ML20057E581

Nuclear Regulatory Commission Issuances for July 1993.Pages 1-24

ML20057E581
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Issue date:	09/30/1993
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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References
NUREG-0750, NUREG-0750-V38-N01, NUREG-750, NUREG-750-V38-N1, NUDOCS 9310120315
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NUREG-0750 Vol. 38; No.1 j

Pages 1-24 i

NUCLEAR

• REGULATORY-

. COMMISSION: ISSUANCES-

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I Superintentendent of Documents U.S. Govemment Printing Office j

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Washington, D.C. 20013-7082 A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.

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Single copies of this publication are available from National Technical information Service. Springfield, VA 22161 l

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Errors in this publication may be reported to the Division of Freedom of Information and Publications Services 1

Office of Administration J

U.S. Nuclear Regulatory Commission i

Washington, DC 20555-0001 l

(301/492-8925) s --.___,_ _

l NUREG-0750 Vol. 38, No.1 Pages 1-24 1

NUCLEAR REGULATORY COMMISSION ISSUANCES July 1993 This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Boards (LBP), the Administrativo Law Judges (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.

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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 20555-0001 (301/492-8925) t

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COMMISSIONERS i

Ivan Selin, Chairman l

Kenneth C. Rogers Forrest J. Remick E. Gait de Planque

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i B. Paul Cotter, Jr., Chief Administrative Judge, Atomic Safety and Ucensing Board Panet 9

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CONTENTS Issuance of the Nuclear Regulatory Commission GEORGIA POWER COMPANY, er at (llatch Nuclear Plant, Units 1 and 2; Yogtle Electric Generating Plant, Units 1 and 2) i Dockets 50-321, 50-366, 50-424, 50-425 (10 C.F.R. ( 2.206)

MEMORANDUM AND ORDER, CL193-15, July 14,1993.

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Issuances of the Atomic Safety and Licensing floards j

GEORGIA POWER COMPANY, et al (Vogtle Electric Generating Plant, Units 1 and 2) f Dockets 50-424-OLA-3,50-425-OLA-3 (AStilP No. 93-671-01-OL A-3)

'l (Re: License Amendment)(Transfer to Southern Nuclear) i MEMORANDUM AND ORDER, LDP-93-15, July 21,1993 20 I

i NORTilEAST NUCLEAR ENERGY COMPANY (Millstone Nuclear Power Station, Unit 2)

Docket Nos. 50-336-OLA (ASLBP No. 92-665-02-OLA)

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(FOL No. DPR-65) (Spent Fuel Pool Design) i DECISION AND ORDER, LDP-9312, July 9,1993

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PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2) l Docket 50-275-OLA-2,50-323-OLA-2 (ASLBP No. 92-669-03-OLA-2)

(Construction Period Recovery)(Facility Operating Licenses No. DPR-80, DPR-82)

MEMORANDUM AND ORDER, LDP-93-13, July 19.1993 11 ST. JOSEPil RADIOLOGY ASSOCIATES. INC., and JOSEPli 1.

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FISilER, M.D. (dha. ST. JOSEPil RADIOLOGY ASSOCIATES.

1 INC., and FISilER RADIOLOGICAL CLINIC) l Dockets 0304K)320-EA,999-90003-EA (ASI.BP No. 93-672-02-EA) l ORDER, LDP-93-14, July 20,1993

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VERMCNT YANKEE NUCLEAR POWER CORPORATION I

(Vermont Yankee Nuclear Power Station)

Docket 50-271-OLA-5 (ASLBP No. 92-665-02-OLA-5)

FOL No. DPR-28)

MEMORANDUM, LBP-93-16, July 28,1993.

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'i Cite as 38 NRC 1 (1993)

CLI-93-15 1

i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

COMMISSIONERS:

Ivan Selin, Chairman Kenneth C. Rogers Forrest J. Remick E. Gail de Planque i

in the Matter of Docket Nos. 50-321

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50-366 l

50-424 50-425 l

(10 C.F.R. f 2.200)

GEORGIA POWER COMPANY, et al.

(Hatch Nuclear Plant, Units 1 and 2; Vogtle Electric Generating Plant, Units 1 and 2)

July 14,1993 l

The Commission sua sponte vacates and remands to the NRC Staff for further consideration the Staff's partial decision under 10 C.F.R. 6 2.206, DD-93-8,37 l

NRC 314 (1993). The Commission takes such action in view of the commonality l

of some of the issues decided in the petition both with matters in a pending j

license transfer proceeding and with other mauers remaining for decision in the section 2.206 petition.

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RULES OF PRACTICE: PETITIONS UNDER 10 C.F.R. 6 2.206 l

The Commission generally discourages use of section 2.206 procedures 1

l as an avenue for deciding matters that are under consideration in a pending adjudication; however, this general rule is not intended to bar petitioners from

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seeking immediate enforcement action from the NRC Staff in circumstances in which the presiding officer in a proceeding is not empowered to grant such relief.

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MEMORANDUM AND ORDER The Nuclear Regulatory Commission (NRC) Staff's partial decision under 10 C.F.R. 6 2.206, DD-93-8,37 NRC 314 (1993), is pending before the Commission for possible review in accordance with 10 C.F.R. 6 2.206(c). For the reasons stated in this Order, the Commission is vacating the Staff's partial decision and remanding the matters decided therein to the Staff for funher consideration.

The Staff's partial decision responds to a petition filed by Allen L Mosbaugh and Marvin B. Ilobby in September 1990, and funher supplemented in October 1990 and July 1991, which asked for initiation of proceedings and other enforcement action against Georgia Power Company (GPC). The Petitioners based their petition on various allegations of false statements, willful violations of NRC requirements, and other misconduct. In DD-93-8, the Staff denied the petition with respect to certain of the Petitioners' allegations that the Staff believed were capable of final resolution. However, the Staff declined to reach a determination with respect to allegations of unlawful discrimination against Messrs. Hobby and Mosbaugh that are related to pending proceedings before the United States Department of Labor and to other allegations of wrongdoing that are still under consideration by the NRC Staff.

In addition to his filing of the section 2.206 petition, Mr. Mosbaugh has been admitted as an intervenor in a proceeding on the transfer of operating authority over the Vogtle Electric Generating Plant from GPC to Southern Nuclear Operating Company (Southern Nuclear).3 Among the bases for his admitted consolidated contention in the adjudicatory proceeding are the allegations also contained in the section 2.206 petition that GPC and Southern Nuclear had consummated an unlawful defacto transfer of control to Southern Nuclear of the operating licenses for the Vogtle and Hatch facilities, and that GPC's executive vice president in a meeting with NRC Staff on January 11,1991, made material false statements about the formation of Southern Nuclear. The Stalf denied the petition on the merits with respect to these matters in DD-93-8. Sec 37 NRC at 317-24, 345.

The Commission has generally discouraged use of section 2.206 procedures as an avenue for deciding matters that are under consideration in a pending adjudication. Thus, the Commission ordinarily would expect the Staff to deny a section 2.206 petition that raises the same issues that are being considered in a pending adjudication on the basis of the pendency of the identical matters in

'i.itP-915, 37 NRc 46 (1993) (appeal pendir.g before the comtmwion) Mr. Ilobby alno peuuoned to inicrvene an the transfer Im.cceding tmt was &med staning to anterwer. lle has not appealed Ilw & mal of his interwmson.

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't a proceeding involving the same licensee or facility.2 This general rule is not intended to bar Petitioners from seeking immediate enforcement action from the Staff in circumstances in which the presiding officer in a proceeding is j

not empowered to grant such relief. Moreover, we recognize here that Mr.

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' Mosbaugh has not invoked section 2.206 to avoid a pending adjudication and that his sect'on 2.206 petition seeks relief with respect to issues and facilities

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that are not before the Licensing Board in the pending transfer proceeding.

flowever, in view of the overlap and similarity of some issues between the section 2.206 petition and the transfer proceeding (particularly those addressed ~

in sections II.A and II.B of DD-93-8), the Staff's final determination of the i

common issues should take into account the Licensing Board's findings and the outcome of the transfr r proceeding.3

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Apart from the commonality of some issues decided in DD-93-8 with pending e

issues in the adjudicatory proceeding, a common thread runs throughout the l

allegations raised in the section 2.206 petition. The issues raised in the petition generally concern the integrity of GPC or Southern Nuclear officers and the i

corporate organization responsible for operation of the Ilatch and Vogtle plants, Under the particular circumstances of this case, rather than address the issues l

in the section 2.206 petition in a piecemeal fashion, the Staff should reach a determination of all issues in an integrated manner after consideration of the remaining matters raised in the section 2.2% petition and the outcome of the j

transfer proceeding.

l We therefore vacate DD-93-8 and remand to the Staff those portions of the j

section 2.206 petition decided therein for the Staff's further evaluation and final decision in conjunction with the Staff's resolution of the other remaining mat-ters in the petition and in light of the outcome of the transfer proceeding. In j

taking these actions, we intimate no view on the soundness of the Staff's anal-ysis of the issues in DD-93-8. We also do not bar the Staff from taking prompt l

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23rr General Pubhc Urdairs Nw.frar Co p (Thne Male Island Nudcar Station, Uruts I and 2; oyster Creck Nudear Generating Station). CLJ45-4. 21 NRC %1, %345 0985L rac@c Gas and Dearse Ce fDmblo Canyon Nuclear Power Plant. Units t and 2). CLI $14.13 NRC 443 0981) 3We recogmze that GPC has appealed the Licennng floar(s adminion of Mr, Mahaugh as a party and of the conschchned contention. We expect to render a decision on the appeal in ate near future Nonetheless. at least 1

remling a furtter Cmnnuaion order on appeal. Mr. Mcabaugh as enntled to pany status and his contentma is drened admined

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enforcement action at rny time during its ongoing review of the matters raised -

in the petition.

l It is so ORDERED.4 Rr the Commission SAMUEL J. CHILK i

Secretary of the Commission Dated at Rockville, Maryland, l

this 14th day of July 1993.

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'Comnumener de Planque did not participate in the Ownmimon's conuderauon of it:is Order.

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Atomic Safety j

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ATOMIC SAFET( AND UCENSING BOARD PANEL

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B. Paul Cot;er, Jr.,* Chief Administrative Judge l

Robert M. Lazo,* Deputy Chief Administrative Judge (Executive)

T Frederick J St1on,* Deputy Chief Administrative Judge (Technical) f l

O Members Dr George C Anderson James R Gleason*

Dr. Kenneth A. McCollom Charkes Bochhoefer*

Dr David L. Hetnck Marshall E. Miller l

Peter B Bloch*

Emest E. Hill Thomas S. Moore

• l G Paul Bollwerk lit

• Dr. Frank F. Hooper Dr. Peter A. Morns Glenn O. Bright Elizabeth B Johnson Thomas D. Murphy

• Dr A Dixon Calhhan Dr Walter H Jordan Dr Richard R. Parizek Dr. James H. Carpenter

• Dr Charles N Kelber*

Dr Harry Rein l

Dr Richard F Cole

• Dr Jerry R. Kline*

Lester S. Rubenstein W

Dr Thomas E. Elleman Dr. Peter S Lam

• Dr. David R Schink l

Dr George A. Ferguson Dr. James C Lamb ll1 isan W. Smith

• l Dr Harry Foreman Dr Emmeth A. Luebke Dr George E Tidey l

Dr Richard F. Fccter Morton B Marguhes*

Sheldon J. Wotte l

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• Permanent panel members l

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Cite as 38 NRC 5 (1993).

LBP-93-12 UNITED STATES OF AMERICA j

NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 4

Before Administrative Judges:

f Ivan W. Smith, Chairman l

Dr. Charles N. Kelber Dr. Jerry R. Kline in the Matter of Docket Nos. 50-336-OLA (ASLBP No. 9.2-665-02-OLA)

I (FOI. No. DPR-65) i (Spent Fuel Pool Design) l NORTHEAST NUCLEAR ENERGY COMPANY (Millstone Nuclear Power Station, j

Unit 2)

July 9,1993 J

I DECISION AND ORDER (Terminating I'roceeding by Summary Disposition)

SYNOl* SIS Northeast Nuclear Energy Company (NNECO), supported by the NRC Staff, moves for summary disposition of Concerned Citizens Monitoring Network (CCMN) Contention 1. Both NNECO and the NRC Staff have subut'tted the affidavits of qualified experts demonstrating that Contention I has not raised a j

genuine issue of material fact to be heard. CCMN has not answered the motion.

The Licensing Board grants the motion. CCMN Contention 1 was the only contention accepted for adjudication. Accordingly, the Board terminates this j

proceeding.

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i BACKGROUND i

1 This proceeding concerns the adequacy of the spent fuel pool criticality calculations performed for Millstone Unit No. 2's license amendment 158. See LBP-92-28,36 NRC 202,215-16 (1992).3 This Licensing Board was established to consider intervention petitions filed by CCMN and others. Based on CCMN's August 24,1992 filing, its Contention I was accepted and CCMN was admitted as a party. All other contentions were rejected Id. Contention 1 was based solely upon portions of Dr. Michio Kaku's August 23,1992 " Declaration" (affidavit).2 j

The adequacy of the criticality study performed for Amendment No.158 and Dr.

i Kaku's questions in this regard concerning: (1) the actual state of the Boraflex box degradation, (2) the use of benchmarking data, (3) the use of Monte Carlo calculations, and (4) the use of a vertical buckling term, were identified by this Board as the only issues to be litigated in this proceeding. Id. See p. 7, infra.

for the full text of the issues.

On May 7,1993, NNECO filed its motion, pursuant to 10 C.F.R. 6 2.749, for i

summary disposition of CCMN Contention 1, on the grounds that the contention has not raised a genuine issue of material fact. Accordingly, NNECO states, it i

'I is entitled to summary disposition in its favor as a matter of law and that the contention should be dismissed. As support for the motion, NNECO asserts that the attached affidavits demonstrate that there is no genuine issue of material fact to be heard with respect to CCMN's Contention 1 as that contention was characterized by the Licensing Board.

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On May 28,1993, the Staff filed its response, also founded on affidr.its, in support of NNECO's motion.

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In our order of May 3,1993, we granted CCMN's request for an extension of time until June 29,1993, to answer both NNECO's motion r.ad any supporting response by the NRC Staff. Id. at 2. CCMN did not ansv er.

FINDINGS l

As noted above, the issues of CCMN Contentie. I we.e summarized by the Board in LDP.92-28 from the August 23, 1997 affidavit of CCMN's expert advisor, Dr. Michio Kaku. In our November ?J,1992 order we accepted for discovery those issues:

3on April 28.1992, a notim of opporturury for heanng was pubhshed in the federst Reputer regarding the Apnl 16.1992 application by NNECO seeking authonzainin to :hange the deugn of the spets fuct pool at Millstone Urut 2 frorn a two.repon to a three-region conhrurauon 57 T ed Reg 17.934. on June 4.1992 the NRC Staff granted NNLCoi request and iuurd Amendnent No.158 to the Millstone 2 operatmg heene, notwithstanding CCMN's peution requestmg the Staff to deny NNECo's anendnent request.

23re Memoranulurn urut order (fullowing Prehearir:g Confcience) Ntw inber 23. lW12 (unputilishedt See aim ISP-92-28. supra. at 217 6

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Licensce's telief that the rearrangement can only red.u e the pool's storage capacity and hence make the pool less dangerous, represents premature optimisen. Aflidavit. 4.3 More

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information is required. Id., pa.tsm. A reanalysis of the cnticahty study is needed and

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I should address tie following issues I,. What is the actual state of the Borafles box degradation, and what is the correspond-7 ing disposition of the water gaps? Id.,18. Tis licensee examined approxirnately half of the poisoned rack cct!s with a defect rate of 16% [ footnote omitted]. If the cample is not repre-i sentative, the gaps may be larger than expected, or locally concentrated. A concentratmn of

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gaps would cause local enhancement of the neutron distribution with an effect of increasing Aerr

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To what extent are tic benchmark data used by the Licensee representative of the arrangement of Boraflex boxes, fuel boxes, and water in the storage pool? 14.19.

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Ilave tie Monte Carlo calculations ir.corporated enough iteranons to provide a gmd estimate of the pool's reactivity? Id.,110(dt 4.

If a vertical bucklmg term has teen used, has it been used correctly? Id.,110(c).

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i NNECO's motion directly addresses each of the foregoing issues and seeks a finding in NNECO's favor as to the following statements of material fact "as to which there is no genuine issue to be heard." Motion at 20-21. In the following paragraphs, we discuss in order each of the proffered statements.

l As a preliminary matter, however, the Board rules that each of the experts whose affidavits attend NNECO's motion (John R. Guerci, George N. Betan-court, and Dr. Stanley E. Turner) and the Staff's response (Dr. Laurence Kopp

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and George Bidinger) are qualified with respect to their expert opinions and factual knowledge.

Statement No.1 De actual state of Boraflex box degradation and water gaps is known and very conservatively modeled in the Amendment 155 criticality analysis.

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lloraflex boxes at Millstone Unit 2 have been subject to two extensive Blacknees testmg campaigns.

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This Blackness testmg accurately characterized the condition of the Botafiex panels.

e The Blackness testing campaigns encompassed almost 70% of the Boraflex boxes c.

subject to significant radiation and therefore most susceptible to gap fornuuion (i.e about 46% of tie total Bornflex boxes)?

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De Blackness testing conducted provides assurance that tie actual state of Boraflex j

has been conservatively enveloped in the Amendment 158 criticality analysis. The conservative assumptions made in that analysis bound the observed degradation with respect to the number of raps (100% panel defect rate assumed vs.13%

IAfklavit references are to Dr. Kaku's "Declaratka" l

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defect rate oturved) sue of gaps (545 inch gaps usumed vs. average etwerved gap of 0.8 inches), and distribution of gaps (observed as essentially random).

l Board Finding on Statement No.1 Blackness testing is an established and accepted scientific method of de-termining the capability of material to capture neutrons. The affidavit of Dr.

Turner supports NNECO's proffered Statement No.1. Turner Aff. 16. The Staff's expert, Dr. Kopp, supports Dr. Turner. Kopp Aff. t 7-15. The Board finds that with respect to Statement No. I there is no genuine issue of material fact to be heard i

Statement No. 2 The model used in the Anendment 158 cnticahty analysis was extensively benchmarked.

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The KENO model used for tic enticahry analysis was benchnarked against critical experiments chosen from the fl&W critical experiments to be as nearly representauve of the Millstone Unit 2 spent fuel racks as possible.

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These critical experirrumts included a geotnetric array of spent inel boxes with thin strong neutron absorbers. This benchmark data is representative of the arrangement of Isoraflex boxes, fuel boxes, and water in the spent fuel pool.

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lhe KENO model, using 27 neutron groups. also was verified against an indepen-dent means of evaluanon (CASMO-3)

Board Finding on Statement No. 2 The criticality calculations were carried out in accord with the provisions of the standard ANSI /ANS-8.1, Nuclear Criticality Safety in Operations with Fissionable Materials Outside Reactors. This standard has been incorporated by reference into NRC regulations. He affidavit of Dr. Turner supports NNECO's proffered statement No. 2. Turner Aff, t 30-33. Similarly, the Staff's expert, G.H. Bidinger, supports Dr. Turner, the support being based on both a review of Dr. Turner's work and independent calculations. Bidinger Aff. 17-16. He Board finds with respect to Statement No. 2 that there is no genuine issue of material fact to be heard.

P Statement Number 3 The Monte Carlo calculations have incorporated enough *nerations" to provide a good estimate of the pool's reactivity.

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Monte Carlo analysis is an accepted and adequate technique for calculating Kg the Millstone Unit 2 spent fuel pool.

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i. KENO is well-suited to analysis of complex systems containing thin. strong absorbers. such as in the Millstone 2 spent fuel pool.

j 1he number of neutron histories used in NNECO's criticahty calculations was at least 500,(X10.

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Convergence was normally achieved by 125,000 histories. 500,000 histories I

therefore was more than adequate to achieve converFence in the Monte Carlo calculations.

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Board Finding on Statement No. 3 4

Both the Licensee and the Staff performed studies of the effects of changing

.j the number of histories on the precision of the Keno calculations. Such parametric studies are an established and accepted scientific method of testing the capabilities of a computing code. Dr. Turner cites specific results in supporting NNECO's proffered Statement No. 3. Turner Aff. t134-37. He Staff's expert, G.ll. Bidinger, also brings to bear the results of an independent analysis of

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the spent fuel pool criticality and supports NNECO's statement. Bidinger Aff.

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1110-11. He Board therefore finds that with respect to Statement Number 3 l

there exists no genuine issue of material fact to be heard.

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Statement Number 4 A vertical buckling term was not used in the Millstone 2 spent fuel pool criticality analysis.

r Board Finding on Statement No. 4 Dr. Turner points out, in support of NNECO's statement, that the calculations involved all three dimensions of the spent fuel and thus there was no need for a vertical buckling term, hrner Aff.149. The same point is made by the l

Staff's expert, G.li. Bidinger. Bidinger Aff.18. The use of a vertical buckling term is appropriate only as an approximate method of treating a missing spatial dimension in diffusion theory analyses. Here are no such missing dimensions in the problem under discussion. lience, the Board finds that there is no genuine issue of material fact to be heard with respect to Statement Number 4.

j DECISION AND ORDER ne Board has found and decided in favor of NNECO with respect to each proffered statement as to which NNECO asserts that there is no genuine issue of material fact to be heard. Consequently, all issues raised by CCMN Contention 1 9

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and the contention itself are decided in NNECO's favor. No issues or contentions remain before the Board. Accordingly, this proceeding is terminated.

FINALITY AND REVIEW 1.

This Decision and Order will constitute the final decision of the Com-j mission 40 days from the date of its issuance, unless the Commission takes j

. review or directs otherwise. See 10 C.F.R. 66 2.760,2.786.

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Any party may seck review of this Decision and Order with the Commis-3 sion by filing a petition for review within 15 days after its service. The petition for review may be granted in the discretion of the Commission. 'Ihe filing of i

such a petition is mandatory for a pany to exhaust its administrative remedies l

before seeking judicial review. See 10 C.F.R. 6 2.786.

3.

A petition for review shall be no longer than ten pages and shall contain the information set forth in 10 C.F.R. 5 2.786(b)(2). Any other pany to the proceeding may, within ten days after service of a petition for review, file an answer no longer that ten pages and, to the extent appropriate, should concisely address the matters specified in section 2.786(b)(2). Except as permitted by l

the Commission, the petitioning party shall have no right to reply.10 C.F.R. 5 2.786(b)(3).

Tile ATOMIC SAFETY AND LICENSING BOARD Jerry R. Kline ADMINISTRATIVE JUDGE Charles C. Kelber ADMINISTRATIVE Jt'DGE.

Ivan W. Smith, Chairman ADMINISTRATIVE JUDGE i

Bethesda, Maryland July 9,1993 10 i

Cito as 38 NRC 11 (1993)

LBP-93-13 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Charles Bechhoefer, Chairman Dr. Jerry R. Kline Frederick J. Shon in the Matter of Docket Nos. 50-275-OLA-2 50-323-OLA-2 (ASLBP No. 92-669-03-OLA-2)

(Construction Period Recovery)

(Fac!!ity Operating Licenses No. DPR-80, DPR-82)

PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, f

Units 1 and 2)

July 19,1993 Ruling on an intervenor discovery request, the Licensing Board orders production of a report of the Institute for Nuclear Power Operations (INPO),

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subject to a protective order; refers its ruling to the Commission; and stays the effectiveness of its disclosure directive pending Commission action.

RULES OF PRACTICE: DISCOVERY (PRIVILEGED MATTER)

Under NRC rules, it is not clear when a balancing of interests is required before permitting disclosure of a report that is claimed to contain trade secrets j

or privileged or confidential commercial or financial information. The Federal Rules of Civil Procedure clearly permit a balancing. See Fed. R. Civ. P. 26(c)(7).

NRC rules include a comparable balancing test, see 10 C.F.R. 6 2.740(c)(6), but 11 i

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this test is subject to the provisions of 10 C.F.R. 6 2.79(t In particular, the balancing test appears to be overridden by section 2.790(b)(6). Cf. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CL1 24,11 NRC 775 (1980)(access by intervenors to security plan permitted subject to protective order).

l MEMORANDUM AND ORDER (Granting Discovery Request / Referring Ruling to Commission)

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llackground in our Prehearing Conference Order (Late-Filed Contentions and Discovery),

LBP-93-9, 37 r RC 433 (1993) (hereinafter LBP-93-9), we deferred ruling on a dscosery request by the intervenor San Luis Obispo Mothers for Peace (MFP) for the Pacific Gas and Electric Company (PG&E or Applicant) to make available certain reports prepared by the Institute for Nuclear Power Operations (INPO) concerning " maintenance and surveillance programs or activities" at the Diablo l

Canyon facility. 'lhe Applicant had claimed that the reports were "pnvileged" and shou!d not be made available, even subject to a protective order. 'Ihe Intervenoi claimed that the reports were " relevant" to its contention challenging the effectiveness and scope of PG&E's " surveillance and maintenance program."

We considered arguments concerning this discovery request at the May Il-12, 1993 prehearing c<mference (Tr. 498-516, 520-21). In support of its privilege claim, PG&E relied principally on the determination of the U.S. Court of Appeals for the D.C. Circuit that INPO reports furnished to the NRC need not be released to the public under the Freedom of Information Act (FOIA), inasmuch as these reports fall within the exemption under that act for " commercial or financial information obtained from a person and privileged or confidential," as set forth tmder.NRC rules in 10 C.F.R. 6 2.790(a)(4). Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir.1992), cert. denied,123 L. Ed. 2d 147 (Mar. 22,1993).

In LBP-93-9, we ruled that such reports are not " privileged" in the traditional sense but, rather, only subject to nondisclosure under the FOIA. We also recognited that reports of this type could be made available (or, ahernatively, withheld from disclosure) in a litigation context only under the provisions of 10 C.F.R. 5 2.790(b)(4)-(6). Because the record lacked adequate information necessary for us to reach a determination under those provisions, we invited parties to file additional affidavits and/or briefs. PG&E and MFP each did so.

(The NRC Staff declined to do so, inasmuch as it is not directly involved in the discovery dispute in question. At the prehearing conference, howeser, the Staff 12

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expressed its general position of protecting INPO information from unauthorized disclosure. Tr. 508-11, 516, 520-21.)

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II.

Parties' Positions In its response to our invitation to file further information,' MFP reiterates that the INPO documents it seeks are relevant to its contention challenging the j

adequacy and effectiveness of the. maintenance and surveillance programs. It

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assens that there are very few independent and contemporaneous assessments

j of nuclear power plant operation, and that INPO is one such source. Itis i

an important source, according to MFP, because of that independence. MFP believes that the INPO reports "will contain frank evaluations of the effectiveness f

of the maintenance and surveillance programs," and that these evaluations have j

the potential to provide useful insights and may prove beneficial to the hearing process.

MFP adds that the INPO evaluations are not available in public sources, and l

that there should be no secrets in matters related to public safety. MFP can find no " rational basis" for withholding and cannot foresee any substantial harm or expense that could come to any party from disclosure.

l For its part, the Applicant asserts the privileged nature of the report in question, as well as the lack, in its view, of need shown by MFP for such report.2 It explains that INPO is a voluntary organization of nuclear licensees whose goal is to promote excellence in nuclear plant operations and, to this end, periodic INPO evaluations are made of nuclear plants to measure performance against standards of excellence, beyond mere compliance with regulatory standards.

It adds that "[f] rank and candid exchanges of information are essential to the continued success of INPO."3 PG&E provided by affidavit the information called i

for by 10 C.F.R. 6 2.790(b)(4)-(5), to the effect that INPO evaluations are held i

in confidence by INPO and nuclear licensees (and NRC when provided to NRC) and that disclosure to MFP or any other party in litigation would undermine the policy favoring nondisclosure of these important self-assessments. The

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Applicant further attached a letter from INPO explaining that INPO strongly

~j disfavors public disclosure of INPO assessments, either under the FOIA or through discovery in litigation.

The Applicant further distinguishes between release of information to the public (under the FOIA) and release in litigation. It categorizes 10 C.F.R.

3intervenor San Ltus obhpo Mothers for Peace Response to Prehranng Conferrace ordct Re. INPO Documents, dated July 1.1993.

2Paci6c Gas and Dectric Company's Respon,.e to t}xnung Board Questions Re: INPo Docunrnra, dated July 2,1991 3id at 3.

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5 2.790 as incorporating the provisions of the FOIA and as governing release of NRC records and documents to the public. PG&E states that the INPO report in j

question here is not an NRC record, has not been filed with the NRC. and NRC j

does not have a copy within its possession or control. He Applicant asserts that, i

by analogy to the FOIA, section 2.790(b) requires an assessment of whether the l

. interest in " release" of the document outweighs the interest in nondisclosure. In response to our inquiry whether section 2.790(b)(6) requires release (subject to l

a protective order or nondisclosure agreement) without regard to the balancing j

test, PG&E claims that the section does not require such release. It adds that the policy favoring nondisclosure is even stronger in a litigation context than in the

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R.)lA context considered in Critical Mass, supra. In particular, the Applicant notes that MFP is seeking to obtain the scif-evaluations presumably for the precise purpose of challenging the efficacy of the Diablo Canyon maintenance program.

Finally, PG&E requests that, should we determine that disclosure of the INPO k

information to MFP is warranted, we first certify the question or refer our ruling

.j to the Commission, prior to its effectiveness. See 10 C.F.R. El2.718(i) and j

i 2.730(f).

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C.

Iloard Analysis We begin by pointing out that MFP has considerably narrowed its initial request for INPO reports to only those analyzing the current maintenance and

.l surveillance program. According to PG&E, only a single report is involved, and our analysis is solely in that context.

We reiterate our previous conclusion that this report is clearly relevant to MFP's Contention I (concerning the maintenance and surveillance program).

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MFP's statement of need, as set forth above, is persuasive. MFPis attempting to show, by virtue of a multitude of events or deficiencies, that the Diablo Canyon maintenance and surveillance programs are not sufficiesitly effective to warrant being used as the foundation for the license extensions (13 to almost 15 years).

i To that end, the single most-recent assessment by INPO, an independent expert body, would be singularly important. At the very least, the report may lead to other relevant evidence - one of the major purposes of discovery. Moreover, the report presumably contains both fact finding and interpretations that are not available elsewhere. (However, the Applicant asserts that all of the underlying facts relied on by INPO are publicly available.)

In the context of maintenance and surveillance programs, the NRC has not

,l at this time established (by regulation) any minimum regulatory standards. In l

a revised policy statement issued on December 8,1989, the Commission noted j

that further improvements in maintcnance programs were necessary, particularly l

(although not exclusively) with respect to implementation. The Commission I

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further noted that it had proposed a new maintenance rule (which subsequently was not adopted) and that NUMARC and INPO were studying the question.

54 Fed.' Reg. 50,611 (Dec. 8,1989). The Commission instead has adopted a j

regulation (10 C.F.R. 6 50.65) requiring only the monitoring of the effectiveness of maintenance programs, but not until July 10,1996. 56 Fed. Reg. 31,306 (July 10, 1991). Given this situation, the INPO evaluation could help the Board to i

evaluate the adequacy of the Diablo Canyon program and to resolve the issues in this proceeding.

1 We find that MFP has expressed a valid need for the single INPO report l

and that the report could assist it in the development of its position. On the other hand, we also recognize the sensitivity and confidentiality of the r

information, as expressed by PG&E. There can be a potential chilling effect attendant upon release, for the writers of such reports might be less candid if their

.l frank expressions might be used against a licensee's interest during subsequent l

litigation, particularly in the absence of minimum regulatory criteria to'which l

a licensee must adhere. Indeed, the Applicant claims that INPO might cease preparing such reports in the future if they cannot be withheld from disclosure in NRC litigation.'

liowever, it is not clear that, under NRC rules, a balancing of interests is required or even permitted in the pmsent context. Section 2.~790(b)(6) provides:

Withholding from public inspection shall not affect the right, if any, of persons properly

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and directly concerned to inspect the document. The Commission may require information j

claimed to be a trade secret or privileged or confidential commercial or fmancial information j

to be subject to inspection:. (i) under a protective agncment, by contractor personnel or

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government officials other than NRC officials;(ii) by the presiding officer in a pmceeding; and fiii) under protective order, by parties to a proceedmg.

. when a decision has been made that the information should be withheld from public dischsure. In camera sessions of1carings m::y be beld when the information sought to be withheld is produced or offered l

in evidence. If the Commission subsequently determines that the information should be disclosed, the information and the transcript of such in camera session wil' be made publicly available.

In contrast, the Federal Rules of Civil Procedure would clearly permit a balanc-f ing. See Rule 26(c)(7). Federal Rules of Civil Procedure. NRC Rules include

(

a comparable balancing test, see 10 C.F.R. 6 2.740(c)(6), but this test is subject to the provisions of 10 C.F.R. 6 2.790. In particular, the balancing test appears to be overridden by section 2.790(b)(6). Cf. Pac #ic Gas and Electric Co. (Di-ablo Canyon Nuclear Power Plant, Units 1 and 2), CL1-80-24,11 NRC 775 l

(1980) (access by intervenors to security plan permitted, subject to protective i

t "PGAE Respome, dated July 2,1993. Attaduneur A (Affidavn of bhn D. 'fownwnd). as 5.115.

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order).5 In any event, even if there is a balancing test, it appears that allowing access to this single report is justified because there is a need for this information for this hearing, and adequate protective measures can be taken at the hearing to prevent its disclosure to the public.

j Given these considerations, we find that MFP is properly and directly concerned with the single INPO report in question and that this report should be made available to MFP. subject to a protective order. The protective order l

i will limit the access to the information to specified MFP representatives, will not permit copying of the document and will require that any reference to the material in litigation be in in camera sessions, i

Wrther, as requested by PG&E, we are referring this ruling to the Commis-l' sion pursuant to 10 C.F.R. 52.730(f)(together with relevant underlying docu-mentation) and are staying its effectiveness pending Commission action. In the

-l terms of that section, given the sensitive nature of the report in question, we

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find that this referral and accompanying stay are necessary to prevent detriment to the public interest.'

l IT IS SO ORDERED.

l THE ATOMIC SAFETY AND LICENSING BOARD J

Charles Bechhoefer, Chairman f

ADMINISTRATIVE JUDGE I

Dr. Jerry R. Kline l

ADMINISTRATIVE JUDGE Frederick J. Shon ADMINISTRATIVE JUDGE 1

1 Bethesda, Maryland

l July 19,1993

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i 3The additional talancing test in 10 C.F.R.12.740(c). which pernuts denial of discovery in certain circumstances, is only apg& cable to protect a puty or person imm annoyance cuturrassnent, oppression, or undue burden or expense /' or for relevancy cormiderations. Pacific Car and Uccarsc Co (Diablo Canyon Nuclear Power itut.

Units 1 and 2), ALAB 410,5 NRC 1398.14M m 16 (1977).

'If the Cornnussion approves of de action we are taking, we will iniuate a tengduur conferrnce call (or, dunng de tranng comrrencing on August 17,1993. a Jisrussion) with de parues to defur die details of tte protecove order, including identines of the persons pernutled to view the INPo septet.

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l Enclosures (Commission only):

1. ' PG&E Response to MFP Interrogatories, dated April 12,1993, at 14-15 (Requests 12 and 13).

2.

MFP Motion to Compel, re: 2d and 3d Sets of Interrogatories, dated l

April 26,1993, at 3.

3 Prehearing Conference Tr. 498-516,520-21.

4.

LBP-93-9, dated June 17,1993, pp.1,31-34 l

5.

MFP filing, dated July 1,1993.

6.

PG&E filing, dated July 2,1993.

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Cite as 38 NRC 18 (1993)

LBP-93-14 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY A?"D LICENSING BOARD Before Administrative Judges:

Thomas S. Moore, Chairman Dr. Peter S. Lam Dr. George F. Tidey i

in the Matter of Docket Nos. 030-00320-EA 999-90003-EA i

(ASLBP No. 93-672-02-EA)

ST. JOSEPH RADIOLOGY t

ASSOCIATES, INC., and JOSEPH L FISHER, M.D.

(d.b.a. ST. JOSEPH RADIOLOGY ASSOCIATES, INC., and FISHER RADIOLOGICAL CLINIC)

July 20,1993 i

ORDER I

In LBP-92-32,36 NRC 317 (1992), we denied the request of Joseph L. Fisher, j

M.D., to set aside the immediate effectiveness of an October 16,1992 NRC Staff enforcement order to transfer all byproduct material in his possession to an authorized recipient. According to the Staff's enforcement order, the byproduct material consisted of approximately 600 curies of cobalt-60 as a scaled source in a Picker Corporation Model 6202 (V/3000) teletherapy unit located in a medical office suite recupied and controlled by Dr. Fisher at 702 Jules Street, St. Joseph, Missouri.' 'Ihereafter, in a second order, we provided Dr. Fisher with an opportunity to show cause why this proceeding should not be disndssed for his failure to comply with the requirements of 10 C.F.R. f 2.202(b)?

3 Sec 57 Ied Reg 48.404. 48.405 0 992).

2 licensmg Board order Oan.28,1993)(unpubhud).

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I As we pointed out in the second order, the Commission's regulations require that a person served with an enforcement order must file a timely written answer, under oath, that admits or denies each Staff allegation or charge in' l

the enforcement order. In addition, the answer must detail the facts and legal arguments on which the person relies in claiming that the otder should not have l

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been issued? As we also noted in the second order, l

thlere. other than the brief October 22,1992 letter containing his set-aside request, Dr.

Fisher has hied no other pleadings. Although that letter was filed within tie time specified in' l

the enforcement order it fails, on its face, to conform to the other reqmrements for an answer set forth in 10 C.F.R. 9 2.202. That (set-aside] letter was not submitted under oath and it l

neither admits nor denies each of the many charges contained in the staff *a enforcement

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order. Ibrther, that letter does not set forth the matters of fact and law Dr. Fisher relies upon i

in challenging the staff enfortement order.'

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Because Dr. Fisher has not filed any response to our earlier show-cause order, and his initial set-aside request, on its face, fails to conform to the requirements j

for an answer to a Staff enforcement order contained in 10 C.F.R. 6 2.202(b),

j the proceeding is dismissed.

j It is so ORDERED.

FOR TIIE ATOMIC SAFETY AND LICENSING BOARD l

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Thomas S. Moore, Chairman ADMINISTRATIVE JUDGE

~l Bethesda, Maryland, i

July 20,1993 i

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Cite as F, NRC 20 (1993)

LBP-93-15 UNITED STATES OF AMERICA l

NUCLEAR REGULATORY COMMISSION.

l ATOMIC SAFETY AND LICENSING BOARD 4

Before Administrative Judges.

3 Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy in the Matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3 (ASLBP ha. 93-671-01-OLA-3)

(Re: Licers Amendment)

(Transfer to Southern Nuclear) i

- GEORGIA POWER COMPANY, et af.

(Vogtle Electric Generating Plant, Units 1 and 2)

July 21,19".)

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The Board determined that when a contention is admitted into a proceed;ng, the contention determines the scope of discovery. liowever, as a matter of(ase management, the Board limited the first phase of di,covery and hearing to die proffered bases. After the hearing on the first phase, the Board would determine l

whether it had a complete record for decision or whether funher discovery and J

a funher hearing are necessary.

1 RULES OF PRACTICE: CONTENTION (IIASIS) a An admitted contention determines the scope of the proceeding.

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RULES OF PRACTICE: IIASIS (CASE M ANAGEMENT) y

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Discovery may be limited to admitted bases during the first phase of a l

proceeding. After the hearing on the first phase, the Board can determine whether it has a complete record for decision or whether further discovery is j

necessary.

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MEMORANDUM AND ORDER j

(Case Management) r The purpose of this Memorandum and Order is to address an issue, raised by

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the parties, concerning the scope of discovery, For example, in " Georgia Power

- l Company's Response to Interrenor's Second Set of Interrogatories and Request for Documents," July 15,1993 (Applicant's Response) at 3, it is stated.

[Mjatterb not 7.pecifierJ1y pleaded are outside of the scope of this proceeding. Therefore, GICs respcmses to Intervenor's second set of interrogatones and requests for doeurnents are lirruted to addrer,stng those factual bases pleaded with reasonable specificity in the Petition i

and the Amended Pcittion.

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IlOARD DETERMINATION f

in this proceeding, we have admitted a contention. In doing so, we considered l

the factual bases proffered in support of that contention. Then we admitted the contention, in LEP-93-5, 37 NRC 96,110 (1993), as follows:

Ihc license to operate the Vogtle 13ectric Generatmg Plant, Units 1 and 2, should not bc nansferred to Southern Nuclear Operating Company, Inc., because it lacks the requisite tharacter, competence, and integnty, as wc!) as the necessary candor, truthfulness, and j

wilbngness to abide by regulatory requirements.

l The factual bases are the grounds for admitting a contention, which then k

govern the scope of the case 2 Technically, therefore, it is not correct that only the bases to the contention may be contested.

However, we have decided that it is appropriate to manage the discovery

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process by dividir.g it into two phases,10 C.F.R. 5 2,718(e). We believe that i

8 See Appheant's Response at 3 n 2 and "NRC Staff Response to Intervernor's First Set of Interrogatories and Request for Docunems to Staff of de U.S 1%kar Regulatory Comtrdssion," July 2,1993, at 2.

2Under 10 CFR. I 2.714(b)(2)G) and hi) prowde for a bnef explananon of de bases of a contention and require I

inclusion in tir " bars" of the facts and opimon on which petinoner intends to rely There is nottung in the apphcable regulanons that atyars to restrict an intervemn from changing his intention or from discovenng new facts that would enlarFe the haws for his contenuon. Commonwralth Lfunn Ca (Zinn Station, Unita 1 and 2),

A1.AB-185,7 Ar.C 240 (1974) (diwovery la perminibk unless what is sought can have no possible bearing on the issues), racific Gas and Derrrir Ca (Stanislaus % clear Project, Umt 1), LBP 78-20,7 NRC 1038,1040 (1978)

(assconry directed solely at the amount of rehef in an anutrust caw is permissible), Merrgmhran Lliwa Ca (three Mdc Island Nuclear Station, Unit 1), CLI 794,10 NRC 141.147-48 (1979)(a Licensing Board nmy hmit de extent or control the sequence of discovery to prevent undue delay or imposinon of an undue burden on any

. l party) Set Traas Utilines Generating Co. (Comancte Peak Steam Liectnc Station. Units 1 and 2), LBP41-25.

14 NRC 241,243 (1980,Wadunpron Pubhc rom Supply System (WPPSS Nuclear Project Nn. 2), ALAB-722, 7

17 NRC 546,551 n.5 (1983). Compare ruNac Sente Ca of New 11ampaire (scabrook Station. Umts 1 and 2),

ALAB.890,28 NRC 93. 97 & n 11 (1988)(note that in this case the praning of the comention is perfectly clear i

without referen to tie bases)

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i this phased discovery process is fair and efficient. Under this concept, the Phase I discovery and hearing are restricted to matters related to the bases for the admitted contention.

3 At the end of the Phase I hearing, three alternative results seem possible: (1) the applicant would refute the bases of the contention, requiring that the bases and the contention on which they rest should be dismissed (2) the applicant l

would fail to refute the bases of the contentions, thus establishing the truth of 1

those bases, and relief would be granted without further hearing, or (3) more evidence would be needed for the Board to have an adequate record on which to decide, and a subsequent phase of discovery and hearing would be necessary.

We continue to urge the parties to resolve discovery disputes through nego-tiation. In light of this Memorandum and Order, we expect the negotiations to j

be successful.

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11. ORDER i

For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 21st day of July 1993. ORDERED that:

The scope of discovery shall be limited, at this time, to the bases for the admitted contention or to the defenses of a party. It is not ground for

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objection that the information sought will be inadmissible at the hearing if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. See 10 C.F.R 6 2.740.

The parties shall report to the Board by August 9,1993, concerning

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any remaining outstanding discovery questions that are not resolved through negotiation.

THE Nf0MIC SAFETY AND LICENSING BOARD' James II. Carpenter l

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ADMINISTRATIVE JUDGE i

Peter B. Bloch, Chair ADMINISTRATIVE JUDGE Bethesda, Maryland j

3 Judge Thoitias Murphy did mot parncipate in this decision.

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i Cite as 38 NRC 23 (1993)

LBP-93-16 i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

I Ivan W. Smith, Chairman Dr. Richard F. Cole Dr. Peter S. Lam In the Matter of Doeket No. 50-271-OLA-5 (ASLBP No. 92-665-02-OLA-5)

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(FOL No. DPR-28) j i

VERMONT YANKEE NUCLEAR POWER 1

CORPORATION (Vermont Yankee Nuetear Power Station)

July 28,1993 i

l

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MEMORANDUM (Termination of Proceeding)

'Ihe purpose of this Memorandum is to note for the adjudicatory record the termination of this license amendment proceeding, Confusion has arisen concerning the status of this unusual proceeding which, according to the adjudicatory record, incorrectly seemed to have been opened but never closed.

On January 21, 1992, the Commission published in the Federal Register a " Notice of Consideration of Amendment to Facility Operating License.

and Opportunity for Hearing" with respect to diesel generators at the Vermont Yankee Nuclear Power Station. 58 Fed. Reg. 5427-35.

Pursuant to the Notice, on February 22,1993, petitions for leave to intervene and requests for hearing were filed by New England Coalition on Nuclear 23 s

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i Pollution and the ' Massachusetts Attorney General. _ The Secretary of the

' Commission routinely referred the petitions to the Chief Judge of the. Atomic Safety and Licensing Board Panel in accordance with 10 C.F.R. 6 2.772(j). The proceeding was docketed as an adjudicatory matter and, on March 5,1993, the

- Chief Judge established this Atomic Safety and Licensing Board t 3 rule on the

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petitions and to preside over any conse.quent hearing.

Before the Licensing Board could rule on the intervention petitions, Vermont Yankee Nuclear Power Corporation, on March 9,1993, withdrew the applica-tien.' Since no party had been admitted to the proceeding, the Licensing Board had not issued a Notice of Hearing as provided in 10 C.F.R. Q 2.105(e)(2).

Therefore, the Commission, not the Licensing Board, had jurisdiction over the withdrawal of the application. See 10 C.F.R. 6 2.107(a). The NRC Staff, act-

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ing for the Commission, approved the withdrawal on March 25,1993, thus terminating the proceeding.2 FOR THE ATOMIC SAFETY AND LICENSING BOARD l

Ivan W. Smith, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland July 28,1993 l

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~I leuer, Donald A Reid. Vice Prefodent, operanam. Vernamt Yankce Power Correration. to U.S Nuclear i

Regulatory C<munission, March 9.1993 Itener frun Daniel 11 Dorman. USNRC to Donald A. Reid. Yertrumi Yankee Nucity Power Corporation..

l March 25.19M, with attached rmtice of m%drawal.

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