ML20044E546
| ML20044E546 | |
| Person / Time | |
|---|---|
| Issue date: | 04/30/1993 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V37-N02, NUREG-750, NUREG-750-V37-N2, NUDOCS 9305250140 | |
| Download: ML20044E546 (85) | |
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NUREG-0750 Vol. 37, No. 2 l
Pages 55-134 l
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U..St. NUCLEAR REGULATORY COMMISSION 4
l 9305250140 930430 i
PDR NUREG 0750 R PDR l
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l Available from Superinteniendent of Documents U.S. Government Printing Office Post Office Box 37082
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Washington, D.C. 20013-7082 i
A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.
Sing!e copies of this publication are available from National Technical Information Service, Springfield, VA 22161 t
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Errors in this publication may be reported to the Division of Freedom of Information and Publications Services i
Office of Administration U.S. Nuclear Regulatory Commission j
Washington, DC 20555 i
(301/492-8925) i
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1 NUREG-0750 Vol. 37. No. 2 1
l Pages 55-134 1
1 NUCLEAR REGULATORY COMMISSION ISSUANCES i
i February 1993 l
i This report includes the issuances received during the specified period 1
]
from the Commission (CLI), the Atomic Safety and Uconsing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions i
(DD), and the Denials of Petitions for Rulemaking (DPRM).
The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independent legal significance.
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U.S. NUCLEAR REGULATORY COMMISSION Prepared by the l
Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission l
Washington, DC 20555 3
(301/492-8925) i
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COMMISSIONERS tvan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick E. Gail de Planque b
f B. Paul Cotter, Jr., Chief Administrative Judge, Atomic Safety and Ucensirg Board Panel 8
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CONTENTS Issuance of the Nuclear Regulatory Commission
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TEXAS UTILITIES ELECTRIC COMPANY, et al.
(Comanche Peak Steam Electric Station, Unit 2) i Docket 50-446-CPA i
MEMORANDUM AND ORDER, CLI-93-2, Rbruary 3,1993....... 55' t
Issuances of the Atomic Safety and Licensing Boards BABCOCK AND WILCOX (Apollo, Pennsylvania Rel Fabrication Rcility)
Docket 70-135-DCOM (ASLBP No. 92-667-03-DCOM)
(Decommissioning Plan) (Materials License No. SNM-145)
MEMORANDUM AND ORDER, LBP-93-4, Rbruary 5,1993...... 72 GEO-TECII ASSOCIATES,INC.
I (Geo-Tech Laboratones,43 South Avenue, Panwood, New Jersey M023)
Docket 030-20693-EA (ASLBP No. 93-670-01-EA)
(Materials License No. 29-1822205-02) i MEMORANDUM AND ORDER, LBP-93-2, February 1,1993......
61 GEORGIA POWER COMPANY, et al.
(Vogtle Electric Generating Plant, Units 1 and 2)
Docket Nos. 50-424-OLA-3,50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3)
(Re: License Amendment) (Transfer to Southern Nuclear)
MEMORANDUM AND ORDER, LBP-93-5, Rbruary 18,1993...... %
LOUISIANA ENERGY SERVICES, L.P.
(Claibome Enrichment Cen*ct) i Docket 70-3070-ML (ASLBP No. 91-641-02-ML) f (Special Nuc1 car Materials License)
MEMORANDUM AND ORDER, LBP-93-3, Rbruary 2,1993...... 64 i
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Issuance of Director's Decisions CAROLINA POWER AND LIGIIT COMPANY (Brunswick. Station, Units 1 and 2)
Dockets 50-324, 50-325 PARTIAL DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206, 113 DD-93-3, Rbruary 1, 1993...........................
CAROLINA POWER AND LIG11T COMPANY (Shearon IIanis Nuclear Power Plant)
Docket 50400 PARTIAL DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206, DD-93-3, Rbruary 1,1993............................... 113 DETROIT EDISON COMPANY, ci al.
(Enrico Rrmi Atomic Power Plant, Unit 2)
Docket 50-341 PARTIAL DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206, DD-93-3, Rbruary 1,1993.............................. 113 GULF STATES UTILITIES COMPANY (River Bend station, Unit 1)
Docket 50-458 PARTIAL DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206, DD-93-3, Rbruary 1,1993................................ 113 TEXAS UTILITIES ELECTP,1C COMPANY (Comanche Peak Steam Electric Station, Units 1 and 2)
Dockets 50445, 50-446 PARTIAL DIRECTOR'S DECISION UNDER 10 C.F.R. 9 2.206, DD-93-3, Rbruary 1,1993................................. 113 WASHINGTON PUBLIC POWER SUPPLY SYSTEM (WPPSS Nuclear Pro _iect No. 2)
Docket 50-397 PARTIAL DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206,
....................... 113 DD-93-3, Rbruary 1,1993.....
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Cite as 37 NRC 55 (1993)
CU-93-2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
1 Ivan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick E. Gail de Planque i
in the Matter of Docket No. 50-446-CPA i
TEXAS UTILITIES ELECTRIC COMPANY, et at (Comanche Peak Steam Electric i
Station, Unit 2)
February 3,1993 I
De Commission denies the request of B. Irene Orr and DJ. Orr for a stay of the issuance of the low-power operating license for Comanche Peak Unit 2. De Commission finds that Petitioners
- stay request cannot properly be considered in the operating license proceeding because they are neither parties to that proceeding nor have they addressed in their stay request the five factors for late-filed intervendon petitions. Furthermore, the Commission cannot consider Petitioners' stay request in the construction permit amendment proceeding, to which Petitioners are a party, because they have failed to relate the stay request to any action in that proceeding.
RULES OF PRACTICE: STAY OF AGENCY ACTION Where petitioners who have filed a request to stay issuance of a low-power license are not parties to the operating license proceeding, and where petitioners' request does not address the five factors for late intervention found in 10 C.F.R.
5 2.714(a)(1)(i)-(v), the request cannot properly be considered in that operating license proceeding.
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RULES OF PRACTICE: STAY OF AGENCY ACTION he provision for stays in 10 C.F.R. 52.788 provides only for stays of decisions or actions in the proceeding under review.
RULES OF PRACTICE: STAY OF AGENCY ACTION Where petitioners do not relate their stay request to any action in the l
proceeding under review, the request for stay is beyond the scope of 10 C.F.R.
6 2.788. Such a request is more pmperly a petition for immediate enforcement j
action under 10 C.F.R. 5 2.206.
RULES OF PRACTICE: STAY OF AGENCY ACTION (CRITERIA)
Section 2.788(b)(2) of 10 C.F.R. specifies that an application for a stay must contain a concise statement of the grounds for stay, with reference to the factors specified in paragraph (c) of that section.
RULES OF PRACTICE: STAY OF AGENCY ACTION (CRITERIA)
Pursuant to 10 C.F.R. 6 2.788(c)(1)-(4), the factors to be considered in determining whether to grant or deny an application for a stay are: (1) whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) whether the party will be irreparably injured unless the stay is granted; (3) whether the granting of a stay would harm other parties; and (4) where the public iaterest lies.
RULES OF PRACTICE: ORAL ARGUMENT De Commission requires that a party seeking oral argument must explain how oral argument would assist it in reaching a decision.
f MEMORANDUM AND ORDER L INTRODUCTION t
nis matter is before the Commission on a motion filed by B. Irene Orr and D.I. Orr (" Petitioners")' seeking a stay of the issuance of the low-power license 8 we g, resume that the sequest is rded a behalf of the orrs because it is rded by their couanet Nowhere in the stay request are thear namen mernaaned P
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I by the NRC Staff for Comanche Peak Unit 2. Petitioners seek a stay of the low-t power license pending, inter alia, our resolution of their appeal from a decision j
issued by the Atomic Safety and Licensing Board (" Licensing Board") denying 3
their petition to intervene in the construction permit amendment ("CPA")
proceeding involving this facility. The Texas Utilities Electric Company ("TU l
Electric" or " Licensee") has responded in opposition. For the reasons stated below, we deny the stay request j
i II. BACKGROUND f
Prior to filing this action, Petitioners have made to attempt to participate in the Comanche Peak Unit 2 operating license ("OL") proceeding, in which the low-power license is to be issued. Instead, their participation has been l
limited to participation in the CPA proceeding. In the CPA proceeding, 'IU Electric seeks to amend the Unit 2 construction permit to extend the latest construction completion date to August'1,1995. De NRC Staff issued an
" Environmental Assessment and Finding of No Significant Impact" analyzing the proposed extension on June 23,1992. Sec 57 Fed. Reg. 28,885 (June 29,1992).
ne Staff then issued an order extending the latest construction completion date, as requested, on July 28,1992. See 57 Fed. Reg. 34,323 (Aug. 4,1992).
In response to the Environmental Assessment, Petitioners filed a petition to intervene and a request for a hearing. Both the Licensee and the NRC Staff opposed Petitioners' request. After preliminary proceedmgs, the Licensing Board issued an order denying Petitioners
- request for intervention, based upon their failure to submit an admissible contention. LBP-92-37,36 NRC 370,384 (1992). Petitioners have perfected a timely appeal which is now pending before 3
the Commission.
On Monday, February 1,1993, the NRC Staff provided notice to Petitioners that the Staff intended to issue the low-power license late on the afternoon of Tuesday, February 2,1993, approximately 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> later. While the Staff was actually preparing to sign the license, Petitioners filed a request for a stay of that license by facsimile transmission. The Licensee immediately filed a response in opposition to the stay request by facsimile transmission. After reviewing
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both Petitioners' request and the Licensee's response, the NRC Staff issued the low-power license.
l III. ANALYSIS -
Petitioners have attempted to file their request in the OL proceeding for Unit 2 as well as the CPA proceeding.1:owever, Petitioners are not panics to the l
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t OL proceeding. Inasmuch as their request does not address the five factors for late-filed petitions to intervene found in 10 C.F.R. 5 2.714(a)(1)(i)-(v), this stay request cannot properly be considered in the operating license proceeding.
The provision for " stays" in the Commission's regulations, by its terms, applies only to "a decision or action of a presiding officer...." 10 C.F.R.
G 2.788. In short, this provision provides only for stays of decisions or actions in the proceeding under review - in this case, the CPA proceeding. However, Petitioners do not relate their request to any action in the CPA. Therefore, the request for stay is beyond the scope of section 2.788 and is more properly a r
petition for immediate enforcement action under 10 C.F.R. 92.206. However, in view of the need for a prompt NRC decision to remove uncertainty regarding the status of the low-power license, we proceed below to consider the petition without referring it to the Staff for a decision, which is our normal practice.2 The only allegation raised by Petitioners is that TU Electric has " secreted" information from the NRC, Motion at 2-3, and that this action may raise doubts about 'IU Electric's " character and competence" to operate [ Comanche Peak]
safely." Id. at 3. As a result, Petitioners now ask the Commission to direct TV Electric to turn that information over to them. Id. at 4. However, Petitioners cite no evidence for their allegation other than a generalized reference to the
" entire record" before the Licensing Board. Id. at 2 n.l. Such a generalized reference provides no aid whatever in evaluating Petitioners' motion and is simply insufficient for the purposes of issuing a stay of the low-power license.
Petitioners do include as an exhibit a letter from the NRC Staff to TU Electric which directs TO Electric to take certain steps regarding agreements between TU Electric and its former minority co-owners in which TO Electric ptorchased the minority owrx:rs' shares in Comanche Peak. See leuer from Thomas E.
Murley, NRC, to William J. Cahill, TU Electric (January 12, 1993). However, there is no showing that any actions that the NRC directed TU Electric to take in that letter will have any impact on low-power operation. As mandated in that letter, TU Electric's response will be in the Commission's hands - and in the i
2gy,,,,,,,,,,,gwido that sectmn 1788 did apply to tha situatmn. we rmd that Pttationers have faDod to e
addrums - much less satanfy - that sectinn's. pm..;.. sectie 2.788 specifies that *an appliostian far a stay
. nuant celain.. la] concise staternent of the smunds for stay, with refenmce to the factos specified in paragaph (e) of stus secum? 10 CF.R. 517Et(b)(2). Those facurs. in turn, are: *(1) [w]hether the moving i
party has made a simng showmg that it is likely to pwwail en the merits;(2) !w]hether the party will be irreparably injured unless a stay is gramed. (3)]w]hetha the graming af a stay would harm other parties; and (4) [w)here the public imerum bes? 10 CF.R. $ 178E(c)(1)-(4) Peuunners' " stay reques" dues nnt address those facuws at aD and, therefore. must be dmied on its mems. Marotwer, although the Petahoncru mere only informed of the sta.Ts specific schedule t a Tehrua y 1. they were adrised weD over a wed previoualy by Carmnission counsel of the likcJy ocar-term issuance of the low-power lim llum, any stay nquest should have been filed much carher than virtually the minu:e the license was actuaDy due to issue, lheir unressonshic delay in seeking relief cuts agamst gramma it.
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4 public' domain - within 30 days of the NRC's letter. His response will bc
.l filed before issuance of the full-power license becomes an issue.8 In conclusion, we find that there is no reason to delay the effectiveness of i
the low-power license and we deny the request before us.'
It is so ORDERED.-
i For the Commission '
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3 SAMUEL J. CHILK Secretary of the Commission P
Dated at Rockville, Maryland, j
this 3d day of February 1993.
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l 3 Mamwer, as we have pdnued out on other occamans, the risks d low-power operanan are annimal See, e.g.,
l Pelic Service Co. a(New Hawkin (Seabrook Station. Units 3 and 2), CIJ-89-8,29 NRC 399 (1989); Cwma i
- v. NRC,7/2 F.2d 972 (D.C Cir.1985).
'We also deny Ptanimen* sequest for oral argumera on this ma6an. Motion at 4. Peutioners have faded to i
dernorstrate "how [ oral argumern) would suist us in reaching a decaum" la n Joseph J. Macksal. CL1-89-12, 30 NRC 19,23 n.1 (1989); Temar Usikrics Decsric Co. (Comandse hak Steam Electric Station Units I and 2).
QJ-92-12,36 NRC 62,6&49 (1992).
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- Chr6ss and de Planque are not svaDahle to parucipaw in this maner.
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Atomic Sa"ety l
and Licensing j
Boards issuances i'
ATOMIC SAFETY AND LICENSING BOARD PANEL (f),
j Q
l B. Paul Cotter, Jr.,* Chief Administrative Judge l
Robert M. Lazo,* Deputy Chief Administr stive Judge (Executive)
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Frederick J. Shon,* Deputy Chief Adminirtrative Judge (Technical) f l
O Members Dr George C. Arderson James R Gleason*
Dr. Kenneth A. McColiom - Q i
Charles Bechhoefer*
Dr. David L Hettick Marshall E. Mdier Peter B. Bloch*
Ernest E. Hdi Thornas S. Mmre*
Z G. Paul Bollwerk til*
Dr. Frank F. Hooper Dt Peter A. Morns a
l Glenn O. Brght Ekzabeth B. Johnson Thomas D. Murphy *
([)
i Dr A.Dixon Callihan Dt Walter H. Jordan Dr Richard R. Parizek 8
Dt James H. Camenter*
Dr. Charies N. Kolber*
Ot Harry Rein l
Dr. Richard F. Cole
- Dt Jerry R. Khne*
Lester S. Rubenstein W
l Dr Thomas E. Elleman Dt Peter S. tam
- Dr dam R. Schink l
Dr George A. Ferguson Dt James C. Lamb til Ivan W. Srnith*
f Dr Harry Foreman Dt Emmeth A. L.uebke Dr George F. Tidey
]
Dr Richard F. Foster Morton B. Marguhes*
Sheldon J. Wolfe l
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' Pen.tanent panel msmbers i
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Cite as 37 NRC 61 (1993)
LBP-93-2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Admints+Jative Judges:
Ivan W. Smith, Chairman Dr. Richard F. Cole Dr. Walter H. Jordan in the Matter of Docket No. 030-20693-EA (ASLBP No. 93-67041-EA)
(Materials License No. 29-1822205-02)
GEO-TECH ASSOCIATES,INC.
(Geo-Tech Laboratories, 43 South Avenue, Fanwood, New Jersey 07023)
February 1,1993 MEMORANDUM AND ORDER (Terminating Proceeding)
SYNOPSIS The NRC Staff moves for dismissal of the request for hearing by Ge& Tech Associates, Inc. The Licensing Board grants the Staff's motion on the sepamtely sufficient grounds that (1) Geo-Tech has failed to comply with the Board's order to respond to charges against it; (2) Geo-Tech has failed to comply with the Board's order to explain why its hearing request was late; and (3) Geo-Tech has failed to answer the Staff's motion to dismiss the request for hearing.
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BACKGROUND l
On August 11,1992, the NRC's Deputy Chief Financial Officer / Controller issued an order revoking the materials license of Geo-Tech Associates for failure to pay its annual license fee. 'Ihe Revocation Order, properly issued pursuant to the provisions of 10 C.F.R. 6 2.202, directed Geo-Tech to submit within 30 days an answer to the order, admitting or denying each charge.
On September 16,1992, Geo-Tech through its legal counsel requested a hear-t ing. The request failed to answer any of the charges supporting the Revocation Order as required by that order and by NRC regulation 10 C.F.R. 92.202(b).
The Commission referred the matter for consideration by an adjuduttory pre-siding officer. C1.1-92-14,36 NRC 221 (1992). This Board was established in accordance with the Commission's directive.
7 On November 6,1992, the NRC Staff moved to deny Geo-Tech's request for a hearing. We denied the Staff's motion in our order of November 18,1942. In that order, we directed Geo-Tech to answer the charges against it. LBP-92-33, 36 NRC 312. In pertinent part the order provided:
1.
Within 20 days following the service of this Order, Geo-Tedi rnust res;und, by answer in writing and under oath or affirmation,to the Order dated August 11,1992. nevoking the materials license held by it. The answer shall specifically adrnit or deny each allegation or charge re,ade in the Order, and shall set fonh the inauers of fact and law upon which Geo-Tedi reties. 'Ibe answer shall state any reasons shy Geo-Tedi believes the Order should not have been issued or should be set aside...
/d. at 315.
In addition, pursuant to the Commission's order in CLI-92-14, the Board directed Geo-Tech to demonstrate good cause, if any, why its hearing request and any answer to the order revoking the license was not filed on time. Id.
i Geo-Tech has not responded to the Board's order of November 18,1992. No communication whatever has been received by this Board from Geo-Tech since that order issued.
As noted, the NRC Staff, on January 14, 1993, filed its motion to dismiss the proceeding on the grounds of default. Geo-Tech did not answer the Staff's motion.
DISCUSSION
'Ihe Board deems that Geo-Tech has abandoned its request for a hearing by its willful failure to assert a defense against the charges set out in the Revocation Order, as directed by the Board's order of November 18, 1992.
Geo-Tech's failure to answer the Staff's January 14,1993 motion to dismiss the i
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i proceeding also supports the inference that Geo Tech has abandoned its request for a hearing.
' in addition, because Geo-Tech has failed to address the reasons for arxl significance of its failure to file its hearing request on time, the Board rules that i
the late request may not be entertained in accordance with the provisions of 1.0
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C.F.R. l 2.714(a)(1).
t ORDER i
The Board dismisses Geo-Tech's request for a hearing with prejudice. This proceeding is terminated. 'Ihe Board also deems Geo-Tech's defaults, as recited above, to be a consent to the Order of August 11,1992, revoking Geo-Tech's materials license. Therefore that Order isfmal and eEccrive in accordance with the provisions of 10 C.F.R. 62.202(d).
THE ATOMIC SAFETY AND LICENSING BOARD
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Richard F. Cole.
ADMINISTRATIVE JUDGE Walter H. Jordan (by I.W.S.)
3 ADMINISTRATIVE JUDGE r
Ivan W. Smith, Chairman j
ADMINISTRATIVE JUDGE Bethesda, Maryland February 1,1993 c
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Cite as 37 NRC 64 (1993)
LBP-93-3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY Atto LICENSING BOARD Before Administrative Judges:
Morton B. Margulies, Chairman Richard F. Cole Frederlek J. Shon in the Matter of Docket No. 70-3070-ML (ASLBP No. 91-64102-ML)
(Special Nuclear i
Materials License)
LOUISIANA ENERGY SERVICES, LP.
(Claiborne Enrichment Center)
February 2,1993 RULES OF PRACTICE: DISCOVERY; PRIVILEGED MATTER Interrogatories that seek the disclosure of the factual bases and legal require-ments that underlic contentions constitute proper discovery of the intervenor so long as the interrogatories do not seek the " mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party con-cerning the proceeding."
RULES OF PRACTICE: DISCOVERY; PRIVILEGED MATTER A party objecting to a discovery request on the basis that the information is protected by the attorney work product privilege has the burden of establishing that the materials are protected by 10 C.F.R. 52.740(b)(2). A mere assertion that the information withheld constitutes attorney work product is insufficient to meet the objector's burden of establishing the attorney work product privilege.
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MEMORANDUM AND ORDER (Ruling on Applicant's Motion to Compel Discovery) i We have before us for decision a motion filed by Applicant Louisiana Energy Services, L.P. (LES), dated December 24,1992, for an order to compel l
Intervenor Citizens Against Nuclear Trash (CANT) to answer specified questions in " Applicant's Interrogatories to Citizens Against Nuclear " Dash's Contentions B,1, J, K, L, M, and Q," dated August 11,1992.
CANT had responded to the interrogatories in an answer dated December 2,1992. LES considers CANT's answers to certain questions pertaining to the contentions, except for L and M, to be inadequate because of CANT's claim l
that its analysis is incomplete, that CANT is awaiting NRC analysis, that the j
information sought is protected by the attorney work product rule, or the answer i
is incomplete and evasive. CANT takes issue with the objections to its responses and requests that the Licensing Board deny Applicant's motion to compel.
DISCUSSION A.
Incomplete Analysis
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Applicant finds objectionable CANT's responses to interrogatories B.1-2, B.1-2.1, B.1-2.2, B.4-2, B.4-3, B.4-4, B.4-6, B.5-1, J.4-1, J.4-2.a. J.4-2.c.
- i J.4 2.d. J.4-2.f, J.6-1.b, J.9-3, J.9-4.a, J.9-4.b, K-2.a. and Q-2 that it could not, at this time, respond to the interrogatories because the persons who may be testifying with respect to these questions have not yet completed their analysis of the encompassed issues.
Applicant contends that the foregoing is not a sufficient ground to support an objection to discovery. It asserts that the Commission's rules contemplate that panies' positions may not be complete during discovery and may evolve during a licensing procceding. It cites 10 C.F.R. 62.740(c), which requires the supplementation of discovery responses under certain circumstances, as i
acknowledgment of the evolutionary process that requires panics to supplement their answers if the information is no longer correct. LES also cites Cleveland Electric illuminating Co. (Perry Fuclear Power Plant, Units 1 and 2), LEP 67,16 NRC 734,736 (1982), in which the Licensing Board stated that"[s]hould applicant develop new, relevant evidence, it would be under a continuing obligation to update its answer." Applicant contends that an analysis not yet completed is not grounds to withhold information from discovery.
2.
CANT does not dispute that discovery is an evolutionary process that requires parties to supplement their answers as additional information becomes available, it states that at present CANT has not yet received an analysis from 65 t
its potential witnesses regarding many of the contentions and that CANT does I
not yet have within its knowledge the information that LES seeks in some of its interrogatories. Intervenor asserts that it will respond to die interrogatories as soon as it has received and developed sufficient data to form a preliminary response. It will then supplement its answers as the analysis of the issues is j
further refmed.
CANT notes that the discovery deadline for technical issues is not until September 3,1993, and for environmental issues, July 11, 1994. Intervenor points out that LES has responded to several of its discovery requests with the statement that Applicant has not selected witnesses to testify nor has the substance of their testimony and affidavits been identified.
- 3. The Licensing Board finds that the granting of the motion to compel, where CANT acknowledges its responsibility to respond but looks for time to comply, would be inappropriate at this time.
CANT does not dispute the need to respond to the interrogatories. It raises the question of when, a matter not addressed by LES. We recognize that some time may be required to respond to the new matters raised in the interrogatories.
'Ihat occurs where Applicant had amended its application or provided additional information and bases its interrogatories on that material.
We do not see the need for the same amount of time to respond to interroga-tories B.5-1. J.4-2.c, J.4-2.f. J.9-4.a. and J.94.b, where they seek information regarding the contentions as filed by CANT. CANT had to perform a prelimi-nary analysis to formulate its contentions and should be in a position to respond to those interrogatories in a quicker fashion than for those based on additional submittals.
'Ihe proceeding should move forward in a timely manner. The panics will be given an opportunnj to establish a schedule for responding to the interrogatories.
Should they be unable to establish a schedule, we will set one after considering their positions on the matter.
- 11. Awaiting NRC Analysis 1.
Applicant requests that the Licensing Board order Intervenor to answer interrogatories I.1-b through I.ll-b that relate to Contention I which alleges that the LES application is incomplete in eleven specified areas. LES asserts that Intervenor based its contention on an NRC Staff letter that requested additional information. Applicant states that it provided the requested information to Staff and Intervenor, and it has updated the application. It claims that it is entitled to know why CANT now considers the license application to be incomplete. Proper responses would permit it to prepare for the hearing and to begin procedure and i
design development based on commitments in the application. Applicant asserts that CANT's response to the interrogatories that it " continues to evaluate this i
e e
i aspect of contention I, and is also waiting for the NRC Staff's evaluation" is inackquate.
LES claims that it appears that CANT is waiting for Staff to defme issues and is trying to avoid the late-filed contention standard in 10 C.F.R. 6 2.714(a)(1).
It also views CANT's action as an attempt to use Staff studies as a sort of precomplaint discovery tool. LES also objects to the response that CANT is continuing to evaluate the subject matter of the interrogatories on the grounds that a claim of continuing evaluation is not sufficient for withholding information from discovery, a matter it objected to under A.1 above.
- 2. CANT disagrees with LES's interpretation of its response. Intervenor states that it was merely indicating that it had no formulated analysis yet to offer,.
and that as part of the evolutionary discovery process, ultimately CANT may be factoring in details that surface in StafT reports as part of CANT's analysis.
CANT denies that it is waiting for the Staff to define the issues or that it was attempting to employ Staff studies as a sort of precomplaint discovery. It points to the fact that it has eight admitted contentions as disproving the allegations.
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- 3. The Board finds that the Licensing Board need not compel CANT to respond to the specified interrogatories at this time. CANT recognizes its obligation to respond to the interrogatories independent of when Staff completes its studies. As with A.1, above, it becomes a matter of when a timely response is due. Dat should be worked out in the same manner as the preceding dispute.
C.
Attorney Work Product
- 1. Applicant objects to CANT's refusal to answer interrogatories B.5-1, J.4-2.c. J.4-2.d, J.4-2.f. J.6-1.b. J.9-3, J.9-4.a, J.9-4.b, K-2.a. and Q-2 on the grounds that Applicant seeks to discover the legal theories of CANT's attorneys. LES states that the interrogatories seek a fact or citation to a regulation or regulatory t
guidance and not the attorney's legal theories.
LES relies on the requirernents of 10 C.F.R. 52.714(a)(2) and (b)(2)(ii),
which require that contentions be supported by facts or expert opinion on which a petitioner intends to rely, together with references to specific sources on which petitioner intends to rely to establish those facts or expert opinions.
Applicant contends that the interrogatories asking for facts and citations to specific regulations and regulatory guidance are proper and should be responded to.
For each of the specified interrogatories, Applicant points out that its inquiries extended to the facts and citations CANT relies on to support the contentions.
- 2. CANT defends its refusal to respond to the interrogatories on the grounds that Applicant seeks the mental impressions of the party's attorneys which are protected by the attorney work product rule. It relies on Hickman v. Taylor,329 U.S. 495,511 (1947), for the proposition that "[p] roper preparation of a client's 67 t
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P case demands that [the lawyer) assemble information, sift what he considers to be relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference."
CANT uses interrogatory J.4-2.f as an example of LES clearly asking CANT to reveal mental impressions of its attorneys when it asks for the " analysis" CANT's attorneys used to reach the legal conclusion that the costs of the project outweigh the benefits. CANT claims that this is a pattern repeated throughout i
the interrogatories.
LES asked CANT the following in J.4 2.f:
In Catentson J you s:ste that "ioln the whole, the costs of the project far outweigh the benefits of the proposed action." % hat bases, facts and analysis were used to reach this conclusion? [ Emphasis addedl i
Intervenor considers as inapposite to discovery Applicant's reliance on Com-mission requirements that contentions be supported by certain facts and refer-ences to specific rules and regulations to have contentions admitted in the first instance.
- 3. The Licensing Board finds that the motion to compel, insofar as CANT refuses to respond to the interrogatories on the grounds of protection under the attorney wort product rule, should be granted.
The attorney work product rule is contained in 10 C.F.R. { 2.740(b)(2) and provides as follows:
(2) Trial preparation materials. ' A party may obtain discovery of documents and tangible things otherwise discoverable under paragraph (b)(1) of this secdon and prepared in andcipation d or for the hearing try or for another party's representadve (including his anorney, consultara, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparadon of this case and that he is unable without undue hardship to obtain the substarnial equivalent of the materials by other means. In ordering discovery of such materials when the required showing has been made, the presiding officer shall protect aga' st disdosure of the mental impressions, m
ecmclusions, opinions, or legal theories of an suorney or other representative of a party concerning the proceeding.
The rule was adopted from Rule 26(b)(3) of the Federal Rules of Civil Procedure. Where an NRC rule of practice is tused on a Federal Rule of Civil Procedure, judicial interpretations of that federal rule can serve as guidance for the interpretation of the analogous rule. Public Service Co. of New Hampshire (Scabrook Station, Units 1 and 2), LBP-83-17,17 NRC 490, 494-95 (1983).
See also Long Island Lighting Co. (Shoreham Nucicar Power Station, Unit 1),
LBP-82-82,16 NRC 1144,1159-62 (1982).
The purpose of the rule has been described as to protect "[s]ubject matter that relates to the preparation, strategy, and appraisal of the strengths and weaknesses 1
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e of an action, or to the activities of the attorneys involved, rather than to the underlying evidence..." 4 Moore's Federal Practice 126.6411] (2d ed 1991), at 26-349.
Where a party assens a privilege in objecting to a discovery request, the burden is upon the objecting pany to establish the existence of the privilege. A mere assertion by the intervenor that the material withheld constitutes attorney work product is insufficient to meet that burden. Seabrook, LBP-83-17,17 NRC at 495.
nat is the case we have at hand. CANT merely proclaims that movant seeks papers that bear on the theory of the case and litigation strategy, but its
.i allegation remains unsubstantiated.
i It is proper to inquire into the foundation of an intervenor's own contention.
In Seabrook,17 NRC at 493-94, where the inquiry requested any " study, calculation or analysis" on which an answer to a specific inquiry was based, the Licensing Board stated, "[i]nterrogatories which inquire into the basis of a contention serve the dual purposes of narrowing the issues and preventing surprise at trial." He Licensing Board went on to find that the intervenor had i
failed to meet its burden of showing that the material it sought to withhold was protected under 10 C.F.R. 62.740(b)(2).
In Kerr-McGee Chemical Corp. (West Chicago Rare Earths Pacility), LBP-86-4,23 NRC 75,82 (1986), the Licensing Board stated:
Ilowever, a review of the interrogatories in quest.m reveals that the majority of them ask I
for information which is basic to an understanding of the Pt.ople's position in the proceeding.
We agree with the proposition put forward by counsel for Kerr-McGee at the September 11 prehearing conference (see Tr. 324-28) that, having raised these importars issues, the Itople have an obligation to participate meaningfully in their resolution.
i CANT has not shown that the interrogatories do not seek the underlying evidence and law that form the foundation for the contentions but rather the i
" mental impn:ssions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the proceeding."
He support for CANT's claim that the ten interrogatories seek attorney work product is the language appearing in only one, J.4-2.f, where LES asks "[w] hat bases, facts, and analysis were used to reach this conclusion?" CANT stated "LES is clearly asking CANT to reveal mentalimpressions of its attorneys when it asks for the " analyses" CANT's attorneys used to reach the legal conclusion that the costs of the project outweigh the benefits.
Intervenor would have us believe that the mere request for an analysis means Applicant is seeking attorney wofK pfoduC1. It provides no basis to equate the request for an analysis with a request for attorney work product and therefore we find CANT"s position to be without merit. The same conclusion is reached 69 l
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for the other nine interrogatories where no " analysis" was sought. The relevant portion of the motion to compel shall be granted.
CANT, as part of its response to the ten interrogatories, also based its failure
' to respond on the grounds that it did not yet have an analysis in hand to offer 7
to LES. This again is not a refusal to respond but involves the issue of when a response shall be made. There is no need for an order at this time to compel CANT to respond as to this aspect. His matter will be handled as part of the need for scheduling responses.
l D.
Incomplete and Evasive Answer 1.
Applicant objects to CANT's response to interrogatory J3-2 as consti-tuting an incomplete and evasive answer. In answering the interrogatory, CANT 7
stated that LES should see the answer to interrogatory J3-1. That answer was not responsive to J3-2.
2.
Intervenor states that the reference it made to the answer to interrogatory i
J3-1 was a typographical error. CANT intended to refer back to a response that invoked the attorney work product rule, and also noted that CANT did not yet have a formulated analysis to respond to the intenogatory.
- 3. ne Licensing Board grants the motion to compel a response to inter-rogatory J3-2 for the same reasons and to the same extent as was donc under C3, above.
ORDER Based upon all of the foregoing, it is hereby ordered that 1.
CANT is compelled to answer interrogatories B.5-1, J3-1, J 4-2.c J.4-2.d, J.4-2.f, J.6-1.b. J.9-3, J.9-4.a. J.9-4.b, K-2.a, and Q-2; 2.
The motion to compel is otherwise denied;
- 3. All interrogatories that are the subject of the motion shall be answered by CANT in accordance with a schedule to be funher ordered by the Licensing Board; 4.
LES and CANT shall confer regarding the establishment of a schedule; 5.
Should they not be successful in establishing a schedule mutually agreed upon, they shall separately notify the Licensing Board in wTiting of their preferred scheduling, with their reasons, by the close of business February 17, 1993.
70 B
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Parties may file responses to the others' filings within 7 days thercafter.
t THE ATOMIC SAFETY AND
[
LICENSING BOARD Morton B. Margulies, Chairman CIIIEF ADMINISTRATIVE LAW j
JUDGE l
Richard F. Cole i
ADMINISTRATIVE JUDGE t
Frederick J. Shon l
ADMINISTRATIVE JUDGE 1
Bethesda, Maryland February 2,1993 l
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Cite as 37 NRC 72 (1993)
LBP-93-4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING 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 7
Fabrication Facility)
February 5,1993 Ruling on the request of five individual Petitioners for an informal hearing to contest licensee Babcock & Wilcox's amendment application seeking agency approval of its proposed decommissioning plan for its Apollo, Pennsylvania fuel cycle facility, the Presiding Officer denies the Petitioners' hearing request for lack of standing and terminates the proceeding.
ATOMIC ENERGY ACT: STANDING TO INTERVENE RULES OF PRACTICE: STANDING The Commission has chosen to apply contemporaneous judicial concepts of standing to ascertain who, under section 189a(1) of the Atomic Energy Act (AEA),42 U.S.C. 6 2239(a)(1), is a " person whose interest may be affected by the proceedingso as to be entitled to a hearing regarding a licensing action. See, e.g., Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CL1-92-2, 35 NRC 47, 56 (1992); Portland General Electric Co.
72
i (Pcbbie Springs Nuc1 car Plant, Units 1 and 2), CL1-76-27,4 NRC 610,613-14 (1976).
ATOMIC ENERGY ACT: STANDING TO INTERVENE RULES OF PRACTICE: STANDING To satisfy these judicial standards, a prospective party raust show (1) that it could suffer an actual " injury in fact" because of the licensing proceeding, and (2) that its interest arguably is within the " zone of interests" to be protected by the pertinent statutes under which the petitioner seeks to challenge the licensing action. See, e.g., Rancho Seco, CL1-92-2, 35 NRC at $6; Pebble Springs, CL1-76-27,4 NRC at 613.
I ATOMIC ENERGY ACT: STANDING TO INTERVENE (INJURY IN FACT)
RULES OF PRACTICE: STANDING (INJURY IN FACT)
The three components of the injury in fact requirement are injury, cause, and remedial benetiL See Valley Forge Christian College v. Americans Unitedfor Separation of Church & State, Inc.,454 U.S. 464,472 (1982). See generally i
13 Charles A. Wright, ct al., Federal Practice and Procedure 56 3531.4.6 (2d ed.1984). "Ihe showing necessary to satisfy these elements recently has been characterized as follows:
Ahhaugh variously described, the assened injury must be
- distinct and palpable" and i
- panicular [andl concrete" as opposed to being ** conjectural... [,1 hypothetical,*" or
" abstract" The irijury need not already have occurred tan when future harm is assened,it must be ' threatened,""'ccrtainly impending,'" and "'real and inunediate.'" Additionally, there must be a causal neaus between the asserted injury and the challenged action. In other words, the alleged harm must have "resuhed" in a "coreretely demonstrable way" from the claimed infractions.1here must also be a sufficient causal connecuon between the alleged harm and the requested remedy no that the complaining party
- stand [s1 to profit in some personal interest" Clewland Electric Illuminating Co. (Perry Nucicar Power Plant, Unit 1), LBP-92-4,35 NRC 114,121 (1992) (footnotes omitted). See also Lujan v. Defenders of Wildlife,119 L Ed. 2d 351,364 (1992).
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.g ATOMIC ENERGY ACT: STANDING TO INTERVENE f
(INJURY IN FACT).
1 RULES OF PRACTICE: STANDING (INJURY IN FACT) e When a petitioner is challenging the legality of, government regulation of someone else, injury in fact as it relates to factors of causation and redressability -
is " ordinarily *substantially more difficult' to establish." Lujan,119 L. Ed. 2d at 365 (quoting Allen v. Wright,468 U.S. 737,758 (1984); Simon v. Eastern Kentucky Welfare Rights Organization,426 U.S. 26,44-45 (1976); and Warth
- v. Seldin, 422 U.S. 490, 505 (1975)).
f ATOMIC ENERGY ACT: STANDING TO INTERVENE
.j (INJURY IN FACT)
RULES OF PRACTICE: STANDING (INJURY IN FACT)
A hearing petitioner bears the burden of establishing that the various injuries alleged to occur to its AEA-protected health and safety interests or its National Environmental Policy Act (NEPA)-protected environmental interests satisfy the three components of the injury in fact requirement. See Perry, LBP-92-4, 35 NRC at 120. See also Lujan,119 L. Ed. 2d at 364 ATOMIC ENERGY ACT: STANDING TO INTERVENE
'(INJURY IN FACT)
RULES OF PRACTICE: STANDING (INJURY IN FACT)
Rr purposes of assessing injury in fact (or any other aspect of standing), a hearing petitioner's factual assenions,if uncontroverted, must be accepted. Sec.
e.g., Lujan,119 L Ed. 2d at 364-65; Pennell v. City of San Jose,485 U.S.1,7 1
(1988).
ATOMIC ENERGY ACT: STANDING TO INTERVENE (INJURY IN FACT)
RULES OF PRACTICE: STANDING (INJURY IN FACT) f in evaluating a petitioner's claims ofinjury in fact, care must be taken to avoid "the familiar trap of confusing the standing determination with the assessment of
{
petitioner's case on the merits." City ofLos Angeles v. NationalHighway TraDic l
Safety Administration,912 F.2d 478,495 (D.C. Cir.1990) (citations omitted),
cert. denied,117 L. Ed. 2d 460 (1992).
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P ATOMIC ENERGY ACT: STANDING TO INTERVENE P
RULES OF PRACTICE: STANDING;
SUMMARY
DISPOSITION (STANDING) g in the face of contravening factual submissions made by the licensee and the NRC Staff, it is appropriate, in a manner akin to a summary disposition determinatioa, to undertake a merits-type evaluation of the sufficiency of factual bases for a hearing petitioner's claims of standing. See Consumers Power Co.
(Midland Plant, Units I and 2), LBP-78-27, 8 NRC 275,277 n.1 (1978). See also 13A Wright, et al., supra. 6 3531.15, at 97-99.
(
ATOMIC ENERGY ACT: STANDING TO INTERVENE RULES OF PRACTICE: STANDING (COMMERCIAL POWER REACTOR)
I To establish standing in NRC licensing adjudications, petitioners often seek to rely upon pmximity to a licensed facility, particularly under what is commonly referred to as the " fifty-mile rule." This so-called " rule," which is more in the nature of a presumption, is derived from a string of commercial power reactor adjudicatory determinations. The common thread in these decisions is a recognitior of the potential effects at significant distances from the facility of the accidental release of fissionable materials. Through their reliance on this singular factor, these cases now stand for the general proposition that a petitioner living within approximately fifty miles of a commercial power reactor will be considered to have the requisite injury in fact for standing to contest a request for issuance of a facility construction permit, an operating license, or an amendment to such a permit or license that has obvious and potentially wide-ranging offsite radiological consequences. See, e.g., Florida Powcr & Light Co. (St. Lucie Nuclear Power Plant, Units I and 2), CLI-89-21, 30 NRC 325, I
329-30 (1989); Gulf States Utilitics Co. (River Bend Station, Units I and 2),
ALAB-183,7 AEC 222,223-26 (1974).
3 ATOMIC ENERGY ACT: STANDING TO INTERVENE RULES OF PRACTICE: STANDING (MATERIALS LICENSING ACTION)
The Commission has made it clear that the " fifty-mile" presumption utilized for commercial power reactors does not apply in materials licensing actions.
Instead, a petitioner must show, in accordance with 10 C.F.R. 6 2.1205(g), what particular impact the planned licensing action will have upon its legitimate (e.g.,
75
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Therefore, to meet the burden of proving that it has the requisite injury in fact, a petitioner in a materials licensing proceeding must provide some evidence of '
a causal link between the distance it resides from the facility and injury to its legitimate interests.
NEPA: REQUIREMENTS By its terms, NEPA imposes procedural rather than substantive constraints upon an agency's decisionmaking process: *Ihe statute requires only that an agency undertake an appropriate assessmerl of the environmental impacts of its action without mandating that the agency reach any particular result concerning that action. See, e.g., Robertson v. Methow Valley Citizens Council,490 U.S.
332, 350 (1989).
NEPA: STANDING (INJURY IN FACT)
RULES OF PROCEDURE: STANDING TO INTERVENE (INJURY IN FACT)
"Ihe Supreme Court has recognized that the procedural rights accorded a person by a statute such as NEPA are accorded "special" consideration when deciding whether there has been injury in fact regarding those rights. Injury in fact to those procedural rights can be successfully established with a less rigorous showing on the normal injury in fact elements of redressability and immediacy. See Lujan,119 L Ed. 2d at 372 n.7 (person living near dam site may be able to challenge environmental impact statement (EIS) relating to dam license even though unable to establish with certainty that the EIS will cause license to be withheld or altered and despite the fact dam will not be t
completed for many years). This relaxation does not, however, extend to the requirement that a petitioner must suffa some concrete injury from the proposed agency action, which still must be shown apart from any interest in having the procedures observed. See id. at 372 n.8; cf. Rancho Seco, CLI-92-2, 35 NRC at 60-61 (alleged " informational injury" is of " questionable value" as basis for standing to challenge failure to prepare adequate EIS).
i RULES OF PROCEDURE: STANDING TO INTERVENE (INJURY IN FACT)
Assuming that the Petitioners' claims regarding injury to economic interests (e.g., property values, local tax revenues) as a result of licensed activities are cognizable in this proceeding, the Petitioners
- formulation of their concerns in 76 f
i terms of undefined economic injury to the local community as a whole fails to -
address the question most relevant to their standing to participate, i.e., what is the tx:onomic injury each of them would suffer.
RULES OF PRACTICE: DISCRETIONARY INTERVENTION If a hearing petitioner does not request permission to intervene in a proceed-ing as a matter of discretion, see Pebble Springs, CLI-76-27,4 NRC at 614-17, it is not r.ccessary to determine whether it could be afforded such intenention.
1 MEMORANDUM AND ORDER (Denying Hearing Request and Terminating Proceeding)
Pursuant to 10 C.F.R. Part 2, Subpart L, individual petitioners Cynthia Vi.
rostek, Virginia "nozzi, William Whitlinger, and Helen and James Hutchison (Petitioners) seek an informal adjudicatory hearing. In that hearing, the Peti-tioners wish to challenge the application of Babcock & Wilcox (B&W) to' amend the 10 C.F.R. Part 70 license for its nuclear fuel fabrication facility in Apollo, Pennsylvania. B&W seeks this amendment to obtain authorization to decom-mission the facility according to its Apollo Decommissioning Plan (Plan), Rev.
2 (May 11,1992, as supplemented May 19 & 22,1992, and June 11, 1992).
B&W and the NRC Staff, the other participants in this proceeding, oppose the grant of the Petitioners' hearing request, as supplemented. 'Ihey assert that, contrary to the dictates of 10 C.F.R. 5 2.1205(d), (g), the Petitioners have failed to establish their standing to maintain this action. In addition, B&W and the Staff contend that the areas of concern the Petitioners have proposed for litigation are not "germanc" to the subject matter of this proceeding, as also is required by section 2.1205(g).
In this instance, it is not necessary to explore the question of whether the Petitioners' litigation issues are " germane." Ibr the reasons detailed herein, it is evident that the Petitioners have not discharged their burden of establishing their standing to obtain a hearing regarding the challenged amendment. As such, their hearing request must be denied.
I.
BACKGROUND On June 18,1992, the Staff issued a notice that it was considering granting B&W's request for an amendment to the license for its Apollo facility that would allow extensive decommissioning activities in accordance with the Plan.
77
That notice, published in the Federal Regisfer on June 25,1992,5 also indicated that, pursuant to the National Environmental Policy Act of.1969 (NEPA) and the Commission's implementing regulations,2 the Staff had prepared an Environmental Assessment (EA) regarding the amendment request According to the notice, the Staff had determined, on the basis of the EA, that the proposed -
amendment did not involve any significant environmental impact requiring the preparation of a full Environmental Impact Statement (EIS). In addition, the notice declared that any person whose interest may be affeccf T 4 proposed amendment could request a hearing within thirty days. Although the r otice gave no indication about when the Staffintended to act on the amendment application, on the same day the notice was published in the Federal Regisfer, the Staff granted B&W's decommissioning authorization request, which is denoted as Amendment No. 21, and made its licensing action effective immediately.8 De Pctiuoners filed a timely hearing request on July 27, 1992.' In their petition, they describe themselves as " property owners who live in close proximity to the B&W site."5 ney also provide a list of twenty areas of concern about the amendment request and the accompanying EA that they wish to litigate in any hearing.'
57 Fed Reg.28,519 0 992).
3 2 42 U.s.C. I 4321 er e.g.; 10 C.F.It Part 51.
3 See tmer inun J. ILdey to B. Ilmenjens (June 25,1992).
5ee Request for llearing (July 27,1992) [hereinaher Peddoners' lienring Request). InidaUy, the hearing patinan was rtled en behalf of the Phitianers,in their individual capacities and as the apparent represatadves d the organization save Apollo *a Future Lb_. a (SAFE). See sf. at 2. subsequently, the Pentioners indicated that because they comprise the active mcenhers of sAIE that organizanan was being dropped as a pamcapant f
a this pmooedag. See supplement to Puitioners[*] Request for licaring and Raquest to immediately Cenas site Onanup Aedvities (Oct. 9,1992) at 1 theremaher Petinaners* Ilearing Regust supplemaa}. The termination of this proceeding applics to SAFE as well, whether by nasan af its voluntary withdrawal or the faDure to establish j
that any dits nuznbers has standing.
8 Pentimers* IIcanng Request at 2.
'synopsued slightly, the Petitioners' twenty canarns agarding the Plan and the associated EA are as follows:
- 1. No assessmet of the acute and chmnic heahh impacta far bath ddidren and eduhs,
- 2. The depressing econarme impact of cancerns about sito.nlated contamination on local propeny values.
[
- 3. The managerial imegrity of B&W to disclose grupaly and runedy the comammation in Apollo and surrounding crunmumnea.
- 4. The lad d quahficatians of McDermott 1rnernanonal and B&W officials to amediate the ensite contaminanen properly.
- 5. NRC's faDuve to inves6saic and analyze fuDy au reasonaWe ahernadves for cantamination cicanup 6
at the site and in surrounding canmuni6m.
- 6. NRC's faDure to aquire proper repordng and cleanup d all nonradiosenve and mixed wastes on and fran the site.
- 7. NRC's failure to coordmais acnvaies beswam au federal and state agencies to ensure e compleic and safe cleanup of the B&W site and sunnunding emnmumtics.
- g. NRC's failure to evalusie the heahh naks fully and pmperly.
- 9. NRC's fa3ure to evaluate historical comaminate emissions from the sue fully and properly.
- 10. NRC*a failure to evaluate fuUy contaminanan in the Apollo acwcr system caused by the B&W facihn.
iConrinue4 h
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1 In an August II,1992 response, B&W asserts that their hearing request should be dismissed because the Petitioners lack standing and they failed to present germane areas of concern.' By memorandum and order dated August 14, 1992, the Presiding Officer requested that the Petitioners, B&W, and the Staff address the issue of the Presiding Officer's authority to allow the Petitioners to supplement their hearing request.8 After studying the participants' responsive filings, on September 4,1992, the Presiding Officer issued a memorandum and order permitting the Petitioners to supplement their hearing request and providing for B&W and Staff rejoinders to that supplement.' In that order, among other things, the Presiding Officer noted on the matter of standing that for the Petitioners "one of the critical elements is their ability to establish their l
- injury in fact.'... [T]his requifes that they show how any alleged harmful radiological, environmental, or other legally cognizable effects that will arise from activities under the decommissioning plan at issue will cause injury to each individual..."3" In an October 9,1992 supplement to their hearing request, the Petitioners provide additional information to support their standmg to attain party status and to establish that their twenty areas of concern are germane to this proceeding."
Both B&W and the Staff declare in their October 26, 1992 responses that,
- 11. NRC's failum to coseply with the segmrernets d NEPA t y not prepanns a fuB DS.
- 12. De failure of the use owners, operators, and their agents to comply with the Cornprehensive L.m tel Rapanse Campensauan, and Liability Act (GRaA). the Resource Conservadon and Recovery Act (RCRA) the Dean Air Act, ths Clean Water Act, and Pennsylvania solid and hazardous waste and clean wate, laws.
- 13. NRC's fa.ure to test and evaluate site contamination, including mined waste, fully and completely.
r
- 14. NRC's 'aihire to ensure the Pisa compla with the laws specifmf in Concern 12.
- 15. The irr proper selocuan of an unprovm, untested, and unsafe crushing tedmology.
16 NRC's failure to evaluate fully and completely the groundwater and surfam water impacts d carnaminantr fun the B&W site and '-
~ ~ Q activitia.
- 17. NRC's failure to ensure a viable future use for the site by failing to have contaminannn cleaned up to a safe standard.
- 18. NRC's failure to provide informanan and permit informal public commern before hs NEPA finding d no signifwars impacts.
- 19. The sociaecunanic impacts of site comaminanan, offsite emissions, and clcanup pr-=~
- 20. De fmancialimpact on Apollo Borough fmrn site comamination, offsite emissians, and cleanup promsses See it at 2-5. Sne alm Petitioners
- licaring Request supplement at 2-9.
73se Response of Ucensee to Request for llearing (Aug. 11, 1992).
s5ee Memorandum and order (Requating Informs 6an) (Aug 14,1992) at 2 (unpublished). At the time this unemorandurn and order issued, the staff had nm declared wiiether, in accordance with 10 C.F.R.12.1213. k wished to perucipate as a party in Hus pureedmg. It subsequently made such an election. See Lener fan M.
Fmkclsicin to tPnsidmg offuer and specal Assistant)(Aug. 17, 1992).
'See LBP-92 24,36 NRC 149 (1992).
3814 at 153.
33 See Petitionen* Ilearing Reguest Suppiamem at 1-9. In their supplemernal ruing the Peunoners also asked that i
the Presidmg offwer issue an order staying the effectivcness d Amendman No. 21 pendmg the outcome of this proceedmg on November 12,1992, the Petinmers' request was derdad as unnmely and for failms to make an adequate showmg under due four. factor test governmg the issuance of stays. See h/ro note 25.
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even with this supplemental material, the Petitioners have not demonstrated that they have the requisite standing or that the issues they specify are litigable in this proceeding u Additionally, in response to information requests from the Presiding Officer," the participants have submitted filings dated November 30, December 7, 9, and 14,1992, and January 7 and 14,1993, regarding offsite l
characterization activities relative to facility decommissioning under Amendment No. 21 and the status of onsite decommissioning activities.3*
11.
ANALYSIS OF PETITIONERS' STANDING i
A.
General Principles The Commission has chosen to apply contemporaneous judicial concepts of standing to ascertain who, under section 189a(1) of the Atomic Energy Act l
(AEA),3 is a " person whose interest may be affected by the prtreeding" so j
as to be entitled to a hearing regarding a licensing action, 'Ib satisfy these i
standards, a prospective party must show (1) that it could suffer an actual " injury
}
in fact" because of the licensing proceeding, and (2) that ils interest arguably l
is within the " zone of interests" to be protected by the pertinent statutes under which the petitioner sccis t, challenge :he licensing action,"
In this instance, ther6 is no question tht the Petitioners satisfy the " zone of interests" test The tarious health, safety, and environmental concerns they outline regarding the Plan and the EA clearl* come within the zone of interests
' {
safeguarded by the AEA and NEPA," Ib the Petitioners, the more difficult question is whether they will s#fer tir requisite " injury in fact,"
U Sca ticensee's Respmue to I%nmes' supplernemal lleanns Request (oct. 26,1992) ! hereinafter B&W r
Ilcaring Request supplernent Respanae); NRC staff Response to IWtioners' Request for lleanns and suppicment to Peudmes' Request far IIcanns (oct. 26,1992) therianarter staff IIrating RequestAlcanng Roguest supplernern Response].
Usee Memorandum and Order (Requcstmg supplerneraal Informanon) (Nov. 20,1992) (unpublished); orda f
(Requesdng status Informanon) (Dec. 23,1992) (unpublishcul).
" Sea tacensee's Response in Nevernher 20,1992, Memorandum and order (Nov. 30,1992)[henunafter B&W offaite Oisracternanon Response); NRC staff Response to Presidmg ofscer's Novernbar 20,1992 Manarandum
.i 5
and Ordar (Requesdng supplememal Informane) and Reques to Respond to IW6mes' Reply Picadmg (Nov.
30,1992) [heremafter staff o!Tsite Characterizanan Respmse]; Petinonen[*] Response to November 20,1992, Memorandum and Order (Dec. 7,1992); Licermec's Reply so Pounaners' Response Daed December 7,1992 (Dec. 9,1992); ticensee's Response 50 the Presidmg officer a order (Requesdrig Infonna6an) Qan. 7,1993)
[
[ hereinafter B&W status Respunse); NRC sta!Y Request for tmave to Resped to Petitimes' Reply,if Any, to IJoermes's Response to the Presiding offices's order (Requesting informanan) Gan.14,1993).
42 U.s.C. I 2239(a)(1).
I U
l'See, e.g., Sacromesso Mwuceal Udsy Dusnes (Rancho seco Nuclear oenerating stanan) QJ-92-2,35 NRC f
47,56 (1992);Persland GeneralElecane Co. (Pubble spnngs Nuclear Plant, Units I and 2), CtJ-7627,4 NRC j
610, 613-14 (19'16).
U See, e g., Rancho Seco, C11-92 2,35 NRC at 56; Pehle Springs, C1J *16-27,4 NRC at 611 "In their Cmuzrns 12 and 14, the 1%tionen also have alleged a failure Ivy B&W and the NRC to comply
-[
with vanaus other federal and state envirmmemal statutes. Ses supra name & It is nat necessary no scad Oz (Continued) 80 i
i e
s i
i
~~
P The three components of the injury in fact requirement are injury, cause, and
[
remedial benefiL ' The showing necessary to satisfy these elements recently has 2
been characterized as follows:
Ahhough variously described, the asserted injury must be " distinct and palpable" and
- particular [and) concete" as opposed to being "' conjectural.. [,] bypotheticalf" or I
- abstract" "Ihe injury sued not already have occurred but when future harm is assened, it must be " threatened," * *cenainly impending l" and "'real and immediate.'" Additionally, there must be a causal nexus between the asserted injury and tie diallenged action. In other '
=
words, the alleged harm must have *resuhed" in a " concretely demonstrable way" from the claimed infractions. 'Ihere must also be a sufficient causal connection between the alleged harm and the requested semedy so that the complaining party
- stand [s) to proftt in some personal interest.*
i "Ihe Petitioners bear the burden of establishing that the various injuries they allege will occur to their AEA-protected heahh and safety interests or their NEPA-pmtected environmental interests satisfy these requirements, thereby providing the requisite injury in fact 22 II. Petitioners' Allegations of Injury in Pact As portrayed in their areas of concern regarding the license amendment re-quest that is now Amendment No. 21,22 the harm that the Petitioners allege l
they will suffer fmm the Plan-authorized decommissioning activities and the EA comes fem three different sources (1) purported radiological contamina-tion resulting fmm onsite cleanup activities or supposed residual radiological i
contamination that, even after decommissioning activities are completed, will remain onsite and offsite (Concerns 1-5, 7-10, 12-17, 19-20); (2) purported nonradiological or mixed waste contamination resulting from onsite cleanup ac-
.l tivities or supposed residual nonradiological or mixed waste contamination that,
[
even after decommissioning activities, will remain onsite and offsite (Concerns t
1-10,12-14,16-17,19-20); and (3) violations of the NEPA procedural process issue whether the 1%dtimens' concerns cane widdn the zone of irueresis created by those statuten because, as is explained below, the I%tidoners' have faued to estabbsh they have saffered any injury in fact cognizabis under those statutes. See iqfra nces s7.
2*See Vaney Forge Chrsssian College v. Amancans UnitedforSeparation of Church A Esane, lac.,454 U.S.464, 472 0982). See generally 13 Chades A. Wright, af al., federal Procace sad Proceere 153531.4.6 (2d ed.
1984).
20Cleveland Elecaric illunumanag Co. (Perry Nuclear IWer Plant, Unit 1),12P-92-4,35 NRC 114,1210992)
(footranes enuned). See also Imjaa v. Defenders of Wil4r,1191.112d 351,364 0992K e
Also in this seganl, k has beesi observed that when, e here, a petitioner is challengmg the legality si governrnent regulatim of sameane else, injury in facs as h selstes to factars d causadan and sedressabihry is " ordinarily
'substantially more difficuh* to establistL" lapan,1191. Ed. 2d at 365 (quoting Auen v. Wright 468 U.s. 737, 758 (1954); Sunon v. fasern Kenner&y Wefere Righra organizarwa,426 U.s. 26,44-45 0976), and Warsh v.
5,Ida,422 U.s. 400,505 (1975)).
21 g,, p,,ry, IEP-92-4,35 NRC at 120. See aho 14yan,1191. IA 2d at 364.
22 5ee supra none 6.
fil i
i f
I
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5 I
4 F
(Concerns 11,18). In supporting affidavits accompanying the supplement to:
l their hearing request, the Petitioners have put forth the following specific fac-
{
tual allegations to establish their injury in fact relative to their areas of concern:
j 1.
Residence at distances of approximately 250 feet (pensioners IIelen and James f
Iluuhison) 450 feet (petsdoners Virostek and Whitlinger), and 10.030 feet (ped.
i tioner Trozzi) frorn the Apollo facihty.
2.
Receiving an 'effecdve dose" because they hve within fifty miles d the facility.
3.
Radaological contaninstion purportedly discovered on the property of petidoner Vmutek and other local cidrens.
t I
4.
A 1976 movie taken while the Apollo facility was operating, a 1992 vnovie taken during decommissioning activities showing emissions going offsite, and 1992
[
photogragts taken during decommissioning, all of which show offsite emissions or varinus impropriedes concernirig B&W onsite decommissioning acdvities.
5.
Various daily acdvides that take the h:tinoners and members of their families l
I outside into their yards and irso the community, sanctimes to places abutdng the Apollo facility, for recreation or to do various diores.
6.
Various indicators of a significant increase in cancer deaths in the Apotlo borough retadng to the facihty, including a 1986 Pennsylvania Department of Eleahh (PADII) r survey, the affidavit of an expert witness submitted in titigadan regarding B&W's Parks Township facihty, and a Nanonal Researdi Council study on the har.erds of low-level radiation exposures.
t r
Rr purposes of assessing injury in fact (or any other aspect of standing), a hearing petitioner'g factual assertions, if uncontforerted, must be accepted."
- t Moreover, in evaluating a petitioner's claims of injury, care must be taken to avoid *the familiar trap of confusing the standing determination with the assessment of petitioner's case on the merits"" In this instance, however, in r
response to the hearing petition supplement and additional, related information j
submitted in support of a request by the Petitioners to stay decommissioning i
activities," both B&W and the Staff have presented sworn statements and supporting documentary information that raise material challenges to the validity U Sea, a g (Wen.119 t. Ed. 2d at 36445; Psanaa v. Cary of San Jane,485 U.s.1.7 (1988).
- Cary of Los Angeles u. Narwnal thgkay Tr#c Sqfety Mnistration,912 F.2d 425. 495 (DC. Cir.1990) i (citatians amined), cert. Jenied.117 L IM. 2d 460 (1992).
I i
U la um supplement to shear haanng request, ciung as a bass the areas of concern specified in the supplcrnent, the Petitioners asked the Presiding officer to issue an order sisying all deenmnussicrung activihas at the ApoDo i
faciiny. See 1%:itiames' Hearing Request supplemera at 10. Afer considering B&W and staff raings omasing this stay requart, the Patunnes' reply so these oppositions, and B&W and Staff responses to the Ibuuanes' j
reply, the 1%sading Off per daued the stay request See LBP-92-31,36 NRC 255 (1992), reconaderation denied.
LBP-92 35,36 NRC 355 (1992). h is appama that the Feutaoners' stay filings contain material that further esplama or rumons several of the largely conclusory factus1 statements in their heanns request supplement made m support of thcar standms 'nus infarrnanon could and should have heert subtruned as past of their heanng petitaan supplement. Nanctheless, there is no psejudace to any pastacapant in considenng this material, along wah l
any responses,in making a determination regarding the Ibutiramra' standing.
82 i
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of the Petitioners' factual allegations in support of their standing. Consequently, the issue of the Petitioners' standing now rests in an unusual procedural posture.
Because of the contravening factual submissions made by B&W and the Staff, it is appropriate in this instance, in a manner akin to a summary disposition determination, to undertake a merits-type evaluation of the sufficiency of the Petitioners
- factual bases for their claims of standing.26 C.
Sufficiency of Petitioners' Injury in fact Allegations 1.
Petitioners' Sworn Factual Awrments Regarding injury in Fact a.
Distance of Residencesfrom the B&W Facility t
in their affidavits, the Petitioners state that they reside at distances ranging from less dian an eighth of a mile to approximately two miles away from the B&W facility. Neither B&W nor the Staff contests these declarations; nonetheless, these statements are not enough, standing alone, to establish the Petitioners
- standing in this proceeding.
To establish standing in NRC licensing adjudications, petitioners often seek to rely upon proximity to a licensed facility, particularly under what is commonly referred to as the " fifty-mile rule." This so-called "mle," which is more in the nature of a presumption, is derived from a string of commercial power reactor adjudicatory determinations. "Ihe common thread in these decisions is a recognition of the potential effects at significant distances from the facility of the accidental release of fissionable materials. ~Dirough their reliance on this singular factor, these cases now stand for the general proposition that a petitioner living within approximately fifty miles of a commercial power reactor will be considered to have the requisite injury in fact for standing to contest a request for issuance of a facility construction permit, an operating license, i
or an amendment to such a permit or license that has obvious and potentially l
wide-ranging offsite radiological consequences?
t The Commission,- however, has made it clear that this " fifty-mile" pre-sumption does not apply in materials licensing actions. Instead, a petitioner must show, in accordance with section 2.1205(g), what particular impact the planned licensing action will have upon its legitimate (e.g., health, safety, or
?
26See Consumers Power Co. (Mdlant Plara.Unita 1 and 2), tJIP-78 27,8 NRC 275,277 n.1 (1978). See alsa L
13A Wngha, si et, supra,6 3531.15, at 97-99 27g,,,, g,, pg,, ads Power a ligkr Co. (st. Imcw Nuclear 1%cr Plant, Unita 1 and 2), C11R9-21,30 NRC 325, 329-30 (1989); Gulf Ssases Uriht.as Co. (River Band station. Unita 1 and 2), AI.AB 183,7 AEC 222,223-26 (1974).
83
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i environmental) interests." nerefore, to show that their interests are affected I
either by the onsite decommissioning activities that are permitted under Amend-l ment No. 21 (e.g., building demolition, soil remediation), or by the purported contamination that is n rA offsite or that will remain onsite after decommission-ing activities are compk ed, n is not enough for the Petitioners simply to assen they live close to the Apollo facility. To meet their burden of proving that they have the requisite injury in fact, the Petitioners also must provide some evidence of a causal link between the distance they reside from the facility and injury to their legitimate interests._
IIere, they have failed to do so. In the EA relating to Amendment No.
I 21, the Staff analyzed what it characterizes as the most significant accidents that might arise from the decommissioning process, ircluding what is described as the " event with the greatest potential release of lioactive material," the collapse of the most contaminated section of the mana ansite building.".ne Staff concluded that this accident "would have insignificant potential impact" that "does not indicate a significant risk to public health and safety."" Rr their i
part, the Ittitioners have not tried to show that, at the distances they reside from the facility, the impacts of this accident upon them would be " distinct and -
palpable." ney also have not sought to establish that there is a credible accident scenario, other than that specified by the Staff, that would have a "panicular
[
and concrete" impact at those distances. Nor have they attempted to show any _
direct link between the distance they reside from the facility and any injury they might suffer from any purponed residual onsite contamination.M n us,the Petitioners
- unadorned reliance on the distances they live from the Apollo facility
[
is inadequate to establish their injury in fact concerning the decommissioning i
amendment.
b.
Receiving an " Effective Dose Equiwilent" In their affidavits, the Petitioners' also suggest that their standing is estab-lished by the Staff's declaration that they and others living within fifty miles of I
the Apollo facility will receive an " effective dose." His is an apparent reference i
e "See 54 Fed. Reg. 8269. s272 0989). Ahhnugh there is authorny suggesting that geographical pecamuty to a sutstantial soume of mdioactive snatanal,in and of itacif,is sufriciers to carablish a paniards standmg. see e
Armed farces Kadoktory Kesearra leenaue (Cabah.60 storage heility). ALAD482,16 NRC 150,153-55 (1982). Its condnuing viabilsty is doubtful given racera developmerns regardmg judicial standmg mluimmarna, see supre note 20 and nocampanymg text, and the Camnussion's satmequent,_
an standmg in matcoals lumnsms acuars.
" LLs. NRC Ofr.oc of Nudear Material safsy and safeguards, [EAl forn-~"-W of the [B&W) Apono sue Dune 111992) si 5-1 ihereinafter EA1 "Id. at 5-1, -3.
M The datance the Peudoners reside from the Apnllo facihty has rm real bearing on that standmg m pursue any l
of ther clairra regarding residual alTane cantamms6an_ "Deere, the cruical factor is the distance they naide inn the alieged effsne camammauan 84 l
l l
l
h l
to the Staff's EA finding regarding the total" effective dose equivalent" that an individual living within a fifty-mile radius can be expected to receive over a fifty-year period from decommissioning activities under the Plan.
l As B&W points out," the Petitioners' attempt to use this Staff finding to establish their standing is rooted in a misconstruction of the term " effective dose." An " effective dose equivalent" is a means of summing dose equivalents to various organs and tissues."
- Effective dose" thus is a measuring tool that by itself tells nothing about the impact of decommissioning activities. As such, the fact that the Staff considered whether the general population within a large geographic area around the Apollo facility may be subject to an " effective dose" from decommissioning activities does not equate with injury in fact to the Petitioners."
c.
Radiological Contamination on Local Property
'Ihe Petitioners in their affidavits also rely upon purported radiological contamination on the pmperty of petitioner Virostek and other local citizens as establishing they all will suffer injury in fact from any demmmissioning activities authorized by Amendment No. 21. Putting aside for the moment the question whether this alleged offsite contamination actually exists, with respect to ongoing onsite cleanup activities the Petitioners have not shown any credible connection between those activities, the claimed contamination, and harm to their interests. Ibr instance, in their affidavits they do not specify when the purported local property contamination was " discovered." From other filings in this proceeding, it nonetheless is apparent that their contamination allegations are based on soil sample tests run by the Pennsylvania Bureau of Laboratories (PABL) on the property of petitioner Virostek and another local citizen in October 1988." These tests were conducted long before July 1992 when onsite decommissioning activities began under Amendment No. 21 and cannot provide any evidence concerning injury in fact from decommissioning work.
Nor are the Petitioners
- assertions regarding local property contamination sufficient to establish their injury in fact concerning residual offsite radiological 2
"See B&W Ilearing Request supplement Respmse at M "Ses 10 Cf.IL i 20.1003.
"The staff euncluded out the " effective dose equivalent" so the maannally esponed individual within a 50mue red us d the ApnDo facility will be very small and within segulatory limus." EA at 71. The I%ainmem have a
net made any specific challenge to the adequacy d this staff LA famhng er made any asserums regudmg the cumuladve impact d dus dcse or any other purponed doses relatmg to decommasimmg.
"See Petiument'] Rgly to ogpsinan Responses Requesting Immedane Cessadon of Cleanup Activities (oct.
29.1992). eth. B.
85 r
R I
i I
i I
t contamination " Petitioner Virostek alone tries to establish a causal link by f
- maintaining that radiological contamination is on property she occupics. As to her claim, however, the factual submissions of B&W and the Staff establish that i
the purported contamination on her property is attributable to naturally occurring uranium or atomic weapons testing-related cesium rather than emissions from the Apollo facility." This alleged contamination thus provides no basis for a l
finding of injury in fact to her or any other petitioner.
l d.
Photographic Evidence of Ofsite Contamination
'l As part of their efforts to document their claims that they will suffer injury in fact from offsite contamination and decommissioning activities, the Petitioners in their affidavits refer to a 1976 movie purported taken during facility operation; another movie that allegedly shows " fugitive dust emissions" coming i
from the facility during decommissioning activities in August 1992; and 1992 photographs that are purported to show offsite emissions and various improper cleanup activities. Only the photographs were actually presented to the Presiding Officer for consideration."
l As a basis for injury in fact regarding onsite decommissioning activities, the
[
1976 movie suffers from the same deficiency as the 1988 soil tests discussed above in that it lacks any tie to those activities. Further, as evidence of offsite l
contamination generally, it is simply too attenuated to establish the type of
" distinct and palpable" harm necessary to show injury in fact relating to a
}
licensing action seventeen years later.
l With respect to the 1992 movie and photographs, in each instance B&W has l
contravened the Petitioners' factual assertions with credible evidence showing
{
that the supposed emissions and improprietics did not,in fact, occur. Concerning the 1992 movie, B&W has made an unrebutted showing that Pennsylvania state authorities visited the facility the same day to check on the emissions and were unable to confirm that they were contaminated dust, as opposed to exhaust i
fumes from construction equipment." Further, monitoring equipment in the
}
"The Pentioners' aacgations neganiing hum from affsite radiological comammanon have no apparem beanng on their claims concammg mpuy fuorn residual ansne radiologg:al comammanon or residual offsite nonradsological cantaminanan.
"See tBP 92 31. 36 h1C at 26445; tBP-92-35,36 NRC at 361-62.
"Su imer frun James & IIelen llatctuson se Presidmg o&er (oct. 29.1992). 'Jhc Peutaeners failed to include the octual photographs in su;pmt or thcar hearmg vaguest supplanenL Nanctheless. it is apparent that the photts referred to an the supplernera a?e the sans aus provided in support d the IN:ntianers' seply to the B&W and saff responses to their sisy request.
"See ticensee's oppositum to Paduarers' Roguest rar stay (oct. 21,1992). exh.1 et 54 thereinafter B&W stay oppusa6an).
i i
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b area of the purported release evidenced no unusual emissions.' Regarding the 1992 photographs, B&W's sworn evidentiary presentation establishes that the snapshots do not reflect any improper activities resulting in offsite emissions or other decommissioning process deficiencies that would harm the Petitioners
- interests. nerefore, both the 1992 movie and photographs are insufficient to establish any injury in fact to the Petitioners.
e.
Petitioners
- Activities at Home andin the Community ne Petitioners also seek to establish their standing to litigate their claims about purported onsite and offsite radiological contamination by asserting in their affidavits that they conduct various personal and business activities outdoors at j
home and in the community, some very near the B&W facility. For example, in her statement petitioner Virostek declares that besides visiting local commercial establishments and engaging in outside yardWork and secreational activities, from time to time she helps her sons deliver the local newspaper to homes "very -
very close" to the facility. Ibr their part, petitioners James and Helen Hutchison declare they engage in outdoor activities at home and in the community, including frequent visits to an apartment within one foot of the B&W facility.
The other petitioners also assert they perform outdoor activities at home and in the community, albeit at unspecified distances from the Apollo facility.
In supporting these "outside exposure" standing claims, it is apparent that, except for the inaccurately categortred contamination on petitioner Virostek's property discussed above," the Petitioners have not attempted to show that there is any particular existing offsite location where their outdoor activities will expose them to radiological contamination that would constitute " distinct and palpable" injury." Nor have they shown that their outside activities at home and in the community will result in any injury that can be traced to present decommissioning activities on the site. For instance, they have not presented any information that would contradict the B&W showings that during i
decommissioning work any airborne or effluent releases offsite have been a small fraction of regulatory limits, and that the only known offsite contamination,
'8See M (readmas during Gute-day pcriod sumumdmg aBeged emission incident svaraged 0.10 percent d manimum pmmasible cmcznaranan (MPC), wnh a manimum readmg at any sianon being 0.15 percent MPC).
'3 5es tmnree's Resparae to Paitumers' Supplemeraal Replies (Nov. 5.1992), anach 1. at 1-27. The only i
quesdonable acuvity estabhshed by the Peutioners' photngraphs was a worker nra wearing a safety helmet. See d at 7. WhDe dus may be a violanan d safety pmcodures, it does not connutune a hazard to the Peu6nners or an injury to Guar hoahh, safety, or envuonmental imerests.
{
42.Ses supra p.16.
i "The owner d the "aohr" paperty. whidt was the subject d the othee PABL soil test neport supplied by the Pamuners ses aupra note 35, has not sougia to imervene in this pmceeding and the Peuunners hne not indested that they have any comact with that pareny.
[
"Ke, B&W Heanng Request supplemers Response at 5 & L4. B&W simus Response at 4.
i 87 i
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which was previously revealed by B&W offsite characterization activities on
{
an immediately adjacent industrial site, has been effectively remediated.*5 'Ihe i
Petitioners have failed to put fonh any credible basis to suppon a finding of l
particular and concrete" injury in fact to them during their daily activitics from j
facility decommissioning authorized under Amendment No. 21.
i i
- f. 1986 PADil Report and Related Expert Witness Apidavit i
In another attempt to establish their injury in fact as a result of offsite radiological contamination, in the affidavits accompanying their supplemental petition the Petitioners reference a 1986 Pennsylvania Health Department survey conducted in the Apollo area. Hey also attach a 1987 affidavit from an expert witness. In this affidavit, which was filed in federal court litigation relating to the nearby B&W Parks Township facility, the witness provides his views on what the 1986 survey suggests about the amount ano source of cancer in the j
Apollo area. Ultimately, however, neither the 1986 report nor the 1987 expen affidavit is sufficient to support a finding of injury in fact to the Petitioners from Apollo facility decommissioning activities.
As B&W notes, the PADH concluded in a 1986 survey and a 1988 follow-up study that the data gathered did not support the contention that cancer snonality
-[
F in the Apollo area is either significantly clevated or clearly excessive" In his affidavit, the expert witness draws a different conclusion from the data in the 1986 reporL %e exper' mess characterizes the 1986 PADH study as showing elevated cancer deaths u Le Apollo area and suggests there is a link to past j
operations at the Apollo facility.
The reliability of this " expert" witness is subject to serious question."
Nonetheless, accepting arguendo the opinions he puts forth roncerning the "See BAW offsite Characterizanari Response at 54 See slee staff offsne Nw=ian Resprue at 7.
f In respondmg to the h:t:6aners' hearing request BAw has assened that any allegations aganimg offsite y
d.aractenzation and decenmisnoeung sie irrelevant to this gc~~hg as nutside the scope of de amendmern request. See B&W licanna Request supplemera Response at 24-25. A Stafr suhrnissian an this subject suggesia others,se. Aeoording to de snached affadevit of om staff project manager for Amendmera No. 21,the licensee is required, prsuarn to tacense Amedmern No. 21, which incorporated by saference the [ Plan] into Maierials ticense No. sNM 141, to sample as part of ha characterisanon pmgram au suspect amas of the ApoDo site and surroundmg areas." staff offsine Characanization Response. Affidavit of Keith IL McDaniel Respanding to l
Presidmg o!!icer's Novemhcr 20.1992 Memorandum and order (Requesnng supplemernalInformation) at 2. The
-J staff's sukuisainn also indicates that in de past certain affaite areas near the ApoDo facility have been iden6fied I
as esmtaminsied and that B&W has take measres to isolste thee arena inen the public and decenaminate thern..
I see kL at S 5.
a63ee B&W Heanng Request supplement Resparme at 6.
" The aftern.Dr. Ernest steroglana, has bezm a witness in other NRC and,iudusal proceedings and his methodolcq;y and conclusions egndmg the effects of low 4cul radatie have been consistently found to be deficican and wiue;ema. Ken. et Carpimo Paner a tig4r Co. (shearon Hams Nuclear Piara. Unita 1 and 2).LBP44 7.19 NRC 432,438 (1984) (given past tunnlabihty of he amtimony, prdfering Dr. sternglans as sole expcst wnness on radiningical hashh sciects issues wouhi provide baais for cruenng summary dispostnnn against sponsonng par:y i
en thrme maters).
r v
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b
impact of past facility operations, the apparent factual dispute that is created does not provide footing for the Petitioners' standing claims. This disagreement simply is not material to the question of the Petitioners' standing because the conclusions of this affiant do not address the central question here -
the impact upon the Petitioners of the decommissioning activities undertaken under Amendment No. 21. Once again, the Petitioners have failed to provide i
sufficient evidence cf the causal link between the licensed activitics at issue in j
this proceeding and their purported injury in fact" g.
Residual Onsite Contamination and the National Research Council Study
'Ihe only other sworn basis for the Ntitioners' standing concerning radiolog-ical contamination arises from the purported impact of contamination that will be left onsite at the Apollo facility after decommissioning is completed. Several of the Petitioners' concerns evince a general challenge to the standards (e.g.,
less than 30 picoeuries of uranium per gram (pCiU/g) on average for soil) that B&W is using at the Staff's behest as the cleanup criterion for releasing the site j
for unrestricted use
- Yet, they have not made any showing that, following de-commissioning, they will engage in activities onsite that would expose them to any purported contamination in a manner that would result in " concrete" injury to them.
What the Petitioners have done is reference a research report in an apparent l
attempt to prove the inadequacy of the Staff's guidance standard and, conse-
?
quently, the harm that they will suffer by the application of that standard to the 48 1hc mann ennclumust obtams neganhng the mily other *documamtary" evidenn suppbed by the Peutnaners en l
the quesnan d ofYsite connanunanort in accking socoruideranon d the Pnsidmg o! hoer's dmial af their manan j
in sisy funher decommissianing activitus under Amendmarn No. 21, the hutiones prwided on cacorpt imm a repart by a localimune purponedly showing a number af radelogical* hat spots"in the town of Apolk See IEp.
}
92 35,36 NRC at 36L Yet, the type af mformanan needed to determine whether ths supposed omtammatian would cause any injury in fact to the Petitinners - when er where the hat spots were discovend, the level of cmtsminanan exhihned at ese location, and the methodology unhzed to conclude that any comammation came imm the ApnDo facihty -is nat carnained in the partion of the repon prmWL Sm id at 362. In addition, the separt camrpt states that B&W, under NRC supemsian, was then taking steps to identify and clean up any I
mnaminated areas near the facrity or elsewhere in Apollo and that the NRC was giving close anernian to the maner of offsite contammanan. Su id This han!!y suppmu the Petinaners' anscrunn that they are likely to suffer y
some injury in fact fmrn of!zite era -nnanort "These standards are based upon diaff guidelines that, while not incurporated imo the agency's squianons.
have accived Cornnussian endorsement pendmg the complenan of a mernly ir=wrulemakir4 proceeding-Em 57 Fed. Reg. 13.389, 13,390 0 992). 3= o!so 58 ad 43610993) (annnuncing rulemaking process to j
estehhsh dm... _L., standants). B&W suggests that the Corrmuasian's racera endossemers af this guidance is sufficurs ao pmtect it fan etaliense "a the absece of specars information bnnsms auch standards into t
quesuan" B&W Heanng Request supplement Response at 26. so lang as a dmDenge to this staff guidance is
- germane" to the hoensing proceeding,it is subject to bemg oaranwoned on the same basis as any oths agency
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regulatory *guidanos" that has not been incorporated into the regulations or has not become bmdmg agency pieceders as a cursequece d withstandmg dsallenge in another heensing or enforcemers adjudicanort Compare lO CF.R. I 2.1239.
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residual onsite material. In their affidavits, the Petitioners single out a 1990 i
study by the National Research Council that they assert shows exposures to low-level radiation pose a cancer risk three to four times greater than previously believed.58 The problem for the Petitioners, however, is that this study is in-tended to address radiation exposure risks generally. It provides no indication about either the adequacy or inadequacy of the particular Staff guidelines used in this instance or the scope of the injury to the Petitioners arising from the use of those guidelines. Nor have the Petitioners attempted to show any link between the report's broad conclusion about radiation risk and the sufficiency of the particular guidance standard as it is used by the Staffin relation to the Apollo facility. Thus, the report alone does not provide a basis for conclud-ing that the Petitioners will suffer any injury in fact concerning residual onsite contamination at the Apollo facility.52 j
f 2.
Petitioners' Additional Factual Averments Relating to injury in Fact In addition to the factual assertions ~ submitted under oath in the affidavits accompanying their hearing request supplement, in support of their various areas of concerns the Petitioners also have presented a number of allegations that.
arguably touch upon the issue of their standing. R1r the reasons explained below, these too are insufficient to establish their injury in fact a.
Local Sewer Contamination The Petitioners have raised concerns about injury arising from radiological contamination resulting from releases into the local sewer system that are alleged to have occurred during operation of the Apollo facility. The Petitioners assert in r
their hearing petition supplement that "[i]t!']s a known fact that the Apollo sewer SDAhhaugh the Pustuoners refer to a 1989 National Research Council study, what Gry apparmily are citing is the study prepamd by the Nananal Rascardt Council's Cemnunce en the Dmhsical Effens of lamzing Radiatian enutled "11cahh Effects of Espasure to tow levels of lanizmg Radis6an - BDR V" publiabed in 1990.
51 The same can be said fm the only other irtformation the Paitimers pmvide e the inrue of sesidual ensite arusminanan standards. As support for their cancerns about de adegusey of the stafra guidelines,in their haarmg painan supploment they reference a Mey 1989 General Accoundng office (GAo) report concerning NRCs decommissianmg pmcedures and a lieshh Physics society standards Comminee (IIPssC) ;.:aposed j
report en residus! redmeetivisy a surface cantaminsne far materials, equipment, and f=h that is cited in the GAo repmL see Petitioners
- Ilearing Request su;plemern at 4. De GAo report suggests that the 11Ps5C pmposed surface contaminadan s:andards, ubch are described in the nenn as three to fwe times lower l
than NRC Imuts im natural uranium, wanuun 235, and uranium 238, should be taken irno accourn in adapung '
i decommissianing s:andards. See U.s. Omern) Aamunting ofrice, GAo!RCED.89-119, Nuclear Reguistion-NBCs Dec.-
1--
's Pmcedses and Criseria Need se Se Spengshened 28 Oday 19F9). he Petitioners' l
otherwoe uneaphcated referraus to these pmposed standards for camaminsuan on the surface of decomnussioned buildmgs and equipment (which appamnly heve mot been adopted by the relevsnt standards 4 citing body, the American National standards Insutme (ANst)) is insufficwrs to demanstrate their particular relevance to the Putinoners' injury in fact regardmg residual ensue suit and gmundwater contamins6m at the Apollo site.
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system is contaminated" and that "[t]here is clear evidence that various types of radioactive and non-radioactive contaminates have been discharged into the Kiski Valley Water Pollution Control Authority [(KVWPCA)] sewer system."U Their only showing in suppon of these statements, however, is their proffer (in their subsequent stay filings) of a 1986 Pennsylvania Depanment of Environmental Resources (PADER) repon they assert shows radiological contamination in the KVWPCA sewage treatment plant and a 1986 newspaper article regarding that report.
As has been established previously in B&W and Staff factual submissions, the radiological " contamination" reflected in the 1986 report on the KVWPCA treat-ment plant indicates nothing more than naturally occurring uranium or atomic
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weapons testing-related cesium." The newspaper article provides nothing that sustains a contrary conclusion.58 Moreover, in their filings contesting the Peti-tioners' hearing request, both B&W and the Staff point to the sewer contami-nation characterization efforts described in the Plan and the EA. Both note that those activities undenaken regarding the potentially impacted Apollo Borough and KVWPCA systems have revealed that only one ponion of the Apollo Bor-ough sewer system, the so-called north sewer line k)cated on the B&W site, has evidenced any signs of contamination? As to this sewer line, it has been rerouted, a replacement sewer line installed, and the former sewer line and the adjacent soil have been remediated. In addition, B&W and the Staff have sub-mined sworn statements showing that effluent measurcrnents froin the site taken during the ongoing cleanup activities have not reflected any releases that are more than a small fraction of regulatory limits."
In the face of persuasive information submitted by B&W and the Staff challenging their assertions about sewer line contamination, the Petitioners have i
failed to provide any information to substantiate that such contamination now exists. Nor have they attempted to establish that, as a result of their residence
{
or daily activities in the Apollo area, they would suffer any " concrete" harm from the purponed contamination. 'Ihe Petitioners' failure to show any injury in fact flowing to them relative to liquid effluent discharges from the site once again is fatal to their effons to establish standing.
E ftuunners' Heanng Request supplernera at 5-U See TSP-92-31. 36 NRC at 26445 & n.28. See also 12P-92-35,36 NRC at 360.
r M See tEP-92-35,36 NRC at 36041.
"See B&W Ileanng Request sumlement Response at 3133; stafr Ilearing RequestAlcanng Requat supplemern Response at 25. See sina B&W status Response. Aff*dsvit of Richard V. Cartsan Updating the Status of Decamnussioning Activines at the Apollo siis at 2-3 [ hereinafter Carlson Afridavn). In in response to the Pisinaners' heanng request. B&W also in6 cates that their implied cancern that there as widrspmed contammation in the Apollo Bamugh sewer systern is irmnaisters with the physical crimtauon af this north newer ime, which r
is at the lowest pairs in the systesn. Su B&W Hearing Request stypiement Response at 32.
"Sn B&W stay o asition.enh.1.at 5. See also B&W sistus Response, Carlson Afridsvis at 2.
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b.
Nonradiological Contamination and Mixed Waste Besides their various claims relating to radiological contamination on and off the Apollo site, the Petitioners also assert that because of past operations there is nonradiological (i.e., chemical) contamination or mixed waste (i.e., waste with both radiological and chemical contamination) on or off the Apollo site that must be remediated. As with their claims regarding radiological contamination, however, they have failed to make any showing indicating how they will suffer r
any injury in fact from the purported contamination.
I The Petitioners assert in their hearing request that unspecified chemical contamination or mixed waste exisa at the Apollo facility and that there has been no comprehensive testing for such contamination or mixed wastes." He petition, l
however, is silent on the nature and extent of this purported contaminated material, as well as any explanation about the nature and extent of the harm they will suffer because of this unidentified contamination. In response to the hearing petition, both B&W and the Staff have provided information showing that, consistent with the provisions of the Plan, efforts have been made to
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identify chemical contamination and mixed waste at the facility and that no significant contamination of either type has been revealed." In this light, the Petitioners' failure to explain how they will suffer any injury from this alleged nonradiological contamination or mixed waste places an insurmountable hurdle in the path of their efforts to establish their standing to litigate any of their contamination concerns." Similarly, in the face of the B&W and Staff submissions, the Petitioners
- failure to mount a credible demonstration either that i
U lkah B&W and the stafr a*gue that the agmey lada segulsiory jurisduimn over the Puntimers' anacrnons akna nonradiological comannnanon, as w.11 as their claims that B&W and the stafr have faded to ahde by er mfares vanous federal and state envuonmemal statutes deshng with sud cornammarim,includmg RCRA, CLRCLA. the Clean Air Act, the Clean Water Act, and Pennsylvarua schd wasts and cican water 1swa. See B&W llearing Request supplanern Response at 36; staff Ileanng RequestMeanns Request supplemers Response at 1819. The agency's hundiction a this segard is daubtful. See 57 Fed. Res.24.018, 24.021 0 988). Su alae i
Kerr McGee Corp. (West Onc=ao Rare I:asos facihty), ClJ-82-2,15 NRC 232,269 (1982), qTd rub am l
Cary of Masr CMceto v. NRC 701 F.2d 632 Oth Cir.1983). Nanaheless, Gus is not a questum that need be definidwely stoolved given the I%sitioners' faDure to establish any injury in fact regardmg such -^-"
"Sn D&W Ilearing Requatt supplernern Response at 20L21,39-40, stafr Ileanns RequesvHeanna Request strpplement Response at 19-20. on the maner of smaed waste,in a sware stateners accanpanying B&W's January l
1993 status scport on Apollo decomnussianmg activitica,the General Manager of B&W's Nuclear Enytmnmercat servwes thvisum wnh sesponsihihry far decamrnssioning the Apollo facihty nmes that with 90 pcrcera of the potentiaDy earnammsted soil evacuated, no mined was4 has beeniderniried. See B&W status Response Carlson Affidsvu at 1
- The only information suppbed by the Ptsnioners that prtwides any bading for their assertions about the enistence of nonradiological cornammation are two November 1992 newspaper articles suhnuned in suppon of their motion i
to seconsider the denial of their suy sequest. The articles indicate that an organization aams as tudmical advisar to a local citizens gmup carnands that, on the lesis of tha resuhs d 1990 hydrogeological testmg at the Apollo site, there is ensite eenucat cerasminatim. See IEP-92-35,36 NRC at 362. As was h =ad an the December 1992 memorandurn and order deriymg the moansiderannn amtion, the vahday of the 1990 testmg program is largely suspect. Impmper testing pmundures appamrnly were used a the 1990 testing, as subsequera test pmgmms in
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1991 and 1992 heve shown that ensite soQs do not carnain hazardous consutuerns skwe charsciensue levela definnd in IIPA regulanens and that there is nn sigmficant groundwater contaminanan. See id at 362-63.
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t the supposed chemical contamination or mixed waste exists or that the Staff and l
B&W characterization activitics regarding such contamination are inadequate dooms their attempt to establish their standing to litigate any concerns about such contamination.
l 3.
NFl% Procedural Concerns i
Besides their claims that Amendment No. 21 suffers from a variety of substantive health, safety, or environmental deficiencies, the Petitioners also assert that the NEPA process concerning the amendment involved several procedural violations. Specifically, they maintain that a full EIS, rather than j
an EA, was required concerning the amendment and that the EA prxess was insufficient because of a failure to obtain public comments on the EA finding of"no significant impacts" regarding the amendment."
By its terms. NEPA imposes procedural rather than substantive constraints upon an agency's decisionmaking process: The statute requires only that an agency undertale an appropriate assessment of the environmental impacts ofits action without mandating that the agency reach any particular result concerning 1
that action.68 And with regard to the procedural rights accorded a person by a l
statute stch as NEPA, the Supreme Court has recognized that they are accorded "special" consideration when deciding whether there has been injury in fact l
regarding those rights. According to the Court, injury in fact to those procedural rights can be successfully established with a less rigorous showing on the normal injury in fact elements of redressability and immediacy.c 'Ihis relaxation does not, however, extend to the requirement that the petitioner must suffer some concrete injury from the proposed agency action, which still must be shown i
apart from any interest in having the procedures cbserved."
In trying to establish their standing to pursue their concerns regarding the l
NEPA procedures used to assess the Plan, the Petitioners are faced with the l
predicament that, for the reasons explained above, they have not met their burden of showing concrete harm to any legitimate health, safety, or environmental interest supposedly impacted by the amendment and the decommissioning plan I
l "Jee sapre note ik in their statemera or concerns, the haitiones raise a numba d challcrges to the analysis or various maners in the EA. Becatma the EA was developed as part or the NEPA procesa these claims might be categorned as procedural matters as well. Nonethelcas, given their substantive f!avor. these cencems have been treated as mauers relatmg to the Petitioners' substantive mterats ror the picpuse or deternumns the Petinaners' S
s:andmg to htigste them.
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61 Sec. e4 Re6aroon v. MacAow raftry Ciriarar Co nal. 490 U.s. 332,350 o989).
"See L. asian.1191.14. 2d at 372 n.7 (;erson hving near dam siac may be able to challenge Ds m1 sting to dam 9
heense even though unable to establish with eenairay that the Els will cause license io be wuhheld or ahered and 6
dapite the fact dam will n be completed ror many years).
"See id at 372 a 8;,' %+ Seco. CU-92-2, 35 NRC ai 604) (alleged "informabanal inpiry" is or i
" questionable value"as bas a andmg to chaDertge raiture to prepare adequate Us).
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it sanctions." By failing to do so, they are unable to establish their standing to pursue their concerns about the agency's compliance with NEPA's procedural requirements.
III. CONCLUSION Dismissal of the Petitioners' hearing request for lack of standing is not predicated upon a finding that they (or any other Apollo resident) can never establish their right to participate in a section 189a hearing concerning a licensing action regarding the Apollo facility. Instead, this action is compelled solely by the Petitioners' failure to meet their burden to show their standing to participate in this pmceeding.55 The Petitioners have not provided convincing information that counters (or even creates a material factual dispute regarding) the well-documented factual showings of B&W and the Staff demonstrating that ~
the Petitioners do not suffer any injury in fact relative to the amendment request at issue. Accordingly, the Petitioners
- hearing request must be denied."
t For the foregoing reasons, the Petitioners
- July 27,1992 request for hearing is denied and this proceeding is terminated. In accordance with the provisions t
of 10 C F.R. 62.1205(n), as it rules upon a hearing request this order may be appealed to the Commission within ten days after it is served.
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"he Petiananers' central focus in daDenging the amendment at issue here is the impecs to their heahh, safay, or _ _
1imerests. In their Concerns 2 and 20, however, they make claims awarding injury to coanorme
; activines a& ". sed. See imerests (eg, getperry values, local tax revenues) as a mesuk of the 4 supra note 6. Assuming that such economic interests are angnirable in this proceedmg. the Ptsitimers annetheless have framed that concems in terms of undefmal scanamic injury to the local community sa a whole. his formulation fads to address the quesGm most relevant to the Puitimers' partactpation i.e., what is the eormarme j
p each d thern would sufTer.
m Le Pai6aners' ladt d succesa en fae threshold issue of standing. an area of the law that one pmnunent i
commentatcr has described as marked by *5ncedmate complexity," 4 Kennesh C. Davis, Administraaive law I
Treatise (24.1, at 208 (2d ed.1983), may reflect the dispartty in legal and technical expertise available to them by reason of what they repeatedly have assened are their mesgar fmancial sesounxs. De Comnussion cannot aid a
than in this regard because the ageary is precluded by statutary directive fase providmg any fundmg to thcse who insh to imervene in agency adjudacatory or regulatory pmceedmas, Sea Energy and Water Development Appmpnauans Act,1993. Pub. L Na 102 377, 5502,106 stat.1315.1342 (1992) (covering fiscal year 1993).
Moreover, to whatever degra this ctreumstance might have been a facter in the htitioners' failure to carry their l
burden an the questie d standmg, h does not pmelde cause for overlookmg the ahoncommas in their picadags.
"Baosuse the Ptsationers have not requested permission to imervene in this pmeeeding as a matter d discretion, see f%bla 3 rings, CU%27,4 NRC at 614-17, h is not necessary to descemine whether they cmid be a!Iorded such imerversion.
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it is so ORDERED.
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1 G. Paul Bollwerk, Ill.
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' ADMINISTRATIVE JUDGE t
Bethesda, Maryland Febniary 5,1993 l
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Cite as 37 NRC 96 (1993)
LBP-93-5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy in the Matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3)
(Re: License Amendment)
(Transfer to Southern Nuclear)
GEORGIA POWER COMPANY, et al (Vogtle Electric Generating Plant, Units 1 and 2)
February 18,1993 The Licensing Board grants the intenention petition of a person who lives 7 days per month in a house located 35 miles from a nuclear power plant in a license amendment case. Licensee sought through the amendment to transfer operating authority over its plant to a new operating company. Petitioner alleged that the new operating company lacked the character and competence to operate the plant.
Licensee and the Staff argued that relief could not be, granted because denial of the requested amendment would not solve the alleged problem, which relates to individuals involved both in the new operating company and in the present company. The Board reasoned that standing can be based on alleging that the transfer of operating authority would violate regulatory requirements for character and competence of operators of nuclear power plants, and it also ruled that standing to intervene cannot be destroyed because the alleged problem may also affect the current operations of the plant.
d
RULES OF PRACTICE: STANDING; CilARACTER AND COMPETENCE In a license amendment case involving allegations of management's lack of the required character and competence, there is an obvious potential for offsite consequences, so standing is analogous to that in an operating license case.
Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2),
CLI 89-21,30 NRC 325 (1989).
RULES OF PRACTICE: STANDING; DISTANCE FROM PLANT In a license amendment case involving allegations of the unfitness of man-agement, there is an obvious potential for offsite consequences, so standing is analogous to that in an operatmg license case. Florida Power and Light Co. (St.
Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325 (1989).
Consequently, standing was granted to a petitioner who lived 35 miles from the nuclear power plant for 7 days per month.
l OPERATION OF NUCLEAR POWER PLANT: CIIARACTER AND COMPETENCE The license to operate a nuclear power plant may only be transferred to a company that has the necessary character and competence to provide an adequate assurance of safety thsaugh its management practices.
r OPERATION OF NUCLEAR POWER PLANT: ALIENATION OF CONTROL 2
A contention was admitted that alleged that a licensed operator of a nuclear power plant had improperly alienated contml of its plant without written approval from the NRC. The Board said that this might adversely reflect on the cimacter and competence of the individuals who took control of the plant.
CONTENTIONS REQUIREMENT: 10 C.F.R. I 2.714(b)(2);
ALLEGATION OF AN ADMISSION A contention may be admitted to the proceeding in satisfaction of the contentions requirement if it alleges adverse facts, not included in the amendment j
application, that would entitle petitioner to relief.
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I MEMORANDUM AND ORDER (Admitting a Party) i Memorandum 3
We have decided to grant the petition of Allen L. Mosbaugh to be admitted as a party to this case.
We find that Mr. Mosbaugh's petition meets the applicable criteria. He suffers an injury in fact because he has al'eged, with an adequate basis, that an operating license for a nuclear power plant should not be transferred to an entity that employs in senior positions individuals alleged to have submitted material false and misleading safety information to the United States Nuclear Regulatory Commission (NRC). 'Ihe allegation establishes, for the purpose of determining standing, the seriousness of the situation to which Mr. Mosbaugh may be exposed. He is at risk because he owns a house 35 miles from the l
Vogtle Electric Generating Plant (Vogtle) and lives there one week a month.'
'Ihe Staff of the Nuclear Regulatory Commission (Staff) and Georgia Power Company, et al. (Georgia Power) have argued that Mr. Mosbaugh may not intervene in this license amendment case because the management deficiencies he alleges, if true, are already present in Georgia Power and that no new risk is added by amending the license to transfer authority to Southern Nuclear. We disagree with this way of conceptualizing the risk. Mr. Mosbaugh has standing because he has alleged, with an adequate basis, that the proposed amendment does not meet the safety requirements of the NRC. We would not deprive him of his right to intervene because the material safety deficiencies he has alleged may already be occurring.2 y
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11ACKGROUND Georgia Power proposes to amend its license to operate Vogtle. The proposed i
amendments would have no effect on the ownership of Vogt1c, but they would allow Southern Nuclear Operating Company, Inc., (" Southern Nuclear") to become the operator - thus, operation would pass from one wholly owned subsidiary of Southern Company (Georgia Power) to another (Southern Nuclear).
On October 22, 1992, Allen L. Mosbaugh and Marvin B. Hobby filed a petition to intervene. Staff filed its answer on November 2,1992 (" Staff i
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8 See below. begmnas on p.107. im further facts aban standmg.
Gempa Power also has argued that Mr. Moshaugh shmM be denied standing became he las already rued a 2
10 CIA (2.206 pautaart Howem. that argumait is invalid. 'Ihat a pai6cn concemma Georgia Power may be pendmg does not preclude intervernion in this Lcense amendment case.
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Answer"). Georgia Power filed its answer on November 6,1992 (" Georgia Power Answer"). Mr. Hobby's petition was dismissed for lack of standing by our Memorandum and Order of November 17,1992 (unpublished).
Even though the proposed amendment would transfer the authority to operate Vogtle from Georgia Power to Southern Nuclear, executive management would i
continue to be the same key people. To summarize how similar the staffing l
would be, we quote verbatim (with footnote numbers changed to be consecu-tive within this opinion) ffom the NRC Staff's Response to Licensing Board Questions, February 5,1993 (Staff Response to Board), at 3-4 Southern Nuclear has been identified. since March 1991, in chapter 13 of the Final Safety Analysis Report (FSAR). as providing support services for the Vogtle facilities.3See Revision j
1, dated Mardi 1991; Revision 3, dated December 1992.* Le Vogtle Bectric Generating Plant FSAR 513.1.1.2, Rev.13/91, sets forth the organizational arranganent regarding Vogtle in terms of the corporate affiliation of various management officials. He caccutive t
vice president for nuclear operations is an officer of Georgia Power Ccunpany, Alabama Power Company, and Southern Nuclear Operating Company, Inc. FSAR 513.1.111.1.
Le senior via president for nuclear operations is an officer of all three supra named corporations. FSAR 113.1.1111 he vice president for nuclear fcr the Vogtle facilities is an officer of Georgia Power Company and Southern Nuclear Operating Company, Inc.
FSAR 513.1.111.5. Since Mardi 1991, the FSAR has shown that a number of officers of Georgia Power Company are also officers of Alabama Pbwer Company and Southern Nuclear Operating Company,Inc. See also Figure 13.1.1-1.5 l
Mr. Mosbaugh's principal allegation is that Southern Nuclear lacks the char-l acter and competence to operate a nuclear power plant. Briefly, Mr. Mosbaugh alleges that in 1988 Southern Company began making changes at Vogtle that eventually would lead to the filing of the pending application. The first op-erative step was the organization of a Southern Nuclear Operating Company j
(SONOPCO) project. At the time, Mr. Mosbaugh' served as Superintendent of Engineering Service, at the Vogtle Plant, with 400 employees reporting to i
3[ staff footnoie 11 10 C.FJL 65034(b)(6) requims that the FsAR submined an applicanon f<r an eperating hoor se shall provide, anong caber maners: "The foDowing information concernmg facilny operanen: (i)Tbc app 1mant's organhational suucture. allocations or napansibihtus and authonties. and persmnel qualifwations requirements? Ahhaugh that regulatim does not mquis revimors to an FsAR after a plant is tiemmed.10 C.F.R.
l 650.71(c)pmvides that a licensee shall penodicaDy update its PsAR to keep it current, and submit those revisions no the Commissian.
" tstaff focanate 1) A enpy d Revision 3 was sent to the tjeensmg Board by Licensce's counsel on January 21 le91 S istaff footnote 3-] Further, southern Nuclear's provisim d techrucal support memoes for the Vogtle facility has becss discussed among Gaurgis Power Company and NRC's ofruz d Nuclear Reactor Regulation and NRC's i
Regional Ofrwe in Atlanta. Georgia since 1988. Su NRC Messang Summary. dated Mard 25, 1988...
[
1he NRC conducted an inspection of the Vogtle femti,= in the sunmer of 1991. As a part of that inspection.
NRCinspectos visited the southern Nuclear operating Cornpany enices in Birmingham Alabama. The primary purpose was to gain a mars detailed working knowledge d the various Vogtle support activit es and grou;s.
The inspacuan sport conduded: "No violations or deviations were identified." NRC Inspectim Report Nos.:
l 50 424/92-22 and 50-425/92-22 et pages 13 and 15. dated october 25,1991...
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him.' Mr. Mosbaugh concluded that the organization of SONOPCO marked a change from a " conservative" to a more " risk taking" attitude in the operat:on of Vogtle? lie was particularly concerned that SONOPCO seemed less concerned about NRC reporting requirements.' Mr. Mosbaugh alleges that, subsequent to the time that SONOPCO began to have influence, Georgia Power filed false and misleading reports with the NRC and its officials filed material false statements in response to NRC questions? At least some of the charges initiated by Mr. Mosbaugh are sufficiently serious that the Staff has referred them to the United States Justice Department for evaluation with respect to possible crimil.al prosecution.28 II. CONTENTIONS AND BASES t
Traditionally, contentions are discussed in cases involving intervention only after there has been a finding of standing. However, in license amendment cases there may be an interrelationship between what is alleged in the contentions and whether there is standing. This occurs because " injury in fact" in an amendment i
case depends on whether the alleged risk to health and safety is significant and involves " obvious potential for offsite consequences.""
A.
Legal Ilackground We are convinced that the granting of the requested amendment legally requires that Southern Nuclear have the character and competence to operate a nuclear power plant. The brief12 of the Staff of the Nuclear Regulatory Commission is highly persuasive on this point, and we adopt it verbatim (footnotes changed to be consecutive in this opinion), as follows:
Section 182 of the Atomic Energy Act 42 U.S.C. (2231, provides that the Ccanmission, by mic or regulation, may require such information as it determines to be necessary to decide the "charatzer of the applicant." The Commission has enacted no regulations in regard to the
' Recommended Decision and order, A&s Mosbaugh v. Cecrgis Power Co.,91-12A-1,11 (Oct. 30,1992)
(Webaugh tabar Case), et 4-5;"Carpa Power cornpany's Answer to the Decemba 9,1992 Amended Pension or Allen t. Whaugh,"Decanber 22,1992 (onorps Power's second Answer).1.nh. 3.
7 Moabsugh tabar Case at 6.
we consider that this information, submitted by con:gia Power, places the allegaties in arnext.
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'"Ammdmerns to Ptnitim to Imervene and Request for nearing"(Mosbaugh), December 9,1992 (Amendments to Pentian), at 1519.
10"NRC stafr Response to Allen L Mosbaugh's Amendrnemus to 1%Litum so Imervene and Raguest rar licarms and Comingers Mation to Defer the staff's Reply to Cornemians and Rulmas a Comanians," Decanber 30, 1992 (Starr's soonnd Respave), at 67.
" see a rurther explanstian of this legal standard below, begisning on p.106.
12 NRC staff Response to lleensing Board Questions (Feb. 5.1993) at 44 100 F
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" character" of an applicant. Ilcmever, the Cunnnissim addressed the character of licenwa and apphearns in Metropolitan Edison Co. ('three Ele Island Nalcar Station, Unit 1),
CLl45-9,21 NRC 1118, ll3G37 (19E5); flouston Lighting and rower Co. (South Texas Project. Units 1 and 2), CU40-32,12 NRC 281,291 (1980); src alw Metropolitan Edison Co. (Ihree Ele Island Nuclear Statim, Unit 1), ALAB-772,19 NRC 1193,120648 (1984),
and floarton Lighiing and Pomer Co. (South Texas Project, Units I and 2), U1P-8413,19 NRC 659,673-79 (1984). Each of the cited decisions indicates that the character of an applicant may be cxmsidered in appropriate licensing actions. In Three Mile Island,21 NRC at 113637, the Commissim stated:
A generally applicable standard for integrity is whether there is reasonable assurana that the Licensee has sufficient character to operate the plant in a manner ccmsistesit with
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public heahh and safety and applicable NRC requirements. The Cummission in making this determir,ation may consider evidence regarding licensee behavior having a rational cxmnection to the safe operation of a nuclear power plant. This does not mean, however, that every sa of licensee is relevant. Actions must have same reasonable relatimship to hcensee's diaracter, i.e., its candor, truthfulness, willingness to abide by regulatory requiremeras, and acceptance ci verpansibility to protect public heahh and safery. In addition, acts tearing on diaracter generally should not be considered in isolation. The pauern of licensee's relevara behavior, including corrective ac6ans, should be considered l
[ footnote omitted).
In South Teaas,12 NRC at 291, the Ccenmissica stated:
In large part, decisims about licenses are predictive in nature, and the Commission cannut ignore,, abdicadon of knowledge by a license applicant when it is called upon to decide if a license for a nuclear facility should be granted.13 We believe that the above issues relating to technical competence and to charader permeate the pleadings filed by Citizens. They do deserts a full adjudicatory hearing, as they will no doubt get in the operating license proceeding, and they do deserve espedidous treatmcra because they could prove disqualifying.38 1he beensee has requested that amendmcras be issued to the Vogtle licensees to grant l
permission for Southern Nuclear instead of Georgia Ibwer to operate the Vogtle facilrdes.
1he issuance of ari operating license or amendment requires an affirmative finding of cornpliance with the Atomic Energy Act, the Commission's regulations and reasonable assurance of heahh and safety of the public. 10 C.F.R.150.57. If personnel who will be involved in the cperatian of the facility lack diaracter to operate the facility, then the requested operating license or amendmera may not be issued. South Tesas, syra,19 NRC at 669 and 831, and Three Mile Island, supra,21 NRC at 1137 n37, f
6 13(Staff focannie 4 } Equally, and a
> s of more ccumern, the Conunisamn cannut ignore false statammts in documams suhmined to it Cnns specifically provided that hoenses may be revoked far "maanal false 5
stawrncnts" mee section IW d '
anc Encrgy Aa, and we have no doubt Gut ini6al luense applications er renewal apphostions msy ab m darned an Gus ground, censinly if the falsehoods were internimal, KC v.
WOKO,329 U.S. 223 (1946),and perhaps even if they were made only with disregard for the unite lefora Areakarrma Co. v. KC,636 F.2d 454 (D C. Cir.,1960); Virgmia Elecosc and Po,er Co. v. NRC,571 F.24 1289 (4th Car.1978).
34[hwanote $ in ensinal) We include, of course, the false statemams sharge in this category.
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i II, Contentions 1.
De Yacto Thinsfer of Contro!
Contention 1 slates:
ne Suuthern Company (working in cunpmcdon with its corporate affiliates and officers) effectuated transfer of control d the operadon d the Vogtle Elcaric Generating Plars from the licensees to a de facto corporation, known as the Southern Nuclear Operating Company, without the knowledge or consent of the coessers of Plara Vogtle. The corrupt corporate policy effeaing the creation d the de faero Southern Nuclear Operating Company resuhed in the creation of a managemera chain of command so lacking in diaracter, mmpetena, integriry, candor, truthfulness and willingness to abide by regulatory requiremmts as to represcra a threat to the heahh and safety of the public and/or scpresent a potential imsafe operating condition which must be corrected before formaltransfer of operating responsibility may pass to the Southern Nuclear Campany,Inc.
Immediately, the Board notes that the part of the contention alleging lack of knowledge or consent of the co-owners of Vogtle has not been shown to i
be relevant. Vor similar reasons, the word " corrupt" in the second sentence of the contention also has not been shown to be relevant or appropriate. On the 5 10 C.F.R.
other hand, as a legal basis for this contention, Mr. Mosbaugh cites 6 50.54(c) (hereinafter "nonalienation requirement"), which states:
Neither the license, nor any right thereunder... shall be transferred, assigned, or disposed of in any manner, either vahanarily or involurnarily, direaly or indirectly, through transfer i
of corarol of the lics:nse to any person, unless the Commission shall, after securing full information, find that the transfer is in acmrdancie with the provisions of the act and give its consent in writing.3' lie also cites 10 C.F.R. I 50.34(b)(6)(i) (hereinafter " reporting requirement"),"
which requires the NRC to be informed about: *The applicant's organizational tS *Mancr's Brief in Response in the Board's Request for Informa6an,'" February 5.1993 (Masbaugh Rempanse to Board) at 2.
The cited seguistian is sekvars to Mr. Masbaugh's contention but selstes to facts that the other panicipants t
do not accept as truet See, panicularly, "Coorgis Powu Company's Btief in Response to the Board's Jariuary 15,1993 Request int Infonnation and Briefs" February 4,1993 (Georgia Power's Response to Board) at 11-19.
(Also see M at 10, asserting that "since cach of the Vogtle units began operaticut, h [oca gis Power] has been in
[
carnrol of the opersuan d Piars Vogtle...)
8'our record does not indicate that the t!.s. " Nuclear Regulatory Comnussian has given its consern in writing in any change d ocearei of operations. See Tr *14 (Georgin Ibwer's counsc! states that Southern Nuclear is not mentioned in the license) and Tr. 74-75 (Gurgia Power's courwel does not provide aderence to *arry formal way in which the NRC was informed of er agreed to that kind of organizadanal structure"); hur ser Georgia Ibwer's Response to Board at 14-15. (Use of Southern Nuclear as a support services company and the double-hauing of officers wens disclosed in three Updated Final Safety Analysis Repana. No mention of farmal NRC appnwal No statemera concerning ennuul having passed amiy from Gewgia Power, as alleged.)
Georgia Power also cites 30 CE.R. H5036(cX5),50.36(bX6Xi), and Genenc imter No. 8846. Accordmg
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17 no its www of the facts,it is in c<rnpliance wah these requirernenta. But Georg>s Power does not discuss Mr.
t (Conrimed) r 102 I
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b structure, allocation of responsibilities and authorities, and personnel qualifica-tion requirement."
lie then states that, contrary to the nonalienation and reporting requirements, that Southern Company established a defacto board of directors of what was called the "SONOPCO" project. Mr. Joseph M. Farley is alleged to have been the chairman of that Board and to have reported directly to the Board of Southern Company about Georgia Power Company's nuclear units. Mr. Farley was not an officer of Georgia Power Company.is Mr. R.P. Mcdonald, who is involved in the running of Southern Nuclear 2' allegedly had a set of joint responsibilities with Mr. Farley - who served in "non. operating areas" - and the two jointly served as chief executive of the project with respect to administrative matters.2o Mr. Parley also is alleged to have worked closely with the SONOPCO Technical Services vice president.22 Mr. Mcdonald, who was an officer of Georgia Power, allegedly gave contradictory and misicading testimony about the management structure and formation of SONOPCO.22 Georgia Power's Senior Executive Vice President testified that he thought Mr. Elriey was an officer of Georgia Power.25 Georgia Power's principal defense is that these allegations - involving past actions - are irrelevant to the license amendment application. We find, however, that this conclusion is not warranted. Mr. Mosbaugh has adequately alleged, with basis, that the formation of Southern Nuclear's relationship to Vogtle violated NRC regulations, evidencing a lack of a trustworthy character in Southern Nuclear. If this contention were sustained, we might direct that the license amendment be denied or conditioned on changes in the structure and j
personnel of Southern Nuclear.
We note that 10 C.F.R. 5 2.714(b)(2)(iii) requires the speci6 cation of how the application fails to contain information that it should contain. In this instance, Mr. Mo baugh has alleged material facts that are relevant to the application.
The omission of these facts from the application is not surprising, since they are adverse to the interest of the Applicant. Consequently, Mr. Mosbaugh fulfills l
1 Mahaugh's aBegations. IIence, its arguman is more hcipful in understanding its undedying factual pasinan than in daarnunmg whether to adnut the commum. De decision abots whaher to admit does ncs require us to make determinatmns concerning the truth of the alleganons.
~i ts Mmbaugh cites Hobby v. CPC. 04 FitA.3C. at 308,3940.13-14. anached to a 10 Cf.R. I 2.206 pennon riled Masbaugh en July 8.1991; ne Amendnwis to Ptsinan at 614.
3 $se
- Phase UI Pruptued southern Nuclear organisatinn Chan (Plams !!auh and Vogtle only are shown)."
tendered by Georgia Powa. EL Tr.116.
20Amendmerna to Petinon; ser especially id at 't.
21 Mtshaugh estes Nabby v. GPC. 90-ERA-30 at 37-38, attached to a 10 CJA i 2.206 penuun rated by Mahaugh i
on July 8,1991; as Amendmems to Pennan at 9.
22 Amendmems to Petation at la11.12, 23 M<shaugh cites lleN? w SPC 94 ERA.30. Ileanng Tr. at 69491, attached to a 10 CIA 6 2,206 petinon filed by Moshaugh en July 8.1991; see Ammdmems to Peution at 9.
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- the requirements of this section because the omission from the application of tie facts he has alleged is material to proper consideration of the amendment.
t Ibr the reasons we have just stated, we find that this contention - amended to delete irrelevant material, as determined in the beginning of this section of our memorandum - has met the criteria of 10 C.F.R. !2.714(b)(2) and shall be admitted as a contention.
2.
Character of Southern Nuclear Mr. Mosbaugh attempts to show a factual basis for Contentions 2,3, and 4 in one fell swoop." liowever, Contentions 2 and 3 deal with Southern Nuclear, and we have decided to consider those two contentions separately from Contention i
4, which relates to Southern Company. Contention 2 states:
The Southern Nuclear Operanng Company, Inc.. does not possess the requisite character, j
competenu and integrity, and does not have the candor, truthfulness and willingness to abide by regulatory requirements to become the licensee to operate the Vogtle Elearic Gmerating liant.
Contention 3 states:
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'!he Southern NucIcar Operadng Company. Inc., a whatly owned subsidiary of The Southern Company, does not possess the requisite character, competence and integrity, and does not have the candor, truthfulness and willingness to abide by regulatory requirements to become l
the licensee of the Vogtle Elearic Generanng P1 ara, and as sudi transfer of the license
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represenu an increased risk to the heahh and safety of the public and/or represeras a potendal unsafe operating condidon which must be coneard before responsibility for operating plara Vogtle can he transferred to the Scnichern Nuclear Operating Company,Inc.
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As a basis for his contentions, Mr. Mosbaugh alleges that, "SONOPCO's l
highest levels of management conspired to submit and did submit materially false information to the NRC concerning critical safety-related information pertaining to a March 1990 Site Area Emergency."2s In support of this allegation, Mr.
Mosbaugh describes evidence that, among other things, implicates Mr. R.P.
l Mcdonald - an officer of Southern Nuclear -in material false statements in Licensee Event Report 90-006. One of the alleged material false statements is the intentional falsification of data on diesel engine starts in order to persuade
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the NRC to permit Vogtic to restart.26 De evidence that Mr. Mosbaugh intends to introduce includes Mr. Mosbaugh's own eyewitness testimony plus tape recordings of relevant conversations. He states that he made the tape recordings, l
NAmenenents to Peunon at 14-19.
25 14 at 15.
M 14 at 18-19 pamcularly n.15.
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which are currently in the possession of the NRC's Office ci Investigations (01)."
Mr. Mosbaugh also claims that he made tape recordings, currently in pos-i session of OI, that provide irrefutable evidence that Mr. Mcdonald swore to a variety of other false statements before the NRC.2: From his memory of events, refreshed by these tape recordings, it would appear that Mr. Mosbaugh also could provide eyewitness testimony of the underlying events.
We find that there is adequate basis for Mr. Mosbaugh's contention that at least one senior officer of Southern Nuclear is lacking in character and competence and that Southern Nuclear lacks the integrity required of a licensee for the operation of a nuclear power plant. If this contention were sustained, we i
might direct that the license amendment be denied or conditioned on changes in the structure and personnel of Southern Nuclear.
For the reasons above, these contentions have met the criteria of 10 C.F.R.
l 5 2.714(b)(2) and shall be admitted.
3.
Character of Southern Company Contention 4 states:
"ne Southern Company, by virtue of the corporate struaure and makeg of the Southern Nuclear Operating Company, Inc., Board of Directors, omtrols and directs the management of its whony owned subsidiary, the Southern Nuclear Operating Company. Inc. Because the Southern Company does not have the requisite character, competence and irnegrity, and does not have the candor, truthfulness and willingness to abide by regulatory requirements required of a licensee and becaase the Southern Company caercises substantial controt over management of the Southern Nuclear Operating Company,Inc., transfer of the Vogtle Dectric Generating Plant license to the Southern Nuclear Operating Company Inc represents an increased risk to the health and safety of the public and/or represents a potential unsafe operating unditican which must be corrected before said transfer can occur.
We have considered this contention and fmd that Mr. Mosbaugh has not provided an adequate basis for questioning the character of Southern Company, its officers or directors, beyond the allegation already admitted as Contention 1."
r Consequently, we will not admit this separate contention. However, our denial.
of this contention will not in itself bar Mr. Mosbaugh from introducing evidence
- 7 relevant to appropriate remedies involving Southern Company if he first succecxis t
in demonstrating the need for remedies by establishing wrongdoing by Southern Nuclear or its organizational predecessor.
I "M at 15-IL 28 1d at 1719.
Su id. at 15-20.
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4 III. STANDING As set forth in Pacific Gas and Electric Co. (Diablo Canyon NucIcar Power Plant, Units 1 and 2), LBP-92-27, 36 NRC 196 (1992), a petitioner fcr intervention must, as a prercquisite to achieving party status, establish that it has standing and that it has proffered at least one viable contention. To establish standing, a petitioner must demonstrate an " injury in fact,"" that the injury falls within the zone of interests sought to be protected by the statutes, and that the injury may be redressed by a favorable decision in this proceeding. Public Service Co. of New Hampshire (Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261, 266-67 (1991).
In Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CL1-89-21,30 NRC 325 (1989), the Commission noted that, in construction permit or operating license proceedings for nuclear reactors, residence of a person within 50 miles of a facility would be sufficient to confer standing.
The Commission went on to hold that this 50-mile presumption did not apply in all operating license amendment proceedings but o.tly in those involving a significant amendment involving " obvious potential for offsite consequences.
Id.,30 NRC at 329-30.
In our Memorandum and Order of November 17,1992 (unpublished), slip op. at 7, we noted:
that petitioner alleges that he resides 35 miles frorn the plant and that he has sarne addidonal i
cmtacts with the planL Ihr an amendment case, itsidence at that distance, with some additional contacts, does act automancally result in standing. Barron Edison Co. (Pilgrim Nuclear Pomer Stade), LEP-85-24,22 NRC 97,98-99 (1985)(pentioner, who lived 43 rniles imrn the plant and allegedly consumed fish and cranberries, did not show a reasonable scenario through which the amendment could produce an injury), ag'd on other groundr, ALAB-816,22 NRC 461 (1985).
WC also noted" "To estabhah the bans for standing. peuhaner must show injury in fact It is easy to muunderstand thm standard
' f because the giunse
- injury in faa" as used in his context does not bear its normal everyday meanirg. rur example, a pesan living 45 milm from a nuclear power plant who canoes in the general vicinity of the plant has i
been found to suffer "mjury in fact" from an amendmestt d a power plant Ismse in order to permit am espansion of the capacuy of the spera fuel pool. Wrginia Dectric and Powr Co. (North Anna Power s:ation, Unia 1 and j
2). A1AB-522,9 NitC 54,57 0979).
Careful analysis seveals that, of case, the fuel pool was not eve built at the time " injury in fact" was alleged.
No accidca had occused. No release of nuclear snatarials had pa:urred. Ilence, infect, there had ant been any
,L injury to the paitiuner as these words are comrnordy uned. Nevenheless, he was said to have bem injumd in l
fact because c( the possibility of an accident. of counm. this was an cady stage of the case in which he had not yet proved that thenz was a possibiley er an accident. What the paitioner had to do to atmain pany status was to
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submit conteritiers (with an adequate basis) whose subsequent pronf could risuh in a finding af injury in fact to I
hmt so: injury in faa is indeed the same,in ths cantext, as an allegation that a realinjury might reasonably be expected to occur in the futurcL 106 i
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that Georgia Power dianenges Mr. Mosbaugh's statement that he actuatly resides at the property he ovms 35 nules from the plara. It bases its claim on the fact that he receives electric bills at an add ess in the State of Ohio. h also apparently has same other undisclosed source of "informatiun and belicL" 'Ihis is enough of a basis for us to require Mr. Mosbaugh to amend his petition to state specifically how much of the time he vesides at his Georgia residence.
As a result of our concerns about standing, we held an evidentiary hearing on this limited subject at our prehearing conference in Augusta, Georgia, on January 12, 1993. As a result of that hearing, and after evaluation of all the evidence, we find that the significant facts concerning standing are:
Mr. Alan Mosbaugh owns a detached house located approximately 35 miles from the Vogtle Plant.35 From about 1985 to fall of 1990, Mr. Mosbaugh and his family resided full time in the house he built.32 Since August of 1991, Mr. Mosbaugh's family has resided in Ohio
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but Mr. Mosbaugh has continued to live in his house in Georgia about 7 days of every month,25 Mr. Mosbaugh is currently seeking employment eithet in Georgia or Ohio. He also is considering starting his own business. The outcome of this job. seeking process will cause him to live either in Georgia i
or in Ohio.54 Mr. Mosbaugh has alleged that his health, safety, property rights and personal finances could be affected by an order granting Georgia Power's request to
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transfer control of Vogtle to Southern Nuclear.W We conclude that the exposure that Mr. Mosbaugh has to Vogtle is sufficient to sustain the claim for standing.
IV. CONCLUSION We conclude that Mr. Mosbaugh has met all the requirements for standing.
He has proffered at least one viable contention, demonstrated an " injury in fact,"
alleged a health-and-safety injury that falls within the zones of interest sought to be protected by the statutes, and demonstrated that the injury may be redressed by a favorable decision in this proceeding.
33 Tr.15.
32 Tr.1s.16,30.
33 Tr.17,18,39 40. (Mashaugh'a family also comes to Gorgia shmn 3 weeks per year.) Tr.4940,51.
We nais that Goorgia Power and the staff wa,1d have us decide standing based on legal residence To deternune whaher Mr. Mambaugh has had sumciera caprmure to Vogtle to support standing, we do not consider it necessary to deiernine, either as a maner of state isw or of federal cornman law, whether Mr. Masbeugh is a 1cgal"sesidern" of the staie of Geo ga.
- Tr. 36-37,44 46.
35 Petinan at 2 3.
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Southern Nuclear must meet the regulatory requirement that it demonstrate its character and competence before it be granted operating authority over a nucicar power plant. Where the contention raised alleges, as here, that Southern Nuclear officials have intentionally withheld material safety information from the NRC, the issue is one that affects the safety of the entire plant. The risk of non-safety-conscious management is as great as many other risks taat could be adjudicated in an operating license case. Ibr this reason, we are considering a significant amendment involving " obvious potential for offsite consequences."
St. Lucie, CL1-89-21, supra.
In this case, a few key individuals who are currently employed ly the li-censee, Georgia Power, are also employed by the prospective licensee, Southern Nuclear." Because they are key employees of Southern Nuclear, their char-acter is relevant to approval of the requested amendment. However, Georgia Power and the Staff would deny Mr. Mosbaugh standing because the proposed amendment will not increase the risk to which he is already exposed. We have concluded that this argument is not valid.
Mr. Mosbaugh has raised a valid safety concern related to the transfer of authority that is being requested in the pending license amendment. We have concluded that it is not a defense to Mr. Mosbaugh's allegations of deficiencies that those deficiencies may already exist. We do not recognize as a defense the conditional argument that if key people in Southern Nuclear are lacking in character and competence then the same people working for Georgia Power are similarly lacking and therefore there is no loss or " injury" to Mr. Mosbaugh due to the transfer of authority.
An analogous issue was decided in Northeast Nuclear Energy Co. (Millstone 5
Nuclear Power Station, Unit 2), LBP-92-28, 36 NRC 202, 203, 208-11 (1992)
(Millstone). Millstone concerned an amendment necessitated by a calculational error that would have permitted a fully loaded spent fuel pool at Millstone to have had a criticality constant or K,,, of as much as 0.963, which is in excess of the maximum value of 0.95 permitted by NRC regulations. The purpose of the arnendment was to place new restrictions on the fuel pool and to require new blocking devices so that the maximum permined K,, would not be exceeded.
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Thus, it is clear that the amendment would have made things safer. Nevertheless, the Licensing Board ruled that it would admit a contention that alleged that the new, admittedly safer fuel pool arrangement, still did not meet regulatory requirements. The Licensing Board said,36 NRC at 211:
We return to licensee's argumera that it was the prior calculational error, not the amendment, whidi caused a reduced margin of safery, therefore an injury in fact. That argument depends too heavily on cornpartmentalized reasoning. The potential for reduad M A detsaed descrisian of the exwn of evedap d sardor persarmel is set fonh beginning at p. 99. above.
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safety here (injury in fact) is both the pnor calculational error and an amendment that does not redress that error but permits operation of the spent fuel pod acmrding to its terms.
The two concepts are logically inseparable.
Asstuning that the record of the proceedmg were to demonstrate that the risk from the calmis6 anal error is not abated by Amendment 158, interested persons may have redress by a denial of that amendment? True, as licensee states, that acnon would not correct the prior calculadonal error, but it would remove the authority to operate the spent fuel pool under an inadequate amendmmt. Such a denial would return the matter to the Limnsee and the NRC enforcernent staff for a proper resolution of the problem.
In our case, Mr. Mosbaugh should be given the opportunity to oppose the issuance of an amendment. He would be injured if the authority to operate Vogtle were transferred to people who lack the character and competence to operate that nuclear power planL See Seabrook. CLI-91~-14, 34 NRC at 267 (appearing to suggest that petidoner would have had standing to challenge the transfer of operating authority over the Seabrook plant on the grounds of character - alleged harassment of workers at another plant).
t V.
STAFF MOTION FOR DELAY Staff stated that it could not respond to Mr. Mosbaugh's contentions because a pending criminal investigation of Mr. Mosbaugh's charges has been referred to the Department of Justice for its action. Staff stated:
Eada of Mr. Mosbaugh's contentions maintains that the proposed transfer for whidi permission is sought in the subject license amendment may not take place because of an alleged lack of" candor, tmthfulness and a willingness to abide by regulatory requirements" of the proposed transferee, Southern Nuclear Operating Cornpany, Inc. As a basis for cmtendons 2,3 and 4, Mr. Mosbaugh makes alleganons regarding material islse statements attributed to officers and the also mersions] a related invesdga6an. See Amendments to Petidon at 15-16, n.10. These allegations are being pursued by the Department ofJustice for possiMe criminal prosecution, and until thir innstigation is comlete the NRC Stagis unaMe to take a pavilion on the allegationr contained in she con:entionr. LEmphasis adde 4; concluding footnote omitted.]
We do not find that the Staff provided us with an adequate reason not to comment on the proffered contentions, as there is no indication that the materials forwarded by this agency for potential criminal prosecution would be relevant to the adequacy of the basis provided by Mr. Mosbaugh for his contentions.
It would appear that the material being kept confidential would either be t
- [rmantse 11 in the ensinal] In the real world or h1C adjudications. apphcams for beenses and amendmems so hcenws acenpt modification sa a condiuan er usuance seldom are h1C adpadicators faced wnh an up or dtwo choece, 109 b
i irrelevant or would provide additional grounds for questioning the character and competence of Southern Nuclear. There is no reason to telieve that the allegedly confidential materials would destroy the basis for the contentions.
f We recognize that Georgia Power could be suffering from a potential diffi-culty. Access to these confidential files could permit it to rebut the basis for the proffered contentions. However, the standard for assessing the basis for l
contentions is far less than what would be required to accept their truth. Part of the basis for the contentions is the personal knowledge of Mr. Mosbaugh.
Part is tapes that Mr. Mosbaugh says he made and apparendy has listened to.
llis statements, about what he has seen and about what he believes to be in the i
tapes, provide adequate basis for his contentions. Hence, we have been able to act on the contentions even though the Staff did not file its comments on them.
We note that Georgia Power did respond to these contentions in Georgia Power Company's Answer at 20-26, as well as some general remarks that preceded these pages.
B VI. CONSOLIDATION OF CONTENTIONS We have examined the contentions we have admitted and have determined, in the interest of efficiency, that they amount to the following one contention:
i ne license to operate the Vogtle Electric Generating Plara, tJnits I and 2, should not be transferred to Southen Nuclear Operating Cornpany, Inc., because it lacks the requisite characer. -,,%
and integrity, as wc!! as the newssary candor, truthfulness, and
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will% as to abide by regulatory requirernents.
We shall order that the admitted contentions all be consolidated so that this one contention, originally submitted in slighdy altered form as Contention 2, will be the only one pending before us."
i VII. DISCOVERY - NEGOTIATIONS; STAFF TO l
SilOW GOOD CAUSE i
It is the policy of this agency to adjudicate all its cases prompdy and
-I cfficiendy, There is an opposing policy: to protect the confidentiality of documents contained in criminal prosecutions pursued by the agency. In this j
Cnruemum 1, whwh we have admitted, alleges a laa d d. arac:cr of southern Nucicar allegedly occurnng imm
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the actkms of sanhern Company. The principal issue in Canuntian I is stated in the consolidated comenunn should Mr. Masteugh demonsuane the truth of the consolidated ccatention, we would then pred to fashion a l
nznedy and might at that point admit evidence (nr supulations) concerning the rule of smnhern Ccmpany. for the purpose of fashuming e amedy.
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case, these apparendy conflicting interests could be harmonized if the parties could reach an agreement on how the relevant information can be shared pursuant to a protective order that contains a carefully constructed provision that would keep all potential defendants, and all potendas counsel for those defendants, ignorant of the contents of the investigation.
If those negotiations succeed, discovery or partial discovery of investigative documents can commence. If they fail, we will riecd to harmonize the policies for efficient adjudication and those for protecting criminal prosecution. To assist us in doing that, we will schedule filings by the parties. 'Ihe first filing will be that of the Staff, to show cause why discovery of prosecution documents should not start immediately. In its filing, the Staff should include answers to the following questions: (1) What deadline, if any, can the Staff agree to as the latest date that discovery can start? (2) How does the Staff compare the '
importance of the civil questions relating to the adequate assurance of safety for the continued operation of the plant and a decision on the license amendment, to the importance of possible criminal prosecution?
VIII. OTIIER DISCOVERY AND SCIIEDULING Other discovery, which may not be related to confidential documents that are possessed by the Office of Investigation or the United States Justice Depart-ment, may commence immediately. 'Ihe parties shall commence negotiations concerning an appropriate schedulc for this other discovery," which may be reopened after other documents become available. If there is no agreement on a schedule before March 8,1993, the parties shall simultaneously file suggested discovery and trial schedules on that date.
Order For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 18th day of February 1993, ORDERED that-1.
Mr. Allen L. Mosbaugh is admitted as a party to this case.
2.
The following contention is admitted as the only contention in this case:
- lhe license to gerate the Vogtle Dectric Generating Ih, Units 1 and 2. should not be transferred to Southern Nucicar Operating Ccunpany, Inc., because it lacks the requisite daracter, %,ca z. and integray, as well as the necessary candor, truthfulness, and willingness to abide by segulatory requirements.
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- 3. Discovery shall commence immediately.
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4 Negotiations among the parties shall commence immediately, concern-ing: (a) a protective order and an insulating wall that might make the dis-covery of investigative documents possible at this time, and (b) a schedule for i
concluding discovery and holding a prehearing conference and a hearing."
- 5. On March 8,1993, the Staff shall file a brief showing cause why discovery of prosecution-related documents should not commence immediately.
On that same date, the parties shall simultaneously file their suggested schedule for the case, including the events mentioned in the accompanying Memorandum, r
On March 18,1993, Mr. Mosbaugh and Georgia Power Company shall file their response to the Staff's March 8 brief.
i FOR THE ATOMIC SAFETY AND LICENSING BOARD James IL Carpenter ADMINISTRATIVE JUDGE Thomas D. Murphy ADMINISTRATIVE JUDGE Peter B. Bloch, Chair ADMINISTRATIVE JUDGE Bethesda, Maryland
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"The schedule should include a future daie an which the panics will discuss de scheduhng cf witnesses during.
l the heanng, stipulations to neduce the need for hve tesumany, and any aber preheanns maners the parties chtwse to raise.
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i Directors' I
I Decisions Under 10 CFR 2.206 l
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i Cite as 37 NRC 113 (1993)
DD-93-3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Dr. Thomas E. Murley, Director in the Matter of TEXAS UTIUTIES ELECTRIC Docket Nos. 50-445 COMPANY 50-446 (Comanche Peak Steam Electric Station, Units 1 and 2)
CAROUNA POWER AND UGHT Docket Nos. 50-324 COMPANY 50-325 (Brunswick Station, Units 1 and 2) l CAROUNA POWER AND UGHT Docket No. 50-400 COMPANY 1
(Shearon Harris Nuclear Power
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Plant)
DETROIT EDISON COMPANY, et al Docket No. 50-341 (Enrico Fermi Atomic Power Plant, Unit 2)
WASHINGTON PUBUC POWER SUPPLY Docket No. 50-397 SYSTEM (WPPSS Nuclear Project No. 2)
GULF STATES UT1UTIES Docket No. 50-458 COMPANY (River Bend Station, Unit 1)
February 1,1993 By a petition dated July 21, 1992, the Nuclear Information and Resource Service and others (Petitioners) requested pursuant to 10 C.F.R. 62.206 that 113 i
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the U.S. Nuclear Regulatory Commissicm (NRC) take enforcement actions in light of fire barrier test failures. Fire barriers are generally required at operating commercial nucIcar power plants by the NRC's regulations or facility license conditions. Petitioners sutunitted additional filings on August 12,1992, September 3,1992, and December 15,1992. Specifically, Petitioners requested that the NRC Staff issue, by September 5,1992, Generic Letter (GL) 92-XX which had been circulated for public comment on February 11,1992, and which i
discussed test results and recommended actions regarding Thermo-Lag 330-1 fire barrier material. Petitioners also requested that the NRC close nuclear power plants that cannot prove through independent testing that they meet AC fire l'
barrier requirements and that the NRC issue a stop-work order regarding the installation of fire terrier material at Comanche Peak Steam Electric Station (CPSES).
On February 1,1993, the Director of the Office of Nuclear Reactor Regulation issued a Partial Director's Decision that granted in part and denied in part the relief sought by Petitioners.
Tb the extent Petitioners sought issuance of the Generic Letter, relief was granted. On December 17. 1992, the NRC Staff issued GL 92-08, "Thermo-Lag 330-1 Fire Barriers." With regard to the other requests, relief ums denied.
Specifically, for operatmg facilities, the Director concluded that fire watches permitted by the NRC requirements applicable to the facilities in question provided reasonable assurance of adequate protection of public health and safety.
As for stopping work at CPSES Unit 2, the Director concluded that the Licensee proceeded at its own risk during the construction phase and that the NRC Staff would evaluate the safety issues associated with installation of Thermo-Lag material at the operating license stage.
l Issues raisal by Petitioners in their December 15,1992 submittal were not considered in the Partial Director's Decision, but will be considered in a Final Director's Decision.
PARTIAL DIRECTOR'S DECISION UNDER 10 C.F.R. f 2.206 I.
INTRODUCTION By a petition dated July 21, 1992, the Nuclear Information and Resource Service (NIRS), Alliance for Affordable Energy, and Citizens Organized to Protect Our Parish (the Petitioners), requested that the U.S. Nuclear Regulatory Commission (NRC) take enforcement action regarding the Gulf States Utilities' (sometimes referred to as GSU) River Bend Station, demanding its operating 114 i
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license be suspended until GSU can demonstrate, through independent testing, that it mwts the NRC's fire protection regulations (Appendix R to Part 50 of Title 10 of the Code of federal Regulations (10 C.F.R. Part 50)). In addition, the Petitioners demanded that the NRC Staff immediately issue Generic Letter (GL) 92-XX, the draft of which was circulated for public comment on February 11, 1992, and close any nuclear power plant for which the licensee cannot prove, through independent testing, that it meets fire protection regulations until it does meet them. By an addendum to the petition dated August 12,1992, the Pedtioners requested immediate action related to the Comanche Peak, Shearon Harris, Fermi-2, Ginna, WNP-2, and Robinson nuclear faciliGes. Joinin;,
in filing the addendum are a number of other organizations: Citizens for Fair Utility Regulation, Don't Wastc New York, Citizens Against Radioactive Dumping, Coalition tar Alternatives to Shearon Harris, Con.ervation Council of North Carolina, Safe Energy Coalition of Michigan, Steve Langdon, Essex County Citizens Against Fermi-2, Natural Guard, and Northwest Environmental Advocates.8 ne petition and addendum (sometimes collectively referred to as Petition) were submitted under the provisions of 10 C.F.R. 6 2.206 of the NRC's regulations. Notice of receipt of the Petition was published in the federal Register on August 26,1992 (57 Fed. Reg. 38,702).
He Petition alleges a number of deficiencies concerning nermo-Lag 330-1 (Thermo-Lag) material, including failure of ncrmo-Lag fire barriers during 1-hour and 3-hour fire endurance tests, deficiencies in procedures for installation, nonconformance with NRC regulations for quality assurance and qualification tests, the combustibility of the material, ampacity miscalculations, lack of seismic tests, the failure to pass hose stream tests, the high toxicity of substances emitted from the ignited matcrial, and the declaration by at least one utility, GSU, of the material as inoperable at its River Bend Station. De Petition also alleges that a fire watch cannot subs'itme for an effective fire bi.rrier indefinitely and that the NRC Staff has not adequately analyzed the use of fire watches.
On the basis of these allegations, the Petitioners requested emergency en-forcement action to immediately suspend the operating licenses for River Bend Station, Comanche Peak Unit 1, Shearon Harris, Fermi-2, Ginna, and Robinson, pending a demonstration that these facilities meet NRC fire protection require-ments, ne Petitioners also requested that the NRC isste a stop. work order re-garding the installation of nermo-Lag at Comanche Peak Unit 2 and a generic letter by September 5,1992, that would require licensees to submit information to the NRC demonstrating compliance with fire protection requirements. Where facilities cannot demonstrate compliance, the Petitioners requested immediate suspension of the operating licenses for such facilities until such time as com-
' Rderance to f%:unoners shall also incimie these enuues.
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. pliance with NRC fire protection requirements can be shown. The Petition was referred to the Office of Nuclear Reactor Regulation for preparation of a re-sponse.
In a letter dated August 19, 1992, the Director, Office of Nuclear Reactor i
Regulation, denied the Petitioners' request for emergency relief. The NRC StafT concluded that the immediate suspension of the operating licenses for River Bend Station, Comanche Peak Unit 1, Shearon Harris, Fermi-2, Ginna, and Robinson was not warranted. The NRC Staff also determined that a stop-work order or the suspension of the construction permit for Comanche Peak Unit 2 was not warranted and concluded that issuance of the generic letter would be in accordance with the NRC Staff's action plan regarding the Thermo-Lag issue and that acceleration of the issuance of the generic letter was not deemed necessary.
On September 3,1992, the Petitioners filed an " appeal" with the Commission in response to the NRC Staff's denial of August 19,1992, of the request for emergency enforcement action. In the " appeal," Petitioners removed the Ginna and Robinson plants from their request and added Brunswick Units I and 2.
Petitioners again alleged that Thermo-Lag is an inadequate fire barrier, that compensatory measures do not substitute for regulatory compliance, and that fire watches are inadequate substitutes for fire barriers.
In a letter dated November 9,1992, from the Secretary of the Commission, the Petitioners were informed that their appeal" request had been referred to the NRC Staff for appropriate consideration in conjunction with its review of the Petition.
Upon consideration of the information set forth in the Petition,2 I have determined that the Petitioners have not presented any information that would constitute a basis to issue a stop-work order suspending instal *.ation of Thermo-Lag in, or e
to suspend the construction permit for, Comanche Peak Unit 2; immediately suspend the operating licenses for Comanche Peak Unit e
1, Shearon Harris, Fermi-2, WNP-2, Brunswick Units 1 and 2, and River Bend Station; have issued GL 92-XX before September 5,1992.
e 2 As hereafwr rdermd so, the Punismn incbdes the *appost" request of september 3.1992. on December 15, 1992, MRS fded another petiucsi pursuais to 10 C.F.R. $ 2.206 raising additional nasues regardmg Thermo-tag fire be-rier maierial The December 15,1992 MRs pcenian win be esidered as a supphsnent in the Petitmn suknined by MRs and ethers an July 21.1992. The issues raised in the Deternks 15,1992 subrniual wiD be addressed in a Fms! Director's Decisian to be issued within a reasonable time.
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II. DISCUSSION IIACKGROUND Repons of problems regarding ncrmo-Lag began to surface in the late 1980s when GSU at River Bend Station (sometimes referred to as River Bend or RBS) discovered cracks and wear damage and declared the material inoperable as a fire barrier. It funher discovered a Thermo-Lag panel from which stress skin had been removed during installation, and, on funher investigation, discovered that this condition was common for 3-hour Hermo-lag fire barTiers installed in the fuel building. GSU received assurances from Thermal Science, Inc. (TSI),
the vendor, that nermo-Lag would function adequately without stress skin.
i However, GSU conducted joint tests with TSI to determine if a panel without i
stress skin would perform its fire barrier function. De barrier failed to meet the test acceptance criteria. On the basis of these test results, GSU established fire watches for all 3-hour Thermo-Lag fire barriers installed at RSB.
in March 1989, GSU discovered stress skin missing from some 1-hour barri-l crs; at the same time TSI completed a series of tests on upgraded configurations.
Some of the upgraded configurations passed; however, differences existed be-tween the tested configurations and the installations at River Bend. As a result,
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GSU contracted with Southwest Research Institute (SwRI) to conduct an inde-pendent test of a 30-inch cable tray in October 1989. He test repon shows that j
the tray failed on temperature rise within 60 minutes and collapsed in less than 90 minutes. De failure of this test raised concerns regarding the adequacy of Thermo-Lag cable tray enclosures.
Gulf States Utilities categonzed all 1-hour and 3-hour barriers as inde-terminate and implemented compensatory measures in the form of fire watches pursuant to RBS Technical Specification 3.7.7.a.
In February 1991, the NRC Staff received allegations that Thermo-Lag did not provide protection for electrical cables as claimed by TSL In response, in May 1991, the NRC Staff visited River Bend Station to review the installation procedures and fire endurance test results and concluded that a generic concern existed with 30 inch-wide trays.
In June 1991, the NRC OfGce of Nuclear Reactor Regulation established a Special Review Team to investigate the safety significance and generic applicability of technical issues regarding allegations and operating experience concerning ne..no-Lag fire barriers at the River Bend Station. The results of fire test failures and installation problems were discussed in Information Notices (ins) 91-47," Failure of nermo-Lag Fire Barrier Material to Pass Fire
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Endurance Test," and 91-79, " Deficiencies in Procedures for Installing Thermo-Lag Fire Barrier Materials." In the " Final Repon of the Special Review Team for the Review of Dermo-Lag Fire Barrier Performance," which w~as an attachment 117 t
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to IN 92-46, "Thermo-Lag Fire Barrier Material Special Review Team Fmal Report Findings, Current Fire Endurance Testing, and Ampacity Calculation Errors," the Special Review Team reached the following conclusions:
The fire-resistive ratings and the ampacity derating factors for the Hermo-Lag fire barrier system are indeterminate.
Some licensees have not adequately reviewed and evaluated the fire endurance test results and the ampacity derating test results used as the licensing basis for their hermo-Lag barriers to determine the validity of the tests and the applicability of the test results to their plant designs.
Some licensees have not adequately reviewed the hermo-Lag fire barriers installed in their plants to ensure that they meet NRC fire protection requirements and guidance such as that provided in GL 86-10, " Implementation of Fire Protection Requirements" (April 24, 1986).
Some licensees used inadequate or incomplete installation procedures during the construction of their hermo-12g barriers.
The NRC Staff has provided additional information regarding Thermo-Lag in IN 92-55," Current Fire Endurance Test Results for Hermo-Lag Fire Barrier Material";Bulletin 92-01," Failure of Thermo-Lag 330 Fire Barrier System to Maintain Cabling in Wide Cable Trays and Small Conduits Free from Fire Damage";Bulletin 92-01, Supplement 1, " Failure of nermo-Lag 330 Fire i
Ba.rier System to Pedorm its Specified Fire Endurance Function"; and IN 92-82, "Results of Dermo-Lag 330-1 Combustibility Testing."5 ne NRC Staff has prepared an action plan that provides a process to resolve the technical issues identified with Dermo-Lag fire barrier systems. He action.
plan requires industry to address these issues. The Nuclear Management and Resources Council (NUMARC) has agreed to coortlinate industry efforts which include testing. The action plan also provides for issuing inspection guidance to the NRC regional offices and conducting a tes'.ing program to determine fire endurance performance and cable ampacity derating.
De NRC's defense-in-depth fire protection concept relics on protecting safe shutdown functions by achieving a balance in (1) fire prevention activities; (2) the ability to rapidly detect, control, and suppress a fire; and (3) physical separation ofredundant safe shutdown functions. Weaknesses in one area may be dealt with by enhancing the protection capabilities of the remaining areas.d De NRC foresaw cases in which firc protection features would be inoperable and 3 The special Revww Team Final Report. tNs, and tulletins are avsalabic rar public inspect an at the NRC's r%bhc Document Roam and Local Pubhe Docisnent Recens.
'he defense-in-depth conceit is daniled in NRC standard Review P.an. NUREo-0800, i 93.1. fire Protection Program, et 95.1-10. Sea la re l'sariumf<w I'mergency and Remedal Arnon, C1J-78-6,7 NRC 400,42109781 118 J
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required licensees, through technical specifications or approved fire protection plans made legally binding by license conditions, to provide compensatory measures for the deficient condition.
Recent fire endurance testing described in Bulletin 92-01 and Bulletin 92-01, Supplement 1, confirmed that certain %crmo-Lag fire barrier configurations compromise one facet of the fire protection defense-in-depth.5 De affected li-censees have established either continuous or periodic fire watches in accordance with their technical specifications or license conditions as a compensatory mea-sure. Fire watches are personnel trained and dedicated by the licensees to inspect for the control of ignition sources and combustible materials, to look for signs of incipient fires, to provide prompt notifications of fire hazards and fires, and to take actions to begin fire suppression activities.
ISSUES De Petitioners generally assert that River Bend Station is iri violation of NRC regulations because repeated testing of Hermo-12g in various configurations has " conclusively" demonstrated that this material at RBS does not meet the requirements of 10 C.F.R. 6 50.48 and Appendices A and R of 10 C.F.R. Part
- 50. They further allege that the " clear and present danger" occurring as a result of GSU's failure to meet essential NRC safety regulations requires a suspension of the license until GSU removes and replaces its Thermo-Lag with a new fire barrier that can meet the NRC's requirements.
The Petitioners also assert that since Shearon Harns, Fermi-2, and WNP-2 use Hermo-Lag and there is no independent testing that would demonstrate that hermo-Lag installations at those facilities meet NRC fire protection requirements, the NRC cannot make a finding that these plants are in compliance with NRC regulations. According to the Petitioners, these plants are " seriously ouf of compliance with regulations and present a clear hazard to the public's health and safety
Specific issues raised by the Petitioners are summarized below, together with the NRC Staff's evaluation.
8 he Punnoners stated suong objoenon to the nonnn that any test resuhs d fue bamers be considered
pmpneary." he INnnoners requested that the NRC stafr release the full test resuhs of all fue bamer material tests. AD fue endurance test repuns submitted to the NRC as past of a parncular plem's licensmg basis are available in the Public Document Room (PDR). De NRCis taking steps to place sH ether dacumenutian regardmg fue barner tests senAs tha* sre not enempt frorn disclosure in the PDR. See 10 C.F.R. I 9.17(m)(4).
' Addandten Mag. 12,1992) at 54.
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Regulatory Compliance De Petitioners have alleged that the River Bend facility fails to comply with the "NRC's requirements for fire protection," and that all of the reactors named by the Petitioners are in " direct violation of NRC regulations, and pose an immediate threat to the health and safety of citizens living near these plants.'" ne Petitieners have cited two Atomic Energy Commission Appeal r
Board decisions in support of the proposition that "[clompliance with NRC i
safety regulations is a prerequisite to safe operation of a nuclear power plant."8
- ihe basis of the Petitioners' charges is that Thermo-Lag fire barriers, which have been installed in the plants identified by the Petitioners, have failed various performance tests, and thus do not meet the 1. hour or 3-hour fire endurance rating criteria contained in section III.G of Appendix R to 10 C.F.R. Part 50 of the Commission's regulations. The failure to meet the Appendix R criteria, according to the Petitioners, constitutes a failure to satisfy Appendix A to 10 C.F.R. Part 50 (General Design Criteria for Nuclear Power Plants), and in turn 10 C.F.R. 550.48 (Fire Protection). As will be discussed in greater detaillater in this Decision, the NRC Staff acknowledges that certain tests have demonstrated i
that Thermo-Lag barriers may not meet the fire endurance rating criteria set t
forth in section III.G of Appendix R. This does not mean, however, that there no longer is reasonable assurance of adequate protection of the public health and safety.
It should first be noted that Appendix R, which sets forth criteria for specific fire protection features to protect safe shutdown systems, is applicable only to facilities that commenced operation prior to 1979. Such plants would include Brunswick Units 1 and 2 identified by the Petitioners. Facilities commencing operation on or after January 1,1979, while not bound by Appendix R, generally are bound by requirements that follow the criteria set forth in Appendix R through license conditions.' The facilitics identified by the Petitioners, other than Brunswick Units 1 and 2, are in this category. Accordingly, to the extent that the Petitioners have relied upon " violations" of Appendix R as a basis to conclude that the plants they have identified are unsafe, their reliance is misplaced at the outset regarding plants other than the Brunswick units since facilities that commenced operation prior to 1979 are the only ones that are directly required to comply with, and thus may violate, Appendix R.
7 Su Petum (July 21,1992) at 15; Appeal (Sept. 3,1902) at s.
8 Su Ib6ne (July 21,1992) et 16.
'In addni n, there are a very hmited number of plams, whid commmeed opersnm m or aher January 1,1979.
that are ma subject to specir.c bcense emdaums but have made commitmems in comply with NRC rue protecten segunemema, includmg secuan In o of Appendia R. The NRC is in the pmcess d elmung such commumems so limnae cmdinons, f
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Even assuming, arguendo, that all of the plants identified by the Petitioners are not in compliance with Appendix R, it does not follow that the failure to comply with a regulation indicates the absence of adequate protection." The Commission has explained that-
[Wlhile it is true that compliance with all NRC regulations prcwides reasonable assurance of adequate protection of the public heahh and safety, the converse is not correct, that failure to ccunply with one regulation or another is an indication of the absence of adequate protection, at least in a situation where the Commission has reviewed the noncompliance and found that it does nas pose an " undue risk" to the public heahh and safety r
Ohio Citizens for Responsible Energy Inc., Denial of Petition for Rulemaking.
53 Fed. Reg. 41,180 (1988),
ne Petitioners have rated an Appeal Board statement that "once a regulation is adopted, the standards it embodies represent 'he Commission's definition of what is required to protect the public health and safety." Petition at 16, quoting Permont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),
ALAB-138,6 AEC 520,528 (1973). More recently, however, the Commission made it clear that its " rules do not, strictly speaking, ' define' adequate protection,
... they only presumptively assure it." 53 Fed. Reg. 41,180 (1988). The Petitioners further refer to the Maine Yaniceu AppealBoarddecisioninsupport of the proposition that compliance with NRC regulations is a " prerequisite to safe operation of a nuclear power plant." Petition at 16. However, at issue in Maine Yankee was not a purported failure to comply with a regulation, -
but rather whether the Licensing Board below could find adequate protection of the public health and safety on the basis of demonstrated compliance with regulations, notwithstanding " residual risks" stipulated to by the panics. De issue raised here by the Petitioners - whether a finding of inadequate protection is compelled by reason of demonstrated noncompliance with a regulation - is the converse to the Maine Yankee issue; thus, consistent with the Commission's views set out above, Maine Yankee is not precedent for the Petitioners
- position that failure to comply with Appendix R means plants are necessarily unsafe.
All of the plants identified by the Petitioners have instituted fire watches as required by their action statements regarding inoperable barriers contained in their technical specifications or fire protection programs subject to license conditions.32 Generally, action statements provide alternative remedial ac-MI%rhaps the clearest iDustradon of this paira is when an enemp6an has been granted pursuare to 10 CF.R.
l 50.12. In suds c.aacs, ahhough cumpliance with a parucular regula6an is no longer requued, there is still no undue risk to the public health and safety. See 10 CIA I 50.12(sXI).
" Afama raakaa Anonuc Po=vr Co. (Maine Yankee Atomic Power Staunn). ALAB-161. 6 ALC 1003 (1973).
12 The Poudoners'sameruun that River Bend stadon fails to comply with the Tamminnan's segmremems" for fire prtacchan may not be accurate if the I%:itimers' use or the seem "requiremems" is nas stnetly Innited to reguladans. 32vizi Rrver Band sis 6an's emnphance with the required remedial acdon measuns comained in its todmu.a1 specificouana.
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l tions to shutting down a plant when limiting conditions for operations are not met.82 Compliance with the required remedial actions provides reasonable as-I surance that the public health and safety is adequately protected re. withstanding the plant's continued operation and failure to meet the respective limiting con-
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dition for operation. Here, since all of the identified plants have implemented the required fire watches in accordance with plant-specific requirements, their i
continued operation does not pose an undue risk to the public health and safety.
The Petitioners have asserted that fire watches are " acceptable only as a temporary measure while the plants are shut dow11 to replace Thermo-1.ag,"2" that the Staff response of August 19,1992, "gives no indication that these compensatory measures will be temporary " and that fire watches are essentially "indefmite generic exemption [s]... [without a] legal basis."15 In general, provisions for remedial action may include time limits by which the relevant limiting condition must be restored. Here, however, fire watches without specified time limits are judged by the NRC to be acceptable compensatory measures adequate to protect the public health and safety. They have not been determined to be permanent measures; thus, fire watches are not " generic exemptions" without a legal basis,2' as asserted by the Petitioners, but in fact are legally sanctioned remedial actions based on 10 C.F.R. 0 5036(c)(2)?
In sum, notwithstanding the failure to have operable fire barriers meeting the fire endurance rating criteria specified by section Ill.G of Appendix R, a plant is not necessarily unsafe to continue operation. To the contrary, fire watches, as 13 5u geners#y 10 CJJL l 50.36(cX2), which in mlevara part puides that:
Imunas co=6aansfor epararion. tkninna condinous for operanon sie the lowest factional capabaity or performance levels d equipment requimd for ante oper:6an d de facihty. Whm a limiting condi6an for oper:6an d a nuclear reactor is not met, the hcenace shsB ahut down the mactor er follow any semedial acUm permined by the to:hnical specifications unti! the candinan can bc inct.
For casmple, in the River Band Unit 1 teduncal spec 2ficanens regardmg fue-rated assemblics, the Limiting Cmdinan im operadan primaumw state:
tJMrrINo CONDrrioN FOR oPERAlloN 3.7.7 Au fin barrier assanblies shan be operable...
1 ACTION:
- a. Widt one or more d the above seguired fa-mied assemblim or seahng devices inoperable, within 1 hour1.157407e-5 days <br />2.777778e-4 hours <br />1.653439e-6 weeks <br />3.805e-7 months <br /> estaldssh a cornanuaus fue watch on at 1 cast ore side of the affected assembly and/w scaling device or verify the OIERABI!I!Y d fine detectors en a least one side of the inoperable assembly or scaling device, and establish an bourly fue watch patml.
Remedial acnons may also be specified in a plant's approved fire pmtecuan pmgram subject to a license condinon.
I* Addmium (Aug. 12,1992) at 6.
13 Appeal (sqt 3,1992) at s.
l'Even acceims agmando the Puunones' characterizanon, in each case where there has been approval of l
4echnical spectfustions or hcmse comhdons permitnng fim musches without specified time 19sts, the NRC, when -
bcmsms the affected facili6es, made mandsted fmdmgs misting to adequate protecdon of the public heahh and safety required unda the Atomic Energy Act Even if the procedura1 steps act forth by 10 C.F.R.150.12 mquired to grant an esempne may not have been followed in each case, that does not undermine the uldmate conclamien that there is adequate pmtection of the pubhc heahh and safety when a fire watch is implemersed.
U in instances when 8 ire protecuan pmgrams have been moved imm technical specificanans and are now subject 3t to licenne condainns, the NRC's approval of the fue prmaction geograns subject to licesse condaaons provides the legal basis im the implememanen d fire wauhes as a vernedial measum.
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1 will be discussed in greater detail below in response to the particular concerns raised by the Petitioners, are judged by the NRC to be adequate remedial measures that provide reasonable assurance that the public health and safety
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is protected. By reason of full compliance by River Bend and all other facilities named by the Petitioners with their technical specifications or fire protection' program action statements requiring the implementation of fire watches, adequate.
f protection of the public health and safety is still reasonably assured for such r
plants. No significant health or safety issue has thus been raised. Because 7
the Commission has discretion regarding enforcement of its regulations, and given the circumstances here where no significant health and safety issues have been raised, enforcement action of the nature requested by the Petitioners is not
-t warranted.
B.
Sufficiency of Compensatory Measures Contained in License Conditions or Technical Specifications The central argument in the Petitioners
- allegations is that the measures taken by Licensees to compensate for degraded barrier conditions, specifically fire watches, are not adequate to protect the public health and safety. The Petitioners' l
concerns may be broadly categorized as follows:
the performance of assigned functions by fire watch personnel; e
the ability of fire watches to compensate for a degmded barrier, even e
assuming full performance.
a 1.
Performance by Fire Watches of Their Assigned Functions (i) Falsification ofRecords
'Ihe Petitioners have alleged that, whatever a fire watch is intended to do, the watches are not always being performed. In support of this assertion, Petitioners i
claim that there is adequate documentation that utility personnel have not always taken fire watches seriously and have falsified records attesting that fire w2tches have been undertaken when such was not the case.
The NRC considers falsification of records and inattentiveness serious of-fenses which could subject licensees to enforcement sanctions. In addition, the NRC Staff conducts periodic inspections that are effective in identifying spe-cific instances of inattentiveness or falsifications. In those few cases where deficiencies have been identified in the performance of fire watches, appropriate enforcement action has been taken. Ibr example, Texas Utilities Electric Com-pany has paid a fine of $50,000.00 for missed fire watches and falsified fire watch records at Comanche Peak (EA 91-015). Such an enforcement action senes as i
an example to the nuclear industry that fire watches serve an important function 123 i
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9 and must be adequately performed. Isolated instances of nonperformance do not indicate that, in general, fire watches are not being performed adequately.
Licensee responses to NRC Bulletin 92-01 and Bulletin 92-01, Supplement 1, indicate that appropriate fire watches have been implemented. While there
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is no absolute guarantee that every stated fire watch is in fact being perforir.ed, absent substantial evidence that instances of nonperformance are not isolated, and given enforcement sanctions and the measure of assurance they provide, the NRC Staff concludes that there is reasonable assurance that fire watches, as required by technical specifications or license conditions, are beir.g performed.
(ii) Toxicity of Thermo-Lag De Petitioners have alleged that, based on the results of tests conducted by SwRI, %crmo-lag has been shown to emit extremely high amounts of hydrogen cyanide gas when exposed to fire. They assert that fire watch personnel could discover a fire and be overcome or othenvise harmed by the toxic gases, rendering them unable to perform their functions.
De test report referenced by the Petitioners has been reviewed and evaluated by the NRC Staff. Questions concerning the toxicity of Thermo-Lag, ia pan raised by the SwRI test repor'., pompted the NRC Staff to conduct an independent toxicological evaluaGn of the combustion pmducts of Thermo-Lag fire barrier material. De NRC, in conjunction with the National Institute of Standards and Technology (rv.ST), determined that the products of combustion do not include high ranounts of hydrogen cyanide and are comparable in toxicity to the burning of Douglas Fir lumber. De thermal decomposition of Dermo-lag under actual fire conditions does not increase the toxicity of the expected fire gases being produced as a result of a fire that burns other typical in-plant combustibles. The toxicity levels evaluated did not suggest that precautions above and beyond those that would normally be takta during an in-plant fire j
should be considered. Thus, the Staff has concluded that fire watch personnel can perform their function of finding incipient fires and notifying appropriate i
response personnel without sacrificing personal safety.
2.
Ability of Fire Watches to Compensate for a L*egraded Barrier (i) Thermo-Lag Deftciencies i
The Petitioners have alleged a number of deficitacies concerning Thermo.
Lag material, including failure of the barriers dur.ng 1-hour and 3-hour fire endurance tests, failure of the barrier to pass a hose stream test, lack of seismic tests and inability of the material to survive a seismic event, and combustibility of the material. The Petitioners have also allegej that the material has been
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improperly installed and failed to meet NRC quality assurance requirements and qualification tests, which contribute further to the poor performance of Dermo-Lag.
De NRC StalT acknowledges and has stated that certain Hermo-l.ag fire barrier configurations have failed to demonstrate the ability to perform their fire resistance functions. In this regard, the NRC Staff, in Bulletin 92-01, Supplement 1, has stated that Dermo Lag fire barriers should be treated as inoperable until licensees can declare the fire barriers operable on the basis of -
successful, applicable tests. The NRC Staff also has recognized that Hermo-Lag barriers have failed hose stream tests. A failure of a fire barrier to pass a hose stream test in and of itself does not imply a probability of short circuits because the cable insulation is designed to protect the cable from a short if the cable becomes wel However, cables may be damaged by the thermal effects of the fire if the barrier fails as a result of a hose stream, and thus would be more likely to short.38 he NRC Staff also recognizes that hermo-Lag is combustible ' as shown 2
by the results of the American Society for Testing and Materials (ASTM) E-136 tests conducted for the NRC.#
l in addition, the NRC Staff has concluded that Thermo-Lag may crack or crumble into small fragments during a seismic event?
Given the forgoing deficiencies identified for Hermo-Lag, the NRC Staff agrees that compensatory measures am necessary until a licensee can declare fire barriers operable on the basis of applicable tests that demonstrate successful barrier performance.
i it Recogruzing this, the NRC staff will require the successful compledon of a home stnsm test in fire bamer guah6 cation.
The Pentamers have stated that " Appendix A and Appendia R both refer speci6cally to a requiremmt for y
non, combustible materials for fue bamen." Appeal at 10. While Apperuha A capnssly states only that i
"in)_.A ;2.le and beat resistarn snaterials shall be and wherever practicalL].. ? combustibility is stin an issue that warraras emsiderstian, 200ader this testing standard, the snaierial is considered to be "cambustible" if three out d four samples tested enczed the following criteria: fl) the recwded temperature of the specunen's surface and interics thermocouples, duruts the test, rises 54 F 00 C) above the imtial furnace temperature; (2) there is flamir4 from the specamm after the fast 30 encends of irradiance; and (3) the weight loss d the specunen, due to corrhtstaan during the testing, exceeds s0 peromL Of the four %ernetag specimms tested, all empenenced a weight Inss d greater than 50 percent and flaming contmued in cacess d 30 semnds.
In Information Notice 92-82, "Resuhs a hermo-lag 330L1 Comhusnbility Testing," issued December 15, 1992, heersces were pmvided with the resuhs of the MC tests and were asked to review the infcrmation for applicata~lity to their facihty etere hermo-lag may be used to enchse imerverung combustibles and fur constructmg radaara energy heat shields inside contamment 6
24 The particular scismic issue saised by the Petitioners, that, durms a seismic event, Thernelag could shatter cable trays and shear cables used for safe shutdown systems, is addnssed in section C, below.
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P (ii) Adequacy of Fire Watches
' The Petitioners have questioned the effectiveness of fire watches in providing adequate protection since tests have shown that Hermo Lag can fail in a shorter time than a 1-hour roving or periodic fire watch could detect, and a 1-hour t
periodic watch does not provide continuous fire detection capability. In ad:lition, the Petitioners claim that a fire watch is an additional way to detect a fire while i
a fire barrier is a mode of physically protecting a reactor against fire. Derefore, a fire watch duplicates fire detection but does not pmvide a barrier or shield capability that has been lost through the degradation of a barrier. Further, the Petitioners argue that the fire watch was intended as a short-term, stop-gap measure, not as a final solution to the [Thermo-Lag] problem.
Despite the acknowledged shortcomings identified with nermo-Lag fire barriers and after fully considering the arguments presented by the Petidoners regarding the ability of fire watches to provide adequate compensation, the NRC Staff has determined that the fire watch compensatory measures are adequate and acceptable to ensure public health and safety.
he use of fire watches in instances of degraded or inoperable barriers is an integral part of NRC-approved fire protection programs. These NRC Staff-
_3 approved compensatory measures require the establishment of a continuous fire watch or an hourly fire watch if automatic detection systems protecting the affected components have been veriSed. While it is tme that Dermo-12g is intended as a barrier, and fire watch personnel cannot act as physical shields, a fire watch provides more than simply a detection function. Personnel assigned to fire watches are trained by the licensee to inspect for the control of ignition sources and combustible materials, to look for signs of incipient fists, to provide prompt notifications of fire hazards and fires, and to take appropriate actions to begin fire suppression activities. Fire watch personnel are capable of determining the size, actual location, sourec, and type of fire - valuable information that cannot be provided by an automatic fire detection system.
During a plant fire, temperatures are likely to be much less severe at the early stages. On the basis of enhanced capabilities provided by fire watches and notwithstanding that the level of barrier-type protection may be reduced, the NRC Staff has determined that there is a margin of safety to ensure adequate protection in cases where fire watches were approved?
Finally, the Petitioners argue that fire watches were intended as a short-term.
compensatory measure and not as a final solution, he hTC Staff agrees that fire watches are not a final solution. The NRC Staff's action plan is directed D In spec 15e ceam the NRC stafr may have granted exempuans to Appedix R.4.;. pania!!y on the basis or the ability d a fire barner to perform its fechun, la casm where the barrier ir now usated as inoperable.
the twensee must implanent a canunuous or hratr!y fire watch, as appmpnate, to compensate far the inoperable barrier.
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t toward restoring the functional capability of fire barriers on an expedited basis.
It is true that there has never been a time limit associated with the use of fire watches as a compensatory measure." Given the significant margin of safety a fire watch brings to a fire protection program, as discussed above, the NRC Staff has detennined that fire watches without specified time limits may 3
serve as a compensatory measure while barriers are inoperable, and has issued technical specifications and license conditions for all operating nuclear power plants specified by the Petitioners that permit fire watches without specified time limits. This does not alter, however, the NRC Staff's position that fire watches are not a final solution.
ne NRC Staff has carefully evaluated the use of fire watches to compensate l
for any degradation in the effectiveness of required fire barriers, and has concluded that fire watches continue to assure adequate protection of the public health and safety. Herefore, the Petitioners' assertion that the use of Dermo-Lag insulation at nuclear power facilities warrants immediate shutdown of these
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facilities is without merit.
C, Seismic Issues ne Petitioners have ateged that Thermo-Lag, as a heavy cementitious i
preformed plate, can break up during a seismic event, act as a shear severing cables, and shatter cable trays necessary for safe shutdowft. Moleover, according to the Petitioners, if a seismic event should occur and the product shatters the cable tray, safe shutdown is further jeopardized by fire incidence.
In defining the term " safe shutdown canhquake" (SSE) in section Ill(c) of Appendix A to 10 C.F.R. Part 100, the regulation requires cenain structures, systems, and components to remain functional under the postulated SSE. Rese stnictures are requiled to be designed to withstand the effects of the postulated SSE with adequate margins of safety against their functional failure (e.g., large deformations). De margin of safety against shattering of the tray is substantially
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larger than margins against deformations.
To the NRC Staff's knowledge, TSI has not performed seismic tests of pre-fabricated panels. However Dr. Philip L Gould, Professor of Civil Engineering, Washington University, St. Louis, Missouri, as an independent consultant to TSI, has performed a seismic analysis of Thermo-Lag material attached to cable trays and conduit sections. The NRC Staff reviewed the analysis" and obsen'ed the i
following:
"see sayws next accompanying maa 14-17.
- Mubp L cald,stms Analysts of Thern+ Lag Subhmmg Compoimd costmg Apphed to Dectncal Power Treys and condun" performed far lhermal science,Inc., in Techual Notes 41582 dated April 1s.1982; 12683 and 12983 dated January 12,1983, and 12584 dated Fetmaary 1984.
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t The analysis was performed on the most commonly used cable aay configurations and conduit sections with Thermo-Lag material attxhed in accordance with TSI's installation procedures.
The bounding analysis was performed with the applied horizontal seismic acceleration of 7.5g combined with the vertical seismic acceleration of 5.0g.
The maximum acceptable stresses in the material are limited to ono i'
half the strengths of the material in tension, flexure, and shear.
De NRC Staff believes the maximum amplified accelerations (MAAs) expected under the postulated SSEs in the plants cast of the Rocky Mountains are considerably lower than those used in the analysis, and the MAAs expected in the West Coast plants are in the same range or lower than the ones used in the analysis. It is the NRC Staff's judgment after a thorough review of Dr. Gould's analysis, that preformed hermo-Lag panels are not likely to get detached from cable trays or conduits during an SSE. The material, however, may crack or crumble into powdery material or small fragments under an SSE. His crumbling and cracking behavior would not damage safe shutdown systems. Recognizing the design requirements for the raceways and the above attributes of the material, the NRC Staff concludes that shattering of raceways or severing of the cables i
required for safe shutdown under an SSE are not credible scenarios.
D.
Ampacity Derating Errors ne Petitioners have essentially alleged that an error in ampacity derating l
could result in the use of inappropriate cables, which, if undersized, could prematurely age, or worse, overheat and ignite. De Petitioners noted that in NRC IN 92-46 the NRC Staff reported that TSI made a calculation error on the ampacity derating factor for Thermo-Lag. De Petitioners have also asserted that TSI has not performed a qualified ampacity test to date and that the Underwriters Laboratory (UL) Report 86NK23826 (file no. R6802) has been cited as " indeterminate" by the NRC Staff because assembly of the test fixture was not reviewed or wimessed by UL personnel.
Ampacity derating is the lowering (derating) of the current carrying capacity of cables enclosed in electrical raceways protected with fire barrier materials because of the insulating effect of the fire barrier material. This insulating effect limits the ability of the cable insulation to shed heat. If not accounted t
for, the increased cable insulation temperature could lead to premature insulation failure. Other factors also affect ampacity derating, including the extent of cable fill in the raceway, cable type, raceway construction, and ambient temperature.
he National Electrical Code, insulated Cable Engineers Association (ICEA) publications, and other industry standards provide ampacity derating factors for open-air installations. These standards do not provide derating factors for 128 i
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fire barrier systems. Although a national standard test method has not been established, ampacity derating factors for raceways enclosed with fire barrier material are determined by testing for the specific installation configuration.
De manufacturer of Thermo-Lag has documented a wide range of ampacity derating factors that were determined by testing, for raceways enclosed with fire barrier materials. On October 2,1986, TSI informed its customers that, while v
conducting tests in September 1986 at UL, it found that the ampacity derating l
factors for Thermo-Lag barriers were greater than previous tests indicated.
Ilowever, the cable fill and tray configuration were different for each test than those tested previously. In addition, the NRC Staff learned that UL performed -
a duplicate cable tray test that resulted in an even higher derating factor. De NRC Staff also learned of the determination of other derating factors during its r
review of other tests conducted at SwRI.25 ne NRC Special Review Team concluded, as the Petitioners asserted, that i
ampacity test results thus far, including the UL test results, were indeterminate.
This conclusion was based on observed inconsistencies in the derating test results j
of the various testing laboratories. Dere is no national consensus test standard (e.g., Institute of Electrical and Electronics Engineers (IEEE) or American National Standards Institute (ANSI)) for conducting these tests. In addition, some licensees have not adequately reviewed ampacity desating test results to determine the validity of the tests and the applicability of those test results to their plant design, he Special Review Team recognized that, in hypothetical cases, nonconservative ampacity derating factors could have been instrumental in the installation of inappopriate cables, which as a result, could suffer premature l
cable jacket and cable insulation failures over a period of time. However, the NRC Staff has determined that in practice the ampacity derating factor resulting flum Dermo-Lag insulating poperties represents only one of many variables t
used in determining the design ampacity for cable systems and that, as discussed below, sufficient margin exists in this area to preclude any immediate safety I
concerns.
h D The test pmcedures and test conEguratians effered among the tesnns laboratories. herefore, the resuhs from the &fferers amparity tests may not be duectly comparabic to each other.
The NRC stafr is concerned that the ampecity derating factors, as determmed in Ut. tests for hermo lag bemer des:gns, are mcmaisters with Tsl rauhs for similar designs because &fferern times were aDowed for 1
the temperature to stabibze bdore taking current incasuremema. Inconsistent stabilizadon times would cad into questaan the wahonty of previoua 731 sesuha. De NRC also nonced durirg the review of the Indistnal Tating 12haratories GIL) sat repons that ambient temperature and maximum cable temperature were a!!aved to vary wklely for some testa. herefore, those tests in m%h the amtuers and maximurn cable temperatures were not maintained within specified hnuta may be questmnable. Addinanally, a beensee &setwered a mathematical enur int the ampacity derating factor pubbshed in an r!L test report. A prelimmary asacssment of the une of a kwer-than-aaust ampacity derstmg factor indicates that higher-than-rated cable temperatures are passible for Thermo lag installanans. Higher-than-rated cable ternperatures could accelerate the agmg effects caperienced by the cable.
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'I For actual installations, various derating factors are typically applied to the ICEA ampacity values provided for each cable size. In general, it can be expected that the cables typically used in actual installations have higher current carrying capacity than the ICEA ampacity values.26 - Also, cables are sized based on full-load current plus a 25% margin to account for starting current
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requirements of the load. Given the short duration of typical equipment starts, this margin is available to compensate for any errors in ampacity derating.
Further, use of a cable size larger than normal may be required as a result of
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voltage drop considerations for long circuit lengths. In typical applications this also provides additional current carrying capacity. Given these consenatisms inherent in the design ampacity of cable systems and, in addition, the fact that most power cables required for safe shutdown are not normally energized but
. i are typically operated during surveillance testing for short time periods, the likelihood that cables could ignite as a result of Dermo-12g ampacity derating errors ha:; been judged by the NRC Staff to unlikely. In addition, based on these conservatisms and the currently available information on existing plants, ampacity design and operating history, the NRC Staff believes that the ampacity derating issue is not an immediate safety issue but rather is an aging issue to be resolved over the long term?
E.
Issuance of a Generic Letter t
ne Pctitioners contend that even though the NRC Staff has recognized the
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generic implications of the repeated test failuas of Hermo-Lag material (sec draft GL 92-XX, "Ihermo-Lag 330-1 Fire Barriers " Febmary 11,1992), it has I
delayed issuing a generic letter, apparently because of industry pressure. De Petitioners state as an exampi" that, on July 7,1992, despite overwhelming evidence of the failures of Thermo-Lag to pass meaningful tests, the nuclear industry trade association NUMARC continued to badger the NRC Staff to clumge its definition of nermo-Lag from " inoperable" to " degraded." In addition, the Petitioners assert that NUMARC repeatedly balked at the idea of j
requiring utilities to test their Hermo-Lag installations.
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ne Petitioners' concern with regard to GL 92-XX ignores the faci that j
the NRC Staff has issued a Bulletin and Supplement in 1992 dealing with the 1CrA ampscity values include exwiservausms to c<enperuste for skm and psuusmity effecta and shield and/w f
26 sheath losses, which muy or may nca apply in specirm situauons.
27 on December 17,1992 the NRC staff issued omeric tetter 9248,"Dernetag 3341 Fue Barneral* misch sequues hcensees to review the ampacity derstmg factors used for all raceways protacied by Thernetag 334)
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tfor fire pntactinn af aufs shuidown aspshility or to adseve physical independece of electrical systems) and to r
dacrmme whether the empecity derating test nauha rehed upon are correct and apphcable to the plant design. The bcenaces' fatings and any carrective actions and cannpensatory measures taken by hoeusecs are to be ideraified in a wnuen suport no the NRC staff. Future actions being comernplated by the NP.C staff include independen ampscity testing and an analysis of the industry testmg pregram resuha.
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hermo-Lag issue. In NRC Bulletin 92-01 and its Supplement, issued on June 24,1992, and August 28,1992, respectively, the NRC Staff informed licensees to consider certain Hermo-Lag barriers as inoperable and take compensatory actions. For licensees to consider these barriers operable in the future, analyses and/or testing will be in order. Dese actions on the part of the NRC Staff accomplished much of what the NRC Staff intended to accomplish with GL 92-XX. These actions indicate that the NRC Staff has responded aggressively to the Hermo-Lag problem and has not succumbed to industry pressure.
i The NRC Staff has carefully evaluated the issues associated with using hermo-Lag material in an action plan presented to and reviewed by the Commission. The action plan provided for the issuance cf the generic letter according to a NRC Staff-developed schedule. During an August 12, 1992 public meeting with NUMARC, the NRC Staff stated that it had considered public comments it had received on the draft GL and that it had assigned a high priority to issuing the letter. As discussed herein, the NRC Staff has determined i
that the Petitioners have not raised any immediate significant health or safety issa; thus, there was no need for the NRC Staff to deviate from its established schedule for the issuance of GL 92-XX. On December 17,1992, the NRC Staff issued GL 92-08 in accordance with its action plan.
He Petitioners further allege that only the manufacturer of Thermo-Lag knows exactly which licensees have purchased and installed Dermo-Lag, and even this company may not know all the different configurations in which this material has been installed at these plants.
To the contrary, the NRC Staff is aware of all plants that use Thermo-Lag.
NRC Bulletin 92-01 and Supplement 1, required operating reactor licensees to identify areas of their plants that had Thermo-Lag installed and determine the plant areas that used this material fer the protection and separation of safe shutdown capability.- ne NRC Staff alsn required that this information be submitted to the Staff within 30 days of receipt of the bulletin and supplement.
The NRC Staff's review of licensees
- responses to Bulletin 92-01 shows that eighty-three operating plants have Thermo Lag installed and twenty-eight operating plants do not. In addition, all licensees with Thermo-l.ag installed for protection of safe shutdown capability have reported that they have implemented compensatory measures consistent with their technical specifications or license conditions for an inoperable fire barrier.
F.
Request for Stop-Work Order for Comanche Peak Unit 2 In their August 12,1992 addendum to their initial Petition, the Petitioners requested that the NRC Staff immediately issue a stop-work order to Texas Utilities regarding continued installation of Thermo-Lag at Comanche Peak Unit
- 2. This request was generally based on the Petitioners
- conclusion that Hermo-131 t
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Lag is "in violation of the NRC's fire protection regulations." In response, the NRC Staff through its acknowledgment letter dated August 19,1992, stated that it was not necessary to issue an order to stop continued installation of Hermo-j Lag at Comanche Peak Unit 2 or to suspend the facility's construction permit i
because the licensee proceeded with construction at its own risk, and the NRC would ensure at the operating license stage that " issues related to Thermo-Lag at Comanche Peak Unit 2 are sufficiently resolved to ensure adequate protection of the public health and safety-2: Ec Petitioners in turn alleged in their " appeal" dated September 3,1992, that to allow continued installation of Thermo-Lag is irresponsible, will result in unnecessary costs to ratepayers who will have to pay for replacement, and at worst will result in a " risk of meltdown caused by fire.""
As has been made abundantly clear by earlier' discussion in this Decision, various deficietries concerning Thermo-Lag have been acknowledged by both the NRC and licensees. Testing of the material in all configurations, however,.
has not been completed, leaving open the possibility that certain installations of Ther'no-Lag may be found to be acceptable. One cannot say with certainty at this juncture that any and all installations of Hermo-Lag at Comanche Peak Unit 2 would still yield "a truly major deficiency" in adequate fire protection."
Further, as the Petidoners themselves recognize, Thermo-Lag and fire barriers in general may be removed, reinstalled, or replaced practically at any time during the construction or operating life of the planL Ris is in sharp contrast to a situation where defects may not be curable or even subject to identification beyond a certain point in time during plant construction, or may adversely affect the construction activities of other plant components, thus perhaps warranting a stnp-work order. For example, in Consume s Power Co. (Midland Plant, Units I and 2), CLI-74-3,7 AEC 7 (1974), where field inspectors had found serious deficiencies in cadwelding operations (a process for fusing together metal bars used in reinforced concrete construction), the successful completion of which is "a prerequisite for performance of further construction work on significant structures and components important to nuclear safety," id. at Il-12, the Commission upheld a show-cause order that had immediately suspended cadwelding activity without prior written notice.
l As indicated previously in the NRC Staff's acknowledgment letter, "[a]
licensee pursues construction work under a construction permit at its own risk pending approval of the final design of the plant." Commonweahh Edison Co.
"lenar inen T. Maley to M. Marmus (Aug-19.1992) et 4.
" Appeal (scrs. 3.1992) at 8.
"Ses t*wa% FMiadelpMa Decmc Co. (Lirnenck Generstmg station, Unita 1 ar d 2), DD 8s 11, 22 NRC 149,161 (1985) ("Ir a truly major deficierry or dericiencies an the part er a licensee are identified through the inspection pmcess, or otherwise, the agenev is authorized to issue a variety of orders,includmg stop-wat orders.
to assure appngriate renedial actiart").
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E (Byron Station, Units I and 2), DD-81-5,13 NRC 728,731 (1981). Moreover, j
before the granting of an operating license for Comanche Itak Unit 2 Texas Utilities "will be required to do anything necessary to ensure safe operation of the plant." Id. Thus, to the extent that the Ittitioners' fear that continued installation of nermo-Lag at Comanche Peak Unit 2 will somehow result in an unreasonable " risk of a meltdown," such fear is unfounded given the NRC's statutory mandate to ensure safe operation before granting an operating license. Enher, given that not all configurations of Thermo-Lag have been i
excluded from possibly being able to meet regulatory standards, it is not at all clear that continued installation will result in ** unnecessary costs to ratepayers."
Accordingly, a stop-work order, as requested by the Petitioners, is not warranted in this instance.
IIL CONCLUSION The Petitioners request that the NRC order the immediate suspension of the operating license of River Bend, Shearon Harris, Fermi-2, WNP-2, Brunswick I and 2, and Comanche Peak 1. In addition, the Petitioners ask that a stop-work order or, if necessary, an order suspending the construction permit be issued for Comanche Peak Unit 2. The Petitioners ask that these orders be in place until
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a tested and effective fire barrier, in accordance with Appendices A and R to 10 C.F.R. Part 50, is installed. He Ittitioners also request that the NRC Staff immediately issue a generic letter (GL 92-XX dated February 11, 1992).
On December 17,1992, the NRC Staff issued GL 92-08,"Thermo-Lag 330-1 Fire Barriers." To the extent Petitioners sought the issuance of the Generic 1.ctter, this relief is granted. With regard to the other requests made by the lttitioners, the institution of proceedings pursuant to 10 C.F.R. 62.202 to shut down certain facilities using Thermo-Lag fire barrier material and to issue a stop-work order regarding continued installations of Thermo-Lag material at i
Comanche Peak Unit 2, as requested by Petitioners, is appropnate only where 6
substantial health and safety issues have been raised. See Consolidated Edison Co. of New York (Indian Point, Units 1,2, and 3), CL1-75-8, 2 NRC 173,175 (1975), and Washington Public Power Supply System (WPPSS Nuclear Psoject No. 2), DD-84-7,19 NRC 899,923 (1984). Ibr the reasons discussed above, I find no basis for taking such actions. Rather, on the basis of the review efforts by the NRC Staff, I conclude that no substantial health and safety issues have been raised by the Petitioners. Accordingly, the Petitioners
- remaining requests for action pursuant to 10 C.F.R. 02.206 are denied.
A copy of this Decision will be placed in the Commission's Public Document Room, Gelman Building, 2120 L Street, N.W., Washington, D.C. 20555, and at the Local Public Document Room for the named facilities.
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6 A copy of this Decision will also be filed with the Secretary for the Commission's review as provided in 10 C.F.R. % 2.206(c) of the Commission's regulations.
FOR THE NUCLEAR REGULA*IDRY COMMISSION Thomas E. Murley, Director I
Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this ist day of February 1993.
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