ML20035C202

Nuclear Regulatory Commission Issuances for December 1992. Pages 351-396

ML20035C202
Person / Time
Issue date:	03/31/1993
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V36-N06, NUREG-750, NUREG-750-V36-N6, NUDOCS 9304060309
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NUREG-0750 Vol. 36, No. 6 Pages 351-396 NUCLEAR REGULATORY COMMISSION ISSUANCES i December 1992 i .e - This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM). i The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independent legal significance. l j U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Freedom of information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)

t i r I 'I i t I t .t COMMISSIONERS t i Ivan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick l i E. Gail de Planque i f f J* i i i r i S. Paul Cotter, Jr., Chief Administrative Judge, Atomic Safeff and Licensing Board Panel P i i f I 1 [ t ? i

CONTENTS Issuance of the Nuclear Regulatory Commission PIPING SPECIALISTS, INC., and FORREST L. ROUDEBUSil, dh.a. PSI INSPECTION, and d.b.a. PIPING SPECIALISTS, INC. (Kansas City, Missouri) Dockets 030-29626-OM&OM-2 (License Revocation, License Suspension) (Byproduct Material License No. 24-24826-01) MEMORANDUM AND ORDER, CLI-92-16, December 1,1992... 351 Issuances of the Atomic Safety and Licensing Boards ADVANCED MEDICAL SYSTEMS, INC. (One Pactory Row, Geneva. Ohio 44041) Docket 30-160.' ~ >M (ASLBP No. 87-555-01-OM) (Decommissioning Order) MEMORANDUM AND ORDER, LBP-92-36. December 14, 1992... 366 BABCOCK AND WILCOX (Apollo, Pennsylvania Fuel Fabrication Pacility) Docket No. 70-135-DCOM (ASLBP No. 92-667-03-DCOM) (Decommissioning Plan)(Marcrials License No. SNM-145) MEMORANDUM AND ORDER, LBP-92-35, December 10, 1992... 355 GEORGIA POWER COMPANY, et al. (Vogtle Electric Generating Plant, Units 1 and 2) Dockets 50-424-OLA-3,50425-OLA-3 (ASLBP No. 96-671-01-OLA-3) (Rc: License Amendment) (Transfer to Southern Nuclear) MEMORANDUM AND ORDER, LBP-92-38, December 24, 1992... 394 TEXAS UTILITIES ELECTRIC COMPANY, et al. (Comanche Peak Steam Electric Station, Unit 2) Docket 50-446-CPA (ASLBP No. 92-668-01-CPA) (Coretruction Pennit Amendment) MEMORANDUM AND ORDER, LBP-92-37 December 15,1992.. 370 iii

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m. _ I i Ci:e as 36 NRC 351 (1992) CLi-92-16 'j t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i COMMISSIONERS: t Ivan Selin, Chairman Kenneth C. Rogers l James R. Curtiss l Forrest J. Remick E. Gail de Planque I in the Matter of Docket Nos. 030-29626-OM&OM-2 (License Revocation, License Suspension) t (Byproduct Material License No. 24-24826-01) PIPING SPECIALISTS,INC., and FORREST L ROUDEBUSH, d.b.a. PSI INSPECTION, and 3 d.h.a. P! PING SPECIALISTS, INC. { (Kansas City, Missouri) December 1,1992 7 t t i "Ihe Commission denies the Licensee's petition for review of the Atomic l Safety and Licensing Board's Final Initial Decision, LBP-92-25, which sus- [ tained Staff's order revoting Licensee's byproduct material license, lccause the Commission finds no clear error or other substantial questions of law or pobey that would warrant Commission review pursuant to 10 C.F.R. 6 2.786. COMMISSION PROCEEDINGS: PETITIONS FOR REVIEW In determining whether to grant, as a matter of discretion, a petition for review of a Licensing Board order, the Commission gives due weight to the i existence of a substantial question with respect to considerations set forth in 10 C.F.R. 6 2.786(b)(4). i t 351 l' t l i i I I t

1 i 1 MEMORAliDUM AND ORDER De Atomic Safety and Licensing Board (Licensing Board) issued a Final Initial Decision on September 8,1992, which sustained the Nuclear Regulatory Commission (NRC) Staff's order revoking the byproduct material license issued to Piping Specialists, Inc. (Licensee or PSI). LBP-92-25,36 NRC 156 (1992). + ne Licensee filed a petition for review of this order pursuant to 10 C.F.R. j $ 2.786. Staff opposed the }a:tition. Upon consideration of these pleadings and the record of this proceeding, the Commission fmds no clear error or legal or l9 procedural issue requiring our review. Rus. the U,censee's petition is denied. On October 17, 1991, the Staff is ued 6 immediately effective order i suspending PSI's byproduct material licenst for alleged violations of NRC I regulations and license conditions, including deliberate falsification of utilization f logs, providing false oral information to the NRC, and several other violations which collectively demonstrated a lack of effective oversight of the Licensee's radiation safety program. Sec 56 Fed. Reg. 55,514 Oct. 28,1991). Relying ( on a completed investigation into the Licensee's alleged misconduct, the NRC l Staff issued another vrder continuing the suspension and revoking the license [ on April 22,1992. The order more precisely identificet the involvement of Mr. 1 Roudebush, the Licensee's president, in the violations alleged in the original { suspension snier and also added an allegation that Mr. Roudebush engaged in a j conspi%:y with the Radiation Safety Officer (RSO) to lie to NRC investigators t during the taking of sworn statements by the investigators. See 57 Fed. Reg. 18,191 (Apr. 29,1992). An evidentiary hearing was held from April 28 to May 1,1992, and at that 1 hearing the parties presented evidence regarding both the original suspension order and the revocation order. Subsequent to the hearing, the revocation case was consolidated with the suspension case without objection from the parties. l De Licensing Board in its Final Initial Decision, LBP-92-25, supra, sustained t all of Staff's allegations, except for the conspiracy charge, and ultimately j sustained the revocation order. In determining whether to grant, as a matter of discretion, a petition for review of a Licensing Board order, the Commission gives due weight to the l cxistence of a substantial question with respect to considerations set out in 10 C.F.R. 62.786(b)(4). The considerations set forth in section 2.786(b)(4) are: (i) a clearly erroneous fmding of fact; (ii) a necessary legal conclusion that is j without governing precedent or departs from prior law; (iii) a substantial and i important question of law, policy, or discretion; (iv) a prejudicial procedural l crror; and (v) any other consideration decmed to be in the public interest. He Licensee argues, in essence, that three of the five considerations enu-j merated in section 2.786(b)(4) exist here, asserting that the Licensing Board i 352 i i I I e l 1

c 7 based its decision on clearly erroneous fmdings of fact, legal conclusions with- - out precedent, and prejudicial procedural errors. Licensee's Petition for Review at 1. De NRC Staff disagrees. According to NRC Staff, Licensee's arguments are not supported by the record developed in this proceeding and there exist [ no significant questions that would warrant Commission review. NRC Staff's j Answer Opposing Licensee's Petition for Review at 4. 7 We agree that the Licensee has failed to identify clear error or other substantial questions of law or policy that would warrant Commission review. Review of Licensee's assenion that the Licensing Board should have applied the " clear and convincing" standard rather than the preponderance-of-the-evidence standard in this case is not essential to sesolution of this proceeding. De Licensing-Board specifically pointed out that all of its findings were supponed by c! car and convincing evidence. LBP-92-25,.mpra,36 NRC at 186. Moreover, the i Licensing Board's decision includes a detailed analysis, including numerous ~ ! cites to the evidentiary record, in suppon of its findings. The Licensee has not demonstrated, and we do not find, any reason to take review of this determination. De Licensee also suggests that the Licensing Board applied an erroneous standard in determining the extent of an employer's liability for willful acts of its employees. Licensee argues that Mr. Roudebush should not have been held responsible for the willful acts of the RSO, Mr. Ilosack. liowever, the Licensing Board's du.sion contains ample suppon for revocation of PSI's l license, especially in light of Mr. Roudebush's own willful acts, his panicipation and acquiescence in a number of the violations, and his untruthful testimony during an NRC investigation and before the Licensing Baard.1 Moreover, we [ do not see any substantial question with respect to the adequacy of notice to the Licensee of the charges leveled against him. De Licensee has had a full opportunity to defend against the Staff's orders. We believe that license revocation is authorized by law and was well within the Staff's discretion. I i 3 Thus es leave tw anodar day our review of the quesnan of wheder e 1rense rney be revoked hascJ suidy ori wilfru!. ddibarste acts of an em;dayne inespective or the emplnyer's conduct. E 353 1 4 } f l i

-....., - -..~..~... -. .f ' i h Rx the reasons stated above,' the Licensce's petition for review of the Licensing Board's Final Initial Decision. LBP-92-25, is denied. It is so ORDERED. 1 Ibr the Commission.2 - l ? JOllN C. Iloi1E I Assistant Secretary of the Commission j a Dated at Rockville, Maryland, -{ this 1st day of December 1992. 4 I -t t -i I I I n o ~. [ i 1 t I i i -l a t,

I

.. t -i i i I i' 2 0mirman $ clin was not geesent far the affirmanon of dus order. If he had been present, he would have affirmed it b f 354 s f i t W r i i i a ,m

1 i l L i I 4 l l i I i ) i l I l i l Atomic Safety and Licensing I Boards issuances l i i I i I ATOMIC SAFET( AND UCENSING BOARD PANEL (/) O l B. Paul Cottet, Jr.,* Chief Administrative Judge l Robert M. Lazo,* Deputy Chief Administrative Judge (Executive) T Frederick J. Shon,* Deputy Chief Administrative Judge (Technicat) f O Members Q Dr. George C. Andersan James R Gleason* Dr. Kennem A. McCohom Chanes Bechhooter* Dt David L. Hetnok Marshall E. Miller 2 l Peter B. EMoch* Emest E. Hill Thomas S. Moorea I G. Paul Bollwerk 111* Dt Frank F. Hooper Dt Peter A. Morns Glenn O. Bnght Ei!:abeth B. Johnson Thomas D. Murphy * (/) ' Dr A. Dtxon Callihan Dt Walter H. Jordan Dr. Rohard R. Parnek l Dr. James H. Ca~penter* Ot Chades N. Ketber* Dr. Hany Rein i Dr. Rchard F. Cole

• Dr. Jerry R. Khne*

t. aster S. Rubenstein W

Dr. Thomas E. Elleman Dr Peter S. Lam

• Dt David R. ScNnk I

Dr. George A. Ferguson Dr James C. Lamb til Ivan W. Smith

• l Dr Harry Foreman Dt Emmeth A. Luebke Dr. George F. Tider

] l Dr Rchard F. Foster Mo-ton B. Margules* Sheldon J. Wolfe l l l l l l l I i l

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l i Clie as 36 NRC 355 (1992) LBP-92-35 i I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND UCENSING BOARD PANEL Before Administrative Judges: G. Paul Bollwerk, Ill, Presiding Officer 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) December 10,1992 The Presiding Officer denies a motion for reconsideration of LBP-92-31,36 NRC 255 (1992), finding the movants failed to establish that decision denying their motion for a stay was in error. RULES OF PRACTICE: INFORMAL IIEARINGS (MOTION FOR i RECONSIDERATION); MOTION TUR RECONSIDERATION { In accordance with 10 C.F.R. fi2.771, 2.1259(b), a dissatisfied litigant in a 10 C.F.R. Part 2, Subpan L informal adjudicatory proceeding can seek reconsideration of a final determination by the Commission or a presiding officer based on the claim that the particular decision was erroneous. RULES OF PRACTICE: MOTION FOR RECONSIDERATION A movant seeking reconsiderstion of a final decision must do so on the basis of an elaboration upon, or refinement of, arguments previously advanced, i 355 i i h ^ 5 s

i generally on the basis of information not previously available. Sec Central Electric Power Cooperariw Inc. (Virgil C. Summer Nuclear Station, Unit 1), CLI-81-26,14 NRC 787, 790 (1981) Tennessrc Valley Aut/writy (Hansville { Nuclear Plant, Units I A,2A, IB, and 2B), ALAB-418,6 NRC 1,2 (1977).- l RULES OF PRACTICE: MOTION FOR RECONSIDERATION A reconsideration request is not an occasion for advancing an enurely new i thesis or for simply reiterating arguments previously proffered and rejected. Sec j Summer, CLI-81-26,14 NRC at 790; lang Island Ligleing Co. (Shoreham Nuclear Power Station, Unit 1), CL1-88-3,28 NRC 1,2,4 (1988). -l .l RULES OF PRACTICE: INTERVENTION (INTEREST) l Individual legislators who seek to panicipate in NRC adjudicatory proceed-ings have standing to do so if they can show their personal interests are impacted by the particular licensing activity at issue; they do not have standing to rep-j resent their constituents' interests generally. Sec Combustion Engineering,Inc. l (Hematite Fue! Fabrication Facility), LBP-89-23,30 NRC 140,145 (1989). l RULES OF PRACTICE: INFORMAL IIEARINGS (PREMATURE ( REQUEST FOR STAY OF AGENCY LICENSING ACTION) i s Although a hearing petition regarding a matenals license amendment request generally can be filed as soon as an amendment application is submined to the agency, a request for a stay relative to that amend,rw ' application is not l appropriate until the Staff has taken action to grant the a. Snent request and to make the approved licensing action effective. Sec 10 C.F.R. 652.120$(c), (I), 2,1263. See also Long Island Liglaing Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-8,33 NRC 461,468 (1991). [ RULES OF PRACTICE: INFORMAL IIEARINGS (CONSIDERATION OF 10 C.F.R. I 2.206 PETITIONS) A nonadjudicatory request for relief under 10 C.F.R. 9 2.206 generally is not a maner within the province of a presiding officer in a Subpart L adjudicatory proceeding. t i 1 l 356 l' s h I t i P i r [

t + h MEMORANDUM AND ORDER [ (Denying Petitioners' Request for Reconsideration of Stay Denial Order) i In a November 22, 1992 submission 3 individual petitioners James and

{

Ilclen liutchison, Virginia Trozzi, Cynthia Virostek, and William Whitlinger { (Petitioners) have requested reconsideration W LBP-92-31,36 NRC 255 (1992). In that memorandum and order, tie Presidmg Officer denied the Petitioners

• October 9,1992 request for a stay of decommissioning activities authorized j

under Amendment No. 21 to the 10 C.F.R.Part 70 license of applicant Babcock l & Wilcox (B&W) for its Apollo, Pennsylvania fuel fabrication facility.. As j they did with respect to the stay request, in submissions filed December 4,

l 1992 B&W and the NRC Staff have challenged the Petitioners' reconsideration request:

In accordance with 10 C.F.R. (6 2.771, 2.1259(b), a dissatisfied lingant in [ a Subpart L proceeding can seek reconsideration of a final determination by i the Cornmission or a presiding officer based on the claim that ;he particular l decision was enoneous. A movant seeking reconsideration of a final decision must do so on the basis of an elaboration upon, or refinement of, arguments previously advanced, generally on the basis of information not previously available ' Against the backdrop of these controlling principles, it is apparent that i the Petitioners' reconsideration entreaty fails to demonstrate that the Presiding { ^ i Officer's stay denial determination was in error, and so must be denied.* L l i 3 I%:tnuans Raques isacarmdemne (Nov. 22,1992) iherema!ter Pentianes' Reconudersuan Rques4 2 g,, g;,,,,,,.a opposamn se Request for Reconsuleranan (Dec 4,1992)[hereirafw tuensce's Reconsaderstaan Response); NRC stafr Response to Petiuances' Request fu Raoonsideranan (Dec. 4,1992) [hesanafts sta!Ts Reconsidersuan Rasparme}. ) 3,n Csapet Elecair 1%er Cooperan=e. Jac. (Vugil C. Sununer Nuclear stanan, t} nit 1), QJ-81-2414 NRC 7 3 757,790 0951); Tennazer Fatiry Awhorstr Olansville Nuclear Piara,IJnits 1 A.2A,18, and 2B), ALAB 411,6 f NRC 1,2 09M "In sunnesung de Peuumers' recxswadarsdan request B&W arid um sun k.dpe the general escepnans that 0) a!! the d-- _., snater,als subnutied in suppurt of the Pennaners'sequest, wab the passible caucpnan of the newspaper snichs that consuums Enhlhis J, stmuld be disregarded as a tiasis for recormdersnan because they j were in emisierum and enuld beve boca provuled in support of thaar sisy snaum, and (2) the Petananers agam ? beve faued se provide ablavus in suppon of the faaual allegauses camamed in their sahibila. See ticansac's f Ramosidersnan Respmee at 3-5. siafra Racarmidersuan Resporus at 3,14. Both objectaans provide addinanal i gmunds far denyir.g the Peuumers'seconsiderade sequest Motetwer, a number of de INsnianes' clains omne { perGausly close so violanng the precept that a secansiderstaan request is not an occasaan far advancirig an arnirely new dusis ar far armply neiteranng arguments 3seviously proffered and 3rjeciad. 3er Summer, QJ41-26,14 [ NRC as 790t long Islanaflighting Co. (sharrham Nudcar Pbwur stanart, Unit I), C1J45-3,28 NRC 1,2,4 [i (19EF). Nanetheless, as is explaired Wra, a also is apparnin shst de hsaaanes* reparaderatuus clams and the accorntonymg ethihim fail to demonstraic shat the Prisuhng ofrecer's stay dernal decision sea ervoneous. ) 5 357 l l l l 1 l I l i n l

I L TIMELINESS ISSUES } A, licaring Petition Extension Request In LBP-92-31, the Presiding Officer found the Petitioners

• stay request was untimely because (1) it was not filed within the time limits specified in 10 C.F.R.

( 6 2.1263, and (2) the Petitioners had not made a specific request for an extension of the filing deadline 8 Regarding the second point, as an example that at least l some of the Petitioners apparently are aware that extension requests must be specific, in a footnote the Presiding Officer referenced letters dated September l 28,1992, and July 21,1992, from petitioner Virostek to the NRC Office of the Secretary and the Staff, respectively, concerning an extension of the date for filing a hearing petition.Ihe Presiding Officer further observed that this particular extension request was moot because the Petitioners, including Ms. Virostek, had filed a timely hearing request. i In seeking reconsideration, the Petitioners now claim that the stay denial decision inaccurately characterized petitioner Virostek's extension request as moot? The exact basis for their quarrel with this finding is not ahogether clear, Nonetheless, it is apparent that the hearing petition extension request provides no support for the Petitioners

• argument that their stay motion was timely. As was noted in LBP-92-31, this extension request did not contain any reference to a stay or an extension of the time for filing a stay.' Moreover, as was explained in LBP-92-31, the extension request clearly is moot.'

B. " Cease and Desist" Request. Also on the issue of timeliness, the Petitioners now present a May 11,1992 leuer written by petitioner IIelen liutchison to a member of the Sta!T asking i that the ager.cy order B&W to "ccase and desist" from its apparent intent to use certam crushing technology in decommissioning activities at the Apollo site.2' f 5 % NRC at 26142. h 6 14. at 20 n.11; ase twuanars' 5 " derm nt Esgunst,eth A. e 7 3ee Pennuners' Recensideranon Requem at 1. t "See M NRC a 2C all. 'See id. In uds negard, the Iwuc.ners sacen to suggen ist pennauer Varesui's eaur.saan roguem has name I contunng vitalny because it was made an behalf of her consutumts in har role as a barugh councilwanan. Ser Peduances' Reconsideranan Request at t. Individual icgislators who seek to parncipsie in NRC adjudacatory pracmedings have standMg to do ao if shey can show their gssanalintensts are irnpacted by the parncular hoensing i ac6vity at issue; they do nos have standmg to reprems thcar consutuesus' interess gawally. See Combairr.as j Tagiarering. Inc. Oternalise FuelIsbricauan Facihip), tJIP.39 23,30 Imc 140.145 (1989). By she same inkm. t peutioner Varand's sequest no canand the date for nhng a hearing petinan need be omsadered no more than an esurision request as: tur own behalf as an ineraned individual. As a ~-- y. when she riled a nrne!y t hmnna pedson along with the other iJividual peddrmers, her catensums esquest was sedered moat. See Peaidoners' Reconsideradan Request at 1. exh. B. [ 38 t 358 f i [ i ? L

. ~. 'I The Petitioners

• unstated premise is that, whatever the status of their October

-l stay fding, this Mry correspondence is itself an operative, timely stay request -[ i Although a hearing petition regarding a materials license amendment request generally can be filed as soon as an amendment application is. submitted to the agency, a request for a stay relative to that amendment application is not j appropriate until the Staff has taken action to grant the amendment request and i to make the approved licensing action effective." In this instance, the April 15, 1992 B&W license amendment application that ultimately was granted by the 5 Staff as Amendment No. 21 was pending but unapproved at the time of the May 1992 letter. Derefore, even if petitioner Hutchison's letter can be considered a stay request under 10 C.F.R. 9 2.1263, which is not at all apparent, that request was altogether premature and so without affecL*2 II. SUFFICIENCY ISSUES In addition to these timeliness matters, the Petitioners also challenge certain facets of the overall conclusion in LBP-92-31 that they failed to make a sufficient t i showing under the four-factor test speci5ed in 10 C.FR. il 2.788 and 2.1263, so as to establish their entitlement to'a stay. *fhe Petitioners

• additional arguments are addressed as they appear to relate to each stay factor.

i ] A. Factor One - Likelihood of Success on the Merits In attempting to establish a case under the first fxtor-likelihood of success on the merits -in support of their initial stay request the Petitioners made several broad claims regarding onsite and offsite radiological contarnination and l onsite chemical contamination. Rey asserted that these allegations established a likelihood that they would prevail on their charges that the Staff's Environmental l Assessment (EA) was inadequate to meet the requirements of the National 1 Environmental Policy Act of 1969 (NEPA). In LBP-92-31, the Petitioners

• showing with regard to each of these allegations was found to be iruhicquate to

.i 33See 10 CJ.R. Il 2.1205(c), (r). 2.1263. see also long IsFadlishatCo. (shmehm Nuclear Power sianon, 11nn 1), Clj.911,33 NRC 461.468 0991). 22Because a heanns pennon was nas fJed scladvs to Bi%"s amendmern applestuss untD July 1992, to afford such a constneuan to pennarer ilutddson's Wy 19921euer would mandate an addi6 anal fm&ng that in sune cW-- submisaan of a stay soyuest can irunate a subpast L abu6caiory promeding. Conrpara 10 Cf.1L 12.2GMcX2)(i). B&W also appears to suggen that because petioner thaduson's leuer was nos directed so the Enocunve Dunctor for operanans or the Directs of the offwe of Nuclear Maumal sarety and sareguards, its does not consthuis a pnper esquest rar schef under 10 C.F.R. 52.206. sen Licensas's Reconsidersnan Response at t Nonetheless, even if h ocre. such a omindju&catory request generally is nos a matier within the province of a j i presiding offwer in a subpart L adjuecatwy procee&ng i 359 j i I i ? r h I

. = ~ h . meet their burden under this factor.') With the caveat that the Presiding Officer was mis [ led]" or was "not aware" of certain information, the Petitioners now present additional information concerning cach of these matters that they contend i mandates a different result. l De Petitioners first challenge the validity of information presented by B&W and the Staff indicating that sewage plant contamination was attributable to .f naturally occurring uranium or atomic weapons testing-rclated cesium rather j than the Apollo facility. They assert that the assessment by the Pennsylvania Depanment of Environmental Resources (PADER) relied upon to support this conclusion did not address all tests conducted.8* They also contend that certain statements by a PADER official reported in a local newspaper contradicted that { conclusion. A foomote in 1.BP-92-31 rrade note of a B&W-provided November 18, [i 1986 letter from the Director of the PADER Bureau of Radiation Protection to petitioner Virostek.25 In that letter, the director declared that, with reference to a h PADER Bmeau of Air Quality Control (BAQC) repon analyzing May 7,1986 air i and water samples taken from the local sewage treatment plant,"[t]he radioactive component of gas emissions from the plant does not indicate an accumulation of j radioisotopes beyond the range of what can normally be expected from natural causes" and t!ere is "no evidence that B&W plant is responsible for dumping any radioactive waste into the sewage system."36 De Petitioners now suggest that because the BAQC report referenced in the November 18 letter also indicates that some water sampling was done on May 13. 1986, the PADER bureau director's letter does not support the Presiding Officer's conclusion in LBP - 31 that the test report indicates "nothing more than the presence of naturally occurrmg uranium or atomic weapons testing-related cesium."2' Although the Petitioners are correct that some water sampling tests referenced in the BAQC report were conducted shonly after May 7. from all appearances j the conclusions drawn by the PADER official in his Novemter 18 letter were with respect to the report as a who.e. What the Petitioners attempt to label as a substantive omission apparently is no more than an incomplete citation.28 ) So too, the Petitioners seek to anach unwarranted significance to the state-ments auributed to another PADER official in a newspaper story regarding the BAQC report. He official, identified as a regional air pollution control t ? 1 13 See 36 NRC a 26445. I'$se Peunaners' Reconsideranon Roquest at 1-2 enhs. D & E. 185ce 36 NRC at 265 m.28. I'Fennawi 3tecossideration Request, cah. D (emphasis in ongma4 27 36 NRC at 264. 1 The sauns of this miscita6on mey be de apar. itacif, which an em cover sheet pronded by the Pouncuaws indicats a

• bra date" ef May 'J.1992. See Poudaners[*] Reply to opposidan Responses Requesung Immedusa Cessanan af Cleanup Ac6viGen (oct. 29,1992), exk A. at 1.

360 l .i I 4 i

f e 4 engineer, is quoted as saying that water samples from the sew 2ge treatment facility contained radioactivity that "could have come from the plants."2' His i reported statement, however, does not specifically attribute the contamination } to the Apollo facility, as opposed to the nearby B&W Parks Township facility i that also has been identified as a possible contamination source, Moreover, his daclaration must be read in light of his overall conclusion that there was no ev-idence of contamination to the sewage treatment facility in excess of regulatory I limits. Consequently, this unsworn press repoit is insufficient to establish any likelihood of success on the merits. 'Ihe Petitioners Cn contest the finding in LBP-92-31 that, based on B&W and Staff analysei of the sampling information submitted by the Petitioners in support of theit my request, it appeared that any radiological contamination { I existing on the property of petitioner Virostek or another local citizen was at-tributable to naturally occurring uranium or cesium deposition resulting fmm atomic weapons testing."In seeking seconsideration, the Petitioners now refer-t ence an undated heahh and training manual prepared by a company that formerly operated the Apollo facility and assert it demonstrates that cesium-137 is an on-site, and thus presumably offsite, contaminant.2 The Petitioners also cite a June 1957 survey on background radiatium levels in and around the B&W site and a September 1988 Staff letter describing soil sample surveys made during 1980 t on Apollo area farms.22 Dey comend that this information on background lev-l els should have been considered in determining whether the purported offsite contamination was, in fact, consistant with atomic weapons testing deposition.25 In addition, the Petitioners maintain that the B&W and Staff conclusions are not consistent with a May 1987 report prepared for a local union purportedly showing a number of " hot spots" in the town of Apollo.8 ne Petitioners' claim regarding the training manual reference to cesium is misdirected he manual does no more than list cesium as one of the radioisotopes that could present significant hazards from.eactor or atomic weapcms accidents. It provides no evidence that any offsite cesium deposition i is attributable to the Apollo facility, as opposed to weapons test ng. He same is true for the Petitioners

• exhibits relating to prior background testing. As B&W notes, the 1957 survey is of questionable utility because it was donc using older testing techniques that render it incompatible with newer soil analyses regarding the facility 25 Further, even that early survey supports j

%;an. R.co ideration Request. exh E. 3, a at 2. 5 23 Sea M. exh. F. i 22 5ee M. exha. 04t 235es M a 2. " See M a 2.exh.L 25see tiennee's Reconsideration Resporse n is n.7. 361 ? l l e i

I t I the basic B&W and Staff thesis; the uuthors of tie survey declare that an + increase in background levels over time might occur not because of facility operation but because of bomb testing and other programs.2' As to the 1980 .i soil survey, the Petitioners have presented nothing that would indicate that its j results are in anyway inconsistent with the B&W or Staff explanations of the source of any radioactive materials on these particular offsite propenies?lhus, neither of these exhibits provides any compelling information suggesting that L the Presiding Officer was in error in concluding that the Petitioners failed to establish a likelihood of prevailing on the merits of their claims regarding onsite [ or offsite contamination. With regard to the union repon on purponed " hot spots," the shon execrpt from that document provided by tic Petitioners indicates that B&W, under NRC t supervision, was then taking steps to identify and clean up contaminated areas near the Apollo facility and elsewhere in the town of Apollors The repon also states that the NRC was giving close auention to the matter of offsite contamination. It does not, however, provide any details indicating how, when, )' or whem the hot spots" were discovered, the level of cxmtamination exhibited at the " hot spots," or the methodology used to conclude that tre " hot spots" were the result of acdvities at the Apollo facility. Ultimately, the repon excerpt is equally supportive of the B&W and Staff positions that any offsite contamination problem have been addressed. As such,it is hardly sufficient to establish that the Petitioners have a likelihood of success on the merits of their claims regarding i such Contamination. Finally, the Petitioners assen that information not previously available to the public demonstrates that the Presiding Officer's conclusions in LBP-92-31 concerning chemical contamination are invalid? The information they provide is i local newspaper articles, dated November 7 and 11,1992? These press reports e state that the Environmental Compliance Organization (ECO), an organization acting as a technical counselor to a local citizens advisory group, has raised concerns about onsite toxic chemical contamination and cleanup and is urging Environmental Protection Agency (EPA) involvement in the decommissionir, process for the Apollo facility. Assuming (contrary to the continuing assenions of B&W and the Staff 82) that the NRC hasjurisdiction over any of the Petitioners' concerns about Amendment 26see 1%tinancis* Recmsiderene Requen, exk G. U In ract, es B&W pnims out. the staff's EA dscassion regarding badground levels in the Apollo arca, educh is suppmsed by histracal evidence daurig led to 1968 - sene is years tefam the Apollo rac'iny ceased i aperanons - indacates that sadstum leve}s ausside the immed.ste site have shown no increase. $se licensee's l* ReuansideraGm Respume as 1s-14. 3,, Peu:amers* Recormiderade Request, caA t. { 2: 29 t 3sa M m 2. 303ee M.cak J. 83 34a thensee's Reconsiderstaan Respmse at 16; starr's Reconsidersdan Raspese at 1s. 3 i 362 j i l t ? !'I ]

I F r No. 21 relating to nonradioactive chemical wastes, this unsworn press material is inadequate to demonstrate their likelihood of success on the merits of those claims. In response to the Petitioners' reconsideration request B&W has provided a copy of a December 2,1992 leuer from the General Manager of i B&W's Nuclear Environmental Services division to ECO's president." This correspondence outlines B&W's decommissioning plan as it relates to chemical issues and challenges the validity of the 1990 hydrogeological testing program j I whose results ECO relies upon for its apparent conclusion that there is significant hazardous chemical contamination onsite. According to the December 2 letter, the results of the 1990 program, which utilized test wells that were not properly developed for sampling, has been called into serious question by followup i programs in 1991 and 1992 indicating that onsite soils do not contain hazardous constituents above the characteristic levels defined in EPA regulations. When considered in this context, the Petitioners' newspaper articles are insufficient to establish a likelihood of success on the merits of their chemical contamination-related claims. B. Factor Two -Irreparable Injury Relying upon uncontroverted B&W evidence that cleanup activities had resulted in no radiological releases above regulatory limits, in LBP-92-31, the Presiding Officer concluded that the Petitioners had failed to make a showing establishing any basis for their claim that they would suffer irreparable injury because of their exposure to contaminants from the decommissioning process. 'Ihe Petitioners now contend that this conclusion was erroneous. As the basis for this claim, they reference monitoring data covering the nine-month period from January through September 1992 that they assert establishes there were missing radiation monitors at the Apollo site as well as missing monitoring data." In its response, B&W acknowledges that some monitoring data are " missing" to the extent that, from time to time, a monitor malfunctions or otherwise l does not provide uscable information." Nonetheless, the data submitted by the Petitioners indicate that during the nine-month period involved, on average. the nine environmental stations scattered in and around the Apollo facility collectively functioned over 97% of the time." Moreover, the specific monitoring data submitted by the Petitioners regarding soil processing operations and environmental dosimetry indicate that during the periods covered by these i s "See tmermee's Reccesideratia Resparme,enack 1. "See Peutames' Recamideratiore Request at 1, cak C. "See tuensec's Recmsider 6m Resparse at 9. i "See Pet:6mes' Reennaalersnm Reguest, enh. C at 1 (rable 2). Of the 21 inmances of snoniw sr.alrunctions I reflected in the dais subntined by the Petitioners, atly two lasted leger than four days, wnh the lorigest being als days. See id Most monizar autages lasted two or three days. 1 363 i i

i

data any releases resulted in very small fractions of maximum permissible concentrations." his is not evidence sufficient to establish irreparable injury that is both " great and certain."" C. Factor Three -Ilarm to Other Parties in his findings relative to the third stay factor of harm to other parties, the Presiding Officer concluded that it was proper to consider (1) the uncontroverted showing of B&W that it would sustain a minimum of S790,000 in shutdown, demobilization, and remobilization costs if a stay was granted; and (2) B&W's showing, supported by the Staff, that if cleanup is delayed beyond December 31, 1992, under the provisions of the 1.cw-level Radioactive Waste Policy Amendments Act of 1985, B&W likely would face significantly higher disposal costs at the South Carolina Nevada, and Washington sites for waste at levels above 2000 picoeuries per gram (pCi/g) of uranium.88 The Petitioners now assert that, because of the size of B&W and its associated entities, as well as 29 million dollars in taxpayer funds being utilized in the cleanup efforts, these expenses are insignificant In addition, they contend that B&W failed to establish that it will face significantly higher disposal fees on January 1,1993, at the Envirocare site in Utah where disposal of the bulk of the decontamination material (i.e., material at levels between 30 pCi/g and 2000 pCi/g) is to take place." Here may well be instances in which the ability to pay is a significant factor in determining whether a litigant will suffer substantial economic harm from the grant of a stay. This, however, is not such a case. In this instance, stay-related costs of at least $790,000 are an appreciable figure. Moreover, as B&W notes, this figure covers shutdown, demobilization, and remobilization costs. Rese costs, which the Petitioners have not challenged, would have to be absorbed by B&W regardless of whether Envirocare increases the amount it charges for disposal services. D. Factor Four - Where Does the Public Interest Lie Regarding the final factor - where does the peblic interest lie - in their reconsideration request the Petitioners simply repeat the assertion made in their initial stay motion: De public interest lies in following the law and ensuring "Ses kl. exh. C, at 2-4. "See Carveland Decaic I!!wmeaning Co. (r%rry Nuchar Otmer Plam, thuts I and 2), ALAB-E20,22 NRC 'J43, 747 (1985). "see LBP-92-31,36 NRC at 26647. "See Painanars* Reconsideration Request at 3. %4

h k that there is a proper cleanup process for all onsite and offsite contas..inants.*8 f While this general staternent undoubtedly is true, as was noted in LBP-92-31, it is unavailing when compared to i the simwing by B&W and the Staff that tic prescru cleanup acdons meet all regulatory requirements and will result in the removal of a sutstantial wdume d contaminated materials -l frwn Apcalo for disposal in licznsed wasw facilities. Imhich] is mnsistent with what tie I Cornmission recently has recognized as the putdic interest in seeing that the site is promgtly _ 'l and effeaively ranediated.42 Thus, the Petitioners have not put fonh any information that gives.cause to reconsider the determination in LBP-92-31 regarding this factor. Ibr the foregoing reasons, the Petitioners

• November 22,1992 request for reconsideration of LBP-92-31,36 NRC 255 (1992), is derded.

.l l It is so ORDERED. G. Paul Bollwerk III. ADMINISTRATIVE JUDGE { i t Bethesda, Maryland [ December 10,199' I a-i l b t h "Seeid

• 36 NRC at 267 goatnme ernined).

f i t 365 -l f 1 ? I t I

Cite as 36 NRC 366 (1992) LBP-92-36 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Robert M. Lazo, Chairman Harry Foreman Ernest E. Hill in the Matter of Docket No. 30-16055-OM (ASLBP No. 87-555-01-OM) (Decommissioning Order) ADVANCED MEDICAL SYSTEMS,INC. (One Factory Row, Geneva, Ohio 44041) December 14,1992 In this case the Atomic Safety and Licensing Board dismisses the proceeding for the lack of a controverted issue. MOOTNESS OF CONTROVERTED ISSUE: DISMISSAL OF PROCEEDING In an enforcement proceeding, once the licensee has mluntarily complied with the Staff's enforcement order requiring cleanup and decortamination of the licensee's byproduct materials facility, the controverted issue upon which a proceedmg may be based - whet!ct the order was justified - has become moot. 1 b

MEMORANDUM AND ORDER (Dismissing Proceeding) On July 23,1987, and again on November 3,1987, the NRC Staff issued two - immediately effective, license modification orders' demanding that Advanced Medical Systems, Inc. ("AMS") tegin cleanup and decontamination of its byproduct materials facility located in Cleveland, Ohio. These orders were issued by the Staff because contamination and radiation levels were found to be " excessive and increasing" during Staff inspections of the facility, and bccause AMS failed to start cleanup and decontamination activities as scheduled in the first of the two orders.2 At the initial prehearing conference in this proceeding, an agreement was reached with counsel for AMS to hold the proceeding in abeyance pending satisfactory resolution of decontamination activities at the AMS facility.811 now appears that AMS's decontamination efforts were successful and that "the Staff l is satisfied that decontamination operations have been completed, as required by the NRC Orders."* In other words, the issues giving rise to this prtcceding are now moot. Regardless of this fact, however, Counsel for AMS now demands an evidentiary hearing.8 Our jurisdiction in this maner is established by the nature of the Sta!T's I enforcement actions "{i]f a hearing is requested.... the issue to be con-sidered at such hearing shall be whether th[ese] order [s] should te sustained."* For the sake of argument, if Counsel for AMS prevailed in convincing 1 I the Board that the Director's decisions to issue the decommissioning orders could not be sustained,~ the Board could fashion a remedy, such as staying the I immediate effectiveness of the orders, and/or, even more appropriate, vacating, in essence, the decommissioning orders so that they would have no effect on AMS. However, the Board's ability to fashion such a remedy, or any remedy in this case, has been extinguished by intervening events, j l 3 order ticssac. Effecnve immedmiely, and Demand for informstum Ouly 23,1987); Confamaiory ordct Modifymg ticense. Effecuvely immod;stcly (Nov. 3,19571 2 order d My 23.1987; Order d November 3.1987. 23ee Tr. 35-47 disuer fram Cauman P.Woodhead, office of the oeneral Coursel.to sherry J. swan. Advanced Madacal systems (sept 9.1991k ser mise 1mer inun Otarks E. Novelius. Dueciar. Divisian of Ra&suon safery and safcanards. 1 to Sherry suun. Advanced Medical systems Qan 23.1992); NRC staff Motian fw Termmatian d the Proceadmg (Aug.18.1992) at 3; NRC staff Respurse in opposition to AMs* Cambined Mauun to Dany the stafr's M<sann ftw Termmsuan and Request far order CampcP.mg suff Respanse salmerrossiones (sept. 22.1992) et 6. 8see generally AMs Response tolasues Ramed by the NRC staff Response in opparinan no AMS* Combued Mance no Duny the staff's Modan for Termins6an and Regucas for order Campcaing staff Response to Interrogaunies (oct.1,1992)

• order of My 23,1957. et 9; order of Nmember 3,1987, at &

367

As stated previously, over the past 5 years, AMS has complied, volemtarily, with the two decommissioning orders. To the satisfaction of the Staff, AMS has completed the cleanup and decontamination of those areas ofits facility that were of concern to the Staff when the orders were issued. We have no other - alternative than to find moot the issue of whether or not the Director's decision can be sustained. His decision was based on his findings that the AMS facility had excessive and increasing contamination and radiation levels. Now that those radiation levels have been lowered or cleaned up, there is no controversy left for the Board to hear.7 There being no other litigable issues left for trial, we j find this case to be ended. ORDER 1. The AMS Motion " Decontamination Consolidation" (Aug. 29, 1991) requesting the Board to order the consolidation of t!uce separate proceedings is DENIED;'

2. The "NRC Staff Motion for Termination of the Proceeding is GRANT-I ED; and

3. This proceeding is hereby DISMISSED.

In accordance with 10 C.F.R. i 2.786(b)(1), Commission review of this Order may be rought by filing a petition for review within 15 days after service of this Order. Rr.quirtrnents regarding the length and content of a petition for review l and the timing, length, and content of an answer to such a petition are specified .j in 10 C.F.R. 9 2.786(b)(2), (3). i t'f 7 De monmens docarme spnngs ima the language in article Ill of the United seus Constunuan that timits federal coun jurindaction to " cases

• ar "controvennes." his case or cattmerry limit mandaus that quesdans be "prescrued in an adversary enrnest and in a form historically vmwed as capable of sesolution dirough the judicial j

process." fLs.: v. Cohen,392 US. 83. 95 (1968). P- - sometunes shift d.mng the course d ai6sadan in a way ihat cads hso quesuan whether a canenne dupne betesert the parues exista any longer... In decidmg whether saanged d--- l have rendemd a case mots, the appropnate quesunn is eiusher a live contmerzy betwece adverse parues i' sdE exasis at the tine the court reviews the case. -. Centerfor Scienr.e in she PmMic Imersar v. Regan. 727 F.2d 1161,1170 0954), cinng FranA, v. Ao. man t Constraelion Ca,,424 U.s. "J47 0976). See else Kinealt w, Kiaibell.174 U.s.158,162 (1898);HeisanJler v. Ssokar. 256 U.s. 359,3610920); Sanks v. Georgia,4N U.S.144.148 (1971). Mornwer. es do not fed this [ case to be wuhin de cacepuan a the moniness rule. See Ceasarfor Science in she PuMic Inserest. 727 F.2d at l 1170 71. ~, since two d the three proceedmgs that counsel far AMs sought so consolidsie with diis oM prmeeding as l e under seview by thee ' ' ; the Basrd simply lacks the junsdiction to consolidsie diese proceedmgs with any other pr===%g 368 i .I ka l

i It is so ORDERED. t Tile ATOMIC SAFETY AND LICENSING BOARD 9 ~ Robert M. Lazo, Cimirman ADMINISTRATIVE JUDGE E r Ilarry Ibreman ADMINISTRATIVE JUDGE Ernest E.11i11 ADMINISTRATIVE JUDGE j Bethesda, Maryland December 14. 1992 9 I I n 4 9 Z P .{ l I 5 369 ?

Che as 36 NRC 370 (1992) LBP-92-37 j UNITED STATES Oi~ AMERICA l NUCLEAR REGULATORY COMMISSION t ATOMIC SAFETY AND LICENSING BOARD I Before Administrative Judges: Morton B. Margulies, Chairman Dr. James H. Carpenter t Dr. Peter S. Lam In the Matter of Docket No. 50-446-CPA (ASLBP No. 92-66841-CPA) (Construction Permit Amendment) TEXAS UTILITIES ELECTRIC COMPANY, et al (Comanche Peak Steam Electrie Station, Unit 2) December 15,1992 i l ~Ihe Licensing Board denies petitions for leave to intenene and to hold hearings on the grounds that Petitioners did not have the requisite interest for standing as required by 10 C.F.R. 6 2.714(a)(1) or Petitioners have failed to file i an admissible contention as required by 10 C.F.R. f 2.714(b)(1). RULES OF PRACTICE: STANDING TO INTERVENE Petitioners' claims of injury based on alleged violations of employment rights j do not provide the requisite interest for standing in an application pmceedmg to extend the construction permit completion date for Unit 2 of the Comanche Peak Steam Electric Station. ( RULES OF PRACTICE: STANDING TO INTERVENE l Petitioners' claims of injury based on allegations that they were denied the right to appear as witnesses in a prior proceeding to extend the construction l [ 370 r f i

completion date for Unit 1 of the Cmlanche Peak Steam Electric Station do not provide the requisite interest for standing in the subject application proceeding. RUI.ES OF PRACTICE: ADMISSIBILITY OF CONTENTIONS A contention filed in an application proceeding to extend the completion date of a construction permit is not admissible where it does not directly challenge the Applicant's alleged good <.ause justification for the delay. Petitioners' allegations of corporate wrongdoing do not show that a genuine dispute exists with the Applicant on its justification for the delay. RULES OF PRACTICE: ADMISSlHILITY OF CONTENTIONS I Petitioners' contention is inadmissible under 10 C.F.R. 92.714(b)(2)(iii) where the contention fails to contain sufficient information to show that a genuine dispute exists with the Applicant on a matreial issue of law or fact and does not include references to the specific portions of the application that Petitioners may dispute. MEMORANDUM AND ORDER (Ruling on intervention Petitions and Terminating Proceeding) I. INTRODUCTION We have before us for consideration two joint pe?itions for leave to intenene and to hold a hearing in the maner of the February 3,1992 request by Texas Utilities Electric Company (Texas Utilities) to amend Construction Permit CPPR-127 for the Comanche Peak Steam Electric Station Unit 2, by extending the construction completion date from August 1,1992, to August 1,1995. In this Memorandum and Order, we decide to deny the petitions and terminate the proceeding. The petitions were filed in response to a June 23,1992 NRC Staff (Staff) " Environmental Assessment and Finding of No Significant Impact" for the requested extension, which was published in the Federal Register on June 29, 1992. 57 Fed. Reg. 28,885. The Commission, on July 28,1992, granted the amendment on a finding by Staff that good cause has been shown for the delay and that the amendment involves no significant hazards consideration. 57 Fed. Reg. 34,323 (Aug. -4,1992). In accordance with Commission practice, if a, 371 l

7 l

i l I l f hearing is ordemd, a final decision on the extension will await thc outcome of the hearing. l De first joint petition for intervention and hearing, dated July 27,1992, was filed by B. Irene Orr, D.I. Orr, Joseph J. Macktal, Jr., and S.M.A. Hasan. ney I filed a supplemc u to the petinon on October 5,1992, containing a contention. [ Texas Utilities and Staff filed responses seeking denial of the petition and contending that,he Petitioners have failed to provide any supporting basis for -l l the contention. PeitUncrs filed additional pleadings dated November 15 and l 17,1992, which Texas UtiF6cs and Staff oppose. We rule on those pleadings in this Memorandum and Orden. ne other joint petition, dated July 28,1992, was filed in behalf of Sandra Dow 1Ang, R. Micky Dow, and Disposable Workers of Comanche Peak Steam i Electric Station. De request for intervention and hearing was opposed by Texas Utilities and Staff in responses dated August 14 and August 18,1992, respectively. In response to our order setting October 5,1992, as the date for filing amended or supplemental petitions, the Dows filed a motion for an extension of time and for a further filing schedule. By Memorandum and Order, dated October 9,1992 (unpublished), we denied the request for lack of a credible reason and good cause. R. Micky Dow filed a motion for rehearmg, dated November 10, 1992, which is opposed by Texas Utilities and Staff. In this femorandum and Order we rule on the motion. [ II, Tile APPLICATION I By letter dated February 3,1992, as supplemented on March 16, 1992, l Texas Utilities requests, pursuant to 10 C.F.R. 650.55(b), the extension of the _ construction completion date of CPPR-127 from August 1,1992, to August 1 l 1995, As good-cause justification, Texas Utilities states that it was anticipated l that there would be a 1-year suspension in construction beginning in April i 1988. De purpose was to allow the permit holder to concentrate its msources on completion of Unit 1. However, Unit I was not licensed until February .) 1990 and Texas Utilides did not resume significant design activities for Unit 2 until June 1990. The delay was needed to complete construction and stanup of j Unit 1. Texas Utilities also relied on the NRC's previous finding of good cause for { the suspension of construction of Unit 2 based on allowing concentration of resources for the completion of Unit 1. Staff found good cause for the extensian j of the construction permit completion date to August 1,1992, premised on Texas Utilities' justification that suspension of Unit 2 for 1 year, beginning in April q 1988, would allow it time to make modifications that may be required for Unit b I 372 f t I f i -t k 5 - O

2, based upon knowledge gained from the reinspection and corrective action program applied to Unit 1. 53 Fed. Reg. 47,888 (1988). III. PETITIONS FOR INTERVEh"I1ON A. The Orr Petition to Intervene 1. Requisite Interestfor Standing The Cbmmission's Rules of Practice provide that any 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) requires that the petition set forth with particularity the interest of the petitioner in the proceedmg and how that interest may be affected by the results of the proceeding, including the reasons it should be permitted to imervene. l B. Irene Orr, D.L Orr, Joseph J. Macktal, Jr., and S.M.A. Hasan each claim the requisite interest for standing to intervene in the proceeding under the l provisions of 10 C.F.R. 6 2.714 The Orrs state that they reside at separate locations, within a 50-mile radius of Unit 2, that they est food produced in an area that would be adversely affected by normal and accidental releases of radioactive materials from the constrt.ction of Unit 2, and that they came within Texas Utilitics' rate base. Joseph J. Macktal, Jr., states that he is a former employee of the Comanche Peak Steam Electric Station (CPSES) and is currently seeking reinstatement of his job. He asserts that he has been personally harmed due to management misconduct which has also contributed to the delay in the construction of j Unit 2. Petitioner claims he was to be a direct fact witness in a construction permit amendment proceedmg to extend the completion date for Unit 1. 'Ihe proceeding, Docket No. 50-445-CPA (CPA-1), was settled and dismissed in July 1988. He asserts that he has information that is relevant to the determination of Texas Utilitics' request to extend the Unit 2 completion date. S.M.A. Hasan, a former engineer employed at the CPSES, states that he was to be a fact witness in CPA-1, but because of the payment of hush money by counsel for the utility to the intervenor he was precladed from testifying. He claims an interest in exposing the alleged management misconduct at CPSES which he says resulted in his removal from the CPSES site and directly contributed to the delay in constructing Units 1 and 2. He asserts a financial interest in the granting of the amendment request. All Petitioners, without further explanation, claim to be similarly situated as .l the petitioners who were permitted to intervene in CPA-1 and request intervenor i l status on that basis, 373 i 1

i Neither Tbxas Utilities nor Staff contests the Orrs' claim of having the requisite interest for standing. It is clear that their claim of residing within 1 50 miles of Unit 2 provides them with the status acquired for standing. De same principles apply to establishing standing for a requested extension of an existing construction permit completion date as do to an application for a new constmetion permit or operating license. Northern Indiana Public Service 'l Co. (Bailly Generating Station, Nuclear-1), ALAB-619,12 NRC 558, 563-65 j (1980). f In the foregoing type of case, a petitioner may base standing on a claim that he or she resides within the geographic zone that might be affected by an l accidental relene of fission products. Hoston Lighting and Power Co. (South l Texas Project, Units I and 2), LBP-79-10, 9 NRC 439,443 (1979). Close proximity under those circumstances has been deemed to establish the requisite j interest for intervention. In such a case, the petitioner need not show that the concerns are well founded in facL Distances of as much as 50 miles have been I held to fall within the zone. Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-522,9 NRC 54,56 (1979). De Orrs' claim that they are part of Tbxas Utilities' rate base does not provide them with an additional ground for standing. Economic concerns of -i this kind are best directed to the state regulatory body that has charge of rate j setting and similar matters. Public Serdce Co. of New Hampshire (Scabrook Station. Unit 2), CL1-84-6,19 NRC 975,978 (1984). Texas Utilities and Staff argue that Macktal and Hasan do not have the [ requisite interest for standing on the basis of their assertions that they are former employees who have suffered personal harm caused by management misconducL They assert that Petitioners fail to meet the two-pronged test used { by the Commission to establish standing to intervene in NRC proceedings. nc test requires a petitioner to show that (1) the action proposed will cause some injury-in-fact to the person seeking to establish standing and (2) that such injury is within the zone of interests protected by the statutes governing the proceeding. Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 613 (1976), Metropolitan Edison Co. (nree Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327,332 (1983). ney { also claim that Petitioners failed to show that the injury-in-fact is concrete and l particularized, actual, or imminent and is likely to be redressed by a favorable decision in the proceeding, citing Lujan v. Defenders of Wildhfe, __ U.S.._., 112 S. Ct. 2130,2136 (1992). j We agree that Macktal and Hasan have not demonstmted that they have the requisite interest for standing. Not having shown that they reside or work within l close proximity to the plant they cannot claim, as the Orrs have successfully 1 donc, that they are presumed to have the requisite interest for standing. Under ~ these circumstances a licensing board will apply judicial concepts of standing. l 374-t ) i

'{ F febble Springs, supra. A petitioner should allege in an NRC proceeding an i injury in-fact that is within the zone of interests protected by the Atomic Energy l Act of 1956, as amended (AEA), or the National Environmental Policy Act of l 1969, as amended (NEPA). This, Petitioners have failed to do. ) The claim of personal injury that allegedly resulted from mismanagement { was not shown to result from the proposed extension of the construction permit completion date. Neither was it established that the alleged injury was protected against under the AEA or NEPA. Petitioners' grievances are in the area of employment rights and would not be redressed by a decision favorable to them on the issue of the extension of the construction date. A desire to expose l the alleged mismanagement is not an injury-in-fact and does not enhance their i position for standing. .l Similarly, Petitioners' claim that they were denied the right to appear as { witnesses in another proceeding to extend the construction completion date of Unit I does nothing to provide the requisite interest for standing in this proceeding. Were Petitioners to prevail in the subject proceeding, it would not redress any alleged harm that was r, aid to result from denying the Petitioners

• right to testify in the Unit I proceeding. Lujan v. Defenders of Wildhfe, supra;

' Dellums v. NRC,863 F.2d 968,971 (D.C. Cir.1988).

y Hasan's claim of a financial interest in the application proceeding does not confer standing under the aegis of the AEA and in the absence of an environmental connection, as here, under NEPA. Houston Ilghting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-582,11 NRC 239, 242 (1980).

No factual or legal justification was provided to grant Petitioners

• standing request on the unsupported claim that they were similarly situated as the

~ petitioners who were permitted to intervene in the Unit I extension proceeding. 1 We find that Macktal and Hasan have not demonstrated tint they have the requisite interest for standing, as provided in section 2.714, and that their petition i for intervention and to hold a hearing should be denied. 2. Aspects he NRC's Rules of Practice provide that a petition for leave to intervenc j should set forth the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.10 C.F.R. G 2.714(a)(2). Texas Utilities and Staff in their responses to the Orr petition asserted that Petitioners were not entitled to a hearing because they had not addressed the aspect requirements of the regulations. The issue has been rendered moot by the filing by the Orrs of a supplement 1 ? to the petition to intervene which contains a contention they propose to litigate. The contention sets forth with particularity aspects of the subject matter of the 375 } 1 i 'I s f 'i I .k 1 -ewe

,t 8 I i proceeding as to which Petitioners seek to intervene. Their pleadings are not now deficient in that respect. De Orrs have met the aspect requirement of section 2.714(a)(2). t 3. The Orrs' Contention a. Standardsfor Contentions in Construction Permit Extension Proceedings l t All contentions must meet the requirements of 10 C.F.R. 52.714(b)(2), amended August 11,1989, which pmvides. (2) End ecanention must consist d a specific statement of the issue of law or fact to e be raised or contrcwcried. In addidon, de petidoner shall prcwide the following information f with sespect to cadi contendon: (i) A brief explanadm of the bases of the conten6 art (ii) A concise statement of the alleged facts or expert opinion whid support de contendon and on whidi the petitioner intends to rdy in proving de contendon at de heanrg. together with references to those specific sources and documents of which the pentioner is aware and on whid the petitioner intends to rely to establish those faas or expett opirdon. r (iii) Snfficient informanon... to show that a genuine dispute crins with the applicant on a material issue of law or faa. This showing must indude references to die specific ponions d de application... that the peddoner disputes and the supporting reasons for ca& dispute... Further,10 C.F.R. { 2.714(d) provides that contentions shall not be admitted j (i) if the contention and supporting material fail to meet the requirements of section 2.714(b), or (ii) should the contention be proven that it would be of no consequence in the proceeding because it would not entitle petitioner to relief. In its comments on the amendments to section 2.714 the Commission explained that section 2.714(b)(2) does not call upon the petitioner to make its case at this stage of the proceeding. The petitioner is required to read the i pertinent portion of the license application and to state the applicant's position and its opposing view. 54 Fed. Reg. 33,170 (1989). The Commission cited with approval Connecticut Bankers Ass'n v. Board of Governors,627 F.2d, 245, 251 (1980), wherein the court stated that "a protestant does not become entitled to an evidentiary hearing merely on request or on a bald or conclusory allegation that such a dispute exists. The pmtestant must make a minimal showing that facts + are in dispute thereby demonstrating that an ' inquiry in depth'. is approprtate." The Commission looks to petitioners to specifically fulfill the requirements of section 2.714(b)(2). A licensing board cannot infer a basis for a contention. l Arimna Public Service Co. (Palo Verde Nuclear Generating Station, Units 1,2, t and 3), CLI-91-12,34 NRC 149,155 (1991). t "Ihe scope of a construction permit extension procading is limited to { direct challenges to the permit holder's asserted reasons that show good-cause f 376 b 6 7 a i 'h

justification for the delay. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB468,25 NRC 912,935 (1987). A petitioner may challenge a request for a permit extension by seeking to prove, on balance, that delay was caused by circumstances that do not constitute good cause. Washington Public Power Supply System (WPPSS Nuclear Project. Nos.1 and 2), CLl42-29,16 NRC 1221,1229 (1982). 'Ihe need to evaluate and cortect safety deficiencies can be good cause for delay in construction completion even when those deficiencies resulted from deliberate corporate wrongdoing. If there was a corporate policy of violating NRC requirements and that policy was discarded and repudiated by the permit holder, any delays from the need to take corrective action would be delays for good cause. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 1), CL1-86-15,24 NRC 397,402-03 (1986). i b. The Contention Petitioners submitted the following contention: The delay of consuuction of Unit 2 was caused by Applicara's intentsanal conduct, sMch had no valid purpose and was the result d corporate policies which have not been discarded i er repudiated by Applicac:. I As bases for the contention, Petitioners contend that a significant safety haz-ard exists where an applicant has employed and continues to employ corporate ~'~ policies aimed at constructing a nuclear power plant in violation of NRC re-quirements and, as a result of these corporate policies, significant and substantial j construction delays occurred and continue to occur. They further contend that the applicant has not repudiated or disregarded the corporate policies respon-sibic for this delay, As a result, they allege that Texas Utilities is unable to -[ demonstrate good cause for the delay and the amendment must be denied. l In support of the contention Petitioners allege that the facts contained in f CPA-1, the 1988 proceeding in which Texas Utilities sought to extend the construction completion date for Unit I to August 1,1988, demonstrate that a factual dispute exists as to whether Tbxas Utilities had a corporate policy to - -l violate NRC requirements that had no valid purpose and resulted in a delay in the constmetion of Urdt 2. They further allege that CPA-1 demonstrates a factual dispute as to whether the corporate policy had not been discarded or repudiated. Petitioners contend that Texas Utilities misled the licensing board in CPA-I about critical facts in an effort to conceal its ongoing corporate policy of construction in violation of NRC requirements. These were said to include the { 377 j s i f i

i l i use of restrictive settlement agreements, the payment of hush money, the use of incorrect construction standards and improper design artificadon methods. Petitioners further contend that Texas Utilitics continues to receive Notices of Violation and civil fines which demonstrate that it employs the same corporate policies that origmally resulted in construction delays. In response, Texas Utilities asserts that Petitioners have failed to allege even - a single fact in support of their contention that Unit 2 was delayed due to improper and intentional conduct. It claims that Pentioners' supplement consists of nothing more than a discussion of disparate events occurring over tic past 10 years that have nothing to do with Texas Utilities' construction permit extension request. Texas Utilities states that the matters raised by Petitioners were previously brought to the attention of the Commission and satisfactorily resolved prior to the issuance of the operating license for Unit 1. Also, the l construction permit completion date for Unit 2 was already extended by the l NRC in November 1988 to August 1,1992, on good-cause justification for the delay that resulted from reinspection and corrective action programs at Unit i i 1, which were to be applied to Unit 2. It requests that Petitioners' petition l to intervene should be denied because they failed to establish a basis for a l contention as required by section 2.714. l Staff contends that the contention is not admissible because it does not address l the issue in the proceeding, i.e., whether it was appropriate for Texas Utilities to have delayed significant construction activities at Unit 2 from 1988 to January I 1991, when it resumed significant construction activities. It states that Petitioners fail to explain how the alleged corporate policies, which may or may not have caused the delay in the construction of Unit 1 in 1986, caused Texas Utilities to inappropriately defer the resumption of significant constmetion activities at Unit { 2 for more than 2 years from 1988 until 1991. Staff asserts that the contention is not relevant to any matter in the pmceeding. Staff further contends that in support of their contention Petitioners chiefly rely on legal pleadings filed in either the operating license proceeding for Units 1 and 2 or CPA-1 without explaining how any of tlese pleadings, even if true, caused Texas Utilities to inappropriately delay significant construction activities at Unit 2. Staff claims that the events Petitioner alleges to have occurred since the CPA-1 proceeding was terminated are unsupported. It concludes that Petitioners have failed to demonstrate that a genuine dispute of material facts j exists making Petitioners

• contention inadmissible.

Petitioners rely on the record in CPA-1, a proceeding to lear Texas 'Utilitics' request of January 29, 1986, to extend the construction completion date of CPPR-126 for Unit I to August 1,1988. Intervenor in that proceedmg submitted a contention upon which the subject contention was modeled. The proceeding was considered along with the operating license applications for Unit I and its companion Unit 2. Docket No. 50-445-OL and Docket No. 50-446-OL. 378 ( i i i I t 1, l' _ ~

i f he applications for operating licenses for Units 1 and 2 were filed in 1978. By 1983, the only contention remaining for litigation in the operating license proceeding challenged the quality assurance and quality control associated with [ the construction of Units 1 and 2. During the course of the proceeding, the l licensing board found that the applicants had not demonstrated the existence of a system that promptly corrects design deficiencies and had not explained - j. several design questions raised by the intervenor. It suggested the need for .[ an independent design review and required the applicants to file a plan that j might help to resolve the Board's doubts. LBP-83-81,18 NRC 1410 (1983). 'f Applicants took various actions to address the concerns that had been raised. Subsequently, Applicants, Staff, and the intervenor entered into an agreement in June 1988 to settle and dismiss the operating license proceeding and the application proceeding to extend the construction completion date for Unit 1. De licensing board concluded that as a result of the settlement it knew of no maners in controversy. LBP-88-18A,28 NRC 101 (1988). It then dismissed the proceeding on July 13,1988. LBP-88-18B,28 NRC 103 (1988). [ Petitioners would incorporate by reference into this proceeding the record from the operating license applications and constmetion permit extension pro-ccedings. The record runs into many thousands of pages. Tley also reference [ two pleadings containing more than 20() pages. Based on that record, Petition- _y ens would have us find that Texas Utilities had not repudiated, prior to the time the proceedings were settled, its corporate policy of violating NRC regulations, which resulted in delays in the construction of CPSES. t His we cannot do. Commission practice is clear that a petitioner may not simply incorporate massive documents by reference as the basis _ for its. contention. Petitioners are expected to clearly identify the matters on which they intend to tely with reference to a specific point. Tb do otherwise does l not serve the purposes of a pleading. Public Service Co. of New Hampshire (Seabmok Station, Units 1 and 2), CL1-89-3, 29 NRC 234, 240, 241 (1989). Dis requirement is incorporated in 10 C.F.R. 5 2.714(bX2)(ii) which Petitioners i fail to meet with their request. Petitioners also allege that the following raise an issue as to whether Texas Utilities maintains a corporate policy of violating NRC regulations that caused the delay in the construction of Unit 2. I (1) RESDt1CHVE SETlHMENT AGREEMEh"I3 Petitioners assert that Texas Utilities has not repudiated its policy of entering into restrictive settlement agreements with former minority owners of CPSES in order to keep relevant information from the licensing board in CPA-1 and the NRC. Brazos Electric Power Cooperative, Inc. (Brazos), a minority owner in CPSES, had contended in an August 14,1987 pleading in CPA-1 that Texas i 379 l l k i 6 I i i

i i e { l Udlities was responsible for failing to disclose material information and making l misrepresentations to Brazos that may tuve delayed constmetion of Unit 1. l Brazos asserted that it was a continuing practice of the permit holder. Petitioners assert that subsequently Texas Utilities and minority owners Brazos, Texas l Municipal Power Agency, and Tex-La Electric Cooperative of Texas entered l into settlement agreements whereby 'Icxas Utilities purchased the interest of the 7 l minority owners who in turn agreed to drop their litigation and not to assist or cooperate with third parties in all proceedings related to the licensing of Comanche Peak or permit their employees, attorneys, and consultants from doing 50. De agreements were signed in July 1988, February 1988, and March 1989, respectively. We cannot discern from Petitioners

• presentation how the entry of Texas Utilities into nondisclosure agreements resulted in delay in the construction of CPSES. The allegation was made but it is unsupported.

l Moreover, even if Petitioners had alleged facts indicating intentional viola-tions of NRC requirements as the root cause of the deficiencies requiring correc-tion, it would not be sufficient to defeat the extension if the policy was discarded l and repudiated by the permit holder and the delays occurred because of the need l t to correct the safety problems. Comanche Peak, CL1-86-15,24 NRC at 401-G4. Ibr a petitioner to plead an admissible contention in a construction permit j extension proceedmg it is necessary to directly challenge the pernit holder's E assened reasons that show good-cause justification for the delay. Comanche Peak, ALAB.868,25 NRC at 935. f Petitioners at no time directly challenge Texas Utilities

• good-cause justifi-cation for the delay in constructing Unit 2, i.e., applying safety modifications i

to Unit 2 based upon the reinspection and corrective action program applied to Unit 1. ney do not present any supporting material to show that on balance the 'rictive agreements were the cause of the delay at Unit 2 and not the reasons t .ven by *Itxas Utilities in the application. Not only is this inconsistent with the - law on contention requirements in a construction permit extension proceeding, .l it is contrary to the requirements of 10 C.F.R. 62.714(b)(2)(iii). It requires petidoners to include references to the specific portions of the application that they dispute and the supportmg reason for each dispute. Petitioners allege that restrictive settlement agreements entered into with alleged whistleblowers established a practice of concealing evidence dirtetly l bearing on the issues to be litigated in the operating license and CPA-1 proceedings. ney claim that the agreements demonstrate that Texas Utilities has not repudiated its corporate policy that resulted in construction delay. Agreements were entered into between Joseph J. Macktal, Jr., and the contractor of CPSES -} (Brown & Root, Inc.) in January 1987 and between Lorenzo Polizzi and the architectural engineer for CPSES (Gibbs and Hill, Inc.) in June 1988. i 380 + i P I t l

i .i /i Re individuals, in settling employment claims with the contractors, agreed y not to voluntarily testify or otherwise participate in any proceeding or investiga-tion involving CPSES. The Polizzi agreement permined him to inform the NRC of safety concerns relating to CPSES. Texas Utilities argues that it was not a party to cither agreement and that the individuals were informed in 1989 that the restrictive clauses would not be enforced. The pleading is similarly deficient as that relating to the nondisclosure agree-g ments entered into with minority owners. The claim that the settlement agree-ments resulted in construction delay is unsupported. Contrary to the require-ments of section 2.714(b)(2)(iii), Petitioners ignored and failed to challenge the reasons given by Texas Utilities for the delay of constmetion at Unit 2, which is critical for a contention opposing a construction permit extension. l (2) PATTFRN OF CON'ITNL?ING VIOL.ATIONS Petitioners allege that the operating license and CPA-1 proceedings demon-strated a corporate policy of Texas Utilities that resulted in a breakdows in the quality assurance (QA) and quality control (QC) programs employed by CPSES, which delayed construction. Dey contend that Texas Utilities continues to re-ceive numerous Notices of Violation and civil penalties which shows that it continues to employ the same corporate policies that originally resulted in the delay of construction. In support, Petitioners presented a printout of the Notices of Violation and penalties received since the settlement of the former proceed-ings. Petitioners specifically called our anention to the six notices that are said to have occurred related to QA and QC breakdowns. Rey were identified as j occurrmg on May 17, 1990; August 3,1990; February 21,1991; March 29, 1991; April 1,1991, and March 31,1992. Petitioners assert that tie Notices of Violation demonstrate that Texas Utilities has not abandoned its past corporate policy which resulted in delay. Rxas Utilities states that it has taken corrective and preventive actions for cach of the six violations, sid the NRC has closed all but the most recent violation. It disclaims that the violations provide a basis for a contention that there is a cunent or ongoing corporate policy of violating NRC regulations. l I We do not believe that which Petitioners have presented supports a claim of a pattern of violations that demonstrates a policy to violate NRC regulations. Inevitably, there will be some construction defects tied to quality assurance lapses in any project approaching in magnitude and complexity, the erection of i a nuclear power plant. Union Electric Co. (Callaway Plant, Unit 1), ALAB-740, l 18 NRC 343,346 (1983). No information was provided to show that anything more was involved here. Furthermore, Petitioners have not shows how tie j i t 381 [ i

_ _ = _ m. ' i i i violations were the cause of the delay at Unit 2 rather than as justified by Texas - I Utilities. L (3) AU.EGED MISil.ADING OF LICENSING BOARD N OPERATING 1.ICENSE AND CPA-1 PROCEEDINGS 1D CONCEAt, CORIORATE POUCY OF i V101.ATING NRC REGlit.ATIONS f r Petitioners allege that Ttxas Utilities misled the licensing teard in July 1988 i about the root causes of design defects incorporated in the design of CPSES, i which required a complete redesign of the CPSES pipe support system, thereby [ delaying constnetion. r (i) " flush Money" Settlement Agreements. Petitioners allege that Texas 7 Utilities arranged to have whistleblowers paid morey in exchange for agreeing not to Iring safety concerns to the NRC and denied such aravity at the prehearing conference on July 13,1988, which resulted in 119 termination of the proceedings. Specific mention is made of the Polizzi agreement. Petitioners claim that the failure of Texas Utilities to repudiate the agreements demonstrain that the practice will continue. { Texas Utilities denics that the agreements restrict whistleblowers from ii forming the NRC of safety concerns and that the NRC has so found. It assens that the agreements are more than 4 years old and do not relate to the permit holder's current corporate policy. [ The Board notes that the Polizzi agreement of June 23,1088, provides that l the agreement shall not "be interpreted to prevent Polizzi from informing the 1 Nuclear Regulatory Commission of any and all safety concerns he may have i i relating to the Comanche Peak Steam Electric Station." -i Even if we are to assume that " hush money" was paid, it does not ipsofacto show that delay at Unit I was caused by the entering into the agreements or that the agreements, on balance, caused the delay at Unit 2 rather than the reasons given by Texas Utilities. Petitioners have not provided a valid basis in support of the contention. l t i (ii) incorrect Stifness Values were Used to Certify Ihe CPSES Pipe Sup;' ort i System. Petitioners allege that beginning in 1983 S.M.A. Hasan, an enginect at CPSES, had informed 'Ibnas Utilitics mantgement that incorrect stiffness values i had been used to certify the CPSES pipe support system. The project pipe support engineer was advised of this in August 1985. Petitioners state that the 1 licensing board was not apprised of this situation as Texas Utilities was obligated to do. A minority owrer advised the licensing board in January 1987 that Texas 382 t I l Il i-i l l i

~, Utilities, that month, acknowledged using incorrect values in Unit 1. Petitioners further allege that the project pipe support engineer who oversaw the design of all piping support work at CPSES is believed to te currently employed as Texas l Utilities' Manager of Civil Digineering. Petitioners claim that this demonstrates that "Itxas Utilities has not repudiated its policy of construction in violation of NRC requirements includmg the concealment of significant safety deficiencies. Texas Utilities asserts that, in the mid-1980s, llasan made allegations to the NRC regarding tle pipe support certifications, it states that it advised the NRC that in July 1987 the pipe supports were being correctly validated and tie NRC concluded that Hasan's concern had been adequately resolved. Texas Utilities further asserts that the matters were made known to the licensing baard prior to the dismissal of the pmceeding on July 13,1988. It claims that Petitioners' allegations related to pipe support certification are more than 4 years old and do not relate to Texas Utilities' current corporate policies or as to whether it had repudiated past policies. Petitioners' claim that Texas Utilities maintains its policy of construction in violation of NRC requirements, including the concealment of significant safety deficiencies, is unsupported as prescribed in section 2.714(b)(2)(ii). Lacking is a showing that the alleged improper certifications and their concealments extended beyond 1988. Te only connection made of the prior activities of Texas Utilities and its current practices is that it continues to employ the same manager as to whom the initial complaints were made. Here is no showing that he presently allows improper certifications or conceals them. An additional defect in the pleading is that it does not directly challenge the asserted reasons of Texas Utilities in justi5 cation for the delay. (iii) Harassment andintimidation of Whistlebkmers. Petidoners contend that Texas Utilities has harassed and intimidated whistic510wers at CPSES. ney assert that numerous whistleblowers continue to file complaints against Texas Utilities and their contractors. Petitioners claim that "Itxas Utilities has not repudiated its corporate policy of constructing in violation of NRC regulations, which has resulted in the delay of constructica of Unit 2. Petitioners rely on an April 28, 1988 statement of the intervenor in the operating license and CPA-1 proceedings in which the intervenor questions whether Texas Utilities has adequately identified the root cause of the harassment and intimidation of QC inspectors, management's role in it, and the alleged withholding of information regarding the intimidation of a contractor that uns to conduct an independent assessment program. They also allege that Texas Utilities has not properly reviewed the concerns of whistleblowers and that harassment and intimidation still exist at CPSES. Petitioners seek discovery in order to document evidence which they state supports these and other assertions. 383

t t in response Texas Utilities contends that the allegations of harassmera and [ intimidation are unsupponed. It funher alleges that Petitioners did not provide t a basis for the allegations that the intimidation and harassmern or employee concerns resulted in the subject delay in the completion of CPSES Unit 2. Texas Utilities advises that in the mid-1980s an NRC special investigation team found j that there were some incidents of intimidation and harassment, but there was no ** climate of intimidation" at CPSES. Texas Utilides denies any deliberate i corporate policy of violating NRC requirements. i Petitioners

• assertion that an atmosphere of harassment and intimidadon exists l

at CPSES is not supported as is prescriled in section 2314(b)(2)(ii). De information supplied by Petitioners goes back to 1988 and before. No specifics i were provided on who the whistleblowers are that continue to file complaints - ~i and what are their ccmplaints. No nexus was provided terween the alleged misconduct in the mid-1980s and Texas Utilities

• alleged justification for the delay in the construction of Unit 2. Without such a connection the information provided is insufficient to support a litigable contention in a construction permit extension proceeding.

Although Petitioners would like to funher develop support for the contention through discovery, we cannot give them that right. Discovery is only available to e a party following the admission of a contention. Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1), ALAB-696,16 NRC 1245,1263 (1982); i 10 CF.R. 6 2.740(b)(1). ne contention fails because it does not directly challenge Texas Utilities

• good-cause justification for the delay in construction of Unit 2, the time being f

needed to reinspect and to take corrective action at Unit I and to allow it time i to make modifications at Unit 2 based on the knowledge gained. Petitioners' allegations of corporate wrongdoing do not show that a genuine dispute exists with the Applicants on theirjustification for the delay. ne contention also fails to comply with 10 CE.R. 52.714(b)(2)(iii) which requires that each contention contain sufficient information to show that a j genuine dispute exists with the applicant on a material issue of law or fact. j Re showing must include references to the specific ponions of the application j that the petitioner disputes. De contention is therefore inadmissible.10 CE.R. 52314(d)(1). The failure j to submit a single admissible contention results in Petitioners not being permitted j to panicipate in the proceeding as a pany.10 CF.R.12J14(b)(1). He Orrs' petition for leave to intervene and to hold a learing shall be denied. '{ c. Additional Pleadings l On November 17,1992, Petitioners filed a document entitled " Notification of Additional Evidence Supporting Petitions to Intervene Filed by B. Orr, D. Orr, -} l I h l 384 l l r 1 l l i l

6 r J. Macktal, and S. Hansan' (Notification). Petitioners submit for consideration l by the Board evidence they allege was not available to them on October 5,1992, j tie date set for filing contentions. L De evidence consists of execrpts of settlement agreements entered into -[ between Tbxas Utilities and minority owners Texas Municipal Ibwer Agency (HIPA) and Brazos. The agreements are dated February 12,1988, and July 5, 1988, respectively. ney cover the purchase by Texas Utilities of the minority interests. De former minority owners agreed that they and their attorneys, [ employees, and consultants would not assist or cooperate with 11urd panics in proceedings relating to Comanche Peak. { Petitioners allege that they were fust notified by le:ter of October 13,1992, i that the agreements were available for inspection in the NRC's Public Document l' Room, which made it too late for their inclusion in the contention filed October 5,1992. hey claim ttmt through these restrictive settlement agreements Texas Utilities j was able to secrete from the then-convened licensing board, the NRC, and the .j public, information calling into question aspects of the design and construction l of CPSES and the ability of Texas Utilities to construct and operate the plants. l Petitioners further claim that Lie agreements demonstrate a pMt corporate policy that has not been repudiated, which caused the delay in tne construction of Unit 2. Dey also allege that the agreements show the payrnent of money for f silence and that they violate the Energy Rcorganization Act and imponant public [ policies. r Texas Utilities assens in a response dated November 25,1992, that Petition-l ers' Notification is procedurally improper and substantively irrelevant. It claims l that the two documents were provided to the NRC years ago and were available to Petitioners long before October 13,1992. It stated that, at a minimum, Peti-tioners should have addressed the five factors that must be considered before a i nontimely filing may be entertained, as provided for in 10 C.F.R. f 2314(a)(1), I and that their failure to do so should result in the rejection of the document. [ Texas Utilities further argues that Petitioners mal:e no effort to explain low l the agreements have anything to do with the current extension request. It j claims that the agreements predate the previous extension of the construction l completion date and are irrelevant. The agreements are said to fail to satisfy the Commission's requirements for admission of a contention in a construction permit extension proceeding as contained in Comanche Peak, CL1-86-15, supra. i Staff in a December 3,1992 response argues that Petitioners have failed to .l establish good cause for the late filing of the Notification and that the information i and legal arguments contained in it should not le considered by the Bord. Staff also argues that the Notification fails to demonstrate that the contention has any discernable relationship to the issue in the proceeding. It assens that the j settlement agreements were last entered into in July 1988 which is prior to the i 385 l a v i a

relevant time frame in the proceeding which is November 18,1992, when the previous construction permit construction completion date was extended. Staff claims that "Itxas Utilitics' defense of the agreements in no way demonstrates that the permit holder had a corporate policy that was responsible for the delay in the construction of Unit 2. We fmd that the two settlement agreements cannot be considered as newly obtained evidence because they were publicly availabic prior to the October 5, 1992 filing date. The agreemer,ts were submitted to the NRC,in 1988,in surport of two applications to amend the construction permits for CPSES to reflect the changes in ownership. He issuance of the amendments was noticed in the Federal Register along with the information that the application documents were available in the NRC's Public Document Room. 53 Fed. Reg. 31,778 (Aug.19, 1988);53 Fed. Reg. 50,610 (Dec.16,1988). Funhermore, Petitioners were generally aware of the contents of the agree-ments when they filed their contention on October 5,1992, and could have made in that filing all of the points they offer in the Notification. In the October 5,1992 filing, Petitioners submined excerpts of a similar settlement agreement that Texas Utilities entered into with Tex-La Electric Cooperative of Texas and argued that the agreement and those with Brazos and TMPA supponed their contention. Petitioners stated that they were unable to get copics of the Brazos and TMPA setdement agreements but argued on the basis of all (nree becaure they were all similar. De submission of excerpts of the two agreements in tne Notification were but a formality in that their relevant contents had aheady been used in a basis in suppen of the contention. Petitioners used the excerpts of the Brazos and TMPA settlement agreements as a vehicle to expand on the previous matters presented in support of the contention and to introduce new arguments suc's as the claim that the setdement agreements reflected the payment of money for silence and that they violate the Energy Reorganization Act and public policies. Not only can the Brazos and TMPA settlement agreements not be considered new evidence because of their previous availability,but their contents had already been used to support the contention. What Petitioners have proffered in their Notification is a late-filed amendment to the bases of their contention. It was offered without good cause and without addressing the five factors required to be considered by the Board prior to determining whether the nontimely filing should be entenained.10 C.F.R. 9 2.714(a)(1). We therefore reject the Notification. Petitioners B. Irene Orr, DJ. Orr, Joseph J. Macktal, Jr., and S.M.A. Hasan filed a motion entitled " Motion to Compel Disclosure of Information Secreted by RestrictNe Agreements, dated November 15,1992. Petitioners request the Board to declare null and void the provisions of the setdement agreements between Texas Utilities and the three minority owners, which prohibit the minority owners and those associated with them from disclosing any potential 386 -____-__________________-__________-__-____-____-______________-__-_______-_____________a

safety-related information to Petitioners, the NRC, and the general public. Rey also request that the Board require that the parties to the settlement agreements, and those affected by the agreements, submit to discovery by Petitioners. The purpose of the discovery is to permit Petitioners to file additional contentior.s and additional information in support of the previously filed contention. Texas Utilities in a response dated November 25, 1992, requests that the motion be derded. It asserts that the request to declare the agreements null and void is beyond the scope of the Board's jurisdiction and that the request for discovery to frame contentions is for relief that a petitioner seeking to inten>cne is not entitled. Staff, in its respone dated December 3,1992, agrees with Texas Utilities in opposing the motion. It also contends that the agreements violate neither the Energy Reorganization Act nor the Commission's regulations. However, to the extent the agreements are within the proceeding and they preclude the affected i corporate entities from bringing information to the NRC they are without force and effect insofar as they relate to communications with the NRC. i We deny the motion because Petitioners scck relief that is not available to a petitioner for leave to intervene. The motion in effect is one for discovery. De request to declare parts of the settlement agirements null and void is but an integral part and in furtherance of the discovery request. Discovery is only available to a party to the proceeding that has already filed an admissible contention. Point Beach ALAB-6%,16 NRC at 1263; 10 C.F.R. 92.740(b)(1). Petitioners have not achieved that status and cannot be granted that relief. We do not rule at this time on whether the relief could be granted as requested had j Petitioners achieved party status. B. The Dow Petition to Intervene 1. Requisite interestfor Standing R. Micky Dow, his spouse Sandra long Dow, and Disposable Workers of Comanche Peak Steam Electric Station (Worters), each petitions for leave to t t intervene in the proceeding, pursuant to section 2.714 R. Micky Dow alleges that he owns property within a 50-mile radius of-CPSES and could be harmed by an accident at the plant. He claims to have already been adversely affected because of telephone threats by an officer of l Tbxas Utilities which caused him to flee from his home and Texas. Sandra Long Dow claims that in the normal course of events she would reaide l with her husband within a 50-mile radius of CPSES but has been precluded from [ doing so because of threats to him and harassment to her from those under the control of Texas Utilities. i I I 387 L l h I

r f i _ Workers is stated to be an organization composed chiefly of persons who own j _ propeny or reside within a 50-mile radius of the facility. Affidavits attesting to this are claimed by Petitioners to be already on file with the NRC. It was not identified where. The board of directors of Workers is reponed to be made I up of former whistleblowers who were prevented from testifying before de { Commission because of an allegedly illegal settlement agreement. Workers claims to have had standing in "past issues" and wants to reclaim it here. The. [ "past issues" were not identified. Petitioners claim that all of those interested in the proceeding do, or will live, work, recreate, travel, and raise families within a :ndius of 50 miles of CPSES. Much of the food and all of the water used in the area was said to be subject to radioacdve or toxic material releases from the facilities. They asse". that there t is good reason to deny the request for an extension but do not further identify { it. ~ Petitioners request the suspension of the subject proceeding based on vague [ arguments relating to other proceedings that they are engaged in before the NRC and the federal courts. ~Ihey argue mootress and due pmcess as bases for suspending this proceedmg. l Texas Utilities argues inat the joint petition should not be accepted for filing. It asserts that it is one or more than a dozen actions involving CPSES that the Dows have initiated. Texas Utilides claims that the Dows.mve engage 4 in a pattern of not complying with the Commission's requirements, of making i frivolous and scurrilous claims, of omitting material facts,.=' of harassing it and the NRC. Texas Utilities had requested the Commissior. grant a similar + motion in CLI-92-12,36 NRC 62 (1992), but in denying the Dows

• petition for

.f y late intervention and to reopen tle record, the Commission did not address the Texas Utilities

• motion.

[ Texas Utilities asserts that the Dows have not established standing for j themselves on the basis of the proximity _of their nesidence or their property to CPSES. It claims that the piobable reason that the Dows have not chosen to [ remain in Texas is that he is a convictut felon and that there are felony arrest and misdemeanor warrants outstanding against him in 7txas. Texas Utilitics' l position is that Mr. Dow's inabilitj to establish standing is due to his own misconduct. It further argues that the Dows have not asserted any other irdury-i in fact that falls within the zone of interests protected by the AEA ad that organizadonal standing was not established on behalf of Workers. It could deny the Dow petition for lack of standing of the Petitioners. Staff is of the same position as Texas Utilities that the Dow petition does [ not establish standing as provided in section 2.714. It views Petitioners' request l to suspend the proceeding on the basis of mootness and due process claims as I irrelevant considering that they have not established standing. I 388 + 5 t i h f i r

i De Daws individually cannot be presumed to be adversely affected by either l' plant operations or a credible accidrat at the plant where their base of normal, everyday activities is not within close proximity (50 miles) of the facility. Gulf f States Utilities Co. (River Bend Station, Units 1 and 2), A1.AB-183,7 AEC 222, 226 (1974). The Dows fault 7txas Utilities for not leing able to reside within 50 miles from the plant and Texas Utilities blames the Dows for the situation. Irrespective 1 of who is responsible, the Dows do not meet the conditions for invoking the presump6on. To establish standing, they are therefore relegated to do so by alleging an injury-in-fact that is within the zone ofinterests protected by the AEA or NEPA. i ne injury should likely be remedied by a favorable decision granting the relief .j s sought. Dellums v. NRC, supra. ne Dows individually have not met the feregoing requirements. They have not satisfactorily explained how they, who do not reside in Texas, would have their health and safety jeopardized or suffer environmental harm because of the construction of Unit 2. De property alleged to be owned near the plant was -f never identified. f The alleged threats and harassment that were said to result in the Dows fleeing Texas is not an injury protected under the AEA or NEPA, A favorable decision for the Dows in the subject proceeding would not remedy the alleged injury. ne forum for resolving that dispute is not here. They do not have requisite 7 interest for standing. i We find that the Workers has not been shown to have the necessary interest i for organizational or representative standing. Ihr an organization to have standing, it must show injury-in-fact to its organizational interests or to the interest of members who have authorized it j to act for them. If the organization is depending upon injury to die interests of its members to establish standing, the organization must provide with its petition identification of at least one member who will be injured, a description of the j nature of that injury, and an authorization for the organization to represent thht individual in the proceedmg. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-82-43A,15 NRC 1423,1437 (1982). Workets does not state its organizational purpose nor does it claim any injury -l to its organizational interest. Its assertions that it had standing in the past in j some unidentified matter does nothing to enhance its claim to standing in this l proceeding. It is incumtent on Workers to establish standing on this record and it cannot rely on something elsewhere of which we know nothing. } Similarly, it has not established representational standing. It relies on unsupplied affidavits that are said to anest to Workers' members owning property l or residing within 50 miles of CPSES. The contents of the affidavits and th proceeding in which they were filed are unknown. 389 i i t f }

i i i There is nothing in this record, as is. required for representational standing, that identifies at least one member who will be injured, a description of the ~l nature of that injury to the member, and an authorizadon for the Workers to [ represent that individual in this proceeding. Sandra Long Dow does not fulfill i the role of being the injured member for the reasons we stated previously as to i why she has not established individual standing. Not having established the interest for standing, the request by the Dow i petitioners to suspend this proceeding on claims of mootness and due process j cannot be considered by us. WJ will not decide on Texas Utilitics' request that we not accepr. the filing 1 of the Dow petition. There is insufficient evidence in this record to make that ruling. It would serve no useful purpose to further pursue the matter and thereby delay the disposition of this proceeding which can be disposed of on the existing record. The petition for leave to intervene and to hold a hearing shall be denied on the grounds that Petitioners failed to establish the requisite interest for standing { under section 2.714. t i i 2. Aspects i Texas Utilities and Staff claim that the Dow petition for leave to inten ene fails to set forth the specific aspect or aspects of the subject matter of the proceeding [ as to which Petitioners seek to intervene, contary to section 2.714(a)(2). We agree that this constitutes another defect in the Dow petition which is inadequate for establishing standing under section 2.714 l 3. The Request to File Contentions In a Memorandum and Order of September 11, 1992, we set October 5, 1992, as the date to file amended petitions and supplemental petitions containing contentions for litigation. On October 5. the Dow petitioners filed a motion for an extension of 30 days to make the filing. *Ihc request was based on a claim j that movants were precluded from making a timely filing through circumstances 'i over which they had no control. We denied the request on the grounds that their reason lacked credibility, was unsupported by probative evidence, and failed to l show good cause. R. Micky Dow asserted that on September 3,1992, le was appretended. i confined, and teld incommunicado for 30 days and his case matenals were crnfiscated in order to disrupt his participation in the pioceeding and to keep from timely making the October 5 filing date. Underscaing the lack of credibility of the story was that he said te was imprisoned on September 3, j 390 l n b f

T 1992, to keep him from making the October filing date, ahhough it was not until September 11, 1992, that the Board issued its mernorandum and set the date for filing. in response to our Memorandum and Order of October 19, 1992, denying the motion, R. Micky Dow filed a motion for rehearing dated November 10 j 1992. He now argues that he had no knowledge of the scheduling order and therefom could not timely respond. lie asserts that granting an extension would not prejudice any of the panies and if the Board found his modon to be lacking j in truth it would have been more appropriate to issue an order to show cause. Toas Utilities opposes the motion because it provides no new information that would aher the Board's prior ruling that good cause for granting an extension had not been demonstrated. It contends that the motion merely provides additional unsubstantiated details related to precisely the same events discussed in the initial motion. Staff also opposes the motion. It argues that the motion fails to demonstrate that the October 19,1992 order was erroneous or arbitmry. Staff considers the i motion for rehearing as a motion for reconsideration and states that the motion does not meet the standards for reconsiaeration. The Commission has held that i motions to reconsider should be associated with requests for reevaluation of an order in light of an elaboration upon or refinement of arguments previously advanced and they are not the occasion for an entitely new thesis. Central Electric rower Cooperative, Inc. (Virgil C. Summer Nuclear Station, Unit 1), i CIJ-81-26,14 NRC 787 (1981). Staff alleges that the claim of a lack of knowledge of the filing date is new and improper to raise in the motion for rehearing. Additionally, it states that the movant reiterates the same argument without further elaboration, that he was separated from his evidentiary material and was unable to contact anyone, which j is also improper pleading. It also alleges that movant fails to understand his burden of proof in a motion for an extension of time and that the motion for 3 reheanng was untimely. De Dow motion for rehearing, along with the attached unverified statement of Mr. Dow only confirms our October 19,1992 finding that the original motion lacked credibility, was unsupported by probative evidence, and failed to provide good cause for the requested extension.' De heart of the original motion was the Dow claim that he had a rough draft of the pleading to be filed, that he was incarcerated on September 3 for more than 30 days, and had his papers stolen so that he would not be able to timely file. Ilaying had the Board point out that it first ordered the pleading filed on Septemter 11, 1992, he now states that le never knew of the September 11 l order and therefore could not meet it This change merely conflicts with the i original version and does nothing to enhance credibility. f i 391 l k f l l \\ .I

i i ~ Dow in his original motion claimed that he was held incommunicado for more - than 30 days and could not contact anyone regarding the possible extension of the filing date. In his current statement he advises of three telephone conversations i with one attorney, a visit by another, and of telephone calls he made but not with the frequency he wanted. He now undermines his claim that he could not j contact anyone regarding the filing. _ _t In his original motion of October 5,1992, Dow stated that."the public record and court transcription in existence now will completely substantiate" his version of what occurred. The motion for rehearing remains unsupported by any probative evidence. All that was submitted was an unverified statement. that conflicts with the original story. Under 10 C.F.R. 552.711(a) and 2.732, the Dows had the burden of showing good cause for the requested extension. Rey did not meet this burden provided for in the NRC's Rules of Practice and their motion for an extension failed. We found no basis to employ a show-cause procedure before deciding the motion. it was not required or wananted by the circumstances. De Dows contend that granting the extension will not prejudice anyone. To the contrary, to grant a motion that legally should be denied results in a denial of due process. Parties would be injured if this was permitted to occur, and the administrative process would also suffer. We will not deny the November 10.1992 motion for rehearing on the grounds of untimeliness because there is no prescribed time for filing such a motion. We - i shall deny the motion on the basis that it failed to show that there was error in our denial of the motion for an extension of time to file contentions. 9 Order i Based upon all of the foregoing, it is hereby Ordered: I

1. The November 15, la92 " Motion to Compel Disclosure of Information Secreted by Restrictive Agreements" filed by B. Irene Orr, D.I. Orr, Joseph J.

Macktal, Jr., and S.M.A. Hasan is denied.

2. The November 17,1992" Notification of Additional Evidence Supporting Petition to Intervene Filed by B. Orr, D. Orr, J. Macktal, and S. Hasan" is f

rejected. {

3. Tie July 27,1992 " Petition to Intervene and Request for Hearing of B.

l Irene, D.L Orr, Joseph J. Macktal, Jr., and S.M.A. Hasan," as supplemented on j October 5,1992, is denied. 4 The November 10.1992 " Motion for Rehearing by R. Micky Dow, Petitioner"is denied. [ F 392 i f 4 8 i t f

i k i l!

5. The July 28,1992 " Petition of Sandra 1.ong Dow dba Disposable Worters of Comanche Peak Steam Electric Station, and R. Micky Dow for Intervention 'ad Request for Hearings" is denied.

6. The proceeding is terminated.

This Order is subject to appeal to the Commission pursuant to the terms of 10 C.F.R. 5 2.714a. and specifically 10 C.F.R. 9 2.714a(b). Any such appeal must be filed within 10 days after service of this Order and must include a notice i of appeal and accompanying supporting brief. Any other party may file a brief f in support of or in opposition to the appeal within 10 days after senice of the appeal. i THE ATOMIC SAFETY AND LICENSING BOARD i s i i Mo1on B.~ Margulics Chairman - l CHIEF ADMINISTRATIVE LAW JUDGE } Dr. James H. Carpenter l ADMINISTRATIVE JUDGE i i r Dr. Peter S. Lam f ADMINISTRATIVE JUDGE [ Bethesda, Maryland December 15.1992 i -[ I I -l 1 i 5 i i 393 Y l s .i, l I

i Cite as 36 NRC 394 (1992) LBP-92-38 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy in the Matter of Docket Nos. 50-424-OLA ! 50-425-OLA-3 j (ASLBP No. 96-671-01-OLA-3) (Re: License Amendment) (Transfer to Southern Nuclear) l GEORGIA POWER COMPANY, et at (Vogtle Electric Generating Plant, Units 1 and 2) December 24,1992 l The Licensing Board determined that there was a factual dispute concerning the extent of Petitioner's contacts with the Vogtle Plant, and it scheduled an evidentiary hearing on this one issue as part of a scheduled prelearing conference. RULES OF PRACTICE: STANDING; IIEARING ON DISPUTED l ISSUES An evidentiary hearing may be held to determine whether or not petitioner has met the criteria for standing. 394 l t = e

MEMORANDUM AND ORDER (Factual Dispute About Residence; Evidentiary llearing) The January 12,1993 prehearing conference shallinclude a determination of the factual dispute concerning the residence of Mr. Mosbaugh. According to Mr. Mosbaugh: Mr. Mosbaugh owns property and resides at 1701 Kings Court, Groveiown, Georgia, 30813. Said property is within 50 miles d plant Vogtle. Mr. Mosbaugh resides at this residence approximately one week endi month. Said residence is a single farnily, two story structure situated on 21/2 acres of property deeded in the narne of petitioner.,, Moreover, Mr. Mosbaugh routinely conducts in-person meetings with investigators of the Nudear Regulatory Curnmission's Office of investigaticri (which has been an on. going process since 1990) at his Groveiown residence ard other locations in the Augusta, Georgia aret . Mr. Mosbaugh vated in Colurnbia County, Georgia, in 1992 elections; cmtinuously banks in the Augusta area, and continuously maintains a private telephone at his Grovetown residence. .3 By contrast, Georgia Power Company challenges these assertions, claiming that Mr. Mosbaugh no longer uses his " residence" as a mailing address and that he voted in the general election in 1992 in Ohio, where he allegedly declared that his only residence is Clermont County, Ohio.2 We fmd that this factual dispute is relevant to whether or not Mr. Mosbaugh has standing in this license amendment proceeding. See Boston Edison Co. (Pil-grim Nuclear Power Station), LBP-85-24, 22 NRC 97, 98-99 (1985) (residence 43 miles from a nuclear power plant is not sufficient to establish standing to challenge an amendment modifying an existing facility's spent fuel pool), aff*d on other grounds. ALABM,22 NRC 461 (1985). Consequently, we set this iactual dispute for hearing at the scheduled prehear-ing conference. Intervenor appears to have the burden of proof of establishing the extent of his contacts with the Vogtle Plant by a prepondemnce of the evi-dence. We encourage the parties to reach stipulations as to the underlying facts and to be creative in cooperating on ways to narrow the contested issues and reduce the time that would otherwise be needed for trial. We are prepared to help in this process. The prehearing conference will commence with the evidentiary hearing concerning standing. The Board may reach a final determination of this case 3 Amendments in Pauuan to Intervene and Request far 11eanng (Dec. 9.1992, at 2 We rune that Mr. Marvm B. Ilobby, whane narns is rnmtioned an page 1 el the 1% tium, has been damused as a pentimer. 2 Georges Ibwer Campany's Answer (Dec.22,1992) at 5 9. 395 1 I ) ____________________________y

w based on that hearing. In that event, the prehearing conference could be - adjourned before other matters are considered. As we stated in our previous order (unpublished dated December 14, 1992):_ All wriuen exhibits and graphics to be used at the conference dxmid be recciwr4 by the Board and panies by January 7,1993. FOR Tile ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chair ADMINISTRATIVE JUDGE Bethesda, Maryland 396}}