ML20034G105
| ML20034G105 | |
| Person / Time | |
|---|---|
| Issue date: | 02/28/1993 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V36-N03, NUREG-750, NUREG-750-V36-N3, NUDOCS 9303090074 | |
| Download: ML20034G105 (77) | |
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l NUREG-0750 i
Vol. 36, No. 3 Pages 149-220 1
lNUCLEARiREGULATORY:
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l Available from Superinteniendent of Documents U.S. Government Printing Office Post Office Box 37082 Washington, D.C. 20013-7082 i
A year's subscription consists of 12 softbound issues, i
4 indexes, and 2-4 hardbound editions for this publication.
Single copies of this publication are available from National Technical Information Service, Springfield, VA 22161 t
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4 Errors in this publication may be reported to the Division of Freedom of Information and Publications Services i
Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)
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'l NUREG-0750 i
Vol. 36, No. 3 I
Pages 149-220 i
i NUCLEAR REGULATORY COMMISSION ISSUANCES l
September 1992 A
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l This report includes the issuances received during the specified period l
from the Commission (CL1), the Atomic Safety and Licensing Boards
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(LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).
l The summaries and headnotes preceding the opinions reported herein 1
are not to be deemed a part of those opinions or have any independent legal significance.
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U.S. NUCLEAR REGULATORY COMMISSION i
Prepared by the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission j
1 Washington, DC 20555 (301/492-8925) i l
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COMMISSIONERS Ivan Selin, Chairman Kenneth C Rogers James R. Curtiss Forrest J. Remick E. Gail de Planque l
B. Paul Cotter, Jr., Chief Administrative Judge, Atomic Safety ard Licensing Escard Panel i
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CONTENTS l
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l Issuances of the Atomic Safety and Licensing floards BABCOCK AND WILCOX (Apollo, Pennsylvania Fuel Fabrication Beility)
Docket 70-135-DCOM (ASLBP No. 92-667-03-DCOM) j i
(Decommissioning Plan) (Materials License No. SNM-145) l MEMORANDUM AND ORDER, LBP-92-24, September 4,1992... 149 4
i NORTHEAST NUCLEAR ENERGY COMPANY (Millstone Nuclear Power Station, Unit 2)
I Docket 50-336-OLA (ASLBP No. 92-665-02-OLA)
(Spent Fuel Pool Design) (POL No. DPR-65)
MEMORANDUM AND ORDER, LBP-92-26 September 17,1992.. 191 i
NORTHEAST NUCLEAR ENERGY COMPANY (Millstone Nuclear Power Station, Unit 2)
Docket 50-336-OLA (ASLBP No. 92-665-02-OLA)
(Spent Fuel Pool Design) (FOL No. DPR-65) l MEMORANDUM AND ORDER, LBP-92-28, September 30,1992.
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l PACIFIC GAS AND ELECTRIC COMPANY t
(Diablo Canyon Nuclear Power Plant. Units 1 and 2) j Dockets 50-275-OLA-2,50-323-OLA-2 (ASLBP No. 92-669-03-OLA-2)
(Construction Period Recovery) (Beility Operating Licenses Nos. DPR-80, DPR-82)
MEMCRANGUM AND ORDER, LBP-92-27, September 24,1992.. 196 I
PIPIN3 SPECIALISTS, INC., and FORREST L. ROUDEBUSH dh.a. PM INSPECTION, and dh.a. PIPING SPECIALISTS, INC.
Dockets 030-29626-OM&OM-2 (ASLBP Nos. 92-653-02-OM, i
92-662-06-OM-2) (License Revocation, License Suspension)
(Byproduct Material License No. 24-24826-01) (EA 91-136,92-054)
FINAL INITIAL DECISION, LBP-92-25, September 9,1992 156 iii 4
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i Atomic Sa"ety g
and Licensing Boards Issuances I
ATOMIC SAFETY AND UCENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge Q
Robert M. Lazo,* Deputy Chief Administrative Judge (Erecutive)
Frederick J. Shon,* Deputy Chief Administrative Judge (Technicai)
<C Members cc l
Dr George C. Anderson James R Gleason*
Dr Kenneth A. McCollorn C
l Chades Bechhoefor*
Dr. Davd L Hetnck Marshall E. Miner i
Peter B. Bbch*
Ernest E. Hill Thomas S. Moore
- G Paul Bottwerk til*
Dr. Frank F. Hooper Dr. Peter A. Moms Glenn O Bnght Eltzabeth B. Johnson Thomas D. Murphy
- Dt A. Dixon Cattihan Dr Waker H. Jordan Dr Richard R. Panrek Dr James H. Cayenter*
Dr. Charles N. Kelber*
Dr Harry Rein Dr Richard F. Ccie*
Dr. Jerry R. Kline*
Lester S. Rubenstein Dr Thomas E. Elleman Dr Peter S Lam Dr Daed R. Schink d
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Dr George A. Ferguson Dr James C. Lamb til Ivan W. Smith
- Dr Harry Foreman Dr. Emmeth A. Luebbe Dt George F. Tdey Dr Richard F. Foster Morton B Margulies*
Sheldon J. Wotte a
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- Permanent panel memt.,ers i
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l Cite as 36 NRC 149 (1992)
UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION l
ATOMIC SAFEW AND UCENSING BOARD PANEL l
Before Administrative Judges:
G. Paul Bollwerk, lit, Presiding Officer j
Dr. Richard F. Cole, Special Assistant in the Matter of Docket No. 70-135-DCOM (ASLBP No. 92-667-03-DCOM)
(Decommissioning Plan)
(Materials License No. SNM-145)
BABCOCK AND WILCOX (Apollo, Pennsylvania Fuel Fabrication Facility)
September 4,1992 l
l In this 10 C.F.R. Part 2, Subpart L informal proceeding, the Presiding Officer grants the Petitioners an opportunity to supplement or amend their I
hearing request to addmss questions about their standing and whether they have presented litigable issues.
RULES OF PRACTICE: INFORMAL llEARING (AMENDMENT TO IIEARING PETITION)
Unlike a formal adjudicatory proceeding under 10 C.F.R. Part 2. Subpart G, in an informal proceeding under Subpart L the petitioner requesting a hearing does not have the right to amend or supplement an otherwise timely hearing petition once the deadline specified in 10 C.F.R. 62.1205(c) for submitting hearing requests has passed.
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l RULES OF PRACTICE: INFORMAL IIEARING (AMENDMENT TO IIEARING PETITION)
In an informal adjudication under 10 C.F.R. Part 2, Subpart L, a petitioner may amend or supplement a timely hearing request only as permitted by the presiding officer, who is afforded this discretionary authori y under the general t
powers granted by 10 C.F.R. 52.1209 to regulate the course of an informal proceeding. The presiding officer retains that discretion at least up through the point at which he or she makes a final ruling upon the sufficiency of the hearing request.
l RULES OF PRACTICE: STANDING (INJURY IN FACT)
In addressing the matter of standing in a decommis:ioning proceeding, to establish" injury in fact" it must be shown how any alleged harmful radiological, environmental, or other legally cognizable effects that will arise from activitics under the decommissioning plan at issue will cause injury to each individual or organizational petitioner or, in the case of an organization relying upon representational standing, the members it represents. See, e.g., Sacramento Municipal Utiliry District (Rancho Seco Nuclear Generating Station), LBP 23,36 NRC 120,127-30 (1992); Northern States Power Co. (Pathfinder Atomic Plant), LBP-89-30, 30 NRC 311, 314-17 (1989).
I RULES OF PRACTICE: INFORMAL IIEARINGS (SPECIFYING I
AREAS OF CONCERN)
In contrast to the mies governing the admission of contentions in formal I
adjudications, see 10 C.F.R. 5 2.714(b)(2), in specifying their areas of concern i
about the licensing activity that is the subject matter of the proceeding, see 10 C.F.R. I 2.1205(d)(3), the petitioners do not have to put forth a comprehensive exposition in support of the issues they wish to litigate. Nonetheless, to provide the presiding officer with a better understanding of their claims to aid him or her in making an informed determination about whether those matters are
" germane" to the proceeding, see 10 C.F.R. f 2.1205(g), the petitioners are well served by providing as much substantive information as possible regarding the basis for the concerns specified in their hearing petition.
RULES OF PRACTICE: INFORMAL llEARINGS (LATE-FILED AREAS OF CONCERN)
In submitting an amended or supplemented hearing petition, if the petitioners wish to raise and provide information regarding matters that were not specified 150 i
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in their initial hearing petition, they must make a showing that will satisfy the late. filing requirements of 10 C.F.R. f 2.1205(k).
MEMORANDUM AND ORDER (Allowing Petitioners to Amend or Supplement Their llearing Request) i Presented for determination is the question whether, and under what circum-stances, a hearing petition filed in an informal adjudicatory pnceeding under 10 C.FR. Part 2, Subpart L, may be amended or supplemented. Er the reasons stated herein, and subject to the guidelines specified, I find that it is appropriate i
to permit the Petitioners here to amend or supplement their hearing request.
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I This informal adjudicatory proceeding was convened to consider the chal-lenge of Save Apollo's Rture Environment (SAFE), Cynthia Virostek, Vir-ginia Trozzi, William Whitlinger, and Helen and James Hutchinson (hereinafter referred to collectively as "the Petitioners") to a license amendment for the Babcock and Wilcox (B&W) Apollo, Pennsyhania fuel fabrication facility that authorizes activities under the B&W Decommissioning Plan, Revision 2. In its August 11,1992 response to the Petitioners' July 27,1992 hearing request, J
Licensec B&W contends that the Petitioners have failed to establish, in accor-dance with 10 C.FR. 5 2.1205(d), that they have standing and that the issues j
they wish to litigate are germane to the subject matter of the proceeding. In i
light of this response, by means of an August 14,1992 memorandum and order 6
i (unpublished), I asked for the participants' views on whether, consistent with
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Subpart L, the Petitioners should be permitted to amend or supplement their hearing request.
In their response, the Petitioners assert that they would like time to supply additional information relative to the matters raised in the B&W reply to their hearing petition. They also declare that nothing in Subpart L specifically prohibits the presiding officer from permining a petitioner to supplement or i
j amend a hearing request. Rather, they contend, a presiding officer's general powers under 10 C.F.R. 9 2.1209 to manage the conduct of the proceeding are sufficiently broad to permit the submission of additiomd information.
According to Licensee B&W, the Petitioners cannot amend or supplement their hearing petition as a matter of right. As support for this position, the Licensee contrasts the Subpart L procedures with the rules governing formal adjudications under 10 C.F.R. Part 2, Subpart G. Licensec B&W points out 151 8
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that Subpan G permits amendment of a hearing petition without leave of the presiding officer up to 15 days prior to a special prehearing conference under i
10 C.F.R. 6 2.751a or, if no special prehearing conference is held, up to 15 days prior to the first prehearing conference. See 10 C.F.R. 9 2.714(a)(3). The Subpart L rules, it declares, contain no similar provision, suggesting that there l
is no right to amend under Subpan L. Licensee B&W does conclude, however, that the presiding officer has the discretion to permit a petitioner to provide additional information to bolster its claims that it has standing and wishes to litigate germane issues, at least so long as any information regarding its areas of concern is limited to the claims enumerated in the petitioner's original hearing a
request.
In its response, the NRC Staff makes essentially the same points as the Licensec.' It also identifies several previous rulings by presiding officers in other informal adjudicatory proceedings that it asserts are consistent with its position j
that whether to allow a petitioner in an informal adjudication to supplement I
or amend a hearing request is a matter committed to the sound discretion of the presiding officer. Sce, e.g., Nonhern States Power Co. (Pathfinder Atomic Plant), LBP-89-30,30 NRC 311,314-17 (1989).
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A.
Both the Licensee and the Staff are correct that, unlike the petitioner in a formal, Subpart G proceeding, one requesting a Subpart L hearing does not have the right to amend or supplement an otherwise timely hearing petition once the deadline specified in 10 C.F.R. 62.1205(c) for submitting hearing requests has passed. Instead, a petitioner may amend or supplement a timely hearing request only as permitted by the presiding officer, who is afforded this discretionary authority under the general powers granted by 10 C.F.R. 62.1209 to regulate d
the course and conduct of an informal proceeding. Marcover, the presiding officer retains that discretion at least up through the point at which he or she makes a final ruling upon the sufficiency of the hearing request.
In this instance, I would be materially aided in fulfilling my responsibility to 4
make an informed determination about whether the Petitioners have standing to l
contest the license amendment at issue and whether they have presented litiga-ble issues by allowing them to submit additional information relative to those matters. Further, because the amendment in question apparently has been is-5 sued by the Staff and is in effect, thereby authorizing Licensee B&W to conduct 3 By tener dated August 17, the stafr informed me that in acmrdance with 10 C.F.R. 62.1213 it has decided to participate as e party in this proceeding.
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decommissioning activities in accordance w;th the plan submitted to the Staff,2 any delay encountered by permitting the Petitioners to make an additional filing will not inure to the detriment of the Licensee or the Staff.
Accordingly, the Petitioners' request to amend or supplement their hearing petition is granted. Petitioners should file (mail) their supplemental / amended hearing petition on or before friday, October 9,1992. The Licensee and l
the Staff may file responses to the Petitioners' supplemental / amended hearing petition on or before Afonday. October 26.1992.
B.
In allowing the Petitioners to submit a supplemental / amended hearing i
request, it is important to ensure that they will address those issues that are of central importance to my determination regarding the sufficiency of their i
petition. Herefore, I provide the following guidelines for their filing:
1.
In addressing the matter of their standing, the Petitioners should recog-j l
nize that one of the critical elements is their ability to establish their " injury in fact." As has been acknowledged in other decommissioning proceedings, this requires that they show how any alleged harmful radiological, environmental, or other legally cognizable cifects that will arise from activities under the decom-l missioning plan at issue will cause injury to each individual or organizational
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petitioner or, in the case of an organization relying upon representational stand-ing, the members it represents. See, c.g.. Sacramento Afunicipal Utility District
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(Rancho Seco Nuclear Generating Station), LBP-92-23,36 NRC 120,127-30 (1992); Pathfmder, LBP-90-3, supra 30 NRC at 314-17.
in this regard, because they appear to rely principally upon the proximity of their residences to the B&W facility, each of the individual Ittitionen should consider specifying by affidavit the distance his or her dwelling is from the facility, In the case of the organization SAFE, if it is relying upon the 1
proximity to the B&W facility of certain of its members' homes to establish its standing, it also should consider submitting affidavits from each of those i
members, indicating that SAFE is authorized to represent him or her in this proceeding and specifying the distance his or her dwelling is from the B&W i
facility. It is, of course, incumbent upon the Petitioners to explain how, at the distances specified, each will be injured by any activities arising out of the l
decommissioning plan.
j 2.
Although the Petitioners have already provided a statement of their con-i cerns that lists twenty different items, most of these are bare-benes descriptions l
of the issues they wish to litigate. In contrast to the rules governing the admis-i 2Although the staff did nm prtwuie a farmal response to my request in the August 14 memorandum and order that it ennfirm in wntmg (1) that Amendmern No. 21 to Matenals License No. sNM-145. issued June 25.1992, is the same amendmern it was "considenng" grantang at the time it assued the June 18,1992 notim of appertunity for hearing that precipitated the Ptutimers' hearms roguest (ser 57 Fed. Reg 28.539, 28,539 (1992)). and (2) that this amendmers is now in effect, from the participants' recent filings I have been able to gican that t?us is,in fact. the case.
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,r sion of contentions in formal adjudications, see 10 C.F.R. $ 2314(b)(2), at this point Petitioners do not have to put forth a comprehensive exposition in support of the issues they wish to litigate. Nonetheless, the more information I have on
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the basis for their claims, the better I will be able to understand their concerns and make an informed determination, as is mandated by 10 C.F.R. 9 2.1205(g),
about whether these matters are " germane" to this proceeding. ~nie Petition-ers thus would be well served by providing as much substantive information as possible regarding the basis for the concerns specified in their initial petition.5 Also in this regard, as the Licensee and the Staff have stated, if the Petitioners now wish to raise and provide information regarding matters that were not specified in their initial hearing petition, they must make a showing that will satisfy the late-filing requirements of 10 C.F.R. 6 2.1205(k).
111.
In specifying the date for the Petitioners
- filing, I am aware that they are in the process of trying to obtain legal (and perhaps tecimical) assistance for j
prosecuting their claims in this proceeding. Yet, despite the admonition in j
the August 14 memorandum and order that they must do so promptly and my request for specific information regarding the progress of their efforts in this regard, their response tells me nothing concrete about the success or timing of their efforts.
I appreciate the difficulties involved in trying, as I understand the Petitioners are, to obtain counsel on a pro bono or reduced-rate basis. Nonetheless, nearly 2W months have passed since the publication of the notice in the Federal Register, providing interested persons an opportunity to request a hearing regarding the decommissioning amendment at issue here. Within that time frame, the Petitioners could have made considerably more progress in retaining counsel.
In these circumstances, I must advise the Petitioners that any last-minute request by a recently retained counsel to postpone the filing authorized in this Memorandum and Order will have limited prospects for success. Rirther, so that I might monitor this situation more closely, within 3 days of the date the Petitioners retain an attorney, counsel should file and provide to me by rapifax ((301) 492-7285) or overnight / express mail a notice of appearance that complies with the requirements of 10 C.F.R. f 2313(b). Also, in the interest of conformity, I request that within 7 days of the date of service of this I ln add tinrt. I would agam urge the participams 6f they have not alrcedy &me so) to &scuss the Petitioners' claims outside this adjudicatory rerum and attempt to resolve or r.ar.w as many or theme issues as pmatble.
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J Memorandum and Order, counsel for Licensee B&W file a notice of appearance in the form specified in section 2.713(b).
Finally, if petitioner SAFE has not retained counsel by the time the Petition-ers' supplemental / amended filing is due, along with that filing the individual representing that organization in this proceeding should submit a statement pro-viding the basis for his or her authority to act in a representational capacity as l
specified in 10 C.F.R. 9 2.1215(a).
It is so ORDERED.
l G. Paul Bollwerk,111 ADMINISTRATIVE JUDGE i
Bethesda, Maryland September 4,1992 i
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l Cite as 36 NRC 156 (1992)
LBP-92 25 1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
ATOMIC SAFETY AND LICENSING BOARD f
Before Administrative Judges:
j Peter B. Bloch, Chair Dr. Jerry R. Kline t
Dr. Peter S. Lam j
I in the Matter of Docket Nos. 030-29626-OM&OM-2 J
(ASLBP Nos. 92-653-02-OM
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92-662-06-OM-2)
(License Revocation, l
License Suspension) l (Byproduct Material License 1
No. 24-24826-01) l (EA 91 136,92-054) l PIPING SPECIALISTS,INC., and FORREST L ROUDEBUSH d.b.a. PSI INSPECTION, and
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d.b.s. PIPING SPECIALISTS, INC.
September 9,1992 The Licensing Board sustains a Staff order revoking the license of a company that employed one bcensed radiographer (its Radiation Safety Officer) under f
the supervision of a person who had no experience with radiography and no-l tmining in NRC regulations. From the circumstances surrounding the issuance of this license and from its wording, the Board inferred that the owner-licensee 7
was responsible for all the actions of its Radiation Safety Officer, to whom the license delegated " complete responsibility and authority.**
The Board also concludes that there have been extensive failures by Licensee and its owner to comply with NRC regulations. Licensee has failed to act as a reasonable manager of licensed activities; failed to detect and correct violations l
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caused by an employce; willfully attempted to conceal violations from NRC Staff; and given untruthful information to the Staff during its inspections and investigations. Moreover, the Licensec's owner was untruthful in some aspects of his testimony both during a formal investigation and before the Licensing Board.
i BYPRODUCT MATERIAL LICENSE: REVOCATION; SPECIFIC LICENSE PROVISION From the circumstances surrounding the issuance of its license and from its j
wording, the Board inferred that the owner-licensee was responsible for all the actions of its Radiation Safety Officer, to whom the license delegated " complete I
responsibility and authority."
l BYPRODUCT MATERI AL LICENSE: REVOCATION; ENFORCEMENT POLICY The Board sustains the revocation of a byproduct material license for exten-sive failures by the Licensee and its owner to comply with NRC regulations.
Licensee has failed to act as a reasonable manager of licensed activitics, failed j
to detect and correct violations caused by an employee, willfully atternpted to conceal violations from NRC Staff, and given untruthful information to the Staff during its inspections and investigations. Moreover, the Licensec's owner was untruthful in some aspects of his testimony both during a formal investigation and before the Licensing Board.
RULES OF PRACTICE: TRIAL OF A REVOCATION ORDER IS A
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TRIAL DE NOFO It is not likely that, after a lengthy evidentiary hearing, a board would agree with the Director in every detail of an order revoking a license. Nor is that necessary in order to sustain the Director's decision. Atlantic Research 1
Corp. (Alexandria, Virginia), ALAB-594,11 NRC 841, 848-49 (1980) (the adjudicatory hearing in a civil penalty proceeding is essentially a trial de novo, i
subject only to the principle that the board may not assess a greater penalty than the Staff); compare Hurley Medical Center (One Hurley Plaza, Flint, Michigan),
AU-87-2,25 NRC 219,224-25 (1987).
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TABLE OF CONTENTS f
Ibge l
I 1.
INTRODUCTION AND
SUMMARY
...................... 158
- 11. BRIEF HIS70RY OF THE CASE....................... 160 111. THE LEGAL SE7 TING............................ 162 f
IV. ALLEG ATIONS AND RESPONSES
..................... 163 A.
The Order Revoking the License
......................164 1.
Allegations................................... 164
- 2. Licensee's Response........................... 165 B.
Uncontested Findings............................ 167 V.
FINDINGS OF FACT AND CONCLUSIONS OF LAW...... 171 A.
Complete Responsibility of RSO..................... 171 r
B.
Abdication of Responsibility by Licensee.............. 174 1.
Conclusions................................... 174 2.
Staff Spoke to Licensee......................... 176 3.
Licensee was Told of Violations................... 178 4.
Quartelly Audits of Records...................... 180 5.
Failure to Fulfill the Audit Responsibility............ 181 6.
Licensee Knew Work Was Done Without Badges..... 183 l
7.
Licensee Acted as a Radiographer's Assistant........ 183 8.
Licensee Knew Reil Acted lilegally............. 185 9.
Conspiracy to Commit Perjury..................
185
- 10. Clear and Convincing Evidence.................. 186 VI. OVERALL CONCLUSIONS............................ 186 VII. OR DER........................................... 187 APPENDIX: REGULATIONS AND LICENSING CONDITIONS... 188 FINAL INITIAL DECISION l
l (Revoking License) 1.
INTRODUCTION AND
SUMMARY
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Licensee,8 which is a small firm licensed to perform industrial radiography.
contests the validity of the license suspension and license revocation orders j
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The name af the lleensee is hping specialims. Inc (PSI). Ilowever, the orden of the staff of the Nuclear 3
Regulsiory Camnussion are apphcabic to Mr. Twrest Roudebush and other entt6cs under which he does businens since there is no legal entity by the name of Pgving speciahsts,Inc.
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i issued to it by the Statf of the Nuclear Regulatory Commission (Staff) on October 17, 1991, and April 22, 1992. Licensee does not contest most of the substantive violations charged against it, but it does contest uhether the appropriate sanction for the violations is revocation or whether the Staff should have imposed a less severe penalty under the circumstances of this case.
De Staff alleges:
that substantive violations of NRC regulations occurred, that the violations were willful on the part of the Licensec, a
that the Licensee lied to Staff members who conducted inspections e
and investigations, that Licensec lacks the character and integrity required to give confi-dence that NRC regulations, vill be followed in the future, llence, the Staff concludes that the Piping Specialists, Inc. (PSI) license should be revoked.
Licensee concedes the violations cited by the Staff but asserts several lines of defense. It claims that the Licensee was a reasonably careful manager of licensed activities, that it was truthful in its dealings with the Staff, that it never willfully violated regulations, that it did not know of violations when they occurred, and that its violations were ascribable to the PSI Radiation Safety Officer (RSO) and not to the Licensec. Accordingly, Licensee urges the Board to find that Staff erred in revoking the PSI license and that the appropriate regulatory sanction would have been to remove the RSO from licensc4 duties and to order appropriate civil penalties for the violations as prescribed under NRC's enforcement policy.
A public evidentiary hearing was held in Kansas City, Missouri, from April 28 to May 1,1992.2 On July 10, 1992, we issued a Memorandum and Order (Proposed Resolution of the Case), LBP-92-16, 36 NRC 15 (1992).
His Memorandum and Order was the subject of an on-the-record telephone conference on July 21,1992.
In this Decision, we sustain the Director's decision revoking PSI's license to perform radiography. The Board concludes that the Staff has proved its principal allegations against Licensec and that Staff's revocation of the license was within the limits of discretion permitted by NRC regulations and enforcement policy, even though other less severe penalties were available and might have been imposed. We find no basis in the record to reduce the severity of the sanction imposed by the Staff. We reject Licensee's defenses as contrary to fact or prohibited by NRC regulations. We sustain the Director's decision.
2 1he par.ies r. led suggested rmdiags. NRC staff Proposed Fmdmgs of fut and Condusmns ofla w in the Iwm of an Imtsal Decismn. May26.1992 (staff EncO. Ilcensee's Nposed Fmdess of hcx and Conclusions of taw in the Twm of an Initial Decision, Jane 17,1902 (tjeensee Bncr). NRC s: aft Rep 1v Fmdmgs of bei and Conclusmns of taw and Mounn to strike. July 1.1992 (staff Reply).
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The Board's principal conclusion is that we support the Director's Revocation Order because:
1.
The license at issue in this case gives the company's radiation safety officer " complete responsibility and authority" to direct all aspects of the company's radiation safety program. The evidence indicates that there was a reason for this complete delegation: that the owner-licensee had no experience in radiation safety or radiogfaphic testing j
and planned to depend on the expertise of its RSO for compliance i
with NRC regulations. Having disclosed that it would depend entirely on its RSO, the Licensee cannot now defend its actions on the ground that it did not know about the violations. It had fully authorized its RSO to act for it in safety matters and it is wholly responsible for his actions.
2.
In addition, we accept the agreed position of both the Licensee i
and Staff that Licensee's responsibility - despite the " complete" delegation of authority to his RSO in his license - was to exercise l
reasonable care in assuring that his RSO complied with his license.
We find that he abrogated that responsibility.
3.
Furthermore, Licensee's testimony in the hearing wa:: in many re-spects unreliable and casts serious doubt on that aspect of his charac-ter and integrity that reflects on his willingness to cofnply with NRC regulations. Based <n the record compiled in this case, we lack con-fidence that he is willing to comply with NRC regulations or to deal truthfully with the Staff in the course of its regulatory duties.'
II. BRIEF llISTORY OF Tile CASE
- PSI is a small business that holds NRC Byproduct Materials License No.
24-24826-01 (license) issued on March 6,1987. The license authorizes the use of byproduct material (iridium-192 and cobalt-60) for industrial radiography.
The company does business at its facility located in Kansas City, Missouri.
Licensed materials are authorized for use by PSI at temporary job sites anywhere in the United States where the NRC maintains jurisdiction and for storage at the l
company's Kansas City facility.
8 ticence ansched to its bnef several affidsvits for our consideration. staff asked us to sinke the af5 davits frun our acord. With the excepuun of the one natter sclating to Mobsy records, that we had previously authonred, we grunt the staff's motion to strike txensee has not provided an adequate reason to reopen the record to include thm new matenal. In addition, we note that nothing an the excluded matenal would persuade us to change ar:y of 4
our findings of fact or corrlusions oflaw.
d Tha bnef hutory is conssient with Ixensee's Ener a. s4,11,14.
160
4 PSI is o;ierated as a sole proprietorship by Mr. Rorrest Roudebush, Licensec, its president and sole owner. Although the business title implies the existence of a corporation, no corporation exists. Roudebush, ff. Tr. 940, at 4; Tr. 981.
He license lists Mr. James llosack RSO, as the only individual authorized to act as a radiographer. No one is authorized to act as radiographer's assistant under the current license.
During the years from 1987 when the license was first issued until August 1991, the NRC conducted routine periodic inspections of PSI and found some severity level IV and V violations. No violation resulted in a civil penalty or escalated enforcement action and all were resolved to the satisfaction of NRC.
Mr. Roudebush had no skills in industrial radiography and no significant knowledge of health physics, radiation safety, or applicable NRC regulations when he applied for his initial license. The initial license application was prepared by a consultant, R.D. Donny Dicharry of Kenner, Louisiana, who submitted it to NRC on behalf of Mr. Roudebush. He license contained a provision that delegated complete authority and responsibility for safe operations j
to the then-current RSO. He NRC Staff issued the license containing the
{
foregoing provision. Ec license also mentioned in a nonspecific manner that management involvement in licensed activities was required.
Throughout the term of the license, Mr. Roudebush maintained active involve-ment with the business aspects of the PSI radiography operations but played no significant management role in ensuring radiological safety or compliance with NRC regulations. This arrangement clearly depended heavily on the RSO having the integrity and the requisite knowledge and skills in radiography and radiation safety to conduct a safe operation and to avoid regulatory violations. In fact, the arrangement apparently worked without serious consequences for PSI through a succession of RSOs until the arrival of Mr. James Hosack as RSO in 1989.
The first years of Mr. Ilosack's tenure were outwardly uneventful, although later investigation showed that he was responsible almost from the outset for a de-veloping pattern of failures of PSI to comply with NRC regulations.
In August 1991, a former PSI employee alleged to NRC that PSI radiography operations ure being conducted unsafely. The allegations resulted in a month-long NRC investigation of PSI during September 1991. He investigation found nine apparent violations, some of which appeared to NRC as involving willful violation of regulations and deception on the part of the PSI president.
j l
A followup investigative interview of Mr. Hosack and Mr. Roudebush was scheduled by NRC, but before it took place Mr. Ilosack approached the investigator, Mr. Marsh, and confessed his involvement in numerous violations and alleged that Mr. Roudebush knew about the violations as they occurred and had ordered illegal actions and coverups. He asserted that he and Roudebash were to meet on the evening before the interviews for the purpose of conspiring to lie to the NRC investigators.
161 J
I i
i De NRC conducted investigative interviews of Hosack and Roudebush on October 16, 1991. The investigators concluded from the interviews that llosack's allegations were accurate and that Mr. Roudebush had been untruthful under oath. On the next day, October 17,1991, the Staff issued an immediately effective order suspending PSI's license.
The Licensee answered the suspension order with a request for hearing and an assertion that the violations were ascribable to its RSO and not the Licensec, who had no knowledge of them. Licensee therefore asked that its license not be suspended. The Staff continued it's investigation of the apparent violations and subsequently referred the case to the Department of Justice for possible criminal prosecution. During the time of the pendency of the criminal prosecution, PSI-which had no currently effective license because it had fired the only RSO listed on its license - prepared and submined to the Staff license amendments and a request for a license continuation. Finally, on March 13,1992, the Licensee filed its " Suggestions in Opposition to NF# Staff's Second Motion for Temporary Stay of Proceedings," in which it declared that it had complied with all the requirements of the Board's January 9,1992 Order and had submitted reasonably complete documentation to reactivate its license.
De Staff ultimately issued an order continuing the suspension and revoking the license on April 22,1992. De revocation order was not made immediately effective pending the outcome of the hearing which commenced in Kansas City on April 28, 1992, and ended May 1,1992. Subsequent to the hearing, the revocation case was consolidated with the suspension case without objection from the parties.
His proceeding calls upon the Board to decide whether the Staff order revoking the PSI byproduct material license should be sustained. In so doing, we first consider the effect on this proceeding of a license provision that delegates complete responsibility for ensuring radiological safety to PSI's RSO. We also consider whether Licensee was willfully involved in violations stemming from the acts or omissions of the RSO and whether he was untruthful in the information and assurances he gave to NRC inspectors and investigators. Finally we decide whether the Licensee possesses sufficient character and integrity in the conduct of licensed activities to assure that he could be relied upon to comply with NRC regulations in the future.
Ill. Tile LEGAL SETTING Section 186 of the Atomic Energy Act of 1954, as amended. 42 U.S.C.
(2235, authorizes revocation of a license:
"for any material false statement in the application,"
e 162 4
l
- because of conditions revealed by
[an) inspection or other o
means which would warrant the Commission to refuse to grant a license on an original application," or "for violation of, or failure to observe any of the terms or provisions e
of this Act or of any regulation of the Commission."
hrt 2, Appendix C, iI, of 10 C.F.R. sets forth the enforcement policy of the agency. In relevant part, it states:
Each enforcernent action is dependent on the circumstances of the case and requires the exercise of discretion after consideration of these policies and procedures. In no cme, I
howewr, wallicensees who cannot achieve and maintain adequate levels of protection be permitted to conduct licerned acnvkies. (Ersqhasis added l l
The enforcement policy also states that a revocation order may be issued for j
any reasori for which revocation is authorized under section 186 of the Atomic Energy Act.5 We also note, as Staff requested we do on page 78 of its Brief, that the Commission is authorized to consider a licensce's character and integrity in deciding whether to continue or revoke a license. Metropolitan Edison Co.
(nree Mile Island Nuc1 car Station, Unit 1), ALAB-772,19 NRC 1193,1207 i
(1984), rev'd in part on other grounds, CL1-85-2, 21 NRC 282 (1985).*
ne regulations that the Staff alleges have been violated are set forth below, i
in Appendix A, at p.188.
i l
IV. ALLEGATIONS AND RESPONSES 3'
I ne Staff's allegations were set fofth in two documents, the Order Suspending the License October 17, 1991, and the Order Modifying Order Suspending f
I 5 10 CER. part 2, Appendia C.VJC(3)(c). Ilowever the enforcement pnhey prwMes Get suspezions adinarily I
are nui ordered where the failure to comply wuh requirements was not willful and adequate correctin acuan has bem takert" (Er,phasis added.) We consuler the vahdary of the revocation order first If Gat order is vahd, there is no further wason to emsider the validity of the suspmsmn order, which will have been superseded.
I
- We adapt the followmg language, suggested to us try the staff.
A heensee's ethics and technical prof,cusry are both legiumati. arcas of angutry ansofar as considera-I tian of the ticensee's overall rnanagement omnpetence is at issue. Three Mde island, supra,19 NRC at 1227. Candor as an especially imputant eJanent of managernent character because of the Commasmn's heavy dependence e a bcensee to provide accurate and timely informatmn shout hs facihty Lomssana Poe and Liglir Co. (Water ord sicam I'1ectnc statmn, Unit 3). AIAB-812,22 NRC 5. 48,51 (1485),
r entsng 7kes Mae island. supra.19 NRC at 12(8.
The gecrally apphcable standard to determme bcensee character and integnty as whether there is reasonable assurance that the hcensee has the d.aracter to operate the facility in a manner consistent with the public health and safe'y, and with NRC requuements. To decide that issue, the Commazion my emsider evidence of heensee behavior having a rational connecuan to safe operauon and some reasonable niauonship to bczrsee's candm. truthfulness and wilhngness to abide by regulatory requirements and accept responsihihty to pmtect pubhc bralth and safety Metropolasa Edaos Co. (Three Mile Island Nuclear station, Unit 1), C1J-Es-9,21 NRC 1118. I13(>37 (19E5).
163
]
s J
License (Effective immediately) and Order Revoking License, April 22,1992.
Rese allegations were answered by Licensee in PSl's Answer to NRC's October 17,1991 Order (Nov. 20,1991), and in PSI's Request for licaring and Answer i
to NRC's April 22,1992 Order (Apr. 24,1992).
A, The Order Revoking the License 1.
Allegations De Staff orders suspending the PSI license and later revoking the license are based on essentially identical allegations, An added allegation in the revocation i
order is that Licensee engaged in a conspiracy with the PSI RSO to lie to NRC investigators during the taking of sworn statements by the investigators, He allegations in the revocation order [page references omitted] are:
Deliberate falsificadon of utilizadon logs maintained in accordance with 10 C.F.R.
a.
i34.27, in that numerous uses of NRC-liansed byproduct materials wre not recorded, rentrary so 10 CF.R. 6 30.9(a) during the period of January 1,1991, through September 11,1991.
b.
False oral information was prtwided on March 21,1991, and on September 17 and 18,1991, to NRC in violation of 10 CF.R. I 30.9(a), concerning the following:
l
- i. Le accuracy of the utilizadon logs; ii. he Licensee president's role in licensed activities including acting as a ra-j diographer's assistant in violation of the license and not wearing all necessary personnel monitoring devices required by 10 CF.R. I 3433; and
)
iii. %c conduct of radiographic operations on June 27 and 28,1991, at the
]
{
Licensee's facilities located at 1012 East 10th Street, Kansas City, Missouri.
i c.
Additionally, the following violations identified in the inspection collectively
]
demonstrate the lack of effective oversight of the Licensee's radiation safety pro-gram:
- i. Failure to perform surveys betwen April 1990 and September 1991, when radiographic exposure devices were placed into storage, in accordance with l
10 C.F15 34.33(c).
ii. Failure to mark radiograpide exposure devices as of September 18, 1991, with Ucensee's address and telephone number,in accordance with 10 CF.R.
l 34.20(b)(1).
iii. Failure to prcperly mark and label radioactive material shipment containers 5.
as of Sepember 18,1991,in accordance with 49 CF.R. I 173.25, contrary to 10 C.F.R. i 71.5.
1 iv. Failure to ship radioactive materials acmmpanied by properly completed ship.
ping papers as of October 4,1991,in accordance with 49 C.F.R. $ 177.817(a),
contrary to 10 C.F.R. 5 71.5. Specific deficiencies were observed regard.
ing shipping paper requirements specified in 49 CF.R. fl172.201(d) and 172.203(d).
hilure to maintain complete records of quarterly physicalinventories of sealed v.
sources as of Sepember 18,1991, in accordance with 10 CF.R. I 34.26.
vi. Failure to conspimously post high radiation areas on October 4,1991, in accordance with 13 CF.R. I 34.42.
I 164 i
l
vii. Failure to post required documents as of September 1R.1991, in accordance with 10 C.F.R. I 19.11.
'Ihe Staff stated, in conclusion [page reference omitted):
i PSI. by the acts and omissions of the PSI president and RSO, violated NT.C requirernents over an extended period of time. 'Ihese violations jecpardized de public heahh and safety I
and, on that basis alone, they srpresent a significant regulatory concern. Ahhough the RSO is no longer employed at PSI, the individual identified as the PSI president still holds the position of president and is responsible for de Ucensee's actions. Furthermore, these violations demonstrate that the Ucensee and its president are not withng or able to comply i
with the Commission's requiremerus to proted the public heahh and safety. Individually and collectively, the deliberate violations that involve the PSI president demonstrate that the Commission is not able to rely on the integrity of this individual. Such reliance is essential to assuring adequate protection of the public heahh and safety. Given the alxwe rnatters and the involvement of the individual holding the significant position of president, the Commission lacks the requisite reasonable assurance that the p4blic heahh and safety is adequately protected. If, at the time the license was issued, the NRC had known cd de 4
Ucensee's inability or imwillingness to control ticensed activities in accordance with the Commissian's requirements, or the questionable integrity of the Ucensee's president, the license would not have been issued.
t b
2.
Licensee's Response PSI admits most of the violations cited by the Staff. It also admits that in a single instance the PSI president lied under oath to an NRC investigator during an investigative interview held on October 16,1991.' In all other respects, it denies that violations alleged by Staff were willful on the part of the PSI president or that the PSI president was untruthful in the information he gave to the Staff.
PSI asserts that its president exercised reasonable management responsibility to control the actions ofits employees. All willful violations and failures of candor are attributable to the acts of the former RSO, according to the Licensec.'
Licensee's specific defenses are:
- i. Licensee asserts that the Staff must prove each charge by " clear and convincing endence?'
ii. Staff has failed to prove that the Licensee created a substantial threat to public health and safety, or that the Licensee engaged in willful misconduct. Findings of that severity are required for revocation.30 7 PSI admits that "its president *a stausnent to FRC investigators on October 16,1991, in contradicunn to the staicments made by Psrs president to NRC invest:gauws on sepernber 17 er 15,1991,were inaccurate." Psrs Raquest to %.anng (April 22,1992) at 1.
- Id. at 1..
' set section VI of our Decision, below.
3'ste sections V.D.1 and VI, below, a
165 w
e -
4
iii. Licensee did not receive proper notice of the charges and was not given an adequate opportunity to respond.
iv. Licensee is not strictly liable for the conduct of its RSO." The Staff must prove management's knowledge of, and comp!icity in, the RSO's misconduct.22 v.
The NRC has no explicit standards for judging the management responsibilities n this case, and it is unfair to revoke a license on the basis of standards set after the fact.15 vi. Licensee's former RSO lacked character and competence and was the source of Licensce's norrompliance. Licensee's president was not so lxking in character aisd competence as to justify the revocation."
vii. The Staff failed to impose fair and reasonable sanctions in this case.25 With the exception of the defense number iii, each of these defenses is addressed in the body of our Decision. For case of reference, we have placed a footnote at the end of each defense to reference our principal discussion of it.
We do not address defense iii in the body of our Decision because we consider it to be moot. Licensec attempts to raise a question concerning the procedural regularity of the order suspending its license. Ilowever, Licensee never sought a stay of that order and never raised the issue of procedural regularity in a timely fashion. There has been every opportunity to contest the order of revocation, which we are now considering, and the method of issuance of the earlier order is not now relevant to the validity of the order of fevocation. Even if the argument were correct, there would be no appropriate relief at this time, if it is appropriate to pmtect the public health and safety by revoking the license, improper procedures in adopting the earlier order suspending the license would i
not change the result We are aware that, in addition to its defenses, Licensee asserts certain factual denials. Each of its denials is addressed in the course of this Decision.
H Ds sec6an V.A of our Decnion. bclow.
12 Set sections V.B.1-D.10) of our Docasics, below.
I3 tac
- negligence," the standard of " reasonable management etmduct" roguires cmsiderable judgment by the tner of fact. (hven that neither pany has produced a pria case invoMng alleged lack of reasonable managemer2 conduct by a non-expert manager. there is no precedent directly in pomt here. It is apprt priate, thercrore, for the licerising Board to be very carerul not to apply a standard that is too demandmg and that beneftts too much imm hindsight. Aware of our responsibility as tners of fact. we have considered and discussed all the circumstances of the case in order to form our opinion. S_n sections V.A. V.B. and VI of our Decisian, below.
"Se, sections IV and V af our Decision, below.
15 0ur reasons for supponmg the staffs conclusions abmn revocanon are thoroughly explained throughnut our decision.
166
~
e n
.,...n
II.
Uncontested Findings PSI has chosen to admit the substantive violations charged against it, except for the charge that Mr. Ibrrest Roudebush conspired to present perjured tes-timony to the United States Nuclear Regulatory Commission. PSI's principal case is that it contests the seriousness of its offenses and the extent to which the owner-licensee was responsible for the violations of its Radiation Safety Officer.
As a consequence of this line of defense, the Board adopts" all the following findings proposed by the Staff in pages 55 to 64 of its brief:
he Board finds that PSI is the holder of NRC Byproduct Materials License No. 24-248264)l, issued on March 6,1987. The license authorizes the use of byproduct material (iridium.192 and cobalt.60) for industrial radiography in devices agproved by the NRC or an Agreement State. he facility where licensed materials are authorized for storage is located at 1012 East 10th Street, Kansas City, Missouri. He use of licensed materials is authorized at temporary job sites anywhere in the United States where the U.S. Nuclear Regulatory Commission maintains jurisdiction for regulating the use of licensed material.
He license identifies Mr. James llosack as the Radiation Safety Officer (RSO) and tle sole individual authorized to act as a radiographer. No individual is authorized to act as a radicy,rapher's assistant.
Mr. Roudebush was listed as the president and sole owner of the business identified as PSI. Ilowever, the Board finds that the State of Missouri has no records of a corporation named Piping Specialists. Inc., doing business in that State. See Attadunent 1 to Mr. Marsh's direa testimony, ff. Tr. 591. Mr. Roudebush has admined that no corporation exists, owned by him, under the name of Piping Specialists, Inc. Raudebush [ff. Tr. 940] at 4; Tr. 981.
NRC Inspector Mulay stated that during an inspection of PSI on March 21,1991,he reviewed survey records and utilization logs for the period of April 9,1990, through March 2,1991 (Report. Exhibit 15, at 1). The recxwas were presented to him by Mr. Ilosack as a mnplete and accurate record of radiographic work performed for the period.11 NRC Inspector Kunh stated that during an NRC inspection on September 17-18,1991, Mr. Ilosack presented to him daily operation and survey reports as being complete and accurate (Report, Exhibit 11, at 1).
Mr. Kurth examined and otamined a copy of the PSI radioactive material utilization log on September 17 and 18,1991, whidi was represented by Mr. Ilosack as being mnplete and accurate (Report, Exhibit 11, at 1).
he Board finds that during the period from August B 1990.through December 17,1990, the former PSI RSO (Mr. llosack) deliberately failed to maintain utilization kg records required by 10 C.F.R. l 34.27; records of pocket dosimeter readings required by 10 C.F.R. 6 34.33; and records, required by 10 C.F.R. 6 34.43, of surveys of radiographic exposure devices performed at the time of the storage of the device at the end of the work day.
Ilosack Iff. Tr. 218] at 3,9. Tr. 271,802M he Board also fmds that Mr. Hosack, during 1990 and 1991, deliberately created and presented to the NRC, false radioactive rnaterial utilization logs and daily operation and survey reports because upon discovery of ongoing NRC investigations, records were fabricated to appear correct (Report Exhibit 7, at 1).
He period during which records were not maintained corresponds to tre period when the Licensee's personnel dosimetry service was interrupted due to nonpayment of service fees, M We have made same minor editanal changes.
167
I l
i i
thus concealing the fact that radiography was performed durir g periods when the Licensee's perr,rmel were not wearing the required fdm badge or TLD.1r. 260,269-70,3t,2,466,834, 640. Mr. Ilosack stated that dosimetry service was interrupted at periods of time and the utilization logs were dommented in such a way that there was no saivity recorded so that the NRC inspectors would not notice (Report, Ethibit 8, at 8-9). lie stated that the records were prepared to ref!ca some activity to pacify the NRC as far as thinEs being adequately j
done when they were not adequately done (Report, Exhibit 9, at 16).
1he Board also fmds that in violation of 10 C.F.R. 5 30.9, during NRC inspeaions on Mardi 21,1991, and September 17-18,1991, the former PSI RSO (Mr. Ilosack) deliberately represented to NRC inspectors that the Licensee's utilization log records, records of pocket dosimeter readmgs, and records of surveys of radiographic exposure devices performed at the time of the storage of the device at the end of the work day, were cxwnplete and accurate i
17 when in fact those records were not cornplete in that the records did not document the use of radiographic exposure devins during periods when the licensee's personnel dosimetry service was intermpted due to nonpsyment of servia fees. Mr. Ilosack knew that the records had not been recorded daily as required, but had instead been fabricated "en masse" shortly before the inspections. Ilosack Iff. Tr. 2181 at 3,9-12. Tr. 222-24,271,396-98,453-57, 467,515-17,802 41,808 09. Mr. Ilosack admitted that he had deceived the NRC inspectors during the March and September inspeaions of 1991 as to the cornpleteness and accuracy of various PSI records. Ilosack [ff. Tr. 2181 at 3: Tr. 921.
Mr. Robert Marsh testified that the review of the PSI utiliation log revealed 41 dates of entry for source utilization from April 9,1990, through September 11,1991 (Report Exhibit II, Attadiment !! while the Mobay records alone revealed 48 dates of radiography work at Mobey frorn June 14,1990, through December 20,1990 (Report, Exhibit 11), and 74 dates of radiography work at Mobay from January 3,1991, through Scytember 23,1991 (Report, Exhibit 12). Marsh [ff. Tr. 5911 at 25. The Board fmds that the udlization log also did not include the work performed for SOR Control on June 27,1991 (Report, Exhibit 20), nor did it include the radiography performed at Williams Pipeline Company on June 28,1991 (Report. Exhibit 14 at 1). Id.
h is an uncontroverted fact that varices PSI records were fabricated in order to ensure that an incomplete system of records would appear to NRC inspectors to be complete. PSl's Answer to NRC's October 17, 1991 Order at 1 (November 20, 1991). See also Tr. 259, l
269-70, 362, 363-64, 378-79,381-84, 390-92, 466, 834, 840.is Mr. Reil stated and the Board finds that during his employment with PSI, he was not issued, nor did he wear any dosimetry (Report, Exhibit 1, Attachments 1 and 2; Report.
Exhibit 16, at 12). Mr. Reil stated that he asked Mr. Ilosack eadt week about obtaining i
dosimetry, and Mr. Ilosack put it off (Report, Exhibit 16 at 8-9,16-I7, and 55).
Mr. Ilosack stated that Mr. Reil was not provided with Til)-type dosimetry because I
it was uncertain if Mr. Reil would continue in the empkvyment of PSI, and Mr. ilosack claimed he did not beheve Mr. Reil needed 1LD. type dosimetry (Report, Exhibit 9, at 38-39). Mr.lk> sack stated that Mr. Reil asked him several times for a TLD badge and on each occasion he (Mr. Ilosack) put him off. lie explained that if dosimetry was ottained for Mr.
Reil,it would raise questions on why the license was not amended to include Mr. Reil as a radiographer (Report, Exhibit 10, at 1).
37 {lvotnote added by the Board.] We do not specifsally fmd that the docwnents, as pn:sented to the Staff, were nin "aceurste." See lacensee's Brief at 7079. Ilowever, the records were presented to create the impresaico that they were being kept in en appmpnate, tunely fashmn - when they were n<a kept that way. And the records were incomplete. We do nas consider this shght deviation fmrn the original charge to be signifwant 38 the Board modafted this paragraph before adopting it.
M8
I J
j Mr. Roudebush stated that Mr. Reil did not have a TIAtype dosimeter when empksyed l
I at PSI (Report. Exhibit 18, at 25 26). As to the violanon of 10 C.F.R. 6 3433(a), the Board finds that on muhiple occasions dunng the penod of June 15, 1991, through August 4, 1991, the former PSI RSO (Mr. Ilosack) allowed a PSI employee (Mr. Aaron Reil) to act
]
as a radiographer's assistant even though the employee was not wearing all the persarmel l
mmitoring equipment required by 10 C.F.R. 6 34 33. Reil [ff. Tr. 204) at 2,3,5. Ilosack Iff. Tr. 218] at 12. Tr. 21012,1034-37. In additiun, the Board finds that in violadon of Ucense Cmd4 tion No. II.B. Mr. Ilosack allowed the dudes of radiographer's assistant to be performed by Mr. Reil during the time period mentioned above. Reil Iff. Tr. 2M] at 4.
llosaa [fr. Tr. 2181 at 5.
We also find that in violadon of 10 C.F.R.13431(b), Mr. Reil did not receive copics of the Licensee's operating and emergency procedures nor had he been tested as required, prior to performing the duties of radiographer's assistant. Ilosack [ff. Tr. 2181 at 5,9.
In violation of 10 C.F.R. 5 3433(a), on muhiple occasions, we find that the former PSI RSO (Mr. Ilosact) allowed a PSI empksyce (Mr. Scott Arush) to act as a radiographer's assistant even though the employee was not wearing all the personnel morntoring equipment required by 10 C.F.R. I 3433. nrush iff. Tr. 7531 at 3. In addition, in violanon of Uanse Condition No.11.B. we find that Mr. Ilosack allowed the duties of radiographer's assistant to be performed by Mr. Thrush during the occasions mentioned above. Drush iff. Tr. 753]
at 3. Tr. 755,764.
l 4
he Board finds in violation d 10 C.F.R. 5 3431(b), that Mr. Thrush did not receive copics of the Licensee's operating and emergency procedures nor had he been tested as required, prior to performing the duties of radiographer's assistant. Tr. 757.
Mr. Roudebush, when asked if he performed work as an assistant radiographer, specif.
i j
ically stated. *Na 1 don't perform work as a radianon assistant" (Report, Eahibit 18 at 42). Mr. Ilosack stated that Mr. Roudebush's radiographic activities would be defined as an i
assistant radiographer (Report, Exhibit 9, at 27 30) and that Mr. Roudebush was not truthful when he told the NRC inspectors in September 1991 that he had operated the radiography controls ordy one or two times (Report, Exhibit 9, at 30). Mr. Roudebush admined that he had lied about uhether he had ever been a helper or whether he had ever handled the camera. Roudebush lif. Tr. 940] at 19. Tr. 952. In faa, Mr. Roudeburh cranked out the i
radioactive source in the camera many nmes. See llosack [ff. Tr. 2181 at !!.
In violation of U nse Cmdi6an No. I1.B.on muhiple occasions during 1990 and 1991, l
we find that Mr. Ibrrest Roudebush acted as a radiographer's assistant although he was riot specifically named in Ucense Condition No. ILB. Roudelmsh [ff. Tr. 940) at 15. Tr. 922, 1059.
In violation of 10 C.F.R. [ 3431(b), we find that Mr. Roudebush had not been tested as required prior to performing the duties of radiographer's assistant. Tr. 922.
He Board finds in violation of 10 C.F.R. I3433(a), that Mr. Ilosack performed radiography without proper dosimetry. Tr. 403 05.
Mr. llosack stated that shhough Mr. Roudebush had dosimetry available to him, Mr.
7 Roud: bush did not have the dosimetry with him while performing as an assistant radiographer because Mr. Ilosack did not believe that Mr. Roudebush needed dosimetry to help him (Mr.
]
Ikuack) perform radiography (Report, Exhibit 9, at 34 37). Mr. Ilosack stated and the Board finds that during about 25 percent of 1990 there had been no TLD-type dosimetry available to himself or Mr. Roudebush; however, radiography was performed (Report, Exhibit 10, at 1).
In violation of 10 C.F.R. 6 3433(a), we find that on multiple occasions during 1990, Mr.
Ilosack allowed himself and Mr. Roudebush to perform radiography even though they mere 169 i
q i
l i
t 1
l not wearing all of the personnel rnonitoring equgwnent required by 10 C.F.R. [34.33. Tr.
403 45,823 26.
l We fmd, in violation of 10 C.F.R. I30.9, that during the formal NRC investiganvc interview on October 16, 1991, Mr. Forrest Roudehush falsely denied that he performed i
work as a radiographer's assistarn. Roudebush [ff. Tr. 940] at 19. Tr. 952. During the NRC inspection cunducted on Septe-nber 17-18,1991, Mr. Roudebush acknowledged that le had l
attached the cxmtrol cables and guide tube to the radiographic exposure device and had used l
l the radiographic exposure devia to make radiographic exposures. Mr. Roudebush admined l
that he had lied at the October 16,1991 sworn investigative interview. L. 952.
j It is an uncontroverted faa that Mr. Roudehush, Mr. Ilotack, Mr. Reil, and Mr. Drush aced as radiographers or radiographer's assistants without proper dosimetry. It is also an uncontroverted fact that Mr. Roudebush, Mr. Reil, and Mr. Thrush were all unauthorized users of radiographic equipment in violation of 10 C.F.R. 5 34.31(b) and PSPs License l
Condition No.11.B.
SOR Cuntrol components were being radiographed on the first floor of PSPs Kansas l
Oty Facility on June 27,1991. Tr. 21013,477 96,1064. It is an uncornroverted fact and me fmd that there were other instances of shooting on the first floor with large pieces of l
equipment that the NRC was not aware of. Tr. 485. In some instances, these firsbfloor shots were donc durmg the day. Tr. 496.
[
Mr. Ilosack stated that he understands that to perform radiography at the PSI offices, the i
l adivity would have to conform to field site criteria (Report, Exhibit 9, at 4F). Ilowever, he j
f stated that he assumed what the safe radiation boundaries for the first floor would be based an calculations he had used for the basement level,"wnh native stone construction, several fccs thici"(Report, Exhibit 9, at 49) and that he did not maintain a proper barricade for the l
"high radiation area or for the five MR hne" (Report, Exhht 9, at 62).
De Board fmds that indigent, homeless persons were known to sleep around PSPs Kansas City Facihty. Tr. 637-40, 770-72, 897 900, 1063. Photographs of the PSI offices l
revealed that indigent persons frequently slept on the premises next to the buildmg and the l
[
grounds showed pedestrian and vehicle traffic pauems in ckme proximity to all four sides of l
the building. Report, Exhibit 23.
[
Mr. Ray liiersac testified that one had to be "crary" to take radiographs on the first f
l Ooor of PSPs Kansu City facility tecause of the potential to expose the public to radiation, f
Tr. 681-82.
he Board finds that PSPs former RSO, Mr. Ilosack, did not perform a survey or set up l
barricades or signs during any period when radiography was performed at PSPs Kansas Gty I
facility. Report. Exhibit 9, at 62. Tr. 486,901,904. Mr. Kurth's exposure rate calculations, l
mhich cmclude that signs and set boundaries were necessary during radiography on June l
l 27,1991, are uncorarovened. See memo twund into record, ff. Tr.1062.
De Board also fmds that Mrs. Reil was present on the night of June 27,1991, while her l
l husband was performing radiography on SOR Control compareras. Tr. 210, 215, 477 78, 897,1031. She did not have a film badge or 'n.D because PSI had canceled their visitor badge dosimetry service. Tr. 40546,828.
PSI failed to post radiation area signs and set boundaries while conducting radiography at i
the PSI offices. De radiography c cated a radiation field that extended beyond the exterior walls of the building. he Board finds that this radiation field overlapped with public access frequented by indigent persons who on occasion slept near and against the exterior walls of the PSI dfice.
Mr. Roy Caniano's direct testimony on the dangers of industrial radiography is uncontro.
j verted. "The radioactive soeces used in industrial radiography are estremely dangerous and I
can cause high radiation fields in ckse proximity to the source. His can result in tuological 170 l
1
6 I
e t
i damage to a person or persons in a few seconds, and can be potendally lethal within a few rmnutes of direct exposure." Caniano iff. Tr. 5911 at 5.
Mr. IIosaci gave a sworn statement to Mr. Marsh on October 15,1991. Tr. 543. he sworn etatemers was an admission by Mr. Itosack that he failed to fully mmply with NRC regulations and PSI licensing requirements. In addition, the statement implicated i
Mr. Roudebush in the falsificati(m of remrds and in a conspiracy to provide false sworn testimony to the NRC during formal NRC investiga6ve interviews. See Report, Exhibit 7.
Mr. Ilosack gave a sworn statement on the morning of October 16,1991, to discuss things f
Mr. Roudebush and he discussed on the night of October 15,1991, and he gave a sworn statement in the afternoon of October 16,1991, to provide full disclosure of the facts as he knew them. Tr. 544. See Report Exhibit 8.
he Board finds that a meeting occurred betwem Mr. Ilosack and Mr. Roodebush on the i
night of October 15,1991, at Mr. Roudebush's home. Ilowever, the content of the meeting is a matter that is in controversy.
I V.
FINDINGS OF FACT AND CONCLUSIONS OF LAW We have reached our conclusions after examining the allegations in light of the written record, including our own examination of the license conditions. We have also reviewed the filings of both the parties.
We have reviewed the qualifications of each of the witnesses of the Staff of the Nuclear Regulatory Commission and find that they are qualified to give the testimony that has been received in this proceeding.
A.
Complete Responsibility of RSO l
We reject the first portion of Licensee's defense, that the Licensee should not be responsible for the acts of its Radiation Safety Officer (RSO) unless the Licensee's president somehow fell short of his obligation to supervise his employee.
t 2
in other contexts, this proposition has some validity. Ibr example, ira a j
complex activity such as building a nuclear power plant, there may be many violations without calling into serious question the effectiveness of management.
Sec. c.g.. Cleveland Electric illuminating Co. (Perry Ninclear Power Plant, Units 1 and 2), LBP-82-114,16 NRC 1909,1914 (1982); LBP-83-77,18 NRC 1365, 1396 (1983) (holding that quality assurance deficiencies and difficulties do not necessarily demonstrate a failure of " adequate overview and control" and do not necessarily provide a reason to deny an operating license for a nuclear power plant).
Ilowever, in this case, Mr. Forrest Roudebush applied for a license with no prior training or experience in radiography." lie neither read nor signed "threcs Tesurreny of Forrest Raudebush, ff.11. 440, at 15.
171 2
f l
the initial license application, which was "obtained" by Mr. Ken Keeton and-I prepared by R.D. Donny Dicharry, a consuhant.2c Mr. Roudebush may initially have believed that he was permitted to delegate all license-related responsibilities to an employec; his involvement with his license was so slight that he did not even read it at the time he submitted it, as is revealed in the following testimony l
in Tr.1045:
JUDGE BlDCll: Did you read [your license].. before you applied for it.. ? Did d
i you read the applicadan?
1 MR ROUDEBUSil: No, sir.1 did not read the application. Don Dicharry sutunitted it in to Washington.
JUDGE BtDCll: And you never reviewed it'l MR. ROUDEBUSII: No, sir.
Nor has Mr. Roudebush ever considered that he had any dimet management responsibility or regulatory accountability for PSI.2:
Some of these events am, of course, subsequent to the application for PSI's license. However, they reflect to some extent what may have been considered when the license application was submitted. Hence, it is understandable that f
Mr. Dicharry proposed that the PSI license contain a rather unusual clause, and the NRC Staff apparently acquiesced, although we do not know how much explicit consideration was given to this point. Pursuant to 10 C.F.R. 6 34.ll(e),
which permits " delegations of authority and responsibility for operation of the program," the license said:
{
Mr. Ken Keeton Ithe RSol will have complete respon.sibiliry and au1hority so direct alla.rpecir of the radiation safety program of the company. In addidon Mr. Keeton is she manager of the cornpany's radsgraphy program lemphasis added].
Specifically Mr. Keeton's responsibih6cs shall include: Ififtecn listed respansibilines, seven of which begin with the term " administer,'*j22 2a ld at 4; see slas Tr.1D45.
21Mr. Raudebtah testified:
f Q10- llow was your busmess operanun organired after Ken Kacion ohtaaned a hecnse for Kr l
testmg?
MIL ROUDLBt:sil: 1 contmund to manage the piping supphes busmens opers6an. Ken Keeton, Joe 1ercey, and sutmequent PM Rsos managed the radmgraphy aparation. with regard to PSI Inspecuan's Radingmphy operauuns. my sole snelvement war so Acer sreca of jobs in progrear. ineke for work complesed, anempt so sell m+c.p$4 servke,.and respond so ESO eqmpment ow" myly requessa istoce I was personallyfaul.ag she oper.ko).
Roudetnash Data, ff. Tr. 940. at S (e.phms suppbed)
U ol Renet af Invesugation, Case %3-91-011 admiued Tr.1011 (ol Repon). Lahibit I, at 121 of 187.
172
2 4
b Subsequently, the license was amended so that James Hosack became RSO; but the responsibility of the RSO was not changed.23 From the circumstances surrounding the license and from its wording, we infer that Mr. Wrrest Roudebush, owner-licensee, is responsible for all the actions of PSI's RSO, to whom he delegated complete responsibility and authority.2d 11 is standard hornbook law that:
4 In an agency relationship, the party for wharn anothe' acts and from whom he derives authority to act is known and referred to as a " principal," while the one who acts for and represents the principal, and acquires his methority fran hirn, is known and referred to as an " agent." he agent is a substitute or deputy appointed by the principal with power to do censin things which the principal may or can do. Pursuant to the grant of authority vested in him by the principal, the agent is the repre.sentatiw of the prsacipal and acts for, in the place of, and insread of, ahe principal."
We conclude that Licensee and the NRC entered into a hcense agreement in which PSI's RSO was fully empowered to act for it. His did not mean, of course, that PSI had no responsibility. To the contrary, it u~as extremely important that it exercise gmat cam in selecting its RSOs because it was completely responsible for them, having delegated complete authority to them.
]
NRC enforcement policy specifically provides: " Generally, however, licensees j
are held responsible for the acts of their employees." 10 C.F.R. Part 2, Appendix C. V.A.
We have considered the seriousness of the admitted violations in light of l
the small size of this firm, which operated - under the nominal responsibility of its president - with only one authorized radiographer and no authorized radiographic assistants. He violations committed in a short span of time are directly attributable to PSI's RSO.
We note that some of the violations were themselves serious: permitting unauthorized personnel to operate the radiographic camera during an extended period of time, permitting people to operate the camera without proper radio-graphic badging during a several-month period, and - during one lengthy ses-
]
sion on June 27,1991 - using the camera without properly marking boundaries 1
and without doing sufficient analysis or surveillance in advance to ensure the
)
safety of homeless peopic known to frequent the area of the shooting.26 We note Licensee's reliance on Commissioner Hendric's concurring opinion in Allantic Research Corp. (Alexandria, Virginia), CLI-80-7,11 NRC 413,426 23 o1 Repart. Exhibst 1. at 15 of 187.
2'Tr.112652, passim, cansains several discussmns of why our ruhng rray be against pubhc puhey. Ilowever, none of the argumerus or the parues seems to us to be persuasive.
D 3 Am. Jur. 24, Agency (1986) CL st 50410 (footnaas dr.leted; emphasis added).
26 g,,474 gg 173 i
I i
+
r-r,v.
-.e---,
l (1980)." llowever, Commissioner llendric's unwillingness to impose penalties when violations occurred was limited to a situation in which "the licensee had exercised reasonable measures to select, instruct, and supervise the employee" 1
who was responsible for the violations. Peculiarly enough, it is part of PSI's case that its president never instructed or supervised its RSO. IIence, the defense suggested by Commissioner liendrie cannot be successfully asserted by PSI.
II. Abdication of Responsibility by Licensee Neither party wishes this Board to decide the case solely on the grounds set forth in Section A, above, and both want us to adjudicate Mr. Roudebush's culpability or lack of culpability.28 IIis culpability also is relevant to revocation i
because it may affect the time period during which he might be denied subsequent applications for a license.
Consequently, we analyze Licensce's principal defense, that Mr. Roudebush exercised reasonable management control over PSI. In the next section of this Decision, we will also assess his culpability with respect to some of the serious charges assessed against him personally in the revocation order.
1.
Conclusions (Conclusions are presented first, in this section, for the convenience of the j
reader. The conclusions are based on findings that are documented, with j
footnotes to the record, in the subsequent sections, each of which bears a subutic that indicates the topic covered in the section.)
We conclude that, despite Mr. Roudebush's statements to the contrary, the Staff of the Commission regularly communicated with him about his I
responsibilities as Licensee; he, therefore, had adequate opportunity to learn about his responsibility under the NRC license. Despite these communications with the Staff, Mr. Roudebush never became an active manager, attempting even i
to the present time to make his lack of interest in management an excuse for i
not having controlled the behavior of his RSO.
We find that there were occasions on which Mr. Roudebush was informed, orally and in writing, that PSI was responsible for violations. Nevertheless, he never took enough personal interest to find out specifically what the violations were or to institute any reasonabic program to prevent them from occurring in the future.
Uticersevs Bner at 33.
"Tr.1129 (siafry. Tr.1143 (Laceimee). See siso Tr. 1134 35 where twah parues wish the Board to decrmine Mr. Roudchush's culpebility. Nuc. however. that the Staff tned tius case wnhma necing item 7 m the twenne.
Tr.1137.
i 174 1
i i
P
We also find that the NRC required PSI to promise that Mr. Nrrest Roudebush would perform " quarterly audits of records." Mr. Roudebush testified that he did not know about that promise. Ilowever, we accept the testimony of Mr.
Hosack that Mr. Roudebush did know. Mr. Roudebush could have complied with that promise simply by making a checklist of compliance items from the license and determining 01at each was fulfilled, but he did not do so.
We conclude 01at Mr. Roudebush did not fulfill his audit responsibility.
During the Evidentiary Hearing which we conducted, Mr. Tercey testified l
l that he educated Mr. Roudebush concerning the daily utilization log, including l
how to fill it out and how to verify it by comparison with billing material.
l Mr. Roudebush also demonstrated his knowledge ci auditing techniques during i
the hearing by voluntarily compiling (in only a half-hour) a list of invoices against which utilization logs could be checked. Prior to the October 1991 audit by the NRC, he also demonstrated that he knew about the significance of the relationship between invoices and utilization records by asking his bookkeeper to pull all the invoices and give them to Mr. Hosack to help him in compiling records.
Mr. Roudebush gave invoices to Hosack at a time when he knew that they were to be used to fabricate some utilization records, which he knew were required to be completed at the time the work had been done. Mr. Roudebush's repeated " nagging" of Mr. Hosack about whether his records were up to date indicated his awareness that Mr. Hosack was poor in his recordkeeping practices.
l Yet, despite both his knowledge of how to do so and his nagging suspicion that he needed to do so, he did not audit the recordkeeping practices of Mr. Hosack.29 In addition, we find that Mr. Roudebush was responsible for paying for the processing of TI D badges, yet on several occasions, he failed to pay in a timely fashion and dosimetry service to PSI was terminated. He knew, or should have known, that there were periods during which there were no valid badges for a radiographer to use. Similar gaps had occurred during the time Mr. Tercey was RSO, and the significance of those gaps was clearly explained to Mr. Roudebush, who understood them. Nevertheless, radiography work went on with Mr. Roudebush's knowledge.
29Wah respect to Ps!'s defense of"reasonabic management pracucc7 we do not consider it to be reasonable for Mr. Roudchush to assure the NRC that he trusted the accuracy of Mr. Ilasack's records, lic knew cnnugh of Mr.
Itossii's recordkeeping practices to know the need to complete his own audu before accepting the accuracy or carnpleteness of those records.
There was another reason why a masanah;c manager would have distrusted Mr. Ilunack: his denumsuaied willir:gness to deceive gewernment officials. Dunng the fast 6 mornhs that Mr. Itasack was employed by PSI.
Mr. Rmadebush understocui that Mr. Ilusack was conunuing to conect unemployment snsurance iDegally. from the se nf Tes.as. sutmequendy, there also were cash paymems of salary to Mr. Ilosack and a sacabic cash psyment l
in Mr. ?amack, daguised as a losn. of a downpsyment on Mr. liasack's house.
Under the circumstances, it was paruculady egregioas for Mr. Roudchush to assure en NRC inspector, Mr.
Kunh. that the utilirsuem logs were complete. lic had dawn knowledge that they probably were n<a canplete and he had every reasun to distrust Mr. Ilosaii's willmgness to comply with the law.
175
Furthermore, Mr. Roudebusn used the radiography camera himself, when he knew that Mr.11osack was the only one authorized to do so. lie and Mr. liosack both interviewed Mr. Aaron Reil, whom they decided to employ so that they could ascertain whether he might lecome a second radiographer. We conclude that he knew or should have known Mr. Reil was going to handle the source, contrary to the provisions of the license. lie also knew that Mr. Reil should have been added to the PSI license; but he failed to do so because of the cost of making such an addition."
Mr. Roudebush testified that he did not know the regulations and should not be responsible for knowing them. Contrary to his testimony, the record shows that he was frequently informed of his obligations by NRC Staff. Moreover, the regulations are not particularly lengthy or complex. They were accessible for him to read. He should have read them himself or found a trustworthy means of educating himscif in their meaning.
We find, however, that the Staff did not meet its burden of proof with respect to its allegation that Mr. Hosack and Mr. Roudebush conspired to commit perjury on the evening of October 15,1991. The only clear instance of false testimony occurred on the following day, when Mr. Roudebush incorrectly stated that he i
had not acted as a radiographer's assistant, but this was not the result of the meeting between Mr. Ilosack and Mr. Roudebush.
Despite our inability to sustain this portion of Staff's charge, we have conc uded that the Staff has carried its burden of proof on its entire case. Mr.
Roudebush's abdication of management responsibility was not reasonable.52Mr.
Roudebush's abdication of management responsibility requires that the license be revoked. There is no way to ensure, based on past conduct, that Mr.
+
Roudebush could be trusted to conduct safe operations that comply with NRC regulations.
2.
Staff Spole to Licensee Mr. Roudebush testified that he was unaware of his management responsi-bilities because the Staff of the Nuclear Regulatory Commission never spoke to him personally but had always spoken to his Radiation Safety Officer. lie said:
i "We accept the credibibiy of tius earher sworn tesumany as opposed to Mr Roudebush'a later suempt no reunet it. Tr 1119.
31 See Three Mae island. AIAB-712. sgra.19 h%C at 12%DS.
1 ti:cruez's Bnef. sera. at 37, argues that if Mr. Raudebush had tned to icll the Rso how to de radiography.
he would have been in violanon of regulations because his Rso had compitze responsihihty for radiographic saic.y. Ilowever, Mr Roudebush always had the power as owner-president no suspend operations or to fue his Rso. Tunhermore. he had the power or persuasian. Ile could always have suggested what he thought complied i
with the law and asked if his Rso daag'eed. or. he could have checked with the NRC about his quesuon and then anempted to persuade his Rso.
176
r
[
I should also mention that September of 1991 was de first time that anyone from the NRC had ever talked so me about anything, in all of de previms NRC Inspections. all f
communications were between PSI's RSO and the NRC investigator. As far as I know, PSI l
d passed all of its previous NRC Inspections without any problem.32 He also said, at Tr. 957-58:
{
a f
[N]one of the inspecors came butt to me and set down and talked to sne about any deficiencies at all.
- De only time that de inspectors even spent any time with me t
at all is when Mr. - Michael back there (pointing to Mr. Kurth), came in with somebody else, which I cannot remember. and spent any length of time. and we didn't spend any length of time shea, sir.
i We find this testimony of Mr. Roudebush to be untruthful. On redirect, Tr.
1093, Mr. Roudebush admitted having conversations with the NRC when the
[
Nuclear Regulatory Commission had amended the PSI license so that it would no longer be authorized to train people for radiographic responsibilities. He also admitted contacts with the Staff after each RSO quit Furthermore, after Ray Hiersche quit, he remembered the Staff telling him not to open the vault since he was not authorized to do so.
But we are convinced that Mr. Roudebush had far more extensive contacts l
with the Staff than he admitted. At Tr. 2%, his former RSO, Mr. Tercey -
{
whom we find credible - testified that Mr. Jim Lynch iof the Staff] gave the first inspection un the hcense within 90 days of the hcense and he sat Mr. Keeton and Mr. Roudebush down and captained several things of importance to them bcah. in great detail. At least a whole afternoon.
i At Tr. 297, Mr. Tercey also said that he knew that he and Mr. Roudebush were told that they were both responsible but that-9 Whether at was m terms of management responsibilities or what... Mr. Roudebush did l
claim that he wasn't aware of a lot of things and Mr. Lynch emphasized upon the fact that he 3
was the president of the company and that these were things that he had to be knowledgeable of.
y Mr. George M. McCann of the Staff also testified, at Tr.122-23, that he and Cassandra Frazier of NRC visited PSI in person" to review the qualifications of Ray Hiersche, in about August 1988. At that time McCann 32 Roudehush, fr. T: 940.at12.
33 See aba Tr 131-32. 135.
177 e-ew
I
[
i specifically discussed with Raudebush the need for management involvement and oversight of that pmgram. And one of the license condititun mcoquated in that bcense talks about management involvemein.
See also Tr.130-31.
Up to the present time, based on his testimony at the evidentiary hearing, Mr. Roudebush has not achnowledged that he had managerial responsibility and that he did not institute programs designed to correct problems."
We find that Mr. Roudebush abdicated all management responsibility. Con-sequently, it is not surprising that we also conclude, for reasons discussed below, that Mr. Roudebush failed to exercise reasonable management oversight and that he sometimes directly participated in illegal practices.
3.
Licensee Was Told of Violations Mr. Roudebush testified that he had not been notified when the Staff found that his firm had violated NRC regulations. However, before Mr. Roudebush testified, we had heard credible contrary testimony - from Staff witnesses and former employees of PSI - that Mr. Roudebush was told that his company had committed violations. His professed ignorance of violations by PSI is not i
believable in the face of the substantive weight of contrary evidence. It seems probable to us that his testimony is purposely inaccurate. See also ff. Tr. 975, Staff Exhibits 7-12.
We find the following testimony and records more credible than Mr. Roude-bush's statement concerning his not being told of violations. Mr. Joseph Tercey, a former RSO whose veracity we accept, testified that Mr. Roudebush knew of the three violations found in the June 24,1987 inspection and that Mr. Roude-1 bush also saw PSI's response to those violations. Tr. 314..
In Staff Exhibit 9, ff. Tr. 975, inspector Toye Simmons' March 29,1989 l
through May 10,1989 Industrial Radiography Inspection Field Notes (covering events that occurred in May through April) show that Mr. F.L. Roudebush, j
president, was the only person contacted with respect to action on a previous violation and on a new violation.
Staff Exhibit 12, ff. Tr. 975, shows that on February 15, 1990, the NRC wrote to the attention of Mr. Roudebush about discussions with Mr. Hosack
("Hosack'*), listing four new violations and requiring an answer from PSI.
Similarly, on May 17,1989, according to Staff Exhibit 11, ff. Tr. 975, the NRC j
wrote to the attention of Mr. Roudebush stating that a routine inspection had no further questions about the apparent violations found on July 10,1987. Exhibit 1
I i
l M See nme 21. abme-178 l
I 11 also attached a new notice of violation (NOV) stating that "two individuals l
using iridium-192, performed radiography alone without the required training" Staff Exhibit 8, ff. Tr. 975, was shown to Mr. Roudebush. It is a field note, signed by Inspector Jarnes L Lynch on June 24,1987, stating that an exit interview had taken place. When it was shown to Mr. Roudebush, he denied that the exit interview happened." We have considered this testimony of Mr.
Roudebush and, in light of the many other failures of his memory and at least one instance of a sworn false statement, we accept the evidence contained in I
the written field note.
With respect to NRC letters mailed to Mr. Roudebush, it is possible that he never read the mail addressed to him, if so, this would itself not be a reasonable management practice. However, Mr. Roudebush testified that he did read letters
[
addressed to him." As we reficct on this testimony, we conclude that either Mr.
t Roudebush does not open his own mail even when it is addressed to him, or he does open it but does not remember % hat is in it, or he remembers it and lies l
about it, in any of these cases, he has not fulfilled his obligations to manage j
t his firm in a reasonable and trustworthy manner.
We considered the possibility that Mr. Roudebush read his mail but did not understand the importance of violations. But even this possibility is contradicted I
by reliable direct testimony. At Tr. 299-301, Mr. Joseph Tercey testified that in the first inspection, 90 days after licensing, on June 16, 1987, there were "significant dings" and that he had to impress on Mr. Roudebush "as to the j
"Tr. %4 JUDGE BtDC11.
. But the nme says that yua were at the cut interview, whs:h means that the inspector's note says that you had an explanation of his preliminary rmdmgs.
11E ETINEss: No, str.
JUDGE BtDCll; li &dn't happen?
TIE %T!hus: Neved Never?
"Tr. 95940.
Q: Did you - and you just saufied that you had no cormpondence with the NRC. You left it rampleacly up to your R$0s?
A: We!! when carrespondence came in for the inspections. I make sure that llosack gets it, yes.
Q: Did you ever read the cor espondence?
i A: hormaDy my proceduse is, when at comes to an inspection,! 14 him handle it Q: so you nevee read the carmpundence, you just handed -
l A: WeU there's carmpondence I'm sure I've read over a pened of tame naturally.
i j
JUDGE B1DCil: I would tike to ask first,is there any difference as to whether you% read it. as to whether it was addased to lurrest Raudehush or not? If it came in your name, wnuld you read it?
Ti!E %TINEss: No. Normally, if it cana to llosad.1 usually put it an his desk.
JUDGE BIDCil: No,I &on't say tfit came to llor.ack. Ifit's addressed to you. Turrent Roudehush, nuld you read it?
Ti!E %Trhus: Yes, I would npen it up and I would read it. sar.
179 f
l l
l
severity of what had happened." We find that this discussion did take place and that Mr. Roudebush understood the significance of the violations that were assessed. We conclude that Mr. Roudebush understood that violations l
of NRC regulations were important. His failure to ensure that all violations were corrected was unacceptable management practice.
j 4.
Quarterly Audits of Records At one point, to be discussed below, PSI made a formal commitment to the Nuclear Regulatory Commission that Mr. Roudebush would conduct quarterly audits of PSI's records. We are confident that Mr. Roudebush knew of that obligation because NRC Inspector Samuel J. Mulay, ff. Tr.116, at 20, of his joint direct testimony, stated:
4 Mr. Roudebush indicated that periodic audits of the RSO had been ccmducted by him (Mr.
Roudebush)."
l t
We infer, from the fact that he did not question his obligation to conduct such audits, that Mr. Roudebush testified inaccurately, at Tr.1(M6-47, that he never knew about the March 26,1990 letter in which PSI promised that Mr. Roudebush would make periodic audits. We accept as truthful Mr. Hosack's statement, ff.
Tr. 218, at 2, that Hosack checked with his boss before he requested the NRC to amend the PSI license to require quarterly audits of records by Mr. Roudebush.
We accept Mr. Hosack's testimony that the request was submitted by Hosack "at the behest of Mr. Roudebush."" We are convinced that it is consistent with Mr.
Hosack's relationship to Mr. Roudebush, who was his boss, that he would have obtained approval before making a promise to the NRC about Mr. Roudebush's obligations.
i 5.
Failure to Fuyill the Audit Responsibility As we have just discussed, PSI agreed that Mr. Roudebush would conduct quarterly management audits." Since Mr. Roudebush testified, at Tr.1(46, that he did not even know about his responsibility to conduct periodic audits, it is clear that he did not fulfill that responsibility. Tr.173.
I
" Set also Tr.162 and also the tesummy d M.chael Kunh, ff.1r. 591. at 18.
" Note that the March 26.1900 leuer was the required rapmse or PSI to the February 15 leuer imm the NRC to Mr. Roudebush cancerning a senes or violanons. Because that leuer was addressed to Mr. Roudebush. he had every ressan to know that a respon<e would be made and to demand, as a reasonable manager. to see that sespmse. we conclude that he actually saw the response sutmuund by his employee and prumming action by him.
"lester of Maren 26,1990. signed by Mr. James llosack. of Report. Lshibit I at 186 d 187.
180 i
l In addition, we do not think it would have been that hard for Mr. Roudebush to fulfill his obligation. NRC Inspector George McCann testified, at 'II.173, that the way you do a rnanagement audit is by-P t
periodically accanpanymg l radiological personnel). and that's why we ask for field accom-l paniments. In the application is talks about a field acctenpaniment, that's typically by the radiation safety officer. But if - that's the cudy way you can do it, is to acrompany, to observe. 'Ihat's the way you do anything. uhether you're the manager of a company or an inspector. you observe and follow up on indications that may not k>ok correct. You hsuk deeper.
. You know, I don't rely on scwneone telling me something necessarily, particularly if I feel there's a problem.
NRC Inspector McCann also testified, at Tr.166-67, that it would have been an adequate audit if Mr. Roudebush had made a checklist of his license conditions s
and had determined that each had been met This is a task that we conclude is well within Mr. Roudebush's capability.'8 Indeed, at Tr. 1055-57, Mr. Roudebush, according to his own testimony, conducted an audit. He took only a half-hour to make a list of invoices that could have been used to check against the utilization log to see what entries in the log were missing. Furthermore, reliable testimony at Tr. 302-04, from l
Mr. Joseph Tercey, shows that Mr. Roudebush was fully educated by him in the carly days of the license in the different types of paperwork and how to pull billing material to verify the accuracy of that paperwork. Furthermore, at Tr.
303, Mr. Tercey testified that, "to my knowledge, in '87, he [Mr. Roudebush]
understood what a utilization log was and what its purpose was and how to fill it out."
Because of his knowledge of the paperwork requirements, we also conclude that Mr. Roudebush knew that the records presented to the NRC investigators i
in September 1991 were incomplete. Hence, he lied to the NRC in the course i
of that investigation. We credit Mr. Kurth's testimony, ff. Tr. 591, at 22, that:
On several occasions. Mr. Ilosack was asked if the utilization logs presented to me were complete. lie said. *Yes." Mr. Roudebush was asked several times during the inspcctic, if
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the utilization logs were canplete. lie responded that Mr. Ilosack performed the radiograph work and he was the me who Lept the records in order. lie indicated that he trusted Mr.
Ilosack and that the records should be complete.
Mr. Roudebush acknowledged, ff. Tr. 940, at 6-7:
'O Mr Raudebush acwmpanied Mr.11osad to field locations on numerous occasions and acted as a radiog apher's
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amatstant, contrary to the heerse and to NRC rqulauans. on those occasions. Mr Roudebush acted at ~ burdmate so Mr. linsad. thereby seversmg the ordmary hnes of responsihihty and accountabibiy.11ad he checn to. he could have imed these occasians to audit Mr llosaa.
181
r 1 was always ccocemed about Mr. Ilosack's conscientiousness in finishing necessary papes.
i work because I frequently had to nag him atout turning in irJormation necessary to prepare invoices. I spent a consideratAe amount cd energy reminding Mr. Ilosadc to make sure that i
his paperwcnt was complete and up-to date.
Furthermore, he never had to nag Mr. Tercey, whom he knew to be up to date (Tr. 303). Interestingly enough, in an answer designed to show that he did not know how to verify utilization logs, Mr. Roudebush showed that he knew that these logs could be verified by comparison to billing records. His testimony on this point, ff. Tr. 940, at 10-11, was:
Ql9: What is your involvement with PSI Inspection *s utilization k,gs?
A: I have never reviewed these logs in connection with any of PSI's RSOs. I have no twsis
- even if 1 tried to review the utilization logs - forjudging the complete ess or accuracy of the utilization logs. To "wesfy" the.se logs. I would han to pull all of PSTs wrious billing fdes and other client information and coryare these materials whh the utilszation togs. iEmphasis added.) Even if I took this step,I'm not sure I would reaUy be able to tell if the utilization logs were complete and accurate.
As we have already stated, we are convinced that Mr. Roudebush knew how to fill out the utilization log. This included the requirement that it be done simultaneously with the work reported on the log. We also conclude that if the utilization logs were up to date there was no valid reason to pull all the billing for the purpose of verifying utilization logs. Hence, we conclude that when Mr.
Roudebush asked Mr. Garcia to pull billing files so that utilization logs could be updated, Mr. Roudebush knew there were serious deficiencies in those files.
We accept the testimony of both Mr. Hosack and Mr. Garcia, bookkeeper for PSI, that Mr. Roudebush personally asked that the billing records be pulled and given to Mr. Hosack on the eve of the NRC's Fall 1991 inspection. Tr. 453, 460, Deposition of Jesse Garcia (Tr.10-11). We att convinced that this request showed that he knew there were serious deficiencies in the records. It also shows that he knew that checking the daily log against billing records was one way to audit it. Consequently, we accept as true the testimony of Mr. Hosack that Mr. Roudebush knew that the records were not being maintained properly.
Exhibit 8 to the 01 Report at 18-19.
6.
Licensee Knew Work Was Done Without Badges Mr. Roudebush denied knowledge that work had been scheduled at times that badges were not available for personnel that were required to have them.
182
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l Ilowever, records of PSI's ndiography company indicate that the dosimetry l
service was allowed to lapse from August 8 to December 19,1990.*2 We accept l
as true Mr. liosack's testimony that it was Mr. Roudebush's responsibility to pay for this service but he never'Acless allowed it to lapse. Exhibit 19 (payment by l
Roudebush); Tr. 398-99, #37." Furthermore, work continued during the period of lapsed coverage, ar.: Mr. Roudebush - as owner - necessarily knew that the work was continuing without badges, which Mr. Roudebush knew were required by regulations. Tr. 665 ff.,676 (Hiersche). Nor was this the first time badging had lapsed; it had occurred when Mr. Tercey was RSO. Tr. 327-29.
Given the small amount of money involved in having current badges, we are puzzled why these lapses were permitted to occur; but we conclude that despite the irrationality of this occurrence, it did happen.
7.
Licensee Acted as a Radiographer's Assistant Although he knew he was not listed on the license as a radiographer or radiographer's assistant, Mr. Roudebush knowingly acted as an assistant.*3 In a sworn deposition, found in Exhibit 18 to the 01 Report at 33, Mr. Roudebush l
correctly reported the Staff's action against PSI in 1988. lie said:
1 You come back and says,you cannot. cannat approve any radiographer smless it comes through us first because we're taking that away from you.
" I should have been put on the license in 1988.
Nevertheless, in March 1991, Mr. Roudebush assured Mr. Samuel J. Mulay of the NRC that he had not acted as a radiographer's assistant. Mulay Direct, ff. Tr.
116, at 22-23. "Ihen, at Tr. 626-27, we learn from NRC inspector Kurth that Mr.
Roudebush admitted during the September 17-18, 1991 inspection that he had undertaken activities involving the source. It was Mr. Kurth's opinion, which is consistent with other testimony, that when Mr. Kurth told Mr. Roudebush that he should not be doing that,"He didn't appear surprised.
The next significant event concerning activities as assistant radiographer occurred immediately after the inspectors left. Here is what occurred, according to Mr. Roudebush, ff. Tr. 940 at 16:
O Exhibit 19 to the ol Report "In tacenvec's Brief at 75. rmdmg 204 reference is made to a leuer addn:ssed to Roudchush, apparently se'.aurg to nunpeyment far badging. tacensee's bnef comments that "there was no tesumany to support that Roudebush read the leuer or would hast: undemood its sigrurmance." We do sus accept this defense argument. tacensee is responsible for readmg his mail well enough to know whether he has failed to pay far essenual safery services.
Iw.hermore, we find that Raudebush did know that badges were required for hcensed work.
83 Amendment No. 02 to the bcense. April 27.1989. made Mr. James A llosack the only person authanted either as a radmgrapher er a radiwrapher's assistant. ol Report at 79 or 187.
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Ahcr the inspectors left (after the September 17-18 inspectior 1. Jim llosack told me that I had " killed him" by saying that I had touched the radiegraphic exposure device. I became upset because I didn't understand - and I'm not sure that 1 yet understand - how I could bc
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receiving"on-the-job" training without ever touching the radiographic esposure device..
We find that the portion of Mr. Roudebush's testimony concerning his lack of i
l understanding is not credible. However, we do accept that he did not understand how serious this admission of his might prove to be. In light of that new f
understanding of seriousness, we do understand that he would perjure himself in October 1991 rather than continue to admit this damaging information. Here is what Mr. Roudebush said about his lying under oath:
Q: Wett you also went in there and lied. Mr. Roudebush, about whether you had ever been a helper or whether you had ever handled the camera.
A: Yes, I did.
Q: Why did you do that.
A: Wett.1 was a little bit nervous on that day naturally, and 1 just thought that this is the question I should answer in the way that llosack would want me to answer it.
We know of one other instance in which Mr. Roudebush conspired with Mr. Hosack to cover up illegal activity. He also lied about that event under oath. (See note 44, below.) At Tr. 1094-95, Mr. Roudebush testified that he cooperated with Mr. Hosack to conceal the fact that the radioactive source was being stored in the PSI truck's safe, rather than in the office safe, where it was required to be kept. Here is what Mr. Roudebush had to say about the incident at "Ir.1095:
lie [Ilosack] says "Roudy. I don't have the camera in the vau'. Can you stall Mr.
Widemann?" And I said well I'll do the best I can..
4 So he [Ilosack] came in late l
at night, that night, to put the camera in the vault, you know... But Mr. Hasack all the time had the camera in his truck and i didn't realize it (that it was illegal).
. Tr. I111 i
{cmphasis added). We always had in the truck a leaded boa where the camera is sitting,you
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know, and he told me -licsack sold me that it's safe as long as it's locked up. We've got i
two ;4s on it and it was safe.
On closer questioning, however, Mr. Roudebush admitted that he knew that I
having the camera in the truck was illegal."
"Tr 1109-11.
JUDGE BIDCll; Is that true as to his not heimg the soun* m the safe when the NRC impector came for the wipe ust?
A: hs. sir.
(Conunued) 184 1
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1 8.
IJcensee Knew Reil Acted filegally 1
Mr. Aaron Reil was hired to work for PSI, as a future radiogmpher, after interviews with Roudebush and llosack, Tr. 206,1032. Mr. Roudebush assumed that it was part of Mr. Reil's work to crank the source on the camera. Tr.1033.
Testimony by Aaron Reil corroborates that Mr. Roudebush knew that Mr.
Reil was operating a camera, in violation of the license. Reil Direct, ff. Tr. 2(M, at 4; Tr. 210. We also find that Mr. Reil requested a film badge directly from l
Mr. Roudebush but was not supplied with one. Tr. 208-09. In addition, based on the testimony of Mr. Hosack, whom we believe on this point, Mr. Roudebush knew that Mr. Reil was used as a radiographer's assistant. Hosack, ff. Tr. 2(M, at 5.
9.
Conspiracy to Commit Perjury Contrary to Staff's allegation, we are not persuaded that Mr. Hosack and Mr. Roudebush conspired, on the evening of October 15, to commit perjury. At Tr. 877-90, Mr. Hosack describes the entire October 15 meeting under cross-3 examination. The principal theme of his testimony is that he "just wanted to get out of there." Tr. 877, 888, 889. Generally, Roudebush asked questions. On one touchy question, Roudebush's work as an assistant radiographer, Hosack JUDGE BIDCll: You thought that it was pmper not to have it m the safe?
f A: 16dn't know - nsn't aware that at was not in the safe.
JUDGE BIDCll: At that point.did you know that he'd done something wrong?
A: Na JUDGE BIDCil: Why is it that he asked you to delay the inspector so the mapactor wouldn't fmd out shout it?
A: I really don't know. str. I mean in case that he nmed to be there when they came there. as far as I know. Do I understand this quesuon?
JUDGE BloCII. You thmk it's okay to leave the sourte outside the saic7 A: No, sir.
I JUDGE BIDCII: so 6d you know somethmg was wrong?
A: Yes. str.
JUDGE BLIX'll: Bat just a few moments ago you said you didn't know he'd done anythmg wmng.
A: I &dn't understand the quesuan, what you were refernng ta l'm asying that yes.1 de know that he was doing wmng, because he told rne that this camera had to be m the safe cach and every night after each ahat.
In addinnn. Dunet Testimony of Aamn Reil, ff. Tr. 204, at 3. indu:stcs that Mr. line.ack may have regularly taken the source home in his truck. We fmd that Mr Ilosack 64 so dunng the drae he worked wah Mr. Reil.
ahhaugh we do not consider this fmding necessary for the revocanan of the hocrme.
We note that taking the source home was contrary to Ucense Con & nan 10. of Report. Exhibit 1 at 83 of 187; it was also contrary toItan 9 of the License Appbcation, ol Report. Exhibn 1 at 140 of I87 ("It}he faciluy.
will be used as the permanern STORAGE facihty for all Scensed radmacuve materials when not located at (or being tremponed to) temporary job sites").
185
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said he advised Roudebush to tell the truth. Here is no testimony that Mr.
Roudebush suggested lying about any particular issue.
2
- 10. Clear and Convincing Evidence ne parties have contested the appropriate standard for weighing the evidence l
in this case. The Staff would have us decide by a prepondemnce of the evidence.
Licensee would have us decide against it only based on clear and convincing evidence.
De ordinary r;e in Commission proceedings is to determine a case by the preponderoce-of-the-evidence standard. He only exception brought to our attention was in Inquiry into Three Mile Island Unit 2 Leak Rate Data falsification LBP-87-15, 25 NRC 671 (1987), af'd. CL1-88-2, 27 NRC 335 (1988). In that case, in which there were issues that could reflect on the reputation of an individual - as in this case - there also was a 7-to 8-year delay before the matter came to trial. In that case, the Board used its discretion to apply a " clear and convincing evidence" standard.
t We do not choose to follow this precedent in this proceeding. In this case, i
there is no substantial delay in time to muddy the waters. In addition, we j
are convinced that the public interest in safety should be weighed heavily in i
this case and should cause us serious concern about changing the standard of 1
evidence to protect an owner-licensee whose actions could have serious safety repercussions.
Ilowever, the dispute about the standard of evidence is not important to the outcome of this case. Every finding we have reached is based on clear and
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convincing evidence. Additionally, we find that the evidence fits together in a fabric that compels the result we have reached.
VL OVERALL CONCLUSIONS We conclude that them have been extensive failures on the part of PSI and l
Mr. Ibrmst Roudebush to comply with NRC regulations he Board finds that the Licensee has failed to act as a reasonable manager of licensed activities, failed to detect and correct violations caused by an employee, willfully attempted to conceal violations from NRC Staff, and given untruthful information to the Staff during its inspections and investigations. Moreover, we find that Mr.
Roudebush was untruthful in some aspects of his testimony both during a formal investigation and before this Licensing Board.
l De Board therefore concludes that the Staff has ca:ried its burden of proof and has shown that there is no adequate assurance that the Licensee can be relied upon to conduct safe radiographic testing operations and to comply with 1
186 i
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Commission regulations. If these conditions had been known at the time of original license application, the Staff would have been justified in denying the application. The Atomic Energy Act of 1954, as amended, and NRC enforcement policy, set forth in 10 C.F.R. Palt 2, Appendix C, pmvide that the Staff may revoke a license for any reason that would cause it to deny a license in the original application. Accordingly, this license should be revoked.
l The Board finds that the Director's decision to revoke the byproduct materials license of PSI and Mr. Forrest Roudebush should be sustained."
s VII. ORDER I
R)r all the foregoing reasons and upon consideration of the entire record in
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this matter, it is this 8th day of September 1992, ORDERED, that:
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1.
The Order of the Staff of the Nuclear Regulatory Commission, dated April 22,1992, and titled " Order Modifying Order Suspending License (Effec-l tive immediately) and Order Revoking License,"" is sustained.
I 2.
Byproduct Material License No. 24-24826-01 is revoked.
3.
This initial Decision is effective immediately. In accordance with 10 C.F.R. 02.760 of the Commission's Rules of Practice, this Order shall become the final action of the Commission forty (40) days from the date of its effectiveness, unless any party petitions for Commission review in accordance with 10 C.F.R. 62.786 or the Commission takes review sua sponte. See 10 C.F.R. 9 2.786, as amended effective July 29,1991 (56 Fed. Reg. 29.403 (June 27, 1991)).
4 Within fifteen (15) days after service of this Decision, any party may seek review of this Decision by filing a petition for review by the Commission on the grounds specified in 10 C.F.R. f 2.786(b)(4). The filing of a petition for "We uphold the Director's decisim to revuke the Psl heense our staaaning ami findmss generally ag ee wah those of the Director, though they are dtfferent in some minar sospects.
We fmd that the staff did na pmve that the meeting between Mr.11osack and Mr. Roudehush on the evenmg of october 15,1991. was held for the purpose of conspirmg to lie to MtC investigators on october if,,1991. The Board nevertheless is persuaded that Licensee admissaana and evidence produced by the staff warrma revocation of Psra license.
It is not likely that, after a lengthy evidentiary hearing, a Board would agree with the Direciar in every detail.
Nor is that necmaary in order to austaan the Director's decinum. Manne sesearch Corp. (Alexandria, Virgima),
AtAB-594.11 NRC $41,148-49 (1980)(the adjudicatory heanng in a civil penalty pnmeding is essentially a trial de novo, subject only to the pnnciple that the Board may not assess a greater pmalty than the staffh com/we flarley Medcal Cemer (one IIurley Plaza, Flint Michigan). AIIB7 2,25 NRC 219,224-25 (1987).
' Die Licensmg Board crmeluds, as precedent permits, that the (Amsee has had fair nouce of the charges agamst it and an opportunity to comest those charges; it also concludes, aher weighing all the evidence befmc us, that the Staff has carried its burden of prouf and has persuaded us that there is inadagaate assurance of asfety to permit this tacenace to cmtinue to operate.
"The staff's october 17,1991 order,* order suspending License (Effocuve immediately),"is no longer selevant once we have decided to revoke t}m license.
187
I review is mandatory for a party to exhaust its administrative remedies before secking judicial review.10 C.F.R. (2.786(b)(1).
- 5. The petition for review shall be no longer than ten (10) pages and shall contain the information set forth in 10 C.F.R. 6 2.786(b)(2). Any other pany i
may, within ten (10) days after service of a petition for review, file an answer supporting or opposing Commission review. Such an answer shall be no longer than ten (10) pages and, to the extent appmpriate, should concisely address the matters in section 2.786(b)(2). The petitioning party shall have no right to reply, except as permitted by the Commission.
THE ATOMIC SAFETY AND LICENSING BOARD Dr. Jerry R. Kline ADMINISTRATIVE JUDGE i
Dr. Peter S. Lam ADMINISTRATIVE JUDGE Peter B. Bloch, Chair ADMINISTRATIVE JUDGE Bethesda, Maryland APPENDIX REGULATIONS AND LICENSING CONDITIONS The regulations and license conditions that the Staff alleges were violated are set forth in this Appendix.
1.
Section 30.9(a) of 10 C.F.R., which requires that information provided to the Commission, by a licensee, or information required by statute or by the Commission's regulations, orders, or license conditions, to be maintained by the licensee, be complete and accurate in all material respects; 2.
Section M.27 of 10 C.F.R., which requires that each licensec i
maintain current logs, kept available for 3 years from the date of the recorded event, for inspection by the Commission and that these logs show for each scaled source: (a) a description (or make and model 188
l r
number) of the radiographic exposure device or storage container in which the sealed source is located; (b) the identity of the radiographer to whom assigned; and (c) the plant or site where used and dates of use; j
3.
Section 34.33(a) of 10 C.F.R., which requires that a licensee not permit any individual to act as a radiographer or a radiographer's assistant unless, at all times during radiographic operations, such an individual wears a direct-reading pocket dosimeter and either a film l
badge or a thermoluminescent dosimeter (TLD);
i 4 Section 34.33(b) of 10 C.F.R., which requires that pocket dosime-ters be read and exposures recorded daily and that the licensee retain each record of these exposures for 3 years after the record is made; 5.
Section 34.43(c) and (d) of 10 CF.R., which requires that a j
licensee ensure that a survey with a calibrated and operable suncy instrument is made at any time a radiographic exposure device is placed in a storage area to determine that the scaled source is in the shielded position and that a record of the required storage survey be made and retained for 3 years when that storage survey is the last one performed i
in the work day; 6.
Section 34.31(b) of 10 C.F.R., which requires that a licensee not permit an individual to act as a radiographer's assistant until such an I
individual has received copics of and instruction in the licensce's oper-ating and emergency procedums, and has demonstrated competency to use (under the personal supervision of the radiographer) the radiographic equipment, and has demonstrated understanding of those instructions by successfully completing a written or omt test and a field examination on the subjects covered and that records of training, including copies of written tests and dates of oral tests and field examinations, be maintained for 3 years; 7.
Section 20.203(b) and (c) of 10 CF.R., which requires that each radiation area be conspicuously posted with a sign or signs bearing the radiation caution symbol and the words " Caution Radiation Area" had that each high-radiation area be conspicuously posted with a sign or signs bearing the radiation caution symbol and the words " Caution liigh l
Radiation Area;"
I J
8.
Section 20.201(a) and (b) of 10 C.F.R., which requires, when appropriate, suncys that may be necessary for the licensee to comply j
with the regulations in Part 20 and that are reasonable under the
'I A ra6ographer's assistant as defined by 10 C.FA 5 34.2 as any indwidual who under die penanal supervisinn
<3 mgrapher, uses radsgraptue exposure devices, sesled sounzs er rejsted handhng huds, or radisuon survey instruments in radiography.
189
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I circumstances to evaluate the extent of radiation hazards that may be present; and 9.
Section 34.42 of 10 C.F.R., which requires that areas in which radiography is being performed to be conspicuously posted as required by 10 C.F.R. f 20.203(b) and (c)(1).
7hc following violations of the NRC and Department of Transportadon regulations also are alleged:
1.
Secdon 173.25 of 49 C.F.R. and 10 C.F.R. f 71.5 (failure to properly mark and label radioacdve material shipment containers as of September 18, 1991);
2.
Sections 177.817(a),172.201(d),172.203(d) of 49 C.F.R. and 10 C.F.R.171.5 (failure to ship radioactive materials accompanied by properly completed shipping papers as of October 4,1991);
3.
Section 34.26 of 10 C.F.R. (failure to maintain complete records of quanctly physical inventories of scaled sources as of September 18, 1991);
i 4 Secdon 34.42 of 10 C.F.R. (failure to conspicuously post high-
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radiation areas on October 4,1991);
5.
Section 19.11 of 10 C.F.R. (failure to post required documents as of September 18,1991); and 6.
Section 34.43 of 10 C.F.R. (failure to perform surveys between April 1990 and September 1991).
i In addition, the following violations of a license condition are alleged:
PSI License Condition 11.B has been violated. Condition 11.B of Byproduct Material License No. 24-24826-01, Amendment No.
2 (April 27,1989), named Mr. James Hosack as the only person i
authorized by the license to act as a radiographer and indicated that no person was authorized by the license to act as a radiographer's assistant.
1 i
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i Cite as 36 NRC 191 (1992)
LB P-92-26
- i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1
f ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Ivan W. Smith, Chairman Dr. Charles N. Kelber Dr. Jerry R. Kline l
4 in the Matter of Docket No. 50-336-OLA (ASLBP No. 92-665-02-OLA) l (Spent Fuel Pool Design) j (FOL No. DPR-65) i t
NORTHEAST NUCLEAR ENERGY COMPANY i
l (Millstone Nuclear Power Station, Unit 2)
September 17,1992 i
MEMORANDUM AND ORDER (Imposing Sanctions upon CCMN and Striking Petitions) j INTRODUCTION l
Co-operative Citizen's Monitoring Network, Inc. (CCMN), represented by Ms. Mary Ellen Marucci, has repeatedly failed to comply with NRC regulations and the Licensing Board's directives pertaining to the filing and service of i
pleadings. As a consequence, two intervention pleadings filed by CCMN were not served timely upon members of the Board, Licensee, and the NRC Staff.
The purpose of this Order is to impose appropriate sanctions upon CCMN 4
by striking the noncomplying pleadings, to admonish CCMN that continued noncompliance may result in more severe sanctions, and to memorialize a background record against which possible future sanctions may be considered.
1 191 1
In a related determination, the Board also rules that the two pleadings that were not umely served may not be entenained because CCMN failed to address the regulatory factors that must be considered in granting or denying nontimely petitions.
j DISCUSSION d
in our Memorandum and Order (Establishing Pleading Schedule), July 29, 1992 (LBP-92-17,36 NRC 23), we noted that the petitioners are responsible for serving their papers directly upon members of the Board and other panics pursuant to the provisions of 10 C.F.R. 6 2.701. We warned that pentioners must carefully follow the Rules of Practice in future pleadings. LBP-92-17, supra, 36 NRC at 29 n.10. Dat order also reminded petitioners that nontimely filings would not be entertained absent a balancing of the five factors specified in 10 C.F.R. 6 2.714(a)(1)(i)-(v). As a courtesy to petitioners, the order set out the text of those factors. LBP-92-17, supra. 36 NRC at 28 n.7.
The Federal Register notice of this prococding also cautioned that "non-timely filings of petitions for leave to intervene, amended petitions, supplemen-tal petitions, and/or requests for hearing will not be entenained absent a de-termination... that the petitions or requests should be granted based upon a balancing of the five pertinent factors. 57 Fed. Reg. 17,834,17,835 (Apr. 28, 1992). Our order of July 29 also reminded petitioners of that Federa! Register guidance. LBP-92-17, supra. 36 NRC at 29.
On August 3,1992, Mrs. Doris M. Moran, Clerk to this Licensing Board, wrote to Ms. Marucci and other petitioners reminding them of the Board's order of July 29 respecting service of papers. At the Board's direction, Mrs. Moran provided petitioners with a then-complete service list and instructions pertaining to Certificates of Sen' ice.8 On August 12, 1992, Ms. Marucci, on behalf of CCMN, moved for an extension of time to file contentions. That motion also contained substantive intervention arguments. Dere was no Certificate of Service for this pleading nor did CCMN serve it upon the other participants.2 j
I The semce hst prended by Mm. Moran 6d ma include Frank X. to sacco and Don't waste carmecucut whose peutions were fded after Ms Maran's leucr. Ms. Marucci has cornplamed orany to Mrs. Moran that servang all of the parues is experisive. Ms. Maruari may chmmate imm her servke hat those petitioners who expressly j
authonzed CCMN to represent their imerests if she chooses.
2 By order dated August 38.1942. the Board grused to CCMN an case sion of name to August 24.1992. to fde I
amended and supplemental petiuana The Board will nut consider the substantvc imervention argumems made in the mouan 192
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4 On August 14, 1992, CCMN filed an " Amendment to Intervention and licaring Request" dated August 13, 1992. Again, there was no Cenificate of l
Service. Other participants were not served?
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On August 24, 1992, Ms. Marucci timely filed CCMN's contentions and l
supporting documents. She served Judge Smith but failed to serve Judges Kline and Kc!ber. Her Cenificate of Service does not reflect ser. ice upon the NRC Office of General Counsel or upon several of the other petitioners in this proceeding.
Also on August 24, Ms. Marucci mailed to the Secretary of the Commission l
a packet of papers including a letter dated August 7,1992, from Mr. Kacich of l
Northeast Utilities to Ms. Marucci. This communication had no Certificate of Service, nor were other participants and Board members served by Ms. Marucci.
On August 25, 1992, Judge Smith reminded Ms. Marucci that petitioners are required to serve their pleadings on all other panicipants in the proceeding.
Judge Smith explained to Ms. Marucci that the Licensee and the NRC Staff must l
be given an opponunity to respond to late-filed petitions. See Memorandum, August 25,1992 (unpublished). Since this discussion, Ms. Marucci filed the two pleadings in question with a Cenificate of Service showing service consistent with the service list provided by Mrs. Moran on August 3.
1 If this recent compliance were to provide assurance that CCMN would comply with filing requirements in the future, one of the three reasons for the a
sanctions we impose below would disappear. However, Ms. Marucci has never acknowledged her earlier errors in failing to comply with servicing requirements.
In fact, her most recent communication suggests that she still does not understand I
these requirements.* Funber, as we explain below, the failure to timely serve the most recent pleadings rendered them effectively nontimely within the meaning of the intervention rule. Ms. Marucci has not evinced any understanding of that problem.
l On September 8,1992, Ms. Marucci mailed "CCMN Contentions regarding Millstone 2 - FINAL VERSION." This document, dated August 24, 1992, purpons to replace the similar " draft" contentions, also dated August 24,1992, l
1 3 on september 11. 1992 Ms. Wrucci served an amsigard copy of CCMN's August 13 " Amendment to Imervenuun and licanns Request" and other papers. She also served a copy of a U.s. Ibs:a! semce Ccrtiricate of Mailmg. dated August 14.1992. Ahhough the Postal servwe Ceruficate states that the addn asce was the " Atoms safety and licaismg Board the icuer was actually addressed to the Atomic safety and licensmg Board roast I
- enactly as indicated on the anside address of the amendment leuer. Papers addressed to the Panel are rued in a contal dadet rde. Ducket personnel assume that andmdua! Board manhers receive their own service copy of any plendmg. as requued by NRC practacc. and do not normally inform the Bosed mernbers of the madmg In dus case the members of the Board did not became aware of the August 13 amendment leuer until Ms. Marucci inquired shout u on september 10. See attached mernorands inun Ms.11 ughs and Ms. Donovan (not puhhshed).
j Even af the August 13 amendment leuer had been dehvered promptly to a men ber of the Board. service would not have been onmplete.
'Sca ncae 3. sigwn. Ms. Mamcci's nate to Judge smith of september 11.1992, suggests that she expects the Board to serve her papers l
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setting out CCMN's contentions.S De " FINAL VERSION" differs mater tily from the " draft" version. The problem of course is that the Licensec anc the 6
NRC Staff 7 have already filed lengthy and painstakingly prepared answers to CCMN's " draft" set of contentions.
As noted in footnote 3, above, Ms. Marucci, for the first time, served on September 11, 1992, an unsigned version of CCMN's August 13, 1992
" Amendment to Intervention and llearing Request" Again, the Licensee and the NRC Staff were unable to address the August 13 pleading in their respective answers to CCMN contentions.
Neither the " FINAL VERSION" of CCMN's contentions nor the memo covering the late service of the August 13, 1992 amendment letter contains any discussion of the reasons for the failure to properly file and serve those pleadings on time. The Board, the NRC Staff, and the Licensee have already spent considerable time evaluating CCMN's " draft" set of contentions under the assumption that they were CCMN's last and complete position on the intervention issues.
CCMN's undisciplined approach to intervention is wasteful of NRC and.
Licensee resources - resources that could be better expended for improvements in safety. These errors also delay the resolution of the intervention issues notwithstanding CCMN's repeated requests for an early hearing.
he Board has decided on its own motion to strike CCMN's late-filed petitions for the following independently sufficient reasons:
1.
The Board may not entertain the nontimely petitions absent a determina-tion by the Board that the petitions should be granted based upon a balancing of the five factors set out in section 2.714(a)(1)(i)-(v). Since CCMN has not addressed those factors, and since the Board cannot on its owTi find any good cause for the late filings, it cannot make such a determination.
2.
Striking the petitions is the least onerous remedy to mitigate the harm that would arise from repeating the effort invested by the NRC Staff and Licensee in responding to CCMN's " draft" contentions.
3.
Striking the petitions is an appropriate sanction to educate CCMN to the need to comply with NRC Rules of Practice and Board directives and to improve future compliance. In this respect, the Board advises CCMN that similar or more severe sanctions may be imposed in the future in the event CCMN fails to meet its obligations as a participant in this proceeding. Such sanctions would 8 Ms. Maruai telephoned Mrs. Maran on sepsember 4.1992. staung that the August 24. 1992 picadmg was muitakenly riled in draft form and that she iruended to rile a corrected version. Mrs. Moran's manorandum as ana:hed.
' Northeast Nucicar I:ncrgy Company's 0) Ansect to the ticensing Board's Ques 6ans and (2) Answers to Peuuans and supplernental Pouuans to lmervene. september 8,1992. The Board would apsweiste succmet ntles to pleadmgs in order to sunphfy citanons.
7 NRC staff Response to supplanental Peuuons and CCMN C<racnums, septernher14.1942 194 l
l
t be tailored to mitigate any harm caused by noncompliance and could nutge in severity up to dismissing CCMN as a party to the proceeding.8 ORDER i
The Board strikes from the record of this proceeding (1) CCMN's Contentions Regarding Millstone 2 - FINAL VERSION, dated August 24,1992, and served September 8,1992; and (2) CCMN's Amendment to Intervention and Hearing l
Request dated August 13,1992. CCMN is admonished as above stated.
4 THE ATOMIC SAFETY AND j
LICENSING BOARD I
Charles N. Kelber ADMINISTRATIVE JUDGE i
Jerry R. Kline ADMINISTRATIVE JUDGE han W. Smith, Chairman j
ADMINISTRATIVE JUDGE Bethesda, Maryland i
September 17,1992
[The attachments have been omitted from this publication but can be found in j
the NRC Public Document Room,2120 L Street, NW, Washington, DC 20555.]
I i
sSee the Comnnssion's $4asement of Policy on Condues of Lctuing Pmeedsags Cl3 81-8,13 NRC 452,454 (1981).
195
]
e
..~.. -.. - - _ -..
q Cite as 36 NRC 196 (1992)
LBP-92-27 UNITED STATES OF AMERICA j
NUCLEAR REGULATORY COMMISSION l
ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Charles Bechhoefer, Chairman Dr. Jerry R. Kline Frederick J. Shon I
in the Matter of Docket Nos. 50-275-OLA-2 50-323-OLA-2 (ASLBP No. 92-669-03-OLA-2)
(Construction Period Recovery)
(Facility Operating Licenses Nos. DPR-80, DPR-82)
PACIFIC GAS AND ELECTRIC
]
COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2)
September 24,1992 In a proceeding concerning the proposed extension of operating licenses to recover or recapture into those licenses the period of construction of the reactors, the Licensing Board determines that a petition requesting a hearing and leave to interve se is deficient but permits, in accordance with the Rules of Practice, the.
Petitioner to file an amended petition, other parties to respond, and schedules a prehearing conference.
4 RULES OF PRACTICD INTERVENTION PETITION j
A petitioner for intervention may amend its intervention petition without leave j
of the licensing board up to 15 days prior to the first prehearing conference. The licensing board may alter that 15-day period.10 C.F.R. li 2.714(a)(3), 2.711(a).
4 1
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RULES OF PRACTICE: STANDING Merely because a petitioner may have had standing in an earlier proceeding does not automatically grant standing in subsequent proceedings, even if die scope of the earlier and later proceedings is similar.
MEMORANDUM AND ORDER (Filing Schedules and Prehearing Conference)
Pending before us is a request for a hearing and petition for leave to intervenc with respect to an application by Pacific Gas and Electric Co. (" Applicant" or "Licensce") to extend the life of the operating licenses for the Diablo Canyon Nuclear Power Plant, Units 1 and 2, its two pressurized water reactors located near San Luis Obispo, California R)r the reasons that follow, we are permitting the Petitioner to supplement its petition and the Applicant and die NRC Staff l
to respond. We also are scheduling a prehearing conference to consider these filings.
I l
===1.
Background===
The proposed operating license amendments would " recover" or " recapture" into the operating licenses the period of construction for the reactors. The licenses, which are limited to a term of 40 years by section 103c of the Atomic Energy Act, 42 U.S.C. 9 2133(c), were issued consistent with a Commission policy under which that 40-year life extended from the date of issuance of the construction permit for a particular unit - for Unit 1, a term running from April 23,1968, to April 23,2008, and for Unit 2, a term running from December 9, 1970, to December 9, 2010.
4 In 1982, the Commission began issuing the 40-year operating licenses measured from the date of issuance of the license. It has also approved license j
amendments for many reactors conforming the earlier licenses to this new policy. The Licensee is here seeking to amend its operating licenses to take advantage of the newer practice. As proposed, the extended expiration dates for Diablo Canyon would be September 22,2021, for Unit 1 (more than a 13-year extension) and April 26,2025, for Unit 2 (almost a 15-year extension).
In response to a notice of opportunity for hearing on the proposed amend-ments (57 Fed. Reg. 32,575 (July 22,1992)), a group tit!cd San Luis Obispo Mothers for Peace ("MFP" or " Petitioner") filed a timely request for a hear-ing/ petition for leave to intervene, dated August 18,1992. The petition consists of a brief one-page letter setting forth in general terms MFP's reasons for wish-ing to take part in the proceeding. On September 4,1992, and September 8, 197
f 1992, respectively, the Applicant and Staff filed responses: the Applicant seeks outright denial of the petition, whereas the Staff asserts that the petition in its present form is deficient but recommends that we defer any decision pending receipt and consideration of any revised MFP petition. On September 10,1992, this Licensing Board was established to rule on the request / petition and to pre-side over the proceeding in the event that a hearing is ordered. 57 Fed. Reg.
43,035 (Sept.17,1992).
2.
General Requirements s
l Under the NRC Rules of Practice, specifically 10 C.F.R. 9 2.714, a petitioner I
must establish its standing, must indicate the aspects of the proceeding in which it seeks to participate, and must proffer at least one acceptable contention in order l
to be admitted as a party to the proceeding. MFP advises that, beginning in I
1973, it participated in earlier proceedings involving the Diablo Canyon facility.
However, merely because a petitioner may have had standing in an earlier proceeding does not automatically grant standing in subsequent procc: lings, even if the scope of the earlier and later proceedings is similar. See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), LBP-92-4, 35 l
NRC 114,125-26 (1992). Moreover, because of recent revisions to the Rules of Practice, contentions are subject to much more stringent requirements than l
l they once were.
l For reasons we spell out later, MFP's one-page letter-petition is deficient l
in many respects. In particular, it fails adequately to demonstrate that MFP has standing. However, by generally referencing certain concerns of MFP, the petition correctly presents " aspects" of the proceeding in which MFP wishes l
to participate. And, notwithstanding the Applicant's extensive discussion of I
defects in the submitted " issues," their failure to satisfy contention requirements is not disqualifying because contentions are not yet required to be filed.
Thus, as the Staff observes, under governing rules, a petitioner may amend its l
l petition without prior approval of the Licensing Board at any time up to 15 days prior to the holding of the first prehearing conference.10 C.F.R. f 2.714(a)(3).
'Ihat same time frame governs the initial submission of contentions. Utilizing our authority to alter those 15-day periods,10 C.F.R. $2.711(a), we are here establishing dates for MFP to file a revised petition, including contentions, for the Applicant and Staff to file responses, and for a prehearing conference, at I
l which both Petitioner's standing and the sufficiency of its contentions will be considered.
I 198 i
3.
Standing 1
he standing requiremerit stems from section 189a of the Atomic Energy l
Act 42 U.S.C. f 2239(a), which provides, in pertinent part, that the Commis-(
~
sion shall grant a hearing upon the request of "any person whose interest may
(
?
be afected" by a proceeding (emphasis supplied). To the same effect, see 10 C.F.R. 0 2.714(a)(1). To determine whether a petitioner has the rec,uisite stand-ing, the Commission utilizes contemporaneous judicial concept <. of standing.
j Sec Sacramento Municipal Utility District (Rancho Seco Nucicar Generating j
Station), CLI-92-2, 35 NRC 47, 56 (1992): Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CL1-83-25,18 NRC 327,332 (1983).
Under those standards, the petitioner must demonstrate (1) that it has suffered or will likely suffer " injury in fact" from the proposed licensing action, (2) that the injury is arguably within the zones of interest sought to be protected by l'
the statute being enforced, and (3) that the injury is redressable by a favorable decision in the proceeding in question. Public Service Co. of New flampshire
]
(Seabrook Station, Unit 1), CLI-91-14,34 NRC 261,266-67 (1991).
Ilere, the " concerns" set forth by MFP concerning radiological health and safety and impact upon the environment clearly fall within the zones of interest l
sought to be protected by the Atomic Energy Act or NEPA. Nor is there any doubt that, to the extent litigable in this proceeding, those " concerns" would be i
redressabic in this proceeding. He real standing question before us is whether MFP has made a satisfxtory showing of injury in fact. Dat showing must be real, but it need not be " substantial," llouston Lighting and Power Co. (South Texas Project Units 1 and 2), LBP-79-10,9 NRC 439,447-48, aff'd, ALAB-549,9 NRC 644 (1979).
l Dere are several ways for a group such as MFP to demonstrate that it has suffered or will likely suffer injury in fact. It can assert either organizational injurf or injury to a member that it represents. From the general reference in I
the letter-petition to the residences of MFP members, we presume that MFP is j
seeking to take the latter course and rely on representational injury. The general j
reference in the letter-petition, however, is insufficienL j
To assen representational injury in fact, MFP must specifically identify one or more of its individual members by name and address, identify how that member may be affected (such as by activitics near the plant site) and show (preferably by affidavit) that it is authorized to request a hearing on behalf of the member.
South Texas, ALAB-549, supra. 9 NRC at 646-47; flouston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 392-97 (1979). Funher, the organization must demonstrate that the person signing the petition has been authorized by the organization to do so. Detroit Edison Co. (Enrico Fermi Atomic power Plant, Unit 2), LBP-79-1, 9 NRC 73, 77 (1979). An organization has sufficiently demonstrated its standing if its 199 i
t
i s
i petition is signed by a ranking official whose own personal interest supports
{
intervention. Duke Power Co. (Amendment to Materials License SNM-1773 i
l
- Transportation of Spent Fuel from Oconce Nuclear Station for Storage at l
McGuire Nuclear Station), ALAB-528,9 NRC 146,151 (1979).
i Residence of a particular organization member within 50 miles of a power plant site has, in construction permit and operating license proceedings, been
(
recognized as sufficient to confer standing. His 50-mile presumption does not apply in every operating license amendment proceeding, however, but only in j
l those involving "significant" amendments involving " obvious potential for offsite consequences." Florida Power and Light Co. (St. Lucie Nuclear Power Plant, i
Units 1 and 2), CLI-89-21,30 NRC 325,329-30 (1989). In other amendments,
{
a petitioner must demonstrate a particular injury in fact that will result from the l
t action for which authorization is sought.
ne Applicant takes the position that specific injury in fact must be demon-l strated in this type of proceeding, and that mere residence within 50 miles of the site is insufficient. Response at Il-14. De Staff does not address the question.
At this stage, we take no specific position onathis question, other than to j
note that the Applicant has cited no cases involving operating-license extension i
amendments (or, for that matter, construction-permit extension applications) in support ofits claim that the 50-mile presumption does not apply. In contrast, the Licensing Board in an earlier operating license extension proceeding required no direct showing of injury in fact. Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-90-6,31 NRC 85. 90 (1990). See also the comments of the Appeal Board in Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-619,12 NRC 558,564 (1980).
To the extent that MFP in its revised pleading may intend to rely only on the residence of named members in support of its standing claim, we will discuss with the parties and petitioner at the prehearing conference the validity of the Applicant's position and, in particular, the significance of the license anvendment before us. (If MFP should specifically demonstrate injury in fact through another method, we will not need to address this issue.)
j 4.
Contentions As mentioned earlier, to be admitted as a party, a petitioner must proffer af least one valid contention. The requirements for contentions have been significantly upgraded in recent years. Each contention "must consist of a specific statement of the issue of law or fact to be raised or controverted." 10 C.F.R. 5 2.714(b)(2). nat statement must raise an issue falling within the scope of the subject matter of the particular proceeding.
in addition, the following information must be provided:
200 1
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l 1
(i) A brief explanation of the bases of the contention.
l (ii) A concise shtement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention, together with references to those specific sources and documents of which the petitioner is aware and on which j
the petitioner intends to rely.
(iii) Sufficient information (including that listed above) to show that a genuine dispute exists with the applicant on a material issue of law or fact. This showing must include references to the specific portions of the application (including environmental report and safety report) that the petitioner disputes and suppcrting reasons for each such dispute; or, if the petitioner telieves that the application fails to contain relevant information, the identification of each such omission and supporting reasons. On NEPA issues, the contentions are to be j
based on the Applicant's Environmental Report but are subject to t
amendment based on later-issued Staff documents.
in ruling on contentions, we are to take into account factors set forth in 10 C.F.R. 02.714(d)(1), as well as whether the contention, if pmven, would be of consequence in the proceeding and entitle the petitioner to relief 10 C.F.R. 6 2.714(d)(2).
5.
Filing Dates Because MFP will le required to make extensive rezisions in its petition to conform to current NRC requirements, we are setting filing dates accordingly.
4 MFP shall file (mail) its revised petition no later than Monday, October 26, j
1992. The Applicant may respond by Wednesday, November 18,1992. Tie Staff may respond by Monday, November 30,1992.
A prehearing conference will te scheduled during tre week of December 7 11. 1992, in or around San Luis Obispo, California. We will announce the exact day, time, and location in an order to be issued at a later date.
FOR THE ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland
)
September 24,1992 201 e
e
1 I
Cite as 36 NRC 202 (1992)
UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION a
ATOMIC SAFETY AND LICENSING BOARD l
Before Administrative Judges:
l Ivan W. Smith, Chairman l
Dr. Charles N. Kelber l
Dr. Jerry R. Kline 2
I l
In the Matter of Docket No. 50-336-OLA i
(ASLBP No. 92-665-02-OLA)
]
(Spent Fuel Pool Design)
NORTHEAST NUCLEAR ENERGY COMPANY j
j (Mittstone Nuclear Power Station, j
Unit 2)
September 30,1992 1
MEMORANDUM AND ORDER (Ruling on Petitions for Leave to Intervene)
{
i I.
SYNOPSIS This is a spent fuel pool design proceeding occasioned by Amendment 158 J
to the Millstone Unit 2 facility operating license. In this Order the Board rules that the Co-operative Citizen's Monitoring Network (CCMN) has filed a timely petition for leave to intervene and request for hearing, has standing to intervene in the proceeding, and has submitted an acceptable contention. Therefore, CCMN has satisfied all of the requirements to intervene in NRC proceedings and is i
admitted as a party. A hearing is ordered. Other petitions for leave to intervene are rejected.
ll 202 1
4 1
t i
II, IIACKGROUND On April 16,1992, Northeast Nuclear Energy Company, the Licensee herein, submitted Millstone Nuclear Power Station Unit 2 Proposed Revision to Techni-cal Specifications, Spent Fuel Pool Reactivity (Amendment 158). The Amend-ment modified administrative controls over the use of the spent fuel pool so as to impose additional restrictions upon use of the pool. Prior to Amendment 158, j
fuel storage racks in the spent fuel pool were administratively partitioned into j
two regions. The Amendment authorized Licensec to divide the same racks into three regions and, by installation of blocking devices, reduced the number of fuel bundles that can be stored in one of the three regions. As a result, the over-all fuel storage capacity of the Unit 2 spent fuel pool was reduced from 1112 to 1072 fuel bundles. According to the Licensec, Amendment 158 is restrictive in nature - a point giving rise to an imponant legal issue in this proceeding.
Amendment 158 was preceded by circumstances reported in Licensee Event j
Report (LER) 92-003-00, dated March 13,1992. There the Licensee reported the i
discovery of criticality analysis calculational errors with respect to the Millstcme Unit No. 2 spent fuel pool. The Licensee reponed that-he safery consequence of this event is a potential uncontrolled criticality event in the spent fuel pool. Upon consideratim of the following factors, a significant margin to a critical condition was always maintained and, therefore, the safety consequencrs of this evers were minimal: Ifactors ornitted).
i As Licensec explains the event, the xtual K,y in the spent fuel pool was still subcritical and less than the Technical Specification limit of 0.95 when the calculational error was discovered. However, a revised calculation of K,y.
assuming a spent fuel pool at full capacity and other conservatism, determined a maximum K,y to be 0.963 rather than the previously calculated 0.922. This result was inconsistent with previous safety analyses. Licensee's Answer at 4-5.8 i
Further, according to Licensec:
Amendmcra 158 ensures that K,y will te less inan 0.95 in all cases, by requiring that a ponion of the existing fuel racks be designated for spent fuel that has undergone a specified turnup, and that tdocking devices be installed in a ponion of the existing racks to reduce the amount of fuel to be stored in these racks. His increases the distance between fuel tondles, which resuhs in a lower K, Licensce's Answer at 5. This claim is the focus of the contention accepted ly the Board, below, 3 Northeast Nuc1 car Energy Company's (1) Annect to the txensmg Boani's Quesuons and (2) Answer to Nunns and supplernental Pbutions to intervene (t.icensec's Answer). sepurnber 8,1992.
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On April 28,1992, the NRC Staff, for the Commission, issued a preliminary determination that Amendment 158 involved no significant hazards considera-l tion," and published a Notice of Opportunity for licaring.2 ne notice required that written requests for hearing and petitions for leave to intervene in accor-l dance with 10 C.F.R. 6 2.714 be filed by May 28, 1992. On June 4,1992, l
the NRC Staff issued Amendment No.158 after considering comments from intervention petitioners in accordance with 10 C.F.R. f 50.92.
Petitions for leave to intervene and requests for hearing were filed by several entities.5 The petition granted by this Order was filed by Mary Ellen Marucci j
on behalf of herself and CCMN on May 28, 1992. Other petitions remain significant only because some petitioners authorize CCMN to represent their interests. Sec " Preliminary Ruling," Section Ill, infra.
By Memorandum and Order of July 29,1992 (LBP-92-27, 36 NRC 23),
l the Board established a schedule for the filing of amended and supplemental intervention petitions. De Order stated that each petitioner was to file by August 14, 1992, a list of contentions,' and set forth the main requirements that contentions must satisfy. The Order further set forth regulatory provisions applicable to nontimely petitions (those filed after May 28,1992) and cited the five factors to be balanced in evaluating nontimely petitions. See 10 C.F.R. 6 2.714(a)(1). The Board also invited the parties to address three questions related to standing to intervene in NRC proceedings. On August 24, 1992, l
CCMN filed its contentions.5 De Licensee filed its answer opposing the petitions on grounds of lateness, no standing to intervene, and failure to file an acceptable contention. Licensec's Answer, passim. The NRC Staff opposed all petitions on the last two grounds.'
Ill PRELIMINARY RULING By letter dated May 27, 1992, Patricia R. Nowicki filed an intervention petition and request for hearing on behalf of Earthvision, Inc. By letter dated 2" Northeast Nuc1 car linergy Co Consideranon of Issuance of Amendment to Facility operaung Limnae.
Pmposed No sigmficant liarards Considerane Determmauon. and o ortunity for lleanng." 57 Fed. Reg.17.934 m
(Apr. 25. I992).
3 he NRC stafr and Licensee fded answers to the carbest petinons. but as intervention pleadmgs continued to be fded the Board redumd the number of plead:rg:n by defernng further suff and ticensee answers until the fmal round d peunming orders orJune 30 and July 15,1992.
- Hy Mernorandum and order of August 18,1992 (unpuhhshed).CCMN was given until August 24.1992, to file amended and suppicmental peunons cantauung contentions.
8 Dy Memorandurn and order of september 17.1992 (LEP-92 26. 36 NRC 191), the Board, on its own mainn, sind from the reenrd CCMN's " Final Version" of aia careennons dated August 24,1992, and CCMN'a W
Amendment to lmer,entet and llearmg Request dated August 13.1992, as nontunely and nra in comphance wnh service nquuements.
'NRC staff Response to supplemental Pounons and CCMN Contenunns (stafr's Amwer) september 14.1992.
204 m-
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l July 29,1992, Ms. Nowicki advised the Board that Earthvision, Inc., lacked l
corporate status in Connecticut and that she wished to continue to participate in this proceeding as an individual. Michael J. Pray filed intervention pleadings on May 29 and July 2,1992. Rosemary Griffiths filed a petition on June 29.
On August 13, Ms. Griffiths clarified that she wanted CCMN to represent her interests. Joseph M. Sullivan filed a petition on July 6. Don't Waste Connecticut filed on June 26 and Frank X. Lo Sacco petitioned on August 13. Ilowever, none of these petitioners filed contentions by August 14,1992, the date set by the Board Scheduling Order of July 29 (LBP-92-17, supra), or at any time until the issuance of this Order. The intervention rule states that any petitioner who fails to file at least one contention will not be permitted to participate as a party to a proceeding.10 C.F.R. g 2.714(b)(1). Accordingly, in our Order below, the Board rejects the Nowicki, Pray, Griffiths, Sullivan, Don't Waste Connecticut, i
and to Sacco intervention petitions.
Ilowever, Mr. Pray and Ms. Griffiths are members of CCMN. Mr. Sullivan is associated with CCMN. Each expressly authorize CCMN to represent their interests in this proceeding. We take these authorizations into account in assessing whether CCMN has standing to intervene. See Section V.D, infra.
IV. TIMELINESS OF CCMN'S PETITION De Licensee challenges CCMN's petition on the ground of lateness. He NRC Staff does not. Since the Board may not entertain nontimely petitions absent a balancing of the traditional five factors of section 2.714(a)(1)(i)-(1)(v),
we address the issue of timeliness at the threshold.
he broad factual issue is whether Ms. Marucci liled a timely petition to intervene as an agent and officer of CCMN.
As noted above, the federal Register notice set May 28,1992, as the last j
date for filing timely petitions for 1 cave to intervene and requests for hearing.
Ms. Marucci filed an undated petition letter received by the Secretary of the Commission on Monday, June 1,1992. Licensee states that the petition was postmarke6 May 29 and was, therefore, late. The NRC Staff states that Ms.
Marucci filed on May 28,1992, and that she filed timely.
In the worst case, Ms. Marucci's filing was only slightly late. Rcrefore the burden of satisfying the five factors for granting nontimely petitions would be commensurately lightened. For reasons that follow, we rule that Ms. Marucci's petition was timely. Therefore, we need not address the balancing factors with respect to that pleading.
Under NRC practice, filing is deemed complete as of the time it is deposited in the mail - not postmarked.10 C.F.R. f 2.701(c). Normally the postmark l
would establish the date of deposit, but. necessarily, the postmark must follow 205
the deposit. A common experience is that the date of a postmark may fall on a date after the date of actual deposit. He Board is not inclined to deny intervention on circumstances that involve, at most, a matter of hours.
Licensee also makes an argument that CCMN's petition is nontimely because CCMN, as an organization, did not act until it filed its petition on June 23,1992.'
If so, it follows that CCMN must prevail on the five balancing factors before its nontimely petition can be entertained. Since CCMN did not satisfy, or even address these factors, its petition, according to Licensec, may not be entertaincd.
Licensec's Answer at 36-41.
De key to resolving this factual issue is the nature and effect of Ms.
Marucci's timely filing of May 28, and CCMN's notions of June 23. On May l
28, Ms. Marucci explained in separate paragraphs that:
I am usir g this format to request a hearing also. I am coordmator for Cooperative Otizen's Monitormg Network and need time to approach my organization on what part they wish to l
P 87-I as a cunarned citizen wish to intervene and as an individual am requeuing a hearing.
Petition Letter (emphasis added).
Licensee misperceives Ms. Marucci's action in the May 28 petition letter.
Licensee states "Ms. Marucci submitted a nontimely petition which, she empha-sized, was filed on her own behalf and not on behalf of CCMN." Licensec's Answer at 36.
Ms. Marucci cmphasized nothing of the sort. He best and fairest inference is that Ms. Marucci requested a hearing in two respects - once in connection with her role as CCMN's coordinator and once as an individual.
In its June 23 motion, CCMN describes Ms. Marucci's action on May 28 as:
"She made that request as an individual pending the approval of our board."
Ms. Marucci's personal intervention was then abandoned. Id.
In both the May 28 or June 23 pleadings, it is evident that, on May 28, Ms.
Marucci acted on behalf of, but without advance express authority from CCMN.
Neither intervention pleading would qualify as a learned treatise on princi-pal / agent law. We understand that CCMN, as an environmental group, does not ponder the nuances of agency law. Our respordbility is to apply the law to the facts before us.
Under either of two general principal / agent legal concepts, Ms. Marucci's May 28 petition constituted timely petitioning by CCMN. First, Ms. Marucci was the coordinator and the highest ranking officer of CCMN at the time of her May 28 petitioning. He action she took was well within the mission and purposes 7 ThN Mounn to Amend ituuan to Imervene and hbuon tar lave to File Addibonal Affidavit. June 23 1902 206
i of CCMN.8 lier general authority to act on behalf of CCMN without immediate express authority should be inferred - at least pending CCMN approval. One j
of the important purposes of having corporate officers is to act broadly for the corporation within its charter and bylaws without express consent. Under this theory, Ms. Marucci would be empowered to intervene on behalf of CCMN until i
CCMN's official approvr.: or disapproval.
Second, even assuming that the policies of CCMN did not permit Ms.
Marucci to bind CCMN on May 28, CCMN's June 23 petition plainly ratified that act. The effect of ratifict' ion by a principal of its agent's previous acts is l
to adopt those acts as the principal's own as of the time the agent acted.
The tenuous nature of the May 28 intervention petition could not injure Licensee, nor is it offensive to orderly intervention procedure. NRC intervention.,
rules provide for later-filed intervention pleadings as a matter of course. 10 C.F.R. 62.714(a)(3). Licensee and the NRC Staff were timely apprised that CCMN was a likely player in the proceeding.
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We rule that Ms. Marucci's May 28 intervention for CCMN was valid and i
timely on May 28 but voidable at the option of CCMN. CCMN supported the i
petition on June 23. CCMN's petition is timely.
V.
STANDING TO INTERVENE A.
General Principles Not everyone has a right to intervene in NRC proceedings. This is funda-
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mentallaw. It derives from section 189(a)(1) of the Atomic Energy Act which states that the " Commission shall grant a hearing upon the request of any per-son whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding."
l The intervention rule implementing section 189 of the Act provides that "[a]ny l
person whose interest may be affected by a proceeding and who desires to participate as a party shall file a written petition for leave to intervene." 10 C.F.R. 6 2.714(a)(1). Section 2.714(a)(2) states that such petitions:
shall set forth with panicularity the interest of the petitioner in the proceeding, how that interest may be affected by the resuhs of the proceeding. including the reasons why petitioner should be permitted to intervene. with panicular refereme to the factors in paragraph (d)(1) of this section. and the specific aspect or aspects of the subjea matter of the proceeding as to which petitioner wishes to intervene.
s See Anir.lcs of Incorporauen anaded to the June 13.1992 CCMN mouans.
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J Under section 2.714(d)(1), a petition for leave to intervene must also address the following factors:
(i) he nature of the petiticner's right under the Act to be made a pany to the proceeding.
(ii) he nature and cuent of the petitioner's propeny. financial. or exher interest in the grocmling.
(iii) He possible effect of any order that rnay be ernered in the proceeding on the 1
petitioner's interest.
De Commission has applied judicial concepts of standing in determining whether a petitioner has sufficient interest in an NRC proceeding to be entitled i
to intervene. It has been generally recognized that these judicial concepts involve a showing that "(a) the action will cause ' injury in fact' and (b) the injury is arguably within the
- zone of interests' protected by the statutes governing that proceeding." Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21,30 NRC 325, 329 (1989), citing Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27,4 NRC 610,614 (1976); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327,332-33 (1983). These principles have most recently been reaffirmed by the Commission in Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2, 35 NRC 47, 56 (1992).
B.
Causation and Standing Amendment proceedings initiated by NRC licensecs where the amendment is designed to improve safety seldom create intervention issues. His is because there must be a causal nexus between the licensing action in issue and any injury in fact. In their respective answers to the initial petitions, Licensee and the NRC Staff seemed to argue that, if the amendment reduces risks from the pre-amendment condition, the amendment itself cannot cause " injury in fact" within the scope of the notice of opportunity for a hearing. The Board could find no decisional precedents for this position.
Herefore in our Order of July 29,1992 (LBP-92-17, supra), we requested the participants to answer questions about the injury-in-fact and causation issue. In answering, they were to assume that the amendment simply imposes additional restrictions on the use of the Unit 2 fuel pool and therefore would not increase risks from the pre-amendment condition. To better focus the analysis, we requested the pleaders to assume even that the amendment actually decreases the risk of offsite releases from a spent fuel pool accident at Unit 2.
The key question, No.1, was:
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Assuming as above stated, coulJ an allegatinn that the technical specifications, as amended, 3
do not bnng the spent fuel pool up to the licensing basis and do not satisfy NRC enticality I
requirements, establish injury-in-fact? In simpler terms, can nearby IYtitioners suff er injury-in-facs fran postulated offsite releases if the amendment increases safety, but not enough?
36 NRC at 26?
With respect to the first part of Question No.1, the Staff answered:
Yes. A specific allegation, meebng the requirements of 10 C.F.R.12.714(b)(2), that a spent fuel pool's enticality requirements were not being met, would raise sufficient public health and safety conarns to constitute injury-in-fact, since this would call into question the adequacy of a safety margin. [fbotnate ornitted] To establish standing to intervene in a particular proceeding, as distinguished from a generic matter applicable to all plants, a petitioner would have to show possible harm to one or more of its protected interests arising i
i from a spent fuel pool's criticality requirements not being met Staff Answer at 3-4.
Addressing the second part of the question, the Staf f added that"if a petitioner
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could show that a license amendment, while improving safety, left a plant system l
outside its design basis, this would constitute injury-in-fact." Id. at 4 4
However, the Staff also cautioned that " nearby petitioners would have to l
show a causal relationship between the licensing action at issue and harm to their protected interests in order to establish their standing to intervene." Id.
"Ihe Staff went on to argue that CCMN has failed to make this showing, Id. at 10-11.
j Licensee argues that the issuance of a license amendment imposing restric-tions designed to increase safety cannot cause injury in fact Licensee's position can be summed as follows:
While it is true, under the hyputhesis of Question 1, that se patential <xmmrn is not rectified by the license amendment, neither is it caused by the license amendment. Er standing, the licensing action (is., issuance of the license amendment) must cause the injury in fact.
ICitation omitted.1 In our case, a prior calculational error, not the Amendment at issue, I
caused a reduced margin of safety. Ihc Amendment itself will na cause an injury, and in fact is intended to reduce the risk of potential offsite exposures.
Licensee's Answer at 20.
Licensee argues further that the issue of whether the amendment will return the spent fuel pool to the design-basis level of safety is simply not before
'Qaesnan No.2 asked what n: lief would be available imm post. amendment nsks to nearby residents 'if Question No. I as answered in the negative. Qaesuan No. 3 alluded to a duassian of the "no significant hazards emsiderstawi' pmmdures where the Cammission provided cammpics of amendmasts that are considered 1.kcly, and examples that are considered unlikely to involve significant hazards considera6ans. 36 NRC at 26 At n.4 cu4ng Final Pmcedures and sandards an No stEnificant Hazards Consideration, $1 Fed Reg 7744,7751 (Mar.
6,19s6). Based upon Ucensee's and staff's answes, we agree that Qacadon No. 3 is not relevant.
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the Board; that the Commission alone has the authority to define and to limit the scope of a proceeding under section 189(a) of the Atomic Energy Act.
Licensee's Answer at 2122, citing Bellotti v. Nuclear Regulatory Commission, 725 F.2d 1380 (D.C. Cir.1983).
He Bellotti decision turned on the issue of where the authority to define the scope of a proceeding lies; that is, does it lie with a petitioner or with the Commission? The petitioner in Bcilotti, the Attorney General of Massachusetts, appealed the Commission's denia' of his petition to intervene in a proceeding to determine whether a Commisson enforcement order to the Pilgrim Nuclear i
Station licensee should be. sustained. That order, issued by the NRC Staff, directed the licensee to develop a plan to improve management functions. Id.,
725 F.2d at 138182. Auorney General Bellotti challenged the adequacy of the correc tive action ordered by the Commission and requested intervention on that issue.
Part of the discussion in Bellotti seemingly supports Licensce's argument that intervention must be denied here:
he Commissian's power to timit the smpe of a pmceeding will lead to denial of intervennon only when the Cummissian amends a license to require addidonal or better safety measures.
hen, one who... wishes to h6 gate the need for still more safety measures, perhaps 1
includmg the closing of the facility, will be remitted to Section 2.206's petition procedures.
l Licensee's Answer at 21-22, citing Bellotti,725 F.2d at 1383. But the Pilgrim enforcement proceeding discussed in Bellotti was unlike the license amendment proceeding here.
As Licensee here notes, the Pilgrim order considered in Bellotti had narrowly defined the scope of the proceeding to encompass only the question of whether the order imposed by the Staff on the Pilgrim licensee should be sustained, nis is typical language in license-modification enforcement actions brought by the NRC Staff. Ilowever, in the instant proceeding, it is the Licensec, not the Staff, who seeks the amendment. ne Notice of Opportunity for licaring on Amendment 158 places no express restrictions on the issues to be raised in j
a respective hearing. Any hearing must, of course, be within the scope of the Amendment 158 notice. That notice describes the scope simply as "with respect to issuance of the amendment. 57 Fed. Reg. at 17,934-35.
Fatal to Licensce's argument is the fact that, in Bellotti, the Attorney General's petition was in response to the Notice of an Order Modifying License which offered a hearing to the Pilgrim licensee, but to no one else." The Pilgrim licensee did not request a hearing. Bellotti,725 F.2d at 1835. IIere the petitions are in response to the notice of an opportunity to petition for a hearing Norder Mmhfymg ticenne rffective immediatcJy. 47 red. Reg.4171. 4173 (Jan.18.19s2).
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and to intervene in a proceeding brought about by the Licensee's application for Amendment 158. De opportunity to intervene was expressly afforded to anyone whose interests may be af fccted by the proceeding, specifically petitioners under l
10 C.F.R. 6 2.714. 57 Fed. Reg. at 17,934-45.
Despite the peripheral discussion by the Court of the nature of the issues that do not support a request for intervention, see p. 210, supra. the essence of Bellotti was simply that the Commission, as it deems best, may offer a hearing to potential petitioners or leave them to seek redress under 10 C.F.R. 5 2.206.
Also related to the Licensce's causality arguments, is "the companion man-
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date that the injurv is 'likely to be redressed by a favorable decision in the proceeding.' Scabrook, CL1-91-14,34 NRC at 267." Licensec's Answer at 19.
According to Licensec, if the licensing action challenged in the proceeding is not the cause of the potential injury, a favorable decision cannot redress the injury. Thus, in a license amendment proceeding limited ia scope to whether the amendment should be issued, a decision in favor of the petitioners (i.e., to not issue the amendment) would not redress Lie potential injury.
We do not believe that the Notice established the scope of the proceeding to be as restrictive as "whether the amendment should be issued," as Licensee states. But, practically speaking, denying the amendment may be the outer reach l
of any order the Board might issue in the proceeding. Ibr the sake of argument, we accept the premise.
We return to Licensee's argument that it was the prior calculational error, not l
the amendment, which caused a reduced margin of safety, therefore any injury in fact. Dat argument depends too heavily on compartmentalized reasoning. The potential for reduced safety here (injury in fac0 is both the prior calculational error and an amendment that does not redress that error but permits operation of the spent fuel pool according to its terms. De two concepts are logically inseparable.
Assuming that the record of the proceeding were to demonstrate that the risk from the calculational error is not abated by Amendment 158, interested persons may have redress by a denial of that amendment." True, as Licensee states, that action would not correct the prior calculational error, but it would remove the l
authority to operate the spent fuel pool under an inadequate amendment. Such a denial wottid return the matter to the Licensee and the NRC enforcement staff for a proper resolution of the problem.
u in the real wwld of NRC adjudicadons, applicants rm licenses and amendments m licenses accept modificanon as a cond26an of issuance. seld<mn are NRC adjudicators faced wnh an up or down choice.
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C.
Standing Based upon Proximity Often in NRC proceedings, whether a petitioner would sustain an " injury l
in fact" as a result of an action covered by a proceeding has been determined by whether the petitioner lives or engages in activities near the nuclear plant in question. Thus a petitioner may demonstrate the potential for injary if the petitioners live, work, or, as here, have children in school, in an area that might be affected by the release of nuclear radiation from the plant. A leading case on this point is Virghia Electric and Power Co. (North Anna Nuclear Power Station, Units I and 2), ALAB-522,9 NRC 54,56-57 (1979), where i
the proceeding involved a proposed operating license amendment that would j
authorize the expansion of the spent fuel pool capacity. There the Appeal Board would not rule out as a matter of law derivative standing where a member of the petitioning organization lived about 35 miles from the facility, and wherc another member lived 45 miles away but engaged in canoeing in close proximity to the plant. Id. at 57.
Also, in North Anna, the Appeal Board noted that it had newr required a petitioner in close proximity to a facility in question to specify the:
causal relationship between injury to an interest of a petitioner and the possible results of the proceeding [ footnote omined). Rather, close proximity has always been deemed to be enough, standing alone, to establish the requisite interest.
i Id. at 56, citing, e.g., Gulf States Utilitics Co. (River Bend, Units 1 and 2),
ALAB-183,7 AEC 222,223-24 (1974), and cases there cited. Sce also Armed Forces Radiology Research Institute (Cobalt-60 Storage Facility), ALAB-682, 16 NRC 150,154 (1982).
However, as the Commission noted in St. Lucie, supra, cases conferring standing based on a specific distance from the plant" involved the construction or operation of the reactor itself, with clear implications for the offsite environment, or major alterations to the facility with a clear potential for offsite consequences."
i CL1-89-21, supra,30 NRC at 329. The Commission contrasted such cases with l
those involving minor license amendments: Absent situations involving such obvious potential for offsite consequences, a petitioner must allege some specific
' injury in fact' that will result from the action taken...." Id. at 329-30 i
(emphasis added).
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D.
Whether CCMN Ilas Derivative Standing Both the Licensee and NRC Staff acknowledge that an organization may establish injury in fxt and standing to intervene if it represents and identifies members who have such injury and standing.22 f ir. Pray is a member of CCMN and authorizes that organization to represent him. He lives within 5 miles of Millstone. lie is worried about an accident at j
the MilNtone 2 spent fuel pool and is concerned that Amendme'11158 does not protect him and his farni'y. He is particularly concerned about offsite releases reaching him and his family by the groundwater pathway. Lett(rs, May 29 and July 2,1992.
Ms. Griffiths is a member of CCMN and authorizes CCMN to represent her in this proceeding. She lives about 1.5 miles from Millstone, and her children attended school 2 miles from the plant. She too is concerned atx)ut a spent fuel pool accident and shares Mr. Pray's concern that Amendment 158 does not afford safety to her and her family. Letter, June 29,1992.
3 Mr. Sullivan is " associated" with CCMN and acthorizes that organization to represent him. Ile lives 3 miles from the plant and his children attend school 2 miles from the plant. Ile is concerned about inadvertent criticality at the spent fuel pool. Ietter, July 6,1992.
If Mr. Pray, Ms. Griffiths, or Mr. Sullivan have demonstrated injury in fact from the proposed licensing action in their own right, CCMN has derivative standing to intervene. As noted above, we learned from the Commission's decision in St. Lucie, supra, that "[a]bsent situations involving such offsite potential for offsite consequences, a petitioner must allege some specific
- injury in fact' that will result from the action taken." Id. 30 NRC at 329-30. In other words, we may not infer injury in fact solely from proximity to the facility unless the licensing action implies such potential.
In this case CCMN, through its members, meets both St. Lucie standards, i.e., injury in fact may be inferred and they allege such injury.
They and their families reside and live very close to the facili*y. As Licensee reported in the LER,"[t]he safety consequenccs of the Icalculational error] is a potential uncontrolled criticality event in the spent fuel pool." LER, supra, i
at 3. As discussed in St. Lucie, such an event presents " clear implications for the offsite environment." Although the corrective redesign of the pool may not be regarded as a " major alteration to the facility," operation authorized by an amendment that fails to correct a calculational error carries with it "a clear potential for offsite consequences." This injury in fact is inferred from proximity to the plant.
12NRC staff Answer at E, cisag. a g Warsh v. 3,14n. 422 U.s. 490. 511 (1975), ticemee's Answer at 28 c4reng, e g.1'brida Pcarr and Light Co. (Turkey hiint Eclear Generstmg I'lant. Uists 3 and 4). AIAB-952.33 NRC 521. 529 (1991).
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1 llowever, even if such were not the case, the petitioners meet the second i
Sf. Lucie test. They have specifically alleged concerns that, if well founded, constitute injury in fact. One must look to CCMN's contentions to determine whether the concerns are well founded.
We find that by virtue of injury in fact, both inferred and as alleged by CCMN members, CCMN has standing to intervene in this proceeding.
VI. CONTENTIONS l
i A.
General Principles 1'
As pertinent here,10 C.F.R. { 2.714(b) provides:
(2) Eas contentico rnust consist of a specific statement of the issue of law or fact to be raised or cmtrovened. In addition, the petitioner shall provide the following information with respect to cad contendon:
(i) A brief explananon of the bases of the contention.
(ii) A concise statement of the alleged facts or expen opinion which support the contention and on whid the petitimer irnends to rely in prcwing the contention at the hearing, together with references to those specific sources and documents of which the pc66aner is aware and on whid the petitimer intends to rely to establish those facts or capen opinion.
(iii) Sufficient information (whi& may include information pursuant to paragraphs (b)(2)(i) and (ii) of this sec6an) to show that a genuine dispute exists with the applicant m a material issue of law or faa. His showing must include references to the specific j
ponions of the application (including the applicant's envirmmental report and safety report) l that the peti 6aner disputes and the supporting reasons for cad dispute, or, if the petitioner j
believes that the applica6on fails to contain informanan on a relevant matter as required by law, the identification of each failure and the supponing reasons for the petinones's belief.
54 Fed. Reg. 33,168, 33,180 (Aug.11,1989).
The Statement of Considerations for the rule, as amended in 1989, provided additional explanation:
His requirement [to provide information] does not call upon the intervenor to make its case at this stage of the proceeding, but rather to indicate what facts or expen opinions, be it one fact or opinion or many, of which it is aware at that point in time which provide the basis I
for its contention.
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In addition to providing a statement of facts and sources, the new rule will also require i
intervenors to submit with their list of catentions sufficient information (which may include the known significant facts described above) to show that a genuine dispute exists between the peu6aner and the apphcant or licensee on a material issue of law or fact. his will require the intervenor to read the peninent ponions of the license application,includmg the Safety Analysis Repon and the Environmental Report, and to state the applicant's position and the petitioner's opposing view. When the intervenor bc.lieves the application and supporting 214
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1 material do not address a relevant matter,it will be sufhcient to explain why the application i
is dc5cient.
l 54 Fed. Reg. 33,170.
l ne Licensec especially directs our a"ention to the Commission's decision in Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1,2, and 3), CL1-91-12,34 NRC 149 (1991). There the Commission reversed a licensing board decision that had applied rules of construction to infer a challenge by a petitioner when none was explicitly stated.25 The Commission j
stated that section 2.714(b)(2) (i)-(iii) is to be interpreted strictly: "If any one of these requirements is not met, a contention must be rejected." 34.NRC at 155 (citing the Statement of Considerations,54 Fed. Reg. at 33,168,33,171).
B.
CCMN's Contentions l
CCMN submitted four contentions.24 Only Contentions 1 and 2 are arguably
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within the scope of the proceeding on Amendment 158.
1.
Contention 1 That there is no basis for the NRC to coraend that no signi6cara risk is involved in the issuance of the design change that was issued to address the criticality errors found at Millstone 2.
CCMN explained that Contentions 1 and 2 were supported by additional
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Sections A, B, and C and by the attached affidavits of Dr. Gordon Thompson and Dr. Michio Kaku. Id. Contention 1, it turns out, depends entirely i;pon the i
affidavit of Dr. Kaku, which we deem to be a part of the contention itself.25 Sections A, B, and C of the CCMN Contention pleading and the affidavit of Dr.
Gordon Rompson were of no value in explaining either Contention 1 or 2.
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33 Ariwas ruhtic Service Co. (Palo Verde Nacicar Generanna tadon Uruts 1. 2. and 3). IEP-91-19. 33 NRC s
397 (1991).
34CCMN's "r1NAL VERsloN" of its cornenuans dated August 24.1992. and scrved september 8.1992. was struck by Board order. Note 5.mera Contennons covered by this order were also dated August 24.1992,and i
were served by the of5cc of the secretary (far CCMN) on August 28.1992.
15 1n requesung an catension of nrne to Ele comendons.CCMN caplained that its caperts would actually be Glir g i
the contendons. CCMN Inter. August 12.1992, at 1. Consistent with that plan. CCMN's contennans are terne desenpnons of its concern wi6le the essence of the contenunns were set out in the capens* affidavits.
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a.
Dr. Kaku's Affidavit Dr. Michio Kaku is a full pmfessor of theoretical nuclear physics at the Graduate Center of the City University of New York and the City College of New York. He received his Ph.D. in theoretical physics from the Lawrence Livermore Radiation Laboratory at the University of California, Berkeley. Kaku Affidavit, j 1. lie discusses the calculational errors and corrective measurements pertaining to Amendment 158. Id.,115-12.
Licensec, however, does not even refer to Dr. Kaku's discussion except to i
state that-The " Background" material. mcluding the accompanying affidavits, obviously asserts a great roany purported problems with the spent fuel pool design and the accident analyses used to support that design. Ilowever,these concerns are never coherently articulated in a contention.
It is nos incumbent upon either the Licensee or the Licensing Board to canb through the material provided by a would-be interverer to fmd what are the "real" proposed cmtentions.
Licensee's Answer at 50-51.
Licensec's failure to address Dr. Kaku's affidavit on the grounds that it i
required too much effort deprived the Board of the benefit of its views on important aspects of CCMN's case. As we explain below, the affidavit was well organized. 'Ihe Board did not have to " comb" through it to locate the relevant sections.
Dr. Kaku begins with his understanding of the fuel pool rearrangement (Kaki Affidavit,12); accurately describes Licensee's main argument in the proceeding (id.,13); and states that he will address three main areas including "(a) reanalysis of the criticality study, showing that the calculation of neutron reactivity may not be as rigorous as previously thought" (id.,5 4).
Dr. Kaku, next clearly identified his discussion as "Ermrs in Criticality Analysis." Id., ff.14. Then in consecutive, logically progressing paragraphs, Dr. Kaku explains exactly what may be wrong with the criticality analysis and why he believes that the analysis does riot adequately address all that should be addressed. Id.,115-12. His cohesive discussion tracks the amendment application and raises a genuine dispute with Licensee as to the Amendment 158 criticality analysis. Id.
As noted above the Commission has stated,"[w] hen the intervenor believes the application and supporting material do not address a relevant maner, it will be sufficient to explain why the application is deficient." 54 Fed. Reg. 33,170.
Contention 1 must be considered with this guidance in mind.
Dr. Kaku provided a summary of his concerns:
1he pevic ar reactivity study by CE done on the spent fuel pool was in error by 5%,
mainly becam of the difficuhy in modeling the Horoflex boxes by the neutron diffusion equation. I aru not convinced that the neuer neutnm reactivity study is sensitive enough to 216
truly calculate the effect of neutron aburption by the Horoflex texes. especially tecause d the degradaticsi and unexpecsed erosion of the bones (whose full catent has never been determined by the utility). 'Ihe neutron reactivity calculations using Monte iCarlo! techniques studies have inherent uncertainties in them (given the assumplicris inherent within the mcxic!)
that may be too large to make rehable estimates of K,g for the fully loaded pool.
Kaku Affidavit,130.
b.
Summary and Proposed issues Regarding Co~:en: ion 1 Dr. Kaku's main argument is that Licensce's belief that the rearrangement can only reduce the pool's storage capacity and hence make the pool less dangerous, represents premature optimism. Id.,14. More information is required. Id.,
passim. A reanalysis of the criticality study is needed and should address the following issues:
1.
What is the actual state of the Boroflex box degradation, and what is the corresponding disposition of the water gaps? Id.,18. According to Dr. Kaku, the licensee examined only 16% of the Boroflex boxes.
Id.,17.26 If the sample is not representative, the gaps may be larger than expected, or locally concentrated. A concentration of gaps would cause local enhancement of the neutron distribution with an effect of increasing K.r 2.
To what extent are the benchmark data used by the Licensec representative of the arrangement of Boroflex boxes, fuel toxes, and water in the storage pool? Id.19.
3.
Ilave the Monte Carlo calculations incorporated enough iterations to provide a good estimate of the pool's reactivity? Id., j 10(d).
4.
If a vertical buckling term has been used, has it been used correctly? Id., j 10(c).
The foregoing summary and proposed issues will constitute a basis for discussion at the forthcoming prehearing conference.
The Staff argues that Dr. Kaku fails to specify how the Licensec's revised criticality calculations are not conservative, or how gaps concentrated in certain areas would significantly affect the calculations. Staff Answer at 19. Dr.
Kaku states that one suspects that an unusually large number of iterations will be necessary to provide any reasonable approximation. Kaku Affidavit, j 10.
The specific claim is that barring an unusually large number of iterations the 16 Apparmily. Dr. Kaku is mistaken about the sampling The NRC staff nenm that the defect rate is 16%
De sampling consisted af appmximately half of the poisoned rack cells. staff Answer at 19, cinng 1.insee's Applicadon. Attachment 2. at 1-3.
If Dr. Kaku agrees that he is mistakm we capect him to pnunptly inform the Board and parues. through CCMN. whether the ema changes his conclusions.
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4 calculation of K, will be uncertain. Tiere is no indication that Dr. Kaku expects the estimated value to be biased in one direction or the other, simply that it will be uncertain. Dr. Kaku points out that a local concentration of gaps j
in the Boroflex will lead to a local distribution of neutrons much higher than the computer calculation for the entire pool. Id. t 7. This is a well-known phenomenon; and clearly a high local concentration of neutrons near a group of fuel boxes would affect the calculation.
t c.
Significant Risk Versus N511C Determination Both the Licensee and the NRC Staff construe Contention I as a legal argument challenging the Staff's authority to make a "No Significant Hazards Consideration" (NSHC) determination. To support this construction, howcVer, cach asserts that CCMN intended to say "no significant hazards consideration" in the language of the pertinent NSTIC regulations, rather than "no significant I
risk" as the contention states. Licensce's Ansur at 49-50; Staff's Answer at 16-17.
We have learned from the Commission's decision in Palo Verde, CL1 12, supra. that a licensing board may not infer missing thoughts to find that a
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contention is acceptable. 34 NRC at 155. By the same reasoning, the Board i
may not impute different wording to a contention in order to reject it. More important, the entire tenor of Contention 1, as explained by Dr. Kaku, is a factual expression of concern about risk. The contention is void of the legal meaning ascribed to it by Licensee and the Staff.
d.
Dr. Thompson's Afidavit Dr. Gordon Thompson's affidavit (apparently in support of Contention 1) generally advocates alternative means of storing spent fuel such as onsite dry.
cask storage. Thompson Affidavit at 1, attached to CCMN Contentions. His discussion is entirely beyond the scope of Amendment 158. That amendment does not bring into question whether the use of pool storage is generally appropriate for Millstone 2. Dr. Thompson does not cite any NRC requirements l
for dry-cask storage in any event.
Contention 1 is accepted based upon Dr. Kaku's affidavit.
2.
Contention 2 J
hat an environmental and health study needs to be done so we can know the effects from releases of varying amounts of the current allowable radioactive inventory of the spent fuel pool.
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r We look to Dr. Kaku's discussion of " Maximum Credible Accidents" to determine wh:ther Contention 2 raises an issue suitable for hearing. Kaku Affidavit, ff.112, (( 13-28. Dr. Kaku starts out wc!! enough by stating: "{t]he rearrangement advocated by NU will increase the fission product inventory of the f
l spent fuel pool, so it is vital that one analyze the maximum credible accident."
14., t 13. Ilis argument fails, however, when he challenges the original FSAR design-basis accident. Id., 1114-28. He makes no further connection between Amendment 158 and the FSAR accident. Id. We agree with the Licensee that we may not revisit the original exploration of environmental issues without some showing that the amendment itself would result in significant effects. Licensee's Answer at 52-53. Contention 2 is rejected.
l t
3.
Contention 3 l
nat the removal of requirements for neutrun flux momtors in the Millstone spent fuct pool was improper in light of the fact that before the license amendment was issued to allow no inpml criticality monitors the NRC was aware that the enticality safety margins were being questioned. Derefore we contend that without criticahty monitors in that pool wt will have i
no prior warmng if a dangerous neutron multiplication were to occur.
CCMN has not explained how neutron flux monitors relate to Amendment 158. See CCMN Contentions, Sections A, B, and C. We have examined l
Licensee's amendment papers and the Staff's SER and can find no connection.
CCMN has not correlated its discussion with the amendment papers. CCMN seems to be referring to an event before Amendment 158. See Licensec's Answer i
at 53-54. The Staff argues that the issue is beyond the scope of the notice of
[
opportunity for hearing. Staff's Answer at 19-20. We agree. Rcre is no basis for admitting Contention 3. It is therefore rejected.
l 4.
Contention 4
\\
l hat immediate action should te taken to stop NU fr<wn cuntarmnating the new steam generators until our concerns for the safe storage of the spent and new fuelis addressed.
Contention 4 is clearly beyond the scope of the proceeding on Amendment ISS and is, therefore, rejected.
VII. ORDER l
l A.
CCMN Contention 1, based upon the respective parts of Dr. Kaku's l
affidavit, is admitted to be heard in this proceeding.
219 l
B.
CCMN's petition is granted and CCMN is admitted as a party to the proceeding.
C.
A hearing is ordered. A notice of hearing and notice of prehearing conference will be issued.
D.
De petitions for leave to intervene and requests for hearing submitted by Patricia R. Nowicki, Michael J. Pmy, Rosemary Griffiths, Joseph M. Sullivan, Don't Waste Connecticut, and Frank Lo Sacco are wholly denied.
VIII. APPEALS A.
Appeals from this Order to the Commission may be taken in accordance with the provisions of 10 C.F.R. [2314a.
B.
De Nowicki, Pmy, Griffiths, Sullivan, Don't Waste Connecticut, and to Sacco Ittitioners may appeal on the question whether each of their petitions should have been granted in whole or in part.
C.
The Licensec. Nonneast Nuclear Energy Company, and the NRC Staff may appeal on the question whether the petition of Co-operative Citizen's Monitoring Network should have been wholly denied.
I D.
Appeals shall be asserted by the filing of a notice of appeal and l
accompanying supporting brief within 10 days of the service of the order from which the appeal is taken.
E Any other party may file a bnef in support of or in opposition to the appeal within 10 days after the service of the appeal.
THE ATOMIC SAFETY AND LICENSING BOARD Charles N. Kelber ADMINISTRATIVE JUDGE 1
l Jerry R. Kline ADMINISTRATIVE JUDGE Ivan W. Smith, Chairman ADMINISTRATIVE JUDGE l
Bethesda, Maryland l
September 30,1992 4
220