ML20056B552

Nuclear Regulatory Commission Issuances for June 1990.Pages 483-604

ML20056B552
Person / Time
Issue date:	08/31/1990
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V31-N06, NUREG-750, NUREG-750-V31-N6, NUDOCS 9009040088
Download: ML20056B552 (133)

Text

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Available from J Superintentendent of Documents -) U.S. Govemment Printing Office Post Office Box 37082 Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issues, ] 4 Indexes, and 2-4 hardbound editions for this publication. 1 ~! Single copies of this publication are available from National Technical information Service, Springfield, VA 22161 i l l 1l 1 i Errors in this publication may be reported to the Division of Freedom of Information and Publications Services Office of Administration l U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)

5{g - f3;-. t / o-I ,4 1 t-NUREG-0750 Vol. 31, No. 6 ' 4 Pages 483-604 t NUCLEAR REGULATORY L COMMISSION ISSUANCES L e L June 1990 li[ i;o.- This report includes the issuances received during the specified period ~ from the Commission (CLI)..the Atomic Safety and Licensing Appeal Boards ( ALAB), the Atomic Safety and Licensing Boards (LBP), the Ad-ministrative Law Judge (ALJ) the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM). The summaries and headnotes preceding the opinions reported herein are not to be deemed a part of those opinions or have any independent legal significance. t U S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)

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+ COvrENTS [ Issuance of the Nuclear Regulatory Commission PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al. (Scabrook Station, Units I and 2) Dockets 50-443-OL,50-444-OL (Offsite Emergency Planning issues) ORDER, CLI 90-6, J une 8,1990.............................. 483 -Issuance of the Atomic.1afety and Licensing Appeal Board i PUBLIC SERVICE COMPANY OF NEW HAMPSIIIRE, et al, (Seabrook Station, Units I and 2) Dockets 50-443 OL,50444-OL (Offsite Emergency Planning Issues) MEMORANDUM AND ORDER, ALAB 933, June 7,1990........ 491 Issuances of the Atomic Safety and Licensing Boards ADVANCED MEDICAL SYS' MMS, INC. (One Factory Row, Geneva, Ohio 44041) Docket 30-16055-SP (ASLBP No. 87 545-01.SP)(Suspension Order) MEMORANDUM AND ORDER, LDP-90-17, June 12,1990....... 540 ~ CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al. (Perry Nuclear Power Plant, Unit 1) Docket 50-440-OLA (ASLUP No. 90-605-02 OLA) MEMORANDUM AND ORDER, LBP-90-15, June 11,1990....... 501 CURATORS OF THE UNIVERSITY OF MISSOURI Dockets 70-00270,30 02278-MLA (ASLBP No. 90-613-02 MLA) (TRUMP-S Project) MEMORANDUM AND ORDER, LEP 90-18, June 15,1990....... 559 CURATORS OF THE UNIVERSITY OF MISSOURI Dockets 70-00270,30-02278 MLA (ASLBP No. 90-613-02-MLA) r (TRUMP-S Project). MEMORANDUM AND ORDER, LBP-90-22, June 29,1990....... 592 i iii

1 FLORIDA POWER AND LIOllT COMPANY - ('Thrkey Point Nuclear Ocnerating Plant, Units 3 and 4) Dockets 50-250-OLA 5,50 251 OLA 5 (ASLBP No. 90-602-01-OLA 5) 4 (Itchnical Specifications Replacement) MEMORANDUM AND ORDER, LBP-90-16, June 15,1990....... 509 NORTIIERN STATES POWER COMPANY (Pathfinder Atomic Plant) Docket 30-05004 MLA (ASLBP No. 90 599-01 ML) (Byproduct Material License No. 22 08799-02) ORDER TERMINATING PROCEEDING, LBP 90- 19, J une 21, 1990.................................. 579 PORTER MEMORIAL llOSPITAL ,(Valparaiso, Indiana) Docket 030-12150 (ASLBP No. 90-615-05-OM)(EA 90-072) (Confirmatory Order Suspending Brachytherapy Activitics and Modifying License) PREllEARING CONFERENCE ORDER LDP 90-21, June 26,1990. 589-PUBLIC SERVICE COMPANY OF NEW llAMPSilIRE, et al. (Scabrook Station, Units 1 and 2) Dockets 50443-OL,50-444 OL (ASLBP No. 82 47102-OL) (Offsite Emergency Planning Issues) MEMORANDUM AND ORDER, LBP 90-20, June 27,1990....... 581 ST. MARY MEDICAL CENTER-HOB ART and ST. MARY MEDICAL CEN'ITiR-GARY Dockets 030-31379-OM,03001615 OM (ASLDP No. 90-612-04-OM) (EA 90-071)(Order Suspending Brachytherapy Activitics and Modifying License) PREllEARING CONFERENCE ORDER, LDP-90-21 June 26,1990. 589 Issuance of Director's Decision PACIFIC OAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2) Dockets 50-275-A,50-323-A DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 DD-90-3, J une 14, 1990.................................... 595 Iv

3;...... l l l l Commission Issuances

f .l i r Cite as 31 NRC 483 (1990)~ CU-904 l UNITED STATES OF AMERICA - NUCLEAR REGULATORY COMMISSION COMMISSIONERS: Kenneth M. Carr, Chairman Thomas M. Roberts Kenneth C. Rogers Jar.ies R. Curtiss T+rrest J. Remick in the Matter of Docket Nos. 50-443 OL 50-444-OL (Offsite Ernergency Planning issues) PUBLIC SERVICE COMPANY OF HEW HAMPSHIRE, et al. (Seabrook Station, Units 1 and 2) June 8,1990 l 'Ihc Commission accepts a referral from its Appeal Board to address the mer-L its of Intervenors' motion to reopen the Seabrook record to litigate a contention relating to the use at that facility of certain pressure measuring devices (" Rose-mount transmitters"). 'Ihc Commission denies the motion because it finds that l 1 Intervenors have not made the required showing under 10 C.F.R. 6 2.734(a) for reopening a closed record. The Commission defers, until a later date, the matter l of additional guidance on reopening motions filed very late in the uljudicatory process and the appropriate forum for initial consideration of technical issues l -- lacking nexus to matters before either of its subordinate pimels. 4 1: RULES OF PRACTICE: REOPENING OF EVIDENTIARY RECORD ~l A motion to reopen a closed record to consider additional evidence will ll not be granted unless the following criteria are satisfied: (1) the motion must L be timely, except that an exceptionally grave issue may be considered in the l l 483 l l L

l = discretion of the presiding officer even if untimely presented; (2) the motion must address a significant safety or environmental issue; (3) the motion must l demonstrate that a materially different result would be or would have been likely . had the newly proffered evidence been considered initially 10 C.F.R. $ 2.734(a). RULES OF PRACTICE: REOPENING OF RECORD (TIMELINESS) A motion to reopen a closed record is not timely where intervenors did not act promptly after information relevant to the contention they sought to litigate ' became available. RULES OF PRACTICE: REOPENING OF RECORD (TIMELINESS) I' ntervenors who have public information relating to the matter they scck to raisc for at least 10 months prior to filing a motion to reopen or at least some 7 ~ weeks' notice of applicants' actions with respect to the matter in question, could and should have moved more promptly than a full 4 wecks thereafter, especially given that the record had long since closed and the Commission's immediate effectiveness decision was expected imminently. RULES OF PRACTICE: CONTENTIONS (UNTIMELY FILINGS) The Commission reasonably dernands that contentions filed after the hearing is under way - let alone concluded - be filed promptly after receipt of the information needed to frame these contentions. Public Service Co. of New Hampshire (Scabrook Station, Units 1 and 2), CLI 89-8, 29 NRC 399, 414 (1989), citing Duke Powr Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83 19, 17 NRC INI, IN8-50 (1983). See also Pubtle Service Co. of New flampshire (Seabrook Station, Units I and 2), ALAB-918,29 NRC 473,482 (1989) (settled that promptness is required). RULES OF PRACTICE: REOPENING OF RECORD (SIGNIFICANT SAFETY ISSUE) Intervenors fail to present an actual "significant safety issue" when they have not adduced sufficiently persuasive evidence at the threshold to create a reasonable belief that an applicant's program and continuing compliance with a Staff-prescribed enhanced surveilbnce program will be insufficient to provide the requisite assurance of plant safety. 484

I. ORDER i By order of April 2,1990, the Atomic Safety and Licensing Appeal Board referred to us for inidal action "Intervenors' Modon to Roopen the Record .. and Admit Late Filed Contention Regarding Defective Rosemount TYansmitters" (Motion), filed by intervenors Massachusetts Attorney Ocneral New England Coalition on Nuclear Pollution, and Scacoast Anti Pollution League (collectively "Intervenors") and ecd February 27, 1990.8 Intervenors scck to reopen the cl6.cd record of this proceeding on the grant of an operating license for the Scabrook nuclear reactor to litigate a contention relating to die use at that facility of the specified transmitters whose function is to measure pressure and differential pressure in nuclear power plant safety systems. We decide today, as we discuss below, that the requested reopening is not warranted. I. T!!E APPROPRIATE FORUM FOR CONSIDERATION OF TIIE MOTION i The proposed contention challenged the adequacy of Applic".dts' retponse to the possibic presence of certain defects in Rosemount transmitters which had been made known by the manufacturer and subsequently addressed by Staff notices as a matter of general information and interest.' The motion was originally addressed to the Appeal Board.8 Oppositions were filed by the applicants for the Scabrook license (Applicants) and the NRC staff (Staff) which each assened that the Appeal Board lacked jurisdiction to entertain the motion. Notwithstanding the Appeal Board's subsequent disagreement with Applicants and Staff and its ruling that it had authority to decide the motion, the Appeal Board determined, with one member dissenting, that the motion was more appropriately to $c sent to us. This was so, said the Appeal Board, in that

ntervenors scck to raise a new issue directed to the safety of plant operation and it had been over a year since the Appeal Board had before it on appeal any

issue connected with plant safety. In the circumstances where the contention lacked any " reasonable nexus" to subject matter remaining befom the Appeal

. Board and where the Licensing Board had before it only remanded emergency planning issues (ALAB-930,31 NRC at 347), the Appeal Board believed the matter was appropriate for original consideration by the Commission which, "as the ultimate overseer of this extended proceeding, is interested in low the motion is h'andled." Id. Isee A1.AR-930.31 NitC SO (1990). 2 At the Appeal Boarfs request om monnn was supplanaued by a discussion or jurisdiction. 485

. Whether thc A' ppeal Board majority is correct that the bcuer way to serve the Commission's interest is referral rather than decision, as urged by the dissenting member, is a maner we need not and do not reach today. We j have said that we would consider, separate from the Seabrook proceeding. the. desirability of additional guidance regarding reopening motions filed very late in the adjudicatory process. CLI 90-3, 31 NRC 219, 256 (1990). As part ' of that consideration we may wish to reach the question whether guidance . is required with respect to the appropriate forum for initial consideration of technical issues lacking nexus to matters before either of our subordinate panels. ' The Commission accepts the instant referral because avoidance of further delay is a sufficient reason here to address this mauer on the merits.

II. DECISION ON WEIETHER TO REOPEN A.

Positions of the Parties Intervenors challenge "the adequacy of measures taken by Applicants to assure that faulty Rosemount 'IYansmitters will not cause, contribute to, or fail to operate during an accident at Scabrook." Motion at 1. -The contention is based on an NRC information notice of a series of reported failures of specified models of Rosemount transmincts and on subsequent Staff issuances, and in essence challenges the effectiveness of Applicants' compliance with the NRC Staff indinstry wido program to respond to the potential failure of - Rosemount transmitters. Intervenors also claim that unusual hazard will result from circumstances at Scabrook in that Seabrook power ascension will cause special stress that will increase Scabrook's vulnerability to the Rosemount - transmitter probicm. Both Applicants and Staff argue thM Intervenors have not satisfied the Commission's three criteria to reopen a closed proceeding.8 3 s.:iion 17wa) prwian a ranows: A motion to reopen a closed secord to consider addttional evidece will not be granted untas the foDowing criteria en satis 6ed (1) The mesion nuast be timely, encept that an excepthmatly grave issue may be cosidered in the disent on of the presiding officer even it uruimely preaaned. Q) The maison omst address a signi6can safety or enysronmentalissue. Q) The motion nust demonstrais that a matenaDy diffaent resub wuald be or would have been likely had the newly pmffered evidence been considered initiauy. Because there was no earber conianion m Rcuannunt trenamners, the aandards ror a late-61ed cormentim must balance in tavar er Intervenars as weIL see 10 CF.R. H 1734(d) and 1714(a). 486 i

I L h B. Analysis ' .l First, the motion is not timely because Intervenors did not act prompdy after the relevant information became available. See, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CL183-19,17 NRC 1041,1048 50 (1983). Fur at least 10 months before filing the r opening motion and new contention, Intervenors had available to them public information both that there was concern - . about failure problems with Rosemount transmitters and that Rosemount trans. mitters were installed in Scabrook. NRC Staff Response in Opposition, March 14,1990, at 5-6. See NRC Inspection Report dated Jan. 9,1990 (Attach. C to Applicant's Answer to Intervenor's Motion to Reopen and enclosure at 18-19). They were on notice for some 7 weeks before filing of actions Applicants had taken and had planned to take with respect to the Rosemount transmitters. ' Even were we to assume, as we do om tint the January 29,1990 NRC bul-Ictin was neceasary to their coinentori, they mald and should have moved more .j . prompdy than a full 4 weeks thereafter, especially given that the record had long since closed and the Commission's immediate effectiveness decision was expected imminently. *lhe Commission cannot overemphasize the obligation of Intervenors to raise contentions at the earliest possible time. The Commission reasonably demands that contentions filed afect the hearing is under way - let alone concluded - be filed promptly after receipt of the information needed to frame these contentions. Public Service Co. of New flampshire (Scabrook Station, Units 1 and 2), CL1-89 8,29 NRC 399,314 (1989), citing Catawba, CLl-8319, supra. See also Public Service Co. of New flampshire (Scabrook Station, Units 1 and 2), ALAB-918, 29 NRC 473, 482 (1989) (settled that promptness is required) and id. at 482 n.27 (citing cases).' More important, our review of the affidavits provided by the parties makes it clear that a significant safety issue is not presented by htervenors' reopening

motion. Intervenors have not reported any new information that Staff has failed to considct, but simply have argued that harsher measures should be taken than Staff has considered necessary. While undeniably the Rosemount transmitters perform safety functions and thus have safety significance, on the basis of the materials before us we cannot find that Intervenors have provided any reason to believe that the maner is not already being addressed satisfactorily by the Staff and the Applicants.

Ibr example, intervenors have raised the possibility that the problem could be more pervasive if in addition to the suspect Model 1153 and 1154 transmitters, there are Model i151 or 1152 Rosemount transmitters or if Rosemount elements were sold to other manufacturers for inclusion in transmitters sold under theit 'Intervants gave no explanatien er their lack er pmmptruss fmn the tirne that public infornistim was ava!!abla lbs as pataes pointal out, Interveners failed to show smd cause rar lats Ahng. 487

label rather than Rosemount's. See Minor Affidavit at 6114. But in contra-diction of the possibility raised by Intervenors, the sworn evidence is that there are no 1151 or 1152 transmitters utilized in any safety or anticipated transient without scram (ATWS) system at the Scabrook site. See NRC Staff Response, Affidavit of Jerry L. Mauck at 4. Nor are there any transmitters with sensing cells manufactured by Rosemount and the body supplied from another manufacturing source utilized in any safety or ATWS system at Seabrook. Id. Intervenors express concern that the startup program may " stress" the plant.- llowever, it has not been shown and we are not aware of any reason to believe that the transmitters themselves will be subject to pressures significantly different from those normally encountered during operation. Thus the startup program is not likely to increase the likelihood of transmitter failure over that already considered by placing unusual pressures, forces, environments, and the like on them. As a generic matter, the Staff has decided that the expectable normal failure rate of the transmitters is not a safety risk. No more is being permitted at Scabrook than at nuclear plants nationwide. Rus, contrary to Intervenors' position, their showing falls to present an actual "significant safety issue." his is so because ticy have not adduced sufficiently persuasive evidence at the threshold to create a reasonable belief that the Applicant's prograr/ and continuing compliance with the Staff-prescribed enhanced surveillance program will be insufficient to provide the requisite assurance of plant safety. - In these circumstances we find that the motion was not timely, does not ad-dress an issue of safety significance, and failed to demonstrate that a materially different result would have been likely had the newly proffered evidence been considered initially, nus reopening tic hearing is not justified under the threc 3 Applicants have, among other things. Identiried any inservice transmitten from the manufactureidessirted high-fa0ure-fraction las and found only one. Dat one showed no signs or defect.but nonahelms. Applicants' affiant ' under oath that it would be aplaced by blanh 14.1994 $4a Applicants' Rapese ArrWavit or Bruce II. Beuchel at 41 s. spara transmiuers from those las wre returned for replacement or the sensing modules. 141& Applicants have also completed cabbeation chedts and have replaced the sole transminer that exhibited sny sympoms or a puential 611-allosa. M. at 14130. 488

Nr l relevant criteria, and we need not belabor this opinion witis findings uMx the

{

=i ci late-filed contention rule. lt is so ORDERED ~ ~ Ibr the Commission' SAMUEL J. CIIILK Secretary of the Commission l Dated at Rockville, Maryland, this 8th day of June 1990, -t l.t -i U l

r 1

' ), e i ' Commissioner bmid absuined m das scdon 489 - i-s

l Atomic Safety and Licensing Aapeal Boards issuances l ATOMIC SAFETY AND UCENSING APPEAL PANEL CMsene N. KoN, Chairman Alan S. Rosenthal Dr. W. Reed Johnson l Thomas S. Moore Howard A. Wilber i G. Paul Bo#werk, til 1 l l l i l l l

q l Cite as 31 NRC 491 (1990). ' ALAB-933 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION : ATC441C SAFETY AND LICENSING APPEAL BOARD i i ~ Administrative Judges: j 7: G. Paul Bollwerk,111, Chairman i l Alan S. Rosenthal. Howard A. Wilber t l in the Matter of Occket Nds. 50-443-OL 50 444 OL i (Offalte Emergency Planning issues) ~ PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al., (Seabrook Str.tlon Units 3 and 2) June 7,1990 .i The Appeal Board gants the applicants' and the staff's motions either to strike or to dismiss as preinature intervenors' appeals of the Licensing Board's May 3,1990 memorandum ark! 0 Jer, except insofat as those appeals addressed the dismissal of one of the intervenors from the proceeding. . RULES OF PRACTICE: ' PEOPENING OF RECORD' 'The criteria for reopening a record are set fosth in 10 C.F.R.I2,734 .+ .1 RULES 05' PRACTICE: FINALITY OPDECISIONS The test of" finality" for appeal purposes before this agency (as in the courts) is essentially a practical one. As a general matter, a licensing board's action is final for appellate purposes where it either disposes of at least a major segmcN. of 491 'l }

l r= i r of the case or terminates a party's right to participate; rulings that do neither are interlocutory. Toledo Edison Co. (!bvis-Desse Nuch-ar IWer S.tation), A1.AB-300,2 NRC 7$2,758 (1975) (footnotes omitted). I RULES OF PRACTICE: FINALITY OF DECISIONS A licensing leard order that dismisses a party 9ern the proceeding possesses sufficient finality to te appealable. RULES OF PRACTICE: MOT!ONS FOR $UMMARY AFFIRMANCE The apswopriate vehicle for sccking a speedy n.crits disposition of an assert-edly insutstantial appeal is a motion for summary amrmance, not a motion to dismiss. RULES OF PAACTICE: INTERLOCUTORY APPEALS (DIRECTED CERTIFICA'flON) While the Appeal Board may invoke its discretionary authority 10 review intrlocutory orders by way of directed certification, see 10 C.F.R. 6 2.718(i), it whi ::t 5,wy do so unless either of the established tests for the ext. ;isc of that authority is met, set also Public Service Co. ofIndiana (Marble lilli Nuclear Generating Station, Units 1 and 2), ALAB 405,5 NRC 1190,1192 (1977). RULES OF PRACTICE: FINALITY OF DECISIONS A protective notice of appeal is appropriate when there is any room for question respecting the finality for appeal purposes of a licensing board order. See ALAB 906,28 NRC 615,619 (1988). APPEARANCES The aas G. Dignan, Jr., George H. Lewald, Kathryn A Selleck, and Jeffrey P. 'IYout, Boston, Massachusetts, for the applicants Public Service Company of New llampshire, et al. Edwin J. Reis Elaine I, Chan, and Lisa B. Clark for the Nuclear Regulatory Commission staff, 492

John Traficme, Boston, Massachusetts, for the intervenor James M. Shannon, Attorney Ocneral of Massachusetts. Diane Curran, Washington, D.C., for the int venor New England Coalition on Nuc1 car Ibilution. ] i Rottert A. Backus, Mr.nchester, New llampshire, for the intervenor Scacoast Anti Pollution league. I MEMORANDUM AND ORDER Before us are motions of both the appilcants and the NRC staff sccking cither to strike or to dismiss appeals taken by intervenors Attorney Ocreral of Mas-sachusetts (NNsAO), New England Coalition on Nuclear Ibtlution (Coalition), and Scacoast AntiIbtlution league (SAPL) from the Licensing Bontd's May 3, IM3 memorandum and order in this operating license proceeding involving de Scabrook nuclear power facility.' For the reasons stated below, we grant the motions in part. 1. A. 'the May 3 memorandum and order addressed four issues that we remanded to the Licensing Board in ALAB 924,8 as well as two motions filed by intervenors to reopen the record.S The remanded issues all involved aspects of the New llampshire Radiological Emergency Responso Plan, applicable to tlw portion of the Scabrook plume exposure pathway emergency planning zone (EI7) lochied in that State.* More specifically, the Licensing Board w1&s called upon to consider further (1) the necessity for letters of agreement (IAA) embracing school personnel having an assigned role under the New ilampshire plan; (2) the elfficiency of a 1986 Special Needs Survey destgred to ascertain the persons within the New llampshire portion of the E12 who would have special transportation requirements in tic event of a Scabrook radiological emergency; ItDP 9012, St NitC 427 (19901 8M NRC 331 (1999) I7hnee inesians, dated February 6 and Fdewery 28,1990, respecensly, crisbally had bem submitud to us by the MasaAo, Coahtim, and s AIL 'thereafter, we referred them to uw 1Jconsms Board in an unpublished March 1 1990 order. AIAB 914 was rendered on a punion or the erreals taken inn the tjcansmg Board's partialinitial decisim canarned with the scooptalahty or that plan. see tBP-st-32,28 NitC 667 0988s We vesently suled on the semaining issues rawed in the appeals emcenmg the New lismpshire plan. see AtAB-932,31 NRC 371 (1940L 493 P l 6

(3) die encet that Oc period necessary to prepare advanced Etc supptit (ALS) patients for evacuation would have upon evacuation time estimates for those patients; and (4) Oc adequacy of the provisions in the New llampshire plan with regard to implementation of the slettering option for the transient teach population. Tbr their part, the intervenors' reopening motions similarly focused upcm sheltering matters, At the outset of its May 3 ruling, the Lice'Ising Board announced that it was granting " leave" to SAPL "to withdraw from the proceeding tefore diis Board."8 'niis action had its roots in a series of filings beginning with a January 19,1990 letter from SAPL counsel to Oc Board, 'That letter was in response to a January 11 1990 Board order seeking de advice of de parties respecting how to proceed on the issues remanded in ALAB-924, in its leuct, SAPL counsel informed die Board that it "could not expect SAPL to have the least interest whatsoever in any furder proceedings tefore the Board, given Oc fact diat de Board has decided the issue in the case by directing the 'immediate authorization' for a full power nuclear license, SAPL's pronourcement prompted a motion from the applicants secking to have the Board dismiss the remanded LOA, Spccial Needs Survey, and ALS Patients issues as abandoned for the reason that "S APL, the sponsor and (except for the LOA issue) sole advocate of dese three issues, has abandoned dicm,'" Responding to the motion, SAPL stated that it had never manifested an intent to "atendon" Om remanded issues but, rather, had indicated in the January 19 letter simply that it did not " intend to participate in litigatkm on any isstes that are unrelated to licensing. Asserting that the Board had made clear that it considered the remanded issues " irrelevant to licenslag" because they are not " safety significant," SAPL maintained that, so long as that determination remained in effect, it had "no reason to participate in furder proceedings tefore dr. Board,"' 'Ihc Licensing Board took diis explanation of SAPL's purpose to mean that, once the Commission approved the issuance of a full. power license for Scabrook, 8tJtP-9412,31 NRC at 428. 'tAlter frain Rahert A. Badus 'a Adnumstrative Judge Ivan W, smith et al. (January 19,1990) at 1. Mr. Dadus was enfamng to the llaant's Nmember 9,1959 decision an,i=#,r et,e, the radiological emergency response plans for 0 s Massachusais partion of the seahm41.PZ, which decisim concluded wkh an authori' alum for the issuana of a full paner <perating license. See IJIP-89 32,30 NRC 375,651 (1989), appeele pen 4ag. 'that authimaanan required Commissim endorsommt of an *tmmediate effectiveness" review (see 10 C.F.R. I 2.764), which endinisment was fasthe<smns an March I,1990, see ClJ.943,31 NRC 219 (1990). Aghcants' Motion to F miss Abandmed Romand lasues (January 26,1990) at 3-4. The appliants pointed 1 to s Alt consentans 15, in, and 25 as the genesis or those issues. i,f at 12. 8 seecussi Anti-Puuutum tsague's 0 ertion to Ambcants' W6an of January 26,1990 (February 1,1990) 9 at 1. 814 at 12. As t' e soune er the view h atttibuted to the tJcensing flosal, sAPt. cited bmh IJIP-39-32,30 NRC n 375, and LJIP-39 33,30 NRC 656 (1959), apreels pendag. By " unrelated" or intlevant" to hcensms, sAPL, amarantly had in mind issues that, as the IJcensing 14aani saw h, were nes crucial to a daarmination en whether en operating hcense shmid be auth<rised, notwithstarding the prospect of funher admmistrative soview. 494

Here would no longer be any possible issue "related to licensing" on which SAPL mi,ht participate." That approval having occurred on March 1,H and the t license havhig issued thortly Ocreafter (on March 15)," the Board concluded diat SAPL has effectively elected to withdraw arut, accordingly, dismissed the interverna from the proceeding tefore it." On the strength of Diat action, the Licensing Bor/d undertook also to dismiss both die LOA and Sp'clal Needs Survey issues as abandoned by SAPL, their sponsor." The Board nonetheless went on to confront the merits of those issues and to hold that Oc concerns that had prompted our remand of Omm in ALAB. 924 had teen satisfactorily ruolved." Moving on to the ALS P#tiere issue, the Board determined that, as remanded in ALAB-924, that issue way " distinct from the contentions SAPL litighted and, thus, was not "SAPL's to aoandon.*;' On an analysis of the ingredients of de issue, Oc Board identified the subissues that required its further consideration." Pinally, the Licensing Board tackled tie remanded Beach Sheltering issue, together with the intervenors' motions to reopen the. record on aspects of that issue. Ib!!owing an extended discussion, the lloard rejected the motions. The first was found to be moot or, at the least, superseted by the socorxt." The latter motion was denied on the ground Diat it was untimy and, morcover, did not meet the oder reopening criteria set forth in the Rules of Practice."11rning den to our remand, Oc Board asked us for further guidance in the form of both answers to certain specific questions and a response to two referred rulings.2' B. On May 11, the Mass AG, Coalition, and S APL noted an appeal from de May 3 memorandum and order.*' Tim notice bore the signature of only counsel for the MassAO, who indicated that it was being sutwnitted "on behalf of" the other intervenors as well (whose counsel of record were identified by name, address, and telephone number). On May 16, SAPL filed a separate notice of appeal, signed by its counsel, that was directed exclusively to the portion "lSP4t1.31 NRC at 429. " An. ann,...d. in etJ 9a 3 issued = ihai dais ih. canoninsum pn-ided in nedini. effectivene.s io n. therming Dimed's deciaum (ISP-89 32) authanung the issuance or a full power licenas. See sure runs 6. usee tener im Mitai A. Young, stafr counsel, to mernhers er this Bcurd (A G 26,1990) at 2 P "ISP#12,31 NHC at 429 30, l'id at424:431. "In de sans er die IDA inne, de hoard informt to the docussiori in TSP-89 33,30 NRC et 65941 he siedal Nets surwy issue was found subject to sununary der,mities against s apt 's clauns em on basa er De record ietwo the Donal in 198& Jee ISP-9412,31 NRC at 43134. I'3ev LSP412,31 NRC et 43134. "id at 41:19. is14 et 441 "l4 at 443-41 hime criians are set fonh in 10 C.FA (1734. 2014 at 44W he tkasira Bwil maled that it would proceed with the romand while sweitmg the sequested g'uidance.14 at 04. In that tilung, the imervauws sought other and trnmediew isher, which we denied in a May 18 unpubhshed on'ar. 495 1

of de May 3 order related to its purported withdrawal and dismissal from de proccaling. On May 17, the applicants moved to strike the May 11 notice of appeal, Amstding to the applicants, none of the Licensing Board's rulings on the wanded issues has achieval the requisite finality to support appc!! ate review l s.his time. In additiori, t'cating the May 11 notice as being that of the MassAO dlort ta the applicarits snaintain Otat Olat intervernor lacks standing to complain of the disposition of the two issues that the Board determined had been raised and presented by SAPL, Similarly, the applicants assert, Oc MassAO is not in a position to complain of the dismissal of SAPL from the pmeceding, an occurrence that the applicants acknowledge is now ripe for appeal by SAPL" For its part, the staff asks us to dismiss both notices of ap[ cal, Observing that i it " generally supports" the position taken by the applicants in their motion to strike the May 11 notice, tle staff goes on to insist that, in the circumstances, the Licensing Board correctly dismissed SAPL from the proceeding and therefore that party's May 16 notice should te rejected as well.3* II, A, As we have had occasion to otscrve in several recent rulings in this proceeding," since our Davis-Besse decision in 1975 it has been settled that: '!he test of

• finality" for eggeal purposes before this agency (as in the courts)is essentially a practical one. As a general matter, a licensint ased's actkui is final for agi ellate purposes b

where it either disposes of at least a major segment of the case or te'minates a party's risht to meticipate; ruhngs *hich do neither are interkieutory.36 Thus, as the Licensing Board stated," the applicants expressly recognize," and tic staff does not dispute, so much of the May 3 order as dismissed SAPL from 22in bmrwation of such treatnant, the applicares p< ant to decisims or this Bosnl, neulared in quiis different suntants, that are sahd to imld that one pany to an NHC pracsedmg is nni entitled to speak on behair of another pany, IAsnases' kesponse to A;pealllaard onter of May 14,1994 and Motim to strike Notice d Appeal (May 17,1990) at i1. Uld at 2122. Agrarently, m May 17 the applicants had not as yet received sAPL's May 16 notice of spreal challenging ha damissal. 3'NRC siaft's Motian in thsmiss Notices of Appeal farn IJIPD12 (May 25,1990) et 16. In its ritra, the staff also saplams why h balsves the quantion of sAPL's status in the gwnceedmg should be res Jved now on muuan, either than afia a fu0 briorms of the sAPL sl Teal an that matter.14 at 2 tLl; see Wre A497. Usee, a g-, AtAB 920,30 NRC 121,124 (1959); AtAH-917,29 NRC 465,468 (1989), At 4906,28 NRC 615,619 0958), AtAll 894,27 NRC 632,636 (19181 3'Teleds (Jaca Co. (Devis Desse Nuclear Iwer station), AtAll-300, 2 NC 's>2. 758 (1975) (footnotes amined). U tJIPM12, st NRC at 454. 38 See teah this :=gs. 496

g tic proceedly possesses sufficient finality to te appealabic at this juncture. Dat Icing so, there manifestly is no basis for rejection at Oc threshold of the appeal taken by SAPL from that dismissal.8 Whether de Board was right in its I conclusion that SAPL had voluntarily withdrawn is a question that must abide de event of a full briefing of the appeal. In endeavoring to bypass the briefing process that ordinarily accompanies i any properly taken appeal, the staff insists that resolution now of die mattcr of j SAPL's status is necessa,'y to decide the question whether an appeal lies with regard to de Licensing Board's treatment in the May 3 order of the WA and Special Needs Survey issues." We disagrec, Ibr one thing, although dismissing i SAPL's contentions on those issues because of its purported withdrawal from de proceeding, de Licensing Board nonetheless went on to address the issues on the merits. Second, as shortly will be seen, irrespective of SAPL't; current status with respect to its intervention in this proceeding, none of Oc substantive rulings in me May 3 order is appealabic at this time. By the time those rulings lecome ripe for appe!! ate review, we will likely have decided the status question following the briefing that is now in progress.5 B. Applying the Davis Besse standafd to the intervenors' appeal from the portions of Oc May 3 order concerned with de remanded issues and de motions to reopen, we conclude that the appeal is premature. To te sure,"[w]c are aware of no litmus paper test for determining what constitutes a ' major segment' of a particular case"" and it is sometimes a "close call" on that score," In Gils "Chven sAPL's asperste May 16 nonce of ameal,it is not necessary to decide ehether the notice of appeal riled an May 11 by the MaasAo cut behalf ef, buse ehe, sAPt. would have suffnad to put the status quesunn before us. We nmesholens are constrained to sheerve that the opphcams' www that the May 11 nauce must be oesmed that of the MastAo ahme resta on e hypenechnical fammistion enryms huis,if any, suppet in our procedema. Nevenhaless, to avoid a sosunoction cf the applicants'sensating en the point, we suagest that,in future 6hngs in which his conniervonors join, the MasaAo hat ihme inaarvemus and their counsel es jami auhminers and, ensuming he has been given authaneanon, sign it for them. hus pmcedure ahnuld farestall the hns of argument that the applu4nia employed here, whidi appears to be tumunned wlmily upon the use of ths *an behalf of* p.aanlacy. s e we,,nie u. H one unpubhshed May is.1990 order nullel the ruming of the time for the 6hng of briefs in suman af the amost fmn the May 3 mamarandum and order taken by the imervenon entlecovely on May 11. Nolike acuan was taken with regard to sAPt/s May 16 nece of appealin our May 29 unpuhhshed order addressed to that acuce. (nsre ameaved at the ume to be httle eman fim douta that (as we nmr hnkt) sAPt/s inJapendent appest renected by the May 16 niants was nat subject to summary dianussal as prematurt hus being so, we discerned no veason to put the brioring of that appeal on ludd whue we emanuned the questaan whether the other pardans of tJ13t9412 covered by the May Il nmies of spreal were amenable to appeliste revww at this juncture) hus, as matiers now siand, sAPL/a bnsf in sumart of its separew spreal is (ue en June Is. see 10 C.F.R. $1762(b). It is out impression that sAPL is prepared to mest that deadlme, see sAPt/s Respinne to Appeal lioard order of May 29,1990 (May 31,1990) at 2. li nught be added that, evm had there becri subsance to the staff's behef that the rasuer of sAPL's sutus required immedisie nenhalon, the *manon to dismiss

• the appeal addressed to that ensuer would still have been impuvident. We are ran aware of any circunstance in which an appeal might be subject to dismissal without bne6ng en the gammd that it " lads merit." Rather, the approprisw vetuele for seeking a speedy monts disposition of an essenedly insubstanual appeal is e mean far
• summary offinnance."

2: A1.AD 894,27 NRC at 63s. " sed, e.g., ALAD-920, so NRC at 124. 497 l

instance, however, we encouruct no difficulty in resolving the question against implity. 'Ib begin with, it appears on the face of the May 3 order that the ALS Patients and Beach Shchering issues remain before Oc Licensing Board -i.e., everything diat the Board had to say on those issues in the order was wholly interlocutory in character. Accordingly, in all events, any further appellate review with respect to them clearly should await their ultimate disposition tek)w," And, because Oc denied motions to reopen likewise were addressed to teach sheltering matters, it seems equally appropriate to defer our consideration of them until we have in hand the Licensing Bontd's fmal word on that subject. Among otter things, it is at least possible that that word will either moot the challenge to the denial of the motions or cast the challenge in a different light. 'that leaves the LOA and Speciai Needs Survey issues. Olven our de-termination last month that the rcrord evidence establishes that it is not necessary that teachers accompany the school children to reception centers in the event of a Scabrook radiological emergency," it is unclear that the LDA issue fetains much, if any, vitality" Be that as it may, ncidier alone nor in combination can tic Licensing Board's resolution of these two issues te regarded so clearly dis-posing of "a major segment" of this case as to warrant our examination of that resolution in advaf'cc of the Board's determination of the other remanded issues similarly corectned with aspects of the New llampshire plan. Our conclusion in this regard is fortified by Oc fact diat, in their opposition to tte motions of the applicants and staff, the intervenors merely state Ocir belief that the "fmality" standard has been satisfied.87 Not only arc we given scant claboration of the underpinnings of that belief but Oc intervenors stress that, "in any event, their notice of appeal was protective."" la short, the intervenors diemselves have manifested a decided lack of conviction that this is the time to

• In this sunnectite, the ir er, sum appset to concede that the IW shatterms issue remams in an interlocutary pustuse tut insist that we should invoke here our decretimary authanty to seview interlocuury onless by way of directed ceruncation under 10 C.F.R. 61718(l). See Irmarvenars' oppaition to hhaians to strike Notice of Appeal of tJIP 9412 (June 4,1990) at 6 therannafter Iraerversus' oppentuan). No monon euphettly seeking that vsbef,luwever, is before us; all that the intervenes filed was a nunce of appeal, indeed, the intervenes have not asustactorily demonstrated that either of the establahed testa for the eserase d our direrted ceruncanon suihmity is met. See reN.c Serv,ce Co. e/ led eas (Marble thu Nuclear omierating stana, Units i sne 2), AIAH 4(5, s NkC I190,1192 (1974 D,e A1All 932,31 Mtc at 407 08.

"In AtAD 924, so NRC at 34243, we noted our agreement with the tJcenaang Daard that %y perfaming their usual mis as the custmhans of the students in their charge, at ) cast sol,sig as thtue studerna semain im the grounds of the schmt, sdaml pernunnat do not besanus 'puviders' of services is which louers of agreement would be nuoury.* 37 3ee Intervennes' opposidan at s. "14 In curuent, it sproars that the interverma had in nund our povious indicanon that a panective notice of arpealis appnyriate when there is any nwin for question vrepecting the Gnahiy for appeal rutposes of a tilcensing Board order See ALAB-906,28 NRC at 619. There is, luwever, ancthw season (having nothing to do with the fmahty questum) why the intervenon decen their appeal to be potecdve in charwier. See aq&e iuwe 39. 498 n.

i i j '.; t ' ,t d 0-return to us, by way of t.n appeal, any of the issues that wrc remanded to the Licensing Board in ALAB 924. Rr the foregoing reasons, except insofar as concerns the dismist.at of SAPL frtun the proceeding, the pending appeals from the Liccasing Board's May J 3,1990 memorandum and order, LBP-90-12, 31 NRC 427 are dismissed as premature." 1 It is so ORDERED.* FOR THE APPEAL BOARD Barbara A.Tbinpkins Secretary to the Appeal Board i r i i [ "In the May 11 arns of appeal, inte-venars renarsted their carmstan, est fath in earl,sr Alinas, that the Commission W he edpd catory boards no longa poisena any jurisdwtian to act in aus pnweedmg because of the truarvannes' petithms far seview uf vanms agawy actions selaung to fun-power seeknuk opersuon, which now are pendmg in the Unlied stoice Curt of Argeals fm the thstrica er Columbia Circuit To data, the intervenors have not succeeded in eNaining a judrial en&usement of their positka We semsnlis, however, that the interveuws have nat chandoned that prettian and that they fded theis appeals with i.s sirryly out of an abundance of cautun "The mimes retened to us in IJiP#it as well en possibly the quantians paned in that arder, will be addressed in a espanie order. 499 'i

1_ _ l l Atomic Safety l and Licensing l Boards issuances ATOMIC SAFETY AND UCENSING BOARD PANEL ~ \\ B. Paui Cotter,* Chief Administrative Judge D Robert M. Lazo,* Deputy Chief Administrative Judge (Executive) eg Frederick J. Shon,* Deputy Chief Administrative Judge (Technical) Members Dr George C. Anderson Dr Cadet H. Hand. Jr Dr Emmoth A. Luet*3 Charles Bochhoelor* Dr. Jony Harbour

• Dr. Menneth A. McColiom Peter B Bioch*

Dt David L. Hetrick Morton B. Marguhos* Glenn O Bright Emset E. Hill Gary L. Melholkn

i.. ; :

Dr. A. Otxon Calhhan Dr. Frank F. Hooper Marches E. Miller + James H. Carpenter

• Helen F. Hoyt*

Dr Oooer H. Parts

• Dr Rochard F. Cole
• Elizabeth B. Johnson Dr David II. Schenk Jg Dr George A. Ferguson Dr. Waner H. Jorden Ivan W Sneh'

' l $d j, Dr Harry Foreman Dr. Michael A. Kirk-Duggan Dr Martn J. Steindler Dt Rechard F. Foster Dr. Jeny R 10lne* Seymour Wenner John H Fe lil* Dr James C. Lamb ill Sheldon J. WoNo James R Gleason Gustavo A. LJnenberger* c .'t )

• Permanent panel members

.n C. e 1 is l i I

i Cite as 31 NRC 501 (1990) LSP 9015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC EAFETY AND LICENSING BOARD Before Administrative Jud9es: P John H Frye, lit, Chairman Dr. Jerry R. Kline Frederick J. Shon in the Matter of Docket No,50-440-OLA f (ASLBP No. 90-60542 OLA) CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al. (Perry Nuclear Power Plant, Unit 1) June 11,1990

• Ihis Memorandum and Order reviews a petition to intervene and contendon filed in response to a nodec indicadng that Licensecs had applied for an amend-ment to their operating license which would delete cycic specific parameter lim-its and other cycle-specific fuel information from the Perry Technical Siccifica-tions and substitute a provision allowing Licensecs to set these limits in accord with NRC approved methodology, 'Ihc contention raises an argument that grant of the amendment will unlawftally deprive petitioner of its hearing rights under 6189a of the Atomic Energy Act. 'Ihc Board indicated that in its view, te-cause it was not possible to ascertain from the application whether the license amendment would vest any substantial discretion in Licensees in determining the cycle-specific parameter limits, the contention is admissibic. Licensecs and Staff wrc afforded an opportunity to scck reconsideration prior to the Boand's order admitting the petitioner and its contention, i

i' 501 1

3 4 ATOMIC ENERGY ACTl CONTENT OF POWER REACTOR TECHNICAL SPECIFICATIONS Section 50.36 of the Commission's regulations requires that power reactor Technical Specifications must include those matters as to which the imposition of rigid conditions or limitations is necessary to obviate the possibility of an abnormal situation or event giving rise to an immediate threat to de public health and safety. Cycle-specific parameter limits are such matters. De Commission r may not abdicate its responsibility to review and approve license amendment applications that raise such matters by granting licensecs substantial discretion in determining Ocm. ATOMIC ENERGY ACT: I189a HEARING RIGHTS An interested member of de public is entitled to an opportunity for hearing on an applicatkm for an amendment to a power reactor license. MEMORANDUM AND ORDER (Granting Petition to intervene) Viis proceeding results from a petition to intervene and request for a hearing filed on March 8,1990, by Ohio Cit!zens for Responsible Energy, Inc., (OCRE),8 OCRE petitiofed in response to a notice 2 hat NRC was considering the issuance t of a license amendment to The Cleveland Electric Illuminating Company (CEI),5 I in addition to providing an opportunity to request a hearing, the notice stated that the NRC proposed to determine that the amendment involved no significant hazards considerations, 3 oCRE is a painis, parigenrit corpum.an ht specialises in menarch anJ edvocacy on issues of nuclear nector safety and pnerana the eglication is the highest ea'ery standards to such facilanes. It was en intervener in tito Perry operating beense pmcending In dus procenihng. k seeks to intervene on behalf of hs member and representative, sussa 1. Ibsts, who sesides wahin 15 miles of the Perry plant. CE! sad staff do not questim oOE's represanu&su in this regard. Additionally.Tse Utlhty Radiological safety Haard of Ohio (URSB) 6ted a statenent pursuam to 10 CJ.R. { 2.715(c)in wt ch it noted ht, while the emendment in quashan would nauh in engineering erfwiencies anul asi 4dstrative e mvenience, h would also dernve Ohio of the r.sht to be consulied on licanes amendrnaus provided by it' CIA.15a91(b)(3) and to panicipais in the amendrnent process panuant to 10 CfA. 62.714. URsR urges '.s Cc amissian to proceed with conian when emaidering such actum and to adapt procedures that will pnmers.atsting appanusuum far puhlwi participation. URsH also sequesis that staff take speciric actims to cmauh with the State with regard to the amendment in quesuart staff counsel is requested to tums URsH's latier to the etternum of the arpaywisie staff ofrices. 8 see 55 l'ed. kes. 42s2 (1 ett 7,1990), 3C11 is lead egyhcara for itself and Duguans light Company, Ohio IMisan Company. 8%ruuylvania Ibwcr Company, and the Toledo I'dison Company, cocwnen of dw 8%rry Nuclear Power Piant. 502 l i l l l

The license amendment in question renmes cycle-specinc core operating limits and oder cycle-specinc fuel information from the plant's ibcimical Specifications (TS) and replaces them with NRC-a[ proved medodology for determining these limits. These limits provide the technical rules under which the reactor may be operated. 'Ihe amendment application was prompted by Generic leuct 8816, which noted that the processing of changes to the l cycle-specific parameter limits generated using NRC-approved methodology constitules an unnecessary burden on both Licensees and the Staff. The letter encourages Licensees 10 propose changes to their ibchnical Specifications that are consistent with Staff guidance. That guidance provides, in part, that: his thernative consists of three separate actims to modify the plant's TS: (1)the addition of the definitim of a named formal report that includes the values of cycle specinc parameter lunits that have been established using an NRC-approved methodokgy and consistem with all aglicable limits of the safety analysis (2) the addition of an administrative reporting requiremem to submit the formal report on cycle-specinc parameter limits to die Commission for information, and (3) the modincation of individual TS to note that cycle specinc parameters shall be maintained within the limits provided in the denned formal report. In the evaluatiosi of this ehernative, the NRC staff concluded that it is essential to safety that the piam is operated within the bounds of cycle specific parameter limits and that a requirement to mairuain the plant within the apprgriate bounds must he retained in the 'I3. Ilowewr, the specific values of these limits may be modified by licensee?, without affeaing nuclear safety, provided that these changes are determined using an NRC-approved methodology and consistent with all amlicabic limiu of the plant safety analysis that are addressed in the final Safety Analysis Report (ISAR). AditionaUy, it was concluded that a formal report should be submitted to NRC with the values of these limits. His will allow continued trending of this information, even though prior NRC amroval of the changes to these limiu would run be required. %c current method of conuelling reaaor physics parameters to assure conformance to 10 CIR 5036 is to specify the specinc value(s) determined to be within specified accepance criteria (usuaUy the limits of die safe 4y analyses) using an awroved calculation methmlology. %e ehernative contained in this guidance cetrols the values of cycle-specinc parameters and assures amformance to 10 CTR 5036, which calls for specifying the kwest functional performance levels accepable for continued safe geratim, by specifying the calculation methodology and accepance criteria. %is permiu operation at any specific value determined by the licensee, using the specified methodokgy, to be within the acceptance criteria. he Core Operating tJrnits Report will document the specine values of parameter limits resulting from licensee's cakulations including any mid-cycle revisions to such parameter values.' In its petition OCRE agreed with CEI and Staff 8 hat the amendment involves purely an administrative matter that raises no signihcant hazards considerations as the latter term is defined in 10 C.F.R. 5 50.92(c). It stated that its intent is to raise a legal issue, vh.: that the grant of the amendment will deprive OCRE

• rach. e is omeric tour is 16 si 12.

503

P i members of the legal means to participate in the consideration of significant changes to the plant's cycle-specific operaticms. ) Bath CEI and Staff attacked OCRE's standing. CEI pointed out that OCRB I concedes that the amendment is purely administrative and involves no significant 1 har.ard. %us, in CEl's view OCRE has not alleged an injury in fact that would support intervention. CEI views OCRE's alleged legal injury as remote and j speculative because it amounts to no more than the possibility that OCRE might be precluded from raising an issue in the future.s lbliowing our direction to it OCRE filed its contention and responded to CEl's and Staff's arguments. OCRE's contention states: '!he tJcensee's pngesed amendment to restwe cyde specific parameter hmits and (ther cyde specific fuel informatitui inun the plant Tedmical Specifiwims to the Ctwe Operating IJmiu Report vbtaics Secuan 189 of the Attunic tinersy Act (42 USC 2239a)in that it skprives members of the public of the risht to ntnice and cqqertunity ftw hearins on any dienses to the cycle specific paramesers and fuel informatitei. 'OCRE notes that CEI concedes that this amendment will have the effect of climinating most requests for amendments to change de cycle specific parameters. OCRE maintains that this resuhs in a direct and palpabic injury to its legal right to notice and opportunity for hearing on such requests, and that $2.*/14 clearly contemplates that such a purely legal injury will support standing. In support of its contention OCRE argues that, because the amendment would permit the changing of core operating limits without public notice and an opportunity to request a hearing, the only effect of the amendment is to exclude the public from the process of setting dese limits. OCRE maintains that this is contsary to i 189a of the Atomic Energy Act and a " strong Congressional intent to prtwide for meaningful public participation. OCRE further maintains that die i only opportunity for public participation that would remain if de amendment s granted,10 C.F.R. 6 2.206, is not adequate. OCRE believes that die amendment would permit CEI to operate in ways that it oderwise could not without secking and receiving specific license amendments. Thus OCRE argtes diat each time CEI does so, the Commission will be granting a defacto license amendment (m 8su qts March 23.1990 Answer to oCRE's Peution si 2 5. In essenes, staff saives sith CITs punitiart h puenta cut that no irt)ury in fact was alleged and that, because oCRE merely raises um psaihihty that k may wish to liugaw futuvo maners. there is runhing to htigate in dus proceedi.e su staff's March 2s.1990 Anawa at S 7. on Apru 2 we issued a Mam<wandum and order diracung oCRE to sie its amtetim and resp.nd in CITs and staff's orguments am standma oCRE's respmne ard canentian were rded an ApH 23. Ibtlowing receip of that cameraum, we dires-ted Cl3 and siaff to respmd to that etwuentim and afronted oCRE an opywt. iity to reply to th<se responses. Cl3 resended on May 9, stating ady that in its view, oCRE's amtentum meets the aquiremeias of 10 0 FA 12.714(bX2K staff resseded on May Is. oCRE rephed m June 1. 'sas oCRE's Ap0 23 Fihng nr C4wnentim at 4. 504

which it must offer a hearing. OCRE relics on Sholly v. NRC,651 F.2d 780, 791 (D.C. Cir.1980). mcated on other grounds, 435 U.S.1194 (1983), and Massachusetts v. NRC,878 F.2d 1516,1521 (1st Cir.1989). While CEI states only that OCRE's contention meets the basis and speci-facity requirements of $ 2.714(b), Staff opposes the contention on the merits. Staff points out that de Commission has determined that the TS of nuclear plants have become filled with unnecessary information and as a result, dey are cumtersome and may constitute a hindrance to safe operation, citing de Com-mission's Interim Policy Statement on Tecimical Specification Improvements of February 3,1987.' Staff states that the removal of unnecessary information from tic Tecimical Specifications must not operate to remove the essential require-ments concerning operation. 'Ihus, in this case, the removal of the cycle-specific - parameter limits will te accompanied by inclusion in the Technical Specifica-tions of the requirement that the cycle-specific parameter limits are to be de-termined in accord with NRC-approved methodology. Staff believes that limits so determined will not affect the safety of the unit, and that no reduction in safety margins will take place. Staff points out that the Commission's requirements concerning what must te included in *Ibchnical Specifications are set forth in 10 C.F.R. I $0.36. Staff t notes that Portland Gracral Electric Co. (Trojan Nuclear Plant), ALAB-531,9 I NRC 263,271-74 (1979), discusses this issue and concludes that l nedmical specificatims are to be reserved for those matters as to which die imposition of risid conditions or limitations upon reactor operations is deemet nccessary to obviate the l panibility of an abnormi sumstion or ennt giving rise to an immediate threat to the public health and sqfety. Id. at 273 (footnotes omitted, emphasis supplied). Staff believes that removal of the cycle specific parameter limits in the circumstances contemplated here is in accord with the Appeal Board's conclusion in Trojan. Staff recognizes that OCRE is entitled to a hearing on the question of whether this amendment should be gmnted. Ilowcver, Staff does not lelieve that OCRE's contention is admissible because, in Staff's view, it is related to some future contingency, not to the amendment in question. Ibr this reason, Staff views l l OCRE's reliance on the Sholly and the Massachusetts decisions, supra, as l l misplaced. Those decisions involved Staff approvals of licensee applications that should have been opened to requests for hearing, but were not. In contrast, I l Staff telieves that OCRE only raises the possibility that such an event might occur in the future if this amendment is granted. l l I 's,< $2 Fed Reg. 3788 (Feh. 6.1984 S05 l l

We agree with OCRE that injury to a purely legal interest will support stand-ing. Clearly,10 C.F.R. I 2.714 contemplates this resull Sutscetion 2.714(b)(2) requires that cach contention state de matter of law orfact that it raises and subsection 2.714(b)(2)(iii) requires sufficient infor bn to demonstrate that a genuine dispute exists with respect to an issue a aw orfact. Subsection 2.714(c) provides that contentions raising purely legal issues must be decided on the basis of briefs and oral argument. In promulgating the recent amendments to i 2.714, the Commission noted that purely legal contentions were admissible, but added subsection 2.714(c) to clarify how they should be handled.' Dus OCRE has standing to request a hearing based on its alleged legal injury. %c question remains wicther OCRE's contention is admissible. We agree with Staff's analysis of this issue up to a point. Staff is correct that the Commission has been concerned with the detail contained in plant Technical Specifications and has sought to take action to alleviate that situation. Generic letter 8816 is a part of that effort. In that letter, Staff requested that Licensecs seck the sort of amendment that is at issue here. We also agree widt Staff that 10 C.F.R. 6 $0.36 and the Trojan decision control the content of Technical Specifications. Staff does not belicyc that OCRE's contention is admissible because, in Staff's view, it v. :-lated to some future contingency, not to the amendment in question, in its contention, OCRE maintains that the amendment will result in changes being made to cycle-specific parameter limits without the opportunity for a hearing as is presently tbc case. CEI and Staff agree that this is so. OCRE contends that this change would violate the provisions of i189a of the Acruic Energy Act. We believe that OCRE has stated a valid contention. It may be that the amendment at issue would improperly deprive OCRE of hearing rights siith respect to future changes in cycle-specific parameter limits. De answer to that question depends on whether the changes that the amendment would make are in accord with $50.36 and the Trojan decision. As noted above, that decision interprets $ 50.36 to require that those matters as to which the impsition of risid c4nhnans or limitatims upon reacsor everations is decrned necessary to obviate the passibility of on abnorm 11 sumstion or event giving the to en innediate threat to the public heahh and safety must be included in the Technical Specifications. Clearly, cycle-specific pa-rameter limits are necessary to obviate the possibility of an event that could immediately threaten the public health and safety. Staff states that the amend-ment in question is not contrary to the Trojan decision because it will not result 'See 54 Fed. Res. 33.168 (Aug 11.1989k i NRC Autar a 4 #egularen 2 sc 52. R 506

in any reduction in safety margins. Ilowever, in our view that is die issue raised by OCRE's contention. leaving it to CEI (or any other licensee) to determine cyc1c-specific parameter limits in accord with approved methodology but without prior Staff approval would only te proper, in our view, if tie methodology by which they are determined does not allow for excessive discretion or judgment on Oc part of CEl. We are unable to determine from de license amendment application j or from Ocactic Letter 8816 wicther such discretion would be permitted, if J excessive discretion were permitted the licensec, the amendment could consutute an unlawful abdication of Commission responsibility to pass on Oc question of whether a licensec's acuvitics meet the standards of the Atomic Energy Act and the concomitant responsibility to provide Oc public an opportunity to participate in that process, ne quesdon here at issue, while ostensibly only a question of law, is not barren of subtle factual content. De legal issue is whether the change i will unlawfully deprive OCRE of pardcipation in the seuing of the safety. significant cycle-rpecinc parameter limits. But if the methodology specified for die calculation of Diose parameters and the specification of fuel design are such as to rigidly determine Oc cycle specific parameter limits without the use of engineering judgment, OCRE would lose no legal rights by the change. (OCRE's greatest loss would be the dubious privilege of checking CEI's arithmetic.) On Oc other Imnd, if, as a matter of fact, substantial engineering judgment is needed to derive the parameters from the bases to be included in the new tech spect, the change would indeed deprive OCRE of its legal right to participate in the setting of safety-significant parameters. Thus we see wrapped within tie outer layer of Oc legal question a more recondite question of fact: To what extent does Oc material to be included within the new Technical Specificadons inexorably specify the cycle-specific parameter limits that would be removed? If some engineering judgment is permitted, is it permissible under the Atomic Energy Act for CEI to exercisc it? We believe that these issues would benefit from expert testimony. Because we believe that OCRE has stated a valid contention, it is unnecessary for us to address the argument that 10 C.F.R. 62.206 provides OCRE an appropriate means to participate in the setting of cycle-specific parameter limits. OCRE has challenged de legality of the amendment under i 189a of the Atomic Energy Act, if OCRE it successful in that challenge, there will be no need for il to consider using 6 2.206. On the other hand, if it is not successful, 6 2.206 would appear to bc OCRE's only means of participating. Our reasoning in reaching out tentative conclusion that OCRE has stated a valid contention has extended beyond the arguments advanced by OCRE, GI, and Staff. Consequently, w are deferring a final ruling admitting OCRT, and scuing a schedule for resolution of its contention in order to permit C21 and 507

Staff to snove for reconsideratimt. CEI and Staff may uck reamsideration of this Memorandum and Order wnhin 10 and 15 days of its service, respectively, it is so ORDERED. Tile ATOMIC SAFETY AND LICE!] SING BOARD Frederick J. Shon ADMINISTRATIVE JUDGE Dr. Jerry R. Kline ADMINISTRATIVE JUDOE John 11 Frye, Ill, Chairman ADMINISTRATIVE JUDOB Bethesda, Maryland June 11,1989 508 i

I i Cite es 31 NRC 509 (1990) LSP 90-16 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ) ATOMIC SAFETY AND LICENSING BOARD j Before Ar!minletrative Judges: Peter 5. Bloch, Chair Dr. George C. Anderson Elizabeth 8. Johnson in the Metter of Docket Noe. 60 250 OLA 6 50-251 OLA 5 (ASLDP No. 90402 01 OLA 5) (Technical Specifications Replacement) (Fecility Operating Liconese Nos. DPR 31, DPR 41) FLORIDA POWER AND LIGHT COMPANY (Turkey Point Nuclear Generating Plant, Unite 3 and 4) June 15,1990 %c Licensing Iloard admits an intervenor after detailed consideration of issues of standing, timeliness, and the admissability of contentions. Five of fifty six contentions are admitted, ne a6 mission of safety issues is based ou genuine issues of fact arising because of Applicant's admission that a particular change in technical specifications is a " relaxation" and because of an error or omission in tie accompanying analysis. Tte admission of environmental issues is based on genuine issues of fact raised with respect to safety issues tht might ultimately result in a finding that the change in specifications is "a major federal action." 509

i i RULES OF PRACTICE: STANDING An organization may gain standing based on the standing of a "memter," providing that the member i: more than just a passive contributor without any control over its operation. lkthermore, the "memter" on w!xxn memtership is based must be a memter for herself and not for another organization whose standing has not teen demonstrated. RULES OF PRACTICE: DEFAMATORY ALLEGATIONS l Allegations of harassment and intimidation must be documented. After an opportunity for documentation has teen afforded, unsupported defamatory allegations may be struck from de record. RULES OF PRACTICE: WITilDRAWAL OF IIASIS FOR STANDING; NONLAWYER A nontawyer representing an organization stated - as part of a filing - that alleged harassment and intimidation - that he no longer authorized that organization to represent him. Nevertheless, since no oder basis for standing exists and his withdrawal would deprive the organization of standing, it is appropriate to give the nonlawyer a second chance to consider the implications of his withdrawal. RULES OF PRACTICE: ADMISSION OF CONTENTIONS; 10 C.F.R. 5 2.714(b)(2) In applying the Commission's newly adopted standard for the admission of contentions, the Board finds that a petitioner must identify an error or omission in Applicant's analysis in order to gain admission for its contention. Merely stating, in reliance on an admission of Applicant, that a change in its technical specifications is a "rclaxation" is not sufficient to gain admission for a contention when Applicant's analysis accompanics its admission. Petitioner must also identify an error or omission in the accompanying analysis to create a genuine issue of fact and gain admission for its contention. With respect to environmental issues, the Board admitted two contentions tecause genuine issues of fact with respect to safety contentions could ultimately result in a fmding that this case entails "a major federal action." 510

t TECHNICAL ISSUES DISCUSSED Rr a pcssurized water reactor. risks during out of service time; combined limit for thermal power, pressuriter pressure, and the highest operating loop coolant temperature; change in mode reduction requirements: RCS boron con-centration; BAT baron concentration surveillance; outage time for ore channel of heat tracing; rod drop time. MEMORANDUM AND ORDER (Prehearing Conference Order: Parties and Contentions) Memorandum The purpose of this proceeding is to determine whether or not Florida Power and Light Company (Applicant) may amend the technical specifications for its plant pursuant to "the NRC and industry initiative to standardize and improve technical specifications for nuclear plants. Sec 54 Fed. Reg. at 50295 [Dec. 5, 1989)." Applicant's purpose in seeking to change hs technical specifications is to benefit from industry experience with technical specifications and to facilitate a " uniform understanding of requirements."' However, a petition has been filed I that asserts that the change in technical spccifications is unsafe. During the litigation of this case, the Staff may decide to permit the proposed change in technical specifications after comments have been received and considered on the proposed determination of the Staff of the Nuclear Regulatory l Commission (Staff) that "the arnendrnent rcquest involves no significant hazards considerations." 55 Fed. Reg. 20,218,20,227 28 (May 15,1990). On Friday, March 23, 1990, we hcid a prehearing conference in this case in Miami for the purpose of determining whcGict either of Oc petitioners - Mr. Thomas J. Saporito and the Nuclear Energy Accountability Project (NEAP) - should be admitted as a party. A purpose of this memorandum is to determine whetter party status should be granted. Tb reach that determination, we must decide whether or tiot a petitioner. (1) has standing, and (2) has submitted at least one admissible contention. Both prongs of this test must be met for a petitioner to bc granted party status, j With respect to the standing issue, the Board ruled at the pretcaring confer- ) ence that it would accept the position of Applicant and the Staff that Mr. Sapor. l ito had standing and that, based on his standing, NEAP - which Mr. Saraito 2 I *Aplicant's aespun to Amended lWaion to Ir.iervens" (Applicant's Respmse). Manh 16,1990 ats. 8Mr. separito make over 40 hours a week as a tes&ar at the All Career Traming Cenier. I N.F.19th street. Wmi.11arida 33132 and this in well withm the samlie geograph'est sme er interest. 511 a

y,, serves as a director - also would have str.nding. The validity of this ruling was, houver, placed under fresh doubt wheri Mr. Saporito filed a " Notice of Withdrawal from Proceeding" on April 1,1990. In that petition, he alleged that Applicant had intimidated and harassed him; and he therefore asked to withdraw both as an individual party and as the basis on which NEAP might be said to have standing. On April 24,1990, we established a schedule for resolving this motion through the issuance of an unpublished memorandum and order con. cerning the Motion to Withdraw. The first part of this Memorandum will address the merits of the Motkm to Withdraw and the standing issue, The second part of this Memorandum will address the question of whether any contentions are admissible. I, MOTION TO WITHDRAW AND STANDING In our April 24 memorandum, we discussed in detail Mr. Saporito's charge of intimidation and we invited him to resolve that charge, which he has not done. Our discusskm, which now contains our reasons for denying Mr. Saporito's motion to withdraw as the person on whom NEAP relics for standing, follows: 11 Unpoven Allegations and Ambiguities A linproven Allegatkms Mr. Sapwito stated in his maakm that he was withdrawing both as an indevidual1%titioner and as a person m whorn NEAP relies for standing because he felt intimidated by actions d the Applicant. Ilowever, he has not persuaded the lloard that there is any valid reason for his serious dierge d intimidstkm.8 lFuoinose in original.] An allegedly intimidating event of whidi we have been informed is a tener of March 7,1990, sent by Mr. John T. Ilutler, c<nmsel for Applicant, to Mr. Saporito's empkiyer. We have esamined that leuer and have concluded that it was a simple factual inquiry for the purgene of confirming facts canicorning Mr. Sapurito's empkiyment. *!here is vioihing in the neuer that we etwuider to be intimidating. Indeed, all the letter may have ikme wkh respect to Mr. Sapwito's employment relationship is to bring to the employer's atientkm, in a neutral manner, a fact that is ccenmon knowledge and that Mr. Saporiio ressunably must have espected his employer to learn during the course of this litigation: that Mr. Samvito is involved in a case effecting I'lorida l\\mcr and IJaht, a cuntuner of Mr. Sapwito's employer. In addition to the March 7 leuet. Mr. Samnito's eenpkiyer also received a copy of a letter sent by Mr. Ilutler to Mr. Saporito <m Mardi 19. In that letter Mr. Ilutler assum! Mr. Saporito that 'neither 11orida l\\wer & t.ight Ctwnpany rn.r I ha t any hostile or coercive motives in making the inquiry lof March 7)." Since the contents of Mr. Ilutler's le%r was sus directly relevant to any intetest d Mr. Saporito*: employer, there skies %s appear to 8We du nra fmd that *latervemw's Answer to Appheant's Apr013.1990 Respe.se...." Agml 20.1990, is a permissible fding because it is a vrply to Awhcant's answer and is fait provida/ rar wider the rules. hanhermars, we do not rind any gami cause ror permining peutsoner to reply because itIas not danumstrated that there was anyoung in the answer that could be coruidered a surprise. l 512 l i 1 o

l he any status reason f(s him to have sent a swy of the lenier to die employer and - in light of Mr. Simpoeito's earks annplaint - Mr. Butler snight as Dy have traicismied dat Mr. Sapurino andd have feh coerced t y this pocedure. Mr. Hutler could have avoided the appearance of coercion by not cayying the employer, llowever, he may also have felt diat die neuer w(nild reassure the employer stans there being no coercive inters and we had that die ruutine cgying of that letter does na, by hself, semestraie enercion to this Board. After Mr. Saporito cruiv4ained in a 6hng of March 9,1990, that the March 7 leuer was heimidating, we had an irnernal Board discussim about the attegation, but we did not c<snrnunicate to anyone our conclusion dist no iraimidation had been demonstroicd to us and that there was, therefore, no need for us to act on Mr. Samvito's filing, whie did not request any specific salon on our part. At the Prehearing Conference that we held in Miami tai March 23,1990, Mr. Saprito apparendy also was in posessian of a copy of the March 19 letter. Yet, Mr. Saprito d d not raise die questian of coercion at that time, and we did nas rule on it. Sutsequeraly, we have learned frurn Applicars' (footnote in originall that Mr. Sapurito filed a currg4oint with the Departmera of labor concerning the Mard 7 latier; and that his cienplaire has been dismissed. h is innportant to the t.lcensing floard to get to the buttorn d this matter. It is not acceptande for me pony to coerce anodier in a poceeding of this bnpartance. It also e not acceptaMefor e party to accesse another of coercion on our record without sepporting fact: l emphasis supplied). We also admit to being puuled by charges of beimidation in this matter, for Mr. Sage. ito's fear of intimidation does na keep him from: (1) contirasing to make public accusations against An4icara,(2) filing charges before the Departmere of tabar against Anilicera, or (3) continuing to represers NEAP - though, apgureraly,in some "nonpersonal" rr,anner that causes him to wara not to be the source of standiig for NEAP. On May 5,1990, Mr. %omas J. Saporito, Jr., filed NEAP's Response to the ALSB's Memorandum and Order." In that filing, Mr. Saporito had an opportunity to address the Board's serious concern that one party should not accuse another of coercion without supporting facts, lie did not address that concern.5 lic also did not address the following question asked by the Board: Applicant's Response to Notice of Withdrewel inun Prar-Ans. Apr013,1990 (Respanse), at 3. Accordmg 4 to Appleuers, Mr. seponio made e complaint wuh the Depenmars of tahar wider the "Whistleblowing" $istute, sectwa 210 et the linergy Renreanizatian Act (42 U st 4 5s51), based on 0.s March 7 louer, his ownplaint was dismissed by e inner of April 2,1990, from large Rivug Assistant Duectar, hnplopnera Standants Administration, Wags and llaur thvisian, U.s. Depenment of labor. 8'Amlicant's Reply to hup's Response in the ASt.B's Memarandum and onter" was fdad May 17, 1990, and the *NBC Staff's Reply to NEAP's Response to tacensing Buerd's Manorandum and onter of April 44, 1997' was filed May 24,1990. Ikah parties chose to ignme Petitioner's charge ofiraimidation and did nat address whether er na we should grant all er pan d Mr. $aparuo's maian to withdraw. his is, el couret, not surprising, Mr. Sapaito's withdrawalis esnantial to Amlicant's s'id Staff's argument challengmg hup's standmg based on another *mseher" who claims in be a hans for mandmg. Ilowever, we are pernausd - in the interest of justice and to prevent mangsdati<m of this Isoned - to al. dress an apparent susmpt by a pony to raise a procedural issue fnvalmuly, whethw er not snather psny would have un do sa (Conum.e4 513

if he (Mt. Saporitol is a member (of NEAPl. then why is he not willing to mahorize himaclf -seting far NEAP-to represent himself? Based on this failure to supply information, we conclude that Mr. Saporito was not subject to any coercion and we order that all material alleging coercion shall te considered to be struck from our record. We also caution Mr. Saporito not to make defamatory charges in this proceeding unless he is prepared to prove them. Ibrther unsubstandated attacks could constitute grounds for barring him from participation. in light of our finding that Mr. Saporito was not coerced and in light of his failure to explain why he is not willing to authorize himself to represent himself, we conskict his motion to withdraw himself as the basis for NEAP's standing to te frivolous and we deny that modon - whose effect would be to place in controversy a procedural issue concerning wh.4ner another person could te tre tesis for NEAP's standing.' (Were Mr. Saporito a lawyer, fully informed of the possible consequences of his motion to withdraw, we might grant his motion and rule that NEAP is no longer a party. However, given Mr. Saporito's lay status, our denial of his modon will give him a chance to consider the full consequences of his request.) ilowever, Mr. Saporito's modoa to withdraw as an individual is granted tecause it does not create any new issues for us to decide. We caution Mr. Saporito not to engage in procedural mareuvers whorc principal purpose appears to te die creadon of new issues for dec8sion in dils case. If Mr. Saporito continues to withdraw himself as the basis for NEAP's standing, he may do so. Ilowever, he is the sole basis on which NEAP relics and NEAP has already had all the opportunity it needs to establish standing; it may not file any further documents alleging a new tcis for standing, llence, if Mr. Saporito falls to assure us of his willingness to have NEAP represent him (by complying with 12 of our order, below) the entire basis for standing for NEAP fails and this case will te dismissed. We nues that (wure Mr. Saporita's manon granted) we are indined to ismy standmg bened on the alleged standmg or slurley Baranaff - wharn we rmd. (1) has no ciound. ether rarsial er through her - ? 4-activines (which she did not discuss le her arridavis deegene tsar invitanun to do so) over NIAP and (2) became a member % Quad Oty Otizens for Nuclear Arms Contror' and saa rar herselt. (see har eeruracete er membership.) Thera'ws ehe lads the indicia of membaship mquisite to prtwide a Isais for NIMP's standmg. fleeld AsmarcA Gay v. Kennedy. s2 IER.D 21 (D.D.C.1979); surm Cheb e Aiorspa. 405 U.S. 727. 739 (1972); float v. WasAsagema sasar Apple AJ.orkring Cosiamanon. 432 U.s. 333.M3 0977); Clea&are. lac. v. Amanel. 722 F. supp.1442,1451 (EA Eck 19s9); coagwe Censokdated Eeron Co. q(New Ye & Onihan Puus. Unit 2), tJIP-s2 25. ls NitC 71s. 736 (19s2)

• At the beginning or the preheanns conterence, Mr. Serento wvealed his strong feelmas that his own standing was not necessary fw hT.AP's standmg. Tr. s-6. At that time. he acknowledged that the issue was moot. Tr. 6.

Ihmever, he has since take steps caiculated to mise the issue that we all emsidered mnnL 'The Board is not pleased by this apparauly cuiunved attempt to caone us to emaider an issue that all agreed was mool 514 i l L

II. CONTENTIONS A, Legal Setting

• Dils case represents one of the first in which the Commission's recently amended contentions requirement is applicable. Consequently, it is appropri-ate to set forth the full contentions requirement as it appears in 10 C.F.R.

I 2.714(b)(2): Each consentim must consist of a specific stater.ent of the issue of law or fact to be raised or controvened. In addition, the petitioner shall provide the following information with respect to each contention: (i) A brief explanation d the bases of the consention. (ii) A concise statement d the elleged fact or espen opinion on whidi the petitioner intends to rely in proving the contention at the hearing, together with referenas to those specinc sources and documeras of shidi the petitioner is aware and on which the petitioner innsads to sely to establish those facts or empert opinion. (iii) Sufficient information (whidi may indude information pursuant to paragraphs (b)(2)(i) and (ii) of this section) to show that a genuine disguas entsts with the applicant un a material issue of law or faa. %is showing must include references to the specific porticms of the application (including the applicant's environmersal report and safety report) that the petitioner disputes and the supporting reascas for each dispute, or,(f the perisioner beliens that the application fails to contain igormation on a releuant matter as required by law, the identf(station of each failure and the supporting reasont for the petitior.er's belief. On issues ansing out of the National Environmental Pblicy Act, the petitioner shall file cornentions based on the applicara's environmenial report. De petitimer can ernend those cornentions or Glc new ccamentions if there are data or conclusims in the NRC draft or Gnal enviremental impact statement, environmental assessment, or any supplements relating thereto, that differ signincantly from the data or conclusions in the applicant's document. (Emphasis supplied.l 11, General Description of Contentions Although petitioner submitted lengthy contentions that purported to comply with the contention requirements now in effect, on examination vc find that they consist primarily of allegations - based on Applicant's own admissions - that Applicant has in some instances relaxed requirements in the course of amending its technical specifications. Generally, petitioner failed to advance an independent basis for any of its contentions. Instead, Petitioner relied entirely on alleged omissions in Applicant's analyses and said it intended to support its proposed contentions by Mr. Saporito's expert opinion, by interrogation of Applicant's witnesses, and by discovery, without any indication of the analytical basis for further inquiry. 'Diese allegations of omission were always based on assertion, without any specific source of evidence concerning the importance of the alleged omission. 515 i i 1 t l l l

The question this presented to us was: could an allegation, tesed solely on an admission of Applicant, that some of its technical specifications are being "rclaxed"- while others are being made more rigorous - form the basis of a contention that should be admined under the newly applicable rules? We have concluded that there is no simpic answer to this question but that we must look further and examine Applicant's explanadons for why a particular relaxation is not hazardous, if Applicant provides a clear explanadon that is not directly challenged by Pedtioner - through evidence or citations to sources or reasoning - then Applicant's admission of a " relaxation" is not by itself sufficient to admit a contention. If, however, Applicant's " analysis" is merely conclusional and therefore fails to provide any assurance that its " relaxation" is safe, then we accept Petitioner's relianc0 on Applicant's admission as sufficient grounds for the admission of a contention. Applying this standard, Peutioner NEAP has presented contentions that are properly admitted. Since NEAP provisionally has standing,' tased on Mr. Saporito's membership, NEAP may be a party and may be referred to as "Intervenor." "Peutioners Amended Peution for Intervention and Brief in Support Thereof (Amended Peution)," March 5,1990, contains fifty-six proposed contendons. The first two contentions are environmental and shall be reserved for later discussion. The twenty fifth contendon relates to facts that are not related to the change in technical specifications, as we shall discuss below. The other contentions (3-24 and 26-56) follow a uniform format that we shall proceed to analyre, for the purpose of communicating accurately the issue with which we were faced.' In Thble 1 we set forth Petitioner's third contendon verbatim. We have added to the contention our titics, which we insert in all capital letters, for the purpose of indicating the apparent purpose of each section of the contention. Then, in de right margin, w have inserted our comments on the individual sections of the contendon. We note that Contention 3 relates to a change in wordinF of the technical _ specifications and is in this respect different from some of the othef contendons.' ilowever, the tesic approach is the same for all contentior.s. In the succeeding portion of this memorandum, we will analyre cach sec-tion of the transcript of the prehearing conference and the related documents to determine whether the criteria for admission of contentions are met la those 'see ordering 11 Wm 8We cmsider la enar oNigatim to en rath our seasoning fully beh because this fachstes review or our desnrunstian and the une or our decisim by future parties who wuh to be guided by pier cases. ' AD the participants agned with the Boerd that the paper place to evaluate the effect of the onussion er de6:utions is with respect to stume subsianuve settians in which the omission or e dennition changes the required actiart b 22-32, 516

1 l analyses, we discuss the rationale advanced by Applicant for determining diat cach sclaxation" does not have significant safety consequesices. Because threc J of the Applicant's explanations with respect to safety contentions are unsatis-factory, we admit three safety contentions and two environmental contentionr. TAllLE 1 UNIFORM FORMAT FOR CONTENTIONS NOTE: Petitioner's leading for the contention we analyze is: Contention Jt Statement of the issue oflaw orfact to be raised or controverted. Descriptive Title (Provided by Board) and Text of Contention 3 lionrd Comments PURPOSE STATT:. MENT (a) The license amendments his statement is requested by the Applicant to the true, flowever,it Arkey Point operating licenses DPR 31 does not grovide and DPR-41 for hrkey Point Units 3 the tesis for a and 4 respectively, would authorize contention. replacement of the current plant Custom 'Ibchnical Specifications (CTS), with a set of technical specifications based on the Westinghouse Standard Tbchnical Specifications (STS). FEAR OF CONSEQUENCES (b) %c license amendments sought his statement by the Applicant, to revise the Wrkey contains general Ibint (CTS) with the Westinghouse (STS) fears that are will cause the plant to be operated nr4 grounded on unsafely because of the related sqfety any technical margins contained in the Westinghouse concerns about (STS), resulting in a release of radiation die proposed and fission products into the environment changes in technical which will enter the food chain causing specifications. loss of life, due to cancer and other related illnesses, to the general public and radioactively contaminate hundreds of miles of land and privately owned property and homes, solcly dependent on l. 517 L l-1. l -.w -w.- w.-+a e -r ...m

TAllLE I Continued the prevalling air currents. [ Emphasis added.] DESCRIP110N OF CilANGES (c) Specifically, the amendments '*att.nent of a would change the CTS at specification change from the 1.0 and Table 4.1 1 omitting the CTS to the STS. following Technical Specification No statement of definitions:

1. SAFETY LIMITS, the tesis for a

2. LIMITING SAFETY SYSTEM contention. Note:

SE1 TINGS,3. LIMITING CONDITIONS this is the only TOR OPERATION,4. PROTECTIVE part of the uniform IN$1RUMENTATION LOGIC, format that changes S. DESIGN POWER,6. REACTOR from contention to COOLANT PUMPS,7. ENGINEERED 6ontention. Often SAFETY FEATURES,8. REALTOR th.'s part alleges PROTELTION SYSTEM,9. SAFETY a "xlaxation." RELATED SYSTEMS AND COMPONENTS,

10. PER ANNUM,11. REACTOR COOLANT SYSTEM PRESSURE 110UNDARY INTEORITY,12. COOLANT LDOPS,13. IIEAVY LOADS.

Note: the next portion of the discussion of Contention 3 is preceded by the following title: Concise statement of the allegedfacts or expert opinion on which she Petitioner latends to rely in proving the contention at the hearing. SERIOUSNESS OF NUCLEAR ACCIDENT (a) Petitioners would state here Petitioners state that the alleged facts supporting Contention their fears. 'Ihey 3 are that any release of radiation and do not state how fission products from a nuclear power Applicant's STS plant adversely affect human life and will contribute to the environ. ment as a whole and that the those fears, in relaxed safety margins evidenced in the other words,"the Applicant's (RTS) provide the means and means and method" method for such a release of radiation are not specified. Ond fission products into the environment. Petitioners cite Applicant's word: " relaxed." $18 L I 1

m l f ' TABLE 1 Continual NAME OF W11NESSS . (b) Peutioners will rely on Oc Petidoners name, expert opinion of Womas J. Saporito, witness withoe", - Jr., Executive Director of tie Nuclear providing ary idea - Energy Accountability Project (NEAP), about what he may in support of Contendon 3. See N]idavit

say, of Thomas J. Saporito, Jr.

CROSS EXAMINATION (c) Petitioners wf11 rely on Petidoners fall cross examination of Applicant's to state any witnesses to support Contention 3. analytical basis for cross examination. GENERAL REITRENCES References to those spec (lic do: uments . on which the Petitioner intends to rely to estab!!sh thosefacts or expert cpinion: (1) Applicant's (CrS) and (RTS), %cre are no (2) Applicant's Safety Evaluation for specific No Significant flazards Consideration, citations. (3) Applicant's Undated Final Safety Analysis Reports, (4) Federal Reg! ster Volumes 48, No. 67 at 14870, (5) Other i documents which Petitioners may find l through further research or which i Ittilloners may obtain through discovery l in these proceedings. l !!!. DISCUSSION OF SPEf'IFIC CONTENTIONS A.' Withdrawn Contentions De following contentions were withdrawn by the Petitioner at the prehearing ' conference and are no longer at issue: u 1 Sn. um. wim.n nu t s.pmim. L., n.puit a i en o. awm. L 519 i l l i s l

+ ~ au portions of Cmdention 3 other than those related to the deAnitions of " safety j e limits" and limiting safety system settings. (Tr. 22,29 (Staff statement, uncontre. dicted by 14titioner).). the portion of Contention 3 relating to the ornission of the defmhions of

• safety e

limhs" and limiting safety system settings flh 27 29,30, $132), with the under. standing ther these omissions may be m sidered with respect to particular poruons of the astrdcal specifications where it is alleged 0.at the change has an effect. Comemian 10 [Tr.102). J AU of Contersion 12 hut that part that deals with the frequency of RCS horon e concemration surveillance. ~ + - Comenica 13 (Tr.130 31). Contention 14 encept for the portions stating: (1) ht the boric acid pump need only be available when iu associated flow path is required in be operable, and (2) ' permitting hot standby for 108 hours after loss of operability of a charging purnp. [Tr.13143.) e Contentions 15, 17, 19, 20, 22, 23, 24, 26, 27, 28,29, 31, 32, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 52, 53, 54, 55, 56 (Tr.144,150,154, 158, 163," 168, 175,181). 'll ' Contention 4 Petitioner's proposed Contention 4 states: Specincally, the amendments wuuld change the CIS at specincation 1.0 rnd Table 4.11, s Surveillance tables pages 3 8 to 310 of the RTS utilize frequency codes which are defined . in Table 1.1 in section I at page 1,7 of the RTS. %erefore, plam operators will experience increased and greater difficuhy using the surveillance tables at pages 3 8 to 310 of the R13 since the operators will ham to refer - back to the frequency code table in Section I, at page 1,7. His change moosporated in the RTS as compared to the Cl3 which provides a frequency. 1 code table with the surveillance Table 4.1 1 increases the probability of gerece <ttror which cculd resuh in missed surveillances and unsafe plant operation - This contention relates to an editorial change in the current technical spec-ifications, in the current technical specifications. the delmition for urtdn fre-quency codes used in Tabic 4,11 was contained at the end of that table. In the revised technical specifications, these codes are defined in Section 1 Tabic. ' l.1 - which provides more speclGc definitions than do One current technical-specifications. 'Ihat is, definitions have been transferred from footnote status to an earlier section of the Technical Specifications, where they are more fully defined. UAhhnush petitioner spoke or Contention 31, he addressel the substance of Contanum 33 and purposely sidaml

over Conientions 31 and 32. See Tr.16s.

520 s 6 4 7 4

l Petitioner did not offer any facts and cited no expert sources on this pibject and presented no reasoned statement of why this was unacceptable (see 'IT. 33-41,43 [ discussion of Judge Bloch and Mr. Frantz]; D. 44 [Frantz for Applicant operators are fully trainedl; compare 'IY. 44-45); hence, the admission of this contention is denied. There is no genuine issue of fact raised pursuant to 10 C.F.R. I 2.714 (b)(2)(ll) and (iii).82 C.. Contention 5 Contention 5 states, without furtier specificatic that "RTS, Table 4.3-1, section 3/4 at page 3-8 relaxes certain suryciliance requirements (without specifying which reguliements)...." At the prehearing conference, Petitioner clarified that he is concerned that (1) the power range neutron flux detectors may be excluded from channel calibration both for the high setpoint and the low setpoint (IT. 46-49); (2) the test frequency for overtemperature Delta T is decreased from biwcekly to every 31 days (lY. 49); (3) the test frequency for overpower Delta T is decreased from biweekly to every 31 days (Tr. 49); and (4) there is no test for. under voltage 4.16 kilo volts" (D. 49). Petitioner also provides the following statement of reasons: I'd also like to point out that over-temperature Delta T and or.r-power Delta T and under. voltage 4.16 KV have been analyzed in the current technical specifications s3fety analysis of the planr, so to change these frequency surveillances is definitely going to affect the health and Sa'ety of the public because it's going to provide a means and a method to release Assion prodrcts to the smvironment. Tr.SL 'hese concerns are addressed in the No Significant llazards F ;/uation, Appendix A 3/4 at 31, which discusses the changes in test frequency m detail. In particular, it relics on a Westicghouse Owner's Group study, WCAP 10271 series. In light of this reference, we find that Petitioner has not show us how Applicant's analyses are in error or that they have made a significant omission. Consequently, the contention is not admitted. I30ur memoranewn deAnra the failure to denumsusic a gamine issue of fact sa a f ilure to provide any factual evidence or supporting documans that produce some enuht about the adequacy of a spe ined portion er Apphcant's doewnents tw that provides supporung usastma that tered to show that there is sous specined omissum from Appbcast's docuenents. See 10 CF.R. 5 2]14(b)(2)Ci) and (iii), 521 l

I i l'Q D. Contention 6 Proposed Contention 6 states: Speci6cally, the amendmeriu would change the CIS at speci6 cation 1.17.83 In the R13 the dc6nition of OPERABILITY requires electrical power" for system operability, and the AC power source sequirements are dc6ned by the AC sources Teds.ical Specincatum. Where one of the AC sources is inoperable and a component in the opposite train of a redundant system is ingiershle,the CIS require that both d the redundant trains be declared ingierable. %e RTS permit the ACIlON restrictions of the AC source to govern. De CIS would typically require MODE reduction within 7 hours pursuant to T.S. 3.0.1. De R13 requires MODE reduction within 14 hours whm one Diesel Oenerator and an opposite train component are inoperable. his rela.ation of the safety margins discussed abcr c is unaccepsable because h provides for an increase in the time permined for MODE reduction from 7 hours to i4 hours. ' AdditLmaDy, this relaxation of the safety margins would prwide for one train of a two train safety system being inoperable at the same time that nne of tiu two AC sourus powering the opposite train componets is inoperable, h Contention 6 deals with a " relaxation" in technical specifications purwE to an NRC letter dated April 10,1980, to all power reactor licensecs from 4x Division of Operating Reactors. The purpose of the letter was to clarify "the use of the term OPERABLE as it applies to the single-failure criterion for safety systems," "Ihc letter states that: By and large, the single failure criterion is pieserved by specifying tJnuting Conditions for Operation (tfOs) that require all redi tant components of safety related systems to v be OPERABLE. When the required redundancy is not maintained, either due to equipment failure or maintenance cutage, action is required, within a specified time, to change the operating mode of the plant and to place it in a safe credition. De specified time to take action, usually called the equipment outof.se vice time, is a temporary relaxation of the single failure criterion, which, consistent with overall system veliability considerations, proAles a limited time to fix equipment i,r otherwise make it OPERABLE. If equipment can he returned to OPERABLE status within the specified time, plam shutdown is not required. Letter at 1. The gist of the letter is that there must be full redundancy of systems, llouver, one system may lose a source of power (cither on site or off site but not both)ii providing "all of its redundant systems, subsystems, trains, components and devices arc OPERABLE, or likewise satisfy the requirements of this specification." Enclosure 1 at 3.0.5. I3rnia appese is be a citatica to me Krs. l' At the proleninary bearing. Judge Bloch asksd a quesdan that showed that he did ass pioperly tavlerstand the assure of this changs in technical specirications. lie behoved that this specincede permined one of two ahemative soutees of offsite power to be unavailable but that this change had nothing to do with smersecy ensite power. his apparently inconect view was,however, conoborated by enunssl for Arplicant Tr. 5663, 522-m

ne Revised Tbchnical Specification has adopted this Staff suggestion. It obviously does represent a " relaxation," as Applicant admits: previously two sources of power had to be availabic for a safety related system or the system had to be declared inoperable and now conditions are specified where a system with only ore power source can be operated temporarily, llowever, Pedtioner does not provide any technical opinion or reasons to believe that the change is unsafe; in particular, it is not shown to be in violation of the single-failure criterion 15 Tr. 55-63, 65, llence, Petitioner has not given us a reason to determine that there is a genuine issue of fact with respect to this conter. tion and it shall not be admitted. We note that this change in Tbcimical Specifications also increases the umc allowed for mode reduction (thile operating in Modes 1 through 4) from 7 to 14 hours. No Significant llazards Evaluation, Appendix A et b5. Compare Revised Technical Specifications at 3/4 0-1,63.0.3, which appears to differ from the No Significant flazards Evaluation. His time allowance exceeds the Model Technical Specifications atiachc4 to the April 10,1980, Staff letter on which Applicant relics for its technical specificadon change, Section 3.0.3 of the Model Technical Specificadons requires that the unit be placed in at least ilOT STANDBY within I hour and at least IIOT SilUTDOWN in the next 6 hours. Ilad the Pedtioner cited this sourec, we would have required Applicant to resporxt. None of Applicant's analyses clearly states the risk - in the form of - possible accident sequences - that is being avoided by mode reduction llence, it is impossible for us to evaluate the appropriate duration of time before mode reduedon is required, it is obvious that permitting operation during an equipment out of service time is a potentially dangerous pracdcc. Because the time of out of service operation is limited, there is little total risk during this time and therefore littic chance that empirical evidence will become available with which to evaluate the 35The saplanauan of the basis for the Staff leuer is not wholly satisfying to the aoard. has is no escussian. fa example of what new r' 's occur for reactas because of this change nor of what analyses have been ems to pnwide assurance that h is appropriais to permit each near siaka to occur during the lirnited out of esrvice time. Nor la this mauer cleared up by Applicant's No significant llazan' F. valuation at 1.17. h is not clear why Applicant has concluded that three naka are acaeytable. If they have not already done so, we urge Agylicant and Statt to pay detailed sinentie io poenble risks. Joe Tr.116 (staff cotessel agrees wi.h the acani ha Applicant should haws though ihmugh what sequences they are inviting through the relanatiet of. ._ 1 llowever, we stiB conclude that Petdioner failed to suie en adrnissable cornation. %nush the request far an amendment does not appear to be as well analysed as we would like, petitioner failed to address the suff's techracal louer at all and failed to suse a seasmed, doc enented basis fa believing that this diange was unsafe. hus h dLJ not mesa ihe genuins issue aquirernant af 10 CF.R. 5 2.714(bX2Xii) asel (iii). We note that 10 CF.R. 6 500 staus that epersiers nunt demmstrate that their alierns ive AC pnwar sources wiD emotituie accepable capabihty to withaund staunn blackout," presumably under adveres operating condaims such as atight occur sharing the tunited out-of earvice tins limwever, Applic.nt la not yet requimd to cunply with this regulation. which goes into effect acconhng to a schedule filed by Applicant.10 CF.R. 6 50(d(cX4); Tr.2LE 523

extent of the risk occurring during implementation of this praedce. So it sec m to the Board that it is particularly important that risks during out-of-service tifnc le carefully delimited by analysis. As no such analysis appears to have txst - done,I' we ask the Applicant and the Staff to carefully scrutinire these prr> visions and, in particular, to andcipate possibic accident seqtences that are being risked and to take appropriate steps - including reducing the risk cxposure - if the analysis indicates some new groufLis for caution. See 'n.108-17. In this instance, however, Peutioner's assertions that tlere is increased - risk from this technical specification change is based endrely on Applicant's admission that there is a relaxation of requirements here; and we do not think that the admission, without more, is enough to provide a basis for this contendon in light of the Staffletter supporting the Applicant's posidon. Petitioner brought no expert opinion to bear to show what risks are being taken and only the Board - and not Petitioner-has advanced reasons to be concerned about Applicant's new procedure," See 'R. 65. Consequendy, we find that Petitioner did not show tic existence of a genuine issue of fact and this contention is not to be admitted. E. Contention 7 Proposed Contention 7 states: Specifically,the amendments wmld change the Cl3 at specificatie 2.1.1. W Cl3 require, at the selated section 1.t. that if any safety limit is cacceded, the associated reactor shall bc shut down until the AEC authorizes resumplim of opentim. The CTS at section 2.1 provides for fuel cladding integrity as indicated at B2.1 with a design pressure of 2485 pois for safety valve set points. Addinonally the CTS include requirements for "IWO and ONE loop operation, and natural circulation.

• lhe RTS are less restrictive because they do not include requirements for TWO and ONE loop operation, and natural circulatim. 'Ihe R13 retax exisnns safety margins in the CIS by permitting a (one hour) time requirement for mode, reduction in the AC110N statement.

In the RTS at Figure 2.t.1, the reactor core safety timits appear to be outside of the safety margins described in the CT3. I'The Anheara's No sianificant llaarda livaluaum does aos smalyn this situatiert hunead,it uses the foDowing 3meraDy high sel;akhty, ma:S nal reshctim in overall system relish 0ity, slight i phrases to suppiara analysis: a increase in tirne, generally high seliabiluy, and entranely renune. No considerstice has been given to specific accidas scenados and no probaMlities have been eeunuiad. The full "analyas,"in Agendia A et 1 s,is: The potential relaxatian discuanal above is acceptable becauss of the scaersDy high intiabuity of the A-C somees, the marginal reductim in oversu system reliabihty due to the tempanary ensvailaMhty of one el the two A C smrces and wie shsht incsease in time allowed for the mode mh' ion O to 14 hours). Also, she to the generally high reliaklay or the safety systems in the plant, the hkahhood of one train er a two unin safety system bems inoperable at the sane time that me d the two A.C somcas powenng the agasiis train campanents is ingershlag is entranely remets. IIAhhaugh we might declare a sus spone issue en the smund that this issue is important to safety, we uust the staff to respond syn pathetically to me sugaatim and we do not, therefore, think it necessary to make tNa a matter set for heatmg. $24

I In this contention, Petitioner challenges a portion of Applicant's proposed technical specifications that appears to be more restriedvc than the prior version. In the proposed specifications, Applicant has deleted the sequirements for one-and two-loop power operation. They have donc this because power operation with less than three loops has not been analyzed in the safety analysis and, derefore, should not be permitted in the technical specifications. Proposed "Ibchnical Specificadon 2.1.1, Appendix A at 21. Since Petitioner does not show how this apparent tightening of the technical specitkations is less restriedve, we find no genuinc issue with scspect to that part of the contention. See 1Y. 68 72. There is another potential issue lere concerning whether or not dere has been a change in the time required for mode reduction. Applicant claims that "(a]n ACTION statement is added for consistency with the Standard Technical l Specification." The Action statement permits I hour for mode rc/ 'lon for exceeding a combined limit for thermal power, pressurizer press' 4 the highest operating loop coolant temperature. Proposed Tecimical S %.ncation i 5 2.1.1 at A 21. We note that Applicant does not discuss what acdon was appropnate under the current technical specifications, prior to the addition of this action statement - so we do not know prccisely what change in practice has occurred. Ilowever, tic revised procedures have a separate section dealing with the reactor trip system, which produces faster shutdowns than the I hour required by 5 2.1.1, Ibrthermore, they contain a nicar statement that the plant must be in hot shutdown within an hour (6.;,1,1), that the NRC must be notified "as soon as practical" ($ 6.7.1.a) and that critical operation shall not be resumed without permission of the NRC (5 6.7.1.d). This appears to comport fully with 10 C.F.R. I50.72 and, since Petitioner has given us no rea on to determine that there is any uncovered situation for which faster shutdown than I hour is required, we find that there is no genuine issue of fact and do not admit this portion of the contention. See also 1Y. 73 (representation of counsel concerning current practice). Still another potential issue with respect to Contention 7 relates to Petitioner's , argument, at TY, 84 85, that: iT]hc reactor core safety limits appear to be outside the safety margins described in the ct.trent technical specincation, And in that revised tedmical specincation Figure 2.1 1, the K13 at 110 (percent) power (has al Delta T i(T-everage = 1/2 (T-hot + T-cold)],.. at . 2,3&5 pai, [of]... approximately 620 degrees fahrenheit And that has to refe? to their Agure 2.1 1 Hat is compared to the cunent tech spea at i10 p ecent... at 2.385 psis... (ofj approximately 627 degues F. Ilowever, both the Applicant and Staff stated that there was no change in this particular figure from the current technical specifications. llaving checked both the current and revised specifications we also are not aware of any change. 525

Therefore, it appears - as Mr. Saporito ' stated at the prehearing conference at Tr. 87 - that Mr. Saporito was misled by the docamentation he used into believing that a problem czisted when in fact no problem did exist, llence, this portion of the contention shall not be admitted. F. Contention 8 Contention 8 statesl*: Speci6cally, the amendmesa would change the CIS Icurrent tedmical specincadonal at specincation 2.1.2. %e CTS require immediate plant shut down and compliance with Administrative Controls in section 6.3[;1... page 631 contains the reporting sequirements he KIS [ revised technical specincadensl. in en A". TION statement. require plant shutdown within I hour and compliance with Administredve Controls in Section &7.1 if the safety lunit is not met in MODII I or 2. Derefore, the RTS represent a relaxation of safety margins existing in the CTS. 'Ihc lack of admissibility of this contention is governed by the portion of our discussion of Contention 7 in which we discussed 52.1.1 in the revised technical specifications (with respect to TIIERMAL POWER, pressurizer pressure, and the highest operating loop coolant temperature) that require plant shutdown within 1 luur and compliance with the Administrative Controls in section 6.7.1, We find that the same procedure, when applied by 6 2.1.2 to Reactor Coolant' - System pressure, fully complies with 10 C.F.R. 650.73 and that Petitioner has not demonstrated that there is any significant safety concern, llence, this contention is not admitted. G. Contention 9 - ' Proposed Contention 9 states that "[tlhc RTS relaxes the CTS by providing for channel drift in the reactor trip set point table 2.21 at page 2-4 in the RTS." llowever, the table in the RTS does not contain any values for channel drift and therefore does not make any subetantive change in prior operation. In addition, we have been assured by Applicant that it would require a new amendment to insert a value into the blank column on this tabic. Tr. 92." Ilence, we conclude is At the prehearing conference, we icvited Petitioner to specify errors or emissions in Applicant's surpating analyses. In our memorandum. we have addressed mly those issucs for which Petitioner has suempted to show enors er emissions and have treated other postums as withdrawn. Ibr example,in Cornention 8. Petitimer had argued that *tlw amendmanas wouki change... speci6 cation 2.1.2 and... [the " reporting sequirements" all lE3 [han been retaseJP Camen ion s. Ilowever. as Applicara samed, pure is no i2.1.2 in the cunent technical s speci6 cations and 66.3 is irrelevant. tmer of April 4,1990, Dese problems appear to have resuhed from Petitioner's use of cuidated doeurnents. "We interpat the comersation in the transcnre to constitute an assurance in us. If k is not, Applicant should nraily us prompdy of our enor.

6 526

e that there is no change in the referenced portion of the technical specifications and no genuine issue of fact. The contention shall not be admitted.

11. Contention 11 The proposed contention states:

he R13 r lanes the C13 beonuse MODE Applicabitity is ear. licitly defined for each Surveinance Requirement and fun:ed MODE reductions required by Action statements will, for the most part, stop with the first Mode beymd the tJCO requirement. In oral argument at the prchcaring conference, Petitioner stated: De Applicant in their safety evaluation admits in some cases that there will be a relaxation i compared to the current requirements. hey even cite an example that the revised tech specs for the emergency core coolant system, the ECCS, the mode aplicability for modes I,2, and 3 and the action statement mode stops at mode 4, while the current tech specs requires - mcJo reduction to mode 5. So the curries tech specs require them to implement a mode j reduction to Mode 5, and then the revised tech specs are not as restsictive. %ey only require made change to Mode 4. b Tr.103. Petitioner then has criticized Applicant for falling to document or to present supporting references for its statement that "in Mode 4 the probability i and consequences from a design basis rupture is reduced." Tr.104. Applicant's answer to this question of lack of analysis is that the change is ~; consistent with the standard technical specifications for Westingimuse plants."

• 1Y.105.' Applicant concedes that there is some risk from being in Mode 4 rather l

than in Mode 5. Statement of Counscl. 'n.106. Applicant also concedes that it j did not provide a systematic review of possible accident sequences that might occur in Mode 4, Id., Tr.108. Nor has the Board or the public been provided with supporting analyses from the Staff's acceptance of the standard technical specifications. Staff Counsel,'IY.113. Under the circumstances, we concitxic that Petitioner has created a genuine issue of fact concerning Applicant's omission from its analysis of consideration of the risks related to the change in mode reduction requirements, llence, this contention shall be admitted with respect to this genuine issue of fact. 1 i MAhhough we are not aware or any analyses accanpanying the staadantized technical specificatinna - and thestfame have a void on eur record - we suspect that there may be very hule difference in sink occuning i because of a 150' difference in taqwature between het and cold shutdown, occumng in a sysism designed for eatenely high pressuna and tronperatures. 527 t i J f 1

I. Contention 12 In oral argument, Pedtioner narrowed Contendon 12 to deal exclusively with its concern that the frequency of surveillance for the RCS boron concentration in olerating Modes I and 2 is reduced from twice per week to once in 31 effective full power days. Ihc No Significant flazards Evaluation - which also constitutes Applicant's Safety Evaluadon23 -in Appendix A 3/4 at 13,justifics this change because: the RCS baron concentration is not directly related to SlitTIDOWN MARGtN in MODES I and 2. he SIIUTDOWN MARGIN in Modes I and 2 is ensured by surveillance of the control rod bank ponian and verifying tha' the rod bank withdrawal is within the allowable wlihdrawal limit. The principal argument Pedtioner presented was the unsupported assertion that the probability for change in boron concentration is greater in Modes 1 and

2. Tr.12122. By inference, Petitioner therefore argues that more frequent surveillance is required to maintain constant boron concentration. Ilowever, Petitioner does not resporxi to the principal argument that the boron is not needed for shutdown margin in these modes.22 llence, this contendon shall not be admitted.

J. Contention 14 , Proposed Contention 14 states: Spee!fically,the amendments would change the CTS at speci6 cation 3/4.1.2.2. (1) nc RTS relaxes the safety margins existirig in the CTS whenas in the RTS a boric acid pump is only required to be operable when iu associated Row path is required to be operahic. (2) De allowed outage time for a boric acid pump is relaxed from 24 hours to 72 hours. (3) he R13 do not require cold shutdown of the plant for a period d 102 hours aher loss of the horic acid pump or the 1:oric acid Row path. '(4) De RTS inchule an explicit Action time for restoring operability of the boric acid flow path which uhimately can result in a lapse of 174 hours before the plant is required to be placed in cold shutdown. - (5) De R13 provide for an explicit Action restriction which addresses an event where both the boric acid source and the iormal Row path through the regenerative beat exchanger is inoperable. Il Tr.179. 233es 10 Cf.R. 6 50.62, whkh is consisumt with the poetion or staff and Applicant bor.use it quises an indepenalet au11hary (or ernergmey) feedweier syntan far pWRs (subsection (c)(1)) rather than a sta utby liquid creand system, whiah is sequiral for BWRs (subsectica (c)(4)). 528

Petitioner objects to relaxing requirements so that the boric acid pump is only - required to be operable when its associated flow path is required to be operabic. Applicant points out in its No Significant Hazards Evaluation, Appendix A 3/4 at 1 16, that the boric acid pump is not assumed to be operable in the safety analysis. Petitioner asserts, without authorit ' hat if safety injection fails, "the only thing you have left is insertion of inon to decrease the reactor's reactivity - to bring it to safe shutdown margin." 'n,131. Since Petitioner does not offer qualified facts, pursuant to tic regulations, or cite a relevant source on this point, we accept Applicant's representation. %cie is no genuine issue of fact and this portion of the contention shall not be admitted. Petitioner also alleged that it was improper to permit hot standby for 102 hours after loss of operability of a charging pump. Petitioner is addressing a mode change where Applicant will go to hot standby with boration for 102 hours instead of cold shutdown. De full statement concerning this "rclaxation" in current requirements is set forth in the No Significant flazards Evaluation, Appendix A 3/4 at 114,6 A.2.c.3, and states: The requirement for restoring operability if the tmwie acid pump or the horic acid flow path is not returned to service within the initial titre puiod is changed from placing the plant in cold shutdown within an additional 48 hours to placing the plant in hot standby and barating to 1% deka-kA at 200"F within the next 6 hours and restoring the plant to operable status within the next 72 hcmars or he in cold shutdown within the next 30 hours. %c logic of this section seems impeccable. De primary function of the j boric acid pump and flow path in hot standby is to provide enough boration to attain the boron needed for cold shutdown margin (i.e., borating to 1% delta-luk). Ilence, if you borate to that standard, it seems acceptable to stay in hot shutdown for some period of time. His would have crxicd our inquiry but for language in the No Significant llazards Evaluation, Appendix A 3/4 at 117 that we do not fully understand. %c language that we do not understand states: l Aher borating to cold shutdown SDM, the only boration system function is make-up for l-loss in volume due to shrink, in the event that this capability is lost in this time interval, IAs pIda/s ability to reduce mdes as required tr lari, but the safety aspect of maintaining [. l the SDM is preserved. So, extending the time period to restore operability to the rumps or flow path does not resuh in an increase in the probability of or impact on the consequences - t of an accident previously evaluated. IFJuphasis added.1 l [ Our concern is that it seems to be possible, during the additional time in hot i standby, to lose the ability to reduce modes; the possible safety implications of j this loss of ability require explanation. Accordingly, we find the Applicant's L cxplanation inadequate and admit this contention for this one purpose, i 529 l l i e V

K. Contention 16 Proposed Contention 16 states: Specincally, the amendments would change the CTS at specificatim 3/4.1.2.4. (1)1he R'!3 would relax existing safety margins in the CTS whereas the RTS change the BAT boron concentration surveillance from twice wecAly to weekly. (2) The RTS wouki Max existing safety margins in the CTS whereas the RTS delete the. BAT level instrwnent wcekly Channel Check. Petitioner objects to a relaxation in BAT boron concentration s3m/.ance from twice weekly to weekly, the deletion of a minimum volume requucment on the primary water storage tank, and the provision of some specified delays in mode changes required because of the inoperability of the Boric Acid Storage System. Applicant explains the basis for these provisions in the Proposed - Technical Specifications, Appendix B 3/4 at 1-2 to -4; it also handles this subject in its No Significant Hazards Evaluation, Appendix A 3/4 at 127. As Staff points out: In the application Applicant states the boron concentration does not very very much over a week, thus making weekly surveillance of the concentration adequate, and that there are a&htimal surveillance requirements which compensate for the deleted channel check. App. A at 3/4123 to 24. Petitioner has not addressed Applicant's discussion of these changes at all.23 We agree with the Staff. Petitioner has failed to show that Applicant is in error or has omitted something from its analysis. See D.146-50 (note that Applicant repeats its assurance that a weckly boric acid tank volume surveillance is planned). llence, there is no genuine issue of fact and this contention is not being admitted. Petitioner states that: their position in the safety evaluatim is that once a week is adequate [ surveillance] because the baron concentrations don't significantly change in Modes 5 and 6. Our positim is the safety analysis is incomplete because they should have cmsidered boron concentration in all modes of operation because that's the way it's established in the current technical specincations. D. 146, Petitioner is correct that the safety analysis presented in the No Significant flazards Evaluation, Appendix A 3/4 at 123 omits any discussion of l the deletion of surveillance requirements for Modes 1 through 4. Since the boron concentration surveillance is reduced for all modes (see 3/4.1.2.4, 6 A.2.c.1, Ustaff flesinese at M 530 l l

y Appendix A 3/4 at 122), Petitioner seemed to have addressed an omission in the analysis, llowever, the Staff addresscd thb ai'IY.150 by stating "the technical spo:ification at issue here appears to be related to shutdown, which would be the modes that were discussed in the safety analysis - in the accompanying no significant hazards analysis." In this assertion, which was not controverted by Petitioner, Staff appears to be correct. llence, there is no genuine issue of fact here and this portion of the contention is not being admitted. Petitioner continues to say: ' You know, they say that that channel check surveillance they werd to deleec, and they say it's not needed because they do a weekly surveil... - they do a weekly dieck on it and even the instrument that's local at the tank - if it indicated zero in there, that there's always 900 gallons remaining in there, 'lY.147. 'lhls we fmd to be an incorrect reading of Applicant's position. Ap-plicant does not assume that 900 gallons always remains in the BAT regardless of the reading of the indicator, What it says is that the indicator never shows less than 900 gallons and that they therefore rely on a weckly surveillance of the DAT liquid volume itself to determine whether the instrument readings are accurate. No Significant llazards Evaluation, Appendix A 3/4 at 124. (Appli-cant also states that "the DAT is not required to be OPERABLE for accident mitigation by the reactor trip or ESF actuation system." Petitioner does not address this ground for asserted safety.) We conclude, therefore, that this portion of the contention - dealing with the DAT level instrument weekly Channel Check does not contain a gequine issue of fact and is not being admitted. L. Contentkm 18 ' Proposed Contention 18 states: Specincally, the amendments wouki change the CTS at speci6 cation 3/4.1.2.6. (1)'lhe R13 would relas existing safety margins in the CIS whereas the RTS increase the allowable outage tirne for one channel of heat tracing from 24 hours to 30 days. / ;>plicant would increase the allowable outage time for one channel of heat tracing from 24 hours to 30 days. No Significant flazards Evaluation, Appendix A 3/4 at 130. Ilowver, the increased outage time is allowed only because there is an 8-hour temperature surveillance to ensure that a proper temperature -is being maintained in the portion of the system that is traced. Id. at 1-31. Petitioner's principal challenge is to question how a temperature surveillance can be appropriately performed in order to ensure that proper temperature is maintained. 'IY.151t No Significant Ilazards Evaluation, Appendix A 3/4 at 531

131, Q B3.a. Ahhough this argument is not directly answered on the transcript (Tr.152-54), Petitioner is not an expert in methods of performing surveillance of piping systems and vt are unpersuaded by his unsupported assertion that there is some difficulty here." In addition, we note that Applicant has stated without contradiction by Pedtioner that the boric acid is not required to be operabic for accident mitigation ('IY.153), and Petitioner has not stated any other purpose for which it needs to be availabic. llence, there is no genuine issue of fact and this contention is not being admitted. M. Contention 21 Contention 21 states: ? Specifically, the amendments would change the Cl3 at specification 3/4.1.3.4. (1) the R13 measures rod drop time from the "beginning of decay of stationary gripper coil voltage to dashpot entry". This contention deals with rod drop time. Petitioner alleges that Applicant admits that the measurement is a relaxation of requirements. 'IY.154. However, Applicant makes no such admission. Indeed, it is clear that the new measurement is more conservative. The prior measurement of rod drop time is from the beginning of rod motion to dash pot entry. The new measurement commences before there is any rod motion.. It begins "from the beginning of decay of stationary gripper coil voltage" and cais at the same time as previously: with dash pot entry. Since the new measurement begins earlier - and ends at the same time-and since the limit on the allowed rod drop time remains the same, it is clear to the Board that tie new requirement is actually more conservative and that there is no genuinc issue of fact here. No Significant llazards Evaluation. Appeixlix A 3/4 at 142; *IY,157 58. 'Ihc contention is not being admitted. N. Centention 30 Proposed Contention 30 states: Specifically, the amendments wmld change the CIS at specification 3/4.4.1.t. %c R13 relates the allowed anage time for a Reavor Coolant loop in Mode I frmi one hour to six hours. Petitioner objects to a relaxation of the outage time for a Reactor Coolant I..oop in Mode 1, from I hour to 6 hours, because operation with two loops MWe engat that the stalt has ascertained during its review or the Rrs. that ternperature surveinance measures are adequate. 532 1 1 ) \\ _m

has not been analyzed. No Significant llazards Evaluation, 52.1.12.b.2. We conclude that this contention shall be admiued. Applicant's explanation is far from complete: R' elating the time limit to be in (get intol" IlOT STANDBY fran one to sin hours will . allow the plant additional time to restore the loop or perform a normal shutdown. Increasing this ACDON statement time lunit will have a minimal inact on a previously evaluated i accident because the ACHON statemen only applies in the unlikely evem of a single RCS loop being lost during MODE 1 or 2. With power above the P 8 sesseint a second plant accident transies during the time imerval of the ACDON stancment is malikely. 'Ihe Reactor Trip System continues to monitor plant conditions during the ACHON time interval and trip functions such as ovenemperature delia.T.or loss of Row are available to pnmde protection during the ACDON time interval Finally, adapting the proposed ACHON time has the polemial benent of reducing the number of reactor trip transients impoecd on the plant.M [All emphasis added except all-caps.] Petitioner challenges Applicant's justification for this change (Tr.160): Increasing this ACHON statement time limit will have a minimal impact on a previously evaluan:xt acciden because the ACTION statement only applies in the unlikely event of a single RCS loop being lart during MODE I or 2. No Significant llazards Evaluation, Append!x A 3/4 at 4 2 (emphasis added). 'Ihc Board agrecs with Petitioner that this particular justification is lacking. An ACTION statemera should not be justified simply because it would be used only rarely. The question is whether it is safe when it is used.. Petitioner also challenges this new outage provision because Applicant has deleted the technical specifications governing operations with two loops, stating. that the safety analysis for the plant has not analyzed the safety of operating with just two loops. Tr.160-61; Proposed Technical Specification 2.1.1 Appendix A at 21 (" power operation (MODES 1 and 2) with less than three loops is not analyzed in the safety analysis"). In an attempt to explain this problem, Applicant crroncously stated that this technical specification permits " hot standby" and not operation and that there is no need for a guideline governing operation.with two loops when all that will be attempted is hot standby with two loops. 'IY.162. Ilowever, Proposed Technical Specifications 3/4.4.1.1 A.2.c, Appendix A 3/4 at 41, states that "[t]hc allowed outage time for a REACTOR COOLANT LOOP in MODE 1 is relaxed from one hour to six hours" (emphasis added). DProposed Teduncal speci6 cations 3M A1.1 A.le. Appendia A 3M at 41, states thatIthe allowed osaage tune for e RFACTOR COOLANT tJDOP h MODE I til La related from one hour en six hours." "No sisninemt llaaards Evaluation, Appmdix A 3M at 4-1 533 4

'a f, ' Since the loss of a coolant loop reduces heat removal capachy, it is important - that operation in this mode even for 6 hours be analyzed. liowever, that apparently has not been done. Nor are we pleased with the Applicant's use of the adjectives " minimal impact," "unlikely event," and "unlikely," in place of analysis. While it may be true that this change increases plant safety through reducing the number of reactor trip transients, that depends on whether this particular change is safe and can be justified. l r O. Contention 33" Proposed Contention 33 states: Specincally, the amendments would change the CTS at specincation 3/4.4.2.t. (t) %e . RTS provides for en Action statanent modined so that an operable code safety valve is not required if the RCS is vented though ari equivalent siae vent pathway. (2) %e R13 relanes the current requirement to test aU safety valves each refueling to only testing a fraction of the safety valves. ~ (3) he R13 delete the requirement of Mode and operability of safety valves. Petitioner objects that Applicant is moving from technical specifications that require more frequent suryciliance of safety valves to the frequency specified in the American Society of Mechanical.inginects (ASME) Code, which has been accepted in 10 C.F.R. I 50.55a(g)(4) as an adequate assurance of safety. Hence, Petitioner (which did not review the ASME code provisions - see Tr.167) appears to be challenging a Commission regulation, which it may not do. There - is, theitfore, no genuine issue of fact and the contention shall not be admitted. P. Contention 35 Proposed Contention 35 states: Speci6cally, the amendments would change the CTS at speci6 cation 3/4.4.4. (1) %e RTS deletes the PORV's from the specincation. (2) %c RTS relaxes the block valve mode reduction from Mode 5 to Mode 4. Petitioner's objection to this change in technical specifications does not challenge Applicant's conclusion that "no credit is taken in the safety analysis for PORV operation in MODES 1,2, or 3." '11.170, flowever, as Applicant has asserted without contradiction ('lY.171-73), the challenged section of the technical specifications deals only with Modes 1,2, or 3. No Significaat Hazards Evaluation,. Appendix A 3/4 at 4 22 to -23. Proposed Technical Specifications Si Tr. to, retitioner states that it is aJ g Contention 31 but he missprae. see Tr.165. 534

3.4.9.3 at 3/4 4 36 and 3.4.2.1 at 3/4 4-7 require that in Modes 4 and 5 there i must be adequate pressurizer relief capacity. See'n.172-73. llence, Petitioncr's objection is not well taken. 'Ihcre is no genuine issue of fact and this contention is not being admitted. Q.' Contention 51 Proposed Contention 51 states: Speci6cally, die amendments wculd char.ge the CTS at speci6 cation 3/4.8.1.1. (1)The R13 relaa calsting safety margins by requiring that if bosh startasp transformers are inoperable, both the diesel generators be demonstrated operable within eight hours imless the diesel. generators are already operating, and if one of the stan-up transformers is not nstored to gerable status within 24 hours then both units be shut down. (2) 1he R13 mias caisting safety margins by requiring that if both diesel generators are inoperabic, bosh start <ip transfwmers be demonstrased operable within one hour and if one of the diesel generators is not restored to operable status within two hours then both units be sequentially shut down. (3) The RTS relas calsting safety margins by deleting the peak vahage requirement y following a complete dicael generator load reW test. ' - ' -t (4) The RTS relat existing safety margins by <aily requiring a check of diesel fuel inventory when the diesel is demonstrated operable. (5) 1he R13 relax existing safc.ty margins by specifying that the diesel generator (s) be staned only and not syndironitzd and loaded. (6) The R13 selas calsting safety margins by allcwing for performance of a f.ast start E only at least once per 184 days and all other starts to se preceded by wrtmup procedures. G) The RTS relas cainting safety margins by redi cing the diesel generator surveillance test frequency to at least isic) once per 31 days. Petitioner's principa: concern in this contenti m is that Applicant has allegedly . failed to analyze the effects of a loss of offsite power. 'lY. 182-203. Ilowever, despite the Board's explicit invitation ('IY,111), Petitioner ncycr specified what c/wmge in a technical specification Inised the question Mr. Saporito was addressing. Indeed, we we penuaded by Applicant's argument that the Proposed 'Itchnical Specifications 3/4.8-2 (1 b.12) are more conserwative because they have added a new ACTION statement that requires the denenstration of operability of the cranking dicscis when a startup transformer is inoperabic. 'IY. 2(M-05. We also agree with the Staff that Petitioner's arguments address compliance with a station blackout rule that does not yet cover Applicant, that they are not relevant to the subparts of this contention, and that they do not show how a particular proposed change would in fact reduce a safety margin. 'IY. 206, llence, this contention is not being admitted. 535 1

R, Contention 25 Dis lengthy contention relates to the effect of reactor vessel heatup and cooldown and surveillance on the strength of the pressure vessel. In this con-tendon, Petitioner first sought to argue that there was a change in a graph in the technical specifications that sets forth pressure / temperature curves, presumably for the reactor pressure vessel. Ilowever, after a conference, Petitioner agreed with Applicant that there was in fact no change made in these curves as a result of the pending amendments. 'n. 210-11. %creafter, the Board made repeated attempts to have the Petitioner specify what particular changes in the technical specifications were being objected to; but the Petitioner failed to specify any particular change. 'n. 211-18. In addidon. . as we read Contention 25, we fall to ascertain any specified change. Furthermore, Applicant stated at the prehearing conference that "[t]here are no changes of substance between the current techs and the proposed tech specs." Tr. 219. Staff also stated that "there are no changes." Tr. 221. Since the only " relaxation" in 53/4.4.9.1 is deletion of Figure 3.12 and since Petitioner has not addressed the significance of that deletion (No Significant 11azards Evaluation, Appendix A 3/4 at 4-41), we conclude that Applicant's and the Staff's mutual assertion of no significant change is indeed correct." Consequently, there is no genuine issue of fact with respect to this contention and it is not being admitted. S. Contentions 1 and 2 Contentions 1 and 2 are both environmental contentions. Contention 1 alleges that an Environmental impact Statement (EIS) must be prepared; and Contention 2 that an Environmental Assessment must be prepared. I. 12 gal Rackground We agree with the Staff concerning the appropriate legal context in which to review these contentions. He applicable regulation is 10 C.F.R. 551.20, which requires that an environmental impact statement be prepared if the proposed action (the proposed technical specification amendments) is a major federal action significantly affecting the quality of the environtnent. We endorse the following portion of the Staff's brief:

1. Dtis cantantum is cut d order in Petitioner's 61ing. It can be round at p.104.
2. etitioner also argued that there was some unpoprissy or iBeestity in Applicant separating cut one change in P

its tsuhnical speciac:tions and niing h prww to its Ehns or ks cunent invisien. Tr. 22344. we do not agree wuh this argument. Applicant is free to nie amendnieras to us hcense in any order that h des' es to rde those changa. u We know of no lunitation on that diantins. 536 I

'the scope of a National Environmemal1%licy Act (NEPA) environmemal aview of a license amendrnes is more limited than one performed prior to initial licensing I' lories rewr and Ught Co. (Turkey Ibint Nuclear Generating Station, IJnits 3 and 4), LBP.81 14, 11 NRC 677,684 85 (1981); Consissiers Power Co. (Big Rock Nuclear liant), ALAB-636,' 13 NRC 312,319 (1981). A NEPA nview for a license amendment requires an evaluatice of only those environinental knpacts beyond those evaluated previously which will result from the proposed action. Id.... .ee A petitioner raising a NEPA claim is required to show a dispute exists between it and ~ he applicant or the Staff on a mater.d bsue of fact or law.10 C.F.R. 5 2.714(b)(2)(iii); 54 t Ted. Rag, at33172..,.30 eee Under the Commissim's regulations, an environmemal impact statement is not automati-r cally sequised for the proposed action. See 10 CFR 6 51.20. the Sinff deiermines whed,er an envirosunental assessmes is sequired or whether the action is a categorical exclusion 33 [ foot, note in original) for which no environmental documem is required. See 10 Clit H 51.21, 51.22(b),51.22(c)(9) and (10),51.14(ays2 [ Footnote added.) L Analysis of Contentions 1 and 2 Petitioner asks in these two contentions that an environmental impact state-ment and an environmental assessment be prepared. Petitioner's Amended Pe-tition at 24,26. The cited ground in both instances is that the amendment of the lechnical specifications is "a major Federal action,"33 /d, Within the body of these contentions, there are no facts set forth that establish that this is a major federal action In particular, there is no basis for believing that the amendment of the lechnical specifications has some overall effect other than the effect of each of the parts However, all the other contentions allege that there is an increased hazard resulting from the proposed amendment We think that Petitioner intends that by proving these allega' ions it will establish 30 staff Respose at 2123. i-31 "'Caiagosical esclusion' means a cauisory of actions which do nra individually or cumulatively have a signi6 cant effect se the human envuonment and wiuch the Commissie has found to have no such effect in accontance with (. psocedmus set out in $ 51.22, and for which, therefore, nasiher en.. " naassement nor an enJ-impact saataners is seqaired." 10 C.P.R. I 51.14(a), Defmities. 23 section 51.25 punidas: Before taking a peuposed action subject to the provisions of this subpan, the appsoprints NRC staff duector will desermine on the basis of the criteria and classi6cetiens of types of actions in 64 51.20, 51.21 and 51.22 of this sahpart whether the proposed action is of the type bened in 451.22(c) as a categorical eacheion or whether an envinemanal impset staasment er en...-- assessment should be prepared.,,, l. We have reviewed the regulaties gavstning categorical eachasions from the need to prepare an an.;. tal 33 as amnen and and ihat - for the most pan -ihe aDesation of " major Faleral action" is suf6 cunt to percome eaclusions. Ibr eaaniple, changes in inspection or survallanca requiremeros are enangt if there are no signincent hazarda cmsidentions and no changes in effsiis ef8vanta er occupational hazards (10 CF.R. 4 51.22(c)(9)), t and we insapret the allegation of major federal action to imply a signincant harani. Ilowevw, punuars to 10 l ' CF.R. 4 51.2?(cX10), chsness m administrative procedures sie er.empt. We also noes that Applicars has not prepared an environmasal report in support of its ammuimau. 537 l i' l l 6 i

s that the change in technical specifications is a major federal actim. 'Ihcrefore, it is appropriate to c4%ider Contentions 1 and 2 in this context. If petitioner ' were to establish in 00c of its other contentions that there is a senous effect on safety, then it might 14 stain these first two contentions based on the others. Our conclusion is that Contentions 1 and 2 should, therefore, be admitted. . However, their consideration - including discovery based solely on the en-- vironmental balance - shall be deferred.' Only if the litigation of the other caawlans establishes sat there is enough of an impact on safety" for this amendment to be a major federal action, will it be necessary to litigate these two environmental contentions separately. Otherwise, these deferred contentions . may be dismissed based on consideration of the other admitted contentions. Order For all the foregoing reasons and upon consideration of the entire record in this mauer, it is, this 15th day of June 1990, ORDFRED, that: Contingent Admission of Party

1. *lho Nuclear Energy Accountability Project (NEAP) is admitted as a party to this proceeding, based solely on its representation of its member, Mr. 'Ihomas Saporito.

2.. NEAP's continued participation in this proceeding is dependent on Mr. Saporito serving on this Board, on or before the 19th day of June 1990, a pleading in which he personally states his willingness to be represented by NEAP.

3. Should Mr. Saporito fail to respond as ordered in 12, this case shall be dismissed. . Contentions - 4. The contentions that are admitted in the following paragraph are admit- ' ted only with respect to the genuine issues of fact discussed in the accompanying memorandum. - 5. Only the following ' live contentions or portions of contentions are admitted: 1,2,11 (risk related to change in mode reduction requiremergs); 14 (possible loss of ability to change mode); and 30 (operation without one - reactor coolant loop). h is unhhely, but concomble, that the Basal would desarmine that an arn subnent is permanble under the M naulaties but creates so man:h additional risk that it is a majnr federal action. 538-lJ - .l'

I 4 ,6. - Litigation of Contentions 1 ankis deferred, pending the Board's L conclusion on whether litigation of Contentions 11,.14, and 30 establishes. that the proposed modification of the technical specifications is a major federal action. ,d Schedulefor Case. 7.' Discovery and the filing of motions for summary disposition'with respect to Contentions 11,14, and 30 shall be concluded by the end of August 1990. .8. A hearing on Contentions 11,.14, and 30,- if necessary, shall be - scheduled early in October 1990. Alleged Harassment . 9 ~ All material in our record that contains allegations of intimidation or harassment of Mr. Saporito shall be considered to be struck from our accord. -Appeal ,10. Applicant and the Staff may, pursuant to section 2.714a(c), appeal - the portion of this order granting the petition to intervene, contingent on Mr. Saporito's icsponse. The time for instituting an appeal shall, however, be suspended until after Mr. Saporito shall file his response to 12 of this order,

11. - Except for 110 of this order, this is an interlocutory order from which there is no appeal at this time.

. THE ATOMIC SAFETY AND ' LICENSING BOARD L Dr. George C. Anderson (by PBB) l: ADMINISTRATIVE JUDGE Elizabeth B. Johnson (by PBB). I' . ADMINISTRATIVE JUDGE } I-. Peter B. Bloch. Chair ADMINISTRATIVE JUDGE Bethesda, Maryland u. 539 ir t lL -[ l k b

f Cite as 31 NRC 540 (1990) LBP 9017 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION r ATOMIC SAFETY AND UCENSING BOARD Before Adminletrative Judgee: Robert M. Lazo, Chairman - Harry Foremen Ernest E. Hill b in the Matter of Docket No. 30-16055 SP (ASL8P No. 87 54541 SP) (Suspenelon Order) ADVANCED MEDICAL SYSTEMS, INC, . (One Factory Row Geneva, Ohio 44041) June 12,1990 i (, ' In this case the Licensing Board gants summary disposition of four issues ~ l posited by Advanced Medical Systems, Inc., challenging the lawfulness of a l summary license suspension order under the provisions of 10 C.F.R. Il2.200-L 2.206 and 10 C.F.R. I30.61. RULES OF PRACTICE: STANDARD FOR REVIEW OF .SHOW CAUSE DETERMINATION (

SUMMARY

LICENSE l ' SUSPENSION) (:

'Ihc lawfulness of a summary license suspension order issued under 10

(. C.F.R. 56 2.200-2.206 and 10 C.F.R. 6 30.61 is determined by whether or not l'

a. Director's. decision to issue the order is an abuse of discretion under the l-considerations announced in Consolidated Edison Co. ofNew York (Indian Point,

-- Units 1,2, and 3), CLI.75-8,2 NRC 173 (1975). 540 l i

1 RULES OF PRACI' ICE: STANDARD FOR REVIEW OF SilOW CAUSE DETERMINATION (

SUMMARY

LICENSE SUSPENSION). A Director's decision to issue a summary license suspension order under 10 C.F.R. 65 2.200 2.206 and 10 C.F.R. I 30.61 must be based upon :cliabic, pro-bative, and substantial evidence. " Substantial" means such relevant evidence as a reasonabic mind might accept as adequate to support a conclusion. Consoll-dated Edison Co. v. NLRB,305 U.S.197,229 (1938). RULES OF PRACTICE: STANDARD FOR REVIEW OF SilOW CAUSE DETERMINATION (

SUMMARY

LICENSE SUSPENSION) Only the evidence availabic to the Director at the time a decision is made to issue a summary license suspension order under 10 C.F.R. 562.200-2.206 and 10 C.F.R. I 30.61 is relevant to a determination of whether or not the Director's - - decision to issue the order is an abuse of discretion. Consolidated Edison Co. of New York (Indian Point, Units 1,2, and 3), CL175-8,2 NRC 173 (1975), citing Conswners Power Co. (Midland Plant, Units 1 and 2), CLI 73 38,7 AEC 12 (1973). RULES OF PRACTICE: STANDARD FOR REVIEW OF l SilOW CAUSE DETERMINATION (

SUMMARY

LICENSE SUSPENSION) A summary license suspension order issued under 10 C.F.R. 66 2.200-2.206 . and 10 C.F.R. I 30.61 is facially clear if the licensec can reasonably discern from the order the issues upon which it would need to scck discovery if a heanng is requested under 10 C.F.R. I 2.202(b). MEMORANDUM AND ORDER (Granting NRC Staff Motion for Summary Disposition and Terminating Proceeding) 1. %c NRC Staff comes before the Board seeking summary disposition of four issues admitted for litigation in LBP-89-11.1 ne four issues question whether the I 29 MtC 306 (19391 541 F

. NRC Staff had " substantial bases" for the decision to issue the summary license Supension order dated October 10, 1986, that gave rise to this proceeding, namely: 1; Whether w not there was a substantial basis for the NRC to conclude that it lacked the aquisite reasonable assurances that AMS would comply with Commission requesu ir, the fuetre;

2. Wi"',er or not thet a was a substantial ba:is for the NRC to conclude that continued craluct tJ certain liunsed activities by AMS could pose a threat to the health and safety of the public, vndt-the performance of installation, service, maintenance or dismantling of roGiograpny or teletherapy units;

3. Whether or not tie. NRC had a substantial basis for concluding that the public health, sefety and inte est required that AMS' License Nwnber 34-190894)I should be suspended; 4.

Whether or not the WRC had a substantial basis for concir'ing that pursuant to 10 CFR Section 2.20'(c) no prior notia was required as to its actions, and pursuant l to 10 CFR Sectior ; 2.202(f) that the Suspension Order of October 10,19F should be immediately dfective.2 . In support of its Summary Disposition Motion,8 the Staff has proffered no less than sixty " statements of malcrial fact as to which no genuine issue exits" and has provided the Board with affidavits and hundreds of pages of supporting documentation. Advanced Medical Services, on the other hand, has submined a 35-page Brief in Opposition' with its own statements of material fact still in dispute accompanied by sevcfal short affidavits, We have given careful consideration to these pleadings and find that no material facts remain in dispute,s 2u,29 NRC a 3.3 ne p iue of mis can rapi= me Bo.ra io myiew me m.iu af. docuien by the Duector, of5ce of Inspection and IL "

to iss,as a show-cause order to suspend a licensed activity and the collateral decisica by the Duector to make the arder innmedisiety effective under 10 C.F.R. H 2.200 2.206 NRE! seculations do not amplicitly prmide for bcensing bostd review of a smunary licenas suspenman order.

. sereon 2.206(cXI) provides that the Camnuasian may, en ha own maion, sview the docuien of the Dunctor nor no issue a shawanas oder, and the Cornmissian has taken lunited aview in several Comnusman lasuances, ducusamt in the body of our decision. The Board draws its present jurisdiction fann a Commusian oder. Notice of Ilearing. 51 Fed. Reg.43,790 (1986X That Notice erovides "It]he issue., to be canadered and decided will be: whether,in the basis of the meners est faith in the order, the order should be susiained? M. 3NRC Su!T Motion for summary Duposition (lamary 10,1990) ("Mauen")J 4 Advanced Medical systems,Inc.'s Brief in opposition to NRC suff Motion for summary Dupasitimi(Masch 1 1990)("Brief"). The AMs Brief faasd to address the NRC factual statemaus seristini and pewided litGe inore it base denials in the way of evidence, la several insances, AMs has assened legal arguments that neither dispues the suff's factual statemanu nor edunce ha own causet see Bnef at 3434. It has icmg been held that the pony oppoeng sunenary deposition unust come fanh with evidaitiary facts to show that there is an outstanding enresolved material tasue to be tried. Clawl, sad Eleceic flismuasa'ag Co. (Perry Nuclear Power Plant, Uniu I and 2), ALAB-40,6 NRC 741,754 (1977). Both the suff Motian and the AMs Boat seek factut falmas from the Bosed that concern evenu that either occured or were docunented by the suff after the Duector hued ths show couse order en october 10,1986 Ilowever, for sessaw set foeth in the lost of our decisim, our inquiry focuses en whosher the Director abused his ductuica in tsaring the order. our inquiry, therefcss, factmes only en the information available to the Duector - st the time that he isand the order. see Cearelsesant Edrea Co. s/ New York (Indun Point, Uniu 1,2 sad (ConkmeA 1' I 542 i:1' l-I l i

llowever, our inquiry does not end there The four issue statements question the legal sufficiency of the Director's decision to issue the eummary license suspension order under 10 C.F.R. 60 2,200-2.206 and 10 C.F.R. l' art 30,* It is to that issue we now turn. The Staff argues that the four AMS issues are actually subsets of two issues which they attempt to refmc for our inquiry: 1he issues essentially question whetner the NRC had sood cause for suspending the AMS license and,if so, whether there was a basis to make such suspension irnmediately effective.1 flowever, the Board fmds the issues to be amenable to even further refinement, in essence, the four AMS issue statements are nothing more than assertions that there was neither procedural nor substantive legal basis for the Director's decision to issue the October 10 summary suspension order, in this light, the discretc issue before us is: Under Commission regulations, did the Director act lawfully when he issued the summary suspension order? If the Director has acted lawfully in issuing the order, our inquiry need go no further. At the outset, we note that the October 10 order was temporary in nature and that it was made in anticipation of a full hearing on the meriu of the Director's findings under 10 C.F.R. 52,202(f). Such preliminary administrative decisions demand a significant degree of judicial deference upon review,' Ilowever, summary administrative decisions, even though temporary in nature, have not 3),0175-8,2 NRC 173,175 0975), ciaias Cenanmers fewer Co. (Malland Plant, Umu 1 and 2), QJ.73-38, 7 AIC 12 (1973) (ahues of decretion review bened the informauon evadahls to Duector at the tune he issued the onder) In so bmiting our review, many of 9,e factual findmga sought by Insh the NitC suir and AMs am immaterial to the case at hand, shhough all were acnminised by the Board. Of the facts listed in the NRC staff's staismers or Material thcu as to Wluch No omnuine laaue liaists Nos. 7,10,11, ts 17,22 30,32,34,37-39, und 5453 are material to eur soview. 'We 6nd the legal sufricioney of a summary suspension order issued under 10 CF.R. 6(2.2042.206 and 10 CI'.R. 4 30.61 to be an issus daunct and spat fmn the issue of whether muh a summary suspennon order should remain in effect pendmg a hearing on the merita of that enter. We reach a desermination in this decision only as to the Amt issue. 7 Motion et & 'our inn ry focuses on the propriety or an administradve decision at a paus where the senuustrator's e diacruimy authenty is nest ha saruth - eve wuhout regard to the temporary consequences his decision may visit upon the thensee. At the pieleninary suse of the adminisaative process, no hasnns is sequised by due process so long as the sequisiie hearing is held before the 6nal administrative order becomes 6nal 34e Ewing

v. Mysinger & Casselberry,339 U.s. 594 (1949), cines sk4ser v. Unia,4 3assar,3M Us. 742 (1947); taleid Enquire Dist. Comaril e, Millas,325 U.s. 607 (1944); Opp Malt v. Admiuustresor of Wege a II*ur Division,312 U,s.126 (1940)

Durnoon of any of6cial msy be ahused. Yat h is not a impairement of ese pmcasa that ihme be judicial inquiry before 6scutim can be esercised, it is suf6cient, where only prepony righu are concerned, that them is et a<ane stage an opponunity for a hearing ami e phcial determoution. E=ias,339 U3. at 599, cina PAillier v. Co--maar,283 U.s. 589,596,571 (1930k 8ewiss v. Wi&ashani, 321 UA. 503,520 (1943h rek.e v. Unised 3rniass,321 U.s, did 412,4410943). 'Diis la not to say that a sumnary suspensirst enter emld never be subject to sitack on the basis of a denial of due pmcena. Sudi might be the ceae if a Ismporary suspension ceder caused the licenses ennugh acunmuc stress to hierally put h cut of business. At that noint the nnier has arguably evolved into e de facso Snal agency action. 5 13

? t-i totally escaped Commission scrutiny in the pnst. In a line of cases beginning - e _. with Consumers four Co. (Midland Plant, Units 1 and 2), CLI.73-38,6 AEC 1082 (1973) (" Midland"), the Commission tempered a limited administrative review of such decisions grounded squarely on the abuse of discretion standard. In Mulland, the Commission first found an inherent authority to review summary enforcement decisions to determine whether, on the basis of the. information then available to hini, the Director had abused his discretion. 'Ihc need to review such an order was expressed succinctly:

• Ihe norm for administrative aedon modifying cutstanding licenses embrar": a prior oppor.

tunity to be heard. In excer onal circumstances, however, the Director is authorized to n take summary administradve action. See 10 C.F.R. 2.202(rX section 9(b), Administrative Procedure Act,5 U.S.C. 558(ch section 181, Atomic Energy Act of 1954, as amended,42 U.S.C. 2231. Itut k has always been recogniud that sununary administradve action sub. - start.ially curtailing existing rights.., is a " drastic procedure." Fahry v. Mallonee. 332 U.S. 245,253 (1947). See Ewing v. Mytinger a Carselberry, lac.,339 U.S. 594,599 (1950); Devts, Maimierrenin im i1.os? In Indian Point, CL1-75 8 supra,2 NRC at 175, the Commission identified five elements germane to the review of a Director's decision not to issue a show-Cause order', 1, Whether the statement of reasons given permits rational understanding of the basis for his decision; 2. whether the Director has correctly understood governing law, regulations, and policy;

3. whether all necessary factors have been considertJ, and extraneous factors ca.

cluded, from the decision; 4. whether inquiry appropriate to the facts assened has been made; and 5, whether the Director's decision is demonstrably untenable on the basis of all . informanon available to him.I' - ' AfiJimid, seers,6 AEC at 10s.L 1814 at 17s. The laden Penar consids.ranens wen developed,in om main, because of two policy consideranons. First, myiew of a Dunctor's decisien niet to issue a show<aues order was tound to be imponent because," absent review, there will be no further pmceedings within the Comnussion." 14 second, the Comnusum desired to maintain *so far as possible the separation berween 'prosecutonal* and quasi-judicial functime within the Comrmssion, which our regulatima estabhsh by vesdng in the Dunctor the disendon to institute show cause y" id; see else Macieer Aegedenwy Ceauseission (tJcenseen Authorized to Possess er Transpost . pEsisele Quassities of special Nuclear hiatarials), CU 774, s NRC 16,17,20 a.6 (1971)(Inden Poiar review S is esasesially a defestal to the staff's judenant on the facts stating to a potertial unicumnent action, to avoid pumanew " by ens Cormnissim an factualissues k may later be called upcm to misw). he satension ofihn ladues Peier soview to the afYtemative issuance of a show<ause order in Niaciner EagianersetCe. (shameld, Illinosa lew-Isvol Radinecuve Wame Dispaeal site), CU-794,9 NRC 67) (IM9), effectively amoved Enality fruen censiderettort see 10 C.FA (2.202(b)(A hemare may espond to an or* to show cause and dm. sad a hearing) and (c)(if the answer demands a basnns, the Cormnissim wiD issue an order designating the time and plus of hearing % Monover, we do not med CU.713 to bar the Boasd fmn adquing the Indea Peiar analysia in tout the legal sufnciency of the Dareder's decisim. We 6nd the hmited, legal inquiry devekped by the Commission to be perfectly suited to the miew of this type of preliminary /discre6onary anninistrative decisim 544

In Shefield, the Indian Point analysis was extended to the review of an affirmative decision to issue a show cause order and the collateral decision to make the order immediately effective, "Secause that issue is inextricably intertwined with the Director's decision to issue the order."a _Without further direction from the Commission, we see no reason to depart from the Indian Point analysis in our resolution of the case at bar.3811 provides what we find to be an appropriately limited review of a discretionary decision at the initial stages of an administrative action. II. I. Whether the statement of reasons given permits a rat.'ona! understanding of the basisfor the Director's decision: 'Ihc October 10,1986 Order Suspending License and Order to Show Cause (Effectively Immediately)" (" Order") declares that the Director, Office of In-spection and Enforcement, lacked the requisite reasonable assurance that the Licensec's continued conduct would not pose e threat to the health and safety of the public. Two investigations are cited for the basis of this determination.- The first, conducted by the NRC Staff in 1985," identified four violations of regulatory requirements and license conditions concerning " hot cell" activitics at : AMS facilities. The investigation resulted in a Notice of Violation and Proposed Imposition of Civil Penaltics issued June 28,1985, Additionally, on the same date, an immediately Effective Order Modifying License w1ts issued requiring AMS to take extensive radiation protection measures before cach hot cell entry. U she#rW. 9 NRC at 676. Inesplicably, and almost bisacusahly, nehher the %Laff ant AMs has provided any ducussion of Conemasian case law wnh respect to the for AMs issues. This anuanon may be due to the staff's awarera ausundesstandmg of the applicable law of this case. At footevne four of the staff's Motion, we 6ad the following maatim: [Ilhe issues senined for htigation ese emcornal solely whh the "subsumtial basis" for 3. - saic to be decidad concerning awstd a( atwneys less est out in the Equal Access to Justice Act,5 UsC 504(aXIK Ilad the EAJA been ceuolling, the substantial justincatirm" standard for judicial soview of decreumary seninistrative actions found in the EAJA may have been conuothns. Even se, the staff em not carry duoush by pnwiding the Bosnt wth a ducussion of applicable case law,- E.g., Pierce v. Underwood,487 U.s. 108 s. Ct. _.101 L FA. 2d 490 (1988);Goveen v. OBice e/ Personnel Henegement. 808 F.2d 1456,1465-66 (Fed. Cir.19861 gueaing ILR. Rep. 1418. 96th Cong. 2d sens.18, reprinsedin 1980 U.s. Code Cong. a Ad. News ' 1 l, 1-4953, 4944, 4997, llowever, the EAJA is inapptwable to the case befose us: AMs sougne the admisamn of the four issues "in the event that (AMs) is not afforded ' pre-sng party' matus under the.EAJA? t_BP-89-il. 29 NRC at s13 (errphasis supplied) The exclusosy language a c.-e statenent shadd hav. i en enough to place the I-gnise en notice that the EAIA is inaglicable to the issuse Mars us. The Conenissism maicd its esenuon at the tinw of the Intime Point decision to addans procedural isam such as the noview of show.cause ardsrs in futurs, general rulanaking proceedings, ladien Peiar,2 NRC at 175. we are unswere of any pmceedings 6nalized to dais. "In ibe intenm, we a&are to the staied standard? IJ. i. l u 51 Fet Res 57,674 (1986). "lavemigation Report Nc6 03616055/15-001(DRss) hsued June 2s,1985. 545 l i l' l l l .. a

i l %c second investigation cited in the October 10,1986 Order was initiated on September 17,1986, but was not completed until Nt..:mber 12,1986." The order states that this was an unannounced special inspection initiated in response to allegations received by NRC Region 111 in September 1986, concerning unauthorized / unqualified individuals performing licensable field service work on cobalt-60 teletherapy units located at AMS client hospitals and/or clinics. On - ' the basis of the then unfinished investigation (up to October 10), the Director makes the following allegations in the order. iElmployees of the Icensee were directed to perform certain service and mainienance on teletherapy equiprrent at enedical facihties notwithstanding their lack of NRC authoriantion. their lack of required training to perform the directed maintenance, their lack d appropriate radiatica detection and monitoring equipment or sequired service manuals, and their empress objections to perior such maintenance without psoper training. In addition, one hospital at which such service and mainienance was performed has indicated its belief that alicensee employee was unqualined to perform the mainienance of its teleiherapy equipment.3' LWO do'not fmd the October 10 Order inherently confusing or oblique. De i order articulates the alleged license violations - unauthorized maintenance, lack M required maintenance training, and the lack of appropriate radiation monitoring techniques - upon which the Director has based the decision to temporarily suspend AMS licensed activitics. Rc order is clear enough to allow AMS to identify the issues it would need to "ficsh out" during the discovery process if it requested a hearing under 10 C.F.R. 62.202(b). We do not read Indian Point or Shchield to require more. There is sufficient basis for understanding the order. 2. Whether the Director has correctly understood governing law, regula-i tions, and policy. In the October 10 Order to Show Cause, the Director cites sections 81,161(b),161(c),161(o).182, and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 C.F.R. I2.202 and 10 C.F.R. Part 30 as the legal authority for his actions. We find, without the need for lengthy recitation here, that the citations to the Atomic Energy Act are correctly made and provide time-tested legal authority for the Director to act." no provisions of 10 C.F.R.12.200, et seq., set forth the procedures for issuing a show-callse order. Specifically, section 2.202(a) allows the Director 'Ulnspection asport No. 03016055A6 col (DRss) dated November 25.1986. .~ order. sl Fed. Reg s7.674 (1986). (. IT section $1.42 U.s.C 5 2111 (Commission suihanty to issue byproduct enaieriallicenseek esction 16t(b). 42 U.s C 6 2201(b) (Canmission suiharity to estabhsh rules and regulatiers to gowrn the use d byproduct material); section 161(c). 42 U.s.C 6 2201(c)(Comnussion authority to conduct investigations and hearings); section 161(o). 42 U.s.C. I 2201(o) (Comrrussimi authority to requise inspection or reports 'and activiues or heensees); esction 182. 42 U.s C 6 272 (Canmisaica authority to sequire iodinical and supplernental informatiat to become part of a license); section 186. 42 U.s.C i 2236 (Commissicn authority to revoks license for failure to comply with terms or license), i 546 1: L

1 1 i u to suspend a license by serving on the licensee a show.cause order that sets out de alleged license violations. Section 2.202(f) allows the Director to make the

show-cause order " temporarily effective pending further order" if he has made a d9minatk n that the "public health, safety, or interest so requires," %c Director's understanding of this latter procedural requirement is best illustrated by a statement found in the October 10 Order:

Specifically, the priormance d installation, service, maintenance or dismantling of radio-giaphy or teletherapy units by unauthorized and unqualired individuals could result in the l overcaposure of individuals receiving or administering teletherapy treatment or performing maintenarne or service on radiography or teletterapy units.ts On the basis of order we have no reason to doubt that the Director be-lieved that license violations had occuned and that he believed that the public health, interest, or safety required iramediate, albeit temporary, enfo ccment measures. We find the Director to have had the requisite understanding of the procedural predicates to die issuance of a summary suspension order under 10 C.F.R. 6 2.202. De provisions of 10 C.F.R. Part 30 provide the Director with the legal author- [ ity to issue and regulate byproduct materials licenses, to conduct invest (cations into licensed activitics, and to enforce the terms of licenses. De section most j germane to our inquiry is section 30.61 which provides in pertinent part: (b) Any license may be revoked, suspended or modified, in whole or in part,. because of cormhtions revealed by... any report, record or inspection... or for violation d, or failure to observe any of the terms and provisions of the Act or of any mle, regulation E_ or order of the Cbmmission 't (c) liscep in cases d willfulness or those in which the public heahh, interest or safety requires otherwise, no license shall te modified, suspended or revoked unless, prior to the institution of proceedings therefor, facts or conduct which may warrant such action shall have been called to the attention of the licensee in writing and the licensee shall have been s 9 accorded an opportunity to denonstrate or achieve compliance with alllawful reqm.wents.# In its Drief, AMS vigorously disputr the Director's interpretation of the phrase "llcensable service work" in an attempt to discredit the findings upon which the Diicctor based his decision. Undoubtedly, if the AMS license was L suspended on the basis of unregulated activities, the Director's actions wotJd be ultra vires and could not be sustained. Derefore, in the context of diis case, we most review the Director's lindings regarding licemed service activitics to' l' order, st Fed. Reg. 37.614 (1916). he stafr's affidavit presents unesten am&ae that a wlmis> body l rs&aten espreurs from a medical telesherapy urnt owr sd annutes can %ver a fatal do.4 cr radiation. h1tC i stalt ADWavit,sapre.110. I' 10 C.F14 30.6)(b) (19s6)

}

i~ 10 C.FA (30 61(c) (1956). l l 547 I t l. L .o

I i 4 1 see if they are grounded in the law.3: Ib do this, however, we nord to develop a i bcuer understanding of the factual predicates upon which he made his decision to act. '!he index of " Attachments to Motion for Summary Disposition," itself offered as an attachment to the Staff's Motion, shows the following items (ap.trt from the AMS license f id bypwiuct malcrial license applications) predating the October 10 Order:

5. Interview of Jones M.14slie by R. Burgin,G. McCann,9/I7/86;

8. lasur dated Seinemkr 23,19s6 frorn t.T. Eosnik, Munson Medical Comr to R. Burgin USNRC, RIII;

9. LAtwr dated Segnember 22,19s6 from R. Devis Munson Medical Cenier, to R. Borgin, USNRC, RIII;

11. Interview of Russel P. Ibrtier by R. Bwsin, G. M4 ann,9/19/s6;

17. Interview of Garnest C. I.ight by A. Bursin, G. McCann,9/29/t6, 1

23. Inierview of Richard G. Speer by R. Inwein, G. MCann,10/1/s6; 3s. Interview of Paul Cuani by R. Itursin, G. McCarm,10/1/s6.82 On the basis of these documents, the Staff argues that, as of October 1,1986:

the (Directort had chinined evidence of eleven unauthorired service ec'.lons; includmg AMS management involvement, fourteen service actions performed without radiation mmitoring equipmmt or service manuals, and two service actions which wen not tested.u

• Ihc " Interview of James M. Leslic" is a handwritten " report of micrview" tmascribed by NRC employee Burgin, witnessed by NRC employec McCann, and signed by Mr. Leslic.S* Mr. Leslic was an unlicensed service technician employed by AMS until a few days prior to the interview, Mr. Leslic stated in the course of the interview that Mr. Paul Carani, AMS Field Supervisor, sent him to the Munsen Medical Center to install a new timer on a Cobalt 60 teletherapy imit on April 28,1986, Mr. lestic states that he had no idea how to install or test the timer. lid states that he did not operate the allt to check the timer after installation, but that the hospital's physicist conducted the test. lie also states that Mr, Carani had asked him to do work on the gantry of another L

Cobalt-60 unit, but he refused to do the work without training, Mr. Leslic then states that he was not aware of anyonc clso working on the Cobalt 60 units that t was not licensed. E 216ath the NRC Mais and tw AMs Resporse treat the issue oflicensed service activines as e qusuam of fact, we do net asema. 8AMS enada the crediMhty of the individuals siving these staternants a the b. sis of inconsinencies suesed to be found in sienikr sisismens isken eher the order was issued. see anaf at s t.31 Ilowever, AMs laas to refuts either that the wat was actually carried aui or carrwd om by those individuals clairning to have done the wat . U y,;,,,, 3 g, MUSNRC Inspectin Report Na (0416055/BH01(DRss)("Inspecuan Pepon"). Ansch. A at 1. Sat 8

i i I De " Letter of L.T. Kosnik" is a signed M1er on Munsen Medical Center letterhead.88 in Oc leuct Mr. Kosnik states that he is the Radiation Safety Officer and Physicist for the Center. Mr. Kosnik confirms that Mr. Leslie came to the Center on April 28 and " replaced the teck up timer and checked the wiring of de console" or,11.2 Cotalt 60 unit. Mr. Kosnik states that "to [his] knowledge, [Mr. Leslic] did not expose the source himself, but it is possiiile" i ne " Letter of Doug Davis" is a signed letter on Munsen Medical Center j icterhead." Mr. Davis is the Technical Director of the Center's Department of I Radiology le his letter, Mr. Davis also verifies that Mr. Lestic replaced the timer in the Cotalt 60 unit and proceeded to " check tie wiring at the control unit itself and inside the Cobalt unit." Mr. Davis admits that he became very j upset with AMO and called another service company to service the Cobalt unit. Contrary to the statement of Mr. leshe, Mr. Davis says that he is " positive that Mr. leslic activated the unit to test the new timer.. while he was (at Oc Center)" although he could not find a copy of the service report. ne " Interview of Russell P. Ibrtict" is a handwritten " report of interview" l transcribed by NRC employec Burgin, witnessed by NRC employee McCann, and signed by Mr. Tortier" Mr. Ibrtier worked for AMS for 2 years but quit as an unlicensed ficie service engineer in December of 1985. Mr. Ibrtier states diat he was sent by Mr. Carani to do work on Coimit 60 units. More specifically, he states that in May of 1985 he did "some wiring work on the one main cabic" of Oc Joint Disease %mor Hospital's Cotalt-60 unit. lie states that he did not have a survey meter or a "httler" or a " Rad.hd" mcler with him at the time, lie states that he did a timer replacement at Ball Memorial llospital in Octoter of 1935 and "a man named ' Fred' at the hospital and I activated the unit a couple of times." lie also states that, although he cocid not remember the date, he changed the " vertical drive belt that adjusts the source to patient distance" at a hospital in Minnesota. lic also states that Oc only other unlicensed person doing " head work alone was Rick Speer, who worked on t!c teletherapy unit at the Joint Disease hmor llospital in May of 1985." Tbrther, he states that he "did onc job on a collimator in... Nassau Co. Ilospital with Mr. Cochran an( t.;ith Jordan" in.teptemter of 1985, lie "was not sure that Keith Jordan was livensed at the f me, but he and I worked alone together after Jim Cochran left us " .uP~ NJ. Atwh C s

1. 14,Anuh,D.

Uld.AnaA E. 549 .y:

The " Interview of Garnett C. Ught" is a typed " report of interview" signed by NRC Employees Burgin and McCann." Mr. Ught has not signed the document. Mr. Ught had been empkyd as de Mechanical Assembict at AMS for 2 years.

• ne repor' "es that in June of 1986, after a licensed service engineer kit for personal tas, Mr. Ught completed de wiring from de unit stand to the control console alone at Veteran's Administration llosphal. The report states that Ught also performed safety tests, and emergency and interlock checks which required hit activating de unit (exposing the source). The report further states that Mr. Ught performed a head installation (with the source loaded in the head) at Eastside Radiology. The report stacs that Mr. Ught complained to Mr. Carani that he "can't do that" but Mr. Carani told his " don't worry about it

- just do it." The report also states that no service manual was available for a source exchange at Bronx VA Hospital even though a licensed service engineer performed the work.

• Ihc " Interview with Richard O. Speer" is a handwritten " report of interview" transcribed by NRC employee Burgin, witnessed by NRC employee McCann, and signed by Mr. Speer." Mr. Speer had been working as a Mechanical Assembler at AMS for 2 years. Mr. Spect states that in the spring of 1985 he alone " replaced the control panel, which involved cutting the old wires and splicing the new ones" at St. Joseph's llospital, lie states dat during die job he had a " visitor" film badge but not pocket dosimeter, no Rad-TW, and no diagrams or scavice manuals. lie states that he " activated the unit to check if de shutter opened and closed, and Icft without performing any safety checks" but that he assumed "the hospital checked the unit the next day." He states that in May of 1985 he was sent alone to the Joint Disease Center to do a head tilt drive motor wiring repair but could not fix it. Again he states that he did not have a pocket dosimeter, a Rad. Tad a survey meter, or diagrams or service manuals. Mr. Speer further states that in Septemter of 1986 he was sent to a Detroit VA llospital where he replaced a timer, again with the aforementioned 3

radiadon detection devices. lie says he " personally operated the unit, watched by a derapy tech."

• Die " Interview o! Paul Carani" is a typed " report of interview" signed by t4RC employees Bu'.Jn and McCann." Mr. Carani did not sign the document.

'Ihc report generall' imparts what Mr. Carani viewed as " licensed service work" after being posed ' xh questions by Messrs. Burgin and McCann. After one such question, the report says, Mr. Catani stated that "[1]icensable work includes source and shutter work, electrical cable wiring and the control panel." The i

1. id. Ana&. 3-
2. 14. Ansch. t.

"lJ. Anach. P. 550 l t l i

report also states that when asked *if the tifnet was also licensable work" Mr. Carani answered "yes." 'Ib capsulire the above, as of October 1,1986, the Director had evidence that: (1) unlicensed individuals were replacing and repairing timer mechanisms; (2) unlicensed individuals were exposing the unit source; and (3) individuals were conductifig maintenance activitics without following appropnate safety procedures. We now look to the law to see if there is a 6t. In the Staff's Affidavit, the 1.icensing Board is intarmed that because of the small number of teletherapy service companics in existence, the conditions of authorit.ed. licen cd activity are contained in the documents submlued in support of the application for license rather than in detailed regulations. More specifically, "the defmition of licensed service work on teletherapy units is drawn entirely from documents and letters submlued by AMS in support of its application for license."38 The Staff's reliance upon supporting documents as th: basis for license requirements is consistent with the Atomic Energy Act, Commission regulations, and past Commission practice." AMS was originally issued two licenses which were later combined into onc in June of 1986? The "02" license, issued in July 1980 authorized installation, maintenance, dismantling, and servicing of Picker and AMS teletherapy units. 'Ihc application for the "02" license submitted by AMS included supporting - documentation that included representations by AMS management that certain condificris would be met if the license were to issue: All work requirins a specific license which does sus involve removal of a sealed source from h's shickled ctonainer but does include operation of an exposure device, will te performed by persons formany awroved to do so by the Advanad Medical Systems, Inc., Isotope Cornmittee. 33NRC staff Afsdevit, severe 's 27. "Jee /Jamic Energy A.s et 1934, lis2(a) 42 U.s C. 4 ZZ32 (Crumuasim authwity to mpaire supplemental informatam frorn 1+:enee apphears and to inocepnets muh true lumnse),10 CFA (30.st; 10 C.FA 53526(b); Prearrede to NP.C Fwm 374 (s s4). Also, in isie 19s6, dw Commission publuhed notics in the federal Regirser of lu wwww to 10 C.F R. Pens 3435. Dinal Rale,5 t Fed Res. 36,932 (19s6). In that nonce,0,s Canmusum gives e clear accmum of its agulatory prtysm and heensing pescuces regarding t:yproduct meenalluenses of the type issued to AMs: Apphcauana far e speca.; tecense are very detailed and cantain the applicara's storby step udisum safay prureditres, which are wviewed and a;5'mwed indwidually by NRC.... Appbcants includs as an traegral part si the appbcanon psdage, cepes of their prtgmaad storby<tep radiauan safety proced.tres. ... AppNeshan svtew pactice must be very senseurotive because the apphcane and hcmse ecmpnse the beau 6w regulatmy corarut.... Requirements in additie to three corsained in the regulsums se frequenly incorporated in the bcense as condaians of use. sims the bcennes must comply with emdinans a necined in the bcense, the hcense, rather than ths segulanons,is freqiannily used to regulata sedianon sality in the siay.to. day use of bypmduct meistial. /J at 36.933. MNRC 1Jcense Ncs.34-19089-01 and 3419089-02. 551 l

i nnaal Trekkg: All users will be given the training ov nc,"Gesh herapy Unit Service Training Course" the authne of whis is attae d..." The Introduction to the Factory *!Yaining Course contains the fo: lowing staternents: i To safely service a cdiah therapy unit. persmnel must have a working knowledge of valid nuclear rmhetion and he well versed in the praaice of radiation safety, in addition, the service engineer snust he trained a d emperienced in the speciGc service techniques and energency pocestures applit,ahic to cohnh imits... 10)nly qualined service engineers shouki siempt major sepairs to the equipment.... laconsed geratims incl.nle work involving the sourt* or parts of the sanit whie andd resutr in increased engusure to the source, his includes work a the source shuner or other iceanisms which crudd espose the smrce. reduce shieldire around the scarrce, or compr' anise the safery of the imit and result in increased esposurelevels? In I4bruary of 1980 the NRf', wroic AMS requesting further clarification (ni the pro:edures for performi::s service on teletherapy units. AMS responded in a March 10,1980 letter with anached procedures in tie form of a Cobalt Service Procet urc Manual.18 Tte letter states: [S)irvice tednicians will be thoroughly trained in the techniques of proper abgnment of tele herapy systems.... Emg6 asis la to be placed upon safety, (electrical, mechanical anul radiationk... %e training will consist of the formal training course [ sic) (80 hours, approximately 40 hours end of classroorn and laboratory exercises) and continuing on. the-je training.... His time will be used by having the service te&nician perform the service under the supervisim of a licensed service engineer while on routine service calls.... Inefore the service te&nician will be permined to work independenUy the above program snust have bem acannplished and the technician must demonstrate to the lumipe Gunminee his or her abihey to perform satisfactorily all phases of service. %e Comminee 37 must certify the technician to perform the service operaties in the Coball Service Procedures Manual attached to and forw1trded with the March 10 leuct, we find the following representations: Scie procedures are to be followed by Advanced Medical Systems. Inc. service technicians when performing service on Advanced Medical Systems,Inc. and Picker Corporation Cohnh. to Teletherapy and Industrial Radiography Systems.... If, during service. licensable w4 S' hkaion, seres. Anadi. 2. Nov.16,1979 Appbcatinn far Dyproduct Maienal1. kanas by Advanced Medical sisms, Inc., $deduk "H" at 3. sgM. Isciary Training Curie at 9. "M. Ausdi. 3. March 10,1980 leuer wish addiuanalinformatim suteniued by Advanced Mahcal sysiama. Inc., i emcenning stylacatim for Bypeduct Matenal tacena UM st 1, 552

l 1 i 1 i is to be pedarmed init has been omiued from these pocedures the Ra&stion Safety CX6cer shad be maifad Ware swomedes." j AD individuals while performing licensable service wwk nesst wear radianan monitoring including film badges, personal dosimeters and audihie detectors.m j Lices:eMr service Operookast %e fullowing operonans aus be pedormed only by e prom cernfied on the license.

5. Collaname Removal & Installatim l

9. Unit tests and Demonstrenan*

'] Any person engaged in tjoens versi s or direaly assisting in these gerations must have to his person at all ' e duni.g these operades the Ghn bedst provided by the Adanced Me& cal Syse a. Inc.... In addition to the above mennaned Ghn badge, a dared sending pdet dosimeser stall be worn.... %e licensed person shan weer en audible gamma alarm during service operations. The alarm shouhl be the Tettler. Rad Ted i or equivalent.*l ) Without more, we find the discussion sufficient for us to conclude that under the terms of the AMS heense: (1) Since the timer of a teletherapy unit controls the amount of time a patknt is exposed to radiation," work on the timer mechanism of a tektherapy unit can be interpreted no other way than to be work "which could result in increased exposure to the source... which could compromise the safety of the unit and result in increased exposure levels"*3 and must be carrkd out by or in the presence of a Ikensed service technklan;" (2) Exposure of the source material must be carried out ty or in the presence of a licensed service technkian;45 (3) All individuals, while performing licensed service work must wear radiation monitoring devkes including filn badges, penonal dosime-ters, and audibk gamma radiation detectoi? (Tattler, RM Tad or equivalent)." 814, Ceah service Pnwalure Manual et 1. "la et 5 "Id at 9.

• l a et is.

l " NRC staff # Wevtt. sacre,1 s(r). 43Monem, mere, AnaA 2. Ibetary Training Courne et 9 " 14 "3 14. schalu'; *'B" at 3. "14, A aA 3. Cnhah 3ervko Iwature Manual at 5.15. we do nas awan w say that this het is sahaumive et tt AMs hoewe empirurnents er violatiarw. mly that the ha is surncient far our seview. 553 f r

On the basis of the foregoing, we reach the conclusion diat dic Director cor-rectly interpreted the meaning of" licensable service work" under the provisions of the AMS license, lie derefore had the requisite understanding of Commis-sion regulations when he issued the order, j As to the last element of the second Indian Point consideration, we need look no further than the protection of the public heald and safety to find that the Director correctly underslood the governing Commission policy regarding license suspensions. Tbc fundamental principle guiding all Commission licens-ing actions is de paramount consideration of public safety. 'this principle per-vades de regulatory scheme established by the Atomic Ercrgy Act and requires all persons to act with respect to nuclear materials in a manner that does not constitute a threat to public health and safety. SheBield,9 NRC at 6'16 77.. 'Ihc Direwtor's concern focused on the maintenance of Iclotherai, aquipment at medical facilitics. 'Ihc Director reasonably concluded that subst.andard or ill-planned maintenarce on teletherapy equipment had the potential for immediate, adverse heakh consequences to bodi the public and de individuals working on the equip nent and his concern has been set out in the order. The Director had tic requisite undxstanding of Commission policy.

3. Whether all necessary factors have been considered, and extraneous factors excluded, for the decision. The October 10 Order leaves little room for doubt that the Directo considered only the relevant factors in making his decision. Two inspections by the NRC Staff had revealed four documented license violations and allegations of several others occurring over a 2 year time period which could reasonably be expected to place the public health and safety at risk. 'Ihcre is simply no evidence of the consideration 01 extraneous factors on the part of the Director."

4, Whether inquiry appropriate to thefacts asserted has been made. Aftet being alerted to potential license violations on September 15,1986, and prior to the issuance of de license suspension order on October 10,1986, NRC Region til Staff conducted personal interviews with nine individuals directly involved with AMS licensed activitics involving tie maintenance of teletherapy units at medical facilities. *Ihose interviewed included: former and current technicians who had performed de alleged unauthorized maintenance work, AMS's only full time licensed service engineer, AMS's Field Servicc/ Production Manager, and two members of the mdiological staff from one of AMS's client hospitals." "Ihc inquiries were conducted or directed by at least five NRC employces with " AMs makes seural takt assertions concerning: bias en the pan of an NRC Ernployee involved in the 4 cision to issue the show<ause erder (Bnef et 17), an NRC Employee inwnived in a stafr inspectica (AL st 18) and the inausunanal bias esneied by the vested irmereau or NRC ernployees (at at 28), Nane of these allegatums are enhstarassied by ogpartmg doeurnenutum er ofMavit. as NRC stafr AfMavit. swee.120. 554 l

i o expertise in AMS licensed activitics" and who evidence particular expertisc J in the area of radiation safety,88 Oiven the nature of the allegations and the perceived dircat to the public's and AMS's employce's heahh and safety, we do not find the scope of the Staff's inquiry to te either too shallow or too short, We find the Staff's inquiry appropriate to the facts asserted in the suspension order. 5. Whether the Director's decision is demonstrably untenable on the basis of allinformation anilable to him, Under the fifth Indian Point consideration, Oc Board's inquiry for de first time focuses on the core of t'ic Director's decision. We must determine, upon the facts availabic to the Directa at the time he made his dechion, whether that decision is "untenabic" "not abic to te defended or maintained."5 If this direction is to be followed, our inquiry must measure the adequacy of the information available to the Director and the reasonableness of his decision based upon that information. But what questions do we ask about this information? Was there enough information? Was the information reliabic? What is the appropriate legal standard to be applied? 'Ihc legislative histories of section 186 of the Atomic Energy Act and section 9(b) of the Administrative Procedure Act provide little in tie y ay of an answer to our question.82 Both the Senate and flouse Judiciary Commitices commenting on applicable provisions of tic Administrative Procedure Act expressed concern that the excepdon to the requirement that advance notice be given to the licensee prior to a license suspension should " apply only where de demonstrabic facts fully and fairly warrant the application of the exceptions,"U As to the other considerations: "oemse McCarst, Oiier of the Wenals Ucensing Section, Nuclear Warials safety Brands, Invision er Radisten Safety and Safeguards, UsNRC Regmn !!!, was present dunna most if not all the buemews. Mr. McCann states that ha had added awarenses of AMs's beense requirernants since he was the Sarum Ucenes i Reviewer omired the respmeitnhty fa rmrwing AMs's hcense venewal appucation pending at that tuns. Id., {l9h. Prdresimal Quahficature of osorge hl McCann,Darmt O. Wiedeman, Bruce Mallett, and W dham t. Analse, suscned in NRC Stafr Affulsvin, ancre. 88 wenster's Third New laserneannet Dkeenery of As Enghs4 leagusge,1976 Ed. 32The authority upon whidi the Carnmissa teses tu abihty to eurnmarily suspend a hcense under 10 C.F.R. 6 30 61 is fuisid in sectaan 186 of the Asamic Energy Act of 1954, as ammuind,42 U.s C.122% see Rule Amauhnent,35 Fed. Reg-11,460 (1970), section ll6(b),in ture, makes section 9(b) et the Administrative Procedure Act (5 U.s C. 4 55t(s)) splicable io license auspensima. 'that prmse sutes in miswans part: Escop in case of willfunnses as dune in which pubhc heahh, interest, or safasy sequires otherwise, the t wahdrawal, suspenman, revocatinn, or annulmers of a luense is lawful only if, before the institunon or opency paceedmse thersfar, ths acause has been given~ (1) nonce by the agency in writing d the facts er conduct whidi as) warant the action; and (2) opportunity to dementais or schieve compliance with alllewful sequins *ients. 8 s Rep. Na 152,79th Cong. Ist sesa 0945), reprinsed sa Admirnstative Procedus Act: 14ssalative Estory,

s. Ibc. No. 248,79th Cong. 2d sees.185,211 12 (1946).

5S5

i I Willfulness snust tie manifest. 'the same is uve of *public leahh, interest, or safety." 1he standard W *public * *

• irnerest* nenns a situatkm seguiring immediate uti(m !rvespective d de equities or irsuries to the hcensee, tua the term does not otmfer upun egencies en artstrary discretaan to ignore the requiremers of notice and en opportunity to demonstrate campliance.S*

llomver, none of these considerations are expressed in the version of the APA finally enacted. They do little to answer the issue posited above. This leads us to the conclusion that our issue is res amo, but we are not without direction" Recognizing that we are reviewi?.g a discretionary decision made at the initi-ation of an administrative enforcement action yet to run its course, we are loathe to tie too tightly the hands of an administrator charged with the protection of the public health and safety - the efficiency and flexibility of the administra-tive process at this stage should be maintained, not contracted.8' Thercaore, we find neither justification nor need to measure the sufficiency of the Director's information on any basis other than the threshold evidentiary sequircrnents asso-l clated with administrative proceedings under the Administrative Procedure Act - that the information he bases his decision upon be reliabic, probative, and substantial - within the context of reasonableness, 'nirning then to what we know was available to the Director at the time he issued the summary suspension order, we find no acason for him to suspect that the information provided by his investigators was unreliabic, nor do we find it so. The signed interviews provided by the former and then current AMS employces are tantamount to sworn statements. The investigative reports, although unsigned by the intervienes and marginally hearsay, are also not unreliable, in his posiw af authority, the Director could question the investigators to determine the strength of their credibility if he so chose. Nor do we have reason to believe the two signed letters from the radiology staff at the Munsen Medical Center are $*u ne um.slmheiery canentue p.e.ed.imon ow uma concen = iu s.iais eoisu.pait: he escogeians... apply only where uw demanstrshie facts fully and fairly warrent eisst eglicanas. Willfulness snust be marufest. De aanw is true d *pubbs beshh. tuterest, or safety." The standerd er "public * *

• interest" means a suusnoa whose clear and immediais necessity la the dwi sa.scution er des laws cuerndes the equities er the injury to the brenses the term does met confer upnn agencias authartiy at will to lysase ow seguiremera er nonce and an oppretanity to denumstraw compliance.

itsp. Na 1980,79th Cong. 2d sesa. (1946), repruund da Administesnve Procedars Act: tapalative thsiary,

s. the. No. Als. 79:h cans. 2d seas. 233, Tis (1946).

Novum jonaciasm apa der navissi jur, sed declaret aan imen; ques judcima ersJens ecnem et per Andcinas jur H v est moviarr reveleases guaside Anit veisamot (A new adpdicatism does not make e new law, but declases the tid, because adjudicatinn is the utterance er the law, and by adjudicatism de law is newly ervealed which was far a r kmg tams hiddet) 860ur etmcorn for the efriciency of the s&naustrative gancess weighs heavily in our decision. Ik> wever, this emcan does not eatend to the equnable issues sursounding a summary suspension ader after the order has issued (whahry the bunlan er an enfestwners anter en the hconsee arguably outweighs the arrunedsate threat to the pubhc, nr whether the impues do not land themselves to an expedimt heanngi At present, we are unaware of any pmcedural nochanism by wluch a bcenses can stay es affect or a tempmry summary suspension order. 556

I 1 unreliabic. Moreover, all of the foregoing documents are protative (i.e., tending to prove the conclusion the Director reached in issuing the order). " Substantial," as we use the term here, does not mean a large or consid. crable amount of evidence, but rather "such relevant evidence as a reasonable mind might accept as adequate to support a co clusion." Consolidated Edison Co. v. NLRB,305 U.S.197,229 (1938). licrc, in the basis of the information available to him, the Director reached two conclu3 ions - one, that license viola-tions had occurred, and two, that the public heal Pi, interest, and safety required the summary suspension of the AMS licensed ativitics. In view of the in-formation contained in the documents available u the Director at the time of the summary suspension order, we find that a reaaonable conclusion could be drawn from the information that unlicensed technicians were performing main-tenance on Colelt-60 teletherapy machines. The Director, through consultation with the radiation safety experts available to him," could also readily conclude on the tesis of that information, that such mainterance, if carried out haphaz-ardly or negligently, posed a great and immediate safety risk to both the person performing the maintenance and patients being treated by the sclctherapy units. Morcover, die statenents concerning de lack of radiation safety detectors dur. ing collimator mainterance activitics showed either a lack of respect for or a conscious disregard of radiation safety on the part of the AMS employees or its management. 'the Dircctor could reasonably conclude that such conduct had led or could lead to undetectable radiation exposure to the workers. Widiout more, the information de Director relied upon was reliable, prote-Live, and substantial in character and was sufficient for him to reach the conclu-sions he did at the time he made his decision to issue the summary suspension order, 'Ihc Director's actions were reasonable and therefore we do not find his decision to be demonsunbly untenabic. On the tesis of de foregoing, we do not find the Director to have abused his discretion in issuing de summary license suspension order dated October 10, 1986. Ill. For all the foregoing reasons and upon consideration of de entire record in this matter, it is, this 12th day of June 1990, ORDERED (1) 'Ihc NRC Staff Motion for Summary Disposition (January 10,1990) is granted; U *nis invesuasion imm Regim !!! were amrJy qmbried to undeniand dw danger inherons in uw inedical use or Cohnh44 see Professmns10mhAcanms or ororge M McCann, et al anached to NRC sufr Arr. davit siers. 557 i

^ a t (2) The Order Suspending License and Order to Show Cause (Effectively Immediately) issued by the Director, Offect. M inspection and Enforcement, and dated October 10,1966, is sustained; (3) The four (4) statements of issues admitted fnr litigation as contentions in this proceeding are dismissed; and (4) *Ihere being no additional contentions pending in the matter,' this Suspension Order proceeding is terminated? l ? THE ATOMIC SAFETY AND - LICENSING BOARD Robert M. IJzo, Chairman ADMINISTRATTVE JUDGE Harry Foreman ADMINISTRATIVE JUDGE i . Ernest E. Hill ADMINISTRATIVE JUDOE . Bethesda, Maryland June 12,1990 i i l '. l i i 88 Two campenson cases nmain pending: la sk Marwr of Admaced Medical Syrwar, fac. C' --nco Onter), Doches Na 34160554M, AStaP Na 87 555 014M. la su Maner af Ad, maced Meecal Syrwar, Jac. (ovesesp Ov0 Penaliyk thxket Na 3416055-CP, A513P Na 89 592 0 <P. i 558 i I l l l. s i l l l

t Cite es 31 NRC 559 (1990) LBP 90-18 [ UNITED STATES OF AMERICA NUCLEAR REGtlLATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD I Before Adminletrative Judge: Peter B. Bloch in the Metter of Docket Nos. 70 00270 30 02278-MLA (ASLBP No. 90 81342-MLA) (Re: TRUMP-S Project) (Byproduct License No. 24-00513-32; Special Nuclear Meteriale - Lloonee No. SNM 247) CURATORS OF THE UNIVERSITY OF MISSOURI June 15,1990 The presiding officer admits two parties, after detailed consideration of standing questions, and admits six of seven areas of concern presented by those parties. He defers action on a request for a stay on the ground that the criteria for a stay have not been met but that adequate information is not currently available for use by the intervenors. RULES OF PRACTICE: SUBPART L: STANDING 'Ihc presiding officer found that residence of a member of a concerned organization within 2 miles of an experiment utilizing 10 grams of plutonium was adequate to establish standing. lie said, following Northern States Power Co. (Pathfinder Atomic Plant), LBP-90-3,31 NRC 40,41 (1990), that: [ Flor an organizatim to have standing it must show injury in fact to iu organisational interesu or to the interest of mernbers... who have authorized it to act for them. %here t i 559 S

^ 3 the organlaatim is dependeng upon irpury to the interest d hs members or spunsars to establish standing, the ergenistion naast provide wah its praition identifation d at least one enemnher or sgamsor who will be indurui, a desenpaian d the nature d that irsury, and an authorintim in that organiution to nyrenent that indsvidual in the proceeding. The l irduty in fact snust be argueNy within the zone d traerests protected by statutes covering the proceeding. RULES OF PRAC'! ICE: SUBPART Lt STANDING (ORGANIZATIONAL PURPOSE) An organization inay not be an intervenor unless the areas of concern it advances are consistent with its organizational purpose, RULES OF PRACTICE: STANDING (SUBPART L); INJURY IN FACT A petitioner must show " injury in fact" in order to obtain standing. However, the phrase " injury in fact" does not bear its ordinary English meaning and refers to an injury that may be possible should a proposed governmental action proceed. Nor is it required that as part of consideration of standing that a petitioner prove that injury will actually occur ' It is enough to have reasonabic grounds for believing that injury may occur. 'The " injury in fact" test is the same for formal adjudication and for Subpart L cases. RULES OF PRACTICE SUBPART Ll AREA OF CONCERN 'Ihc presiding officer admitted six of seven areas of concern, pointing out that a petitioner need not even state a concern, just an "arca of concern." One area i of concern, relating to fears concerning an alleged effect of this experiment on nuclear proliferation, was excluded because there was no showing of any legal basis for the claim and it was therefore not germane to the license. NUCl. EAR PROLIFERATION: SUBPART L1 EXCLUDED AS A PERMISSIBLE " AREA OF CONCERN" When petitioner fails to rely on any legal materials to assert that a project improperly risks " nuclear proliferation," they have not stated a legally cognizable ~ " area of concern" that is germane to the pending application for a license. 560

RULES OF NACTICE: SUBPART L; STAY Petitioners' are required to fde a request for a stay at the outset of their case, even though information relevant to their nc(d for a stay may not te available to them. Consequently, the presiding off'ccr reviewed the criscria for granting a stay and deferred action based on the lack of relevant information available to the Petitioners. RULES OF PRACTICE: SUBPART L1 RIGIIT TO PRIOR llEARING (STAY) Petitioners' arguments that they have a right to a hearing prior to the granting of a license or amendment, with respect to the amendment of a special materials license, is arguably meritorious but nevertheless impermissible as a challenge to the agency's procedural regulations, RULES OF PRACTICE: SUHPART L; TIMELINESS j When a petition has been filed without any formal notification that a licensing action is pending, the time of actual notice from which timeliness is reckoned is the time of actual notice that there is a licensing action pending in which a person may be permitted to intervene. TECilNICAL ISSUES DISCUSSED Neptunium: Americium; Plutonium; Dispersion of plutonium through fire or explosion, model of, i MEMORANDUM AND ORDER j (Admitting Parties and Areas of Concern"; Deferring Action on a Stay) Memorandum l~ 'Ihis Mernorandum addresses a variety of issues that have arisen as this case l has just gouen under way, it admits several parties and their "arcas of concern" and defers action on a request for a stay of the TRUMP-S project. l $61 4 l>- a

I. FILINGS IN THIS CASE nis docket was initiated with a "Requtst for IIcaring and Stay Pending licaring," May 7,1990 (Request), filed by the Missouri Coalition for the En-vironment, the Mid-Missouri Nuclear Weapons Freeze, Inc., and de Physicians for Social Responsibility /Mid Missouri Chnpler (collectively referred to as "Pc-titioncts").' Also pending is the " Response of Licensee to Request for Hearing and Stay Pending Hearing," filed by the Curators of the University of Missouri (Licensce) on May 25,1990 (Licensec's Responsc) and the " Rep'y Memoran-dum of Itutioners in Support of Request for Hearing and Stay Pending Hearing" - (Petitioners' Reply), filed by Petitioners on June 12, 1990.8

11. BACKGROUND 5

%c University of Missouri (the " University") is a comprehensive public university consisting of four campuses at Columbia, Kansas City, Rolla, and Saint Louis. De Columbia campus is the largest and most comprehensive of the four campuses, it has art enrollment (Fall 1989) of 18,186 undergraduates and 6148 graduate and professional students. De University of Missouri Research Reactor (MURR) is administered by the University's Office of Research. %c MURR facility includes a 10-megawatt research reactor, which is the most powerful university research reactor and one of the Eve largest research reactors in the United States, it is located in die southwest portion of the Columbia campus in Research Park on a 550-acre tract of University owned land. He nearest residence to the facility is approximately h mile away. Within that half mile radius, many people are present every day - including the Red Cross Mid Missouri Blood Center, various athletic ficids, a spons stadium, and university buildings. Within 1 mile, there is a University hospital and a Veterans llospital. Within 2 miles is downtown Columbia, a city of 65,000 peopic. De Licensee currently holds five licenses from the Nuclear Regulatory Commission (NRC) related to MURR. Reactor License No. R 103 authorizes Licensec to possess, operate, and use the 10-megawatt research reactor in accordance with the procedures arxl limitations set forth in the license. As part of this license, the Licensec is authorized to possess 20 kilogams of natural c.r N a$n s it Y E*o. c".d b. N.'.N a Nr iNeroc." duns r"'Ni$ thensing Advdicadam." pumshad in de Feder.l Assiseer, s4 Fed Reg s269 0999A 3A mercase was authmuad by my atpuhhshed Memoranden and order at May 30,1990. IThses taas am taken rium 6hnas or both en parues. Dwy am diersfan based on repruassuans and nnt en evidarm. 562

uranium and 50 kilograms of depleted uranium in any form,45 kilograms of uranium-235 contained in fuel or other sources, and 100 grams r I plutonium-239 and 40 grams of plutonium 242 in scaled sources. Two of the othw NRC Ikenses held by the Licensec are Broad Scope Byproduct Material License No. 24-00513 32, which covers receipt, possession, use, and transfer of byproduct materials: Special Nuclear Mateal and Source i Material Lkense No. SNM 247, which covers roccipt, posses > eon, use, and transfer of by product materials; and Special Nuclear Material and Source Material Lkense No. SNM 247, which covers receipt, possession, use, and transfer of special nuclear materials and source materials. Prior to the issuance of the recent amendments, these two licenses authorized, among other things, the possession and use of over 293 grams of plutonium in the form of sealed sources,250 kilograms of natural uranium in any form, and 5 curies of americium 241 in scaled sources. Prior to the issuance of the recent amendments, the only authorization for possession of nucicar materials in unsealed form was 5 millicuries of neptunium and 40 millicuries of Americium. %cre was no public notice of an application filed by Missouri University for these license amendments, and there has been no proposed finding of no significant hatards. %c licensed project is expected to begin by the end of June 1990 and to be completed by the end of this summer. On March 19, 1990, the NRC issued Amendment No.12 to License No. SNM 247. and on April 5,1990, the NRC issued Amendme-t No. 74 to License No. 24 00513-32. %c amendment to License No NM 247 authorized tic possession and use in unsealed form of 10 grams of plutonium 239/240 (710 millicurics) and it also permitted possession and use of 500 grams of depleted uranium (0.2 millicuric). De amendment to License No. 24 00513-32 increased the possession limits in unsealed form to 14 grams (10 millicuries) of neptunium-237 and 7 grams of americium 241 (25 curies). Licensee obtained its license amendments in order to conduct a limited por-tion of the 'IYansuranic Management by Pyropartitioning Separation (TRUMP. S) research project at the MURR facility. The ultimate objective of the overall TRUMP-S project, according to Applicant, is the safe and efficient removal (partitioning) of long-lived radloactive malcrials from spent nuclear fuel (this might improve the efficiency of disposing of high levcl nuclear wastc). Another objective, according to Ittitioners, is to develop inexpensive means of sepamt-ing transuranic clements (such as plutonium, americium, and neptunium) from spent fuel for recycle in breeder reactors. %c activitics to be conducted by the Licensec are limited to pure elements (99% or better). The objective of the Li:ensec's component of the TRUMP-S project is to conduct basic scientific rest arch on the thermodynamic, nuclear, analytical, and health physics aspects tiu a att associate 41 with such a project. i 563 l

i %e Lkensee will develop fundamental chemical and ekctrochemical data for j rare carths and actinides in molten salt / cadmium systems. i he Lkensec expects to accomplish its research with minimal inventories of de elements of interest (icss than 75 grams of depleted uranium and less than 10 grams each of neptunium, plutonium, and americium). These elements will only te examined in their pure form and no spent nuclear fuel will te studied i or used in the research. 111. TIMELINESS j Licensce's first amendment was granted on March 19,1990, and the second on April 5,1990. Intervenars assert, through affidavits of knowledgeable j officials of the petitioning organizations that the earliest any members of the petitioning organizations had actual notice of the granting of the licenses was April 24,1990. The petition was filed on May 10, 1990, or well within the j 30 days filing limitation of 10 C.F.R. 62.1205(c)(2)(i). Applicant cited an article in The Columbia Daily Tribune of April 5,1990,8 as having provided possible notice of the license amendment, llowever, tne artkle states that "the facnity has already altered its license from the Nuclear Regulatory Commission" and did not provide any indication that the altered license could be challenged. Under the circumstances, I accept Petitioners' regwesentations that they did not have actual notice of any application of the University of Missouri for amendment of any NRC license. Derefore, I find the petition to be timely. IV. STANDING he regulations require me, at 10 C.F.R. 6 2.1205(g),10: driermine that the requesw meets the judicial starulards for standing and... lto) consider, arrums other factors - (1) he nature d the requestor's right under the Act to be made a party to the poceeding: (2) ne nature and extent d the requestcw's property, finandal, or other interest in the poceeding; and (3) he possible effect of any order that may be enicied in the proceeding upon the requestor's interest. Rus, I am directed to apply judicial concepts of standing that apparently are identkal to the concepts applicable in formal agency adjudication. As the 'llcennes Response. Enh. A. i l 564 1 1

1 5 lion. Morton Margulies stated in Northern 5fales Power Co. (Pathfmder Atomic Plant), LBP-90-3, 31 NRC 40,41 (1990): IFlor en wgeniantim to have standmg h amst show inhry in faa to ha organizational interests or to the irnerest d meniners... who have authorized k to act for them. Where the organiastim is dependog upon irQwy to the interest d hs marnbers or sponeurs to estahlieb standing the agentaation nwst psonde with its petition identi6catie d at least me mornhet or sponsor who will be injured, a deetnytim of the nature of that irdwy, and an aurkriantion for that organisation to represees that indsvidual in the ---- '; he injury in fact raust be arguably within the sane d Iraerests proteaed by statutes covering 'he proceedms. in this case, Petitioners have alleged injury in fact to members who have authorized organizations to represent them, purportedly within the purpose of the organizadon. I shall consider cach of these prcr.gs of the standing test + separately, beginning with representation and purloc - as the injury-in fact test must be applied to memben who authorize r. presentation. A. Representation and Purpone in the Request, Petitioners alleged Missouri Coalition for the Environment's (Coalidon's) members Henry Ottinger and Molly Moore reside and/or work within approximately 2 miles of the University of Missouri nuclear center where the 'IRUMP S prelect is planned. In the Reply, Henry Ottinger filed a formal authorization for the Coalition to represent him in these proceedings. De purpose of Coalition is to preserve environmental values in Missouri. In the Request, Petitioners alleged that at least 350 members of the Mid-Missouri Nuclear Weapons Freeze, Inc., (Freeze) live or work within approxi-mately 2 miles of the University nuclear center. Five of the members are specif. ically named in the petition. In the Reply, four of them, including the director of the organization, filed a formal authorization for the Coalition to represent them in these proceedings. De purpose of the organization is not stated in the petition, thus raising a question concerning which of the areas of concern fall within the purpose of the organization.s Ib clarify this important point, I will ask for a statement of the purpose of this organization before deciding whether to grant party statm to the Freeze. In the Petition, the Physicians for Social Responsibility /Mid Missouri Chapter (Physicians) list three medical doctors who are members and who reside within approximately 2 miles of the University nuclear center. In the Reply, all ~ 8 nah $. n-..r m. ors.ninu. d my p on.1 known.de..r ih. n.non i Fr ers.nian..uss i ih.i he huse.st is hmiwd to weapons and pubfor.non iseu.s. twt a local organiun may hav. oran.d its scope ddier.rnly hi hs by-laws or danar er ihnmsh ramally adoped s.satun s. 565

= -. I dwoc authorized Physklans to regresent them. Ahhough Physicians also has not disclosed hs interest in this case, I take official actice that it is generally concerned both about nuclear weapons and de health effects of the use of nuclear materials. llence, this case does fall within its purpose

• I conclude that Cballtion ami Physicians have met both the representation and purpose tests. Precie has met the representation test, but will be asked for a further representation before I can conclude whkh of the areas of concern may properly te considered to be related to its purpose.

1s. Injury la Fact 1. The 12 gal Standard I would note that it is easy to misunderstand this standard because the phrase " injury in fact" as used in this context does not bear its normal everyday meaning. For example, a pason living 45 miles from a nuclear power plant who canoes in the general vicinity of the plant has been found to suffer " injury in fact" from an amendment of a power plant license in order to permit the expansion of the capacity of the spent fuel pool. Pirginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB 522, 9 NRC 54, 57 (1979). Careful analysis reveals that, of course, the fuct pool was not even built at tie time " injury in fact" was alleged. No accident had occurred. No release of nuclear materials had occurred. llence, infact, there had not been any injury to tie petitioner as those words are commonly used. Nevertheless, he was said to have been irdured in fact because of the possibility of an accident. Of course, this was an early stage of the case in which he had not yet proved that there was a possibility of an accident. All the petitioner had to do to obtain party status was to subnt 'ontentions whose subsequera proof would result in a fmding of injury in fact io him. So: injury in fact is indeed the same, in this context, as an allegation that a real injury might reasonably be exlected to occur in the future. I would stress that petitioner need not prove that he will te injured in fact. What need be dore is for him to demonstrate the basis for his reasonable expectation. It is for this reason, that I have not considered the detailed factual evidence offered to me by Licensee on this point in its " Motion for Invc to - File an Answer to ' Reply Memorandum of Petitioners in Support of Request for IIcaring and Stay Pending ilcaring,'" June 15,1990.

• l mW expen dw local chapur to coned ne pnmely if k dJfers rnen what I knmr nathmal pahey to be.

566 1 ---,,L,

2. AppucaNe Facts Each of the affected organizations has memlers who live within 2 miles of the licensed facility. Tic Reply presents an affidavit of a knowledgeable individual,' Daniel O, Ilirsch, who states (Reply at A17 18) that there may well be releases of radioactivity in excess of regulatory limits, even if there were an exclusion zone in excess of I 2 miles, and that there may well be need for emesgency action beyond 1 mile in the event of an accident involving a fire or explosion. We find that Petitioners' showing of " injury" in fact far exceeds the require-ments of Subpart L Olven the fact that these Petitioners have not had the right to obtain any information about TRUMP-S and that they are mescly required to show " areas of concern," I would interpret Subpart L to require that the areas of concern show generally that dere could be injury in fact. I certainly would not require a detailed showing of possible release fractions, such as might be expected in a formal evidentiary hearing rather than at this early phase of an informal a4judication. I conclude that all three organizationa have demonstrated injury in fact. V. AREAS OF CONCERN A. Regulatory Ilackground in reviewing the standards to apply to determining whether 10 admit "arcas of concern," I find that I am indebted to my brother, lion. Morton Margulics, for his excellent discussion in Patl/inder, LBP-90-3, supra,31 NRC at 46 51. i I particularly commend his discussion at 46-47, which I now quote: W rules of practice for informal materials ticensing adjudications provide in 10 Cf.R. 5 2.1205(dX3) that a requestor, in 6hns a request for a hearing, must describe in detail the requestor's areas of concern about the licensing activity that is the subject matter d the pmceeding; and in section 2.1205(g) that in ruhng cm a request for a hearing, the posiding of6cer shall determine that the spacined areas of concern are germane to the subject maner of the pmcee<hng. ... h pocess voquires that the requestor must esuanciate its areas of concern and have thern ruled upon to establish the right to a hearing,before the hearing Ele is 6tst made - available. [Manone omiued.1 7Arnang other acciaphahrnents, Mr. il me was enhed by the subcameninee an omeral overzieht and Northeest Power of the truerier Cmuninee of the U.S Ilouse or Repvemenistives to essenble a panel er empens to inspect and wwww the safety of the llenford N sescice. De fmdings er uus penst were sunmequently conrirmed by the Nasmal Acadseny c( scia oes' pand on the doe reaclest comptea. 567 l

1he Cummissim evideatly secogniand this handicap d requestors of only having limited informauan eweliable to thesn before having to anunciate concerns arul set a sensacd standard as to what would be sufGeient to satisfy the regulations. 'The Commission in its responses to commeses for promulgating 10 C.F.R. Part 2, informal llearing Procedures for Materials tjoensing Adjudicatims, staied: 'this staternent of cmcerns need not lv essessive. tna h must be sufGciess to establish that the issues the requestor wants to raise segarding the licensing action faII generally ,hhin the resse of the matters that properly are subject to challenge in such a pmceedmg. 54 Fed. Reg. 8272 (emphasis sugglied) h further stated: Of course, the linervmor is required to identify the areas d concern k wishes to raise in the proceedmg, which will prtwide the presiding ofScer with she miasmal information needed to ensure the intervonor desires to litigate issoas gemiane to the licensing proceeding and therefore should be allowed to take the additimal steps of making a full writien presentauon under 4 2.1233.

14. (emgassis supplied).

%c very phrase "arcas of concern" suggests the kind of broad interpretation sought by the Commisslori. A petitioner red 7.ot m staic concerns. Just areas of concern. Ibrthermore, this l#.sude makes great st nse in the regulatory scheme because the seward for being admitted as a party 1 slim. First, you get to see the case file - a group of documents that ought gern rally to be available to the public but that provides the first official information alcut the casc. %cn, you get to file a written presentation, pursuant to 10 C.F.R. 6.'.1233(a). %cre is no discovery.10 C.F.R. I 2.1231(d). II. Areas of Concern 1. Area of Concern Number one Petitioners have obtained a one page " Fire Procedure," dated March 22,1990. %cy were concerned about the adequacy of fire procedares for TRUMP-S be-l fore they obtained this procedure. Dey are more concerned now. His concern l about fire procedures is germane to a proceeding concerning authorization to possess nuclear materials in unsealed sources. His area of concern is admitted. 1 I' 2. Area of Concern Number Tno i Petitioners are concerned that "there is no buffer zone to reduce doses to the public in case of an accident." His area of concern is germane to the possession of unsealed sources in an active area of a university campus in which many 1 1 $68 l-

i activities occur within one-half mile of the site of the proposed experimental activity. His area of concern is germane to the prtr, ceding and is admitted. 3. Area of Concern Number Three Petitioners are concerned that the administrative controls necessary for safely conducting 'IRUMP-S may need to be far more stringent than for materials previously handled by the University of Missouri and that some of the procedures and controls may not even have been written. his area of concern is germane to this proceeding and is admitted. 4. Area of Concern Number 4 Petitioners are corcerned that Licensee's reliance on its emergency plan of July 12,1984, is not appropriate for the nature of the project it is undertaking and that there are no adequate emergency procedures. Dey do not think that previous procedures are adequale for the new activitics, in particular, some of the hospital facilitics being relied on are thought to be too close to the site of the experiment, his area of concern is germanc to this proceeding and is admitted. 5. Area of Concern Number Fin Petitioners are concerned that an environmental assessment and environmen-tal impact statement must be prepared as: (1) there is no applicable categorical exclusion in 10 C.F.R. I 51.22(14)(v); and (2) *IRUMP-S project environmental impacts may be significant and the NRC has faded to explain why they will not be. (Citing Jones v. Gordon,792 F.2d 821 (9th Cir.1986).) Although Petitioners have presented an extensive legal argument, I have not considered the merits of their presentation. It is enough at this time for me l to conclude that this area of concern is germane to this proceeding and that, therefore, the area of conceru is admitted.

6. Area of Concern Number Six Petitioners seem to acknowledge that this area of concern, dealing with nuclear proliferation, is different from their other areas of concern. Dey do not even state why this concern is germanc. Reply at 14-15. Instead, they argue "the public interest." I am not persuaded. In particular, there is no reason I

$69

to admit an area of concern for the purpose of permitting an intervenor to make public-interest arguments that are truly relevant to its oda concerns' If this project is permissible undce the laws and regulations of the United States, it must be authorized by me - and arguments about effects on prolifer-ation are irrelevant. It is not relevant or proper for me to consider what effect authorization of this project might have on nuclear proliferation unless it is in violation of some law or treaty.' Since no law or treaty has been suggested to me as applicable, I find that this area of concern is not germane to this case and it is not admitted. 7. Area of Concern Number Sewn Petitioners are concerned that the responsibilities of personnel have not been pinned down. They are particularly concerrgd about the role of the gasonnel of Rockwell International, Inc., which will have resident personnel in Columbia and has provided equipment and contracted for the project. This area of concern is germane to this proceeding - as the Licensec must be clearly in charge of all work under its license. Hence, this area of concern is admitted. VI. REQUEST FOR A STAY A, Petitioners' Argument Petitioners argue that i189(a) of the Atomic Energy Act of 1954 (AEA),42 U.S.C. 6 2239(a)(1), requires that the NRC grant a hearing upon the request of any interested party in any proceeding for the granting, suspending, revoking, or amending of any license. "The section states, in pertinent part: In any proceedmg under this Act. f,r the granting, susperuling, revoking or aniending + of any license or construction permit.... the Cornmission shall grant a hearing upon the request of any person whose interest may be affected by the psoceeding. and shall admit any such person as a pony to such proceeding. iEmphasis added.1 Petitioners then cite Sholly v. NRC,651 F.2d 780,788 (D.C. Cir,1981) for the proposition that - prior to the 1983 amendment to ll89(b), the "Sholly Amendment" - the Commission could not issue a contested license amendment before completing a hearing. Sholly states: a Cm M @m sesen w a w h highly My w k rham w uy of h othe - ' Ahhaush Petiticeers essen that the amendrnes is " inimical to the comm<st defase and security." citing AEA. 4 57,42 U.s C. I 2077(cx2h to cf.R. 6 70.31(d). I see noihms in these sensr:1 provisions that would suppost e ruuhng.hst dus project is alegal 570

I I An imerpretatie of acaion 189(a) that wtadd permit the NRC to issue a canisstad lianne - enendment without a hearing w<ndd calarge secske 189(a) beyond the scope originally aniended. I Petitioners then argue that the legislative history of the Sholly Amendment shows that it authorized the Commission to dispense with a hearing only in issuing operating licenses. In particular, Petitioners state that the NRC sought and was denied an amendment that would have permitted it to make any license immediately effective, prior to the holding of a requested hearing. if it made appropriate prior findings, ncy site II.R. 97 22, Pt. 2, p. 25 (1981) as the source of the text of the following proposal, introduced for the NRC as S. 913* ] % Canmission is authoriad to issue and to snake immediately effective an amendment to a license upcm a determination ivy the Canmission that the amendment involves no l significan hasards consideration.... N Commissia is authoriid so issue end to make I immediately effective any -- ' to a ticense... as b :nay deem necessity upon a eniermination that immediate effsdiveness is required to proieet the public healt, safety and interest, or the common defense and security. Petitioners argue that the Sholly Amendment rejected the NRC's plea to be able to issue any license prior to completing a hearing and restricted its scope only to operating licenses. %c current text of i189(b), which supports this interpretation, states: % Commisskm may issue and make immediately effective any amendmers to an <perating ticense, upon a determination by the Commission that such ammamers involves. no significant haurds cor sideration. not withstanding the pmdency before the Cornmission of a request for a hearing from any persort Sudi amendment may be issued and made immediately affeaive in advance of the holding and completion of any required hearing.... Ibrthermore, Petitioners argue that it is appropriate that the immediately effective rule be restricted to operating license cases, as it is the second step of a licensing process for nuclear power reactors, and notices, hearings, and environmental reports have aircady been available during the construction permit stage of the proceeding. Dey argue that a materials license is a one-step process and that dispensing with a prior hearing is inappropriate because it would climinate all opportunity for the application of procedural safeguards to the materials license proceeding.8' t 18 j. 1%:itannen slao argue that the pioposed sanne bal, s.1207 induded a proviska ror asundang the serity to depense with hasnnas far mesnals licenses but inat this pnmaim was delstad dunng moncihation with llous6 n.11,1I R. 2334 57I t l

i Ittitioners then state that: Outside of the tunited eacmption grarned by the Sholly JL . AEA l189 has been em6rmed as requiring a hearing in alllicensmg proceedings by appellate carts whidi have cosidered the questim. See. e.g., Unimi of Concerned Scie =rira v. NE,735 F.2d 1437 (D.C. Cir.1964); laion v. NRC,712 F.2d 1472 (D.C Cir.1983). rewrsed on oder groeunds, 470 U.S. 729; 8ellari v. NAC,725 F.2d 13s0 (D.C. Cir.1983); NADC v. NRC. 606 F.2d 1261 (D.C. Cir.1979). *Det is no preccdent for unilateral unfettered issuance of a licane er snenanerd by Staff, particularly one which totaDy usurps the function of the Presiding Ofncer in a cxxacsied licensing proceeding, thereby making the hearing process sneaningless. And Petitioners point out that even the Sholly Amendment requires that tnere l be a no significant hazards consideration. 42 U.S.C. 2339(a)(2)(C); 10 C.F.R. l 5 $0.92 u Ittilioners concede that the NRC may hold informal hearings in materials I licensing proceedings. City of West Chicago v. NRC, 701 F.2d 632 (7th Cir.1983). But they make what I consider to be a direct challenge to the validity of 10 C.F.R. Part 2 Subpart L, 12.1205(1), which provides: 'Ihe filing or grarsing d a request for a hearing or petition for leave to irservene need not deley NRC staff action regarding an application for a licensing action covered by this suhrert.

11. Licennee's Argument Licensec argues that the Commission has clearly stated that it is permitted to issue materials licenses before contested hearings are completed. It cites i 2.1205(1), which was just quoted above, and it relics on the fcilowing citations of Commission intention in the Federal Register:

the Act says nothing specific about whaher sudi a hearing requested by an irserested person must he coropleted prior to agency action granting or denying a maierials license. 52 Fed. Reg. at 20,090. " Petuimes funher cim Union e/ Concerned Scivanau, secre. 735 F.2d at 1443. far the pmposition that the h1tC staff muy nas remcwo fran the heansing hasnns prm:ess *eensideration of evwence that k considers relevara to a maanal immie in the sectinn 189(a) pmcess. as k has deAned that issue.*' Ilowever. I do not undestand the relevenes to our use. 7he stafr sciaca does ont umwe any issue fmen this casa. Os may make the whole mauer med because of the dJficuhy of compleung the htisatun belnes the pmject is e<rnpleted. but noissue is nmwed.) 572

1 l ISulpart 14,.. censinly cassemptaield] that whim the staff is able to reae a positive conclusi<m abois the safety and environmesmal etmsequences of a preposed licensing request. k wiu take action despite a pending hearing. 54 Fed. Reg. at 8773; 52 Fed. Reg. at 20,090. [In maier:als license casesl... a preticensing hearing is not t ecessarily required. '4 Fed. Reg. at 20,090. We Cornmissian corninues to believe that its present praaice regarding Federal Registec notice for materials licensing applications ccunports with mD applicable legaliequirements anal, under the circumstances,is apptcyriate in terms of the aDocation of agenes re== aces. As noted in the proposed rule, the Atomic Energy Act does not require that any notice be given of a maaerials licensing anion. Given the lad of any constitutional right to a hearing in the usual masenals licanning case,see West Chicago at 645 the Crsnmission does not agree with the argurnent that there is a general constitutional right to maice of the opponunity for such a hearing. (Ibotnaie omitted.1 54 Fed. Reg. at 8270-71 (Feb. 28,1989). Licenace argues that in materials licensing cases, the agency must weigh the right of the applicant to a reasonably prompt determination against the right of others to challenge the requested licensing action. Also important in this inlance is the governmental interest in avoiding delay: heightened by the fact that the agency reviews and processes literally thousands of materials license applications each year. Kerr McGee Corp.,15 NRC at 261. Irinally, it is signincent that the maserials involved in the vast majority of cases, when cannpared to power reactors, involve substantiauy less hasard. IJ. at 262. 52 Fed Reg. at 20,090. Another argument is that Petitioners sectn primarily to have addressed tiem-selves to hearing rights for hearing requests filed prior to the issuance of an amendment, in this case, Licensee points out that the request came after the issuance of the amendment, so no " prior" hearing is possible. They further state that: Nothing in the AEA requires the NRC to provide notice prior to issuasrc of an amendment to a n.aterials lice:we. %e last three sentences of seaion 189a(1) of the AEA refer to prict notices for issuance of construction permits or operating licenses or smendments thereto, but do not agply to maar rials licenses or amendments thereto. De last sentence (part of the Sholly Amendmess) permits the NRC to dispense with such notia if an operating ticense amendment " involves no signincars hazanis consideration," but such exemption is both irrelevaru to and unnecessary in the case of an amendmers to a materials liccmse. 573 i

J l I also note that Licensee disagrees with Petitioners' recital of Icgislative history and that it has requested an opportunity to brief its arguments. " Motion for Leave to File an Answer to ' Reply Memorandum of Petidoners in Support of Request for Hearing and Stay Itading Hearing,'" June 15,1990, Appendix B at 5. It is my conclusion that Licensee should have that right prior to any i - decision that relies on this argument: Petitioners' argument is new and Licensee j has not had an opportunity to respond, as it in fairness ought. l 1 C. Conclualon 1. Challenge to the Reguladons There is no dispute that a person who challenges an application for amend-ment of a materials license is entitled to a hearing. Such a hearing may, of course, be informal in nature. West Chicago v. NRC,701 F.2d 632 (7th Cir.1983). In this case, a materials license was amended by the Staff without any prior public nouce. Ibrthermore, the licensed project is scheduled to begin using nuclear materials soon and to conclude by the end of the summer. Hence, unless a stay is granted, Petitioners will be exposed to the risks they fear during a substantial portion of the pendency of this case; and there is some possibility r that almost all or all of the work under the license may be completed before the case is. Under these special circumstances, there is a serious quesdon whether Petitioners are being effectively deprived of their rights to a hearing. Ittilioners in this case have argued, citing persuasive legal precedent, that they have a right to a hearing prior to the cliectiveness of a license. Licensee responds that neither the AEA nor the Commission's regulations require hearings or even notice prior to Staff issuances of amendments to materials licenses. I find that Licensee is correct in arguing that the Commission's regulations and prior practice do not appear to contemplate prior nouce or hearings in all cases 10 C.F.R. 66 2.103, 2.104, 2.1205(1); West Chicago, supra,701 F.2d al 638 n.3. Hence, Petitioners' argument is a challenge to tim Commission's regulations sad - even if it may have merit - it is beyond my purview.10 C.F.R. I 2.1239(a). The only open avenue when a regulation is challenged is 10 C.F.R. 5 2.1239(b),n which pfovides for certification because "special circumstances exist." If Petitioners choose to use this avenue, then they should file prompdy. 12Abhaugh it is not erainly clear rain the face of the paulation whether alw procedural mies of k Canmission are covered by ths ;4 vies. eny reguladan c( the Ccunmission issued in hs prognm for the hcenung and segulation of... special nuclear maiorial," I cawhale that h is emmpnais to pmhht any challenge to a procedunt regulatian that anects the issuance of special nuclear matsnal licenses. 574 1 e - ~~ q

I - 2. Aunority se issue a Stay Even though Staff action is authorized under 10 C.F.R. 6 2.1205(1), the Pre-siding Offscer may still issue a stay pursuant to 10 C.F.R. 62.1263. Petitioncrs have complied with the requirement that they include their request for a stay in their request for a hearing. This procedure for reques;'ag a stay appears to . be the Cornmission's resolution of the question of whether or not there is an - absolute rigm to a hearing before the license is issued. Under the regulations, there is no such absolute right, but the licensed activity may be stayed if the criteria for a stay are met. 7% criteria governing issuance of a stay are set forth in 10 C.F.R. I 2.788(e) and are: (1) Whether the movins garty has made a strung sliowing that it Is 71ely to prevail en the incrits; (2) Whether the party will be irreparshly ir@ red urdess a s'ay is granted; (3) Whether the grossing of a stay would harm caher parties; and '(4) Where the public interest lies. j Pursuant to 62.1237(b), the burden of proof to show the grounds for a stay is on tbc movants -- the Petitioners. General PuMic Utilities Nuclear Corp. (7hree Mde Isl.uid Nuclear Station, Unit 2), ALAB 914, 29 NRC 357, 361 (1989), Catsumers Powr Co. (Midland Plant, Units 1 and 2), ALAB 395,5 NRC 772, 785 (1977). I will discuss each of the stay criteria separately. c, Likelihood of Success on the Merits Although Petitioners have demonstrafed the relevance of their areas of concten, their evidence is not assembled in such a form that I could be persuaded of a likelihood of success oa the merits. On the other hand, Petitioners have not seen many of the key documents and I also have not seen any of them. I am tet prepared to act on this aspect of the stay motion until I have scen the 3 i application, any related safety evaluation report that may have been prepared,55 and the Staff documents issued along with the license. Petitioners' filings at this point, given that they have not had formal access to any information, are impressive but do not carry the burden of proof on likelihood of success on the merits. t% a.6y a s n2, r,rans ihm tw.m June 6.1990. int 4 Petitioneri. "then is no sAR? 575 1 l t-

b. Irreparable frys.ry in this instance, Ittitioners have filed an expert opmion that there is a serious risk from TRUMP S, in excess of the risks esamated by the University of Missouri. Reply at AIS to A22. On the other hand, Licensee les filed its own expert testimony, which states that under no circumstances can the TRUMP S program cause personal injury to any member of the general public, or cause damage to their property, or result in an accident requiring evacuation of any = home or workplace other than MURR. Modon for Leave to File an Answer, Atte.:h. A. At this point, given the lack of information at the!r disposal, Petitioners have not carried their burden on this point. They have not demonstrated that their alleged injury is "both certain and great " Three Mlle Island, ALAB-914, supra, 29 NRC at 361.

c. Ilarm to Other Parties The Univenity of Missouri will be harmed by the issuance of a stay because j

its TRUMP S research would oc delayed, with accompanying loss of income and delay in the acquisidon of useful knowledge, for individual students, the staff of the MURR r ility, faculty, and students at the University of Missouri. ac l De summer months are particularly important because of the availability of personnel during this time period. His factor weighs in favor of Licensec, d. Where the Pubile Interest Lies If the 'IRUMP-S project is safe, it can rcquire information of importance to the public interest, related to the removal of long lived radioactive materials from spent nuclear fuel. At this stage of the project, basic scientific research is being done on thermodynamic, nuclear, analytical, and health physics aspects of the project. The acquisition of knowledge is, generally, in the public inte' rest. (I note that a variety of individuals and ejected officials have permitted their . views to be subnuted to me in support of their view that this project is in the public interest.) - Petitioner's principal argument is that the site is wrong for this p,uject becans6 It unnecessarily exposes peopic to a risk of exposure to ionizing radiation duc to their not being any exclusion zone around the project, liowcNet, they have not yet demonstrated the extent of the danger to these individuals, so their is no basis for finding that they have carried their burden on this point. 576 a

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i 3. Conclusion I have concluded that in order to dojustice, it is not yet appropriate to rule on tie Motion for a Stay, which was required to be submitted with the applica'Jon (10 C.F.R. 6 2.1263), at a time when adequate information is not availabic to the Petitioners. Rr the purpose of scheduling, I inquired of Licensce's attorney by telephonc at 2:10 p.m. on June 15,1990, when it would begin the portions of TRUMP-3 S that use nuclear materials, lie stated that it plans to use depleted uranium beginning on June 18. That phase will take about 3 wecks, followed by 3 wecks with neptunium and then 3 wecks with plutonium." { 11 is extremely important, in the interest of justice, that expedited procedures j be developed to permit Petitioners to have access to the information they need to make an informed argument concerning their motion for a stay and their casc. i It is particularly important that they have adequate information in advance of the use of plutonium, which is their principal concern. i The Appeal Board has carlier ruled that a Presiding Officer may not ask l questions of the parties (or, impliedly, ask that documents be produced);15 however, it is clear that some route must be found to expedite this case in - i the interest of justice, llence, I have dec'ded to ask the Staff to file a complete hearing file, including all official docaments relevant to any of the admitted l concerns, by June 30,1990. This is pursuant to my authority to regulate the course of the proceeding.10 C.F.R. I 2.1209(a). VII. COOPERATION Ol' PARTIES REQUE!rrED Desp;,a the signs of acrimony in some of the filings, I was pleased to learn l that Licensec has voluntarily shared some information with Petitioners. It is my belief, from reading the filings, that there are intense feelings on bah sides but that peopic of good will are involved. Under the circumstances, I urge further meetings to make agreements on sharing information, on scheduling and on possible stipulations. Obviously, if a schedule can be agreed to in which un early determination can th. reached, the need for a stay will be lesscued. Also, if full information can be shared, there is an increased chance that this case could be determined in an atmosphere of mutual respect. My full cooperation can be expected in support of all efforts La expedite this case. I am prepared to mediate at public sessions or to have a separate settlement judge appointed. I will schedule omt argument. Upon the stipulation of the "The information enncer Ing nceunium and plutonisen were furnished by a return telephone call at 2.29 p.m. URockwll laurassional Corp. (Reche:Jynn Division). ALAh-925. so NRC 709 (1989). 577

t ' parties, I am prepared to recomnend procedures other than those authorized under Subpart L.10 C.F.R. 6 2.1209(k). I respectfully request the cooperation of de parties and of the Staff, in the . interest of a fair and efficient resolution of this casc. Order Ibr all the foregoing reasons and upon consideration of the entire record in this matter, it is this Isdi19y of June 1990. ORDERED, that:

1. The petitions of the Missouri Coalition for the Environment (Coalition)

P and of Physicians for Social Responsibility /Mid Missouri Chapter (Physicians) are granted. Each is a party to this case.

2. l Action on the petition of the Mid Missouri Nuclear Weapons Freeze,

. Inc., is deferred. It shall file by June 22,1990, a statement of its purpose. t

3. Areas of Concern 1,2,3,4,5, and 7 are admitted.

4. Action on the request for a stay is deferred. Intervenors ms.. renew this request at a time when adequate information is available to thesu and to the I Board for a reasonable decision to be reached < 5. 'Ihc Staff of the Nuclear Regulato-Orwimission is respectfully re-l quested to serve the hearing file in this ( s 83 June 30,1990. L Respectfully ORDERED, l' Peter B. Bloch, Presiding Officer ADMINISTRATIVE JUDGE Bethesda, Maryland ( 578 l l

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n ;, Cite as 31 NRC 579 (1990) LBP-90-19 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAPETY AND UCENSING BOARD PANEL Administrative Law Judge: Morton B. Margufies In the Matter of Docket No. 30-05004 MLA' (ASLBP No. 90 509 01 ML) (Byproduct Material License No. 22-06799 02) J NORTHERN STATES POWER COMPANY -(Pathfinder Atomic Plant) June 21,1990 MATERIAL LICENSING ADJUDICATIONS Unilateral withdrawal of request for hearing, which formed the sole basis for c granting : hearing on an application to amend a byproduct material license to decommission power reactor buildings, removes all justiciable issues before the Presiding Officer and brings the proceeding to an end. ORDER TERMINATING PROCEEDING: South Dakota Resources Coalition (SDRC) filed a Notice of Withdrawal, dated June 15, 1990, in the captioned proceeding, by which it withdrew its g I Request for IIcaring dated September 22,1989, and its Supplement to Request l for IIcaring dated November 17,1989. l nc Notice of Withdrawal was filed following discussions between Licensec, 1 Northern States Power Company, and SDRC by which an agreement was reached h resolving the issues identified by SDRC. Rc agreement was not submitted for L approval and the terms of the agreement are not known to the Presiding Officer. l L S79 L.- 1 L i L u l l'

i l It was solely on the basis of tic SDRC petitions that a learing was granted on .the application of NSP to anr.4 its byproduct material license to &cammission buildings of the Pathfinder A:onde Plant. With the withdrawal of the petitions, . there remains no justiciable ism before the Presiding OfGcer. Had the settlenwnt been submined to the Presiding Offser, under 10 C.P.R. 6 2.1241, it would have had to be appsoved by the Presiding OfGcer in order. - for the seulement to be binding in the proceeding. De unilideral withdrawal by SDRC climinates action by the Presiding OfGcer under the section. Considering the foregoing, the matter has been brought to an end; -We proceeding is terminated. It is so ORDERED.' Morton B. Margulies, Presidir:g. Officer ADMINISTRATIVE LAW JUDGE Bethesda, Maryland June 21,1990 0 ..e j 4; i i 580 {( ~ _ - -..... - _ _ _ -. _ _ _ _ - _ _ _ _ _

-I T< E!p L l.< Che es 31 NRC 581 (1990) - LSPD 20 l. .;l: UNITED ST ATES OF AMERICA NUCLEAR REGULATORY COMMISSION - ATOMIC SAFETY AND LICENSING BOARD Before Adminletrative Judgee: l ' [ Ivan W. Smith, Chairman Dr. Richerd F. Cole Dr. Kenneth A. McCollom L /'

In the Matter of Docket Noe. 50-443 OL 50 444-OL I

(ASLBP No. 82 47102-OL) I (Offelte Emergency Planning leause) PUBLIC SERVICE CN Y OF NEW HAMPSNIRE, of e (Seabrook Station, Unita 1 and 2) June 27,1990 MEMORANDUM AND ORDER (Following Prehearing Conference) BACKGROUND L On Jute 5,1990, pursuant to notice,' the Licensing Board conducted a-(( prehearing conference to consider the resolution of certain issues pending before ' it. 'Ihc issues relate to (1) time estimates for preparing nonamtnlatory patients l-on advanced life support systems in the Scabrook emergency planning zore for l cvacuation and (2) shelter for visitors to the Scabrook area beaches when, in the face of a prognosis of decreasing ability to mitigate a radiological emergency l. ( INotice of Prehearing Conference, May 4,1990 (published at 55 Fat bg.19,686 (May 10,1990)). 581 f L l

at the Scabrook Stadon, evacuadon of beach visitors is not possible because of physical impediments to evacuation such as weather and highway conditions. These issues are among those remanded to the Licensing Board by a decision of the Atomic Safety and Licensing Appeal Board in ALAB 924. 30 NRC 331 (1989).2 in addition, ALAB 932, issued May 31,1990, remanded a require 4nent that the Licensecs incorporate within the appropriate E'IE calculations de number of vehicles hidden from acrial observation." 31 NRC 371,419. %c remanded Iml issue was also discussed at the prehearing conference. Tim Attorney Ocneral of Massachusetts represented himself and de New . England Coalition on Nuclear Pollution. Also participating were the Licensecs, . de NRC Staff, the Federal Emergency Msnagement Agency (FEMA), and the State of New ilampshire. ADVANCED LIFE SUPPORT PATIENTS in LBP 90-12 the Board identified candidate ALS patient issues to be resolved. 31 NRC at 438 39. Dey include the following issues set out by the Appeal Board in ALAB 924, by the Commission in CL190-3, and respective subissues identified by this Board:- (1) How long does it take to efficiently prepare en ALS patient for transportation? (2) Would preparation of patients at an early initiating condition, e.g., declamtion of an alert, or at an order to evacuate, be medically appropriate? (3) llow many ALS patients are there in the EPZ7 Where are the 'ALS patients? Only at Exeter and Ibrtsmouth llospitals? (4) Woukt uncertainties in the times availabic to prepare ALS patients for evacuation produce ETEs that are too inaccurate to be useful in de selection of protective action options? %c Board also noted Intervenors' argument that ALAB-924 (30 NRC at 352 n.71) requires a finding that the NHRERP is inadequate in the absence of individualized special facility planning. We ruled that the cited footnote requires nothing of that sort. Rather, it is an observation by the Appeal Board as to a use to be made of any correction in the estimated preparation Umc for ALS padents. LDP-9012,31 NRC at 439. The parties explained to the Board that issue (4), supra, could be understood 'to relate to ETEs for the entire Emergency Response Planning Area (ERPA). Alternadvely, it could be understood to relate to the E'IT!s for the ALS patients on a facility-specific tesis. A consensus emerged that the issue should be framed 11heen issues wars discuseal in detail in tSPM L 2, Memneindwn and order Otulms on Catain llananded and Refenal lasum) (May 3,1990). 31 NRC 4U. The sensul issue, knpedimens m evacuation, relates to "camhuun _ G)" ror shehanns sa discusset in A1AB-924 and t2PW11 582 l

h in the context that ETEs for ALS patients are useful for selecting the appropriate protective action for them. In derming issue (4) the Board had no thought that ETEs for an entire ERPA would be determined by the ETEs for ALS patients in - the event the former do not envelop the latter. Rather the information would be available to anyone finding it useful, and it is more likely that hospital personnel would use ETEs for ALS patients. 71. 28,412 23. Moreover, to the extent that ETEs for ALS patients are useful to the medical personnel at specific hospitMs, Ifuervenors' demand that "each special facility -shall be treated on an individual basis" tends to be satisfied.8 In any event, the Board does not foreclose further consideration of protective action options for specific facilities with ALS patienis in the forthcoming summary disposition process. 7Y,28,426.* ~ The. Board set a schedule for the consideration of summary disposition pleadings on the ALS issues. Only the Licensees intend to file such a motion, but the NRC Staff may participale in the process by supporting Licensees' motion. . 7Y. 28,441. Licensees will file their motion by June 26,1990. i NRC Staff will file any supporting pleading by J'dy 17. However, the NRC Staff will notify Intervenors by July 10 whether it 13tends to file anything. In the event the NRC Staff notifies Intervenors on July 10 that it does not intend to file a pleading, Intervenors will file their answer to Licensees' motion by July 24. However, if the NRC Staff files a pleading, Ir,tervenors will file their answer to both pleadings by July 31,1990. SilELTERING Following the issuance of LDP-9012, the State of New Ilampshire provided further information concerning any provisions of the NilRERP for " actual sheltering" of the summer beach population under condition (2)s The State explained that it agrees with this Board's analysis of the condition (2) scenario as set out in LBP-9012 and that: 31r. 28 A2122. see AIAB-924,30 NRC at 352 a.71. 'Intemsiars agree that the four issues set out dxwo, and as docuened at the conference, are adequais in scopa to cover their concerns providing that the Bosni's discusacn of the A13 i, sus in 1BP.89-33 (30 NRC 656. 667 70) dcas not comend the outcomes. Tr. 28 A31-3s. Also we sederstand that the latervenars are still pumuing the fthh issue, Lt. whether *sach facihty shall be treated m an hubvidual hesis." The Based wiu decide the issues bened AIAB-934. CU#3, the saisting record, and the record develoged in the rernanded proceedmg. - u Memorandten of the suis of New llampehue Regarding Ilcensing Board Consideration of Rennaded lasues, May 31.199a In the menorenehan to this Board, the state incorporated lu advice to the Appeal Board on the ahehering isman: Commerus of the state of New llampshire Reganhng NilRERP shehenng and ISP-90w12. May 2s,1990, our references are to the May 28 Cornments 583 1 .m

. In this vein, New ilampshire retains the shcher-inAce camcep as an opion nos precluded under the Condition 2 sanario ao that emergency management officials may have a starting pdre if hcad with an unforeseen need to idendfy some ad hoc pw.e.ctive msponse purside a q(the plan. Wah that asiit, howe st, the State reiterates that the NilRERP does not provide - for " actual shchering" as a planned resiwnse to Condition 2; not should emergency planners be required to amend the plan to include such a provision given that the probability for occunence is test a Seeting glimmer, greater in size in the conscat of litigation than in reality. (Empiasis in original.] Comments at 3. At the prehearing conference, the condition (2) sheltering issue, as defined by the Ucensing Board, evaporated 'Ihc Intervenors agree with this Board's analysis of the condition (2) scenario in LBP-90-12. 'IY 28,328, 28,329-30. Ihat scenario wouki occur when weather and roadway conditions attract a large beach population followcd without notice by weather and roadway conditions preventing evacuation. We stated that such a situation is very difficult to cnvision. LBP 90-12,31 NRC at 449,453. Indeed, latervenors state that such a scenario is absurd; that, following reductio ad absurdum reasoning, the NHRERP and the remanded issue before the Board clearly contemplated another scenario as condition (2). 'IY. 28,330. Instead of weather and roadway conditions,Intervenors assert that the aspect of condition (2) rernalning in controversy pertains to local conditions of population density and distribution deemed to be constraints on evacuation. Intervenors rely upon earlier editions of the NHRERP that grott; " population density and distribution" with weather and roadway conditions at 'ig the local constraining conditions lo be considered in protective action decisionmaking.' intervenors' view of condition (2) very closely resembics condition (1) as the issue was addressed by the Appeal Board: Indeed, (Applicants' emergency planners) could conceive of only one situation in which - Ishchering] would be applicable under condidon (1) to achieve a " maximum dose nducdon"t a short duradon, nonparticulate (gaseous) release that would arrive at the beach within a sladvely short time period when, because of a substantial beach population the evacuadon time would bn significantly longer than the exposure duration. ALAB-924,30 NRC at 364. As can be seen, Intervenors' own account of its version of condition (2), "large beach populations with very long evacuation tl'ncs" ('IY. 28,330), is precisely one of the essential cicments referred to by the Appeal Board in defining the condition (1) issue as cited above. 8" Aan of Inservennes in Response in licensing Board onscr er May 4.1990, May 29,1990, et it, Exhiut I and Lahibit 1 Tr. 28,3431 584 i k

Intervenors concede as much, acknowledging that their view of cordidon (2) "really collapses into cowlition (1)." Tr. 28,33132. Intervenors' construction of condition (2) is one of its own making. It finds

no support in the Partial Inidal Decision on the NHRERP (LDP-88-32), in LBP-88 3, or !n ALAB-924. In fact, in definirig the three conditions for sheltering the Appeal Board specifically noted that " Planning officials consider / physical' impediments under condition (2) to include fog, snow, harardous road and bridge

. conditions, and highway construc00n." ALAB-924,30 NRC at 364 n.133. %c uldmate point of Intervenors' argument, we infer, is that the NHRERP, -despite all that the State of New llampshire and FEMA have said to the contrary, does in fact contain provisions for actual sheltering of the general beach population. Therefore, their argument goes, pursuant to the remand order, the plan must therefore provide appropriate implementing detail. In essence, Intervenors arc disputing the Board's decision in LBP 90-12 denying their motions to reopen the record on the sheltering issues. In any event, even the slim reed upon w'sich their argument depends has snapped. The NIIRERP now omits populadon density as one of the evacuation . constraints, leaving only natural weather and manmade roadwav impediments - as Intervenors now acknowledge. 'IY. 28,333 35.' He Appeal Board has not ruled that the NHRERP nuut provide for shchering tht general beach population. Rather the discussion in ALAB-924 assumed that stual sheltering of that population was a part of the plan. Specifically the Appeal Board stated that "we find that [impicmenting! measures are required so long as sheltering for the beach population is a protective action option under the NIIRERP" 30 NRC at 368. It is now clear that there is no provision in the NIIRERP for actually ' sheltering the general beach population other than the " shelter in-place" concept. Accordingly, we conclude that the remanded sheltering issue has been resolved. No further proceeding on the sheltering issue is planned. In addition, because of the clarification provided by the State of New llampshire and FEMA concerning the provisions of the plan, this Board no longer requires guidance from the Appeal Board as requested in LBP 90-12,31 NRC at 453 55. We recommend that the respecdve referrals, having since been accepted by the Appeal Board, be vacated. TThe plan amendment refened to in the cited counquy egyarently related to a February 1990 amendment to ReviaM of tlw MIRERP, Congwe section 6.4. Vol. 8/Rev. 3 anached as Exhibit 2 to treervennes' Mamarandum of May 29,1990 w,A section 6.4, Vol. 8/Rav. 3 2/90, transmined by a leuer frisa Ted C. Feisenheum. New Ilamg= hire Yankse to UsNRC. dated February s.1994 The term "porulation dmaity and distribution" appeam in the F.thibit 2 vmien tu does not appear in the Fdnuary 1990 versi<m. 585

a .? INTERIM PROTECTIVE MEASURES In the Menuandum Supplementing LBP-88 32,8 his Board accepted ALAB-t 924 as being based upon a valid constructice, of the NHRERP, We represented that the concerns expressed by the Appeal Board in the remand decisica could be resolved prior to the arrival of large beach populations in July 1990, 30 NRC at 67172. In its immediate effectiveness review of LBP-89 32, authorizing the Scabrook operating license, the Commission noted that representation and stated that incorporation of implementing detail would not be especially difficult or time consuming,' ALAB-924 is still the law of diis proceeding and this Board remains subject to its directives, We have determined that no sheltering issues remain for litigation j before us, and that the remand order has now been satisfied However, the integrity of the g rRC hearing process requires, in our view, interim measures to assure that the ',ubstantive intent of ALAB 924 and CLI-90-3 not be thwarted pending reviev' of our respective decisions on appeal. Therefore we invited art:1 received the voluntary cooperation of the State of New Hampshire, FEMA, Liccasces. wi the NRC Staff to assure that a protective action & cision to shelter (se general summer beach population can be made and impicmented if, against all rul probability, actual sheltering is required to achieve maximum i dose savings f ar that population, The State of New Hampshire will assure that its prott,ctive action decision-makers are all currently trained in the subtletics and nuances of the benefits to be ~ gained or lost in selecting a sheltering option for the general beach population, Such assurance will also demonstrate that the New Hampshire decisionmakers are fully informed with respect to the shchering issues litigated in 11 > mceed- ' 'IMA ing. He State r,(treed to submit its documentation to FEMA by Jurk agreed to subm8s its assessment of the State's readiness to the NRC b) > s 20 and the NRC Staff agreed to respond to FEMA's assessment and forwa.J the resulting package back to New Hampshire with service on the parties by June

22. 'Ilr 28,388 89, 28,392-93, 28,399-403, 28,407-08, His has been accom-

- plished, Licensees have committed to prepare an interim plan and EBS message to impicment the sheltering option when evacuation of the general summer beach population is impossibic because of physical impediments. The interim plan u j s13P 49-33,30 NRC &M (1989) l' ' CUM 3,31 NRC 219,247 48 (1990). see Imer rnwn Miutie A. Young. Commel for NRC stafr to Manhers or the licensing Board, he 22,1990, encleans (1)1 suer ruum orset C, Peterson. Associans Duector, itMA, to James M. Taylor, NRC EDo, he j 19,1990, and (2)lauer fnnn oeorge L Iverse, Duector, New Hamphire offwe er Emerseecy Management, to Richard il stmme, Duector, FEMA Regim one, hme 14,1990. New llamphire and IBM have made a very suvng and errective respmse to the licensing Board's proposal. { l 586-l 1 l l l.

q and EBS message will become a part of the Scabrook Statior. onsite plan and will be held in readiness to offer to the State of New Hampshire if required. 'IY. 28,388,28,393,28,408-09. 'Ihe NRC Staff has agreed to review Licensces' inscrim plan. 'IY. 28,399. Licensecs will submit the interim plan to the NRC Staff no later than June 26.H 1.icensecs' obligation under this commitment will expire on September 15,1990. ETEs AND HIDDEN VElllCLES ALAB 932, issued May 31,1990,31 NRC 371, remanded a requirement bat ~ the Licensing Board direct the Licensecs to " incorporate within the appropriate 1 ETE calculations the number of vehicles hidden from aerial observation as set forth in the Board's findings in 19.120 of its decision." 14. at 419. in our Finding 9.120 we found, as the Appeal Board noted, that, on a reasonably busy beach day, about 2000 vehicles would not be observable "in vertical aerial photos because they are in under-building parking areas, garages, and carports." We then added the 2000 vehicles to the 30,800 thought to be .present in other observations to arrive at a total of 32,800 vehicles likely to be present in the beach areas on July 18,' 1987. LBP-88-32, 28 NRC 667, 801 (1988). i 'Ihen, in Finding 9.122 (1d. at 802), without explanation, we accepted 31,000 - vehicles, the number advanced by the Staff, as the appropriate number of vehicles I for a reasonably expectable peak occupancy in arriving at the appropriate ETE. [ 'Ihe Appeal Board hcid that the unexplained exclusion of the 2000 vehic'.cs-must be rectified - thus the remand order. ALAB 932,31 NRC at 419. The Liccasing Board acknowledges that its findings on this issue were, at best, incomplete, At the prehearing conference Licensees proposed the remand order be re-solved by the issuance of an order directing the Licensecs to complete a set j of IDYNEV runs and arrive at a final position on the ETEs by August 15, i 1990. We would also direct the NRC Staff to assure that the ETEs are in con-L formity with the Appeal Board's order. Licensees then would expect that the result would be incorporated into the NHRERP and the SPMC in January 1991. i l 'TY,28,445-47. *lhe Licensing Board believed that matter was not urgent and l: the schedule was satisfactory. By dividing the additional number of cars by the l known clearance rate, it can already be predicted that the change in the ETE L "The Board dal not est a data for IJcensees' cranphance at the preheanns confenince. Counsel for ticcusera commmed to the kne 26 daie by telephone on kne 21.1990. a l 587 i l l L. 1

h. y., s q s iL Nh. 1 , m. ys. s - will be about 30 minutes if all 2000 vehicic are placed into the run." The Board approved Licensecs' proposal. 'IY,28,449.n CONCLUSION 'Ihe sheltering issue remanded by ALAB 924 is resolved. A schedule has been set to examine the ALS-Patient issuc under the summary. disposition provisions of 10 C.F.R. 5 2.749.- The ETE issue regarding hidden vehicles at the beach has been resolved with . the matter left to the NRC Staff to assure compliance with the intent of the rcmand order in ALAB-932. 'IIIB ATOMIC SAFETY AND LICENSING BOARD 3 Richard F. Cole ADMINISTRATIVE JUDGE Kenneth A, McCollom ADMINISTRATIVE JUDGE p l: Ivan W. Smith, Chairman l ADMINISTRATIVE LAW JUDGE ~! [ - Bethesda, Magland - L Junc 27,1990 L nno uc. sing soud has a taguing c.cern en emiptr addins 20m whicia e me IDYNEY nm win owwetme the incnese to ths ErE. P' et, in our Findes 9.120 we ansiated the record in saferring to the serial phance as l u 1-l " vertical" Dey are net. Dese an mry sophisticated ceteres, A stesseptical effect is predaced. Because of ' the acute camere angles, vehicles ht carports and overhangs such as motel pesting lots, can he seen and was coursed. nat type of covered parking is connam at the beech. Tr. 7514. His effect can be asen in the Avis Airmap photos. Applicorns' Exhibits 3 A E.13P 8s 32 failed to account far this ;.. even though stafr's credhle witness, Dr. Urbanik. explained it. Tr. 7513 14. bicueover,our Endiny ed not address, but should have -i a&L eased, wheiber all of the hidden vehicles would be driven away during en evacuation. i, 11 The vernand onier stated that appIncants must incorporate the hidden vehicles *withei the appropriew ETE calculations"(emphens supplied). Ocarly the pupone of the romand drective is so achieve res41y anainable I.. accuracy, and should not be read to reluire at unreasoned addition of 20n0 vehicles to the IDYNEV model p Decause there was very hule notice thu the remanded ETE issue veuld be canadered at the June 5,1990 H prehearing cmfeence, the Boant's approval of the pioposal was subject to any objections raised by intaveners within 10 days. Tr. 28,450. None were reismL e 588 y Lg i p l I i

.d _7 i 'A .i-Cite as 31 NRC 589 (1990) LBP40 21 - . UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND UCENSING BOARD ' .i i Before Administrative Judges: ~ Charles Bechhoofer, Chairman Dr. Walter H. Joeden Dr. Jerry R. Kline In the Matter of Docket Nos. 030-31379-OM : 030-01615 OM (ASLBP No. 90 612 04 OM) . (EA 90471) (Order Suspending Brachytherapy Activities and Modifying License) . ST. MARY MEDICAL CENTER-HOBART ST. MARY MEDICAL CENTER--- GARY in the Matter of Docket No. 03012150 OM (ASLBP No. 90415 05 OM) (EA 90-072) ' (Confirmatory Order Suspending i t Brachytherapy Activities and Modifying License) . PORTER MEMORIAL HOSPITAL (Valparelso, Indiana). June 26,1990. . In a Prehcanng Conference Order governing two proceedings, the Licensing Board (1) grants a joint motion of all parties to defer for 30 days all activitics in one proceeding, to accommodate settlement negotiations, and (2) grants the 589

r- . request of the only petitioner for intervention in the okt procccding to withdraw his request for a hearing, thus terminating that proceeding. PREHEARING CONFERENCE ORDER (Deferral and Termination of Respective IYoceedings) On June 22,1990, the Atomic Safety and Lices, ting Board for these two ino-ccedings held a single prehearing conferexe governog each of the proceedings, in Gary, Indiana.8 Ibliowing is a description of the actions taken with respect to each proceeding: - 1. With respect to the St. Mary Medical Center--Ilok.cl and Gary proceed-ing, the basic facts of which appear in the Licensing Board t Memorandum and - Order dated May 31,1990 (unpublished), the Board first adt titled Dr. Koppolu P. Sarma as an intervenor to the proceeding (Tr.10), in response to Dr. Sarma's intervention petition, neither the Licensecs nor NRC Staff offered any objection, in taking this action at the prehearing conference, we expressed no opinion whether Dr. Sarma has been adversely affected by the underlying enforcement order and thus has a right to intervene or whether we were admitting him as a matter of discretion, as recommended by the Staff. Ibliowing the admission of Dr. Sarma as an intervenor, the parties advised that they had used the occasion of the prehearing conference to discuss setticment of the issues, and they orally made a joint motion to defer further procccoings for 30 days to permit the negotiations to continue, followed by a written status report to be submitted no later :.han July 23,1990 ('n.12). The Board granted the motion txit specifically reginred the report to set forth matters remaining in controversy, assuming full settlement has not been reached by that time (k.12-13); Through this mechanism, the Board wishes to avoid the necessity of a second prehearing conference as a predicate to ascertalning and narrowing issues in controversy, should further proceedings be required. 2. In the Porter Memortaillospital proceeding, the basic facts of which are described in the Liccasing Board's Memorandum and Order dated June 8,1990 (unpublished), both the Licensee and the NRC Staff opposed the request for a hearing and petition to intervene of Dr. Koppolu P. Saima. On June 14, 1990, Dr. Sarma filed a reply to the Licensec's answer which stated, inter alla, that ikcoming aware of the llospital's opposition to a llearing for the first time, Dr. Sarma respectfully withdraws his request for a llearing, but reiterates his requ*st to fuuy participate iNotices of the prehearing conferece won pabhahed at 55 Fed. Reg. 23.157 (Jwe 6.1990)(St. Mary) and 55 Fed. Res bl.172 Oune 14,1990)(Puner). 590 i

O in die procr:edms: since any findmg wal have en impact upon his license to practice medicine in die State of Indiana. At the prehearing conference, the Board advised Dr. Sarma's counsel that, if Dr. Sarma witixirew his petition to intervene, there would be no further proceed-ing in svhich he could participate with respect to the Porter Memorialllospital order (TY. 7). In addition, the Board advised that, upon Dr. Sarma's with-drawal, the statements in the Staff's Confirmatory Order, to which Dr. Sarma had voiced objection, would remain in effect (1Y. 9). Nonetheless, Dr. Sarma (through counsel) reiterated his intention to withdraw, and the Board granted this request, effectively terminating the proceeding.

3. Order, in view of the foregoing, it is, this 26th day of June 1990;

. O?AERED: 1. Dr. Sarma's petition to intervene in the St. Mary Medical Center--Ilobart and Gary pmcceding is hereby granted.

2. The joint motion of the Licensecs, Dr. Sarma, and the NRC StatT for dcfctral of further activitics in the St. Mary Medical Center--Ilobart and Gary proceeding until July 23,1990, for the purpose of accommodating settlement negotiations, is hereby granted. By that date, the parties are to file a report as to the outcome of settlement negotiations and, if settlement has not been agreed cpon, to outline remaining matters at issue.

3. The petition of D. Sarma to withdraw from t!'e Porter Memorial llospital pmceeding is hereby granted. 'Ihat pmceeding is hereby terminated.

4. Because this order is the final order in the Porter Memorial llospital proceeding,it is subject to review by the Atomic Safety and Licensing Appeal Board in accordance with 10 C.F.R. Il2.770 and 2385. TIIE ATOMIC SAFETY AND LICENSINO BOARD Charles Bechhoefer, Chairman - ADMINISTRATIVE JUDGE Dr. Waher 11. Jordan ' ADMINISTRATIVE JUDGE Dr. Jerry R. Kline ADMINISTRATIVE JUDGE Bethesda, Maryland June 26,1990 591

j t( p ? o .v_ i Cite as 31 NRC 592 (1990). LBP-90-22 ' UNITED STATES OF AMERICA NUCLEAR REGUL.ATORY COMMISSION ~ ATOMIC CAFETY AND LICENSING BOARD Before Administrative Judge: Peter B. Bloch in the Matter of Docket Nos.7000270 300227644LA (ASLBP No. 90 613 02-MLA) (Re: TRUMP-S Project) (Byproduct License No. 24-00513-32; s Special Nucleet Materials License No. SNM-247) ' CURATORS OF THE UNIVERSITY OF MISSOURI June 29,1990 ' %c presiding officer required the Staff to consider a new standard for determining the proper contents of a hearing file in a Subpart L case pursuant to 10 C.FI. i.1231. RULES OF PRACTICE: SUBPART L; CONTENTS OF llEARING FII.E in this Subpart L case, involving areas of concern related to fears of serious harm to public hafety, the Presiding Officer, acting pursuant to 10' C.F.R. 6 2.1231, required the Staff to include in the heanng record: any NRC report (including inspection reports and findings of violction) and any, = correspondence between the NRC and Lkensec, during the last 10 years, that Intervenors could reasonably bellew to be re* want to any of their admitted areas 592 I ___._m._.u_.-.-,_;_._m.

o 1 of concern (an area of concern is a general area that is not sharply delimited to specific words used in describing the concern). b MEMORANDUM AND ORDER (Additions to the File) .l ~ ' On June 25,1990, Intervenors filed a " Motion of Petitioners for Order to Complete the licaring Record." Applicant has responded rapidly, in the interest of a fair and efficient determination in this case, by sending me today its " Answer of Licensee." latervenors rely on my finding its a previous case, Rockwll, Docket No. 70-I 25, TV,288, where I ruled that Rockwell should provide to the Intervenors in that case "all documents that have been created within the last twenty years that relate to prior applications related to SNM-21 and staff analyses, and inspections and violations related to SNM 21." . As Applicants point out in their answer, this case is not identical to Rockwell, j in that case, the areas of interest included an allegation of improper release of 1 radionuclides and toxic substances, as evidenced by physical evidence on the j site, fbrthermore, in this case counsel cites the controlling regulation with J respect to the hearing file,10 C.F.R. 6 2.1231, which requires that: i %e hearing file will consist of the application and any amendment thereto, any NRC j environmental impact statement or assessment relating to the application, and any NRC sepon and any conespondence between the applicant and the NRC that is relevant to the j application. It is my concern, at this time, that the hearing file that was so quickly assembled by the Staff, which obviously was concerned about the efficiency of this proceeding. is incomplete. I can only guess why this is so. A possibility is that the Staff may have interpreted " relevant to the application" in the regulations with respect to whether the Staff reasonably believes documents to be relevant ' - without regard to the areas of concern admitted in this case. Such a mistake is certainly understarxlable, but I think that interpretation would unduly restrict ~ the information available to Intervenors with respect to their concerns. d 'Iherefore, pursuant to 10 C.F.R. I 2.1231(b), I order that the hearing file shall include any NRC report (including inspection reposts and findings of violation) ' and any correspondence between the NRC and Licensee during the last 10 years, that Intervenors could reasonably bellen to be relevant to any of their admitted areas of concern (an area of concern is a general area that is not sharply delimited to specific words used in describing the concern). A brief summary 'y of the admitted areas of concern is: (1) risks related to fire or explosions; 593 l x

L f .(2) the need for a buffer zone around the area of experimentation in order to protect public safety; (3) the adequacy of administrative controls; (4) the E adequacy of emergency plans; (5) the need for an environmental assessment and environmental imixt statement; and (6) the pafticular*zation of personnel responsibilitics (particularly the personnel of Rockwell Intenational, Inc., who will be on site). I would note that the icaring file is provided by the agency in place of discovery. Its completeness is essential to avoid having this proceeding be blind - to the facts. Licensec has recognized that Intervenors are entitled to most of tic information they request pursuant to the Freedom of Information Act,8 so the only differcrice between placing it in the hearing file and providing it through - an FOIA request appears to be the speed of response - and speed is essential here because of intervenors' fears of risk to public health. Because Licensec has responded so quickly to intervenors' motion, it now is unnecessary for Staff to respond to the unpublished order I issued yesterday. Should the Staff be concerned about the appropriateness of this Order, I invite them to comply and subsequently to file an objection on which I will rule '7 subsequent to the information being made availabic.8 Respectfully ORDERED, Peter B. Bloch, Presiding Officer ADMINISTRATIVE JUDGB Bethesda, Maryland 8An or or uc

e. si d n.i.

21he stafr esay, of marse, withholJ the declosure or inrormatsui ir they think a significant harin wtuld axne fawn that disclosura However.1 ask thern to desenho the harrn to me for any matenals they would withhold. l L 594 l {~ t I l

) Directors' Decisions Under 10 CFR 2.206 l l l l l f m. m.. m

• nt

.i.- 3 .. g ; i Cite as 31 NRC 595 (1990)i D040-3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OPPICE OF NUCLEAR REACTOR REGULATION t Thomas E. Murley, Diredor in the Matter of Docket Nos. 50 275-A 50-323-A - PACIFIC GAS AND ELECTRIC - . COMPANY-(Diablo Canyon Nuclear Power - Plant, Unita 1 and 2). June 14,1990 l The Dinctor of the Of6ce of Nuclear Reactor Regulation (NRR) has ruled upon a petition Aled by the Northern California Power Agency (NCPA) request-ing that the NRC take certain enforcement actions against Pacinc Oas & Electric Company (PO&E) for allegedly violating the antitrust license conditions for its

Diablo Canyon Nucicar Units.'

-Based upon a Federal District Court's fmdings and other information that ' has been pmvided to the NRC, the Director has concluded that PG&E violated . the Diablo Canyon antitrust license conditions by refusing to provide certain California cities partial reqnirements wholesale power and transmission services. ' PO&B also has violated the antitrust license conditions for the Diablo Canyon units by including language in tariffs Gled with the Fedcral Energy Regulatory . Commission (FERC) that precludes interested parties from contesting the terms and conditions of those filings. 'These restrictive provisions provide PGAE with an unfair advantage in its dealings with other power systems by_ forcing - them to take service under whatever terms PO&E provides.1hese provisions are inconsistent with the intent of the license conditions since the purpose of License Condition (9)a is to enable conceptual differences between parties in service schedules and tariffs to be resolved at FERC. 595 N I o

i TECilNICAL ISSUES DISCUSSED i Refusals to provide partial requirements wholesale power and transmission services; Refusals to provide appropriate service schedules and tariffs. 4 DIRECTOR'S DECISION UNDER 10 C.F.R. f 2.206 L INTRODUCTION ' 'lhe Northern California Power Agency (NCPA),in petitions dated December 4,1981, and August 1,1984, as well as a filing dated March 19,1985, clarifying these two petidons, requested the Director of the Office of Nuclear Reactor r Regulation (Director) to take certain enforcement actions against the Pacific Oas & Electric Company (PG&E) for allegedly violating the andtrust license-conditions applicabic to the captioned nuclear units. As detailed below,I have

withheld my decision in this proceeding until now at the request of NCPA, in anticipation of a resoludon of the issues among the parties, either through a combination of negotiation, arbitration, or litigation.

I In an action brought by the United States against PG&E to recover payment for energy sold by the Western Area Power Administration (WAPA) and used by several citics in California, the U.S. District Court of the Northern District of California (District Court) issued a ruling on June g,1989, that dealt with many of the same issues raised by NCPA before de Nuclear Regulatory Commission (NRC) in its 10 C.F.R. 9 2.206 petitions. United States v. Pac (/sc Gas and Electric Co.,714 F. Supp.1039 (N.D. Ca.1989). The District Court's ruling was made in the context of cross motions for summary judgment and partial summary judgment and motions to dismiss. I have relied upon many of the fmdings made by the District Court to conclude that while PG&E may have at times acted in a manner inconsistent with the clear intentions of the Diablo Canyon antitrust license conditions, most of the issues raised by NCPA before 'the NRC have been mooted. Consequently, although a notice of violation is being issued with this Decision, I am not taking any further enforcement action against PG&E at this time. ~ i ~ llowever, in light of the conclusicns reached by the District Court regarding PG&E's noncompliance with the.Diablo Canyon license conditions,* I am specifically requiring PG&E to report to me in writing within 30 days of its 'Ahhnugh the District Canart cital Po&E's acncanphance with the stanislaus Canmiansma enade to the Depenment oMustice,they are idatical to the Diablo Canymt license ccsufitions. 596 L

~

receipt of this order regarding the steps h has taken and plans to take in the future to comply with the District Court ruling."

II. BACKGROUND During the antitrust review of the Stanislaus Nuclear Project (Stanislaus) con-1 ducted by the NRC Staff and the staff of the Department of Justice (Department), the Department, via letter dated May 5,1976, to Howard K. Shapar, Executive legal Director, from Thomas E. Kauper, Assistant Attorney General, Antitrust Division, advised the NRC Staff that PG&B (also the Stanislaus applicant) was - engaged in activity that was inconsistent with the sntitrust laws. As a result of the Stanislaus antitrust review, certain licensing commitments (Commitments) were made by PG&E to the Department that, according to the Department, obvi- -ated the need for an antitrust hearing before the NRC if the Commitments were incorporated in tb Stanislaus license with the full force and effect of antitrust ~ license conditions, in the letter transmitting the Commitments to the Department, John F. Bonner, President of PG&E, stated that In the event that KlandE's application for a construction perrnh for the Simislaus Nuclear Projea Unit 1 is withdrawn, or that a construcuan permit for such unit is siot issued by the Nuclear Regulatory Cornmission prior to July 1,1978. PGandE is willing to have hs license (s) for Diablo Car yon Nuclear Nwer Plant, Units I and 2, amended to incorporate t . the e ^ s. Subsequently, by leuer dated. September 15, 1978, Jerome Saltzman, Chief, Antitrust and Indemnity Group, Office of Nuclear Reactor Regulation, NRC, advised PG&E Vice President and General Counsel John C. Morrissey that no construction permit had been issued for the Stanislaus Nuclear Project to daic and persuant to the letter accompanying the Stanislaus Commitments, the NRC Staff intended to amend the Diablo Canyon construction permits to incorporate the Stanislaus Commitments. Mr. Morrissey, by letter dated September 19, 1978, advised Mr. Saltzman that PO&E had,no objection to amending the Diablo Canyon licenses by incorporating the Stanislaus Commitments as licenac conditions. The Diablo Canyon construction pennits were amended to include the Stanislaus Commitments as license conditions on December 6,1978 (43 Fed. Reg. 247 (Dec, 22,1978)). ]

• • An ad4tional violation not dealt with la the Duuict Court's decision concerns tJesse Condition 9(al ihr tius viciatiam.1 arn requiring POaB to suport whether the practices have been ducantinued and the steps POaB has taken er win take to cure the problem.

597

4: .A. NCPA's Petitions Pursuant to 10 C.F.R. 9 2.206, a petition requesting enforcement acts:- against PG&E was filed with the Director on December 4,1981, by NCPA. In its petition, NCPA alleged that PG&E had violated portions of the Diablo Canyon license conditions dealing with transmission services and interconnection agree-ments. In response to inquiries by the NRC Staff, NCPA supplemented its initial _ petition on three occasions. After meeting separately with each of the parties, the Director condmted a joint meeting with counsel and officials of both NCPA and PG&E in November of 1982 in an effort to resolve the dispute between the parties. As a resuit of the joint meeting, the parties agreed to negotiate further and, if necessary, to submit to binding arbitration pursuant to the relevant rates, terms, and conditions of an interconnection agreement and the associated trans-mission problems. The NRC agreed to await the outcome of the negotiations and any ensuing arbitration before proceeding further with its review of NCPA's petition. Negodations did not prove fruitful and the issues in controversy were ultimately submitted to arbitration. Lengthy arbitration proceedings were con-ducted by an official of the Federal Energy Regulatory Commission (FERC), who agreed to act in the capacity of an arbitrator independently fram his offi-cial position at the FERC, As a result of the arbitration, the parties reached an accord on the interconnection agreement and associated transmission services and the agreement was accepted for filing at the FERC and made effective on September 19,1983. NCPA's~ 1981 section 2.206 petition primarily addressed PG&E's alleged . refusal to transmit power and energy associated with NCPA's Geyscrs generating units. When the two parties signed the interconnection agreement discussed - above, many of the issues raised by NCPA in its 1981 petition were seemingly resolved. Ilowever, on August 1,1984, NCPA' filed with the Director a petition that renewed its petition for enforcement action filed in December of 1981. The thrust of the renewed petition differed from the initial petition and centcied around the interpretation of whetbx the contracts between PG&E and individual NCPA member systems were full rcquirements contracts or partial requirements contracts. The distinction is significant in that a full-requirements contract would, ostensibly, preclude cach NCPA member system from participating in all of the benefits associated with the license conditions - at least until the L full rcquirements contract was terminated. l-The dispute that precipitated NCPA's.1984 petition resulted from a complaint filed by PG&E in California state court which sought to compel the City of I licaldsburg, California (licaldsburg), a NCPA member system, to pay PG&E / for energy that NCPA had purchased from WAPA. PG&B transmitted the power over its system to 11caldsburg but maintained that IIcaldsburg was l' precluded from purchasing the WAPA power because of its full requirements L l 1 598 l

, r. i contract with PG&E. IIcaldsburg denied PG&E's allegations and stated that its contract with PO&E was not a full-requirements contract, but a contract that specifically allowed licaldsburg to scck alternative (to PO&E) sources of power. and required PG&E to negotiate in good faith to provide partial requirements-power to Healdsburg. NCPA member citics established an escrow account for the purchased power and in April 1988, the United States through WAPA brought suit against PO&E, NCPA and its member citics to recover payment for power sold. In a subsequent filing to the Director dated March 19,1985 (ClariScation Filing), NCPA attempted to clarify its 1984 petition and narrow many of the outstanding issues involving PG&E and NCPA that had been pending before the NRC. As a result of extensive discussions among the parties, as well as ' the Staff. NCPA indicated in its Clarification Filing that it was " prepared to withdraw certain of these counts without prejudice...." At the same time NCPA proposed withdrawing many of the allegations raised against PO&E, NCPA highlighted several remaining arcas of alleged anticompetitive activity by PG&E that, according to NCPA, were violations of the Diablo Canyon license conditions. In a letter dated May 29, 1985, ta NCPA counsel, the Director . closed out NCPA's allegations identified by NCPA as no longer outstanding issues and indicated that the Staff was reviewing NCPA's renewed allegations of PG&E's noncompliance with the following license conditions: (2)f-Interconnection agreements, G)a-Providing transmission services, G)d-Filing rate schedules and agreements for transmission scryices, (9)a-Implementing rates, charges, and practices subject to the appicpriate regulatory body. l B, District Court Proceeding 'At the same time NCPA was pursuing its 10 C.F.R. 62.206 action against PG&E before the NRC, the state court proceeding discussed supra was moved to the District Court. Although the District Court Judge indicated that the _ proceeding before his court was not an action to enforce the Atomic Energy Act, he concluded that the Stanislaus Commitments were a part of a contract L - between PO&E and the Department of Justice and that NCPA was entitled to suc PO&E, as a third party beneficiary of said contract, to enforce its rights.- l: under the contract. l Accordingly, several of the issues in controversy before the District Court L were identical to tim identified by NCPA in the pending petition now before ? the NRC. The issues iclcyant to the NRC proceeding involved an interpreta-tion of.whether the NCPA member systems' contracts with PG&E were full-l requirements contracts, requiring the members to purchase all of their wholesaic 1 599

1 s 1 ' power requirements from PO&E, or partial-requirements contracts that would allow the member systems to purchase less than 100% of their wholesale power needs from PG&E. Tle NCPA member systems asserted that their contracts allowed them to not only purchase less than_ all of tleir wholesale power re-quirements from PGAE, but that under the Stanislaus Commitments (as wds as the Diablo Canyon license conditions), PO&B was obligated to trans:stit partLd. requirements power over its facilities to the NCPA member systems. On June 8,1989, the District Court ruled that de PG&E contracts with three of the NCPA member citics, Healdsburg, tornpoc, and Santa Clara, did contain alternaic power clauses that enabled these citics to shop for alternate power- - suppliers in the wholesale bulk power services market. The Court cited the following provisions in the Cities' contracts to buttress this conclusion: (b) Neshing in this Agreement shall be interpreted in.uch a way as to prevent [the Qiyl from neking to obtain Power from sources other than PGAE,,.. (c) In the event [that the Osy) is able to obtain... Power from sources other l than PGandE and still wishes to comunne purchasing some Power from POandE, at [the Oty's] request the Parties shall endeavor in good faith to amend, sapplement or supersede this Agreement in order to :_- 7_*e [the Oty's] purdade and use of such other sources of Power on terms and conditions whid are just and reasonable. l (United States of America v. l'acfic Gar and Electric Convany. sspra, at 10521053.1 l-l %c Court also ruled that de PG&E contracts with three other NCPA member citics - Alameda, ladi, and Ukiah - were full-rcquirements contracts because "they were obligated to purchase all of their energy requirements from - PG&E.,,." De Court ruled that there was no provision in the contracts with these three citics that provided for partial rcquirements sales or good-faith efforts to negodate less than full. requirements agreements. III. DISCUSSION On August 1,1984, NCPA filed with the Director a petition for enforcement of antitrust license conditions against PO&B pursuant to 10 C.F.R. 6 2.206. Tic petition identified several instances of alleged noncompliance with the antitrust ' license conditions attached to its Diablo Canyon nuclear plant. On March 15,1985, NCPA filed a Clarification Filing (representing NCPA's most recent allegations) requesting the Director to take enforcement action against PO&E for its alleged violation of License Conditions (2)f,0)a, G)d, and (9)a. %c common thread running throughout both the District Court proceeding discussed supra and NCPA's August 1,1984 section 2.206 petition alleging that. PG&E has not complied with its Diablo Canyon License conditions revolved - around the interpretation of whether the PG&E contracts with the individual 600

NCPA member cities were full or partial-requirements whoksale power con-tracts, 'Ihe District Court concluded, and I concur, that the wording in three of these contracts, with the citics of Healdsburg,14 npoc, and Santa Clara, requires PG&E, upon request, to engage in " good faith" discussions and negotiations that would enable these citics to purchase wholesale power from sources other than PG&E, According to the record established in the District Court proceeding, PO&E did not live up to its power supply contracts with these three cities. PGAE's failure to comply with the contractural oblisatie to negotiate in good faith peecludes it from objraing to the invocation cf the ahernate power clauses by these thne cities. [ United - States of America v. Pack Gas and Electric Company, supra, at 1053.) PG&E did not cooperate with the cities of Healdsburg. Lompoc, ar.J Santa Clara when the cities requested PO&E to transmit energy from WAPA, Under these power supply contracts, PG&B is obligated, upon request, to negotiate in good faith the amendment of each power supply contract - thereby providing these three citics with the option of purchasing power from sources other than PO&E. PG&E has taken the position that its contracts with these citics are full requirements contracts and consequently has no obligation to negotiate a partial requirements agreement with the citks or file rates with the FERC that would apply to partial requirements sales to the citics. In assessing the merits of the allegations against PG&E, the Staff concurs in the findings of the District Court Decision. The District Court Decision mbstantiates many of the allegations raised by NCPA in its section 2.206 petition pursuant to PG&E's noncompliance with its Diablo Canyon license conditions.. Based upon the District Court Decision and the filings before the NRC addressing PO&E's alleged noncompliance with its Diablo Canyon license conditions, I have concluded that PG&E has violated License Conditions (6), 0)a, 0)d, and (9)a. License Condition (6) requires PG&E to " sell firm, .uirements power for a specified period to an interconnected full or partis' Neighboring LA..y or Neighboring Distribution System...." NCPA and the City of Healdsburg have requested a filed tariff and the purchase of partial-requirements power from PG&E subsequent to the implementation of the license conditions. PG&E has refused to provide these services. In conjunction with this request (s) for partial requirements service, NCPA and Healdsburg also requested PG&E to ile tariffs and prcM transmission services. Pursuant to - r License Comlitions (.')a and G)d, PO&E is requiwd to file, with the appropriate regulatory body, sate schedultz, and agreements for any partial-requirements service and provide the necessary transmission service (s). PG&E, as the District Court _found, refused to file the appropriate rate schedules and provide these services. 601 .. = _. _ _. _ _ _ _. _

~ ^ - + + Moreover, PO&E has included the following language or similar language, which is inconsistent with the license conditions, in tariffs filed with the FERC pursuant to the license conditions (e.g., the PG&E/IIcald: burg power supply contract and the PO&E/NCPA interconnection agreement): his agreemes shall become effe:tive on the date it is permined to become effective by - ~ FEPC; provided the agreement is capressly conditioned upun'FERC's acceptance of au provisims thereof, without change, and shall na become effective unless so accepted. _ 'Ihis language is not consistent with the intent of the license conditions in that it provides PO&E with an unfair advantage in its dealings with odict powe. i systems in the Northern California bulk power services market. Such language effectively precludes interested parties from contesting the terms and conditbns : of the servke schedule - thereby impeding the resolution of any probl0ms or differences of inscrpretation between PO&E and parties that may vt.n to take service under the license conditions and potentially forcing these r arhes to take service under whatever terms PO&E providat Litense Condition (9)a requires PG&E _to file service schedules with the FERC even if the parties do not agree to all of the proposed tern.s and conditions. Th0 purpose of Lier;tse Cendition (9)a is to resolve any conceptual differences in the proposed service s0cdule at the FERC, The FERC has jurisdiction over the transmission or & of energy required under the license conditions. 'Ib circumvent this jurisdiclon by failing to file the required service schedules or by including provisions in the service agreementr that restrict FERC's input and jurisdiction is a violation of License Condition i (9)a, in addition to the violations I have e3 ready identified, NCPA in its Clarift-cation Filing has requested the Director to take additional enforcement action against PG&E, NCPA alleged that PO&E violated '.icense Condition (2)f by not r entering into a partial requirements wholesale power agreement with Healdsburg. License condition (2)f addresses interconnection agre:ments and states that "[aln interconnection agreement shall not prohibit any party from emering into other interconnection agreements,,.." Ilowever, the PO&E/Healdsburg contract in question that has purportedly prevented the initiation of a partial rcquirements. contract is a power sales agreement, not an inter.onnection agreement. From the data reviewed by the Staff in this proccc#ng, there is no indication that ' PG&E has vlotated License Condition (2)f, .NCPA requested the NRC to direct PG&E to withdraw its QWil suits filed against six NCPA member citics requesting, inter alla, payment for sales to-member sy:tems for power received from WAPA. NCPA statd that "li]f the i license conditions are to have any effect, PG&E must be directid to withdraw these suits and file tariffs to effectuate the power purchase tnu < 80ns at issue." 602 3 1

_g g i + ( ) (Clarification Filing at 9.) he District Court Dt pision mooted this request. %c District Court ruled on the merits of IO&E's arguments and suggested that IO&E file de necessary rates with the, FERC if PO&E wanted o collect payment for the transmission and sale of partial-rcquirements servke to the c cies of Ilealdsburg, lompoc, and Santa Clra. Thus, NCPA's request to the MC to direct IG&E to file rates with the FO'C was addressed tr.d resolved by du District Ccurt. NCPA continues in its Clarification Filing by avauesthig that "the Diablo Canyon license conditions should be filed [with the IERC) in their entirety along with whatever rate schedule 10&E devises for tienidsburg et al." The license conditions do not address the terms and conditions of rate schedules. %! particular area of expertise falls within the jurisMion ut' the appropriate regulatory body - ussially tie IERC - art fv dds rtoon, de Siaff relics on the appropriate regulatory txx!y to impknet se diffenet agreements required by NRC license corxlitions. Diablo Canyon 1.kenn. Condition (9)a is the governing license condition in the instant proceeding - it reads as follows: All raies, charges, terms and practices s e and shall ta subjea to the aceptance and agprwn! (( any regulatory agencies or courts beving jurisdiction mer them. Given de fact that this directive is included as a license condition in the Diablo Canyon license, there is no need to require IV&E to file '.he license conditions with the IIRC, Finally, NCPA in its Clarification Filing makes the argument that if 10&E has violated its license condidons as alleged, then PG&E also violated de portion of its license, Section 2.0 (NCPA incorrectly identifies this Section as 2.H) that requires the licensec to notify the NRC <f any violations of the requirements contained in the license -including the antitrust license conditions. Given the nature of the violations of the antitrust license conditions clied ipa and the fact that these issues were the subject of lengthy court proceedings, it is not reasmable to conclude that PG&E violated the requirement to notify the NRC within 24 hours of the occurrence of a violation, llowever, as I indicated s licr. I r.m requiring PO&B to report to me in v.riting within 30 days of its rewd or t ils Decision reganling the steps it has taken to comply with the District t. Vs .uling. IV. CONCLUSION Eased upon de reasons set forth above, it is my decision that PO&E has violated certain of its Diablo Canyon antitrust license conditions. However, other than the issuance of a Notice of Violation and the requirement that 10&E 603

'J-f ? (: t pro'4de informatinn to the Staff within 30 days of its receipt at this Decisio'i, I am taking no other chf ar:crnent action tt this time since it is my decision that the June 8,1989 District Court Decision provides the nc<cssary remedial action that requires PO&E to canply with the Diablo Canyon antitrust license corxlitions. J Thomas E. Murley, Director J Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 14th day of June 1990. 1 i L '1 ( ? 54.% i I}}