ML20055E572

Nuclear Regulatory Commission Issuances for April 1990.Pages 333-370

ML20055E572
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Issue date:	06/30/1990
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V31-N04, NUREG-750, NUREG-750-V31-N4, NUDOCS 9007120119
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t A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication, Single copies of this publication are available from National Technical information Service, Springfield, VA 22161 l

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k Errors in this publication may be reported to the Division of Freedom of information and Publications Services i

Office of Administration.

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Washington, DC 20555 l

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i NUREG-0750 i

Vol. 31. No. 4

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Pages 333-370 NUCLEAR REGULATORY COMMISSION ISSUANCES

.r April 1990 L

This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Ad.

ministrative Law Judge (ALJ), the Directors' Deciolons (DD), and the Denials of Petitions for Rulemaking (DPRM).

The summaries and headnotes preceding the opinions reported herein t

are not to be deemed a part of those opinions or have any independent legal significance.

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US NUCl F AH HFQUI AlORY COMMISSION I'

l Prepared by the Divisien of Freedom of information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)

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COMMISSIONERS Kenneth M. Carr, Chairman Thomas M. Roberts Kenneth C. Rogers

' James R. Curtiss s

Forrest J. Remlok P

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l Christine N. Kohl, Chairman, Atemic Safety and Uoensing Appeal Panel B. Paul Cotter, Chief Administrative Judge, Atomic Safety and Woonsing Board Fanet l

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'b CONTENTS Issuances of the Nuclear Regulatory Commission ROCKWELL INTERNATIONAL COR! ORATION (Rocketdyne Division)

Docket 70 25 ML (Special Nuclear Material License No. SNM 21)

(License Renewal)

MEMORANDUM AND ORDER, CLI 90 5, April 13,1990........ 337 VERMONT YANKEE NUCLEAR IOWER CORIORATION (Vermont Yankee Nuclear Power Station)

Docket $0-271-01 A (Spent Fuel Pool Amendment)

MEMORANDUM AND ORDER, CLI 904 April 5.1990......... 333 lanuances of the Atomic Safety and Licensing Appeallloards PUBLIC SERV!CE COMPANY OF NEW 11AMPSillRE, et al.

(Seabrook Station. Units 1 and 2)

Dockets 50-443-OL 1. 50-444 OL 1 (Rosemount 7tansmitters)

MEMORANDUM AND ORDER, ALAB 930, April 2,1990......., 343 SAFETY LIOllT CORPORATION, et al.

(Bloomsburg Site Decontamination)

Dockets 030-05980,030 05981,030 05982,030-08335,030-08444 MEMORANDUM AND ORD IR, ALAB 931. April 23,1990...... 350 1

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Cits as 31 NRC 333 (1990)

CLl 90 4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Kenneth M. Carr, Chairman Thomas M. Roberts Kenneth C. Rogers James R. Curtiss Forrest J. Remick i

k in the Matter of Docket No.80-271 OLA (Spent Fuel Pool i

Amendment) c VERMONT YANKEE NUCLEAR POWER CORPORATION (Vermont Yankee Nuclear Power Station)

April 5,1990 On certincation by the Appeal Board of its ruling reversing an Intervenor's environmental contention concerning a spent fuel pool accident, ALAB 919 30 NRC 29 (1989), the Commission vacates that part of the Appeal Board's decision that amounts to a holding that an accident with a probability on the l

order of 104 per reactor year is remote and speculative, without prejudice to a later Commission determination on what the limits should be. The Commission directs the Appeal Board, on remand, to develop further information before a judgment is made on whether the accident at issue here is remote and speculative.

NEPA: WORST CASE ANALYSIS

'Ihe Commission does not read the Supreme Court's decision in Robenson

v. Methow Valley Citizens Council,490 U.S. - (1989), to say that an accident can be excluded from NEPA consideration on the sole ground that it presents a

" worst case.

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NEPA: REMOTE AND SPECULATIVE EVENTS What is important for purposes of NEPA consideration is the likelihood of occurrence of the accident in question. If the accident sought to te considered is i

sufficiently unlikely that it can te characterized fairly as remote and speculat ve, then consideration under NEPA is not required as a matter of law.

MEMORANDUM AND ORDER ne Atomic Safety and Licensing Appeal Board has certified to the Com-mission its ruling that the environmental contention proffered by Intervenor New England Coalition on Nuclear Pollution and the Commonwealth of Mas-sachusetts (jointly "Intervenors") was not admissible in the above-captioned pro-cceding. ALAB 919s 30 NRC 29 (1989). Intervenors' contention sought con-sideration in an environmental impact statement (EIS) of the increased conse-quences from a spent fuel pool accident greater than those previously evaluated by the NRC in its NEPA review. The accident tought to te considered consisted of a spent fuel pool cladding fire caused by a failure of spent fuel poi cooling, with the cooling failure caused in turn by combustion of hydrogen gas following a reactor accident. The Appeal Board's ruling overturned the Atomic Safety and Licensing Board's judgment that the decision in Sierra Club v. NRC,862 F.2d 222 (9th Cir.1988), required the NRC to entertain tle contention. Our response to the Appeal Board's certification is set forth below 5 r

We agree with the Appeal Board that the basis of its decision would not run

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afoul of the holding in clther Sierra Club, or limerick Ecology Action v. NRC, 869 F.2d 719 (3d Cir.1989). Since we do not view Slcrra Club as affecting l

the decision rationale in this case, and we believe that Sicrra Club should have l

little or no effect on future cases, we do not address here whether Sletra Club should be followed by the Commission in all circuits.

he Supreme Court had made it clear that NEPA does not require consid-3 l

cration of an accident merely because it presents a " worst case," Robertson

v. Methow Vality Citlicns Council, 490 U.S.

(1989)t see also San Luis Obispo Mothersfor Pcace v. NRC,751 F.2d 1287 (D.C. Cir.1984), qf'd en banc,789 F.2d '16, cert. denicd,107 S. Ct. 330 (1986). But we do not read the Supreme Court's decision to say that an accident can te excluded from NEPA l

consideration on the sole ground that il presents a " worst case." What is im.

portant for purposes of NEPA consideration is the likelihood of occurrence of

'IThe Cmunissian has smaulered uw bnals prwinualy tiled in this maner, as wc0 as the transenpt of mal argument on appeal and the neuers subnuned by the parues, ar.d concluded that no adddaanal boering ts required.

Atemdingly the Comnussion does not grant NIOP's request far another vaund or bridna l

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I the accident in question. If the accident sought to be considered is sufficiently unlikely that it can be characterized fairly as remote and speculative, then con-sideration under NEPA is not required as a matter of law. The axident at issue here is essentially the same as the one addressed previously by the Appeal Board in ALAB 869,26 NRC 13 (1987), and ALAB 876,26 NRC 277 (1987).

Although certain parts of the accident f.equence - for example, the tircaloy-cladding fue - are discussed in the documents cited by Intervenors, the entire accident sequence is not. Specifically, the documents cited by Interrenors as a basis for the contention do not address how likely it would be that hydrogen combustion as a result of a reactor accident would lead to irreparable loss of spent fuel cooling. Thus, the recond at this point contains no information on the likelihood or plausibility of the specific accident that is the subject of the actual contention formally filed by the Intervenors.

We note in this regard that Intervenors suggest before the Appeal Board that their contention should te broadened to include other reactor accident sequences as a cause for a major loss of spent fuel cooling water, We recognize that the documents cited by Intervenors indicate that the upper limit on the probability of such events is on the order of 2.6 x 10-* per reactor year and that the Appeal Board in effect found probabilities of this magnitude to be so low as to be remote and speculative for NEPA purposes.

We are reluctant either to endorse or reject a holding that accidents of dils prolmbility should te considered remote and speculative, both because such a determination may be unnecessary here and because such a decision could have broader ramifications for the NRC's regulatory program that are better explored j

outside the scope of a particular case involving only a few parties. Therefore, to the extent that ALAB 919 amounts to a hciding that an accident widl a 4

probability on the order of 10 per reactor year is remote and speculative, we vacate "-A part of the Appeal Board's decision without prejudice to a later Commission determination on what the limits should be. We remand to the Appeal Board for further consideration of the actual contention formally filed by the Intervenors.8 He Commission belleves that on remand more information on the plausibility or probability of the reactor accident / hydrogen combustion / spent fuel pool cooling failure / cladding fire at issue here (and in ALAB 869 and ALAB 876) l.

is needed before a judgment should te made whether the accident that is the subject of these threc decisions is remote and speculative. As pnt of our remand we therefore direct the Appeal Board to develop such information further. We 8na um.nuan invoi= severe meine occidna ihm==rna sumcimi bydrosen in esum hydros.n issu=

or detonation which. in turn. esanos e loss of spent fust scaling that lesde to e spent fuel cladding 6rt he tuosdened ecisenuan that was raised at oral erswnent on appeal and $st was considered by $a A;yeal Board in ALAD-919 is, in essence, an impnperly late 41ed contennon; it should not be ensidered in this renand.

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leave it to the Appeal Board to decide on the procedural means to obtain this information, whether by inviting something akin to summary disposition motions or etherwise, if the Appeal Board fmds that an accident probability on the order of 104 per reactor year is appropriate for the entire accident sequence postulate 4 in this contention, the case 6hould be returned to the Commission for further review. Otherwise, the Appeal Board should modify or conftrm its judgment as to the remote and speculative nature of the accident on the basis of the accident probability derived on remand.

Tide inatter is returned to the Appeal Board for further consideration consis.

tent with this order.

It is so ORDERED, Ibr the Commission SAMUEL J. CHILK Secretary of the Commission Dated at Rockville, Maryland, this 5th day of April 1990.

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Cite as 31 NRC 337 (1990)'

CLl-90 5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

COMMISSIONERS:

Kenneth M. Carr, Chairman Thomes M. Roberts '-

=t Kenneth C. Rogers James R. Curtiss i

Forrest J. Remlok.

In the Matter of Docket No. 70 25-ML -

(Special Nuclear Material License No. SNM 21) -

i (Lloense Renewal)-

ROCKWELL INTERNATIONAL CORPORATION (Rocketdyne Division)

April 13,1990 l

'Ihe Commission affirms ALAB-925, 30 NRC '709 (1989), but provides comments to underscore its agreement with the Appeal Boa.x!'s interpretations of three provisions of the Commission's new rules of procedure governing materials licensing adjudications. Ihrther, the Commission recommends'that a settlement judge be utilized in appropriate circumstances and expresses the view that this device is already permitted under the Commission's rules for i

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adjudicatory proceedings, f

1 RULES OF PRACTICE: INFORMAL llEARINGS (TIMING OF -

WRITTEN QUESTIONS)

The submission of questions to a party by the presiding officer is appropriate only after a ruling has issued on the initial reqtest for hearing and after the NRC Staff t as made the hearing file available in accordance with'10 C.F.R. 5 2.1231 and after parties have filed their initial v,Titten presentations in accordance with' 10 C.F.R. 52.1233(b) or (c).

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RULES OF PRACTICE: SE'ITLEMENT OF CONTESTED PROCEEDINGS (USE OF SE'ITLEMENT JUDGE)

Where an administrative judge's involvement in the settlement process could i

be extensive (more than providing encouragement to parties or holding a conference in open session), the Commission believes that utilization of a settlement judge should be considered.

RULES OF PRACTICE: SE'ITLEMENT OF CONTESTED PROCEEDINGS (AUTilORITY FOR USE OF SETTLEMENT JUDGES)

The Commission believes that resort to a settlement judge may be accom-plished under its present rules which encourage settlements (10 C.F.R. li 2.759,'

2.1241), endow presiding officers with the authority to hold conferences before or during hearings for settlement (10 C.F.R. Il2.718(h),2.1209(c)), and allow.

presiding officers to take any other action consistent with the Atomic Energy Act, the Administrative Procedure Act, and Commission tules of practice (10 C.F.R. 66 2.718(m), 2,1209(1).

RULES OF PRACTICE: SE'ITLEMENT OF CONTESTED PROCEEDINGS (USE OF SETTLEMENT JUDGE)

Utilization of the settlement judge cannot be mandatory and cannot accrue to a party's detriment in addition, in view of the fact that a settlement judge might engage in ex parte discussions and form a judgment on the merits of a party's position during the course of negotiations, the settlement judge's communications and dealings with the presiding officer on the merits of issues, 1

and the parties' positions will have to be circumscribed.

RULES OF PRACTICE: INFORMAL llEARINGS (WRITTEN ORDERS)

A party will hardly be in a position to appeal the grant or denial of a hearing request unless the presiding officer has issued a written decision explaining how the demands of $ 2.1205(g) have or have not been met.

MEMORANDUM AND ORDER The Commission has determined not to disturb the Atomic Safety and Li-censing Appeal Board's Memorandum and Order of December 21,1989, in this 1

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i case, ALAB 925,30 NRC 709 (1989). Ilowever, to underscore our agreement l:-

with the Appeal Board's interpretations of three provisions of the Commission's -

new rules of procedure governing the conduct of informal adjudicatory hearings in materials licensing proceedings, we provide the following comments. Sec 54 Fed. Reg. 8269 (1989) (codified as 10 C.F.R. Part 2, Subpart L, 552.1201 el seq.).

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While the Subpart L rules do not permit discovery, see 10 C.F.R. 52.1231(d), the presiding officer is provided the authority to submit written questions to the parties which must be answered in writing under oath or affirmation and supported by appropriate evidence. 10 C.F.R. 5 2.1233(a).

In this proceeding the Appeal Board became concerned that the timing of the Presiding Officer's exercise of this authority was not consistent with the procedural scheme. As the Appeal Board explained:

%e opportunity afforded a presiding of6cer to present the parties, including the applicant, with wrinen questions clearly was intended as a means to clarify his or her understanding of any matter that a party has properly put into controversy through its written preacntations.

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but which is still not amenable to resolution on the existing reconi. It was not inte* led as a vehicle to aid an intervenor, prohibited by the rules from engaging in discovery, in preparing the wrinen presentation in which it bears the responsibility for adding the factual meat to the bare bones of any previously unsubstantiated concerns.

ALAB 925, 30 NRC at 718 (footnote omitted). ~ We agree. His means, at minimum,' that the submission of questions to a party by the presiding officer is appropriate only qfter a ruling has issued on the initial request (s) for hearing and after the NRC Staff has made the hearing file availabic in accordance with 10 C.F.R. 6 2.1231 and after parties have filed their initial written presentations in accordance with 10 C.F.R. 52.1233(b) or (c). See ALAB 925, 30 NRC at 717. If the presiding officer then determines that follow up written questions.

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are necessary to create an adequate record for decision, it is within the presiding officer's discretion to pose s:ich questions. See 10 C.F.R. 52.1233(a), (d); see j,

also ALAB 925,30 NRC at 716.*

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2. The Subpart L' rules encourage the fair and reasonable settlement of l'

proceedings and provide the presiding officer with authority to hold conferences.

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for this purpose. See 10 C.F.R. Il 2.1241,2.1209(c). %c Appeal Board became concerned that the Presiding Officer in this proceeding intended to hold such,

conferences in private. %c Appeal Board noted that traditionally all conferences or meetings in connection with the agency's formal adjudica.

Lions. held under the auspices and in the presence of an NRC licensing board or presiding

'The subpart L rules provide a mechanian tar bringing to the Corrunissiat's attaaion any viazious sarsty.

envimnenental, or cornrnen derawe and security mausr" which has not been payerly ptav.4 in coruest by a pany.

10 C.FA (11251(d).

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i dficer, have been open to the public, unless maners of national or plant security or classi.

fed. privileged, or proprietary information are involved. See. e.g 10 C.F.R. Pan 2. App. A, i B(d).

ALAB 925,30 NRC at 721. The Board expressed doubt that the Subpart L rules provided the presiding officer greater discretion to hold nonpublic meetings with the parties than is provided for formal adjudications under Subpart O. Id. 'Ihe l

Board directed the Presiding Officer in this proceeding "not [to be) a participant in any private and confidential negotiations between the parties, and, conversely, that any [ settlement] conferences in his presence are [to be] open to the public,-

absent compelling circumstances." Id. We generally agree with the Appeal Board's d!rective.

Commission policy strongly favors settlement of adjudicatory proceedings.'

l At the same time, we are aware of the potential for compromise of a presiding officer's role as an impartial adjudicator through involvement in the settlement -

process discussed in the Appeal Board's Memorandum and Order. Id. at 721 l

n.13. Where an administrative judge's involvement in the settlement process j

could be extensive (more than providing encouragement to parties or holding a j

conference in open session), we believe that utilization of a settlement judge should be considered. Use of settlement judges has been endorsed by the Administmtive Conference of the United States:

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'the settlement judge can command a degree of deference simGar to that of the presiding judge without the need to observe all of the commands that establish and maintain impartiality.

A separate settlemem judge, once appointed, can engage in ex pane sad off the. record -

conversations, frank assessments of the merits, and other techniques to aid settlement that the presiding judge is less free to use.

l 1 C.F.R. I 305.88-5.

We believe that tesort to a settlement judge may be accomplished under our present rulet which encourage settlements (10 C.F.R. 652.759, 2.1241),

endow presiding officers with the authority to hold conferences before or during ;

hearings for settlement (10 C.F.R. Il2.718(h),2.1209(c)) and allow presiding (

officers to take any other action consistent with the-Atomic Energy Act, the

-l Administrative Procedure Act, and our rules of practice (10 C.F.R. Il2.718(m),-

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2.1209(1)). Accordingly, it is our view that the presiding officer could, at the,

.j request of the parties, ask that the Chairman of the Atomic Safety and Licensing i

Board Panel appoint a settlement judge if he considered it advantageous to do -

so. We are mindful, of course, that any party's participation in the settlement

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process is voluntary. 'Iterefore, utilization of the settlement judge cannot be o

mandatory and cannot accrue to a party's detriment, in addition, in view of the' -

fact that a settlement judge might engage in ex pane discussions and form a judgment on the merits of a party's position during the course of negotiations,-

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8 de settlement judge's communications and dealings with the presiding officer on the merits of issues and the partics' positions will have to be circumscribed.

With these caveats, houver, we believe that the settlement judge concept could serve a useful purpose in our proceedings.

3. Tim Subpart L rules contemplate that a request for hearing filed by a person other than the applicant will describe in detail the factors enumerated at 10 C.F.R. 6 2.1205(d). Sec 54 Fed. Reg. 8272. The Commission specified in 10 C.F.R. 6 2.1205(g) the determinations the presiding officer must make in ruling on a request for hearing by a person other than the applicant: whether the specified areas of concern are germare to the subject matter of the proceeding; whether the hearing request is timely; and whether the requestor meets the.

judicial standards for standing. In this proceeding the Presiding Officer did not commit his oral grant of the initial hearing requests to writing. *lhe Appeal Boarrl observed that the 6 2.1205(g) determinations "are not readily amenable to oral ruling" and concluded that "for the sake of a complete record, a _ written order on a ruling as important as the granting of requests' for a hearing is a '

necessary and not unduly burdensome formality" ALAD-925,30 NRC at 722.

We agree. Either the denial or the grant of a request for hearing or a petition for leave to intervene is appealable within 10 days of service of the 1

order denying or granting the hearing request / petition.10 C.F.R. 62.1205(n).

A party appealing such an order must file a " statement that succinctly sets out, with supporting argument, the errors alleged." Id A party will hardly be in a position to do this unless the presiding officer has issued a' written decision explaining how the demands of 62.1205(g) have or have not been met.

It is so ORDERED, For the Commission

• SAMUEL J. CHILK Secretary of the Commission Dated at Rockville, Maryland, this 13th day of April 1990.

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'Canmissioner Roberts was not present tar the ararmation or this order, it he had been pasent he would have approved it.

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Atomic Safety and 1

Licensing Appeal Boards issuances ATOMIC SAFETY AND LICENSING APPEAL PANEL CMetlne N. Kohl, Chekmen Alan S. Rosenthal Dr. W. Reed Johnson Thomas S. Moore Howard A.WWher G. Paul BoNwerk, til

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Cite as 31 NRC 343 (1990)

ALAB 930 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Alan S. Rosenthal, Chairman Thomas S. Moore Howard A.Wilber in the Matter of Docket Nos 50 443-OL 1 50-444 OL 1 (Rosemount Transmitters)

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.

(Seabrook Station, Units 1 and 2)

April 2,1990 he Appeal Board refers intervenors' motion to reopen the record and admit late-filed contentions regarding the defective Rosemount transmitters to the Commission.

APPEAL BOARD (S): ACTION ON NEW MA'ITERS Where finality has attached to some but not all issues, an appeal board will entertain new matters only if there is a " reasonable nexus" between those matters and the issues remaining before the board. Virginia Electric and Power.

Co. (North Anna Nuclear Power Station, Units I and 21 ALAB-551, 9 NRC 7 04, 707 (1979). A " reasonable nexus" does not mean a " total identity or commonality of issues" but, rather, has reference simply to "a rational and direct link," Loulslana Power & Ught Co. (Waterford Steam Electric Station, Unit 3), ALAB 797,'21 NRC 6,8 (1985); Florida Power and Ught Co. (St. Lucie Nuclear Power Plant, Unit No 2), ALAB-579,11 NRC 223,226 (1980).

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i APPEAL BOARD (S): ACTION ON NEW MATTERS The fact that an Appeal Board properly has before it issues concerning emergency planning does trat justify its consideration of newly raised issues concerning the possible failure of transmitters.

l RULES OF PRACTICE: REOPENING OF RECORD;

. CONTENTIONS (NEW INFORMATION).

The Commission's regulations confer a fundamental right to seek a reopening -

of the record on any issue germane to the outcome of the proceeding so long -

as (1) the proceeding is not yet complete,~and (2) the reopening standards j

as set forth in 10 C.F.R. 5 2.734 have been met. See 10 C.P.R. 5 2.734151 i

Fed. Reg. 19,535 (1986).

i APPEAL BOARD (S):- ACTION ON NEW MATTERS 1

he " reasonable nexus" test does not preclude an intervenor from advancing a new contention arising from recent developments of safety significance. Rather,.

j the function of the test is to ascertain the appropriate forum to entertain ab initio a party's claim that the requirements of 10 C.F.R. 6 2.734 for the reopening of i

a record have been satisfied.

APPEAL BOARD (S): ACTION ON NEW MATTERS De determination as to whether a " reasonable nexus" exists is not strictly speaking a matter of an appeal board's authority to act on a particular motion to reopen a record to introduce a new contention. It is, instead, a matter akin to venue - the inquiry being where, given the subject of the contention and the

' then status of the proceeding, the motion is best considered initially.

APPEAL BOARD (S): ' ACTION ON NEW MATTERS l

LICENSING BOARD (S): ACTION ON NEW MATTERS Where neither the Licensing Board nor the Appeal Board currently is consid-i ering issues with a " rational and direct link" to the substance of a new contention that might serve as the basis for reopening a record, the Commission is the ap-propriate adjudicatory body to rule on such a motion.

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APPEARANCES Diane Curran, Washington, D.C., for the intervenors New England Coalition on Nuclear Pollution, et al.

Thomas G. Dignan, Jr., George H. Lewald, Kathryn A. Selleck, and Jeffrey P, 'IYout, Boston, Massachusetts, for the applicants Public Service Company of New Ilampshire, et al.

Charles A. Ilarth for the Nuclear Regulatory Commission Staff, 1

MEMORANDUM AND ORDER Before us in this operating Ilcense proceding involving the Scabrook nuclear facility is the February 27,1990, Intervenors' Motion to Reopen the Record and Admit Late-Filed Contention Regarding Defective Rosemount "Ilransmitters.

De motion is opposed by the applicants and the NRC staff on the ground that, inter alla, we lack jurisdiction to entertain it on the merits. We disagree with that proposition but further conclude that the motion should be referred to the Commission for such action as it deems appropriate.

1.

By their reopening motion, the intervenors would inject into the proceed-

.ing at this late date the following contention:

Applicants do not satisfy the Conunission's standards for domestic licensing of production and utilization facilities because Applicants have not taken adequate measures to assure that Rosemount Transmitters will not cause, contribute to, or fail to operate during, an accident at Seabrook Station.10 CFR 5 50.34(b); 5 50.34(f)(3); $ 50.36(c)(3); $ 50 49; ir 50.55a(h);

150.57; $ 5031(e); Part 50 Amendix A. General Design Criteria 13, 20 and 21; and Appendix B II, VII, X, XI, XIV, XV and XVI.

According to the motion, the transmitters in question are used to measure pres-t sure and differential pressure in nuclear power plant safety systems. He mo-I tion further recites that a recent NRC issuance both confirmed that a previously reported failure of certain models was caused by a loss of fill-oll from the trans-mitter's scaled sensing module, and indicated that there had been more failure-instances than those already on record, in short, the intervenors seek to raise a new issue directed to the safety of plant operation. But no Appeal Board still has any issues of that stripe under merits consideration in connection with any pending appeal, Tb the contrary, the

- last such issue coming to us on the merits - concerned with the environmental qualification of coaxial cable used for data transmission in Seabrook's computer l

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system and certain other purposes - received our final word over a year ago.8 All issues that remain for our disposition on the merits pertain to the adequacy of emergency response planning for areas within the Seabrook plume exposure -

pathway emergency planning 7.one 2 In these circumstances, intervenors are confronted with the well. settled principle, enunciated over a decade ago in the North Anna proceeding, that, where "fmality has attached to some but not all issues, appeal board jurisdiction -

i to entertain new matters is dependent upon the existence of a ' reasonable nexus' between those matters and the issues remaining before the board,") *Ib be sure, -

}

" reasonable nexus" does not mean a _" total identity or commonality of issues" but, rather, has reference simply to "a rational and direct link"' Manifestly, however, there is no tie whatever between one or more of the emergency planning issues still awaiting appeal board action and any questions associated

]

with the possible failure of the Rosemount transmitters. '

1 2.

In a supplemental filing solicited by us, the intervenors acknowledge that -

L their motion doca not satisfy the " reasonable nexus" test. We are told, however,

[

that our decisions invoking that test should be reconsidered. On that score, the i

intervenors maintain that application of the test would " unfairly deprive" the Commission's Rule of Practice concerned with the reopening of closed records j

s "of any meaningful utility where intervenors discover new information relevant to the safety of full power operation"'

j There might well be merit to that concern if the necessary consequence of the failure to satisfy the " reasonable nexus" test were that no tribunal within the Commission is free to consider a reopening request in an adjudicatory context;-

But such is not the effect of our conclusion that the test has not been met here.

'Ihe Commission's regulations appear to confer a fundamental right to seek I

a reopening of the lecord of an adjudicatory proceeding on any issue germane to the outcome of the proceeding so long as the final curtain on the proceeding 1

3 see ALAB 909,29 NRC 1 (1989).

2 lhere is pendag an appeal by these intervenors fawn the licesing Board's denial of a motion to reopen the record to permit the litigation d contentions gewing out or low-power heting at seabrook. see tEP-89 28,30 '

NRC 271 (1989). Ahhcush those catantiers assertedly bear upon the conduct er fun-power operation, unless and until admitted to the proceeding they da not giw ase to a safety maner in contmversy. -

3 Virginia Decaric and Pener Co. (North Amu Nuclear Power sution, Uniu I and 2), ALAB.551,9 NRC 704, 7M (1979).

%ssia,a Power & Usk Co. (waterford steam Electric Sution, Unit 3), ALAB 7M,'21 NRC 6, 8 (1985); -

Florier Power and Usk Co. (St Lucie Nuclear Power Plant, Unit No. 2), ALAB 579,11 NRC 223,226 (1980).

Accord rang Island Uskiat Co. (Sharshain Nuclest Power sution, Unit 1), ALAB-901,28 NRC 302,306, review decliand, CL188-il,28 NRC 403 (1988).

3 10 C.F.R. I2.734.

6 g,g,,,,,,,,, supplemental Motion Addreasing Appeal naard's Junsdiction (March 7,1990) at 3, 1

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-ij has not fallen? For its part, the " reasonable nexus" test does not, as it cannot, i

affect that right!'i.e., it does not preclude an intervenor from-advancing a I

new contendon said to arise from recent developments of safety significance.'

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Rather, the function of that test here is merely to ascertain the appropriate 1

forum to entertain ab initio the intervenors' claim that they have satisfied the j!

10 C.F.R. 6 2.734 reopening requirements insofar as the Rosemount transmitter matter is concerned? -

In shoft, despite our use of the term " jurisdiction" in connection with the formulation of the " reasonable nexus" test in North Anna and its progeny, strictly speaking it is not a matter of our authority (i.e., power) to act on a particular motion to reopen a record to introduce a new contention, it is, instead, a matter j

akin to venue - the inquiry being where, given the subject of the contention and the then status of the proceeding, the modon is best considered initially.

"Ihe reasons that undergird our conclusion that, in the present circumstances, l

we should not inillally address this motion are equally applicable to the Licensing Board: it likuvise has no issue on its platter having the requisite " rational and direct link" to the substance of the intervenors' new contention. 'lhat leaves the j

Commission itself.

l It is true that, in common with its adjudicatory boards, the Commission has already dispatched the last of the issues pertaining to the safety of plant

- operation that had been placed in controversy. Nonetheless, it is the tribunal.

that has had the most recent contact with safety issues (on review of our decision l

concerned with the environmental qualification of the coaxial cable). Moreover, it is reasonable to assume that the Commission, in its role as the ultimate overseer of this extended proceeding, is interested in how the modon is handled. For-example, it might decide the motion itself and, if granted, then call upon the 4

7 see 10 C.F.R. I 2.734 and Canunissian statement occampanying the ptanmigauen at that entsian,51 Fed. Reg..

19,535 (1986). see also Versioer Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power station), AI.AB.

138,6 AEC 520,523 0973), cited by the -

- in cmcludmg (58 Psd. Reg. at 19,536) that h should not r

impose an " arbitrary cutoff paint" en seopemns motions.

As a general mater,in order to obtain such relief, the htigam nuet meet the reopening standards set fonh in.

section 2.734. see its note 9.

' Nar con that right be canaamd because, far reasons of admuustrative convenimice and edicieicy, this proceeding 5

was divided into two segments one pan covering the safety sad ansiis emergency planning issues, the other pan encompsasing offsite emergency planning issues. such a separation, and the assierenant of differently constinated j

bconang boards to the two pans, does not alter the fact that thee is but one proceeding that has not as yet been compimed.

'That section pnwides (in subsection (a)) that a motion to reopen a closed secord wUl not be granted unless the following criteria are natisfied:

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(1) The rootian naut be timely, except that an exceptionauy grave issue may be considered in the discietion of the piesiding office even if untimely puuseued.

-(2) *nte motion must address a significant safety or environmentalisaw..

(3) The modon must denenstrate that a materially different result would be or would have been likely had the newly pidfared evidence been considsed initially.

In addition,if (as has) the purpose of the motion is to put an muirsty new contentican into litigation, subsectim

'I (d) obliges the movant to sausfy the seguire.nents for nantimely contentions set fonh in 10 C.FA 12.714(s)(1).

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i Licensing Board to address the merits of the contention upon reopening of the i

record. Alternadvely, the Commission might direct the Licensing Board or this Board to act on the motion in the first instance. No matter which course the Commission chooses to adopt, the intervenors will have had their opportunity' I

to demonstrate that there is sufficient warrant for reopening under the section

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2.734 standards, 'That is all to which they are entitled.-

lbr the foregoing reasons, the intervenors' February 27, 1990, motion to-reopen the record is referred to the Commission.I' It is so ORDERED.

FOR 'ITIE APPEAL BOARD Barbara A. Tompkins -

Secretary to the Appeal Board j

Mr. Moore, dissenting:

I I disagree with my colleagues' decision to refer the intervenors'. reopening

. motion to the Commission. Although I fully agree with the majority's disavowal of the fallacious notion contained in several Appeal Board opinions that we lxk -

jurisdictico to entertain reopening motions in the circumstances presented,-I must disagree with the majority's labeling exercise designed to reach the same -

crroneous result. I have spelled out previously why the notion that we lack

)

jurisdiction in similar circumstances is patently wrong, so I will not waste ink repeating that discussion here. See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB 782,20 NRC 838,842a-42h (1984)

(Moore, dissenting). See also Vermont Yankee Nuclear Power Corp. (Vermont -

Yankee Nuclear Power Station), ALAB-138,6 AEC 520,523 n.12 (1973); id.,

ALAB 124,6 AEC 358 (1973). It suffices to note that when the intervenors filed their reopening motion, we had pending, inter alla, their appeal from the q

Licensing Board's decision authorizing a full-power operating license for the Seabrook facility. 'Thus, the motion was filed properly with us.. If we have

- jurisdiction to entertain the motion as the majority now correctly concedes, then we should decide it and not eschew the task of deciding whether the reopening motion meets the criteria of 10 C.F.R. 62.734. We should not, as the majority -

i 10 We have been advised by the intervenors that they served copies of the mous on the Comnussica m Februsty

. 28.

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does here, repackage the identical erroneous jurisdictional test and its mistaken decisional roots under a new label that also has no basis in the regulations.

' Because I am in the minority on the referral question, my determination of whether the intervenors' motion meets the standards of section 2.734 for reopening the record would te an academic exercise. Accordingly, I will not undertake the task.

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Cite as 31 NRC 350 (1990)

ALAB 931 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

1 Christine N. Kohl, Chairman '

Alan S. Rosenthal Dr. W. Reed Johnson

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l in the Matter of.

Docket Nos,030-05980

- 030-05981 i

030 05982 030 08335 030-08444 i

SAFETY LIGHT CORPORATION, et al (Bloomsburg Site Decontamination) -

April 23,1990 he Appeal Board grants directed certification of (1) the Licensing Board's denial in LBP-90-7, 31 NRC 116 (1990), of a motion to dismiss for lack of jurisdiction and (2) a companion ruling in LBP-90-8,31 NRC 143 (1990), that

-j lifted a previously entered stay of a staff order requiring immediate payments into a trust fund for cleanup of a site. He Appeal Board affirms both decisions l

while adding a modification concerning payment provisions.

RULES OF PRACTICE: INTERLOCUFORY APPEA1S (DISCRETIONARY REVIEW)

A request for certification brought by a party does not invoke appeal board jurisdiction as a matter of right but rather seeks only the exercise of a discre-tionary power. See 10 C.F.R. 6 2.718(i); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB 271,1 NRC 478,482 83 (1975).

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i; ATOMIC ENERGY ACT: INALIENABILITY OF LICENSES j

Section 183 of the Atomic Energy Act proscribes the assignment or transfer j

of a license or any right under that license "in violation of the provisions of [the Act)." 42 U.S.C. I 2233(c).

l RULES OF PRACTICE: STAY OF AGENCY ACTION t

'Ihe Commission's Rules of Practice require that the following factors be i

considered in deciding whether stay relief is appropriate: (1) whather the moving party has made a strong showing that it is likely to prevall on the merits, (2) whether the party will be irreparably injured unless a stay is granted, (3) whether the granting of a stay would harm other parties, and (4) when the H

public interest lies.10 C.F.R.- 9 2.788(e). See VirgInla Petroleum Jobbers Ass'n

v. Federal Power Commission,259 F.2d 921,925 (D.C. Cir.1958).

RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REVIEW)

An appeal board will undertake discretionary interlocutory review-"only where the ruling below either (1) threaten [s] the party adversely affected by

. j lt with immediate and serious irreparable impact which, as a practical matter,-

[can]not be alleviated by a later appeal or (2) affect [s] the basic structure of the 1

proceeding in a pervasive or unusual manner" Public Service Co. ofIndiana.

(Marble Hill Nuclear Ocnerating Station, Units 1 and 2), ALAB 405,5 NRC 1190, 1192 (1977).

-1 RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REVIEW) i While an appeal board will take into account an agreement of the parties that interlocutory review is appropriate, it will decide itself whether there is sufficient cause for the exercise of its discretionary authority to review an interlocutory.

j order.

RULES OF PRACTICE: INTERLOCUTORY APPEALS:

(DISCRETIONARY REVIEW)

' LICENSING BOARD (S): JURISDICTION A' licensing board's view of its own jurisdictional boundaries over a con.

tention in some circumstances can affect the basic structure of the proceeding, -

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< making interlocutory review appropriate. See Public Service Co. o/New Hamp _

' shire (Scabrook Station, Units 1 and 2), ALAB 916,29 NRC 434,437 (1989).

m - g RULES OF PRACTICE: -INTERLOCLTTORY APPEALS

.-(DISCRETIONARY REVIEW)

A jurisdictional ruling that determines the status of a party in an enforcement

. proceeding heavily influences the shape of the proceeding and accordingly is

- properly the subject of interlocutory review, RULES OF PRACTICE: INTERLOCUTORY REVIEW -

if a licensing board has previously denied a party's motion for a pendente Ilse -

stay, the pwty may be able to obtain review of such ruling as a matter of right-by renewing its stay request before an appeal board. See, e.g', Toledo Edison Co. (Davis Besse Nuclear Power Station, Units 1,2 & 3), ALAB-364 5 NRC 35, 36 (1977).

RULES OF PRACTICE: INTERLOCUTORY REVIEWS STAY OF AGENCY ACTION Although 10 C.F.R. 5 2.788 by its terms applies only to stays of the effec-Liveness of a decision or action of a licensing or appeal board pending the filing.-

and disposition of an appeal from such decision, a licensing board presiding over the hearing on an NRC staff administrative enforcement order is empow-cred to consider whether such an order should be effective during the pendency '

of the proceeding. See 10 C.F.R. 5 2.718(m) (licensing board may take any.

action consistent with the Atomic Energy Act. the Rules of Practice, and the

. Administrative Procedure Act).

= RULES OF PRACTICE: INTERLOCUTORY APPEALS

= (DISCRETIONARY REVIEW)

Upon an appeal board's determination that an interlocutory order is review '-

able, a supplemental order closely connected with the first order may also be J the subject of such review.

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i ATOMIC ENERGY ACT: INALIENAlllLITY OF LICENSES; ilVPRODUCT MATERI AL LICENSES Section 184 of the Atomic Energy Act,42 U.S.C. 6 2234, which prohibits the transfer, assignment, or disposal of licenses, "directly or indirectly, through transfer of control of any license to any person" without NRC's consent, is applicable to byproduct materiallicenses issued under section 81 of the Act and 10 C.F.R. Part 30. Sec 42 U.S.C. 6 21111 10 C.F.R. I 30.34(b).

ATOMIC ENERGY ACT: INTERPRETATIONI INALIENAllit.lTY OF LICENSES

'the principle of corporate law thet a transfer of stock is not a transfer of corporate assets is inapplicable for the purposes of determining whether there has been a " transfer of control of any license" under the terms of section 184 of the Atomic Energy Act.

ATOMIC ENERGY ACT: INTERPRETATION in interpreting the Atomic Energy Act, the plain meaning and a practical application of the terms of the statute coitrol, particularly in the absence of legislative history to the contrary, i

ATOMIC ENERGY ACT: CONTROL OF LICENSES; INALIENAlllLITY OF LICENSES A shareholder is deemed to have control of a corporation, "when she [or hel dctermincs corporate policy, whether by personally assuming management responsibility or by selecting management personnel." In re N&D Properties, Inc.,799 F.2d 726,732 (11th Cir.1986).

ATOMIC ENERGY ACT: CONTROL OF LICENSES The control of a license is in the hands of the person or persons who have the ultimate right to decide how the licensed activities should be conducted, ATOMIC ENERGY ACT: INALIENAlllLITY OF LICENSES A parent corporation's sale of 100% of the stock of its NRC licensed subsidiary constitutes a " transfer of control of any license" for the purposes of section 184 of the Atomic Energy Act, t

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ATOMIC ENERGY ACT: CONTROL OF LICENSES

" Control" of a license within the meaning of section 184lof the Atomic Energy Act is found in the person or persons who, because of ownership or

,I authority explicitly delegated by the owners, possess the power to determine I

corporate policy and thus the direction of the pctivities under the license, ATOMIC ENERGY ACT CONTROL OF LICENSES; INALIENAlllLITY OF LICENSES ne extent to which a subsidiary's day-to day operations are actually super-vised by the parent is irrelevant to determining whether there has been a " transfer l

of control" of a license for the purpcscs of section 184 of tho' Atomic Energy Act.

ATOMIC ENERGY ACT: : CONTROL OF LICFNSES:

3 INALIENABILITY OF LICENSES i

%c failure of a licensee to notify the Comrnission of the sale of 100% of -

its stock constitutes an unauthorized transfer of control under section 184 of the i

Atomic Energy Act, 1

NUCLEAR REGULATORY COMMISSION: AUTilORITY LICENSEES: CORPORATE FORM (PARENTS AND SUBSIDIARIES) i.

"Where the statutory purpose could be easily frustrated through the use of ;

separate corporate entitles a regulatory commission is entitled tolook through corporate entitles and tmat the separate entities as one for purposes of regula.

tion. Capital Telephone Co. v. FCC,498 F.2d 734,738 n 10 (D.C. Cir,1974).

RULES OF PRACTICE: INTERPRETATION (10 C.F.R. I 2.730(c))

A licensing board has not failed to provide an opportunity to respond as required by 10 C.F.R. 5 2,730(c), where it simply reassessed sua sponte the -

previous filings of both parties as the result of a request to provide reasons for a previous, unexplained ruling.

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APPEARANCES Gerald Charnoff, Washington, D.C. (with whom litmard K. Shapar_ and Christine M. Nicolaldes, Washington, D.C, were on the motions), for the movants, USR Industries, Inc., et al.

Robert M. Weisman for the Nuclear Regulatory Commission Staff.

MEMORANDUM AND ORDER This is an enforcement proceeding instituted by the NRC staff with regard to the decontamination of a site in Bloomsburg, Pennsylvania, on which activities had been conducted under byproduct material licenses initially issued by the i

Atomic Energy Commission (AEC) pursuant to 10 C.F.R. Part 30 and later renewed by this Commission, Before us at this time are two motions seeking interlocutory review, by way of directed certification,8 of certain threshold orders of the Licensing Board. 'Ihe movants (collectively referred to by that Board as the "USR Companies") are USR Industries, Inc. (USR Industries), and four of its subsidiaries: USR Lighting, Inc.t USR Chemical Products, Inc.; USR Metals, Inc.t and U.S. Natural Resources, Inc, in the first motion, they challenge the Licensing Board's rejection in a January 29,1990, order of their claim that the Commission lacks jurisdiction over them and that, therefore, they should be dismissed from the proceeding.2 The second, or " supplemental," motion would have us examine as well the underpinnings of a February 8,1990, order in which the Board modified a stay pendente lite that it had previously issued with regard to enforcement actions taken by the staff,8 Prior to coming to grips with the merits of the Licensing Board's orders, we must decide whether there is warrant for reviewing those orders at this interlocutory stage. Ibr the reasons set forth in Part II of this opinion, we answer that question in the affirmative, In Part 111 we consider the USR Companies' claims of crmr against the factual background set forth in Part I, and we affirm the January 29 order to the extent that it concludes that the staff has enforcement jurisdiction.over USR Industries. We leave open the question whether that jurisdiction extends as well to the assets of other USR Companics, Ibr its part, the February 8 order is modified.

ISee 10 C.F.R. t 2.7180); Public service Co. e/New Hampshire (sesbrook statia w Uniu 1 and 2), ALAB-271, 1 NRC 478,482 83 0975).

2,4 LDP47,31 NRC 116.

3 334e t.HP-90 8,31 NRC 143, 355 i

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l A.

De controversy at hand had its genesis in March 1956 when, acting pursuant to section 81 of the Atomic Energy Act of 1954, as amended,* and in l

accordance with 10 C.F.R. Part 30, the AEC issued Byproduct Material License I

No. 37 301 to the United States Radium Corporation (U.S, Radium). Threc months later this license was replaced with Byproduct Material License No. 37-30-2 (License No. 2). Over the years, there have been more than 40 amendments to License No. 2 and, in addition, U.S. Radium received still other byproduct i

material licenses.

License No. 2, as well as the additional lleenses obtained by U.S. Radium, included a standard provision subjecting the licenses to "the conditions specified in section 183 of the Atomic Energy Act of 1954," as well as "all applicable rules, regulations, and orders of the... Commission now or hereafter in effect and to any conditions specified [in the license)." Among the conditions set forth in section 183 is a proscription against the assignment or transfer of a license or any right under that license "in violation of tie provisions of [the Atomic Energy Act).*5 A condition in License No. 2 specified the Bloomsburg site as "the authorized place of use" and directed that the materials covered by the license were "to be used by, or under the supervision of, individuals ripproved by the radioisotope committee.'*

Re subsequent amendments to License No. 2 nrked changes in the condi-tion concerned with the personnel who would be permitted to use or sell the byproduct material. On this score, certain of the amendments identified by name the chairman of the radioisotope committee that was to approve the employces l

authorized to use or to supervise the use of the material.' Other amendments re-l ierred by name to the employees so authorized, without identifying the positions -

l they held.' Moreover, some amendments listed salesmen who were authorized i

to use " scaled sources... for demonstration purposes."'

insofar as the other licenses issued to U.S. Radium are concerned, some of l

them contained personnel conditions (in their original or amended form) akin l

to those in License No. 2. Others, however, imposed 'no restrictions whatever 1

I l

In that regard."

4 42 UAC. (2111.

3 42 UIC. I2233(c).

6 g,,,, y,37,342 Qune 20,1956) at 1.

t 7 Sas, e g. Amendment Nos. 14,16. 24,29. and 33.

8 See, e.g.. Amendman Nos.36,38.40 and 41.

' Amenenant Nos.4. 810.1214,16.1819,22,24. and 26.

18 344, e.g., license Na37 0003408 (August 5.1%9) and Amendman Noa.1. 2. 5,6. 8. and 10 thersta "See, e.g. IJcense No. 17 00034 090 oanuary 4.1972); tJcmns No. oL 122 (May 16,1962), superneJed by 13 cense Na 37 00034100 (october 71.1969), which in Lum was replued by license Na 29-13537 020 (January 6,1970).

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U.S. Radium was incorporated in 1917 and, until 1980, was managed and operated on a highly centralind, divisional basis %e divisim... Iwere]:

the denical prwiucts division,,,. the lighting products division.... and the metal products division..., he Corporation also manufacture [d] safety tighting products and tritiated foils and targets (the ' safety lighting praiucts business", which is operated together with the metal products division and which la the only one of the Corporation's businesses which is licensed and regulated)..,,ta In 1980, the corporation was significantly restructured. The effect of this devel-opment was that an entirely new corporation, USR Industries, assumed the role of " parent" of its creator, U.S. Radium. Specifically," when USR Industries was Incorporated by U.S. Radium on May 14,1980, it included a single subsidiary, Industries Merger Company, Inc. (Industries Merger). U.S. Radium then merged with Industries Merger. As a consequence of this action, U.S. Radium became a wholly owned subsidiary of USR Industries.

After this reorganization had been accomplished, the previous directors of U.S. Radium became the directors of USR Industrics. In the same year, the assets and liabilities of U.S. Radium, except for those related to the safety lighting business that had been conducted by that company under its byproduct material licenses, were spun off by USR Industries into four separate, wholly-owned subsidiaries: USR Lighting, Inc.; USR Chemical Products, Inc.; USR Metals, Inc.t and U.S. Natural Resources, Inc. Also in 1980, U.S. Radium -

whlch still retained the licensed safety lighting activities - changed its name to Safety Light Corporation (Safety Light),"

Thus, by the end of 1980, the licensee U.S. Radium was known as Safety Light, was a wholly-owned subsidiary of USR Industries, and was engaged only in the safety lighting business associated with the byproduct material lleenses.

This arrangement continued until May 24,1982. On that date, USR Industries sold its entire interest in Safety Light to the thite individuals serving as President and Vice Presidents of that subsidiary, 'lhe NRC was not notified of that sale prior to its consummation and has never given its approval to that transaction.

B.

On March 16,1989, the staff issued an order directed by name to Safety Light, each of the USR Companies, and certain other corporations." The order i

UProxy sutement far the Annual Meeting or stockholders of United states Raditan Corporation and Prcspectus of UsR Industries.Inc. (July 11,1980), et 14. His document is pan of Atuchment 3 to the NRC statr's Response to Moticus or UsR Indusuies,Inc. ler el.] to suy the order lasued August 21,1989 (November 16,1989).

Uhe facts set fonh dpa p. s57 are denved from various fdings of the panies below and do not appear to be in dispute.

" Reflecting this developnent. Amendment No. 42 (March 7.1983) chansed the name of the 'icensee an Ucense No. 2 fnun U.s. Radium to safety Ught. his action was taken on the basis of a knuary 21,1981 letter from Jack Miller, President or safety Ushi, to Paul ouinn, an NRC official s

uS4 Fed. Reg.12.(u5 38 (1989). De other corporations wete Ume Ridge Industries. Inc., Pinnacle Petmleum.

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Inc., and Metreal, Inc. Ume Ridge was identified as a purchaser of safety Ught; the laust two corporations wero i

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called upon those entities to submit to the NRC's Region i Administrator within 45 days a joint plan to characterize the radioactivity at the Bloomsburg site,l' It went on to provide that, within 180 days of the Regional Administrator's endorsement of the submitted site chamcterization plan, the named corporations 1

were to provide for his review and approval a report containing a complete

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radiological characterization of the site." Ibliowing approval of the report, the corporations would have 30 days within which to submit a single decontamina-tion plan with a timetable for specific activities,38 With respect to the inclusion of the USR Companies in the order, the staff explained:

Neither prior notice to the NRC was given, nor NRC approval obtained, regarding the 1980 restructuring and subsequent sale or the full circumstances of the transfer of the NRC

.j license, in violation of section 184 of the Atomic Energy Act and 10 CFR 30.34(b), which prohibit the transfer of a license, either direaly or indirectly, unless the NRC, aher securing full information, gives its consent in writing. h further appears from the 1930 Plan that these corporate transactions were a deliberate attempt to isolate the liability and responsibility for cleanup of the Bloomsburg facility... from other, presumably more prontable, aspects of U.S. Radium's, and later Industries', business ventures.

Neither ll.S. Radium, USR Industries, nor any of their successor corporatims or subsidiaries can avoid nsponsibility and liability for the cleanup of the Bloornsburg facuity through the unlawful transfer of an NRC license,i.e., a transfer without the consent of the NRC, aher full disclosure. 'Iherefore, each of the corporosions referred to in the caption of

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I this Order (" Corporations")is, and nmains, jointly and severally liable and responsible for the cleanup of the Bloomsbug facDity and for the condua of all other activities on that site that require an NRC license.'

~

I De March 16 order was followed by a second and immediately effective.

i order, issued on August 21.# Reciting apparent violations of the earlier order, as well as the absence of assurance of adequate funding to complete implementation of a satisfactory slic characterization plan, the. August 21 order requires the named corporations to establish a trust fund and to make deposits into it in

{

$50,000 or $100,000 monthly installments between October 1989 and September 1990. He total amount of the required deposits is $1,000,000.21 C.

By filings dated April 17 and September 8,1989, the USR Companies j

submitted answers and requests for a hearing with regard to the March 16 and j

August 21 orders, respectively Each filing sought rescission of the particular.

l 1

described as addaianal subsidiaries of U5R Indusuies, on AprQ M 1989, the siafr amended its March 16 order deleung Putnacle I%:mleum.

by14 at 12,037.

I 1714 at 12,037 38.

i 1814 at 12,038.

"14 et 12,036.

1. s4 Fed. Res. 36,078 (1989).

14 at 36,078 79.

]

21 n

358 j

a i!

i p

J

1 i

q

- enforcement order (as applied to the USR Companics) for lack of jurisdiction.

The USR Companies followed this with a November 20,1989, motion to dismiss both orders on the ground, inter alla, that "the NRC does not have regulatory

-jurisdiction over USR Industries who is neither now, nor has ever been, an NRC licensee or in possession of NRC regulated materials."n Two days after the filing of that modon, the Licensing Board entered an order continuing pendente lite a temporary stay of the immediate effectiveness of the August 21 order, which had been granted at the request of the USR Companies

~

during a telephone prehearing conference on October 27, in connecdon with this relief, the Board directed the filing of a statement respecting USR Industries' plan to fund the costs of site characterization and decontamination, in the event that the USR Companies are held liable for such costs, 'Ihe Board further noted its determination that, while a " clear potential" exists for offsite migration of the onsite contamination at some future time, no immediate threat to the public health and safety had been demonstrated."

As cariler noted, in the first of its two orders under present attack, the Licensing Board denied the modon to dismiss." In essence, the Board agreed

.i with the staff that USR Industries' failure to disclose to the NRC the "claborate and complex corporation restructuring" involving its licensee _U.S. Radium was a violation of both section 184 of the Atomic Energy Act and an implementing Commission regulation." In this connection, the Board stated:

'Ihere was no notice given of the transfers of controlling interest in the stock which could -

involve transfers of ownership and control of a license, requiring NRC wriuen consent. In short, there was not even an attempt to comply with the mandatory requirements regarding

" transfer of control of any license" t:pon wrinen consent by the NRC after securing full i

information. 'the statute requires a full, fair disclosure to be made by licensees of actions involving the transfer or contml of licenses, so that the NRC can make an informed judgment whether such actions are in accordance with the Atomic Energy Act. Clearly nnancial and l

other considerations related to decontamination of the site of licensed nuclear lejproduct activities could and should be reviewed by the NRC in fulAlling its statutory responsibilities.

Ilowever, the NOC hever had an opportunity to review the effect of the sign 16 cant changes in the licenselo's] corporation because of the acndisclosure of the facts by the panies to this proceedings [ sic]. As a result of noncompliance with the statutory requirements, the transfers of control of the licenses by corporate renructuring were invalid as to the NRC which.'s obtigated by statute to disregard them.38 i

1. Motion to Dianias (Novanbar 20,1989) at 14 U tJcensing Board order (Novernber 22,1989) at 3 (unpublished).

M <e tJIP.90 7,31 NRC at 130.

3 U ld at 127 28 (citing 42 U.s.C. I 2234 and 10 C.F.R. I 3034(b)). De Bosni also refsned to section 183c or the Act. 4I U.s C. I2233(c). See tJIP.90w7,31 NRC at 121.

26/4 at 128 (roomote amitted).

l 359 E

l A

t l:

L l-o t

n

's I

The Board went on to comider and to reject a number of arguments advanced by the USR Companics, including the claim that (in the words of the Board) i "only ownership, not control, was transferred, and that stock may regularly be bought and sold without NRC prior approval."" The Board opined that i

"[f]undamental changes in corporate structure, ownership, and control are the same as attempted transfers or assignments of licensecs," adding that "[sluch ownership and control transfers apply to both the 1980 restructuring and 1982

]

sale of all the Safety Light stock to the three management individuals.""

'Ibn days after this jurisdictional ruling, the Licensing Board issued the l

second of the orders challenged by the USR Companics" *neating a staff -

i request for a further development of the reasons for the November 22 grant of a stay of immediate effectiveness of the staff's August 21 order as a motion for reconsideration of that grant, the Board modified the stay This action was taken on the basis of the Board's analysis of the four factors that the Commission's Rules of Practice require be considered in deciding whether stay relief is appropriate " Although concluding that a weighing of the factors favored reinstatement of the USR Companies' obligation to make the deposits called for by the staff's August 21 order, the Board further determined that those deporsits should be placed into an escrow fund, not subject to disbursement or commitment pending the completion of the evidentiary hearings and the further y

order of the Board.25 II.

We long ago observed in the Afarble Illit proceeding that, as a general matter, we undertake discretionary interlocutory review "only where the ruling below cither (1) threaten [s] the party adversely affected by it with immediate and serious irreparabic impact which, as a practical matter, [can]not be alleviated by a later appeal or (2) affect [s] the basic structure of the proceeding in a pervasive i

or unusual manner,"22 The USR Companies maintain that both prongs of this test 211J. at 129, 2* lbil.

1 29 LDP M8,31 NRC 143.

"Those facion, denved fnun Farginia Perelew,i Je66ers Ass'n v. Federet Power Cenianisrion,259 F.2d 921

'd 925 (D.C. Cir,1958), are:

1 (1) Whether the moving party has made a strong showing that h is hkely to prevail en the merits; (2) Whether the pany win be inspanbly injured unless a stay is ganted;

0) Whether the garning of a stay would harm other parties; sad -

(4) Where the public interest has.

i 10 C.I'.R. I 2388(e).

33 LDP M8,31 NRC at 148-49.

32 AMc Service Co. e/ladana (Marble llin Nuclear oenerating station, Units 1 and 2), ALAB-405,5 NRC i

1190,1192 (1977).

360

-l l

are satisfied and also urge that *.nere are other reasons why' the Licensing Board orders in question should be reviewed at this time? Fbr its part, the staff is of i

- the view that the jurisdicGonal holding in the January 29 order has a pervasive cffect upon the basic structure of the proceeding but that there is no other basis l

for interlocutory review of that holding. The staff goes on to oppose outright L

our examination of the February 8 order at this juncture.

t A.

We are, of course, not bound to accept uncritically the agreement of the parties that the basic structure of the proceeding has been affected in a pervasive or unusual manner by the January 29 order denying the USR Companies' motion to dismiss for lack of jurisdiction over their persons. 'Ib the contrary, while that agreement should be taken into account, we must decide ourselves whether there i

is sufficient cause for the exercise of our discretionary authority to review now an order that is indisputably interlocutory..

It cannot be said that every threshold order concerned with jurisdiction over a party or an issue necessarily will qualify for review under the second prong of the Marble Hill test. At the same time, however, less than a year ago.

In a different proceeding we invoked that pong in granting a motion of an

~ intervenor seeking to obtain immediate appellate review of a licensing board order expunging a portion of a contention on the ground that another licensing.

I board had exclusive " jurisdiction" over it. As vm saw it, there could be little-doubt that the Board's view of its own jurisdictional boundaries went to the basic structure of the proceeding and was pervasive in effect."

'Although a quite different jurisdictional issue is considered in the January 29 order at hand, we think an equally persuasive case can be made for the proposition that the ruling on it has a significant and pervasive effect on this L

proceeding. Last November, the Licensing Board received a letter from then y

Safety Light counsel calling attention to developments nssertedly having an

" impact" on that company that would "directly or indirectly affect" its role in the proceeding." Specifically, because of action taken by the Department of Energy,-

g l

Safety Light had not received any shipments of tritium for several months and,.

as a consequence, its work force was idic and it was not generating revenue.

Given this factor, the letter stated, Safety Light would "not be able to continue incurring its current level of expenses indermitely,""

i l

We have nothing before us to suggest that Safety Light's economic situation I

has improved in recent months. Moreover, on January 4,1990, its counsel-Utn actushty, the UsR canpanies addiosa the MeWe #di cnieria only in their awaion ensking directed

.j certiacation of the January 29 arder. In their.,,

"' motion pettamina to the February 8 order, they point to ciher cauiderations, such as the llconsing Board's n: hance in that ender upm the January 29 order, as warraraing iniadocutory miew.

~

M 1%6Ee Service Co. of New HamprAire (sesbrook station. Units 1 and 2), AIAD-916,29 NRC 434,437 (1989).

" Letter from D. Jane Dionnan to Judge llelen P. Iloys (November 17,1989) at 1.

" Ibid 361 l

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p:

t

'. h h

I filed a notice of withdrawal and there is no indication that the company has since obtained substitute counsel, in these circumstances, there is room for

> substantial doubt.whether, and if so to what extent Safety Light will be an 7

L active participant in the proceeding, Accordingly, the shape of the proceeding almost certainly is heavily influenced, if not wholly determined, by the Licensing l

Board's conclusion that the USR Companies are to remain as parties, 'Ihat is efiough to justify our passing judgment at this juncture on the substance of that conclusion,

B. Insofar as the February 8 order is concerned, it is not clear that the USR l

Companies could press their claim of entitlement to a stay of the immediate.

effectiveness of the staff's enforcement actions only through a petition for directed certification of the Licensing Board's order, it may well be that they could have obtained our consideration of that claim as a matter of right by renewing their stay application with us once the Licensing Board lifted in the February 8 order the stay it had previously entered," We need not decide that.

question now, however, Ibr, in all events, we are satisfied that the relationship beteen the January 29 and February 8 orders is such that the latter should be examined along with the former, t

III, i

Section 184 of the Atomic Energy Act, titled " Inalienability of Licenses,"

l;

. provides:

u I

No license granted hereunder,,, shall be transferred, assigned or in any manner l

disposed of, either voluntarily or involuntarily, directly o-indirectly, farough fransfer of control of any license to any perscvi, unless the Commission shall, aber securing full l

Information, find that the transfer is in accordana with the provisions of this (Act), and shall give its consent in writing?'

. i N34#, e.g., Toleds FJison Co. (Davis-Besse Nuclear Ibwer Station. Units 1,2 & 3), ALAB%l,5 NRC s5,36

' (1977).

The provision in tivi Rules of Practice penaining to stays,10 CF.R. (1788, does not, by lis terms, apply to the case at bar. It is concerned with applications far a stay of the effectiveness of a decims or acaion.

=}

e/ d licensing er appedl Mrd, pending the $ ling and dispositiori of an appeal or petition for review of such -

adjudicatory beard action. liero,in contrast, the USR Companies actually seek a stay of the effectiveness of the i

sasg7's ediUnkeresive enforcement order, pending hearing before the IJcesing Board on that osder. Besh the staff and the U5R Cranpunaus argued below, however, that the tJcensing Board had um power to stay the inanediate affectiveness of the staff's August 21 order, and the tacensing Based concurred,13P.948,31 NRC at in We agree as ws!L 'the snaff's August 21 onter indicated that, at the heenna to be held before the IJcensing Based,

'the lasue to be consilened.,, shan be whether [the August 21 arder) should be sustained? M Fed. Reg. at

'. '%0ga h is reasonable to infer from this that dw licensing Board was also ernpowered to consider whether the order should be effective dunng the pendency of the hearing. See 10 C.F.R.11718(m)(licensing board may take.

a any action canisters with the Aiornic Energy Act, the Rules of Practice, and the Adminisustive Procedure Act).

ll 38 42 U.s C. I;'2M (eznphasis supplied). :

362 i

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1-i On its face, this provision applies fully to byproduct inaterial licenses issued under sectim 81 of the Act and 10 C.F.R. Part 30. It is thus not surprising that its essential terms are carried over, in haec verba, into section 30.34(b) of the Commission's regulations governing such licenses."

"Ihe pivotal questlou before vi on t s jurisdictional matter is whether either

' (or both) the restructuring of .h. LJian in 1980 or the sale of the Safety Light Corporation two years lat~t we.4 wir te provisions of section 184. More specifically, did either one (or icth) of L: m velopments involve the direct or

{

indirect transfer, assignment, or dis 34 Ju licenses issued to U.S. Radium, through a transfer of contro's snse irtas? As we understand their argument,

~.

the USR Companies do not Cyw % !f, contrary to their position, this question

{

requires an affirmative answer, me necessary consequence is that the staff was ~

l empowered to include them withta the_ scope of the enfolcement orders. By the j

same token, the staff and the Licensing Board appear implicitly to acknowledge j

that, if section 184 of the Act and the implementing regulation do not come into play here, the staff lacks the authority to exercise regulatory jurisdiction over the corporations, j

We are thus called upon here to decide what constitutes, for purposes of enforcement of the section 184 mandate, the direct or indirect transfer of a j

license through a " transfer of control" of that license, More specifically, we must

)

determine whether, as the USR Companies maintain, a transfer of control over

- the license did not take place here because all that occurred was a restructuring of the corporation holding the license, followed by a sale of the stock in that -

corporadon. In that connection, the USR Companies invoke the assertedly, l

of stock does not operate to transfer any of the corporate assets,"'"

l; longstanding principle of corporate law to the effect that "'the transfer of shares -

We find nothing in the legislative history of section 184 that significantly

{

aids the USR Companies' insistence that Congress enacted the section with j

that principle - or any other specific tenet of corporate ' law - in mind.45 We are told by the movants that, as originally proposed, the section referred-d to the transfer of a licenser rather than, as ultimately enacted, the transfer of a license."'Ihey candidly concede, however, that there is no available explanation as to the reason for the change in language, let alone an express indication that -

1 f

1. 10 Cf.R. I3a34(b).

l

1. supplemental Waian or USR Industries. Inc [e st) far Directed Castincation (February 13.1990) [hereinaher

" supplemental Waiat") at 7 (citing 12 w. Matcher, Cyclopana a/ #As im e/ Prive#4 Corporosione i 5463, at -

310 (iev.1985)).

~

t

'I la any event the retMupon principle is inapplicable hem. See @ pp. 365 67..

" supplemental Wiion at 9 (citing ILs. Wiks A of. Trowbridge, homework for Asomic stresegy:.A j

Commentary on she Asomic Emergy A:s of1954, at C.69 n.68 (1955)).

s; 363 s

d i

1 i

.- l l

i i

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AT

the congressional intent in effecting that change was to exclude from the ambit of section 184 transactions like those at issue here."

Nor do we think that such a legislative intent should be inhrred from the difference in language between section 184 of the Atomic Energy Act and section 310(d) of the federal Communications Act of 1934, as amended." At oral argument, and in a subsequent memorandum filed with our permission, j

the USR Companics directed us to the fact that the latter statutory provision, j

similarly dealing with, inter alla, the direct or indirect transfer of a lleense without prior agency approval, is cast in terms of the " transfer of contml of any corporation holding [the],,, license " It may well be that (as not disputed in the staff's response)"the licensing provisions of the Atomic Enctgy Act were based on those contained in the earlier enacted Federal Communications Act.""

Once again, however, the legislative history of section 184 is silent as to the reason for describing the significant event as the " transfer of control of [the]

)

llcense" rather than the " transfer of control of [the] corporation holding [the]

... license "

I llad the intent been to make the reach of section 184 more limited than that of section 310(d) of the Communications Act (as the USR Companics would have it), the high probability is that this intent would have been disclosed in committee reports or in the debate on the House or Senate floor. This is especially so inasmuch as there is no cause to believe that Congress would have desh:d certain transfers of total ownership of licensed radio stations to require prior agency approval in circumstances where identical transfers of total ownership in corporations holding nuclear licenses would not require such approval, indeed, 1

given the manifest public health and. safety implications of activities under nuclear licenses, it is reasonable to assume that Congress would have been even more interested in clothing this Commission with the authority to pass advance judgment on the acceptability of transactions such as those now in issue, in any

- event, the absence of any concrete evidence in the legislative history to support the USR Companies' thesis necessitates that we base our decision on the plain meaning and a practical application of the terms of section 184 themselves.

Stated otherwise, the appropriate inquiry is whether, in reality, the 1982 sale of Safety Light or the 1980 restnicturing of U.S. Radium effected, either directly or indirectly, a transfer of control of the licenses issued to U.S. Radium, as the concept of control is generally understood."

0 l

5eo nid "47 U.s.C. Is10(d),

l

" submission of UsR ladustries, Inc. (March 7,1990) at 2.

" A shareholder la deemed to have ccntml or a corporation when she (or hel desertr.ines corporate policy, whether by pomenally assuming nunagemesa responsibility or by selecting management pessonnel? la re NAD Properrio.r Jac.,799 F.2d 726,732 (1Ith Or.1986) The authority to make the cmcial policy tions

,(

1 364 1

A, insofar as the 1982 sale is concerned, we discern no room for reasonable doubt that a transfer of control took place. In this regard, we fmd totall;-

trrelevant the fact that, as the USR Companies strtss, under corporate law a transfer of shares of stock does not serve as a transfer of corporate assets. Apart from the atsence of anything to indicate diat Congress intended that doctrine to govern the applicatkm of section 184 of the Atomic Energy Act, our concern hese is with the transfer o control over the licenses issued to U.S. Radium.

r 1rrespective of whether those licenses themselves (as a corporate asset) are deemed to have been transferred when USR Industrica sold its 1(M interest in its Safety Light (nec U.S. Radium) subsidiary to the three individuals, it cannot be seriously maintained that the effect of the sale wari not a transfer of control.

Before the sale, those who possessed dominion over the full rangt, of the operatiore of USR Industries had the authority, if they desired to exercise it, to call the tune with respect to Safety Light's activities under the licenses by reason t

of Safety Light's status as a wholly owned subsidiary. (Of course, exercising diat right would require observance by USR Industries of all of the terms and conditions of die licenses.) ' Itis is so even though' the 1982 purchasers of Safety Light also happened to be its President and two Ylec Presidents. Upon consummation of the sale, USR Industries' management necessarily relinquished all right to dictate how the licensed activilles should be conducted. Rather, the full right to direct those activities - and thus to control the licenses themselves

- became vested in the new owners of Safety Light (subject to the same requirement of conformity to the dictates of the licenses),"

At oral argument and in response to a Board question USR Companies' counsel opined that, instead, both before and after the sale, the " radiation safety officer and the named people in the license had control of the license and the licensed activity.'*8 For a variety of reasons, that thesis is unpersuasive. 'Ib l

begin with, the regulations governing the issuance of a "speelfic" byproduct material license do not appear to require the identification of anyone apart from the " person" who has filed the application and to whom the license is issued,*'

Accordingly, it is not surprising that the license issued to U.S. Radium by the AEC in 1956 referred to that corporation as the licensee and made no reference to any particular individual, j

bans a. piv ) recue, n 14.ppe.,i ton..s. s.en iin.uer, $st osa,.i er ucens. is in u. h.nas or sie m nr pen who a. empa.m 4 w duide.h and no. mm i.eense win b.

d.

1 C'Diere is no suggesnan $st the safay 14tt pweasers 61se eenveiled USR Indoeules, with *e consapence that, priar to ces sans to siem, they had unreuered amharky over the acuvides or sersey t,ight so lans as $s tenne i

and omditi is of the byproduct meterial brenses were cheerved.

l

App. Tr. St.

l

see 10 Cf.R. H 30.3i.3s. *0anent" byproduct material licenses, which en not involved hers, do na repin

• the Ahns or arphsetims wim the Centmas6an et the issuance of heens' is docwnan in perucular penans,' 10 a

cf.R. l 30.31.

365 i

l s-s,n a

lW s

Tu be sure, in a condition in License No. 2 as initially issued (and in other licenses as well), de Commission directed that the byproduct materials were to be used at a speci6ed address of the licensec 0.c., Bloomtburg) and "by, or under k supervision of, individuals approved by the [licensce's]

radioisotope committee." But that condition, obviously intended to ensure that qualified licensee employees conducted or stipervitied the licensed activities, scarcely put those employees in " control" of the license within de meaning of section 184 of the Atomic Energy Act. Rather, that control remained in the hands of the licemee itself, i.e., the owners and senior managers of the parent corporation, originally U.S. Radium and, after the 1980 corporate restructuring, USR Industries. Although having to comply with all license conditions, including that concerned with the hands.on direction of the licensed activities, those individuals - as possessors of the authority that accompanies 100% ownership of a corporation - necessarily could exercise, if they so desired, the ultimate decisional authority on all mauers pertaining to the use of the license. Among other things, it was the U.S. Radium Gater USR Industries) owners who had the power - which they might or might not have sought to invoke - to provide k final word (through their designated direct (rs and senior management) as to which employees should serve on its radioisotope committee or otherwise be involved in the licensed activities. Moreover, at least so long as no violation of a license condition was being compelled, the committee members, no less than any other company employees, would have been obliged to obey any orders or instructions received from senior management of the body representing the 100% ownership of the licensee corporation, in the last analysis, given the duty of the radioisotope committee to satisfy all j

license condithms pertaining to k handling of byproduct material, if anything, the licenses " controlled" the committee members, rather than vice versa.

A different result is not suggested because, in amendments to License No. 2 l

(as in other licenses), either the chairman of the radioisotope committee or i

other U.S. Radium employees were identified by name in a license condition.

Whether or not there is such an identification, the crucial consideration remains the same: each license was under the control of U.S. Radium until k 1980 corporate restructuring, at which time control shifted to USR Industries as the newly forme 4 parent of U.S. Radium. As for the named U.S. Radium employ.

ces, although they were either to conduct k licensed activitics kmsclves or to supervise them, those employees were fully subject after the restructuring to any directions that might have been forthcoming from USR Industries officials, 366 1

.b e

I l

to the extent that dione directions did not conflict widi requirements impose 4 by the Commission through a license term or condition."

I Finally, the USR Companies would attach significance to the fact that, unlike applications for Part 30 byproduct materiallicenses, applications by corporations for licenses under 10 C.P.R. Part 50 to construct or to operate commercial nuclear power facilities, must include, later alla, the names, addresses, and citizenship l

of the applicant utility's directors and principal officers,S We are asked to infer

]

from that fact that the NRC does not believe that control of a Part 30 license, I

I as distinguished from control of a Part 50 license, is vested in the corporate directors or principal officers.

We see no basis for drawing any such inference, and the USR Companies suggest none. No doubt, the Commission has its reasons for requiring utilities j

seeking to construct or to operate massive nuclear power plants to provide j

information that is not likewise required of a corporate applicant for a byproduct i

material license, which generally are of much smaller dimensions. There is, j

however, no cause to suppose that one of those reasons is that the Commission l

perceives fundamental differences in the concept of control of a Part 50 license, as compared with that of a Part 30 license. Indeed, the Commission's implementing regulations in the two Parts are identical to the extent relevant here.83 In sum, although there are obvious differences between Part 30 and Part 50 licenses (and the processes necessary to obtain them), none of those differences i

is pertinent to the matter of where " control" of the license lies within the meaning of the Atomic Energy Act and the implementing regulations, in the instance of a corporate Part 30 or Part 50 licensee, that control is to be found in the person or persons who, because of ownership or authority explicitly delegated by the owners, possess the power to determine corporate policy and thus the direction of the activities under the license. Here, to repeat, control over the license in question thus was in the hands of USR Industries at the time of the sale of its wholly-owned Safety Light subsidiary and, upon that sale, the control was transferred to the purchasers without the NRC's consent,s3

1. As eerber need, eagere p s56, same or the other bypmduct material boennes issued to U.S. Radiurn did nat esesin any vestnctuais volatire to the emplopes who eculd nos the hcensed maler.al. Under the UsR Compemes' thesis, then, who had cantml of these hcenses whhin the meaning of section 18d of the Act?

88 see 10 CPA 6 Ms3(d)o)(li),

sa

,,,,,e 10 CFA 6 so.s4(b) me ist i M60(s) '!he USR Canpanies puint to nathing in the adminstrative c

history of the two sections that might suport a clairn that the cutuniasim beended the esctaans to have dispante effects.

A3lt ehmdd be nnied that the foregoing discussian is cast wholly in terms d the right to tenert &sninient twar the hcense and the beensed ecovines ense the restructuring had been occanphahad. In our view, the fe<t that 1004 ewnership of safety IJaha mardfes0y psvo UsR Induemas that right is abspanhive of the jurudshenal quantion at bar, stated otherwise, ahhaugh far other purposes it might be relevant under general pnnciples of ensparete J

law whether, and if so to what utet, e suhskliary's doyeday operatians as actusDy mapervised by the parent, as the moveras appent to acknowledge imphcidy, that is not a perunent carmdersuai insofar es the sphcation (Conrsman<0 367 i

)

i

i B.

In view of de foregoing, we need not decide wheder the corporate restructuring that occurred in 1980 similarly involved a transfer of control over i

de byprodtrl meterial licenses within the meaning of section Ig4 of die Atomic Energy Act. Ibr present purposes, it suffices that Oc 1982 sale of Safety j

Light occasioned such a transfer. USR Industries' failure to have notified the Commission of the proposed transfer, and to have obtained the Commission's ccmsent, are a sufficient foundation for the staff's inclusion of that corporation I

in its enforcement orders.

here is still the question whether the assets of the four remaining wholly-

, ]

owned subsidiaries of USR Industries would be available to satisfy any monetary I

relief that might te directed against the parent corporation in connection with the decontamination of the Illoomsburg site. Put another way, particularly given the fact that none of those subsidiaries has ever been engaged in the licensed 3

acdvities, is their separate corporate status a sufficient reason for insulating them

' from any decontamination liability that might attach to their parent tecause of 1

its ownership and unlawful transfer of the subsidiary that did conduct those l

activities?

De record now before us doca not permit an answer to that quesdon. It appears that, prior to de restructuring of U.S. Radium in 1980 all of dic

)

various undertakings of that company were under one corporate roof-with the consequence that all of the assets associated with those undertakings (and not just those pertalning to the lleensed activities) would have then been available to satisfy any decontamination liability that might have been imposed at that time, j

According to the staff's March 16 order, one effect of the restructuring was to isolate the licensed activities and the assets and liabilities associated therewith,"

As we have seen, those activities were given a corporate existence separate and distinct from that of the other U.S. Radium pursuits.

What is less obvious is wheder the central purpose of placing the licensed activities within a corporation encompassing only those activities was to put the other assets of the licensee U.S. Radium (a'i it existed prior to the restructuring) deliberately beyond the reach of an NRC enforcement order, indeed, deciding 1

whetler it is appropriate "to pierce the corporate vell" in this regard appears to be a significant issue for the hearing below.ss nus, in the circumstances, of section ind of tw Alumic I!nesty Act is cancerned. Thus, for the hmised purpose of datannining whether the este of safety Ught by USR Indusines Oho smly ennty that sould efroct that aslo) vielsted that esenan, a is not necessary to emplase funhar the degros of actunt invoinenent en the parent's part in the affairs of the subsadiary.

1 hat might or might met require espkustion by the Uconsing Beard in desennuung the entant of USR Industries' habihty far the easts assactated wuh the decantaminenan of the Bleensburg stie. see genereHy is Am. Jur. 24 i

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8 54 Fed. Reg. et 12J06 88 3ne, e.g., Ca,mant fel,4one Co. v. KC. 49:F.2d 734. 73s n.10 (D.C. Chr.1974) ("whose the statutory purpose -

could be easily frustrated Gunugh the une of ogsrate carparsw entiues e regulatory cammissian is enntled to look -

through varpcraie enunes and trost the sepsrsie entines as are for purposes er segulanan")

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it is test left to die Licensing Board to come to grips in the first instance (if necessary), with the matter whether the separate corporate statur of the USR Industries subsidiaries serves to thield them and their assets from the satisfaction of any liability imposed upon the parent corporation.

C. Remaining for consideradon is the Licensing Board's February 8 order in which it lifted tbc previously issued stay of imme41 ate effectiveness of the staff's August 21 " trust fund" oftter, subject to payments being held in an escrow account during de litigadon." At oral argument, the USR Companies' counsel asked that we stay pendcate life the Fettuary 8 order, in response, two days later we issued an order in which we modified the February 8 order in this respect:

Pending out furder order, die 11SR Casnpanies need not make die cain payrnetus contem.

plated by (the thensing Ikerd's Fetruary s) order so keg as they furnish the staff with an equivalent scarity innerest in assets gossessed by th:m. To this end, the l!SR Compa.

tiles and the staff shau immediately canmence negotiations on the matter of the nature and extent of the seatrity interest necessary to ensure that, should the uhlmete disposition of the underlying litigatiun tw unfavorehle to the IJSR C<supanies, the gerpose that was to be served by the escrow fund descrited in the February : order will be fully satisfwd.87 We now affirm the Licensing Board's Fetruary 8 order as thus modified and subject to one further condition. Manifestly, given our conclusion on the jurisdicdonal issue, the staff is entitled to take steps to assure that there will be funds available to satisfy any decontamination liability that may be imposed upon USR Industries, At oral argument, we were told by its counsel that, for reasons associated widi the assertedly adverse grevailing economic conditions in Texas, where certain of its assets are located, any requirement that it make cash deposits to the escrow fund would work a substantial financial hardship upon USR Industries." 'That representation led to our modification of the February.

8 order as a reasonable accommodadon of the competing interests of USR Industries and the staff.

Negodations concerning an appropriate security interest in the USR Com-panies' assets have now been under way between those firms and the staff for approximately six weeks, with no resolution yet." We believe that an additional "The UsR Cnmpanies insist that, once to 14censmg Bonnl decided to treet Se staff's request far an saplanadan of the naard's earher arder Brentmg e etsy as, huised, a manun for recanaidersuan af that stay, h had to piuvide an opununity for the U$R Campanies to respond. supplemental Matian at 1516. hat Ime af ersument lyiores Uw fact that the naard did nas seceive any runhar pleadess inen the staff in which the U5R Campanies amt s have h

sospunded. No wahmendag me label assipied by Se LJeansing Paard, uw I ehruary s arder ses am pmnymed by a suff maum for recess,dersuan; ather, me arder was dw product of the Ikmed's sus sponse :

r of

• e previoas fihngs of bed gurues. Det bemg so,in seshly there wee no failure to deerve tw provismns or 10 C.F.R. I 2.*t)o(c) relaung to dw eppintunity to inspand to mraiara 8' Ameal Itaard order (March s,1990) at 2 (emphasis in ensinal; fawnate amitted)(unpuhhnhed).

" Am. Tr. 61'62.

"su loint status Repans filed March 22 and April 6,1990.

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. two weeks is an wiequate time in which to comp ete t e negot at ons, if the l

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USR Cornpanies have not provided the staff with the requisite security interest within two %eeks of the tiervice date of this decision, the USR Ccungenies' I

obligation to make cash payments under the staff's August 21,1989, order, as modified by the Licensing Board's February 8 order, is reinstated.

For the foregoing reasons, we q/)irm both tie Licensing Board's January 29, 1990, older, LEP 90 7. 31 NRC 116, ar,J its February 8,1990, order, LBP 90 8, 31 NRC 143, as modified in accordance with this opinion."

it is so ORDERED.

FOR THE APPEAL BOARD Barbara A.Tompkins Secretary to tie Appeal Board i

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• we have Jusi.es.ved today yei.her riung of the Usk Conf.nies, eher.c orised es e suppi nent io $str metian below to desmiss the staff's enfareement ordem as to thent la that Rhng, the USR Casupanies amen that h l

is clear from the stafr's resp uss to their husevigaumes 'that there has been 4 complea annenes d any eensieven patiern with sessed to NRC's applicatian of sec&et 184 of the Aternic Energy Act and 10 C.F.R. 4 30.34h -

oncept. pnar to Manth *l,1989, a ponern of not requ' ting, with ons escaphan, paa consera for any emot transfer.'

sepplenues to M<sion of USR Indusuies,Inc. les el.] to Diannes orden issued March 16,1989 and A.nguet 21, 1949 (April 19,1990) et $.

In deciding the snortis of $e carurevessy, the tJcensmg Dased shou 1J earmider this essersm, as web as ha

,. 7 and the consequences that aio said to now from R. (Arneng asher things, the UsR Companies maemain $a. if they had eaught oppnwal of the Safety LJght solo In the ok

- that appnnel punt tvrtamly would have been fanhcaning ) But the inconsistant manner in which the stair purpsmedly has appled the govembig saatuimy and regulatory pnwinians in $e pe ecanely is dispositivo d the fiassdesweel quesuan now befose us. That asnow quotion must instead be resolved en the besia d the terms of $w gmwning sistute i

end tegulatians without f*6ard to the d!!igarro or lack thered os, the stalt's pen la the past enftreament d these tenia Asceningly, we refer the April 19 sugylemental flhng to the ljconsing Board for ha eensideration following receipt d the staff's susprmas.

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