ML20056A435
| ML20056A435 | |
| Person / Time | |
|---|---|
| Issue date: | 07/31/1990 |
| From: | Cotter B Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| NUREG-1363, NUREG-1363-V02, NUREG-1363-V2, NUDOCS 9008070362 | |
| Download: ML20056A435 (63) | |
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L ATOMIC SAFETY AND LICENSING BOARD PANEL j
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FISCAL YEAR 1989 e
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July 1990 U.S. NUCLEAR REGULATORY COMMISSION Washington, DC 20655 I
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i AVAILABILITY NOTICE j
Availability of Reference Materials Cited in NRC Publications j
Most documents cited in NRC publications will be available from one of the following sources:
1.
The NRC Public Document Room, 2120 L Street, NW, Lower Level, Washington, DC 20555 2.
The Superintendent of Documents, U.S. Government Printing Office, P.O. Bor 37082, Washington, DC 20013 7082 3.
The National Technice information Service, Springfield, VA 22161 Although the listing that follows represents the majority of documents c".ed in NRC publica-tions, it is not intended to be exhaustive.
Referenced documents available for inspection and copying for a fee from the NRC Public Document Room include NRC correspondence ano internal NRC memoranda; NRC Office of Inspection and Enforcement bulletins, circulars, information notices, inspection and investi-gation notices: Licensee Event Reports; ver. dor reports and correspondence; Commission papers: and cpplicant and licensee documents and correspondence.
i The following documents in the NUREG series are available for purchase from the GPO Sales i
Program: formal NRC stall and contractor reports, NRC sponsored conference proceed-ings, and NRC booklets and brochures. Also ava"3ble are Regulatory Guides, NRC segula-tions in the Code of Federal Regulations, and Nuclear Regulatory Commission issuances.
Documents available from the National Technical Information Service include NUREG series reports and technical reports prepared by other federal agencies and reports prepared by the Atomic Energy Commission, forerunner agency to the Nuclear Regulatory Commission.
Documents available from public and special technical libraries include all open literature items, such as books, journal and periodical articles, and transactions. Federal Register notices, federal and state legislation, and congressional reports can usually be obtained from these libraries.
Documents such as theses, dissertations, forel0n reports and translations, and non NRC conference proceedings are available for purchase from the organization sponsoring the publication cited.
Single copies of NRC draft repo,1s are available free, to the extent of supply, upon written request to the Office of information Resources Management, Distribution Section, U.S.
Nuclear Regulatory Commission Washington, DC 20555.
Copies of industry codes ano standards used in a substantive manner in the NRC regulatory process are maintained at the NRC Library, 7920 Norfolk Avenue, Bethesda, Maryland, and are available there for reference use by the public. Codes and standards are usually copy-righted and may be purchased from the originating organization or, if they are American National Standards, from the American National Standards Institute,1430 Broadway, New York, 10018.
NUREG-1363 Vol. 2 ATOMIC SAFFIT AND LICENSING IlOARD PANEL e
ANNUAL REPORT l
FISCAL YEAR 1989 i
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eb July 1990 U.S. NUCLEAR REGULATORY COMMISSION Washington, DC 20555
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UNITED STATES 4
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NUCLEAR REGULATORY COMMISSION 5
ATOMIC SAFETY AND LICEN$ LNG BOAFID PANEL
- [j W ASHIN GT oN, D.C. 20665 June 22, 1990 MEMORANDUM FORT Chairman Carr Commissioner Roberts
. Commissioner Rogers Commissioner Curtiss Commissioner Remick FROM:
B. Paul Cotter, Jr.
Chief Administrative Judge SUBJECT EIGHTH ANNUAL REPORT OF THE ATOMIC SAFETY AND LICENSING BOARD PANEL:
FISCAL YEAR 1989 The attached Eighth Annual Report of the Atomic Safety and Licensing Board Panel (ASLBP) provides a general overview of the activities and docket of the ASLBP and details some of the more significant decisions of individual Licensing Boards during Fiscal Year 1989.
In summary, the attached Report shows that the ASLBP continues to resolve most contentions prior to hearing and to close more cases than filed each year.
In addition, the Panel has enhanced the scope and ca'pabilities of its electronic docket, gaining valuable exper:.ence that will be of critical importance in efficiently managing future complex cases.
Based on NRC Staff five-year projections, growing interest in advanced and standardized reactor designs (both domestically and internationally), increasing national and regional needs for. power, and a growing appreciation of nuclear power as an alternative to other, more environmentally costly forms of energy production, the Commission is on the edge of a
renaissance in nuclear licensing and. regulation.
The Commission has taken the initial ste:ps to ensure that the second-generation licensing process w:.ll not be-hampered by outdated or inappropriate regulatory and adjudicatory requirements and procedures. Following the Commission's lead, the Panel intends to submit in the near future a simplified yet integrated revision of the 10 CFR Part 2 Rules of Practice.
However, no streamlined licensing process or rules of practice can realize their full potential in the absence of adequate numbers of experienced judges to interpret and apply those rules.
As the attached Report highlights, the Commission's cadre of experienced full-time judges continues to grow f
i Commission 6/22/90 smaller in the face of projected increases in the Panel's caseload.
For this reason, I urge the Commission to look to its future adjudicatory needs in assessing the adequacy of its existing adjudicatory resources and procedures.
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Chief Administrative Judge
Attachment:
ASLBP Annual Report 1
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AHSTRACT in Fiscal Year 1989, the Atomic Safety and Licensing Board Panel (ASLBP) handled 40 proceedings involving the construction, operation and maintenance of commercial nue ear power reactors or other activities requiring a license from the Nuclear Regulatory Commission. This report summarizes, highlights and analyzes how the wide ranging issues raised in these proceedings were addressed by the Judges and Licensing Boards of the ASLBP during the year.
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1 TABLE OF CONTENTS Page EXECUTIVE
SUMMARY
................................... ES 1 A.
Overview
........................................ES-1 B.
Docket Data
......................................ES1 C.
Administration..................................... ES 2 1.
I NTR O D U CTI O N....................................
1 11.
ASSURING THE PUBLIC HEALTil AND SAFETY:
SIGNIFICANT FISCAL YEAR 1989 DECISIONS,............
3 A.
ASLBP Jurisdiction
................................?
B.
Significant Panel Decisions...........................
4
- 1. Se ab rook.....................................
4
- 2. Shoreham...........................'......... 7
- 3. Severe Accident Mitigation Design Alternatives...........
8
- 4. JMI Accident Generated Water.....................
8
- 5. Informal Proceedings............................
9
- 6. Equal Access To Justice Act: Attorneys Fees...........
9 10
- 7. Drug Use: Operator's License 111.
FISCAL YEAR 1989 CASELOAD ANALYSIS.................
11 11 A.-
Overview......................................
i B.
The Fiscal Year 1989 Docket.........................
11 13 C.
Case Management 15
' D. ' Types o f Case s...................................
' E.
Operating Licenses................................
17 v
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Reconstitu tion................................... 17 i
G.
llearings
...................................... 18 IV.
PERSO N N E L AN D S U PPO RT........................... 21 A.
Pane l M e rnbe rs.................................. 21 B.
Professional and Support Staff........................ 22
- 1. legal Support Staff............................. 22
- 2. Technical Support Staff 22
- 3. Administrative Support Staff...,,
................. 22 V.
ENHANCING THE ADJUDICATORY PROCESS..........,... 25 A.
G e n e ral....................................... 25 B.
ASLBP Electronic Docket 25 C.
Hearing Procedures 27 D.
Coordination with OLSS A........
.................. 28 E.
Agency Court Reporting Services 29 VI.
CO N C LU S I O N S..................................... 31 A.
1989 in Retrospect................................ 31 B.
1990 and Beyond................................. 31 C.
Meeting the Adjudicatory Dernands of the Next Decade 32 APPENDICES APPENDIX A: Organizational Chart..,,................... A 1 APPENDIX B: ASLUP Professional Personnel
................B1 APPENDIX C: Biographical Sketches of Panel Members
.,,......C1 APPENDIX D: Published ASLBP issuances (Fiscal Year 1989)
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LIST OF FIGURES 13 Figure 1. Average Caseload Per Full Time ASLBP Panel Mernber 15 Figu re 2. Fiscal Year 1983....................................
15 Figure 3. Fiscal Year 1989....................................
16 Figure 4.
Fiscal Year 1990....................................
16 Figure 5. Fiscal Year 1991....................................
LIST OF TABLES Table 1. Fiscal Year 1989 Docket Recapitulation...,,,............
. 11 12 Table 2. ASLUP Caseload By Fiscal Year _.....,,...................
14 Table 3. Average Case Age By Type /Overall vii l
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EXECUTIVE
SUMMARY
A. Overview After a decade of adjudications focusing on applications for operating licenses, Fiscal Year 1989 represented the mid point in the Atomic Safety and Licensing floard's transition to the Commission's adjudicatory docket of the early 1990's.
Only 12 of the 40 cases on the Panel's Fiscal Year 1989 docket related to applications for construction permits or operating licenses. Other types of cases accounted for 69% of the Panel's cases, and focused on issues arising out of the continuing operation of over 115 nuclea. power plants or related facilities,8,500 materials licenses, and other nuclear licenses, in addition to the changing nature of the Panel's docket, the total number of proceedings (and the corresponding number of available full time ASI.BP judges) dropped to its lowest point in the 1980's. The drop in the total number of cases on the ASLI1P's docket resulted from two factors. First, the Panel's program of active case management has resulted in the realization of its goal of significantly reducing the average age of its caseload by closing more cases each year than filed. Second, while higher than the average filings for the period 1983-87, new filings during Fiscal Year 1989 fell to 17 from the FY 1988 high of 23. Finally, as was the case in Firma Year 1988, the Fiscal Year 1989 new filings focused on issues typical of a mature regulated industry, principally applications for license amendments, re hearings of remanded issues, and challenges to NRC Staff enforcement actions.
14 Docket Data O CASE AGE: The average age of d cases on the docket during the Fiscal Year (as of September 30,1989) was 17.1 months, a decrease of 37% over the Fiscal Year 1986 average age.
The average age of all operating license cases on the docket fell 14% to 42.8 months.
O CASE FILINGS: The number of new cases filed in Fiscal Year 1989 fell from the Fiscal Year 1988 peak of 23 yet still exceeded the number of new filings in 1987, which itself reflected a 20% increase over the average for the prior five years.
O CASELOAD: Of the 40 cases on the Panel's Fiscal Year 1989 docket,22 cases involved 13 different nuclear power reactors or related facilities (12 involving applications for construction h
i permits or operating liccuses). The remaining 18 proceedings involved other types of Commission licensees.
O PREHEARING CONTENTION RESOLUTION: For all proceedings, almost 80% of all contentions were resolved during the prehearing phase of the proceeding, a continuation of prior experience.
O HEARINGS: During Fiscal Year 1983, the 1.icensing Panel held 105 days of hearings (78 trial days.and 27 prehearing conference days). This represents some 275 Administrative Judge hearing days.
O ENFORCEAfENT: There were 9 enforcement proceedings during Fiscal Year 1989,3 of which were closed during the year.
O COAfPLETED PROCEEDINGS: Of 40 proceedings on the docket during the year, 22 (55% of all proceedings) were c19 sed in 1989.
O Fiscal Year 1990 CARRYOVER: Of the 18 proceedings carried over to Fiscal Year 1990 from the 1989 docket, 3 address t
issues associated with operating license applications for four units at three different facilities.
The largest grcup of carryover proceedings (44.4% of all such proceedings) involved applications for license amendments and enforcement actions.
C. Admin!stration 1
O STAFFING: As of the close of the Fiscal Year, full time Panel personnel totalled 31. ASLBP membership stood at 37 judges (15 full time and 22 part time), reflecting a decrease of over 45% in the number of available judges since 1982.
O PANEL AfEAfBERS' AGE: The average age of full time Panel members is 60. The average age of part time Panel members i
is 70. Some 87% are eligible to retire today. The Panel i
has begun working with the Office of Personnel to establish Registers of qualified candidates to expedite replacement of retirees.
O ASLBP ELECTRONIC DOCKET: The Panel made substantial progress in expanding the scope, depth, and availability of its i
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electronic docket during Fiscal Year 1989. As of the close of the Fiscal Year, the Panel was: (1) training agency personnel in other Commission offices in how to access the CAP using INQUIRE; (2) enhancing the system through the addition of ASLBP and Appeal Board issuances within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> of decision; and (3) briefing other state and federal agencies inquiring about the CAP system.
As the highlights above indicate, the Panel continues to improve and enhance the efficiency of the Commission's hearing process. Barring further crosions in this adjudicatory resource, the ASLBP stands ready to meet the hearing demands of the next decade to ensure public health and safety into the next century.
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I. INTRODUCTION Created by the Commission pursuant to authority under Section 191 of the Atomic Energy Act of 1954, as amended, the first Licensing Board was appointed November 9,1962. In the intervening quarter century, nuclear reactor licensing and construction permit hearings conducted before the Licensing Boards of the
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Atomic Safety and Licensing Board Panel have been characterized as among the i
most complex, lengthy and controversial administrative hearings conducted by the Federal government. This results principally from three factors.
l First, such hearings routinely involve difficult interrelated questions of policy, law, engineering and risk assessment many times at the cutting edge of science and technology. Thus, Hoards must confront not only disputed legal and factual arguments, but also competing technical and scientific theories, opinions and
'1 research findings. Second, hearings before Licensing Boards are the principal, public administrative vehicle through which individuals, organizations, and State
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and local governments can voice their concerns regarding particular licensing or enforcement matters under consideration by the Commission and have those concerns resolved by an independent adjudicatory body. Thus, the resolution of these difficult technical questions is often made against the backdrop of local concerns about the consequences'of severe accidents, anl the national debWe over what role nuclear power should play in meeting the r.ation's energy needs. Third, 1
in deciding whether a license, permit, amendment or extension should be granted to a particular appliennt, individual Boards must be more than mere umpires.
Where appropriate, they are charged with the affirmatNe duty to go beyond the issues placed before them by the parties to identify, explore and resolve rny q
r,lgnificant question necesst.ry to ensure the public bealth and safety. Thus, where s
the public's health or safety are implicated, Licensing Boards must ensure that l
those interests are fully explored and effectively preserved.
Moreover, while the ASLBP is moving away from the large nuclear power plant operating license proceedings that dominated its docket during much of this decade, the site decontamination, enforcement actions, reactor operator and materials license proceedings that are taking their place continue to raise difficult and sometimes unexplored questions of law and science. And in the near future, facility decommissioning and license renewal proceedings are likely to once again rank among the most complex and contested proceedings conducted by the Federal Administrative judiciary. Finally, preparatory work must begin for the high level waste repository proceeding which could become the most complex and i
controversial administrative proceeding ever conducted by the Federal Government.
e
In Fiscal Year 1989, the Panel's 37 full time and part time judges handled 40 proceedings.
This report summarizes, highlights and analyzes how the wide.
ranging issues raised in these proceedings were addressed by the Judges and Boards of the ASLBP during the year.
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E ll. ASSURING 7HE PUBLIC HEALTH AND SAFETY:
SIGNIFICANT FISCAL YEAR 1989 DECISIONS A. ASLBP Jurisdiction The Atomic Energy Act of 1954, as amended by the Energy Reorganization Act of 1974, as amended, and their implementing regulations require that a formal hearing be held on every application for a construction permit for a nuclear power l
alant or related facility, in addition, the Act requires that persons having an nterest that might be affected by the grant of an operating license or license amendment concerning a nuclear power reactor be provided an op)ortunity for a formal hearing. Finally, other sections of the Act or the Comm ssion's rules provide an opportunity for a formal hearing on antitrust issues, enforcement actions, civil penalties, and other matters as directed by the Commission. All formal proceedings conducted by the ASLBP are governed by the Administrative Procedure Act, S U.S.C. f 551, et seq., as implemented by the Commission's own rules of practice set out at 10 C.F.R. Part 2. Virtually all hearings are held at or near the site of the facility.
In matters affecting one of its over 8,500 materials licensees, the CommMon's rules of practice authorize the use of informal rather !.han formal hearings procedure.<. See 10 C.F.R. f t 1201 1251.
While the adjudicatory deliberative process for judges remains the same under either ty>e of hearing, t
informal hearings intalve significsnay different procedures for teveloping the record upon.which decisions must be based. The principal differences include the use of a single administrative judge.' written submissions by the parties, and, if the Presiding Officer determines it to be necessary after consideration of written submissions, oral presentations by the parties subject to questioning by the Presiding Officer. While the infarmal hearing procedures have the potential to shorten and simplify the hearing process, the realization of that potential in large degree turns on the Presiding Officer's ability to identify, focus and explore the material factual and technical issues.
As a matter of Panel practice, an ASLBP judge having expertise (i.e., legal or 3
technical) complementing that of the designated Presiding Officer is routinely assigned to the proceeding as a special assistant.
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f B. Significant Panel Decisions During Fiscal Year 1989, the various Boards and Presiding Officers of the Panel published 37. decisions and ~ issued several hundred memoranda and orders in connection with the 40 proceedings on the Panel's Fiscal Year 1989 docket. See Appendix D.
Thirteen of the more significant of these formal issuances are summarized below.2 SEABROOK Wide ranging Challenges to Portions of the Seabrook Emergency Plan ' and Emergency Exercise Resolved. Durb.g the Fiscal Year the Seabrook proceeding, like the Shoreham proceeding in Fiscal Year 1988, occupied a major portion of the Panel's attention, requiring the services of two separate Licensing Boards, and generating an extraordinary number of formal issuances.
l New Hampshire Plan Found Adequate. In LBP-88 32, a 350 page decision focusing on the state developed "New Hampshire Radiological Emergency l
Response Plan (NHRERP)" intended to serve the New Hampshire portion of the Seabrook Station Emergency Planning Zone (EPZ), the Licensing Board concluded that the NHRERP satisfied, subject to several board imposed conditions, the Commission's emergency planning requirements.. In the course of reaching this conclusion, the Board addressed and resolved in the Applicants' favor the remaining 26 of 122 contentions originally filed by the Intervenors challenging almost every aspect of the NHRERP. These last 26 contentions questioned the adequacy of di plan's supporting letters of agreement, emergency response perst al, transportation resources, decontamination and reception centers, pubne notification and communication procedures, human behavior assumptions, sheltering procedures for beach i
populations, and evacuation time estimates 28 NRC 667 (1988).
Earthquake. In LBP-89 3, the Licensing Board rejected a late filed petition to intervene and-to admit contentions based on a 1988 earthquake in the vicinity of Quebec, Canada. Because the " Quebec" event was, according to the
. petitioner, a 6.4 magnitude certhquake while the Seabrook design basis safe shutdown earthquake (SSE) was only a 6.0 magnitude earthquake, the petition sought intervention for the purpose of revising upward the Seabrook SSE, and to challenge the adequacy of the Seabrook emergency plan in the event of a joint accident / earthquake. To the extent the proposed contentions sought to litigate the adequacy of an emergency plan in the event of a radiological emergency accompanied by a greater than SSE earthquake, the Board noted
'2 All citations are to volume and page numbers of Nuclear Regulatory Commission Issuances. and all cases may be found in LEXIS and WESTLAW.
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that the Commission had already held and been judicially sustained that such a scenario need not be considered in the context of emergency planning. As to the petitioners claim that the Seabrook SSE should be revised upward in light of the " Quebec" earthquake, the Board noted that the petitioner had been a party in the Seabrook construction permit stage, had unsuccessfully litigated just such a contention there, and thus was generally precluded, absent " changed circumstances," from re-litigating that issue at the operating license stage.
Because the petitioner failed to advance any evidence indicating that the
" Quebec" earthquake was generated in the same tectonic province governing the Seabrook site, the Board concluded that no " changed circumstances" relating a the Seabrook SSE existed, and thus re litigation of that issue was barred under the doctrine of res judicata. 29 NRC 51 (1989).
Onsite Emergency Plan.
In LBP-89-4, the Licensing Board rejected Intervenors' attempt, after the record in the proceeding had closed, to litigate contentions challenging the adequacy of Applicants' onsite emergency plan for the Seabrook Station based on an NRC staff evaluation suggesting an inadequate training program. The Board first rejected Intervenors' petition, filed almost three months after the exercise giving rise to the proffered contentions, as inexcusably late and not otherwise justified by a " compelling" showing on the other factors set out in 10 CFR % 2.714(a)(1). The Board went on to conclude that the Intervenors had failed to establish the grounds necessary to justify reopening the record. In doing so, the Board rejected what it termed " barren allegations" of bad faith on the part of NRC inspectus, holding that in the absence of clear evidence to the contrary, it would presume that NRC inspectors properly discharged their official duties. The Board also rejected speculation about the credibility of the Applicants' employees as affiants. The Board noted that "[o]nly facts raising a significant safety issue, not conjecture or speculation, can support a reopening motion." Finally, the Board concluded that the motion to reopen neither addressed a significant safety or environmental issue nor raised a factual triable issue, thereby precluding it from finding that the newly proffered information would likely produce a materially different result. 29 NRC 62 (1989).
Police Powers.
In LBP-89-8, the Board granted Applicants' motion for summary disposition on two Joint Intervenors contentions challenging the legal premise underlying the applicam-developed "Seabrook Plan for the Massachusetts Communities (Seabrook Plan)." Tlase contentions questioned whether, in the event the agencies of the Commonwealth of Massachuse tts are unable or unwilling to respond adequately to a radiological emergmey, the Governor could lawfully delegate to the Applicants police powers necessary to implement their emergency plan. Torning to the Massachusetts Civil Defense Act, which had been amended to include nuclear accidents among the type of disasters triggering its provisions, the Board noted that the statute lodged considerable authority "h the Governor to take whatever action is necessary, 5
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i including cooperating with private agencies in the exercise of police powers, to ensure the public health and safety. This being the case, the Board held that "it is not rational to believe that, during (a nuclear accident)...the Governor may not and would not delegate, command, direct, or cooperate with private agencies of whatever nature in the defense of Massachusetts citizens" Accordingly, the Governor or his designee had the lawful authority, in the event of inaction on the part of state agencies, to delegate to the Applicants' i
Offsite Response Organization those police powers necessary to implement the
. Seabrook Plan. 29 NRC 193 (1989).
.Bankrupny. In LBP-8910, the Board rejected arguments that the financial i
i condition of the Seabrook Applicants (i.e., the bankruptcy of one co-owner and the default of another in its financial obligations to the Seabrook project) warranted a waiver of the Commission's regulatory exclusion of electric utilities from financial qualification reviews at the operating license stage.
While recognizing the PSNH bankruptcy was likely a "special circumstance" not considered by the Commission when it promulgated the regulatory exclusion, i
the Board noted that more is necessary to warrant a waiver of a rule.
Summarizing the applicable Commission law, the Licensing Board noted that a party must advance a prima facie case that (1) "special circumstances" exist which (2) unde.:ut the rationale of the rule sought to be waived and that (3) a waiver is needed to address a significant safety problem. The Board pointed out that nothing in the record established that the costs necessary to safely l
operate the Seabrook Station, guaranteed under State law notwithstanding any prior or existing bankruptcy, would not be authorized by the relevant state authority once the Seabrook Station entered the ratebase. This being the case, the rationale which led the Commission to adopt a regulatory exclusion from financial qualifications reviews was still applicable to the Seabrook Station. As to the claim that a financially strapped utility might not operate the plant in a safe manner, the Board found persuasive the Applicants' response that the NRC's continuous monitoring ofits operations and the fact that PSNH had but one of five votes on the committee of owners that made safety related decisions, taken together, rendered a degradation of safety a highly unlikely consequence of the PSNH bankruptcy. 29 NRC 297 (1989).
Mobile Sirens. In LBP-8917, the Licensing Board rejected challenges of"too loud" and " tao slow" to the Applicants' proposal to use trucks ~ equipped with sirens mounted on hydraulle telescoping booms to notify Massachusetts residents in the event of an emergency. The use of mobile sirens became necessary due to the actions of local governments making reliance on fixed sirens untenable. While acknowledging that the particular sirens proposed to be used by the Applicants were rated at a decibel level slightly higher than the Commission's maximum permissible level, the Board pointed out that the siren's sound level was, like a beam of light, at its peak directly in front of the speaker.
Because the sirens were intended to be sounded with its boom 6
extended to 47 51 feet, the sound heard at ground level would be within the Commission's guidance.
Moreover, the Board held that temporary and/or slight increases in sound level over the maximum were not significant for
- emergency planning purposes. As to the argument that the use of mobile sirens did not provide reasonable assurance that public notification would be made in a timely manner, the Board noted that the Commission's rules did not require absolute guarantees that a siren system would notify all members of the public under every possible circumstance within 15 minutes or less. Based on its evaluation of the evidence offered on each separate function that together comprised the average time to initiate a siren alert from all locations, the Board concluded that the Applicants' public notification system and procedures satisfied the Commission's 15 minute rule. 29 NRC 519 (1989).
SHOREHAM Final OL Decisions Issued in Shoreham Proceeding. Two decisions of significance were issued regarding the Shoreham Nuclear Station prior to the Commission's affirmance in CLI 89-2, 29 NRC 211 (1989), of the Licensing Board's dismissal-of the government intervenors from all Shoreham related proceedings as a sanction for willful disobedience of Board orders (See LBP 88-24, Long Island Lighting Co., 28 NRC 311 (1988)).
Recusal.
In LBP-88 29, two judges considered and rejected motions to recuse themselves from the proceeding for prejudice. While finding that the petitioners lacked standing to seek their recusal. the two Administrative Judges concluded that the seriousness of any motion for recusal and the potential cloud such motions cast on the integrity of a proceeding justified a response notwithstanding the absence of standing. The judges went on to find that the grounds for recusal (i.e., perusive bias or prejudice) must flow from extrajudicial sources, and cannc; be based on the fact that parties disagree with an adverse ruling, even where those rulings reilect strongly held and expressed views by a judge. in the instant case, the petitioner failed to advance any legitimate grounds warranting recusal. 28 NRC 637 (1988).
Emergency Exercise Contentions. In LBP-891, the Licensing Board granted in part and denied in part Intervenors' motion to admit contentions related to the 1988 exercise of the Applicant's offsite emergency plan for the Shoreham Station.
Applying the ALAB 903 two-prong test requiring a showing of a fundamental flaw for exercise contentions, the Board admitted portions of 5 of 20 proffered contentions which asserted, with sufficient basis and specificity, that the 1988 exercise of the Applicant's offsite emergency plan for the Shoreham Station revealed a failure in an essential element of the plan the correction of which required significant revisions in the plan. In reaching this result, the Board admitted or denied portions of contentions which, based on materially similar facts, had been previously admitted or denied in earlier 7
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litigation concerning the similar 1986 exercise. Moreover, because litigation over exercises must be completed within two years under the Commission's rules, something that had proven impossible in connection with the 1986 exercise, the Board certified its decision for immediate appeal in an effort to avoid a continuous circle of litigation. 29 NRC 5 (1989).
Severe Accident Mitigation Design Alternatives SAMDA ' Remand' Litigation Scope Defined.
In LDP 89-19, the Licensing Board defined the kinds of severe accident mitigation design alternatives (SAMDAs) that were proper subjects for litigation under the National Environmental Policy Act (NEPA) following judicial rejection of. the Commission's' policy generically excluding these issues from licensing proceedings. The Board first pointed out that on remand, the Intervenor did not have a right to an entirely new proceeding based on new information.
Rather, it had a right to litigate those aspects of its contention which were originally supported by adequate bases and specificity, and thus would have been considered "but for" the Commission's severe accident policy. Those aspects were SAMDAs aimed at containment heat removal, core residue capture, and venting supported by then current NRC-sponsored studies on severe accident mitigation originally identified by the Intervenor in support of its contention.
Moreover, while new information about originally ident!fied and supported SAMDAs could be considered, new information identifying potentially different SAMDAs could not.
Contentions on newly identified SAMDAs would have to satisfy the Commission's late filed contentions test.
Finally, the Licensing Board concluded that in considering severe accident mitigation issues, only matters focused on reducing the consequence of a severe accident and not matters focusing on reducing the probability of such accidents (e.g., training) were proper. Philadelphia Electric Co. (Limerick),29 NRC 55 (1989).
TMI Accident Generated Water NEPA Burdens Clarified. In LBP-89 7, the Licensing Board approved the TMI proposal to evaporate onsite water generated as a result of the 1979 accident at Three Mile Island and its subsequent cleanup. The Licensing Board first noted that under the National Environmental PoFey Act (NEPA),
it was bound to approve the Applicants' proposal unless another alternative was found to be obviously superior. To assist the Board in making this determination, once an Intervenor satisfied its burden to propose an alternative, the burden shifted to the Applicant to establish by a preponderance of the evidence that the Intervenor's alternative is not obviously superior, Turning the merits of the particular case before it, the Board found that the Intervenors had failed to advance any specific alternative to the Licensee's proposal, and thus were viewed as generally arguing in favor of a "no action" 8
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(i.e., indefinite onsite storage) alternative. Based on a detailed examination of the scientific and health considerations underlying either proposal (including the attendant and competing risks and uncertainties), the Board concluded that while some dose saving through radioactive decay would result after 30 years under the "no action" alternative, the minor benefit of that savings in terms of person rems was outweighed by its estimated costs of over $800,000. In these circumstances, the Intervenors'"no action" alternative was not obviously superior to the Licensees' evaporation proposal.
General Public Utilities Nuclear Corp., 29 NRC 138 (1989).
Informal Proceedings Standing Rules Explained. In LDP 89 23, the Presiding Officer clarified the manner in which the Commission's rules on standing, developed in the context of formal proceedings, should be applied in informal proceedings. While recognizing that the Commission had modified its traditional standing presumptions for use in informal proceedings, the Presiding Officer concluded that the Commission did not intend those modifications to make'it more difficult for a person to intervene in an informal proceeding than in a formai proceeding. Rather, the Commission intended standing to be determined in a flexible manner consistent with the informal nature of the proceeding, and the' amount of information reasonably available locally to assist a person in drafting his or her petition to intervene.
In the case of an informal proceeding, where the amount and scope of publicly and locally available information is less than that available at the start of a formal proceedingc the Presiding Officer held that standing can be shown by a concise statement of how one's interests may plausibly be affected by concerns germane to the proceeding (i.e., concerns falling generally within the range of matters that are subject to, challenge in the proceeding). The merits, if any, of the identified concerns, however, are questions to be resolved later in the proceeding.
Combustion Engineering, Inc., 29 NRC 140 (1989).
. Equal Access To Justice Act: Attorneys Fees Board Retains Jurisdiction and Authority Decided.
In LBP-89-11, the Licensing Board held that it retained authority to issue a declaratory judgment i
notwithstanding a conditional revocation of the immediately effective license suspension order giving rise to the proceeding. The Board went on to hold in a case of first impression that it had authority under the Equal Access to Justice Act (EAJA) to award attorneys fees in appropriate cases to licensees who were successful in whole or in part in defending against proposed staff i
enforcement orders.
While recognizing that the issuance of a declaratory
-judgment was dependent upon the existence of a live controversy, the Board rejected the argument that the conditional revocation of the underlying 9
suspension order rendered the case moot, in the Board's view, the staff's power to directly affect the actions and economic viability of licensees through enforcement orders, the continuing controversy over the facts supporting the original suspension order, and the likelihood that the particular licensee involved could be subject to the same action in the future operated in unison to place this case within the ambit of the exception permitting review where an injury is " capable of repetition, yet evading review." As to attorneys fees, the Board found that the EAJA applied generally to the Commission and specifically to enforcement proceedings.
It went on to reason that since licensees who challenge staff enforcement orders participate before licensing boards as petitioners, congressional restrictions on assistance to intervenors do 1
not limit the Board's otherwise proper authority under the EAJA to award attorneys fees. ' Advanced Afedical Systems, Inc., 29 NRC 3% (1989),
i Drug Use: Operator's License License Revocation Sustained. In LBP 89-26, the Licensing Board sustained,
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~ in a case of-first impression, NRC staff action initially suspending and ultimately refusing to renew a reactor operator's license due to a pattern of off duty marijuana use. The Board first found that the duties of a reactor operator are coinplex und require the continuous exercise of clear judgment.
That being the case, the Board concluded that any impairment of that i
judgment constitutes a threat to public health and. safety.
Based on the i
testimony of medical experts, the Board acknowledged that while the routine duties of a reactor operator might not be affected at all by some levels of l
marijuana, an operator's performance of his or her duties in complex situations would be unpredictable.
Because the Commission must have reasonable assurance that an operator can competently and safely operate a nuclear power t
reactor in. both routine and non routine situations, unpredictability in non-routine situations (e.j;., accident scenarios) due to. marijuana use justifies the suspension and/or revocation an operator's license.' The Board also turned away challenges to. the specific tests used by the licensee to determine marijuana use, claims of passive inhalation of marijuana smoke, and urine sample chain of custody issues, in re Afaurice' P. Acosta, Jr., 29 NRC 195 (1989).
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Ill. FISCAL YEAR 1989 CASELOAD ANALYSIS A. Overview Since November 9,1962, the date the first' Licensing Board was appointed by the Commission, there have been 558 cases filed,540 of which hua been closed by the end of Fiscal Year 1989. After a decade of adjudications since the Three Mile Island accident,- 43 commercial nuclear power reactor units had received operating licenses following ASLBP licensing proceedings. As of the end of the Fiscal Year, only one facility, the Seabrook Nuclear Power, Station, remained the subject of an active ASLBP operating license proceeding.
During Fiscal Year 1989, the ASLBP had 40 proceedings on its docket, the average age of which was 17.4 months. Of that number,22 proceedings involved-13 different nuclear power plants or related facilities, and 18 proceedings involved other Commission licensees.
However, unlike prior years, issues other than reactor operation dominated the ASLBP's proceedings.
B. The Fiscal Year 1989 Docket For proceedings on the Fiscal Year 1989 docket requiring the submission of
- contentions, the Panel or parties resolved 79.5% of all such contentions prior to.
' hearing, held 105 days of hearings (27 prehearing conference days and 78 trial days), and closed 22 proceedings.
In this same period,17 new cases were docketed. The type of new filings in Fiscal Year 1989 continued to reflect the trend identified in Fiscal Year 1987 and Fiscal Year 1988 toward more numerous and focused proceedings of greater technical and legal diversity typical of a maturing heavily-regulated industry.
TABLE 1. Fiscal Year 1989 DOCKET RECAPITUIATION Cases Pending October 1,1988 23 Cases Docketed, Fiscal Year 1989 17 Total Cases, Fiscal Year 1989 40 Cases Closed, Fiscal Year 1989 22 Cases Pending October 1,1989 18 11
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While less than Fiscal Year 1988, the number of new filings in Fiscal Year 1989.
exceeded the number of filings in Fiscal Year 1987, and is significantly lower than the number of new filings expected in each of the next three fiscal years.
Moreover, the Panel continued to close more proceedings than filed during the fiscal year. As a consequence, the total number of proceedings on the ASLBP docket fell to 40, the lowest number this decade. Indeed, as shown by Table 2, the last six years have witnessed a steady decrease in the number of proceedings on the ASLBP docket, with Fiscal Year 1989 representing the greatest drop in any single year. However, based on caseload projections coordinated with the Office
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of the General Counsel, this trend is expected to reverse, perhaps dramatically, in the coming years.
TABLE 2. ASLBP CASELOAD BY FISCAL YEAR Fiscal Year Cases 1991 53(projected) 1990 47(projected) l 1989 40 1988 50 1987 52 1986 58 1985 55 1984 63 The decrease over the last six years in the number of cases on the ASLBP docket has been accompanied by even greater decrease in the number of Panel members.3 Because of this, the average caseload per full time judge has remained relatively constant.
However, as-Figure 1 shows, should future caseload projections prove accurate, both. the complexity and _ number of cases. on the ASLBP's docket will rapidly approach the caseload burden that prompted the Commission to expand the Panel's full time membership in the early 1980's.
3 As of the end of Fiscal Year 1989, the ASLBP had 37 judges (15 full time and 22 part time). In 1982, the Panel had 68 members. Based on actual or expected retirements during the next two fiscal years, it is likely that the Panel will suffer at least an additional 27% decrease in the number of its full time members by the end of FY 1991.
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l 5.0 4.5 4.0 3.5 3.0 Q
ci 2.5 8
2.0 1.5 1.0
.5 O
1984 1985 1986 1987 1988 1989 1990 1993 FISCAL YEAR d
Figure 1. Average Caseload Per Full Time ASLHP Panel Member C. Case Management One measure of success in an adjudicatory program is the speed in which -
individual proceedings move from initial filing to final resolution. This is generally reflected by the average age of the cases;on the docket. Average case age, in turn, is_ a function of two interrelated factors: (1) case filings; and (2) case The average age of proceedings on the Panel's docket has fallen closings.
dramatically over the last four years. In Fiscal Year 1986, the average age of the '
cases on the ASLBP docket was approximately 27 months. In Fiscal Year 1988, that number had fallen to 18.1 months.
As Table 3 shows, the decline in the average age'of ASLBP proceedings has continued into Fiscal Year 1989.
Actual or projected retirements from full-time ASLBP status since d
September 30,1989 were taken into account in determining the Panel's fiscal year staffing level.
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TABLE 3. AVERAGE CASE AGE BY TYPE /OVERALL 8
Type of Case (No. of Cases)
All Cases Ave.
Construction Permit (3) 72 24.0 Decommissioning (1) 71 71.0 i
Enforcement (9) 55 6.1 l
License Amendments (8) 97 12.2 l
Materials License (4) 32 8.0 Operating Licenses (5) 214 42.8 Remand (4) 31 7.8 Special(2) 4 2.0 Suspended (2) 86 43.0 6
DOCKET AVERAGE 662 17.4 While in large part due to a reduction in the number of active operating license proceedings (and the long time periods associated with such cases), the reduction can also be traced to the employment of appropriate case management tools, and i
the active monitoring of discovery activities by parties to focus and efficiently i
resolve disputed issues. Since a low overall caseload tends to over emphasize the impact of a few, lengthy proceedings, the impact of the Panel's case management program is particularly high where, as was the case in Fiscal Year 1989, the number of new filings and the number of total cases on its docket are lower than
. m prior years.
Moreover, the overall average reflected in Table 3 is inflated by the presence j
of a handful of proceedings characterized by late development of new issues, delays in the issuance of critical licensing documents, or delays sought by the parties themselves.. If.these cases (involving' delayed, deferred or, suspended construction permit, operating license, decommissioning or enforcement -
proceedings) are excluded from the average age calculations, the average age of
'1 the remaining proceedings on the Panel's docket drops to only 8.6 months.
i 3 " Average age" means the number of months from the time a Licensing 1
Board is first appointed (usually 30 to 60 days after a license application is formally docketed) until the case is closed or the end of the fiscal year, whichever is earlier. Average age includes waiting time resulting from suspension of work or unavailability of hearing documents (except where a Licensee has requested that the entire proceeding be suspended, for example, Washington Public Power Supply System, WPPS Nuclear Project No.3). " Average age" does not include the time a case may be pending before the Appeal Board or the Commission.
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D. Types of Cases While massive, complex operating license application proceedings dominated the Panel's docket over the last ten years,1989 represented a transitional year between those proceedings and the ASLBP's caseload of the early 1990's: license amendments, decommissioning / decontamination, license renewals, and enforcement actions. For example, Figure 2 represents the Fiscal Year 1983 caseload mix while Figure 3 represents the Fiscal Year 1989 caseload mix.6 OL 47.5%
OTHER PROCEEDINGS 6.6%
SPECIAL PROCEEDINGS 4.9%
Ot.A 20,2%
CP 14.8%
Figure 2. Fiscal Year 1983 ENFORCEMENT 25.7%
UCENSE AMENDMENT 22.9%
CP 8.6%
SUSPENDED 5.7%
REMAND 11.4%
WTERIALS UCENSE 11.4%
OL' 14.3%
Figure 3. Fiscal Year 1989 A comparison of the two figures graphically demonstrates the significant shift in the nature of the cases before the Panel. In Fiscal Year 1983, construction permit and operating license proceedings accounted for 60% of the ASLBP docket. And Categories of proceedings (e.g., enforcement, decommissioning, reactor operator 6
license, etc.) in which less than two cases occurred during a fiscal year were not taken into account in generating Figures 2-5.
15
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while license amendment proceedings were, at 26%, a significant element in the Panel's docket, no significant number of enforcement actions occurred in Fiscal Year 1983. Fiscal Year 1989, in contrast, saw operating licensing and construction permit proceedings constituting but 14% and 9% of the Panel'r docket respectively. Enforcement and license amendment proceedings, on the othe hand, accounted for almost half of the Fiscal Year 1989 ASLBP docket.
Based on caseload projections coordinated with the Office of the General Counsel, the pattern reflected in the Fiscal Year 1989 caseload mix is expected to continue over the next four years with the gradual introduction of increasing numbers of license extension, site selection and standardized design proceedings, and possible renewed action under previously deferred CP and OL applications.
For examp e, Figures 4 and 5 show the projected near-term ASLBP caseload mix.
ENFORCEMENT 26.1%
DECOMMISSIONING 8.7%
LICENSE AMENDMENT 21.7%
SPECIAL 6.5%
REMAND 6.5%
MATERIALS LICENSE 137 OL 8.7%
Figure 4. Fiscal Year 1990 ENf0RCEMENT 31.8%
DECOMMISSIONING 9.1%
LICENSE AMENDMENT 18.2%
SPECIAL 6.8%
REMAND 6.8%
MATERIALS LICENSE 15.9".
OL 4.5%
Figure 5. Fiscal Year 1991 As was the case in Fiscal Year 1989, Enforcement' and License Amendment proceedings are expected to dominate the Panel's near-term docket, with these types of proceedings accounting for 48% of the projected Fiscal Year 1990 docket 16
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and 50% of the projected Fiscal Year 1991 docket. Construction Permit and c
Operating License proceedings, on the other hand, are expected to drop to 13%
of the Panel's Fiscal Year 1990 docket and 5% of its Fiscal Year 1991 docket.
3 Indeed, by Fiscal Year 1991, it is expected that Decommissioning proceedings will l
exceed the combined number of Construction Permit and Operating License proceedings. Finally, consistent with heightened regulatory oversight oy the NRC l
Staff, Materials License and Reactor Operator License proceedings, which i
accounted for 11% of the Fiscal Year 1989 ASLBP docket, will grow in number 1
to constitute 17% and 23% of the Panel's Fiscal Year 1990 and Fiscal Year 1991 dockets respectively.
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Preliminary mid term projections for Fiscal Year 1992 through Fiscal Year 1994 indicated that the caseload mix noted above will continue to be the baseload 'of the ASLBP's docket. However, their relative importance will diminish with the introduction of increasing. numbers of more complex Standardized Design, Decommissioning and License Extension proceedings.
E. Operating Licenses From May 1981 to September 30, 1989, Licensing Boards have authorized or facilitated the issuance of full power operating : licenses for forty three (43) i commercial nuclear power reactors.
These units include Beaver Valley 2, i
Braidwood, Byron 1 and 2, Callaway 1, Catawba 1 and 2, Clinton 1 and 2, l
Comanche Peak 1 and'2, Diablo Canyon 1 and 2, Enrico Fermi 2, Grand Gulf l
1 and 2, Hope Creek, Indian Point 2, Limerick 1 and 2, McGuire 1 and 2, Nine Mile Point 2, Palo Verde 1,2 and 3, Perry 1 and 2, River Bend 1, San Onofre 1 and 2, Shoreham 1, St. Lucie 2, Shearon Harris 1, South Texas 1 and 2, l
Summer 1, Susquehanna 1 and 2, Vogtle 1 and 2,' Waterford 3, and Wolf Creek
- 1. As of the end of the fiscal year, only one nuclear power reactor, the Seabrook Nuclear Station, remained under active consideration by a Licensing Board of the ASLBP.7 F.
Reconstitution The boards assigned to eight proceedings were reconstituted during Fiscal Year During the first quarter of Fiscal Year 1990, the Seabrook Licensing Board 7
completed this proceeding, and issued an initial decision authorizing the Director of the NRC Office of Nuclear Reactor Regulation to grant an full power operating license for the facility.
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-1989 to avoid delay resultant from individual board member's schedule conflicts t
with other cases, retirements, or unavailability due to other reasons.
Reconstitution has also been used in prior years to create multiple boards focusing 1
on different aspects of a single complex proceeding (e.g., an application for an operating license). Such multiple boards shorten the time needed to complete cases by handling multiple issues on parallel time tracks. However, in Fiscal Year 1989, no reconstitution for this latter purpose proved necessary, i
G. Hearings
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i Of the 40 cases on the Panel's Fiscal Year 1989 docket,13 required the conduct of prehearing conferences or hearings between their initial filing and the close of the record or the fiscal year. As reflected in Table 4, these cases collectively t
averaged 8.1 days of hearings by the end of Fiscal Year 1988 (2.1 days of prehearing and 6 days of trial) Significantly, while the average number of trial days decreased over 30% from the average in Fiscal Year 1988, the number of pre hearing days remained constant.
While operating license proceedings are
,certainly a principal contributor to the Panel's hearing day figures, other types of proceedings accounted for over half of the prehearing days in Fiscal Year 1989.
8 Table 4. - Hearing Days i
Type of Proceeding (No.)
Pre-Hearing Total Hearing Construction (2) 8 4
12 Enforcement (3) 3 5>
8 License Amendment (5) 2 11 13 Operating License (1) 11 58 69 Materials Licenses (1) 2 0
2 L
Remand (1) 1 0
1 I
l TOTAL 27
.78 105 l
Average:
2.1 days 6 days 8.1 days As was the case -in Fiscal Year 1988, operating license proceedings, like the I
l heavily litigated Seabrook proceeding are major contributors to the Panel's hearing l
y load However, a comparison of the non operating license proceedings in Fiscal Year 1988 and Fiscal Year 1989 suggest that a possibly significant trend in the l
l
- 8 Number of cases includes only those proceedings which required hearing days, i
Where no prehearing conference or hearing had been required for a particular proceeding prior to the end of the fiscal year, the proceeding was not counted in-developing Table 4, 18
i) r ASLBP's hearing load may have been masked due to the impact of operating i
license proceedings. As noted elsewhere, the ASLBP has employed numerous case management techniques (including early and numerous pre hearing conferences) to. focus and expedite litigation.
Eliminating hearing days associated with operating license proceedings. and remands (which typically involve operating license issues), the average number of pre hearing and trial days per proceeding
)
in Fiscal Year 1988 was 1.1 and 2.4 respectively. In Fiscal Year 1989, those l
average numbers were 1.4 pre hearing days and 1.8 trial days.
This i
contemporaneous increase in average pre-hearing days and decrease in trial days for non operating license proceedings suggests that the Panel's aggressive use of '
pre hearing conferences have contributed to a lower reliance on formal hearings I
to resolve disputes between the parties.
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t IV. PERSONNEL AND SUPPORT A.
Panel Members Commission appointment to the ASLBP is based upon recognized experience, achievement and independence by the appointee's in his or her field of expertise.
Once appointed to the Pand, judges are assigned, as cases arise, to individual Licensing Boards where their professional expertise will assist in resolving the technical and legal matters likely to be raised during the proceeding.
. As of the end of the Fiscal Year, the Panel had available a total of 37 judges (15 full time and 22 part time). See Appendix B. By profession, the judges of the ASLBP included 13 lawyers,11 public health and environmental scientists, 6
- engineers,5 physicists, one medical doctor, and one economist. Collectively, Panel members held. 57 post baccalaureate degrees in engineering, scientific or legal disciplines. Several part time members are or have been heads of departments at major universities or national laboratories. As a group, they represent in excess of eight centuries of experience in the nuclear field.
See Appendix C.
One full time judge retired during Fiscal Year 1989, decreasing the total of full-time judges to fifteen. The number of part-time Panel judges remained the same in Fiscal Year 1989, with Judge Bright continuing as a part-time member of the Panel upon his retirement from full time status, and Judge Hetrick being placed in inactive status for a' period of two years.
No new judges have been appointed to the ASLBP in the last eight years, resulting in a gradual crosion of the Panel as a unique repository of technical / legal expertise available to the Commission. Over the last four years, the Panel's total authorized personnel staffing level has been reduced over 40%,
from 52 as of October 1,1984 to 31 as of September 31, 1989. Over the last eight years, the Panel has suffered a similar decrease in the number of judges.
available for assignment.
Moreover, the depletion rate of the Commission's adjudicatory resource is expected to continue, if not accelerate, as other full-time Panel members exercise their retirement options. The average age of the full-time Panel judges is 60.
The average age of the ASLBP's supplemental adjudicatory resource, the Panel's part time judges, is 70.
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H.
Professional and Support Staff Support for the activities of the ASLBP, individual Licensing Boards, and the Panel's judges is structured along functional lines: (1) legal; (2) technical; and (3) administrative.
The Chief Administrative Judge of the ASLBP manages and supervises these interrelated support activities, 1.
Legal Support Staff Legal support and counsel for the ASLBP and its 37 full-and part time judges is provided by the Panel's Chief Counsel. He furnished advice, legal research, drafting support, and other assistance to Boards in individual cases and to the Chief Administrative Judge on a broad range of legal and policy matters. In addition, Counsel oversees, with the assistance of ASLBP program support staff, the joint ASLBP/ASLAP Library, and participates in the evaluation of computer software and hardware necessary or appropriate to the conduct of adjudicatory proceedings, While the formal law clerk component of the Panel's legal support was terminated in 1986 because of budget cuts, a special counsel was obtained under contract to enable the Seabrook Licensing Board to meet the extraordinary demands created by that heavily litigated proceeding.
2 Technical Support Staff Historically, individual Licensing Boards could obtain technical support from an ASLBP reactor safety engineer and a health scientist However, both positions were vacated in 1984 and were not filled due to personnel ceiling limi:ations, In their place, the Panel used Administrative Judges (Technical), when and if available, to perform these support functions However, during Fiscal Year 1989, technical assistance, particularly in the computer field, was provided by the Panel's Senior Technical Advisor. The Senior Technical Advisor, who transferred to the ASLBP from the Commission's Office of Research at the end of Fiscal Year 1988, provides the Panel with assistance and guidance on a wide range of technical and research issues based on forty years of experience at the Commission and the Argonne National Laboratory.
- 3. Administrative Support Staff (1) Program Support The ASLBP's Program Support and Analysis Staff (PSAS) provides planning, development, coordination, implementation and analyses of policies and programs
'in support of the Panel including budget, personnel, labor relations, professional services, paralegal services, travel, space and facilities, adjudicatory files and services, library facilities, secretarial, and other administrative hearing support to 22
the Panel.
See Appendix A.
In addition, the PSAS maintains the Panel's electronic docket which is available to individual judges and other offices of the Commission through the ASLBP's INQUIRE system. The PSAS also administers the NRC Court Reporting Contract (excluding the Office of the Secretary), See pages 25 29, infm.
(2) Information Processing Section The Chief of the Information Processing Section reports to the Director and Assistant Director.
The section is responsible for development and implementation in support of: (1) Docket management; (2) Mall distribution; (3)
ADP systems; (4)- Panel administration and individual proceedings support (particularly INQUIRE), and (5) providing training in the use of the Panel's computerized systems, including software, hardware, and INQUIRE, See pages 25-27, infm, in addition, this Section is responsible for conducting, in consultation with ASLBP members, legal Counsel and the ASLBP Technical Advisor, periodic evaluations of both the Panel's existing computer system and newly introduced computer hardware and software products.
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't V. ENHANCING THE ADJUDICATORY PROCESS A. General Due to restrictions on support personnel and concerns over the costs of delays in the Commission's licensing process, the Panel has moved rapidly towards achieving the goal of an " electronic" office, particularly in the management of its voluminous and complex hearing records, Important administrative tasks like travel and timekeeping have been computerized.
All the Panel's judges and critical support personnel are provided the necessary hardware and software to permit the full use of their electronic workstation and the Panel's computerized docket.
B. ASLHP Electronic Docket Because of continued restrictions on support personnel and the Panel's ongoing program to reduce ' delays in the Commission's licensing process, the Panel had movedWpidly in prior years towards achieving the goal of an " electronic"" office, particularly m the management of its voluminous and complex hearing records, In Fiscal Year 1989, that goal was reached. Important administrative tasks (e.g.,
travel, timekeeping, etc.) have been computerized All professional and support staff routinely work at individual computer workstations, As presently configured, -
' judges and professional support staff can, from their desk, draft, share and comment on proposed decisions, access and quickly search either the Panel's electronic docket or the Commission's document retrieval system, conduct legal research through LEXIS and/or WESTLAW, and communicate with each other or other employees of the agency through the Commission's electronic mail system.'
' One striking application during the year occurred in the Seabrook case. On-a Friday morning, two weeks into a three month hearing in Boston involving a
$6.5 billion nuclear power plant, the Attorney General of Massachusetts raised an issue that could have stopped the hearing in its tracks and could only be resolved on appeal in Washington, D.C.
It was not clear when the Licensing Board could get counsel for the utilities, an environmental group, two Federal agencies, the states of New Hampshire and Massachusetts, and several towns in both states back together, After two years of hearing preparation, the Licensing 25
1 In an effort to realize the full value of its computerization efforts, the Panel continued to expand and enhance INQUIRE, an electronic docket conceived,
(
developed and maintained by the Panel. INQUIRE, which is composed of an adjudicatory database and a companion search and retrieval interface, currently operates on an IBM 9370 mini computer physically located at the Commission's White Flint One facility. Several offices including the Commission are wired directly to the mini computer containing INQUIRE, thereby permitting quick and continuous access to the system. The Panel is directly connected to the White Flint mini computer through a communications controller located at the Panels' Bethesda offices. Other authorized users may access INQUIRE from any location using a personal computer equipped with a modem.
.By the end of the day on which any document regarding any proceeding is received, the document has ' been abstracted and routinely entered into the
- ASLBP's adjudicatory database. In addition, in selected complex cases, the full text of significant documents such as pre filed testimony and hearing transcripts were electronically indexed and added to the adjudicatory database. As of the close of the Fiscal Year, approximately 100,000 pages of hearing transcripts and related materials had been loaded onto the Panel's adjudicatory database.
Where appropriate, discrete portions of the database concerning a specific proceeding can be loaded onto the hard disk of one of the Panel's portable computers for use by judges conducting hearings in the field.
Finally, all Licensing Board Panel and Atomic Safety and Licensing Appeal Board decisions are added to the adjudicatory database in full text form, generally on the date those decisions are issued.
The Decisions are thus immediately available to all Commission offices in full text.
-Internally, INQUIRE uses a search and retrieval logic similar to that employed by the LEXIS and WESTLAW legal research systems. However, to' permit easy access to the system by a potentially wide range of users with varying degrees of expertise, INQUIRE employs a series of user-friendly form,fillin screen panels.
Board could have faced another extensive delay. However, because of the Panel's electronic docket, the Board could resolve the issue by argument that afternoon.
After several hours of oral presentations, the Board ruled against the movant in some detail from the bench. Within an hour, the court reporter provided the Board with a transcript of the entire argument and ruling on a floppy disk. The Board, with the parties' agreement, used the built in modem in the on site ASLBP portable computer to transmit the transcript to Washington, where it was printed out and filed with the. Atomic Safety and Licensing Appeal Board by close of
. business that afternoon. The appeal was argued by telephone Monday morning, decided that afternoon, and the decision on the Licensing Board's Friday, ling returned to Boston by the same electronic route.
The hearing continued Wednesday morning.
26
Based on information provided by the user through these panels regarding the nature, scope and form of search desired, INQUIRE automatically generates and executes the necessary search and retrieval logic (l.c., commands). In addition, INQUIRE produces formatted and indexed reports according to the user defined layouts providing information about types of documents contained on the system, and particular documents can be downloaded for printing or word processing.
The Panel's electronic docket and its growing experience in the use of such dockets in managing complex cases has been the subject of much interest by other adjudicatory bodies and legal associations-throughout North America.
The ASISP's electronic docket has provided the basis for a course on the use of computers to manage complex cases offered annually by the National Judicial College in Reno, Nevada. Agencies and organizations requesting information and briefings on INQUIRE have included the Department of Agriculture, the Department of Housing and Urban Development, the U.S. District Court for the-District of Columbia, the National Judicial College, the National Labor Relations Board, the New York Public. Utility Commission, and the U.S. Claims Court.
1 Recently, the Chief Administrative Judge of the Panel was asked to address judges, court administrators, and attorneys of the Canadian Institute for the Administration of Justice at their 1989 annual meeting on INQUIRE, its potential uses, and the possibility of employing a similar electronic system to link the rural or isolated judicial districts of Canada.
C. Hearing Procedures In addition to its efforts to computerize the licensing process, the Panel continues, as has been its history, to explore and implement traditiona! case management tools and techniques to streamline,. focus and resolve conuted licensing matters. The hearing on a particular application for a nuclear facility license may be divided into several phases: (1) health, safety, and the common defense and security aspects of the application, as required by the Atomic Energy Act; (2) environmental considerations as required by the National Environmental Policy Act (NEPA); and (3) emergency planning requirements.
Where appropriate, Boards frequently structure their hearing schedul'e into
~
distinct phases, each dealing with discrete groupings of related issues. In the case of a complex proceeding raising numerous issues under several distinct topics, the Panel has periodically created separate, parallel licensing boards to handle one or more topics. Besides the time saved through parallel adjudication, each board can be assigned panel members whose expertise matches the issues to be resolved.
Licensing Boards have also taken an active role in shaping the issues before them through a thorough review and, if appropriate, consolidation of admissible 27
J contentions, an active involvement in monitoring the discovery portion of the proceeding, and an affirmative attempt to foster an atmosphere conducive to the free exchange of views among the parties and to the possible settlement of disputed issues. In this manner, the vast majority of proposed contentions are resolved prior to hearing. As one consequence, an increasing percentage of the Panel's cases or the' contentions raised in those cases have been settled in the last three years.
As the era of initial operating license proceedings for power reactors comes to a close, the Panel is turning its attention to the increasing number of enforcement and informal proceedings on its docket. This caseload reflects the maturing of the nuclear industry from plant licensing to plant operation, and the NRC staff's evolving oversight of over 8,500 materials licensees. Informal proceedings, which typically involve materials licenses, rely heavily on the active involvement by a single Presiding Officer in creating and shaping the record in the proceeding. In such proceedings, a hearing is conducted only as to those issues that the Presiding Officer cannot resolve based on the written submissions by the parties'and any additional information the Presiding Officer deems necessary.
Finally, in the case of proceedings before a single. administrative judge (for example, enforcement proceedings under 10 C.F.R. Subpart B or. informal proceedings under 10 C.F.R. Subpart L), the Panel has adopted a policy of assigning a legal or technical administrative judge from the Panel as an assistant to the designated Presiding Officer. This results in obtaining the benefits of the informal procedures while maintaining the cross expertise of the traditional three-member licensing boards to arrive at fully informed decisions.
D. Coordination with OLSSA The Panel has a keen interest in the electronic licensing file to be developed in connection with the proposed - construction of a high level nuclear waste repository. First, under the Commission's current adjudicatory rules of practice, the ASLBP will be the adjudicatory body responsible for making the initial decision whether the site ultimately chosen and the facility actually built satisfies
' applicable safety and environmental requirements. Second, the ASLBP has already acquired, through its own electronic docket, substantial experience in the development and use of e!cetronic media. Because of the former, the Panel took an active supporting role in the development of the procedural rules and support systems intended to govern the proceeding.
In light of the later, once the Commission adopted special procedural rules intended to govern any waste repository proceeding, the Panel focused it attention on actively sharing its experience and expertise in " electronic dockets" with the Office of the Licensing Support System Administrator (OLSSA), the office created by the Commission to 28
oversee the development of a state-of the art, full text and image computerized document retrieval system to be used by the p.rties and the Panel in conducting the high level waste proceeding. The current schedule calls for the Panel to adjudicate any discovery disputes beginning in 1992 when the first two million documents of an estimated 20 million are loaded in the Licensing Support System's electronic registry. That repository will eliminate the need for all but a minimal amount of discovery in the proceeding.
E Agency Court Reporting Services During Fiscal Year 1989, the Licensing Panel managed the Commission's court reporting contract for all proceedings, meetings, and investigative interviews other than those of the Commission itself held anywhere in the United States. Agency offier wing the court reporting services administered by the Program Support and Analysis staff of the ASLBP include the Appeal Panel (ASLAP); the Advisory Committee on Reactor Safeguards (ACRS); the Advisory Committee on Nuclear Waste (ACNW);. and the Offices of Administration (ADM), Analysis and-Evaluation of Operational Data (AEOD), General Counsel (OGC); Government and Public Affairs (GPA), Information Resowces Management (IRM);
investigations (01), Inspector and Auditor (OIA)," Nuclear Materials Safety and Safeguards (NMSS), Nuclear Reactor Regulation (NRR), and Personnel (OP).
The ASLBP court reporting contract provides for computer readable diskettes of the transcript of the hearing in large, complex cases, in the appropriate case, parties are directed to file findings of fact, conclusions of law, and pre filed testimony on computer readable diskettes.
Such filings are in ASCll (the American Standard Code for Information Exchange) to overcome the problem of incompatible computers and software. Each day's filings are them compiled and fully indexed by the PSAS's Information Processing Section, usually a half hour task.
In addition, with an eye to incorporating developing court reporting techniques, the ASLUP ensured that the agency's ' court reporting contract authorized the use of computer assisted transcripts which display a written version of testimony on computer screen essentially as it is given in selected test cases of the agency's choosing.More than 69,000 transcript pages (originals) were generated and examined for accuracy and billing in Fiscal Year 1989 under the ASLBP-managed court reporting contract.
1 During FY 1989, legislation became effective which abolished this Commission-level office, and replaced it with an independent statutory Inspector General. However, the ASLBP continues to provide court reporting services to the Office of the Inspector
' General.
29
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)
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1
VI. CONCLUSIONS A.
1989 in Retrospect Fiscal Year 1989 represented a transitional year between the massive operating license proceedings of the 1980's and the more varied, discrete enforcement and materials license proceedings of the early 1990's. As predicted, the number of cases on the ASLBP docket fell in 1989. This reduction in the ASLBP's overall docket resulted from two factors. First, a reduction in the ASLBP's caseload, both in terms of numbers and average age, has been a overall goal of the Panel's management. The size of the ASLBP's Fiscal Year 1989 docket reflects, in part, the Panel's success in this area by consistently closing more cases than filed, and by expediting litigation of proceedings while they remain active on the ASLBP docket. Second, the rate and type of new filings in Fiscal Year 1989, while still greater than many prior years, decreased from that in Fiscal Year 1988. This trend, expected to be transitory, when combined with the Panel's case closure rate, produced the lowest ASLBP caseload of this decade.
However, the ASLBP's Fiscal Year 1989 docket also reflects the maturing of the nuclear industry and its transition from the construction / initial operation era of the 1970's and 1980's to the operation / license renewal / waste handling era of the 1990's.
Given the increasing elimination of first generation operating license proceedings' as a major factor in the Panel's caseload, the Fiscal Year 1989 caseload could reasonably be viewed as the Commission's adjudicatory "baseload" (i.e., the number and type of cases likely to occur in any particular year given the current number and operations of the Commission's licensees). So viewed, the ASLBP's Fiscal Year 1989 docket can be used to gauge future demands on the adjudicatory resources of the Commission in light of new or enhanced regulatory programs (e.g.,
materials licensee' oversight, enforcement, interim waste handling / storage, and decontamination), or the initiation of a second generation of nuclear power reactor licensing proceedings (e.g., advanced designs and renewed p
CP/OL proceedings).
B.
1990 and Beyond l
Currently, the Commission is responsible for the regulation of 110 nuclear power reactors. In addition, over the next few years, it must license and monitor over 31 Li 1-- --
L--
i i
50,000 devices manufactured per year under General Nuclear Licenses, some 8,500 materials licensees (including their sites of operation), and some 2.75 million nuclear material shipments. This regulatory base alone creates the potential for significant demands on the adjudicatory resources of the Commission. Ilowever, based on projected NRC Staff licensing activities and workload assessments by the Office of the General Counsel, the Commission's regulatory and licensing activities, and thus the ASLBP's docket, will not remain static. Indeed, the Commission appears to be on the cusp of a new era of regulatory and licensing activity.
In the coming years, the Commission must also began to focus its regulatory and licensing resources on waste handling and storage issues, plant license extensions, and the issues associated with the approval of advanced reactor designs, in addition, with the growing acceptance of nuclear power in light of a balancing of the environmental impacts of other forms of energy production, it is not unreasonable to forecast a new round of construction permit applications employing advanced reactor designs, or renewals of previously deferred facilities.
Moreover, even given the projected increase in its docket, the ASLBP may be
. an under-utilized adjudicatory resource.
In several areas (security clearances, personnel, and EEO), the Commission looks to outside hearing examiners or judges to preside over some necessary proceedings. Yet, the members of the ASLUP, several members of which are certified Administrative Law Judges or have specific experience in these non licensing areas, remain an untapped source of experienced and impartial judges. The use of members of the Panel to conduct such proceedings would not only eliminate concerns regarding the use of non-government employees to make discretionary policy decisions, but could also result in cost savings due to the elimination of duplicitous administrative overhead and contractor expenses.
C. Meeting the Adjudicatory Demands of the Next Decade
.Given the economic, energy and public health and safety costs imposed upon Commission applicants, licensees and the public at large in the event of unnecessary or avoidable delays in the nuclear licensing and enforcement process, it is critical that the Commission's adjudicatory process incorporate the most efficient procedural rules possible.
On the other hand, the legitimacy of the licensing process itself is in large degree d: pendent upon the ability of applicants, licensees, and affected members of the public to fully and fairly exercise their full panoply of hearing rights (whether formal or informal) before the Commission's adjudicatory bodies.
Regulatory amendments to streamline and simplify the Commission's current rules of practice, developed years ago in the context of licensing a new technology, could play an important role in reducing unnecessary delays and confusion in the significantly different regulatory and licensing 32 e
a
ta +
atmosphere of the future. Towards that end, the Panel itself has developed and implemented (either as internal case management policies or as proposed amendments to 10 C.F.R. Part 2), hearing practices and proposed rules designed to. enhance, clarify and expedite the Commission's adjudicatory process.
However, no licensing process can realize the potential of streamlined rules in the absence of adequate numbers of experienced judges to interpret and apply those rules. Yet, in light of the continued reduction in the raaks of the Panel's judicial work force, a trend likely to accelerate, the Panel's cadre of experienced technical / legal judges may be hard pressed to efficiently satisfy the competing and increasing adjudicatory demands expected during the next decade. Not only could case management become a particularly challenging task due to the availability of fewer judges, the ability of the Panel as a whole to deal efficiently with the new and different technical issues of future proceedings could be severely impacted due to a reduction in the depth and range of expertise represented by the judges remaining on the Panel. Because " seasoned" ASLBP judges require a period of on the job training and experience to develop an appreciation for both the legal and technical aspects of the Commission's adjudicatory decision making process, it is imperative that judicial resources be developed with an eye towards future -
caseload demands.
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APPENDICES a
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Appendix B ATOMIC iAFETY AND LICENSING BOARD PANEL Fiscal Year 1988 5
- 1. PANEL MEMBERS A. Omeers B. PAUL COTTER, JR.
Chief Administrative Judge DR. ROBERT M. LAZO Deputy Chief Administrative Judge (Executive)
FREDERICK J. SliON Deputy Chief Administrative Judge (Technical)
IVAN W. SMITH Chief Administrative Law Judge H.
Full Time Administrative Jud es 3
JUDGE CilARLES BEClli-lOEFER JUDGE PETER BLOCH Attorney Attorney JUDGE GLENN O. BRIGHT JUDGE J.tMES H. CARPENTER Engineer (Retired Dec. 31, 1989)
Oceanographer JUDGE RICilARD R. COLE JUDGE JOHN H. FRYE,111 Environmental Scientist Attorney 1 All ASLBP Officer, professional and administrative staff and full time Panel members are based in Bethesda, Maryland.
B1 l
m IlN I
I II JUDGE JERRY llARBOUR JUDGE ilELEN F. IiOYT Geologist Attorney (Retired Dec.1,1989)
JUDGE JERRY R. KLINE JUDGE GUSTAVE LINENBERGER Environmental Scientist Physicist JUDGE MORTON B. MARGULIES JUDGE OSCAR H. PARIS Attorney Environmental Scientist C. Part Time Administrative Judges JUDGE GEORGE C. ' ANDERSON JUDGE A. DIXON CALLillAN Marine Biologist Physicist Seattle, Washington Oak Ridge, Tennessee JUDGE GEORGE A. FERGUSON JUDGE IIARRY FOREMAN Physicist Physician Washington, DC Minneapolis, Minnesota JUDGE RICHARD F. FOSTER JUDGE JAMES P. GLEASON Environmental Scientist Attorney Sunriver, Oregon Silver Spring, Maryland JUDGE CADET II. HAND, JR.
JUDGE ERNEST E.111LL Marine Biologist Nuclear Engineer Bodega Bay, California Damille, California JUDGE FRANK F. HOOPER JUDGE ELIZABETH B. JOIINSON Marine Biologist Nuclear Engineer Ann Arbor, Michigan Oak Ridge, Tennessee JUDGE WALTER H. JORDAN JUDGE MICHAEL KIRK DUGGAN Physicist Economist Pompano Beach, Florida Austin, Texas JUDGE JAMES C. LAMB, Ill JUDGE EMMETH A. LUEBKE Sanitary Engineer Physicist Chapel Hill, North Carolina Bethesda, Maryland JUDGE KENNETH A. MCCOLLOM JUOGE GARY L. MILHOLLIN Electrical Engineer Attorney Stillwater, Oklahoma Madison, Wisconsin B2 S
JUDGE MARSHALL E. MILLER JUDGE DAVID R. SCHINK Attorney Oceanographer Daytona Beach, Florida College Station, Texas JUDGE MARTIN J. STEINDLER JUDGE SEYMOUR WENNER Chemist Attorney Argonne, Illinois Chevy Chase, Maryland JUDGE SHELDON J. WOLFE Attorne Fairfax, Vi inla
- 11. PROFESSIONAL STAFF C. SEBASTIAN ALOOT, Director and Chief Counsel, Technical and Legal Support Staff DR. CHARLES N. KELBER, Senior Technical Advisor ROBERT R. PIERCE, Counsel, Seabrook Licensing Board III. ADMINISTRATIVE OFFICERS CHARLES J. FITTI, Director, Program Support and Analysis Staff ELVA W. LEINS, Assistant Director, Program Support and Analysis Staff JACK G. WHE'!3 TINE, Chief, Information Processing Section B3
Appendlx C BIOGRAPHICAL SKETCHES ANDERSON, GEORGE, C.
B.S., University of British Columbia (1947);
M.A.,
University of British Columbia (1949)t Ph.D.,
University of Washington (1954). Dr. Anderson, currently Professor Emeritus at the School of Oceanography, University of Washington, has been a part time member of the ASLBP since 1973. In addition to authoring over 40 publications in the fields of limnolagy and oceanography, Dr. Anderson has held numerous teaching, research, and administrative positions over his forty year career with the I
University of Washington, the AEC and the National Science Foundation.
He was Director of the University's School of Oceanography for several years.
l UECH110EFER, CHARLES.
A.B. magna cum laude, Harvard i
College (1955); LLB., Harvard Law School (1958).
Judge Bechhoefer has been a full time legal member of the ASLBP since 1978. Prior to being appointed to the ASLBP, his federal service included positions as Counsel to the Atomic Safety and Licensing Appeal Board, attorney with the Office of the General Counsel of the AEC, and attorney adviser in the Office of the General Counsel, i
U.S. Housing and Home Finance Agency.
He is currently the Editor of the Administrative Judiciary News and Journal of the National Conference of Administrative Law Judges, and has held severalleadership positions within the Section of Administrative Law of the American Bar Association.
BLOCH, PETER B.
B.S., Tufts University (1962); LLB, Harvard Law School (1965); LLM., Harvard Law School (1967).
Judge Bloch has been a full time member of the ASLBP since 1981. His prior positions include Assistant Director of the Office of Hearings and Appeals, U.S. Department of Energy, Attorney Advisor, Office of Opinions and Review, FERC, Executive Director of the Commission on Law and the Economy of the American Bar Association, Senior Research Associate and Project Manager, the Urban Institute, and Attorney Adviser, U.S. Securities and Exchange Commission.
Judge Bloch has authored several articles on the conduct and management of criminal investigations.
l BRIGHT, GLENN O.
B.S., University of Oklahoma (1949); M.S.,
University of Oklahoma (1950). Judge Bright has been a full time
'i C1
1
\\
member of the ASLBP since 1972. Prior to his appointment to the Panel, he spent 22 years with the Phillips Petroleum Company or its successor subsidiaries in various technical and management positions overseeing nuclear matters, including one year as a technical consultant to the Government of Venezuela, and several years at the Idaho National Engineering Laboratory in charge of experiments for SPERT I and SPERT 11.
CALLIHAN, A. DlXON. A.B., Marshal College (1928); M.A., Duke University (1931); Ph.D., New York University (1933); D.Sc.(Hon.),
Marshall University (1961).
Dr. Callihan has been a part time member of the ASLDP since 1963. In his 54 year career, he has held positions as a physicist with the Union Carbide Corporation and Columbia University, and Assistant Professor at the College of the City of New York.
Dr. Callihan is currently the Chairman or member of several committees concerning nuclear reactor operations for the United States Army, and the American Nuclear Society, in 1988, he was awarded the American National Standards Institute's Meritorious Service Award.
CARPENTER, JAMES H.
B.J,, University of Virginia (1949);
M.A., Johns llopkins University (1951); Ph.D., Johns Hopkins University (1957). Dr. Carpenter has been a member of the ASLBP since 1981. In addition to numerous publications in the areas of marine science and environmental chemistry and research activities for the Chesapeake Bay Institute, Dr. Carpenter has held teaching and administrative positions with Johns Hopkins University and the University of Miami. During his 31 year career, Dr. Carpenter has been on the editorial boards of several national journals, held senior positions in several professional associations, and chaired or participated on numerous professional committees on environmental issues, particularly the marine environment. Dr. Carpenter was a member of the Committee that issued the BEIR I report.
L COLE, RICilARD F. B.S.C.E., Drexel University (1959); M.S.S.E, Massachusetts Institute of Technology (1961); Ph.D., University of North Carolina (1968). Dr. Cole has been a full time member of the ASLBP since 1973. In addition to numerous articles on water, wastewater treatment, and international training of environmental engineering, Dr. Cole has held teaching, administrative, or engineering positions in the United States and Guatemala with the University of North Carolina, Pennsylvania State University, and the State of Pennsylvania. He has held several leadership positions and committee assignments with numerous professional associations, and is a Diplomate of the American Academy of Environmental Engineers.
C-2
l CO' ITER, B. PAUI, JR.
A.B., Princeton University (1959); J.D.,
Georgetown University (1968). Judge Cotter has been the Chief Administrative Judge of the ASLBP since 1980.
Prior to his appointment to head the Panel, Judge Cotter was a member and then Chief Administrative Judge of the Department of flousing and Urban Development Board of Contract Appeals, a trial attorney with the U.S. Department of Transportation, and in private practice for six years, lie is a faculty member of the National Judicial College, a member of the American Law Institute, a recognized leader in the use of computers in managing complex cases, and has held several leadership positions with the National Conference of Administrative 1.aw Judges, the American Bar Association, and the Federal Bar Association.
FERGUSON, GEORGE A. B.S.,110 ward University (1947); M.S.,
110 ward University (1948); Ph.D., Catholle University (1965). Dr.
Ferguson has been a part time member of the ASLBP since 1972.
During his 38 year career, he has held teaching, administrative and research positions with lioward University, the U.S. Naval Research Laboratory, the University of Pennsylvania, and Clark College where he was Chairman of the Physics Department. Dr. Ferguson is a member of the American Physical Society and several teaching associations.
FOREMAN, liARRY.
B.S., Antioch College (1938); Ph.D., Ohio State University (1942); M.D., University of California (1947). Dr.
Foreman has been a part time member of the ASLBP since 1971.
In addition to authoring numerous professional papers in the biological and chemical fields, Dr. Foreman has held teaching, administrative and research positions with the University of Minnesota and the University of California, the latter involving work in the area of radiation and biomedical research at Los Alamos.
FOSTER, RICliARD F.
B.S., University of Washington (1938);
Ph.D., University of Washington (1948). Dr. Foster has been a part-time member of the ASLBP since 1981. Dr. Foster is the author of numerous professional papers on the discharge of heat and radionuclides into water pathways, and has headed or participated on several panels and committees on radiation and the environment for, among others, the U.S. Public l-lealth Service, the National Academy of Sciences, the In;mational Atomic Energy Agency, and the NRC Advisory Committee on Reactor Safeguards. During his 40 year career. Dr. Foster has also held research and management positions 'vith the State of Washington, the University of Washington, and numerous Laboratories and companies at the lianford Washington facili:y, C3
FRYE, JOliN H.,111.
A.B., Davidson College (1958); LLB.,
Vanderbilt University (1965).
Judge Frye has been a full time member of de ASLBP since 1981. Prior to his appointment to the Panel, Judge Frye was the Counsel to the Panel and was in private practice in Washington DC for eight years. lie has held leadership positions with numerous committees of the Federal Bar Association, and has published in various law journals.
GLEASON, JAMES P. B.S.S., Georgetown University (1948); LLB.,
Georgetown University (1950).
Judge Gleason has been a part-time member of the ASLBP since 1980 and held a similar appointment from 1967 1970.
During his 37 year career, Judge Gleason has held numerous elective and appointive offices at the county, state and federal level, taught at the University of Maryland and Harvard University, maintained a private law and consultant practice, and served as an aide to two U.S. Senators, i
HAND, CADET H., JR.
B.S., University of Connecticut (1946),
M.A., University of California, Berkeley (1948); Ph.D., University of
)
California, Berkeley (1951). Dr. Hand hss been a part time member l
of the ASLBP since 1971. Currently Emeritus Professor and Emeritus Director of the University of California Bodega Marine Laboratory, Dr. liand has held teaching, research and administrative positions with Mills College, the Scripps Institution of Oceanography, the University of California, Berkeley, and the University of California,
- Davis, liARBOUR, JERRY. B.A., University of New Mexico (1951); M.S.
University of New Mexico (1958); Ph.D., University of Arizona (1966). Dr. Harbour has been a full time member of the ASLBP since 1981. In addition to publishing numerous articles in the field j
of geology, Dr. Harbour has held geologist and research positions at a number of Federal Government departments and agencies, 1
including the U.S. Geological Survey, the Institute for Defense 1
Analyses, the AEC and the NRC.
HILL, ERNEST E.
B.S., University of California, Berkeley (1943);
M.S., University of California, Berkeley (1959). Judge Hill has been a part time member of the ASLBP since 1972.
Currently the President of Hill Associates, a nuclear engineering consulting company, Judge Hill has held numerous nuclear engineer and management positions with the AEC and the Lawrence Livermore National Laboratory.
i HOOPER, FRANK F.
B.A., University of California (1939); Ph.D.,
University of Minnesota (1948). Dr. Hooper has been a part time member of the ASLBP since 1973. Currently a Professor Emeritus C-4 A
/
at the University of Michigan, Dr. Hooper has held teaching and administrative positions at the University of Michigan, the Institute for Fisheries Research, and the University of Minnesota. In 1%2-63 and again in 1966, Dr. Hooper was an aquatic ecologist with the AEC.
From 1979 to 1988, he was Chairman of the Ecology, Fisheries and Wildlife Program in the School of Natural Resources. at the University of Michigan.
HOYT, HELEN F.
A.B., University of Georgia (1949); LLB.,
Emory University (1951). Judge Hoyt has been a full time member of the ASLBP smce 1981. Prior to her appointment to the Panel, Judge Hoyt was an Administrative Law Judge and Senior Trial Attorney with the Interstate Commerce Commission. Judge Hoyt also served in the Air Force for ten years, rising to the position of Air Force Judge Advocate General for Turkey. She is a member of and has held various leadership positions in a broad range of bar associations and professional societies.
JOHNSON, ELIZ,ABETH B.
B.S., Western Kentucky University (1943); M.S., Vanderbilt University (1952). Judge Johnson has been a part time member of the ASLBP since 1975. Currently on the staff of the Instrumentation & Controls Division of the Oak Ridge National laboratory, Judge Johnson has held physicist and engineer positions on various Union Carbide Corporation nuclear projects at Oak Ridge and elsewhere, and was a research assistant with the Manhattan Project.
During her 44 year career, Judge Johnson published numerous AEC and professional papers, principally concerned with reactor experiments and nuclear criticality.
JORDAN, WALTER H.
A.B., University of Oklahoma (1930);
M.S., University of Oklahoma (1931); Ph.D., California Institute of Technology (1934). Dr. Jordan has been a part time member of the ASLBP since 1970. Dr. Jordan is the author of numerous articles, professional papers and books in the nuclear and radar field, and is a Fellow of the American Nuclear Society and the American Physical Society, in addition to teaching positions at the University of South Dakota and the University of Tennessee, Dr. Jordan spent twenty seven years at the Oak Ridge National Laboratory in various research and management positions, ending his long tenure there as its Deputy Director.
KIRK DUGGAN, MICHAEL A.
B.S., College of the Holy Cross (1953); J.D., Boston College (1956); M.P.L, Georgetown University (1959). Judge Kirk Duggan has been a part time member of the ASLBP since 1972.
Currently a Professor in Business Law and Computer Sciences at the University of Texas, Judge Kirk Duggan C5 F
....?,,--...
has held teaching, engineer and attorney positions with the University of New Hampshire, Sylvania Data Systems, and the Antitrust Division of the L).S. Department of Justice. Judge Kirk-Duggan is on the editorial staff of several national journals and is the author of four books and over 875 articles, case comments, monographs, and reviews in the areas of economics, antitrust, law, and computer science.
KLINE, JERRY R.
B.S., University of Minnesota (1957); M.S.,
University of Minnesota (1960); Ph.D., University of Minnesota (1964). Dr. Kline has been a full time member of the ASLBP since 1980. Prior to his appointment to the Panel, Dr. Kline held various research and management positions with the Puerto Rico Nuclear Center, the Argonne National Laboratory, the AEC and the NRC.
He is the author of numerous scientific papers and reports in the fields of radio-ecology and soll science.
LAMB, JAMES C., III. B.S.C.E., Virginia Military Institute (1947);
M.S.,
Massachusetts Institute of Technology (1952);
Sc D.,
Massachusetts Institute of Technology (1953). Dr. bmb has been a part time member of the ASLBP since 1974.
Currently a Distinguished Visiting Professor of Civil Engineering at George Washington University and Professor of Sanitary Engineering at the University of North Carolina, Dr. Lamb has also held teaching, engineer, management and research positions in private industry, the University of North Carolina, Massachusetts Inst tute of Technology, and Newark College of Engineering, i
LAZO, ROBERT M.
B.S., University of Alberta (1946); M.A.,
University of British Columbia (1950); Ph.D., University of Notre Dame (1954); J.D., Rutgers University (1958). Dr. Lazo has been a member of the ASLBP since 1970, first in a part time capacity and, since 1972, in a full time capacity. Between 1977 80, he served as the Executive Secretary of the Panel, and since 1980, as its Deputy Chief Administrative Judge. Prior to joining the Panel as a 4
full time member, Dr. lazo maintained a private legal prutice and had been a member of the Patent Departments of both Standard Oil of New Jersey and Bell Telephone Laboratories.
LINENBERGER, GUSTAVE A. B.A with honors, Rice University (1941). Judge Linenberger has been a full time member of the ASLBP since 1972. Prior to his appcintment to the Panel, Judge Linenberger was the President and Board Chairman of Southern Nuclear Engineering, and held several senior manegement positions with Aerojet General Corporation. In addition, Judge Linenberger was a staff physicist with the les Alamos Scientific Laboratory (1943
-1956) and the Manhattan District Project of the University of C-6 m
California Radiation Laboratory.
LUEBKE, EMMETil A.
B.A., Ripon College (1936); Ph.D.,
University of Illinois (1941).
Dr. Luebke has been a full time member of the ASLBP since 1972.
A Fellow of the American Nucar Society and recipient of a Presidential Certificate of Merit for Microwave Radar Research, Dr. Luebke sxnt 27 years in private industry involved in the design, testing anc operation d nuclear power plants for submarines.
Beforc that, he held a teaching position at the University of Illinois and a research leader position at the Massachusetts Institute of Technology.
McCOLLOM, KENNETil A.
B.S., Oklabama State University (1948);
M.S., University of Illinois (1949); Ph.D., Iowa State University (1964). Dr. McCollom has been a part time member of the ASLUP since 1972. He is currently Dean and Professor Emeritus of the College of Engineering, Architecture and Technology, Oklahoma State University. During his 39 year career, he bas held teaching, research and administrative positions with the Oklahoma State University, Iowa State Univers ty, and the Atomic Energy Division of Phillips Petroleum Company. In addition, he has held numerous leadership positions with several professional associations and the Oklahoma Board of Registration for Engineers and Land Surveyors.
MARGULIES, MORTON B.
B.A., Brooklyn College (1953); J.D.,
Brooklyn Law School (1954). Judge Margulies has been a full time member of the ASLBp since 1982. Prior to his appointment to the Panel, Judge Margulies served as an Administrative I.aw Judge (1969-1982), Regional Counsel and Trial Attorney for the Interstate Commerce Commission, and as a member of the Army Judge Advocate General's Corps.
MILHOLLIN, GARY L B.S., Purdue University (1961); J.D.,
Georgetown University (1965); J.S.D., Columbia University (1970).
Judge Mllhollin, currently a Professor of Law at the University of Wisconsin School of Law, Madison, Wisconsin, has been a part time member of the Panel since 1976. Previously, he held a teaching position at the Catholic University of America School of Law, was a Regional Attorney fer the U.S. Office of Economic Opportunity, and engaged in the private practice of law.
MILLER, MARSHALL E. A.B. with honors, University of Illinois (1935); LLB., University of Illinois (1937). Judge Miller was a full-time member of the ASLBP (19741985) and has been a part time member since 1985. Judge Miller was an Administrative Utw Judge for the U.S. Department of Labor for 11 years and previously a C-7 l
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partner for 15 years in the Washington, DC law firm of Danzansky
& Dickey. He is the author of several books on legal practice.
PARIS, OSCAR H.
A.B., University of North Carolina (1953);
)
M.A., University of North Carolina (1956); Ph.D., University of l
California, Berkeley (1960). Dr. Paris has been a full time rnember of the ASLBP since 1976. Prior to his appointment to the Panel, Dr. Paris held teaching, research and management positions with the University of Wyoming, University of California, Berheley, e.nd University of North Carolina. Dr. Paris is the author of numerous papers, reports and reviews on such topics as population ecology, radiation ecology, adjudication of scientific evidence, and the biological effects of ionizing radiation.
SCHINK, DAVID R.
B.A.,
Pomona College (1952);
M.S.,
University of California, les Angeles (1953);
M.S.,
Stanford i
University (1958); Ph.D., University of California, San Diego (1964).
Dr. Schink has been a part time member of the ASLBP s nee 1974 Currently a Professor of Oceanography and formerly the Associate i
Dean of the College of Geosciences at Texas A&M University, Dr.
Schink is the author of monographs and professional papers on l
l marine geochemistry, silicon, radium, radon, and early digenesis. Dr.
Schink has also held teaching and research positions at the Palo 1
l Alto Laboratory, Teledyne isotopes, University of Rhode Island, i
Scrip?s Institute of Oceanography, and Stanford University.
In addit on, Dr. Schink has served on several Advisory Panels for the National Science Foundation and the United Nations.
SHON, FREDERICK J. - B.S., Columbia University. Judge Shon has been a full time member of the ASLUP since 1972 and currently serves as its Deputy Chief Administrative Judge (Technical). Prior to his appointment to the Panel, Judge Shon held management positions with the AEC, and served as a physicist with the Lawrence Radiation Laboratory and several cor3 orations within the nuclear industry. Judge Shon has also servec as a consultant on reactor safety to the Spanish and Danish AEC's, and taught nuclear engineering at the University of California, Berkeley.
SMITH, IVAN W.
Pre Law, Ohio State University, Mexico City College, Kent State University (1946-48); J.D.. Wm. McKinley School of Law (1952). Currently Chief Administrepve Law Judge, Judge Smith as been a full time member of the ASLBP since 1975. Prior to his appointment to the Panel, Judge Smith served as an j
Administrative Law Judge for the Social Security Administration, i
Trial Attorney with the Federal Trade Commission, Deputy Director i
of the Ohio Department of Liquor Control, and engaged in the private practice of law.
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= i STEINDLER, MARTIN J.
Ph.B., University of Chicago (1947);
B.S., University of Chicago (1948); M.S., University of Chicago (1949); Ph.D., University of Chicago (1952). Dr. Steindler has been a part time member of the ASLBP since 1973. In addition, he has held chemist.and management positions during a 35 year career at the Argonne National Laboratory. Prior to that, Dr. Steindler was a research assistant with the U.S. Navy Inorganic Project. Currently, he is a member of the NRC's Advisory Committee on Reactor Safeguards.
WENNER, SEYMOUR.
A.B., liarvard College (1933); LLB.,
Harvard Law School (1937). Judge Wenner has been a part time member of the ASLBP since 1978. In addition, he is currently a mediator for the District of Columbia Sumerlor Court and a member of the Arbitration Panel of the New Yor < Stock Exchange. Prior to his appointment to the Panel, Judge Wenner's 44 years of Government service included 25 years as a hearing examiner, Administrative Law Judge, or Chief Administrative Hearing Officer for the Interstate Commerce Commission, Federal Power Commission, Federal Reserve Board, and the Bonneville Power Administrations.
WOLFE, SHELDON J.
A.B., liarvard University (1942); LLB.,
Georgetown University (1956). Judge Wolfe was a full time member of the ASLUP between 1976 and 1988, when he assumed part time status with the Panel. Prior to his appointment to the Panel, Judge Wolfe was a partner in Coal Mines Equipment Sales Company of Terre Haute, Indiana, an attorney with the Civil Aeronautics Board, and, for 20 years, a Trial Attorney with the Civil Division of the U.S Department of Justice.
C9 i
Appendix D SELECTED ISSUANCES OF THE ATOMIC SAFETY AND LICENSING HOARDS October 1,1988 to September 30,1989 i
l ADVANCED MEDICAL SYSTEMS (One Factory Row, Geneva, Ohio 44041),
Docket 3016055 SP Memorandum and Order, LUP 8911,29 NRC 306 (March 21,1989)
ALL CllEMICAL ISOTOPE ENRICilMENT, INC. (AlChemlE Facility 1 CPDF/
AIChemlE Facility 2, Oliver Springs), Dockets 50-603 CP/OL,50-604 CP initial Decision,.LBP 89 5,29 NRC 99 (February 1,1989)
COMBUSTION ENGINEERING, INC. (Hematite Fuel Fabrication Facility),
Docket 70 36 MLA Memorandum and Order, LDP 89 23,30 NRC 140 (August 18, 1989) l Memorandum and Order, LDP 89 25,30 NRC 187 (September 25, 1989)
EDWARD HINES, JR. MEDICAL CENTER (Veterans Administration), Docket 301391 SC Order, ALI 88 2, 28 NRC 477 (October 7,1988)
FLORIDA POWER & LIGilT COMPANY (St. Lucie Nuclear Power Plant, Unit 1),1)ocket 50 335 OLA Memorandum and Order, LBP 88 27, 28 NRC 455 (October 14, 1988)
Initial Decision, LUP 8912,29 NRC 441 (May 9,'1989)
FLORIDA POWER & LIGilT COMPANY (Turkey Point Nuclear Generating Plant, Units 3 and 4), Dockets 50-250-OLA 4,50 251 OLA 4 Memorandum and Order, LUP 8915,29 NRC 493 (June 8,1989)
GENERAL PUBLIC UTILITIES NUCLEAR POWER CORPORATION, et al.
(Three Mile Island Nuclear Power Station, Unit 2), Docket 50 320-OLA Final Initial Decision, LBP 89 7,29 NRC 138 (February 2,1989)
D1 gw
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Il&G INSPECTION COMPANY, INC., Docket 30-29319 Order, ALJ 891,29 NRC 319 (January 9,1989)
KERR McGEE CllEMICAL CORPORATION (West Chicago Rare Earths Facility), Docket 40 2061 ML Memorandum and Order, LBP-89-16,29 NRC 508 (June 22,1989)
LONG ISLAND LIGilTING COMPANY (Shoreham Nuclear Power Station, Unit 1), Dockets 50 322 OL 3/50 322 OL-5R/50-322 OL 6 Order, LBP 88 29,28 NRC 637 (November 21, 1988)
Memorandum and Order, LDP 88 30,28 NRC 644 (November 21, 1988)
Memorandum and Order, LUP-891,20 NRC 5 (January 3,1989) l MAURICE P. ACOSTA, JR, (Reactor Operator License for San Onofre Nuclear i
Generating Station, Units 2 and 3), Docket 55 08347 Initial Decision, LBP-89 26,30 NRC 195 (September 28, 1989)
PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2), Dockets 50 275-OLA,50-323 OLA Memorandum and Order, LBP 89 20,30 NRC 65 (July 28,1989)
PIllLADELPillA ELECTRIC COMPANY (Limerick Generating Station, Units I
and 2), Dockets 50 352 OL/50 353 OL/50-352 OL-2/50-353 OL-2 Memorandum and Order, LBP-8914,29 NRC 487 (June 2,'1989)
Memorandum and Order, LDP 8919,30 NRC 55 (July 18,1989)
Memorandum and Order, LBP 89 22,30 NRC 137 (August 11, 1989)
Memorandum and Order, LDP 89 24,30 NRC 152 (August 30, 1989)
PRECISION LOGGING & PERFORATING COMPANY, Docket 30 19498 l
Order, ALJ 89-2,29 NRC 322 (March 15,1989)
)
PUBLIC SERVICE COMPANY OF NEW 1-IAMPSHIRE, et al. (Seabrook Station, Units 1 and 2), Dockets 50-443 OL/50-444 OL/50-443 OL-1/
50-444 OL-1/50-443 OL-1R2/50-444 OL-1R2 Memorandum and Order, LBP 88 28,28 NRC 537 (November 17, 1988)
Memorandum and Order, LBP 88 31, 28 NRC 652 (December 7,1988)
Partial Initial Decision, LBP-88 32, 28 NRC 667 (December 30, 1988)
Memorandum and Order, LBP-89 3, 29 NRC 51 (January 30, 1989)
D2 L __ :__
PUBLIC SERVICE COMPANY OF NEW llAMPSHIRE, et al., continued:
Memorandum and Order, LUP 89-4,29 NRC 62 (January 30, 1989)
Memorandum and Order, LUP 89 8,29 NRC 193 (February 16, 1989)
Memorandum and Order, LUP 89 9,29 NRC 271 (March 3,1989)
Memorandum and Order, LUP 8910,29 NRC 297 (March 8,1989)
Final Initial Decision, LUP 8917,29 NRC 519 (June 23,1989)
RODGER W. ELLINGWOOD (Senior Operator License for Catawba Nuclear Station), Docket 55 20449 Initial Decision, LUP 89-21,30 NRC 68 (July 31,1989)
UNIVERSITY OF CALIFORNIA, BERKELEY (Research Reactor), Docket 50-224 OLA Order, LHP 89 2,29 NRC 49 (J.anuary 5,1989)
VERMONT YANKEE NUCLEAR POWER CORPORATION (Vermont Yankee Nuclear Power Station), Dockets 50 271 OLA/50 271-OLA 2 Memorandum and Order, LUP 88 25A,28 NRC 435 (October 24, 1988)
Memorandum and Order, LUP 88 26,28 NRC 440 (October 11, 1988)
Memorandum and Order, LDP 89 6,29 NRC 127 (February 2,1989)
Memorandum and Order, LUP 8913,29 NRC 461 (May 23,1989)
Memorandum and Order, LUP 8918,29 NRC 539 (June 30,1989) c:
D3 l
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i1. A851 R ACI (Jap eene w niel in Fiscal Year 1989, the Atomic Safety and Licensing Board Panel (ASLBP) handled 40 proceedings involving the construction, operation and maintenance of commercial nuclear power reactors or other activities requiring a license from the Nuclear Regulatory Commission.- This report summarizes, highlights and analyzes how the wide-ranging issues raised in these proceedings were addressed by the Judges and Licensing Boards of the ASLBP during the year, u na v wOhos/otsch:P roRs a..
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