitled to summary disposition regarding that matter.

According to the Staff, its authority to utilize the HDR incident as a basis i

for suspending and modifying the IRCC license arises from (1) the agency's uniquely broad authority under the Atomic Energy Act (AEA), see Siegel v.

AEC. 400 F.2d 778, 783 (D.C. Cir.1968); (2) subsections b and i of AEA section 161,42 U.S.C. 5 2201(b), (i), which empower the Commission to issue l

orders to protect health or minimize danger to life or property; (3) AEA section l

I 86a, id. 5 2236(a), w hich permits the Commission to revoke, and by implication suspend, a license for failure to observe any Commission regulation; and (4) 10 4

C.F.R. 5 2.202(a)(1), which provides that in issuing orders the Staff may consider any facts deemed a sufficient ground for a proposed enforcement action. See Staff Dispositive Motions at 8.

De Staff declares that the foundation of the November 1993 order is its conclusion (presumably pursuant to AEA sections 161b and 161i) that it lacked

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the requisite reasonable assurance that IRCC's operations can be conducted consistent with agency regulations and in a manner that would adequately protect the public health and safety. This Staff conclusion, in turn, is based in sigmficant measure upon a determination that as the RSO and the only authorized user on j

the IRCC strontium-90 license, Dr. Bauer is unable or unwilling to assure that 1

the Commission's requirements are being and will be followcd. And, according to the Staff, the November 1992 incident is pertinent to this finding because it casts doubt upon Dr. Bauer's ability to follow the Commission's regulations and l

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to conduct licened activities, including those under the strontium-90 license, in a manner that ensures protection of the public health and safety. See id. at 9.

i Relative to its other cited authorities, the Staff asserts that its reliance on the November 1992 incident is consonant with AEA section 186 and with 10 C.F.R. I 35.18, which is a regulation providing that a byproduct materials license l

will be issued only if an applicant is found to be equipped and committed to obsersing the Commission's safety standards. The Staff contends that consistent with these provisions it is free to consider any actions by the licensee or those, such as Dr. Bauer, who are named in the license, that bear on the safe conduct of licensed activities. See id. In addition, the Staff maintains that its reliance upon the November 1992 incident - the Staff's allegations about which are as yet unlitigated - is fully in accord with 10 C.F.R. 6 2.202 and the Commission's broad authority to protect the public health and safety. See id. at 9-11.

t Finally, in its summary disposition motion the Staff claims that of the fourteen other issues proposed for litigation by IRCC/Dr. Bauer, five appear to be closely related to Joint issue 5. See id. at 7 n.4. Those issues are as follows:

1 4.

Whether allegations regarding Dr. Bauer's conduct on November 12,1992 are relevant to this proceeding in that they involve a different source, a different license, and an entirely distinguishaNe factual setting?

5.

Whether adminion of evidence regarding Dr. Bauer's conduct on Novemter 12,1992 is improperly prejudicial given the posture of this proceeding and the confusion of issues hLely to arise from the adnussion of that evidence?

6.

WI. ether adminion of evidence regarding Dr. Hauer's conduct on November 12,1992 amounts per se to a denial of the due prosess rights of Dr. Bauer and the Licensee?

7.

Whether admission of evidence into this proceeding regardmg Dr. Hauer's conduct on November 12, 1992 amounts to a demal of due process rights of Dr. Bauer and the j

Licenw because Dr. Hauer and the Licensee have been denied the opportunity to review matenal m the NRC's possession regardmg Dr. Bauer's conduct on November 12,1992?

t 8.

Whether allegations regardmg Dr. Hauer's conduct on November 12,1992 are admissible r

in this proceeding in that Dr. Hauer has yet to have the opportunity to contest any implication of fauh at a heanng and there has been no finding of fauh against him?

Joint Prehearing Report at 3. The Staff asserts that a ruling in its favor regarding Joint Issue 5 compels the dismissal of these issues as well.

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The floard's Determination The Staff correctly notes that under AEA provisions such as subsections (b) rnd (i) of section 161, the agency's authority to protect the public health and l

safety is uniquely wide-ranging. That, however, is not the same as saying that it is unlimited. In exercising that authority, including its prerogative to bring 29 s

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enforcement actions, the agency is subject to some restraints. See, e.g.,1/urley Medical Center (One Hurley Plaza, Flint, Michigan), A1187-2,25 NRC 219, 236-37 & n.5 (1987) (Staff cannot apply a comparative-performance standard in civil penalty proceedings absent fair r.atice to licensees about the parameters of that standard).

One of those constraints is the requirement of constitutional due process, which IRCC/Dr. Bauer have invoked in challenging the Staff's use of the i

November 1992 incident. See IRCC/Dr. Bauer Dispositive Motion at 4-8. It has been observed, however, that a party responding to an agency enforcement complaint has been accorded due process so long as the charges against it are understandable and it is afforded a full and fair opportunity to meet those charges. See Citizens State Bank v. FDIC,751 F.2d 209,213 (8th Cir.1984).

Put somewhat diffuently, "'[p]!eadings in administrative proceedings are not judged by standards applied to an indictment at common law,' but are treated more like civil pleadings where the concern is with notice

" /d. (quoting Aloha Airlines. Inc. v. CAB,598 F.2d 250,262 (D.C. Cir.1979)).

Under these standards, the due process complaint posited by IRCC/Dr. Bauer is not persuasive. %ey do ne',.laim a lack of understanding regarding the nature of the charges; rather, they contend that they should not be required l

to meet the Staff's claims because they do not " rise above the level of ' mere allegation.' " IRCC/Dr. Bauer Dispositive Motion at 11. The fact that the j

validity of the Staff's assertions regarding the November 1992 incident has not been litigated is no reason to preclude the Staff from utilizing those charges as a basis for the November 1993 order. Indeed, this very proceeding affords IRCC/Dr. Bauer with an opportunity to contest each of the charges that make up the Staff's enforcement determination, an opportunity intended to protect their l

due process rights.' The "unlitigated" nature of the Staff's allegations regarding j

the November 1992 incident thus is not a constitutional due process deficiency that bars Staf f reliance on the incident as a compcnent of the enforcement order at issue here.2 in addition to their due process concerns, IRCC/Dr. Bauer also contest the Staff's reliance on the November 1992 incident on the general grounds of

" relevance" and " materiality." Id. at 9-11. Their central contention in this i

regard - which appears to hark back to their general due process concern, see l

'In fact. takmg the IRCC/Dr flavet' pontoon to its logical conclouan, the Staff would be hard pressed to bnng l

Just about any enforcement acuon becauw in most imtances the been for thow proccethngs are the activines or hernwes or others that have not been the subject of bagation i

2 As man noted earher, a challege to the Staff *a claims about the November 1992 incident also is pendmg in a wparate pnxecdmg See wpra p 26 Whether the circumstances surroundmg that iacident are first tned in that case or m this proceedmg may have imphcauons in terms of mvukmg issue or chum precluuan pnnciples (i c i

res judicata or collateral esinppel). utuch are apphcable m NRC adjudicatory proceedmgs Sre. e t. Ohio fduon Co (Perry Nuclear Power Plant. Umt I), LilP.92-32. 36 NRC 269. 283 & n 27 (1992)(ciung cases), persrumfor i

renew pending Nos 92-1665. 911665. 901672. 9%1673 (D C. Car )

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id. at 5 is framed in terms of the uncorroborated " hearsay" nature of the allegations involved.'

Even accepting their characterization of the Staff's claims as " hearsay" allegations, this label alone does not provide sufficient reason to dismiss those l

claims ab initio. See Oncology Services Corp., LBP.93-20,38 NRC 130,135 n.2 (1993) (hearsay evidence generally admissible in administrative hearing if reliable, relevant, and material). Rather, so long as those allegations are in dispute, the validity and sufficiency of any " hearsay" information upon which they are based generally is a matter to be tested in the context of an evidentiary hearing in which the Staff must provide adequate probative evidence to carry i

its burden of proof.

Besides asserting that the Staff's allegations are " hearsay," IRCC/Dr. Bauer also state that the Staff's claims do not elate "in any substantive way" to the IRCC strontium-90 license. IRCC/Dr. Bouer Dispositive Motion at 9. Although in their initial motion they do not delineate what this means, in their response to l

the Staff's summary disposition request they contend that the November 1992 incident is too remote from the alleged-improper activities under the strontium-90 license given there are difr ent licensees (OSC v. IRCC), different radiation safety officers (OSC corporate RSO Dr. David E. Cunningham v. Dr. Bauer),

and different authoriicd nuclear materials (iridium-192 v. strontium-90). See IRCC/Dr. Bauer Response to Staff Dispo:itive Motions at 6.

There might well be instances in which one or more of the bases put forth by the Staff as support for an enforcernent order would be subject to dismissal as lacking a sufficient nexus to the regulated activities that are the focus of the Staff's enforcement action. This is not such a case, however, i

If, for the purpose of ruling on the IRCC/Dr. Bauer dispositive motion, we j

accept what has been pled by the Staff in that order as true, the factual circum-stances set forth in the order regarding the November 1992 incident and Dr.

Bauer's activities relating to that incident bear a sufficient link to the challenged activities under the strontium-90 license to permit the November 1992 incident to provide a basis for this enforcement action. A central connecting factor is that Dr. Bauer, as an authorized user under both licenses, was substantially involved (either as a supervisor or the administering physician) in providing treatments using licensed materials in a manner that the Staff finds was not in conformance with agency requirements. His question about the ability of Dr. Bauer (and thus IRCC for whom he serves as RSO and sole authorized user) to operate in conformance with Commission regulatory requirements provides the nexus that links the November 1992 incident under the OSC iridium-192 license with 4

esents at IRCC under the strontium-90 license and allows the earlier incident to be invoked as support for the November 1993 enforcement order.

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e We thus deny the IRCC/Dr. Bauer motiu to eliminate the November 1992 l

incident as a basis for the Staff's November 1993 enforcement order. Further, l

there being no material factual issues in dispute regarding Joint Issue 5.2 we find in favor of the Staff regarding that issue, concluding that as a matter of law the Staff is not precluded from utilizing Dr. Bauer's alleged conduct regarding the November 1992 incident as a basis for suspending and modifying the IRCC stroatium 90 license. This finding, however, is made with the understanding i

that the Staff continues to bear the burden of deuonstrating that the allegations t

it has put forth in its November 1993 order are sufficient to sustain that order.

11aving found in the Staff's favor regarding Joint Issue 5, we must also consider the Staff's assertion that the five additional IRCC/Dr. Bauer issues should be dismissed. We agree with the Staff about four of those issues.

IRCC/Dr. Hauer issues 4,5. 6, and 8 embody particular arguments as to why they should prevail on the general issue set forth in Joint Issue 5. Having dealt with those assertions in ruling in the Staff's favor on Joint Issue 5, those pafticular issues are for all practical purposes moot and so can be dismissed J

from this proceeding.

IRCC/Dr. Bauer Issue 7 is diffefent. Based on the information now before us, we are unable to conclude there are no matenal factual issues regarding the IRCC/Dr. Bauer assertion that they have been denied the opportunity to review material in the agency's possession regarding Dr. Bauer's conduct in the November 1992 incident. Nor have we been presented with any arguments i

demonstrating why such a denial would not be a deprivation of due process.

Accordingly, we deny the Staff's request that this issue be dismissed, with the caveat that any of the parties is free to file a postdiscovery dispositive motion relative to this issue.

H.

Staff Motion to Dismiss He Staff also seeks dismissal of four additional issues proposed by IRCC/Dr.

Hauer for litigation in this proceeding. The four issues are as follows:

1.

whether the u e of the strontium 90 as treatment for skin lesions on the two identified pauents was medically appropriate treatment?

l in supgure of its summary dapmuon mouon, tte staff put forth two statements of inaienal fact not in mue Tir hrst declaren that de November 19C rnforcenent order rehrd upon Dr llauer's conduct unider the indmm-192 heenw. while the other states that Dr Hauer's conduct under the and un> l92 heense is subject to anoller penang adiodicatory pn,cre hnr Ser Staff Dupaiuve Monons at 5 Although IRCCDr Hauer agree that the two skuerernts of matenal f.e put forth by the starf m support of its summary dnposition nwtion are material and rekvant. tiry nonettricu state that they " content any muertion that there is no genume insue in be heard with regard to tiric facts " 1RcOTW Hauct Rcymnse to Staff Onpouuve Mouons at 3 They fail, however. to nuke any showing estabh>hmg how itere is a dnpute over theme factual statenrnts, and we can perceive none. Ser J

A6hunrad Mrdhut hurms. lar. (otr f actory Row. Geneva. otuo 4441). CLI 94 6. 39 NRC 284 308 (1994) torre anernons of dnpute over nutenal suuen of fact do not invahd.uc grant of summary dugmament 32 i

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f 2.

Whether there was any risk to the public health, safety or other interest by virtue of the use of the strontium-90 as treatment for skin lesions on the two identified patients?

3.

Whether provision of the patient treatment tog constitutes provision of complete and accurate infortraton by the Licensee to the NRC7

14. Whether substantial patient need exists for Strontium-90 treatment at IRCC?

Joint Prehearing Report at 3,4. As we have previously noted in the Oncology Services Corp. proceeding, if it can be established that there is no set of facts that would entitle IRCC/Dr. Bauer to relief relative to these proposed issues, then dismissal is appropriate. See LBP-94-2,39 NRC at 23 & n.8.*

l 1.

IRCC/Dr. Bauer issues 1 and 2 Regarding IRCC/Dr. Bauer Issue 1 - the medical appropriateness of the strontium-90 skin lesion treatments - the Staff correctly points out that whether or not the treatments were medically appropriate would not, in and of itself, be a valid defense to the allegation in th. order that Dr. Bauer performed activities l

that were not authorized under the license. Either Dr. Bauer's activities were i

or were not authorii.ed by the license and, if they were not, then Dr. Bauer (as i

the sole authorized user) was conducting activities in violation of the license.

I Nonetheless, in conjunction with IRCC/Dr. Bauer Issue 2 concerning the public health and safety risks of the treatments, this " medically appropriate treatment" issue may be relevant to another aspect of our determination about whether the Staff's order should be sustained. This is the question of the extent or duration of the license suspension and modification imposed by the order.

As is evident from the Commission's enforcement policy statement, regula-tory requirements - including license conditions ---- have varying degrees of public health and safety significance. See 10 C.F.R. Part 2, App. C, ilV &

j n.5. Consequently, as part of the enforcement proces 9e relative importance i

of each purported violation is evaluated, which includes taking a measure of its technical and regulatory significance, as well as considering whether the vio-lation is repetitive or willful. See id. 651V.B, IV.C. Although, in contrast to civil penalty actions, there generally is no specification cf a " severity level" for the violations identified in an enforcement order imposing a license termination, suspension, or modification, see id, i VI.C, this evaluative process nonetheless d lRcC/Dr Hauer suggest that the Staff cannot properly seek disnussal of ther issues because dry are put farth as %dene nies" See IRcC/Dr H.iuer Respome to Staff thsposit ve Mouons at 7Jt As we have noted prewously, conustent unh the analogous agency rules regar6hng contentiom riled by intervenors, see 10 C F R.

17 714uf K2kio. 'frse urs are subject to diurnual under the appropnate circumstances So. ecology Srntes Corp. LHP-942. N NRC at 21 n 8 33 1

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I-is utilized to determine the type and severity of the corrective action taken in the enforcernent order.

In making a determination about whether a license suspension or modification order should be sustained, we must undertake a similar process in that we must assess, among other things, whether the bases assigned in the order support it both in terms of the type and duration of the enforcement action 5 And,just as with the Staff's initial determination about imposition of the enforcement order, a relevant factor may be the public health and safety significance of the bases specified in the order.6 7

As a consequence, there may be a set of facts under which IRCC/Dr. Bauer issue 2 would be relevant to our determination here. Further, the question of whether the treatment involved was " medically appropriate" may be germane to the public health and safety significance of some of the bases of the order.

According!,, as it relates to IRCC/Dr. Bauer Issue 2, we find >RCC/Dr. Bauer Issue I to be an appropriate matter for litigation in this proreeding as well.

j 2.

IRCC/Dr. Bauer issue 3 With their issue 3, IRCC/Dr. Bauer apparently call into question the Staff's finding that, contrary to agency regulations, Staff inspectors were not provided with comptate and accurate informa4n legarding the use of strontium-90 for i

ficial eye conditions as authorized

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under the IRCC license. 'Ihe Staff assern that because the focus of the order is on the alleged initial failure of Dr. Bauer to identify strontium-90 skin lesion tfeatments when questioned by inspectors, the Licensee's subsequent action in turning over the patient treatment log is irrelevant to the regulatory violations invohed. This, the Staff concludes, mandates that the issue be dismissed.

We do not agree with the Staff's analysis regarding this issue. As Joint Is-sues 2,3,4, and 9 indicate, the Staff and IRCC/Dr. Bauer disagree regarding tb substance and significance of the conversations between Dr. Bauer and agency inspectors regarding their information requests. Whether or not the patient tog 1

has any regulatory significance as " complete and accurate mformation" seem-ingly will depend upon how those factual disputes are resolved. Accordingly, we deny the Staff's dismissal request relative to this issue as well.

8 As the Comnusuon receml) noted. "the cluce of sanction is quintessentially a rnatter of de agency's sound dmcretmn " Admarrd Afedual Snum /nc. Ct.I 94 6. 39 NRC at 312 (footnote arruned) to this regard. our I

revww would tw hrruted to whether the staff's choice consututed un abuse of that discreuun 6 Tins. of counc. can be contrasted orth the Staff *a crwderanon of pournforcenent order rnatters auch aa tte licenwe's effortn to correct anered dehewncies that are not necessarily apptynare subjects for htigation in a l

challenge to the enforcenent actmn See IJtP 94-2. 39 NRC at 23-26 34

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IRCCfDr. Hauer issue N j

This issue is the same as one we dealt with previously in the Oncology Services Corp. proceeding. As we indicated there, "[w]hatever the patient

'need' for the treatment with licensed materials, the agency cannot authorize their use until it is satisfied that the licensee will act consistent with [the AEA's]

statutory mandate [of protecting the public health and safety)." LBp-94-2,39 NRC at 26. We likewise fmd this issue to be irrelevant to our consideration of whether the Staff's November 1993 order should be sustained and thus we l

distniss it.

i Ill. CONCLUSION After evaluating the parties' filings, we conclude that there is no legal bar to the Staff utilieing Dr. Bauer's conduct during the November 1992 incident as a basis for the November 1993 enforcement order at issue in this proceeding.

We therefore deny the request of IRCC/Dr. Bauer to preclude the Staff from using the incident as a basis for this proceeding and, finding no material issues in dispute, grant the Staff's motion for summary disposition on the same point.

This ruling also leads us to dismiss related IRCC/Dr. Bauer issues 4,5,6, and 8 as moo' in addition, we grant the Staff's request to dismiss IRCC/Dr. Ilauer issue 14 as not germane to this proceeding. Finally, because we find IRCC/Dr.

11auer Issues 1,2,3, and 7 involve matters for which IRCC/Dr. Bauer might be entitled to some relief, we deny the Staff's request for dismissal of those issues.

Ihr the foregoing reasons, it is, this 12th day of July 1994. ORDERED that:

1.

The IRCC/Dr. Bauer February 28, 1994 motion to eliminate basis for suspension is denied.

2.

The Staff's February 28,1994 motion for summary disposition regarding i

Joint issue 5 is granted and related IRCC/Dr. Bauer issues 4,5,6, and 8 are dismissed as moot.

3.

The Staff's February 28,1994 motion for summary disposition regarding l

1RCC/Dr. Bauer issue 7 is denied.

4.

The Staf f's February 28, 1994 motion to dismiss regarding IRCC/Dr.

Ilauer issues I,2, and 3 is denied l

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De Staff's February 28, 1994 motion to dismiss regarding IRCC/Dr.

Bauer issue 14 is granted ?

THE ATOMIC SAFETY AND LICENSING BOARD i

G. Paul Bollwerk, III, Chairman ADMINISTRATIVE JUDGE Charles N. Kelber ADMINISTRATIVE JUDGE Petar S Lam ADMINISTRATIVE JUDGE Rockville, Maryland July 12,1994

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7 Copes of thn Menuwandum and Order are bemg sent ttun daic to counwl for IRCCAk Bauer by farsimile transmimon and to Staff counwl by re nuul trannnumon throuvi the agency's wide area network system i

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i Cite as 40 NRC 37 (1994)

LBP-94-22 UNITED STATES OF AMER CA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY.AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy in the Matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3

',ASLBF do. 93-671-01-OLA-3)

(Re: License Amendment; Transfer to Southern Nuclear)

GEORGIA POWER COMPANY, et al.

(Vogtle Electric Generating Plant, Units 1 and 2)

July 28,1994 The I.icensing Board determines that an Intervenor may move to admit into the proceeding a new basis for an already admitted contention. When it does so, the requirements for a Irof. led contention are not applicable, but the Intervenor must show that it is timely to consider the new basis, in light of its seriousness and of the timeliness with which it has been raised. The Licensing Board also permitted Intervenor to file a reply to Applicant's response to his motion to add a new basis to his contention.

RUI.ES OF l'RACTICE: NEW llASIS FOR CONTENTION; I. ATE Fil.ING Once a contention has been admitted. Intervenor may litigate a new basis for the admitted contention (falling within the scope of the contention) without meeting the live-pronged test for a late-filed contention. The test for admitting 37

the new basis is whether it is timely to consider the new basis, in light of its seriousness and of the timeliness with which it has been raised. The more serious the safety implications of the proposed new basis, the less important delay in presenting the basis.

RUI.ES OF PRACTICE: IIASIS OF CONTENTION; INTERVENOR NEED FILE HASES IT INTENDS TO REI,Y ON nere is no regulatory requirement that an intervenor supply all the bases known at the tir.ie he files a contention. What is required is the filing of bases i

that the intervenor intends to rely on.10 C.F.R. 5 2.714(b)(2)(ii).

RUI,ES OF PRACTICE: IIASIS OF CONTENTION; INTERVENOR MAY REPLY TO APPI,ICANT'S RESPONSE Intervenor may reply to Applicant's Response to Intervenors' Motion for a new basis for its contention. In that reply. Intervenor should demonstrate, with particularity: (1) that he unSrstands the answers that have been filed and that (despite those answers) there is an important, genuine issue of fact that Georgia Power has materially misled the Staff of the Commission concerning the public safety and health, and (2) that he did not unnecessarily delay the filing of this new basis for its contention.

MEMORANDUM AND ORDER (N1otion to Accept Additional Factual Ilasis)

I.

31E310RANDUS1 Mr. Allen Mosbaugh (Intervenor) moves to admit into this proceeding a new hasis for his admitted contention. The new basis he advances is an allegation that Georgia Power misled the Nuclear Regulatory Commission concerning an improper opening of the containment equipment hatch, breaching containment integrity, during the March 20, 1990 site area emergency.' Georgia Power has responded to this motion in an extensive factual filing that appears to demonstrate that the new basis is without factual merit.2 Georgia Power and

' interwnew'n Monon lo Accept Addirmnal luctual Ham in suppot1 of the Adnutted Cont nuon. July 6.1994 tintervenor's Monun) 2 Croegia Power Corppanis "Answ I to intmenors' Molmn to Accept Additmnal Iactual Dasn'i in Support of the Adnutted C,mtenuon." July 21,1994 (Georpa Power's Answer). staf f of the Nacicar Regulatory Comnumon,

" Response to iniervenor Monon f,w Admauon of f aite l'iled Conernuon Ham." July 26.1994 (Staff's Responne r 38 i

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4 the Staff argue that Intervenor's motion is seeking to raise a new " issue" in an untimely fashion.

We have admitted into this proceeding Intervenor's following contention:'

The license to operate the Vogile Electric Generating Plant. Units 1 and 2, should not be transferred to Southern Nuclear Operating Company, Inc., because it lacks the requisite character, cornpelence, and integnty, as well as the necessary candor, truthfulness, and willmgness to abide by regulatory requirements.

This contention was based on specific allegations about: (1) false or misleading statements about Vogtle's diesel generators, and (2) illegal transfer of the authority to operate the Vogtle Plant.

A licensing board has the authority to make an appropriate decision about whether the new basis shall be admitted. It has the authority to conduct a fair and impartial hearing and to take appropriate action to avoid delay

• We note that a licensing board, in an analogous context, held that an issue that fell within an admitted contention could be litigated. The test that was developed and applied, to determine whether to admit the new issue, was "whether the motion was timely and whether it presents important information regarding a significant issue." Consumers Power Co. (Midland Plant, Units I and 2), LilP-84-20,19 NRC 1285,1296 (1984). We accept this test.

Since Intervenor's new bas s falls within the scope of an admitted contention, he is not seeking to raise a new contention; therefore, we have concluded tht..

there is no merit to the joint claim of Georgia Power and the Staff that we 5

should apply the new-contention requirements to the new allegations. There is no regulatory requirement that an intervenor supply all the bases known at the time he files a contention. What is required is the filing of bases that the intervenor intends to rely on.*

We note that we had stated, in our unpublished order of, June 2,1994, at 3-4, that we would consider whether or not to admit a new basis as a new contention.7 After considering the arguments of the parties, we now conclude that it is not necessart to apply new contention requirements to a new basis for an admitted contentina. The question before us is whether it is timely to consider the new hasis, in light of its seriousness and of the timeliness with which it has been i

raised.

'l BP 03 5,17 NRC % 110 (lwO d l0 C l R 6 2 7111 i

S 10 01 R. 5 2.714(axi).

I "Pruuoner is required to Jtwlme the bases for his contentum th.st he intended to nly on at the itearing at the tmw he bled ha cm.c 10 C I R 6 2 7141bx2Xin we conclude that Prouoner has given enough explanation in i

his hhng for us to undmtand why tr did na miend to rely on the new aHegatmn al the tmr he filed his initnl nmiention Intervenor's Motmn at 3 7 our order woes ated m the Staff Reywmw at 24 j

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The more serious an issue, the more important it is for this Board to consider it. We can, indeed, always determine that a serious issue that falls within the scope of an admitted contention must be considered in order to assemble an adequate record.8 We have, therefore, chosen to treat Intervenor's filir.;; as a motion to be decided on its merits, in light of the opposing arguments of the parties.

In response to that motion, Georgia Power has filed an extensive, carefully documented answer and the Staff also has answered. We invite Intervenor to file a combined reply to Georgia Power and to the Staff. In that response,Intervenor should demonstrate, with particularity: (1) that he understands the answers that have been filed and that (despite those answers) there is an importans, i

genuine issue of fact that Georgia Power has materially misled the Staff of the Commission concerning the public safety and health; and (2) that he did not j

unnecessarily delay the filing of this new basis for its contention.'

II. ORDER Ibr all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 28th day of July 1994, ORDERED that:

Hy 6 pm on Friday, August 6, the Licensing Board and the parties shall re-ceive a feply by Allen Moshaugh (Intervenor) to the answers of Georgia Power, l

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" See our unpubhshed order of June 2,1994, at 4 (requesung a showing from the prues concerning whether adindicauon of a new baus is required an order to compile an adequate record on the minutted comenoon) Sec 4sha /hur Ga. and Llectrw Co (thablo Canyon Nuclear Power Plant. Units 1 and 2).1.HP.91-1. 37 NRC 5.

20 (190) Ontervenor under the anended contentmn rule will not be tinute I to 'he specihc incidents rehed on to adnut its contenuon)

'If there n a substantial nuntiatement involved. we as a tuenung Board could decide that the adnuumn of the new basis is necessary for us to compile an adequaic record on the admitted contemion We are unlikely to decide that tardmeu in ranung an important inue of credibihty was reason to onut the inue from our record We are required to mmpile an adequaic record that covers impurrant relevant tuucs 40 i

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et al., and the Staff of the Nuclear Regulatory Commission to Intervenor's hio-tion to Accept Additional Factual Basis in Support of the Admitted Contention.

i TIIE ATOMIC SAFETY AND 1 ICENSING BOARD James IL Carpenter ADMINISTRATIVE JUDGE i

i Thomas D.. Murphy i

ADMINISTRATIVE JUDGE Peter B. Bloch, Chair i

ADMINISTRATIVE JUDGE i

Rockville, Maryland

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