ML20058L394
| ML20058L394 | |
| Person / Time | |
|---|---|
| Issue date: | 11/30/1993 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V38-N03, NUREG-750, NUREG-750-V38-N3, NUDOCS 9312160311 | |
| Download: ML20058L394 (98) | |
Text
...
.w;.w.. u.+:n=., =. w -
i.-
a
==
... r e
1 NUREG-0750 Vol. 38, No. 3 I9 n.
Pages81-168 i
d t
g I
C
..NUCLEAREREGULATORY
.Si.
COMMISSION?lSSOANCES
.a
- >1 L.m i
,i
..T
.g l
Septembern1993-l
-- _7.]
6 4
q
.e-:,
q J f:.>'. '1 n
ly h"..
-?-
4 g.,.d,, *,*.;*,
- j aT
..u I
a a,,
n.
',""m'*,
- ) &. %
.[,
r
.z--.m.,,,o,.a.,
\\
- n.
y[
'.?
)
h(
]ppy,..; ]* $
7 g.g l
Fbe L. (J
- a.
4
. 106 c.o
- en.+hTMishkWidEt
- ~ 'Ns== =
g n
x 1
g,
- N.s j,4 l:.
U u n'. ~ ^ f T.A==
z y
_.-. r,.' WC::Cr.f.:
,. 4; w
^
(
Yh
6>Y
.Je gh<
k:'IiAN-
.~mre-. :.g '
3{fj g
- N S,
W Wi
? h.. !.
~
y 2
j g---
~
.p : :::._
2:.3m.
- -).. ;; e rems *- m_ g ev.+= r - v J9 5!N
- ,.
3 N S-hjN
- g
\\@ '-' ;;:- '-f,
-N
" 5 *.
v b:'
^
?
i
+ 1'hM4n.f
^ I. b.$ %.:::
-' vw
-' f.: ih :[ '
C.[' [-l E ME4Mst5 y
I
..m. :
, - +
y.
m.gw - na
-. =
w:c.;=.wc:2,$.-
=
w s
.-.x
- y w:::<
.^>..:g.+,g x l
......:.-... ~
..c.-x,.:.
(.w ::- mk y.: :'
- !w +cis ed. =mh,E*W eisamens ke <
+
4
> ' ' ;h.g., c.we
- v. s.
'--*w,a-w a.' r -
j e
+.b.-
i x
4:ps. > ;
J
- D 1.1....
s 0 DMC ^,.... ' _
* ' < 1.
- 7.d '
' ; ~ *kT UNE AM'^M '
'. ?
' W:;>.n';,
GN;'.....:.yT t f ~ ' diW.Y a.**$
j m
EIksM&M: JM$- x
- ^ik rv -DNN aES$i+
EFJ N W ~" N:$2MiYix -...~. ?$TSN.[.
re: 2-s.
4 liSI[U he -
d-Mh.'. Late 2.'M&Sti:Ga i
Nm.miYe-i
[.
t
'iEt+>, N*C9:f... ~.....FE.WEs^.E:-i:gi;
..u
' ' ~
g:;J. : 3pg
- 3
- rJ? Jf.R M E.-..sr.d.^s %!: M c!9};;5 $4j?:
- I
- l k
a sp g::e:W ] f.f*:t V ;};rgfg}
W;
, g
,tir~g?'ty s
,yg
.;;f-v-v?
y g
y
?
y g.WT
- ~hgET-y i* *
- "I. -e
~"
3 g
g e ~..-,
g g g
- f. f. gQ,.
., --%W.4 "
4
.v car 5
n V,,.m*Kif
^.t. ~ -.
E
. u,.
.=. w m.,
73,b;..y
~ r :q- : 4s 4
4l M,,k A 6. +
no
- 3 '.' # %.,
1 1.
4 1
.4_
e 1
1-i 9312160311 931130 7
=
~T Z PDR NUREC i
'i..
0750 R PDRt
- .E.oe..-
I
.eu I
4 l
m...--.
..~.m-.~..
.~.- -
l
~*^5Y0$$$1:::..
'?
w - a,,,u,nn.-
~..
.._~.+.n.,~~.-~~~..,..
,._,.n..
.. ~. -
"*'4
..'"""**7"?.*,a Sf'O'"IOEi NN b#4 -IIE I' b #M 4
- ' T ^ '"
~
0 tj
-.=.w.-:
m 4
2 i
c
--,,.a
,---n.-
w..
-.-w,--.
Available from Superintentendent of Documents U.S. Government Printing Office Mail Stop SSOP Washington, D.C. 20402-9328 A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.
Single copies of this publication are available from National Technical Information Service Springfield, VA 22161 i
i I
Errors in this publication may be reported to the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 1
(301/492-8025)
i i
l NUREG-0750 1
Vol. 38, No. 3 Pages81-168 j
NUCLEAR REGULATORY COMMISSION ISSUANCES
\\
l September 1993
]
I i
This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).
a The summaries and headnotes preceding the opinions reported herein i
are not to be deemed a part of those opinions or have any independent j
legal significance.
4 i
5 i
U.S'. NUCLEAR REGULATORY COMMISSION i
j Prepared by the Division of Freedom of Information and Publications Services i
j Office of Administration U.S. Nuclear Regulato"ry Commission Washington, DC 20555-0001 (301/492-8925) 1
COMMISSIONERS Ivan Selin, Chairman Kenneth C. Rogers Fonest J. Remick E. Gail de Planque B. Paul Cotter, Jr., Chief Administrative Judge Atomic Safety and ucensing Board Panel
CONTENTS lssuances of the Nuclear Regulatory Commissien ADVANCED MEDICAL SYSTEMS, INC.
(One Factory Row, Geneva, Ohio 44041)
Docket 30-16055-CivP (Civil Penalty)
MEMORANDUM AND ORDER, CLI-93-22, September 30,1993.
98 CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.
(Perry Nuclear Power Plant, Unit 1)
Docket 50-440-OLA-3 i
MEMORANDUM AND ORDER, CL1-93-21, September 30,1993..
87 SACRAMENTO MUNICIPAL UTILITY DISTRICT (Rancho Seco Nuclear Generating Station)
Docket 50-312-DCOM (Decommissioning Plan)
MEMORANDUM AND ORDER, CL1-93-19, September 10,1993...
81 VERMONT YANKEE NUCLEAR POWER CORPORATION (Vermont Yankee Nuclear Power Station)
Docket 50-271-OLA-5 l
MEMORANDUM AND ORDER, CLI-93-20, September 16,1993... 83 l
b Issuances of the Atomic Safety and Licensing Boards BOSTON EDISON COMPANY (Pilgrim Nuclear Power Station)
Docket 50-293-OLA (ASLBP No. 93-678-03-OLA)
(Facility Operating License No. DPR-35)
MEMORANDUM AND ORDER, LBP-93-19, September 13,1993. 128 GEORGIA POWER COMPANY, et al.
(Vogtle Electric Generating Plant, Units I and 2)
Dockets 50-424-OLA-3,50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3) i (Re: License Amendment Transfe-r to Southern Nuclear)
MEMORANDUM AND ORDER, LBP-93-18, September 8,1993.. 121 i
lii 1
GEORGIA POWER COMPANY, et al.
(Vogtle Electric Generating Plant, Units 1 and 2)
Dockets 50-424-OLA-3,50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3)
(Re: License Amendment; Transfer to Southern Nuclear)
MEMORANDUM AND ORDER, LBP-93-21. September 24,1993. 143 ONCOLOGY SERVICES CORPORATION Docket 030-31765-EA (ASLBP No. 93-674-OtEA) (EA 93-006)
(Order Suspending Byproduct Material License No. 37-28540-01)
MEMORANDUM AND ORDER, LBP-93-20, September 21,1993. 130 Issuance of the Administrative Law Judge LLOYD P. ZERR Docket 93-01-PF (ASLBP No. 93-673-01-PF)
LULING ON DEFENDANTS MOTION TO DISMISS, 151 AL" 93-1, September 20,1993...
Issuance of Director's Decision CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.
l (Perry Nuclear Power Plant, Unit 1)
Docket 50-440 (License No. NPF-58)
SUPPLEMENTAL DIRECIOR'S DECISION UNDER 10 C.F.R. $ 2.206, DD-93-15, September 21,1993 159 l
l l
i iv v
l I
l l
i i
l i
i i
l
}
l L
Commission l
lSSuanCOS 1
l 1
i l
1 i
l i
I I
l l
i
=
l i
l ew E
l i
i Cite as 38 NRC 81 (1993)
. CLI-93-19 i
uni 1ED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Ivan Selin, Chairman l
Kenneth C. Rogers Forrest J. Remiek j
E. Gail de Planque i
in the Matter of Docket No. 50-312-DCOM j
(Decommissioning Plan)
SACRAMENTO MUNICIPAL UTILITY t
DISTRICT (Rancho Seco Nuclear Generating r
Station)
September 10,1993 i
The Commission provides guidance to the Atomic Safety and Licensing l
Board on one aspect of Environmental and Resources Conservation Organiza-tion's (ECO's) environmental contention which the Commission admitted in its decision, CLI-93-3,37 NRC 135 (1993).
l i
MEMORANDUM AND ORDER l
I In an August 31,1993 Notice of Prehearing Conference, the Atomic Safety i
and Licensing Board directed the panies to address, among other issues.
l "whether or not the Commission's orders in CLI-93-3 and CLI-93-12 admitted, without qualification, a contention on loss of offsite power (LOOP)." Id. at 2.
We did not intend for the parties to revisit this matter. Nevertheless, there is obviously some confusion regarding the effect of the Commission's decisions in CLI-93-3,37 NRC 135,146, and CLI-93-12,37 NRC 355,359-60 (1993).
Therefore, we provide the following guidance to the Licensing Board which should obviate any funher need for clarification.
1 81 I
I i
w 1
I l
l
.. _,... ~.
,.m._.
)
In CLI-93-3, we admitted one aspect of Emironmental and Resources Con-servation Organization's (ECO's) environmental contention - that there is no reference to a particularized study to allow independent verification of Sacra-mento Municipal Utility District's (SMUD's) conclusion in its Environmental Report that the probability of a II)OP is less than once in 20 years. 37 hTC at 146. His portion of the environmental contention has been admitted without qualification. To the extent that a party believes no genuine issue remains re-garding this contention, that pany may seek summary disposition in accordance with 10 C.F.R. 5 2.749.
Pursuant to the Commission's direction in CLI-93-3, SMUD provided ECO l
a detailed analysis regarding how the probability of the LOOP was calculated.
Because this was the first time that ECO was provided access to this information ECO was permitted to amend its contention based on this analysis. His particular amendment, based on the newly provided analysis, is not subject to the late-filed criteria contained in 10 C.F.R. 6 2.714(a). -However, any such amendment must meet the criteria for admissibility in 10 C.F.R. 62.714(b) and (d).
To the extent that ECO's amended contention may raise new issues that were not dependent on the newly provided analysis of the probability of a LOOP, these new issues are subject to the late-filed criteria in 10 C.F.R. 6 2.714(a)(i)-
(v). In addition, they are subject to the admissibility standards for contentions in section 2.714(b) and (d). See CLI-93-12,37 NRC at 360 n.8.
If the Licensing Board has any further questions regarding the effect of the Commission's holding in either CLI-93-3 or CL1-93-12, it should certify those questions to the Commission in accordance with 10 C.F.R. 6 2.718(i).
It is so ORDERED For the Commission i
SAMUEL J. CHILK l
Secretary of the Commission Dated at Rockville, Maryland, i
this 10th day of Saptember 1993.
F 82
?
?
1
m -._-.__.
e Cite as 38 NRC 83 (1993)
CLl-93-20 l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~
COMMISSIONERS:
I tvan Selin, Chairman Kenneth C. Rogers l
Forrest J. Remick e
E. Gail de Planque In the Matter of Docket No. 50-271-OLA-5 VERMONT YANKEE NUCLEAR l
POWEP CORPORATION (Vermont Yankee Nuclear Power Station)
September 16,1993 l
The Commission affirms the Licensing Board's ruling tint the Board lacked authority under 10 C.F.R.12.107(a) to address a notice of withdrawal that the Licensee had filed after a hearing request had been referred to the Atomic Safety '
and Licensing Board Panel but before the Licensing Board had issued a Notice of Hearing. 'Ihe Commission reverses the Licensing Board's related ruling that i
the NRC Staff's acceptance of the withdrawal had the effect of terminating the proceeding. In the interest of efficiency, the Commission dismisses the proceeding en its own authority, rather than remanding it to the Board.
i l
RULES OF PRACTICE: AUTHORITY TO ADDRESS APPLICATION j
WITHDRAWAL j
Under 10 C.F.R. 52.107(a), the Licensing Board assumes jurisdiction to address the withdrawal of an application in a license amendment proceeding only after the issuance of a Notice of Hearing as provided in 10 C.F.R. 6 2.105(e)(2).
j Prior to that issuance, the Commission (or NRC Staff, by delegation of authority) has exclusive jurisdiction to address such withdrawals.
. 1 83 5
P l
w e
+5
w--
p,,, -
7
-y ev que w + eg
---rW--MyP+--C+-f
-$-4
i RULES OF PRACTICE: TERMINATION OF PROCEEDING Re Commission's regulations do no' grant the NRC Staff the authority to terminate a license amendment proceeding after a hearing request has been referred to the Atomic Safety and Licensing Board Panel but before the presiding licensing board or officer has issued a Notice of Hearing. Nor has the Commission, through case law, accorded Staff such authority. Rather, it is the presiding board or officer that has jurisdiction to terminate proceedings under such circumstances.
MEMORANDUM AND ORDER On July 28,1993, the Licensing Board in the above-captioned proceeding issued a Memorandum, LDP-93-16, 38 NRC 23, in which it explained that this license amendment proceeding har' heen terminated on March 25, 1993.
According to the Board, the Nuclear Rr gulatory Commission ("NRC") Staff had approved the Licensee's withdrawal e the subject application,"thus terminating the proceeding" LBP-93-16, 38 FAC at 24. The Board also indicated that, becaux no Notice of Hearing had been issued by the date on which the Licensee had withdrawn its application, the Commission (or the Staff acting for the Commission) rather than the Board had jurisdiction to address that withdrawal.
Id.
De Board's stated purpose in issuing LDP-93-16 was to clear up any
" confusion" regarding whether the proceeding had ever been closed. Id. at
- 23. Although the Board do:s not identify the specific confusion with which it is concerned, we assume that the Board intended to refer to the fact that petitions to intervene were still outstanding at the time the NRC Staff approved the withdrawal of the application in this proceeding.
He Board was correct in concluding that it lacked jurisdiction to address the withdrawal. Under section 2.107(a) of our regulations,' the Board assumes such jurisdiction in a license amendment proceeding only after the issuance of a Notice of Hearing as provided in 10 C.F.R. 6 2.105(e)(2). Prior to the issuance l
l I This rule states:
The Comnussi<m may permit an applicant to withdraw an apphcition prmr to the issuance of a nonce of l
heanng on such serms and combtions as it may prescrite.
. wi hdrawal of an application after the t
l issuance of a notice of heanng shall be on such serms as the prr5 Ming oflicer may,resenbc.
10 CT.R. t 2.107(a)(emphasis added) 84 w-l
of that Notice, the Commission (or the NRC Staff, by delegation of authority)2 has exclusive jurisdiction to address withdrawals of applications.
However, the Board erred in concluding that the NRC Staff's approval of Vermont Yankee's withdrawal request had the effect of " terminating the proceeding." The Commission's regulations contain no provision grantir.g authority to the Staff to terminate a license amendment proceeding after a hearing request has been referred to the Atomic Safety and Licensing Board Panel but before the presiding licensing board or officer has issued a Notice of Hearing.S Nor has the Commission, through case law, accorded Staff such authority. Rather, it is the presiding board or officer that has jurisdiction to terminate proceedings under such circumstances. See Puerto Rico Electric Power Authority (North Coast Nuclear Plant, Unit 1), ALAB-605,12 NRC 153, 154 (1980) (adjudicatory tribunals have "the inherent authority... to dismiss those matters placed before them which have been mooted by supervening developments"). We therefore reverse the Board's conclusion that the NRC Staff's action itself had the effect of terminating this proceeding.
Ordinarily, we would remand the proceeding to the Licensing Board with instructions to issue an order terminating the proceeding. However, the instant case is so clearly moot that, in the interest of efficiency, we exercise our own authority and hereby take that action.
Finally, we take this opportunity to state that, whenever a future licensing board or presiding officer is faced with procedural circumstances similar to those in the instant case, it should issue an order indicating both that the Commission (or its Staff) has previously approved the withdrawal of an application and that the proceeding is being terminated, therefore, on grounds of mootness. Such an 2The Commuon has delegaico such authority to tie Director of the Office of Nuclear Reactor Regulation. Sec 9 Afanagement Divenins: United States Nuclear llegulatory Commnssion. *NRC organization and Functions ~
Chapter 9.27. 68 0123 031 and 0123.032. The Director is, in turn. authorized to redelegate this authority. Id.
6 0123.05.
3in this respect. the inenent of termination differs from the treatnem of widwirawal requests in section 1107(a).
85
order will avoid both the error in LBP-93-16 and the kind of confusion that the Board in this case properly sought to alleviate.
It is so ORDERED.
For the Commission
- SAMUEL J. CHILK Secretary of the Commission Dated at Rockville, Maryland, this 16th day of September 1993.
- conuninione$pianque.= nm preiera for the afhrmation of this Order;if she had tren pres nt she w e.
ould have ap;weved it.
86
_.~
-. ~. _.
.I
\\
Cite as 38 NRC 87 (1993)
- CLI"i3-21 UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
6 Ivan Selin, Chairman Kenneth C. Rogers
[
Forrest J. Remick l
E. Gail de Planque t
i In the Matter of Docket No. 50440-OLA-3 i
?
CLEVELAND ELECTRIC ILLUMINATING COMPANY, et af.
~l (Perry Nuclear Power Plant, Unit 1)
September 30,1993 j
1 l
.i The Commission consider = the appeal of a Licensing Board decision, LBP-l 92-4, 35 NRC 114 (1992, which denied, on the basis of lack of standing, j
i the appellants' petition for leave to intervene and for a hearing on s sequest by Cleveland Electric Illuminating Company to amend its operating license -
l for the Perry facility, Unit L The license amendment transfers the reactor l
vessel material surveillance withdrawal schedule from the Perry plant's technical l
specifications and transfers the schedule to the facility's updated safety analysis
{
report. On the ground that the appellants alleged sufficient injury for standing, the Commission grants the appeal, reverses the Licensing Board's order, and
{
remands the Petitioners' contention to the Board for an evaluation of the -
contention's admissibility.
i RULES OF PRACTICE: STANDING TO INTERVENE j
To determine whether a petitioner has established the requisite interest to l
intervene in a proceeding, the Commission has long applied contemporaneous judicial concepts of standing.
{
t I
l I
87
l l
RULES OF PRACTICE: STANDING TO INTERVENE j
To demonstrate standing, the petitioner must allege a concrete and particu-larized injury that is fairly traceable to the challenged action and is likely to j
be redressed by a favorable decision. The injury also must be to an interest arguably within the zone of interests protected by the governing statute. Injury may be actual or threatened.
i i
}
RULES OF PRACTICE: STANDING TO INTERVENE (INJURY IN FACT) i i
The loss of die rights to notice, opportunity for a hearing, and opportunity i
for judicial review constitutes a discrete mjury.
}
l RULES OF PRACTICE: STANDING TO INTERVENE (INJURY IN l
FACT)
Standing may be based upon the alleged loss of a procedural right, as long as the procedure at issue is designed to protect against a threatened concrete j
injury.
I i
RULES OF PRACTICE: STANDING TO LNTERVENE For construction permit and operating license proceedings, the Commission j
generally has recognized a presumption in favor of standing for those persons who have frequent contacts with the area near a nuclear power plant. In license l
d amendment proceedings, residence near a nuclear facility is sufficient to establish j
3 injury for standing if the proposed action involves an " obvious potential for j
offsite consequences." See Florida Power and Light Co. (St. Lucie Nuclear l
Power Plant, Units 1 and 2), CLI-89-21,30 NRC 325,329-30 (1989).
51EMORANDUM AND ORDER F
.J t
i I.
LNTRODUCTION i
he Ohio Citizens for Responsible Energy,Inc. (OCRE), and Susan L. Hiatt have appealed the Atomic Safety and Licensing Board's Memorandum and i
Order, LBP-92-4, 35 NRC 114 (1992), which denied their petition for leave to intervene and for a hearing on an amendment to the operating license for the i
Perry Nuclear Power Plant. He amendment deletes the reactor vessel material
(
I 88 4
2 w-1 1
n r rr-e,---
rn
surveillance program withdrawal schedule from the Perry plant's tecimical specifications and transfers the schedule to the facility's updated safety analysis report. Both the Nuclear Regulatory Commission (NRC) Staff and the Licensee oppose the appeal, on the ground that the Petitioners have failed to establish standing to intervene in this license amendment proceeding. Ibr the reasons stated in this Memorandum and Order, we grant the appeal and reverse the Licensing Board's denial of standing.
IL BACKGROUND i
On July 24,1991, the NRC Staff published in the Federal Register a notice of opportunity for hearing on a proposed amendment to the Petty Nuclear Power Plant operating license. 56 Fed. Reg. 33,961 (July 24,1991). Under the amendment, the schedule for the withdrawal of reactor vessel material specimens is moved from the Perry technical specifications to the facility's updated safety analysis report (USAR). The Licensee, Cleveland Electric Illuminating Company, had supplemented a pending license application on March 15,1991, to seek this transfer of the withdrawal schedule to the USAR. In the notice, the Staff indicated its determination that the amendment involved no signifhat hazards considerations. The Staffissued the amendment on December 18,1992.
58 Fed. Reg. 5438 (Jan. 21,1993).
The proposed amendment came in response to the Staff's issuance of Generic Letter 91-01,' which noted that the Commission's regulations under 10 C.F.R. Part 50, Appendix H, 61LB.3, aheady mandate prior NRC approval of any changes to the withdrawal schedule. 'Ihe Staff found that the removal of the schedule from the technical specifications "will not result in any loss of regula-tory control because changes to this schedule are controlled by the requirements of Appendix H to 10 C.F.R. Part 50.2 Consequently, the Staff guidance let-ter concluded that it was redundant for the agency to retain regulatory control over the withdrawal schedule through the license amendment process. In accor-dance with an agency effort to improve the technical specifications by pruning unessential or duplicative provisions,$ the Staff encouraged licensees to propose the removal of the withdrawal schedule from their technical specifications.
OCRE and Ms. Hiatt filed their petition for leave to intervene and for hearing on the withdrawal schedule portion of the operating license amendment on I Genede titta 8101. " Removal of the sdrdule for the Withdrawal of Reactor Vessel Material specimens from Technical specihcations" Oms. 4.1991).
2 Enclosure to Genenc Istier 9341 at 2.
3 Sec Proposed Pohey statenem on Te:hracal speca6caions improvenents for Nuclear Power Reactors,52 Fed.
Reg. 3788 (Feb. 6.1987); Final Policy stmenent on Tedmical specifications Ingrovenema for Nuclear Power Reactors. 58 Fed Reg. 39.132 Ouly 22,1993).
4 89 w-
August 23,1991. De petition was referred to an Atomic Safety and Licensing Board established to rule on such petitions and to preside over the proceeding l
if a hearing was ordered. On the ground that the Petitioners lacked standing to intervene, both the Staff and the Licensee opposed the intervention.' In an unpublished order dated October 28,1991, the Licensing Board established a schedule for the Petitioners to amend their petition to address the arguments of the Licensee and Staff, and to explain why severai standing cases cited by the Board were not persuasive in the circumstances. The Petitioners filed their amended petition on November 22,1991, followed by replies by the Staff and the Licensee.5 In the petition, OCRE described itself as a private, nonprofit corporation under the laws of Ohio, dedicated to research and advocacy on issues of nuclear reactor safety, with the goal of promoting the highest safety standards. Some of OCRE's members reside within 15 miles of the Perry facility. Ms. Hiatt attached an affidavit to the petition stating that she is a member and officer of OCRE who resides and owns property approximately 13 miles from the Perry plant. She further stated that she authorized OCRE to represent her interests in the proceeding, and that OCRE had empowered her, as an officer of the organization, to represent OCRE before the agency. Petition for Leave to Intervene and Request for Hearing at 2-4 (Aug. 23,1991) [ hereinafter Petition).
He Petitioners claimed an interest "in the preservation of their lives, their physical health, their livelihoods, the value of their property, a safe and heahhy environment, and the cultural, historical, and economic resources of Northeast Ohio." Petition at 4. ney also asserted an interest in preserving their legal right to participate meaningfully in those Perry plant issues that could affect their health and safety or other listed concerns. See id. De petition challenged only the portion of the proposed license amendment that would remove the material specimen withdrawal schedule from the technical specifications. De i
Petitioners agreed with the Staff and the Licensee that the challenged portion of the amendment was purely an administrative niatter that involved no significant hazards consideration. Petition at 4-5.
In their challenge to the proposed amendment OCRE and Ms. Hiatt raised only one issue oflaw - that the amendment violates section 189a of the Atomic Energy Act (AEA),42 U.S.C. 9 2239(a). The Petitioners contended that the specimen withdrawal schedule traditionally has been included in the technical specifications and, therefore, could not be changed without notice in the Federal 4thensce's Answer to Otuo Ourens for Responsible Energy. Inc. and susan L liiatt Petioon for teave to Intervene and Request for ficanng (sept 6.1991L NRC staff Answer to Petiuon for leave to Intervene Filed by otuo Onzens for Responsible Energy and susan L Ihatt (Sept 12.1991).
l 81icenwe's Responw to otuo Ourens fur Responsible Energy. Inc. and susan L llisit Arnended ittitmn for teave to Intenene (Dec. 17. 1991);NRC staff Responw to oCRE's Arnended ittition (Dec. 17. 1991).
90 v
m..
I Regisfer and an opportunity for a hearing in accordance with section 189a.5 He Petitioners argued that the removal of the withdrawal schedule from the technical specifications would violate the AEA by depriving the public of the right to notice and an opportunity for a hearing on any future changes to the schedule.
If the license were amended, the public's only means to participate in future schedule changes would be through a request for action under 10 C.F.R. 9 2.206.
Because the agency would still need to approve any changes to the withdrawal schedule, the Petitioners argued that any future NRC approvals of proposed changes to the withdrawal schedule would be " defacto" license amendments that would be issued without notice, opportunity for a hearing, and opportunity for judicial review. Petition at 4-8. He Petitioners concluded that they would suffer irreparable injury from the loss of their procedural rights, and that this injury would be traceable to the challenged action, for if the proposed amendment were granted without affording them the opportunity to challenge its legality, the Petitioners' rights under section 2.206 to challenge any future changes to the 1
withdrawal schedule would be " woefully itadequate." Petitioners' Amended Petition for Leave to Intervene at 4-5 (Nov. 22,1991) [ hereinafter Amended Petition}.
On March 19,1992, the Licensing Board denied OCRE and Ms. Hiatt's peti-tion to intervene. The Board ruled that OCRE and Ms. Hiatt had failed to allege sufficient interest in the proceeding, as required by 10 C.F.R. 9 2.714(a)(1), and therefore had not established injury in fact for standmg.7 More specifically, the Board found that the Petitioners
- asserted interests were generalized and con-t jectural, and did not constitute concrete, palpable injury. LBP-92-4, 35 NRC e
at 122. De fact that Ms. Hiatt and certain OCRE members reside within 15 miles of the Perry plant was by itself inadequate for standing. De Board con-cluded that there was no connection or causal nexus established between the professed interests and the proposed amendment, because the amendment was an administrative change that would merely remove the withdrawal schedule j
from the technical specifications and transfer it to the updated safety analysis report. Id. The Board noted that the Petitioners had concurred with the Licensee and Staff t' the amendment was a purely administrative matter that involved no significant hazards consideration.
Lastly, the Board found that the Petitioners' asserted procedural injury from the alleged loss of rights under section 189a did not confer standing. LBP-92-4, 35 NRC at 123-24. Any such injury was deemed to be speculative in view of the 6Technical specifications are acluded in each license for a produccon or utilization facihty.10 Cf.R. 6 50.36(b).
tacenwes rnay seek changes to technical specifications thrnugh an anendrnent apphcation.10 CLR. I 50.90-r
' The Board noted its divergence from tir reasonmg and ruhng of an carher lacensing Board decnion involving tic Perry facihry which found that oCRE had standing to intervene in a sinular bcense aneminent proceeding.
LHP.92-4. 35 NRC at 125-26 (refemng to IliP-90L15,31 NRC 501. reconnd denied, LBP.90'25,32 NRC 21 fl9900 l
91 t
f 9
l i
i uncertainty over whether changes will ever be made to the withdrawal schedule.
l The Board reasoned that the Petitioners have no guaranteed right to participate in NRC proceedings and, thus, their claim of legal injury was footed on an erroneous premise. LDP-92-4,35 NRC at 123. Moreover, the Board stated that to confer standing a legal injury must be linked to a substantive underlying injury that would result from the instant amendment and that otherwise would confer standing. LBP-92-4,35 NRC at 124-25. 'Ihe Board found no such concrete m' jury.
OCRE and Ms. Hiatt filed a timely notice of appeal and appellate brief with the Commission in accordance with 10 C.F.R. 52.714a. On appeal, the Petitioners challenge the Licensing Board's denial of standing. They argue that their concurrence with the Staff's determination of "no significant hazards" does not obviate their claim of injury. As particularly relevent to our consideration of their appeal, they stress that procedural injuries can confer standing, and that they confront the loss of significant procedural rights under section 189a.
III. TIIE PETITIONER'S STANDING i
i Under section 189a of the Atomic Energy Act, the Commission must grant a hearing upon the request of any person "whose interest may be affected by the proceeding." 42 U.S.C. % 2239(a). Accordingly, NRC regulations provide that a petition to intervene and for a hearing "shall set forth with particularity the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, including the reasons why petitioner should be permitted to intervene." 10 C.F.R. 6 2.714(a)(2). To determine whether a petitioner has established the requisite " interest" to intervene, the Commission has long applied contemporaneous judicial concepts of standing.
See Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92-2,35 NRC 47,56 (1992), ag'd. Environmental & Resources Consenution Organir.arion v. NRC, No. 92-70202 (9th Cir. June 30, 1992);
Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI 25,18 NRC 327,332 (1983).
To demonstrate standing, the petitioner must allege a concrete and particu-larized injury that is fairly traceable to the challenged action and is likely to be redressed by a favorable decision. See generally Lujan v. Defenders of Wildlife, 112 S. Ct. 2130, 2136 (1992); Dellums v. NRC, 863 F.2d 968,971 (D.C. Cir.
1988); Public Service Co. of New Hampshire (Seabrook Station, Unit 1), CLI-91-14,34 NRC 261,266-67 (1991). This injury must be to an interest arguably within the zone of interests protected by the governing statute. Three Mile Island,18 NRC at 332. Injury may be " actual or threatened." Wilderness Soci-ety v. Griles. 824 F.2d 4,11 (D.C. Cir.1987) (quoting Valley Forge Christian I
i 92 i
j l
l
Callege v. Americans Unitedfor Separation of Church and State, Inc., 454 U.S.
4M,472 (1982)).
In addressing Ms. Hiatt's' asserted interests in the proceeding, the Licensing Board found that:
Generalized interests of the kind asserted by the petitioner do not comprise an injury that is distinct and palpable or panicular and concrete. Rather, the petitioner's assened interests are abstract and conjectural grievances that fall far 1.hort of the kind of seal or threatened harm essential to establish an injury in fact.
LBP-92-4,35 NRC at 122 (footnote omitted). De Board also concluded that Ms. Hiatt's grievances lack a causal nexus to the proposed amendment. We disagree.
He Petitioners have satisfied threshold standing requirements. OCRE and Ms. Hiatt allege a particularized injury that is fairly traceable to the challenged amendment and likely to be redressed by a favorable decision, ne loss of the rights to notice, opportunity for a hearing, and opportunity for judicial review, constitutes a discrete and palpable - not hypothetical - injury. His alleged procedural injury is linked to this amendment. With the license amendment in effect, future changes to the withdrawal schedule no longer require notice and 5
an opportunity for a hearing under section 189a. After the amendment, the only opportunity to challenge changes to the withdrawal schedule is through a petition j
under 10 C.F.R. 5 2.206, which the Petitioners maintain is inadequate because no opportunity exists under section 2.206 to present evidence, cross-examine witnesses, or to appellate review of the final decisien. Petition at 7-8.
We note that the issues raised in this case are similar to those raised previ-ously by OCRE in Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Unit 1), LBP-90-25, 32 NRC 21 (1990), in which OCRE challenged a proposal to delete cycle-specific parameter limits from the Perry plant technical specifications. As in this case, OCRE alleged the amendment would unlaw-fully deprive the petitioner of hearing rights under section 189a of the AEA.
He Licensing Board in LBP-90-25 found that OCRE had alleged a " direct and immediate injury," and noted that the loss of hearing rights, instead of spec-ulative, was "one of the intended results of the license amendment" and that
"[i]f OCRE does not assert it as a basis for standing now, but rather permits the license amendment to go into effect, there will be no future opportunity to raise the issue before the Commission." Id. at 24 (footnote omitted). Similarly, we reject the Licensing Board's claim here in LDP-92-4 that the alleged procedural 8Since toth oCRE and Ms. Ilian alleged the sane interess, and oCRE's standing as the representative ofits nemt cra is dependent upon that of Ms. Hiatt. the Liccasing Board addressed only Ms. Ilian's clairned interests.
Because ML thatt's claims mere found insuff ciens for standing. oCRE's clairns likewise failed. LnP-92-4. 35 NTC at 121.
i i
93 f
9 f
v.
.-m m..
i i
injury is speculative. The Board reasons that "[blefore the alleged harm can oc-cur, a number of uncertain and unlikely events must take place, including most obviously, a change in the withdrawal schedule." 35 NRC at 123. Ahhough future changes to the withdrawal schedule are by no means certain, the likeli-hood of changes cannot be discounted, particularly when a goal of the license amendment is to simplify the required procedural steps for such changes.
OCRE and Ms. Hiatt allege that they are entitled to the rights accorded inter-ested petitioners under section 189a because future changes to the withdrawal schedule would in fact be de facio license amendments, and "[t]he only real effect of this amendment is that the public is excluded from the process." "Ihe fact that the NRC will continue under Appendix H to require prior Staff ap-proval of any se'iedule changes - and to otherwise exercise the same degree of control over the Licensee - is indicative of the significance of the withdrawal schedule, changes to which should be deemed license amendments under section 189a, whether labeled as such or not, argue the Petitioners. Petition at 8. In sum, OCRE and Ms. Hiatt allege the loss of the ability under section 189a to meaningfully participate in proposed future changes to the withdrawal schedule.
Standing may be based upon the alleged loss of a procedural right "so long as the procedures in question are designed to protect some threatened concrete interest" that is the ultimate basis of the individual's standing.' Although the Licensing Board correctly stated that to confer standing a procedural injury must be linked to a concrete injury, the Board's compartmentalized reading of the Petitioners' pleadings led it to conclude that the alleged procedural injury is unconnected to any substantive harm. LBP-92-4,35 NRC at 124. However, a fair reading of the Petitioners' claims indicates that, at bottom, OCRE and Ms. Hiatt fear that if they are deprived of the opportunity to challenge future proposals to alter the withdrawal schedule, the surveillance of die Perry reactor vessel may become lax and prevent detection of a weakened reactor vessel, and ultimately result in an accidental release of radioactive fission products into the environment if the vessel should fail. As the Petitioners outlined in their appeal:
[A]lthough this particular amendnent presents no significant hazards in and of itself, future changes to the reactor vessel specimen withdrawal scledule are of such safety significance as to require 14RC staff review and approval. The potential for offsite consequences exists if clumges to this scledule are such that tie snaterial specinens are not withdrawn frequetdly enough to assure that the reactor vessel has not become dangerously embrittled. What
'Imjan,112 S. CL at 2143 a 8. Scr aho id. at 2142 n 7 ("one hvmg adjacent to tie site for proposed construction of a federally hansed dam has standing to challenge the limnsing agency's failure to prepare an tavironmental Impact statenent"). M6rry v. Serrerary of the Treasury, 853 F.2d 961. 985 (DC Car 198R)("[hlaving teen given a procedural ryht by Congress to help protect these interests. appellants must have standing to challenge an alleged depnvauon of tir nght"). Indeed. procedural rights are 4pecial." and the ' person wtm has bren accorded a procedural right to pmtect his concrete interests can assert that ri ht without meeung all the normal standards F
for redressabihty and immediacy" lajan, i12 s. Ct. at 2142 n.7.
94 l
w-t f
l l
i l
1 petitioners seek to preserve in this proceeding is the right to participate in a matter which l
the NRC's regulations have made material and which does have safety significance.
1 Petitioners' Appellate Brief at 10 (Apr. 2,1992).
Although the Petitioners' claims on appeal provide a more cogent specifica-l tion of their ultimate concerns, namely by depicting the reactor vessel embrittle-ment scenario, their pleadings before the Licensing Board sufficiently presented a link between the loss of procedural opportunities under section 189a and their asserted health and safety interests. Rr example, in their Amended Petition, OCRE and Ms. Hiatt refer to the removal of " safety-significant" material from the operating license. Amended Petition at 8. They express an interest in the " safe operation" of the Perry plant, given their residence near the facility.
Amended Petition at 7. Clearly, they seek to vindicate the loss of an alleged procedural right that relates to a potential substantive injury - radiological harm to them as residents in the plant's vicinity 'o The Petitioners' radiological safety concerns unquestionably fall within the zone of interests regulated and protected by the Atomic Energy Act.
The Petitioners' fear of reactor vessel embrittlement and its potential con-sequences certainly would be insufficient for standing if they had little contact with the geographic area that could be affected by a release of radiation. Here i
no one contests that Ms. Hiatt, herself a member of OCRE, lives within 15 miles of the Perry plant. Rr construction permit and operating license proceedings, the Commission generally has recognized a presumption in favor of standing for those persons who have frequent contacts with the area near a nuclear power plant. See Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-522,9 NRC 54,56 (1979). In license amendment proceedings, residence near a nuclear facility is sufficient to establirS irgury for standing if the proposed action involves an " obvious potential for offrite consequences."
See Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329-30 (1989) ("St. Lucie").
Here, the Petitioners have claimed that the material specimen wi'hdrawal schedule is safety-related. Amended Petition at 8. Unlike in St. Lucie, which involved a change in the use of respirators by plant workers, without a potential risk to the general public, the instant amendment directly involves surveillance of the reactor vessel's integrity. The surveillance schedule exists to ensure that the structural integrity of the reactor vessel is monitored as one measure to guard against its brittle fracture. At this stage in deciding threshold standing, we cannot conclude that no potential for offsite consequences is posed by the F
IUln finding that the Petsuonen suffierndy have rained an injury for standing. we did not accept tirir clained interests in presemng the
- cultural. tustarical, and econonne resources" of nonheastern Ohio. standmg requires 6
rnare than ;,eneral interests in a geographic area. $cc Swrra CW> v. Mamm, 405 U.s. 727, 7%35 (1972).
Walerness Sorwry. 824 r.2d at ts 95 r
9 1
l i
i
l i
i I
loss of notice and oppottunity for a hearing to challenge future changes to tb, withdrawal schedule. He material condition of the plant's reactor vessel i
obviously bears on the health and safety of those members of the public who l
reside in the plant's vicinity.
3 IV. TIIE PETITIONERS' CONTENTION Although we have found that OCRE and Ms. Hiatt have standing, Petitioners must also proffer at least one admissible contention to be admitted as a party.10 C.F.R. 6 2.714(b). The Petitioners submitted only one contention, which reads as follows:
The Licensee's proposed amendment to remove the reactor vessel material specimen with-drawal schedule from the plant Technical Specifications to the Updated Safety Analysis Report violates Section 189a of the Atomic Energy Act (42 U.S.C 2239a) in that it deprives members of the public of the right to notice and opportunity for hearing on any changes to the withdrawal schedule.
Petition at 5.
He Petitioners aver that their contention raises only a question of law, and, as such, is capable of resolution on the basis of briefs or oral argument, pursuant to 10 C.F.R. 6 2.714(c). Petition at 5. An acceptable contention may raise only a pure issue of law. See 10 C.F.R. 9 2.714(b)(2) and (e). Because the Licensing Board concluded that the Petitioners lacked standing, the Board never addressed the adequacy of the Petitioners' contention. We therefore remand the contention to the Board.
Our decision does not signify any opinion on the admissibility or the merits of the Petitioners
- contention. Although we have found that the Petitioners
- claim of injury is sufficient to crtablish threshold standing, we do not hold that the amendment is therefore unlawful. We only hold that the Petitioners should have an opportunity to raise and have resolved, subject to our rules of practice on the admission and litigation of contentions, whether the removal of the withdrawal schedule from the technical specifications is indeed an unlawful act.
V.
CONCLUSION AND ORDER Ibr the reasons stated in this decision, the appeal of petitioner OCRE and petitioner Hiatt is granted and the Licensing Board's order in LBP-92-4 is i
reversed. We remand the Petitioners' contention to the Licensing Board for further proceedings consistent with our decision.
96 i
Y 1
I
It is so ORDERED.
For the Commission" SAMUEL J. CHILK Secretary of the Commission Dated at Rockville, Maryland, this 30th day of September 1993.
i l
I i
" The Oairman was na prewnt for de afbrnation of this Order;if he had been Femm, he wnuld have apprmed it.
97
Cite as 38 NRC 98 (1993)
CU-93-22 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Ivan Selin, Chairman Kenneth C. Rogers Forrest J. Remick E. Gail de Planque in the Matter of Docket No. 30-16055-CivP (Civil Penalty)
ADVANCED MEDICAL SYSTEMS, INC.
(One Factory Row, Geneva, Ohio 44041)
September 30,1993
'Ihe Commission affirms in part the Atomic Safety and Licensing Board's decision, LBP-91-9,33 NRC 212 (1991), in which the Licensing Board granted the Nuclear Regulatory Commission Staff's motion for summary disposition in a proceeding to impose a $6250 civil penalty on the Licensee, Advanced Medical Systems, Inc. The Commission reverses the Licensing Board's disposition of one violation and remands to the Board for further proceedings all issues related to that violation.
RULES OF PRACTICE:
SUMMARY
DISPOSITION The party seeking summary judgment bears the burden of showing the absence of a genuine issue as to any material fact and the evidence must be viewed in the light most favorable to the party opposing summary disposition.
RULES OF PRACTICE:
SUMMARY
DISPOSITION To preclude summary disposition, when the proponent has met its burden, the party opposing the motion may not rest upon mere allegations or denials, but must set forth specific facts showing that there is a genuine issue. Bare assertions or general denials are not sufficient.
98 e
o RULES OF PRACTICE:
SUMMARY
DISPOSITION The opposing party must controvert any material fact properly set out in the
. f statement of material facts that accompanies a summary disposition motion or that fact will be deemed admitted.
RULES OF PRACTICE:
SUMMARY
DISPOSITION When the movant has satisfied its initial burden and has supponed its motion by affidavit, the opposing party must either proffer rebuttal evidence or submit -
an affidavit explaining why it is impractical to do so. If the presiding officer determines from affidavits filed by the opposing party that the opposing pany cannot present by affidavit the facts essential to justify its opposition, the presiding officer may order a continuance to permit such affidavits to be obtained.
or may take other appropriate action.
?
TECHNICAL ISSUES DISCUSSED: RADIATION DOSE i
STANDARDS l
A licensee is excused from complying with the maximum permissible dose I
standards set out in 10 C.F.R. 6 20.101(a), only if the licensee can satisfy the conditions set forth in section 20.201(b).
,i i
RULES OF PRACTICE:
SUMMARY
DISPOSITION Prior NRC inspection reports that conclude that at the time of an inspection there were no regulatory violations found do not in themselves raise a genuine
~
issue of material fact. The failure by the NRC to detect a violation does not necessarily prove the negative that no violation existed. The NRC inspectors are not omniscient, and limited NRC resources preclude careful review of all but a fraction of the licensed activity.
TECHNICAL ISSUES DISCUSSED: RADIATION SURVEYS When determining what constitutes a survey,10 C.F.R. 620.201 requires consideration of more than quantitative measurements of radiation levels used to determine exposure. It also requires, where appropriate, consideration of i
physical surveys of the location of materials and equipment.
i l
e-l l
1 y
-y, w
r _....-
w er-.wy--
w.-.
m..
RULES OF PRACTICE:
SUMMARY
DISPOSITION j
An evidentiary hearing is necessary only if a genuine issue of material fact e
is in dispute.
MEMORANDUM AND ORDER AFFIRMING IN PART AND REVERSING IN PART ATOMIC SAFETY AND LICENSING BOARD'S ORDER, i
AND REMANDING ISSUES
'this case involves an appeal by Advanced Medical Systems, Inc. ("AMS"),
of a Memorandum and Order in which the Atomic Safety and Licensing Board
-l
(" Licensing Board" or " Board") granted the Nuclear Regulatory Commission
("NRC") Staff's Motion for Summary Disposition. LBP-91-9, 33 NRC 212 (1990). For the reasons stated herein, the Commission affirms LBP-91-9 in l
part, reverses the Licensing Board's summary disposition of one violation, and remands to the Board for further proceedings consistent with this order all issues i
related to that violation.
L BACKGROUND On June 28, 1985, Staff issued a Notice of Violation and Proposed Impo-sition of Civil Penalties after conducting an investigation regarding an AMS l
employee's apparent overexposure to radiation.8 'lhe Notice identified the fol-lowing four regulatory and license condition violations, all of which occurred l
in late 1984 and which together constituted a single Severity Level 111 violation l
2 l
under the Commission's Enfortement Policy:
i (1) An AMS employee (" Individual A") working in a restricted area received a whole body l
dose of 2,9 rems in the fourth calendar quarter of 1984. This dose exceeded the limit.
l established in 10 C.F.R. 6 20.101(a), for whole body dose of an individual in a restricted i
area. Lc.,1.25 rems per calendar quarter, except as provided t>y 10 C.P.R. 520.101(b).
Ahhough subsection (b) of that regulation provides for a imaximum allowable] whole dy dose of three rems per calendar quaner under certain conditions, those conditions were not j
present in this case.
1 3In response to or Notice to the Parues, issued by the Commission in this proceeding on July 24.1991, AMS otsected to any parucipation as an adjudicatory advisor by Mr. stephen G. Burns. currendy tte Director of the NRC's office of Comnssion Ar3=flate Adjudication, because Mr. Burns had provided concurrence in the June 28,1985 Nonce of Violation. In response to AMs' otgection. Mr. Barns has recuted hinself frorn allinvolvenent in advising tic Conmussion regarding the merits of tins cas:.
2 General starnent of Policy and Procedure ror NRC Enforcenent Actions 10 C.F.R. Part 2. A;ipenrhs C (19M) 100
(2) On November 6 and 21,19M, AMS conducted inadequate radiation surveys d its hot cell to calculate the future stay time of persennel in Oc hot cell. Consequently, the Licensee's method of surveying the hot cell violated 10 C.ER. { 20.201(b), which requires each licensee to "make or cause to be made such surveys as (I) may be necessary for the beensee to comply with the regulations in [10 C.F R. Part 201, and (2) are reasonable under the circumstances to evaluate the extent of radiation har.ards that may be present."
(3) On November 21, 1984, two AMS employees (Individuals A and B) failed to read their dosin eters at intervals consistent with the anticipated dose rate that tley would receive while working in the hot cell. This failure violated Condition 16 of the AMS license which requires AMS to use beensed materials in accordance with the statenents, representations and procedures contained in AMS' Tadiation Safety Proce(ures Manual. ISP-1", dated July 1983. Section 7.2.c ("Itrsonnel Monitoring") of ISP-1 states that "[u]ork in high dose areas will be preceded by a survey with appropriate monitoring equipment and an crimated total accumulated exposure determined.
. The pencil type dosimeters wG be r,i,d at intervals consistent with the anticipated dose rate to determine that the actual exposure is not greater than the anticipated exposure."3 (4) AMS failed to calibrate the dosimeters of Individuals A and B within 180 days prior to their entries into the hot ecll on Novenber 6 and 21,1984. This failure violated the AMS License Condition 16 which requires AMS to possess and use its licensed material in accordance with statements, representations, and procedures contained in AMS' application received July 16,1979. Schedule E of the referenced apphcation requires dosimeters to be calibrated using a cahbrated radiation source at intervals of IB0 days or less, or before first use if more than 180 days since last calibration."
Staff proposed to impose upon AMS a $6250 civil penalty, assessed equally among these four violations.
On May 30,1989, the NRC Staff issued an order imposing a $6250 civil penalty on AMS, for violations of both the Commission's regulations and AMS' license conditions.5 On June 20,1989, AMS requested a hearing to challenge the penalty and the findings of violation. On August 29,1990, Staff filed a motion for summary disposition. On October 4,1990, AMS filed a brief in opposition to Staff's motion for summary disposition. On Match 19, 1991, the Licensing Board issued LBP-91-9 granting Staff's motion. Specifically, the Board affirmed all of the Staff's findings of violation, sustained the amount of the civil penalty, and terminated the proceeding. On March 27,1991, AMS filed an appeal with the Commission, requesting reversal of LDP-91-9. Staff filed a brief responding to the appeal.
i 3 NRC Staff Monon for Summary Disposition and for Decision Susuuning Order (August 29,1990) De cinafter
" Staff Motion"), Attachnent 5," Order imposmg Ovil Monetary Penalues"(May30.1989), Appenia pTvalua-tmns and Conclusions"). at 3
- 1d at 4.
S See 54 Fed Reg 24A33 (June 7,1989).
101
1 l
11.
CO51511SSION STANDARDS FOR SU5151ARY DISPOSITION The Commission's standards for ruling on motions for summary disposition are set forth in 10 C.F.R. 6 2.749. That regulation specifies that summary disposition may be granted only if the filings in the proceeding, including statements of the parties and affidavits, demonstrate both that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law. In general, when considering motions for summary disposition under section 2.749, the Commission has used the same standards that the Federal courts apply to motions for summary judgment under Rule 56 of the Federal Rules of Civil Procedure
- Rule 56 is analogous to section 2.749.
Le party seeking summary judgment bears the burden of showing the absence of a genuine issue as to any material fact? In addition, the Board must view the record in the light most favorable to the party opposing such a motion?
Thus, if the proponent of the motion fails to make the requisite showing, the Board must deny the motion - even if the opposing party chooses not to respond or its response is inadequate? However, if the movant makes a proper showing for summary disposition, and if the party opposing the motion does not show that a genuine issue of material fact exists, the Board may summarily dispose of all arguments on the basis of pleadings."
To preclude summary disposition, when the proponent has met its burden, l
the party opposing the motion may not rest upon " mere allegations or denials,"
but must set forth specific facts showing that there is a genuine issue." Bare f
assertions or general denials are not sufficient.u Although the opposing party does not have to show that it would prevail on the issues, it must at least demonstrate that there is a genuine factual issue to be tried. 2 The opposing I
party must controvert any material fact properly set out in the statement of i
- Clewlandflectric l!!ummaring Ca (Perry Nuclear Power Plant, Units I and 2). ALAB-443. 6 NRC 741. 753 54
[
0977); Alufwma Powr Co. Ooseph M rarley Nuclear Plant, tinits I and 2), AL.AB-182.7 AEC 210. 217 0974).
7 AdicArs v. Krrss & Co.,398 U.S.144,157 0970); Perry. ALAB 443,6 NRC at 752-53.
- Sir roller v. Columba Broadcasting Systems. Inc-. 368 U.s. 464. 473 0962).
'rerrt 6 NRC at 753-54.
S i
hrrhrrn States Powr Co. (Prame tsland Nuclear Generanng Plant, Units 1 ar.d 2). CLI-73-12,6 AEC 241, 242 0 973),affd sub nom BPI v AEC,502 F.2d 424 (D C. Cir.1974),10 CF R. 6 2.749(d) i H 10 CTA 6 2.749(b)
U flousr<m lightsng and Per Ca (Allens Creek Nuclear Generaung station. Unit 1), ALAB-629,13 NRC 75, 78 0 981). Sir a!w Mrgmm Electric sad Power Cn. (North Anna Power stauon Umts I and 2), ALAB-584.11 j
NRC 451,455 0960) 0 5re rubhc Service Cu of New flamp.sArre (scabrook station, Units 1 and 2). Q.l-92-B,35 NRC 145,154 0992)
(to avoid sumnury dispouuon. intervenors have to pres,ent contrary evidence that is so sirmfacantly probative that it creates a matenal factual issx). See alw Atarsushna Electricalindustrial Co., lad v Zenith Radw Corp.,475 U.S. 574. 586-87 0986)(to defeat a monon for sununary disposinon, the opposing party must show tir cusience of nue than just none 'nrtaphysical d< mbt" concermng the matenal facts).
l 102 i
i
l i
material facts that accompanies a summary disposition motion or that fact will be deemed admitted."
Moreover, when the movant has satisfied its initial burden and has supported 4
its motion by affidavit, the opposing party must either proffer rebutting evidence or submit an affidavit explaining why it is impractical to do so.88 If the presiding officer determines from affidavits filed by the opposing party that the opposing party cannot present by affidavit the facts essential to justify its opposition, the presiding officer may order a continuance to permit such affidavits to be l
obtained, or may take other appropriate action.26 With these general principles in mind, we turn to the Licensing Board's rulings on the parties' arguments.
Ill Tile LICENSING BOARD'S DECISION in the Motion for Summary Disposition, Staff submitted the following five statements of material fact about which, Staff claimed, no genuine issue existed:
- 1) Individual A (an AMS employec) received a whole body dose of 2.9 rems in the fourth quarter of 1984;
- 2) On November 6 and 21,1984, the surveys of radiation levels at the door of the AMS hot cell were the only surveys made to assess the possible exposure of AMS employees who worked in the hot cell;
- 3) The surveys made at the door of the hot ce!! on November 6 and 21,1984, were not adequate to detect the radiation level within the hot cell;
- 4) On November 21,1984, two AMS employees (Individuals A and B) failed to read their dosimeters between entries to the hot cell; and
- 5) Dosimeters used by the same two AMS employees on November 6 and 21,1984, had not been calibrated for more than 180 days."
The Licensing Board agreed with Staff that the first four facts were both material and undisputed. Regarding Staff's fifth statement, the Licensing Board indicated that Staff was also required to, and did, establish that the dosimeter calibration procedure used by AMS was neither the calibration method described in AMS' application (and incorporated into the license) nor a method otherwise approved by the NRC. Consequently, the Licensing Board determined both that Staff had proven the existence of all four alleged violations and that the imposition of a l
+
"10 Cf.R. (2349(a).
155cc 10 C5.R. 6 2.749(b). See also Fed. R. Civ. P. $6(e) and Advisory Committee Noie; Adides. 398 U.S. at 1(4 61.
"10 Cf.R. I 2749(c).
UStaff Monon. Attachrnent enutled " Statement of Matenal Iacts About Which No Genuine issue Exista.*
[
is!EP-91-9,33 NRC at 222.
103 i
i i
)
civil penalty of $6250 was in accordance with Commission policy for violations of this type?
IV. ANALYSIS AMS argues that there are genuine issues of material fact still in dispute and that the Licensing Board consequently erred in granting Staff's motion for surnmary disposition. AMS sets forth eight instances (discussed in sections A thfough H below) in which it claims that the Licensing Board committed reversible error.
A.
Violation 1: Radiation Exposure for Individual A in Excess of the Limits Established in 10 C.F.R. 5 20.101(a) (1984)
Section 20.101(a) establishes radiation dose standards for individuals in restricted areas. Specifically, this section provides that an individual must not receive a whole-body dose of radiation in excess of 1.25 rems per calendar quarter, except as provided in paragraph (b) of the same section. Paragraph (b) raises the limit to 3 rems per calendar quarter if, prior to the individual's entry into the restricted area, the licensee has determined (i.e., calculated) the individual's accumulated occupational whole-body dose on a Ibrm NRC-4 (" Form-4") or on a clear and legible record containing all the information required on a Ibrm-4?
AMS does not dispute the fact that, during the fourth quarter of 1984, 1
Individual A received a whole body dose of 2.9 rems - an amount in excess of the maximum dose permitted in section 20.101(a). However, AMS does challenge the Board's conclusion that this exposure constituted a violation of section 20.10l? AMS argues that genuine issues of material fact exist as to whether it qualified for an exception to the requirements in section 20.101(a).
According to AMS, its own expectations regarding its employees' dose levels excused it from complying with the dose requirement in section 20.101(a). In addition, AMS argues that, even if it were not thus excused from compliance, a genuine issue of material fact nevertheless exists as to whether AMS qualified for the exception to 20.101(a) by completing a Form-4 prior to Individual A's entry into the restricted area. AMS* arguments fail for the following reasons.
I'M at 227-28.
20 Paragraph (b) also contains other conditions, but they are not at issue in dus proceeding 21,, gyg. Brief in support of Reversal of the Licensing floar(s order Granting NRC staff Motion for sununary 3
Dispositmn and Ternunating Promekng at 17-22 (Apnl 26.1991)(lereinafter *AMs lirief").
104
1.
AMS Was Not Excusedfrom Complying with the Requirements in i
Section 20.101(a)
AMS argues that the Licensing Board erroneously ignored section 20.102(a) wh;ch, according to AMS, provides for an exception to the standards prescribed by section 20.101(a) in addition to the exception set forth in section 20.101(b).
AMS contends that section 20.102(a) excuses a licensee from the radiation dose i
limits set fonh in section 20.101 if the licensee does not " expect" an individual to receive a dose in excess of the maximum level specified in section 20.101(a)."
More specifically, AMS assens that Staff, to obtain summary disposition, would have to present uncontradicted evidence that, prior to Individual A's November entries into the restricted area, AMS actually " expected" him to receive more than 1.25 rems during that calendar quarter. AMS argues that Staff has not made such a showing.
We conclude that neither section 20.101(a) nor section 20.102(a) suppons AMS' position. Under the provisions of section 20.101(a) quoted immediately below, a licensee is excused from complying with that section's radiation dose standards only if the licensee can satisfy the conditions set forth in section 20.101(b):
In accordance with the provisions of $ 20.102(a), and except as prewided in paragraph (b) of slus sccrion, no licensee shall.. cause any individual in a restricted area to receive in any period of one calendar quarter.. a total occupational dose in excess of tte standards specified [ia section 20.t01(a)).
(Emphasis added).
Section 20.101(a) contains no similar language indicating that section 20.102(a) provides a second exception. Nor would such an exception make sense. Section 20.102(a) concerns a written document other than a Form-4 and merely addresses the determination and recordation of an individual's prior dose history. Specifically, this section provides that, if an individual will or is likely to receive during a calendar quarter more than 25% of the applicable dose spec-ified in section 20.101(a), the licensee must require the individual to disclose in a written signed statement the prior occupational dose received by the individual during the then-current calendar que:ter.
Section 20.101(b), which provides for the only circumstance under which the licensee is excused from complying with the maximum dose standards contained in section 20.101(a), does not provide for an exception based upon the dose level being unexpected. Section 20.101(b) requires that, for a licensee to be excused from the requirements in section 20.101(a), the licensee must have completed l
a Form-4 (or its equivalent) for an empbyee prior to that employee's entry 1
UAMS Bnef at 17-18 l
105
l l
into a restricted area. To prevent an overexposure, irrespective of whether the 1
employee received the dose level" expected" by the licensec, AMS should have instructed the employee (here, Individual A) to leave the restricted area prior to receiving a dose level in excess of the standards provided in section 20.101(a) if no Form-4 for that employee were on file.
2.
AMS Did Not Satisfy the Form-t Requirement AMS also contends that it was excused from complying with section 20.101(a) because it had actually prepared a Rrm-4 prior to Individual A's entry into the restricted area. We reject this argument on the ground that it is unsupported by the record. AMS has never offered into the record the Rrm-4 that was purportedly completed prior to the entry in question. Nor has AMS proffered an affidavit either from the person who supposedly filled out the Form-4 prior to Individual A's entry into the restricted area or from any person who saw that Form-4 22 In fact, AMS never specifically identified any such individ-uals.
Instead, AMS argues that the Form-4 was filled out, but was missing when Mr. Irwin looked for it.2d In support of this argument, AMS relies upon testimony l
from Mr. Irwin indicating that he knew the exposure history necessary to l
prepare a Rrm-4 for Individual A. AMS also asserts that NRC inspection repc-ts indicate the presence of such a Rrm-4 in AMS' files prior to November l
1984, Rr the reasons set forth below, we conclude that AMS' first argument is irrelevant to the issue at har and that AMS' second argument is insufficient to raise a genuine issue of material fact.25 a.
Mr. Irwin's Knowledge Although Mr. Irwin's knowledge of the employee's exposure history 26 might arguably be relevant to the question of whether AMS could have completed a Wrm-4 prior to Individual A's November entries into the restricted area, Mr.
Irwin's knowledge raises no genuine issue regarding whether AMS acfually prepared such a Wrm the question at issue here.
23Accordmg to Mr. Howard Irwin (Radisson safety officer in November 1985), Dr. Seymma stein (1wsidem of AMS) was of the opmion that he (Dr. stem) had seen a Isam4 Staff Mouan, Attachnent 10, "transcrited Imerview of Howard Irwin"(oct. 9.1985), at 12. However. AMs erwr presented an af6 davit fmm Dr. Ste.in stating that le saw a Item.4 for Indmdual A grmr to Or November entry in question. In addition. an afhdavit i
from Dr. sicin (not knelf in de record but quoted by He NRC investigator in tte sanr interview witn Mr. Irwin) indicated that Dr. Stem himself had not seen or itam-4, but ratter that oder " individuals" had informed lum I
that Oey had seen it 1d at 7.
24 AMS Bnef at 20 22.
sie authonties cited in ame 13. supra.
j 23 26 i
AMs Dr ef at 19-20 106 l
v
4 l
i To be complete, the Rrm-4 in question was required to include a calculation of Individual A's entire past occupational exposure history, a calculation of the additional occupational exposure that Individual A could still receive, and Individual A's signature." Moreover, AMS was required to have completed the Rrm 4 prior to Individual A's entry into the restricted area."
l Even assuming that Mr. Irwin knew Individual A's exposure history, Mr.
Irwin nevertheless acknowledged that, prior to Individual A's entry into the i
restricted area, Mr. Irwin had not yet committed to writing the two required calculations specified above." In addition, Mr. Irwin indicated that, in his view, no one else would have prepared Individual A's Form-4. In this regani, Mr.
Irwin stated that he had no specific knowledge of any other person completing a i
Brm-4 for Individual A prior to the entries in question." kr all of the reasons se forth above, we conclude as a matter of law that Mr. Irwin's knowledge
~
of the exposure history is inadequate to raise a question as to whether AMS completed a Form-4 in connection with, and prior to, Individual A's November entries into the restricted area.
b.
Prior inspection Reports In addition, AMS argues that certain NRC inspection reports raise a factual question as to whether a Form-4 for Individual A was on file at AMS.32 AMS indicates that NRC Staff had prepared those reports as a result of inspections in July and September 1984 regarding both the presence of krm-4s for AMS' employees and another alleged overexposure ofIndividual A. According to AMS, these inspection reports contained no indication that a Form-4 for Individual A was improperly missing from AMS' files. From this, AMS concludes that a completed Form-4 was necessarily present in its files at the time of the July and September investigations. Otherwise, according to AMS, the investigators would have been unable to review Individual A's exposure history or investigate the allegations.
"10 C.FA 6 20.102(bXI).
"Id
" Although Mr. Irwin did prepare a rwm 4 which was dated Septenber 12,1984, he acknowledged dat he had actually prepared that rwm-4 in January 1985 (approsimately 2 nanths after de exposures) and had backdated the docunrnt. Staff Motion, Attachnent 10. "Transcrihed Imerview of Howard Irwm" (Oct. 9,1985), at 510.
Mr. Irwin further stated that le did not even provide a rough copy of de Form-4 for typing untillate Decemter 1984 or January 1985 - at least a nonth after the November 1984 entries.14 at 9.
"hrthermore, de record contains no evidencz that AMs ever satisf ed the third requirement for a completed Nrm-4 le., that Individual A signed de Furm-4 rwior to entering the restricted area in November in fact, Individual A stated that the only ume he signed a hem-4 was in January 1985 - approximately 2 nunnha after tie Novenber entnes in quesuon staff Monon. Attachnent 6. "Tranneribed Inserview of 'Indmdual A*"(sept.
3,1985), at 23.
33 \\Ms Brief at 2Ck22.
107
AMS' logic is flawed because the failure by the NRC to detect a violation does not necessarily prove the negative that no violation existed. The NRC inspectors are not omniscient, and limited NRC resources preclude careful review of all but a fraction of the licensed activity. he argument is also flawed because no Form-4 for Individual A's November entry was required to be in AMS' files in July and September. AMS could have qualified for the Form-4 exception to the dose limits of section 20.101(a) by completing a Form-4 as late as November 6, immediately before Individual A made his first entry. Therefore, contrary to AMS' assertion, the NRC inspectors' review of the exposure history for Individual A in July and September 1984 would not necessarily have revealed a Form-4. Consequently, these reports do not raise a genuine issue as to whether AMS completed the missing %rm-4 in preparation for Individual A's November entries.
3.
Conclusion Based on the above analyses, we conclude that Staff met its burden of demonstrating that there is no genuine issue in dispute regarding this violation.
B.
Violation 2: Inadequate Radiation Surveys,in Contravention of 10 C.F.R. I 20.201(b) (1984)
Section 20.201(b) requires each licensee to "make or cause to be made such surveys as (1) may be necessary for the licensee to comply with the regulations in [10 C.F.R. Part 20], and (2) are reasonable under the circumstances to evaluate the extent of radiation hazards that may be present." he Board concluded that no genuine issue of material fact existed with regard to whether AMS violated this regulation.
AMS disagrees. It argues that the Licensing Board committed reversible error in finding that (1) AMS' only surveys for the purposes of compliance with 10 C.F.R. i20.201 on November 6 and 21,1984, were taken on a hand-held meter ~* the door of the hot cell, and (2) its surveys were inadequate to detect the radiation level within the hot cell.
We agree with AMS that Staff failed to show that no genuine issue remains regarding the adequacy of AMS' surveys. As evidence that the survey at the hot cell door was inadequate, Staff did not specifically argue that the procedure used to take the survey was inadequate. Instead, Staff relied solely on what it considered to be a significant underestimation of the exposure rate when compared with the actual exposure rate.32 AMS did not challenge the Staff's "Scr staff Monon at 6 108 Y
-v
calculation of the underestimation. Rather. AMS argued that it had used proper procedures when determining the estimated exposure rate on the days in question and that its surveys were therefore adequate, irrespective of the underestimation.
We find that the Inspection Report, upon which the Licensing Board relied,"
erroneously concluded that AMS* surveys yielded an estimated exposure rate that was 50% below the actual exposurc rate." We find instead that the survey's underestimations for Individuals A and B are 32% and 37%, respectively" We cannot conclude that a 32% or 37% underestimation constitutes per se an unreasonable survey in violation of section 20.201(b)." Our regulations allow for a certain margin of error for both survey instmment and dosimeter readings.87 Because these instruments do not yield perfect results, there will almost invariably be discrepancies between the estimated and the actual exposure rates derived from reliance on the readings from these devices." 'Iherefore, on remand, when determining whether AMS' radiation survey was adequate, the Staff and Board should consider not only the results from the radiation level readings but also the procedures AMS used to survey for radiation hazards.
With respect to the procedures used to conduct the survey, AMS maintains that it conducted surveys in addition to those performed at the hot cell door.
Specifically, according to AMS, it repeatedly used a remote probe sun'ey in preparation for the employees' entries into the hot cell. AMS asserts that the remote probe surveyed the entire hot cell in an effort to detect and remove radioactive pellets (used in conjunction with the assembly of cobalt-I "LBP-919,33 NRC at 223.
" Staff Motion, Atta::hment 1," Inspection Report" Oune28,1985), at 4 and 6.
"We base this conclusion on the following calculations:
!WD!t1 DUAL A:
survey do e rate, 729 mrem /2.5 nun, 292 numm/ min
- actual" done rate 750 mremfl.75 nun 429 rnrem/ min 11e dose rate encasured by de survey was 68% of the value determined by Individual Na dominster, or 32% leer than the dosimeter reading (100% - 68% = 329).
INDn7 DUAL B:
survey dose rate, 729 mrem /2.5 nun, 292 mrem / min,g
" actual" dose rate 790 mremfl.70 min 465 mrem / min The dose rate measured by the survey was 63% of the value determined by in6vidual D*s dosimeter, or 37% lower than de dosinrier reading (100% - 63% = 37%).
"We need not and da not reach the quesuon of whether a sufhciepily high discrepancy terween de estimated and actual exposure rate could constitute a per se violation of 20.201(b). mespecuve of the procedures used to take the survey. Nor do w need to reach de related guestion of how serious the discrepancy must be to quahfy as a per ac violation. We note that de Liceruung Board did not provide any support for its corelusion that 50%
discrepancy between tte estimated exposure rate and tie actual esposure rate is "not a reliable survey capable of protechng health or promoung safety in any stretch of the imaginanon." LHP-91-9,33 NRC at 223. Nor did the Staff, in its filmgs provide any support far the sane propositiort l
"See, e g,10 CJ.R. Il 35.51(b) and 34.33(c).
"Tle underesumations of 32% and 37% in dus instance muy have actually been acrzptable in light of the interent instrumen: error.
109 w
I l
i i
60 sources ').
According to AMS, this survey was done to ensure that the 3
contamination in the hot cell was as low as reasonably achievable, so that the employees would not receive unnecessarily high doses of radiation." According to AMS, the Licensing Board, in considering whether a genuine issue remained with respect to the adequacy of the AMS' surveys, should have considered these decontamination efforts as part of the survey.
However, the Licensing Board disregarded AMS' decontamination effons on the grounds that the remote probe that AMS claims to have used to l
scan for pellets was not calibrated and thus would have been incapable of providing accurate measurements of potential radiation exposure. In addition, the Licensing Board determined that the 50% inaccuracy of the surveys taken with a hand-held meter to measure the radicion exposure levels amounted to a per se violation of section 20.201(b)? Therefore, the Licensing Board concluded, "whether or not the tcmote spobe was used becomes immaterial to whether or not a regulatory
- iolation wcurred.'"3 If there had been a 50% t'iscrepracy and if that discrepancy had amounted to a per se violation, then the cant ing for pellets would have been irrelevant.
However, in light of our conclusions that the discrepancy between the estimated and actual exposure rate is less than 50% and that the 32% and 37% discrep-ancies do not establish a per se violation of section 20.201(b), we conclude that the scanning for pellets should have been considered when determining if a genuine issue remains regarding the adequacy of the survey. Section 20.201(a) defines " survey" as:
an evaluation of the radiation hazards incident to the production, use, sclease, disposal, or presence of radioactive materials or other sources of radiation under a specific set of conditions. When appropriate, such evaluation includes a physical survey of the location of materials and equipment, and measurements of levels of radiation or concentrations of r
radioactive material presert (Emphasis added.) Hus, when determining what constitutes a survey, section 20.201 requires consideration of more than just quantitative measurements of radiation levels used to determine exposure. It also requires, whem appropriate, consideration of physical surveys of the location of materials and equipment."
3' AMS' Brief in Opposition to NRC staff Motion for Sununary Disposition and for Decision Sustaining Order, filed October 4,1990, at 2.
" AMs Brief at 23-32.
d3.BP.91-9. 33 NRC at 217 n.22.
L 4214 at 223 4314 at217 n.22.
Sre Radiarhm Technology. Inc. (take Denmark Road. Rockway NJ 07866). ALAB-567,10 NRC 533, 546
'd (1979)(the qistsuon of whether a violation of section 20.201(b) occuned did not turn on "the presence or absence of any spec 1hc ra&ation level but in the failure to check regularly for the pesence of ra&ation hazards 4 110
)
i
)
4
I Although the scanning for pellets, alone, would not have amounted to an adequate survey, the probe in this instance was used as only the first step of the overall survey, and was used in a nonquantitative manner to detect the presence
. [
of radiation hazards, i.e., the pellets. As such, the scanning for pellets, in addition to the radiation level and airborne contamination readings, is material to
.l the issue of whether AMS had failed to perform an adequate survey in violation -
of section 20.201(b).
)
?
We therefore reverse the Licensing Board's grant of summary disposition with respect to Violation 2 and remand Violation 2 to the Licensing Board for further proceedings consistent with this order. He Licensing Board, before commencing with any evidentiary hearing on this matter, should direct the parties to address the question of whether, in light of our findings on appellate review, -
a genuine issue remains regarding the adequacy of AMS* suney.
j j
1 C.
Violation 3: Failure to Read Dosimeters at Required Intervals,in
. l Contravention of License Condition 16 l
I Condition 16 of AMS' 1984 license requires AMS to use licensed materials in accordance with the statements, representations and procedures contained in AMS' " Radiation Safety Procedures Manual, ISP-1." Section 7.2.c of that Manual states that:
l i
[I]n high dose areas.
. [t]he pencil type dosimeters will be read at intervals consistent
{
with the anticipated dose rate to determine that the actual exposure is not greater than the j
anticipated exposure.48 l
4 According to AMS, the Licensing Board committed reversible error when it -
concluded that, on November 21,1984, two AMS employees failed to read their dosimeters between entries into the hot cell. AMS asserts that each of these-l i
two employees entered the hot cell only twice and that each read his dosimeter between his two entries." Both Staff and the Board disagree with AMS and j
conclude instead that each of the two employees entered the hot cell on four j
separate occasions (rather than just two) and, during those four entries, each
{
failed to read his dosimeter at the proper intenals.
Rus, the questions at issue are how frequently should the dosimeters have I
been read (based on the intervals consistent with the dose rate), and whether AMS' employees actually read their dosimeters at the required frequency. AMS itself established a 1-minute interval as the maximum allowable exposure time 45 staff Motion. Attachnu nt 5 " Order imposing Civil Monetary Itnalues"(May 30,1989).Agyendia (Tvalua-tions and Conclusions"), at 3.
46 AMS Brief at 33-41.
111 i
l l
l 1
..-...._.___,..,.,__...,_,_..._,..,.,_.-.m
before which Individuals A and B were required to read their dosimeters while in the hot cell on November 21,1984? His interval was based on an anticipated dose rate of 750 millirems per person." On November 21, Individuals A and B spent 3.65 minutes and 3.8 minutes in the hot cell, respectively." Herefore, simple mathematics indicates that each individual should have checked his dosimeter a minimum of three times dufing the total time spent in the hot cell and an additional time after the individual had completed his work.S However, Individuals A and B failed to read their dosimeters with this required frequency. He Licensing Board correctly determined that they read their dosimeters only twice - once after the morning entry and a second time after the employees left the hot cell for the final time in the afternoon?8 To support its argument that the Board erred in making this determination.,
AMS relies upon its own internal documents anj upon Staff's interviews with two AMS employees (Mr. Sibert and Individual A). However, as dinussed below, the evidence on which AMS relies does not controvert the Board's findings that the dosimeters were read only twice and that the frequency of
{
the readings was inadequate.
j i
AMS' internal documents indicate only that, prior to the November 21 cell entry, Ms. Josephine Powell (an AMS employee who was stationed outside the
- Staff Monon. Attaciment I,"Inspecuan Repcrt"(June 28,1985), Anachment C,liem 2. "Ibrm lSP-18"(Nov.
21.1984), at 2, prepared by AMS in connection with the Noventer 21 let cell entries.
"Id "Id. See also Staff Mooon Attaciunent 8," Transcribed Interview with Glenn Sibert"(sept. 3,1985), at 33-34, 36 (de periods of 3.65 and 3.8 minutes were spent entirely in de hot cell).
- we agree with AMs that rea&ng of de dosimeters in de hot cell could be inconsistent with efforts to maintain ra& anon exposure to levels *as low as is reasonably actuevable l'ALARA']" as that phrase is defined in 10 C.F.R.
( 20.l(e). Tierefore, we interpret AMS' calculations regarding de I-minute imervals for rea&ng the dosimeters as only an approximanon. Nevertheless, as discussed in more detail below, AMS employees made four different entnes on the day in question and therefore, could have read their dummeters at the required frequency wire they were outsiae de hot cell without violating AI. ARA principles.
The evidence clearly established that ineviduals A and B cach emered the hot cell on four separate occasions
- one in the morning and duee in de afternoon. See LBP-91-9. 33 NRC at 219,221. In ad&oon so the evidence cited by the Ucensmg Board, the following two statements by the president of AMS also support this conclusion.
In a July 31.1985 letter from AMS* president Dr. Stein, to the NRC Staff, the president stated that "[t]he work performed on Novemter 21,1984 involved two cell openings and muluple inevidual trips in and out of de cell."
He funher stated that "the in&viduals made four inps dunng the total entry tine of 3.65 and 3.80 minutes." Staff Monon, Anachment 3. AMS' July 31.1985 " Response to Notice of Violation" at 2.
One related maner also deserves bnef conunent. "De Ucensing Board,in rnaking in determinanon regarding de number of entnes into de har cell, concluded that Mr. Sibert's testimony en this issue was internally inconsistent and therefore " simply lackis] credibility." 33 NRC at 219 20. AMS argues that such a deternunation legar&ng credibihty should te made only in a decision on the nents after tranng, not in a sunmary disposition ordre. AMS Brief at 30-31. We beheve that AMS has taken the Boar (s language out of coment and has tlereby distorted its meaning. When we acad tie Bourd's language in context. me conclude that de Board was rnerely determining that Mr. Sibert's starements were ambiguous and derefore insufficient to raise a genuine issue of dispute. Thus, de Boar (s statenem regar&ng Mr. Sibert's credibility, while unartful, does not constitute reversible error. See Gagne
- v. Northwstern Norwnal Insvance Co., 881 F.2d 309. 314 (6th Or.1989)(a genuine issue of snuterial fact is not created by " ambiguous" and
- abstract" stateme:tts that are insufhcient to support a finding of discrimination).
l M LBP-91-9,33 NRC at 21B.21.
l l
112 e
.~
l l
i cell) was assigned to monitor the times of Individuals A and B in the cell?
However, AMS has not offered an affidavit from Ms. Powell or any other person who actually saw the two employees read their dosimeters four times. Although l
AM3 alleges that Staff withheld a transcript of an interview with Ms. Powell,
(
AMS has never requested any such transcript from Staff. Nor has AMS disclosed i
the results of any internal investigation that it may have conducted shonly.after the events in question to determine if the violations occurred, including any.
statement from Ms. Powell.
I Instead, AMS relies on the testimony of Mr. Sibert and Individual A in an effort to establish that Individuals A and B read their dosimeters with the required frequency. However, Mr. Siben could specifically recall only one I
actual reading in the restricted area (160 millirems)" - a reading that the.
l Licensing Board included when determining that the two employees had lead their dosimeters only twice?
In addition, AMS quoted Mr. Siben's testimony that AMS had established i
the 1-minute intervals and that Ms. Powell was in the observation booth as a 1
monitor. However, without more, Mr. Siben's statements are insufficient to l
raise a genuine issue of material fact as to whether the employees actually read.
their dosimeters more than twice.
In a funher effon to support its assertion that Individuals A and B read their dosimeters at the proper frequency, AMS relies upon Individual A's statements that each interval spent in the hot cell was no more than 1 minute? According.
l to AMS, if each employee made only two 1-minute entries, this would amount '
to a total of only 2 minutes in the hot cell, and reading of the dosimeters twice in this time period would be an adequate frequency. We reject AMS* argument on the ground that Individual A himself contradicts the underlying premise of -
the argument by stating he entered the hot cell four times, not two?
The actual final dosimeter readings also support our conclusion that the two employees failed to read their dosimete s at an adequate frequency. Individuals.
l e
A and B received more than twice their anticipated doses (750 millirems each)
(
on November 21, 1984. By the time they had left the decontamination room j
on the day in question, Individual A had received a 1625-millirem dose and i
Individual B had received a 1600-millirem dose for the day? If the dosimeters i
i 52 staff Mouon, Attachnent 1,"lospection Repost" Unne 28.1985), Attachnunt C, hem 2, "Ferm IsP-18"(Nov.
21,1984), at 2.
33 Staff Motion, Anachnent 8."rranscribed Interview of Glenn Sibert"(sept. 3.1985), at 50 51.
M LBP-91-9,33 NRC at 220-21.
55 AMs Brief at 34 (quoting staff Motioc. Anachnent 6, " Transcribed tnterview of
- Individual A'"(Sept. 3, 1985). at 21).
% staff Monon, Attacharnt 6. " Transcribed Interview of
- Individual A'"(sept. 3,1985), at 16-21.
57 Staff Motion. Attadment I," Inspection Repon" Oune 28,1985), Anachnent C, Item 2. " Ram ISP-38"(Nov.
21,1964), at 2-113 e
l e
~+
er w"
r e
Tri*-
t" g'-C-r-9-.
age r7wvty w
-=w-gwvrW'-"T--*-9-'-9*
-4y
- --Pt9-'-
"fwe
- Y "YT"M Med'mr'-'-'W H
F
(
-%-g
had been checked at approximately 1-minute intervals, the employees should not have received twice tha estimated dose.
Based on the reasumag above, we conclude that the uncontroverted evidence in the record clearly establishes that Individuals A and B read their dosimeters only twice, and that this frequency was inadequate, in light of AMS' own calculation of the anticipated dose rate. Herefore, Staff has established that there are no genuine issues of material fact in dispute regarding Violatior. 3.
D.
Violation 4: Failura M Calibrate Dosimeters Within 180 Days,in Contravention of License Condition 16 License Condition 16 requires AMS to possess and use its licensed material in accordance with statements, representations, and procedures contained in AMS' license application. Schedule E of the referenced application requires dosimeters to be calibrated with a radiation source at intervals of 180 days or less, or before first use iflonger than 180 days since last calibration.88 The Board concluded that Staff had demonstrated an absence of genuine issues of material fact regarding Violation 4 and that AMS had committed the violation." AMS argues that the Licensing Board erred in holding that the dosimetry used by two AMS employees on November 6 and 21,1984, had not been calibrated.60 We
- disagree, He Board correctly ruled that the material fact regarding this violation is AMS' failure to calibrate the dosimetry devices at intervals not exceeding 180 days, in accordance with the techniques set forth in Schedule E. he Licensing Board also correctly determined that AMS had admitted deviating from the license conditions with regard to the calibration of the dosimeters used in November 1984.62 he Licensing Board properly concluded that both Staff and Licensee had either misinterpreted or misstated the material fact at issue in Violation 4. Herefore, the Board clarified that the material fact was not that AMS failed to calibrate the dosimeters, but that AMS failed to calibrate the dosimeters in accordance with the provisions of its own license - using certain specified techniques and within certain specified time intenals.
5s staff Monon. Ana& ment 5 " Order Imposing Civil Monetary Penalues"(May30,1989),Ap;endix ("Evalua-cons and Conclusions"), at 4 "LUP-91-9. 33 NRC at 221-22,224-25.
'O AMs Brief at 42-46.
61 LIlp.91-9,33 NRC at 222. The dosinru rs used by Individuals A and B had not teen properly cahbrated since at least January 1983 Nance of Violatmn and Proposed imposinon of Civil Penalues. issued June 28,1985, at 2.
U 33 NRC at 222 (ciong Staff Motion. Attachment 3, AMs' July 31,1985 "Respcmic to Notice of Violation," at 3-4, and Attachment 7. "Transcnted Interview of Howed Irwin"(seg 4.1985), at 35-37).
I14
AMS argues that the Licensing Board cannot merely " rewrite an alleged violation to better suit its finding against AMS.'*3 In so arguing, AMS misreads the Board's order. The Licensing Board did not " rewrite [the] alleged violation" in any respect. De Boo ! merely indicated what facts were material to this violation. The Licensing &M, as one would expect, based this conclusion on not only the Statement of Material Facts" submitted by the parties, but also the parties' discussion of these facts in the Staff's motion and AMS* answer to the motion." To do otherwise could lead to unnecessary or protracted litigation in instances u here material facts are misstated in the " Statement of Material Facts" l
but are clearly indicated by other submissions, and where no genuine issue as to any of these materi.! facts is established by the record.55 AMS goes on to argue that "it is extremely difficult to put fornrd one's case l
j when thejudges change the rules."*6 nis argument appears to suggest that AMS was somehow not on not ce that Violation 4 involved AMS' failure to calibrate i
its dosimeters in accordance with the method specified in License Condition 16.
l If this is in fact Ails' position, then we reject it. AMS has acknowledged that l
it was not following the procedure for calibrating the dosimeters contained in I
its 1979 application, which was required by License Condition 16. In AMS' response to the Notice of Violation, dated July 31, 1985, signed by AMS' president, Dr. Seymour S. Stein, the Licensee stated:
AMS denies tte alleged violation. The procedure for calibration submitted [to the NRC] in 1979 was found to be unworkable in that it did not produce repeatable results. "Ihe technique 63 AMs Bnef at 42.
" AMs argues that de Ucensing Board "may not impow its judgenent upon htigators" i Ms Brri at 42. In support of this pouuon, AMs rebes on Regrats of she Uniwrsfry of Cohfarnia (UCLA Rescamri Reactor),1 BP-82-93,16 NRC 1391 (1982)("UCIA"), in which the Ucensing Board trid that it could not subsutute its own judgnent for dun of a party by &ctaung de manner in wtuch de party presents its case. /d at 1394-95. Aldmugh AMS' restatenrnt of this parucular ruhng in UCIA is accurate, it is nevertheless mapposite to de case at bar. The 3
Ucensing Board in UCIA never Irld that it was in any way precludcJ frorn determining what er nuscrial facts were and wtether any remune issues costed regarding erse snaterial facts. To de contrary, or Ucensing Brurd in UCIA stated that, after it remved de parues* (stafr*s, Ucenace's, and tntervenor's) conclusions as to atether there was any gemune inue reganhng any fact perunent to the contentions at issue, it would deternune the facts ahout winch dere custed no genuine &sputes, the "relevame of any particular fact and the legal conmquences ci any set of facts " 14. at 1396-97.
'5 l
This concluuan is consistent with Connission pohey. The Comnussion has encouraged de Ucensing Board's use of summary &sposit on procedures in instances wtere there is no genuire issue as to any rnaterial fact so that evidenuary tranng unr will not tr unnecessarily devoted to such issues. Starement of roley as Conduct of furving Frpreedmgs, CLl41-8,13 NRC 452. 457 (1981). Mrreover. Commission regulations indicate dat a deternunation on a monon for summary judgnent should be bawd on all the plead ogs, and dere is no restricuon in&canng that tir Ucenung Board may not snake its own dcJernunation about wtiat facts are indeed matenal after all gwties have had an opportunity to respond to the mouon for summary esposinon. See 10 C.F R. 8 2.*149t4)
(1992)("1he pres >&ng othcer shall render the decision sought if the fihngs in or procee&ng, deposioons, answers to intemigatones, and admiuions on file, together wsth the statenents of de partes and de affidavits, af any, show that there is no grnuine issue as to any matenal fact and that de snaving puty is entnied tc a decision as a matter of law")
" AMS Bnef at 44 115 l
~, -
t adopted as un alternative was the compaion of dosineter readings with film badge reports on a nx>nthly basis.67 I
Moreover, in the Order Imposing Civil Penalties, dated May 30,1989, the AMS l
argument outlined above was specifically addressed and rejected by NRC Staff.
Staff informed AMS that:
[
I 1he heensee is required, in accordance with the provisions of License Condition No.16, to calibrate dosimeters by using a calibrated radiation source, Intercomparison between dosir :ter and film badge tradings is not an approved calibration technique. If the licensee concludes that the method sequired by license Condition No.16 is unworkable, an alternative method may not be substituted without first having the license amended to authorize the alternative procedure. Using a radiation source is the method used throughout the industry and is the only calibration method currently approved by the NRC.es This detailed response from Staff clearly outlined the factors it considered in assessing Violation 4. AMS' concession and Staff's rebuttal clearly indicate that AMS was on notice that Violation 4 involved AMS' failure to calibrate its dosimeters in accordance with the method required by its license.
l AMS never challenged Staff's reading of License Condition 16 or Schedule l
E of the referenced application, nor is there any indication from our review that either was misinterpreted. In addition, AMS never indicated that it had received I
authorization from the NRC to develop or apply a new method of calibration.
We therefore conclude that there are no genuine issues of material fact in dispute regarding Violation 4. He dosimeters used by the two individuals who worked in the hot cell on November 6 and 21,1984, had not been calibrated (as that term is defined in the 1979 application) for more than 180 days, nis failure violated AMS License Condition 16.
i E.
Affidavits AMS raises three arguments on appeal regarding affidavits. First, AMS contenis that the Licensing Board committed reversible error in " chastising"*
AMS for not providing affidavits when the NRC Staff's only affidavit was provided by an individual "who was not involved in the events surrounding the alleged violations, not involved in the issuance of the [May 30,1989] Order, and who failed to even state that he even had personal knowledge of the events.""
67 Staff Madon, Atunehment 3. AMS' July 31,1985 " Response to Notice of Violation," at 3.
6s Staff Motion. Anachmem 5, Order Imposing Civil Monetary Penalties"(May 30,1989), Appendia ("Evalua-tions and Conclusions"). at 4.
.i
- AMs Brief at 47 temng LBP-91-9. 33 NRC at 215 n.12).
I "AMs Encf at 48. See also a at 52-53 (asserting that Staff failed to submit the affidavit of the Durctor of the NRC's office of Enforcemers).
j
{
t 116
[
l l
l
AMS' contention is frivolous. The individual to whom AMS is referring is Mr. James Lieberman and, as indicated both in his affidavit and in Staff's Motion for Summary Disposition, he is the Director of the NRC's Office of Enforcement - the same office that initiated this civil penalty proceeding against
]
AMS." Mr. Lieberman has held that position since 1987 and was Director on May 30,1989, when Staff issued the Penalty Order to AMS. In fact, earlier in this proceeding, AMS itself acknowledged that Mr. Lieberman was Director of f
the Office of Enforcement.72 Staff submitted his affidavit for the sole purpose of establishing that the severity level assigned to the four violations and the amount of the civil penalty assesed for this severity level were in accordance with the General Statement of Poi.cy and Procedure for NRC Enforcement Actions." Mr.
Lieberman's position as Director of the Office of Enforcement qualifies him to address this issue. Consequently, the Board did not err in the manner suggested j
by AMS.
Second, AMS complains that the Board inappropriately " attack [ed]" it for failing to provide affidavits addressing Violation 3.24 AMS responds to the Board's alleged " attack" by asserting that AMS could not obtain affidavits from
~
Individual A and Ms. Powell because they no longer work for AMS, and from Mr. Sibert because he is deceased." If AMS was having difficulty obtaining the affidavits it needed, but anticipated obtaining them in the future, or if it suspected s
that Staff possessed evidence necessary for AMS to justify its position, AMS should have notified the Licensing Board. As specified in 10 C.F.R. 5 2.749(c),
this notification should have been by affidavit indicating that AMS could not produce by affidavit the facts essential to justify its position at that time. In filing such an affidavit, AMS could have asked the Board to deny the motion for summary disposition or to order a continuance so that AMS might obtain the factual affidavits. AMS' failure to avail itself of the procedural protection described above precludes it from prevailing in its second argument.
Third, AMS suggests that the Lieberman affidavit, the sworn testimony contained in transcripts of interviews, and the other evidence offered by Staff fail to establish the absence of genuine issues in dispute regarding material facts.76 Thus, according to AMS, Staff was not entitled to a decision in its favor, 71 stafr Motion at 11 and Affidavit of Janes tielerman (attached to rnation) at 1.
72 AMS* Bnef in opposinon to NRC staff Mation for summary Disposition and for Decision Sustaining Order.
filed october 4.1940, at 25:
In his affidavit. Janes Licherman admits that none of er single violations mere of a seventy isvel nl but that he reached seventy level in due to de collecove violauons. since the agency admits h was die judgnent of Deir Director of the Ofhce of Enforcenrnt and not tha their { sic) was per se. a severity tevel nl vmlanon, dere is an obvious dispiste as to a material fact. The ba. sis of Mr. tieberman's judgnent artamly raises a quesnon of matenal fact.
"10 CJ.R. Part 2. Appendia C.
I N AMs linef at 38.
75 1d at 4. 5. 38 76 Id at 4S-.19.
i l
117 l
l 9
l
regardless of whether AMS offered additional evidence in support ofits position opposing the motion for summary disposition. Ibr the reasons previously set forth in this order, we agree with the Licensing Board that the evidence submitted by Staff with respect to Violations 1,3, and 4 was sufficient to establish the absence of a genuine issue as to any material fact. With respect to Violation 2, we have reversed the grant of summary disposition in favor of Staff and have remanded that violation to the Licensing Board for further disposition.
Consequently, we reject AMS' third contention to the extent indicated.
F.
Allegedly Retroactive Application of Commission Rule in a footnote, the Licensing Board commented that Staff's reliance on documents that are referenced in the license is consistent with the Atnmic Energy Act, Commission regulations, and past Staff practice" In support of this comment, the Board cited a 1986 notice to a Final Rule that related to the medical use of byproduct material. In that notice, according to the Licensing Board, the Commission gave a clear account of its regulatory program and licensing practices regarding byproduct material licenses of the type issued to AMS?'78 On appeal, AMS complains that the Licensing Board committed reversible error when it chastised AMS for failing in 1984 to abide by this 1986 Com-mission notice
- AMS has misconstrued the intent of the Licensing Board. The.
Licensing Board was neither chastising AMS nor holding it to standards that were not yet in effect at the time of the November 19S4 violations. Rather, the Bo;.rd raised this matter in reference to Staff's practice, not Licensee's. To the extent that AMS might be asserting that, prior to 19S6, the Commission's regulatory program and licensing practices were unclear as to whether a final license could incorporate by reference the requirements in the application for that same license, we disagree.
7 G.
Mitigation of Severity Level Our decision to remand Violation 2 to the Licensing Board may ultimately necessitate a modification of the severity level and/or penalty amount, if Staff "LBP-91-9. 33 NRC r 223 n.49. In this footnote, the Ucensing Board was specifically refemng to Staff's trierences to language in AMs' 1979 license appbcation which the Commission incorporated into Con & tion 16 of AMs' bcense. The Ucensing Board's citations included the Atomic Energy Act of 1954. I182(a),42 U.5E 12232. and 10 C.F 3L 6 30.34. The peronent language in both of thcae seccons existed well before the alleged violations in 1984.
78 LBP-91-9. 33 NRC at 223-24 n 49 (ciong final Rule. Me& cal Use of Dyproduct Material 51 Fed. Reg 36.932 6
(Oct.16.1986)).
"Sce AMS Bnef at 50.
118 am,.m..r,, ye w w ------ : - - -
_;7--
fails to prove the occunence of Violation 2. We therefore remand the issue of the appropriateness of the severity level and penalty amount to the Licensing Board for further proceedings corisistent with the disposition of Violation 2.
Neveftheless, we will address two arguments raised bf AMS, the disposition of which may be helpful to the Board and parties in any further litigation regarding the appropriateness of the severity level and penalty amount.
First, AMS argues that the Licensing Board committed reversible error "in attacking counsel for AMS' approach in requesting a hearing on the imposition of an escalated fine."'8 AMS again misconstrues the Board's order. In the part of the order to which AMS is referring, the Licensing Board merely pointed out that AMS' tactic of requesting mitigation of the severity level rather than of the civil penalty amount was not the approach that licensees typically take in proceedings involving civil penalties.8' We see nothing offer <ive about this observation.
Second AMS maintains that the Licensing Board's discussion of the Severity Level was flawed because the Licensing Board relied on an affidavit from James Lieberman as opposed to one provided by the " Director of the Office of Enforcement whose affidavit was not presented."82 'Ihe Licensing Board's reliance on Mr. Lieberman's affidavit was proper. As is noted above an ! as was expressly stated in has affidavit, Mr. Lieberman is the Director of the NRC's Office of Enforcement.
II. Evidentiary IIcaring AMS argues that the unusually long delay between the proposal of the civil penalty and its actual imposition constituted a denial of due process because AMS never had an opportunity to cross-examine witnesses who later became unavailable? Thus, according to AMS, an evidentiary hearing is required.
However, AMS fails to demonstrate that there was any additional testimony that could be presented at a hearing, but which was not available at that time regarding Violations I,3 and 4, when the proceeding was before the Licensing Board.** An evidentiary hearing would be necessary only if a genuine issue of 80 AMS Bnef at SI.
8'specifically, the Ucensing Board noted that oder hcensees have generally requested rnitigation of the ammmr of the penalty - a request that AMs never speci6caHy proffered either to de Board or to us The Ucensing Board found this to be pecuhar because, if the seventy level was lowered to a severity tevel IV violation. as AMs requested, a 6ne could still be imposed, especially where there are repeated violations, as is de cane here.
LBP-91-9,33 NRC at 227. hus. de Licenung Board concluded dat, althouFh AMs had cited de proper portion of de Commission's enforcement pohey regarding nutigation of the amoum of a civil penalty. AMs had sever made de argurrrat that the considerations outlined in this enforcenent pobey were improperly cmerlooked in the Director's decisum to impose de specific amount of civil penalty present in dus proceedmg. M at 225 n.58.
s2 AMs Brief at 52 53.
83 AMs Bnef at 56.
8'See 10 C.FA i2.749(c).
I19
material fact were in dispute. Because AMS has not demonstrated the existence of such a genuine issue with respect to Violations 1,3, and 4, AMS has not been denied its statutory right to a fair hearing with respect to these violations, even though an evidentiary hearing was not held 85 With respect to Violation 2, an evidentiary hearing has not been precluded.
VI. CONCLUSION 1.
The Licensing Board's grant of summary disposition in favor of the Staff with respect to Violation 2 of Staff's Order Imposing Civil Monetary Penalties is reversed.
2.
Violation 2 is remanded to the Licensing Board for funher proceedings consistent with this order.
3.
The issue of the appropriate severity level and penalty amount is re-manded to the Licensing Board for resolution consistent with the disposition of Violation 2.
4, All other portions of LBP-91-9 are afirmed and AMS' appeal of those portions of that order is hereby denied.
It is so ORDERED.
For the Commission 86 SAMUEL J. CIIILK Secretary of the Commission Dated at Rockville, Maryland, this 30th day of September 1993.
25 See Veg Ma. fac. v. Department of Agricafrure, 832 F.2d 601, 60748 (DC Cir.1987) (an agency may ordmarily dispense with an evidentiary teming when there is no genuine dispute as to a materialissue of fact);
Commandy Narrerion /nsruurt v. roung. 773 F.2d 1336,1364 (DC Cir.1985) ("la] request for learing must contain evidence that raises a material issue of fact on which a rneaningful tearing might be teld"), cert. denied, 475 U.S.1123 (1986).
AMS also argues that the Licensing Board comndited seversibic error in chastising AMS for citing a case pertinem to tte quesuon of whether an evidenuary hearing is required to permit AMS to cross exarrune whnesses
- a case also cited by tie NRC Staff. AMS Brief at 56 tciting roller v. Columna Broadcasting Synem, fac.,368 U.S. 464 (1962n. we have reviewed the ticensing Board's discar.sion of this case and read no su& chastisement in (te Board's language.
8671r Chairman was ont present for the affirmation of this Order,if te had been present,le would have approved it.
120 l
m-l i
j I
l l
l l
\\
I i
l
{
l 1
Atomic Safety l
and Licensing Boards issuances
}
ATOMIC SAFETY AND UCENSING BOARD PANEL
~ g B. Paul Cotter, Jr..* Chief Administrative Judge 0
l Robert M. Lazo,* Deputy Chief Administrative Judge (Executive)
T Frederick J. Snon
- Deputy Chief Administrative Judge (Technical) i O.
Members g
1 l
Ot George C. Anderson James R Gleason*
Dt Kenneth A. McColiom l
Charles Bechhoefer*
Ot David L Hetrick Marshall E. Miller Peter B. Bloch*
Ernest E. Hill Thornas S. Moore *
{'
G. Paul Boitwerk til*
Dr. Frank F. Hooper Dr, Peter A. Morris Glenn O. Bright Eltzabeth B. Johnson Thomas D. Murphy
- Dt A. Dixon Callihan Dr. Watter H. Jordan Dt Richard R. Partzek Dt James H. Carpenter Dr. Charles N. Kelber*
Dr. Harry Rein 2
i Dt Richard F. Cole
- Ot Jerry R. Kline*
Imster S. Rubenstein Dt Thomas E. Elleman Dt Peter S. Lam
- Dt David R. Schink O
1 Dt George A. Ferguson Dr. James C. Lamb til Ivan W. Smith
- Dr. Harry Foreman Dt Emmeth A. Luebke Dt George F.Tdey 4
Dt Richard F. Foster Morton B. Margutes*
Sheldon J. Wolfe d
i 1
1 l
- Pennanent panet enembers e
.i 1
il 5
I
i i
t I
i Cite as 38 NRC 121 (1993)
)
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
ATOMIC SAFETY AND LICENSING BOARD l
I Before Administrative Judges:
Peter B. Bloch, Chair Dr. James H. Carpenter i
Thomas D. Murphy i
In the Matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3)
(Re: License Amendment; Transfer to Southern Nuclear)
I GEORGIA POWER COMPANY. et al.
3 5
(Vogtle Electric Generating Plant, Units 1 and 2)
September 8,1993 i
i l
~Ihe Board ruled that statements were privileged both as attorney work-product and attorney-client privilege when the statements were given to Ap-plicant's attorneys at a time that they had reason to believe they were relevant l
to an 01 investigation that could occur. An allegation that the interviewees were
" hounded" to make them tell a common story is not enough to,nercome the privilege. However, persuasive evidence, presented at a hearing, of " hounding"'
i or other improper attorney cor. duct could overcome the privilege.
j RULES OF PRACTICE: WORK PRODUCT PRIVILEGE; ATTORNEY-CLIENT PRIVILEGE (" HOUNDING")
i Proof at a hearing that clients had been " hounded" or otherwise improperly treated could overcome a claim of privilege, either under the work product privilege or the attorney-client privilege. Where a party is on notice that such 121 e
,...,..c,
l proof may be presented, he may be ordered to have disputed documents available at the hearing for purposes of possible production.
1 RULES OF PRACTICE: ATTORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES IN A CORPORATION Attorney-client and work-product privileges are not limited to a controlling group with a corporation. He privileges are broadly construed to encourage full information-gathering by attorneys. Upjohn Co. v. Unifed Sfafes,449 U.S.
383 (1981).
j RULES OF PRACTICE: NITORNEY-CLIENT AND WORK-PRODUCT PRIVILEGES (WAIVER)
An evidentiary privilege held by a corporation may be waived only by an authorized employee.
MEMORANDUM AND ORDER (Discovery Motion)
The purpose of this Memorandum and Order is to rule on a motion to compel filed by Intervenor on July 23,1993.8 L BACKGROUND The documents sought by Intervenor through this motion are signed state-1 ments of John Aufdenkampe, Romas Webb, Jack Stringfellow, and George Hairston - all GPC employees at the time. The statements relate to conversa-l tions held on April 19,1990, about LER 90-006, which Intervenor alleges was inaccurate when it was filed with the Nuclear Regulatory Commission (NRC).
l i
I lntervenor is Allen 1. Mosbaugh. The rele wit 61ings are Intervenor's Motion to Compel Production of i
Afhdavits in tte Possession of Georgia Powcz Company (GPC) July 23.1993 (Intervenor's Motion to Compel).
and Georgia Power Company's Response to Intervenor's Motion to Compel Production of Afhdavits. August 2.
1993 (GPC Responsel We note that there is one other pending motion to compel: Intervenor's Motion to Compel Answers to -
Interrogatories and Document Requests by the staff of the U.S. Nuclear Regulatory Commission. July 12.1993.
However, me have been informed by tir staff (NRC Staff Report on Outstanding Discovery Matters. August 9, 1993. at 2), that this motion is under negotianon. We request Intervenor and Staff to notify us prornptly if those negotiations end or if the parues determine that the Intervents's needs have been adequately satis 6ed.
122 i
'l
.-,-n,--.
_, _ ~,.,. -
l l
l Rese affidavits were obtained at a time when GPC could reasonably anticipate enforcement action against it.2
- 11. LEGAL SETTING GPC claims that the affidavits in question are not discoverable because they are protected by the attorney work-product privilege and the attorney-client privilege. Ibr reasons set forth below, we accept, at this time, both claims of privilege.
A.
Work Pteduct Privilege' De NRC's discovery rules regarding the work product doctrine are set out in 10 C.F.R. 6 2.740(b)(2), which provides:
(2) Trial preparation materials. A party may obtain discovery of docunents and tangible things otherwise discoverable urider paragraph (bXI) of this section and prepared in anticipation of or for the hearing by or for another party's representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of tim materials in the preparation of this case and that he is unabic without undue hardrhip to obtain the substantial equivalent of the snatcrials by other means. In ordermg discovery of such materials when the required showing has been made, the presiding officer shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the proceeding.
These rules are adapted from Rule 26(b)(3) of the Federal Rules of Civil Procedure, Commonwealth Edison Co. (Zion Station, Units I and 2), ALAB-196,7 AEC 457,460 (1974), which is itself a derivation of the Supreme Court's l
decision in Hickman v. Taylor, 329 U.S. 495 (1947). See Advisory Committee l
Note to 1970 Amendments fo Fed. R. Civ. P.,48 F.R.D. 459,499 (1970).
The affidavits in question were prepared in anticipation of a hearing. At the time, a section 2.206 petition was pending. Also, GPC had information that there might be an investigation by the NRC Office of Investigations. Hence, it reasonably believed that there would be some form of enforcement litigation for i
l 1
2 GPC's First Supplernrnial Respome to AHen L. Mosbaugh's First Set of lmerrogatories, July 13.1993 (GPC Supplerrent) at 6 omits any nention of the date s,f the interviews with its four employees. Sirin1 arty. GPC's Response does not appear to contain any date for these imerviews. We think this ambiguity in our record should be clanfied as there as no reason to consider tie date privileged.
3The begmning of this rectma of our Memorandum is drawn from our opmion in lltP-93-ll,37 NRC 469,472 (1993).
123
h which the affidavits might be necessary.d The affidavits are, therefore, covered by the work product privilege.
B.
Attorney-Client Privilege We accept the following statement of GPC as accurately setting fonh the law concerning the attorney-client privilege:s The United States Supreme Coun has held that, when the client is a corporation, the attorney-chent pnvilege applies to communications by any corporate employee regardless of position when the communications concern maners within the scope of tie employee's corporate duties and the employee is aware that tie information is being furnished to enable the attorney to provide legal advice to the corporation. Upjohn Co. v. UnitedStates, 449 U.S.
383. 396-97,101 S. Ct. 677,685-86 (1981); see also Admiralins. Co. v. United States Dist.
Court, 881 F.2d 1486,1492 (9th Cir.1989) The Court in Upjohn declined to establish an all-encompassing test for application of the attorney-client privilege to corporations. Instead, it held that each case must be evaluated to determine whether application of the privilege would further its underlying purposes of encouraging candid communications between client and coun el and providing effective representation of counsel. Upjohn, supra, 449 U.S. at 389,390-91,396-97,101 S. CL at 682-86.'
it is imponant to understand that Upjohn resolved an issue that had been dividing the couns of appeals: whether or not to extend the protection of the attorney-client privilege only to a " cont ol group" in a corporation or to all employees acting within the scope of their Juties. Upjohn took this second, enlarged view of the privilege. In the course of its opinion, at 449 U.S. 390,66 L. Ed. 2d 592, the Court stated:
[TJhe privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer 'o enable him to give sound and r
informed advice.
Then, at 449 U.S. 391-92, 66 L. Ed. 2d 592-93, the Coun quotes Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir.1978) (en banc):
In a corporation, it may be necessary to glean information relevant to a legal problem from t
middle management or non-managernent personnel as well as from top executives. 'Ihe attorney dealing with a complex legal problem "is thus faced with a 'llobson's choice'. If he interviews employees not having 'the very highest authority', their communications to him will not be privileged. If, on the other hand, he interviews only those employees with I
'GPC Respome at 910.
5 14. at 17.
'Sre also Daic Powr Co. (Catawba Nuclear Stauon. Units ! and 2), CLI-83-31,18 NRC 1303,1305 (1983).
I 124 D
v i
'the very highest authonty', he nmy find it ex.antly difficult,if not impossible, to determine what happened.'"
Applied to this case, the Board thinks of management's Hobson's choice slightly differently, but we nevertheless conclude that the privilege applies.
Management may decide it wants to investigate a problem and ascertain the truth. It may need to ask very probing questions. To encourage this kind of appropriate management action, in a complex regulatory setting in which an enforcement action was reasonably foreseeable, GPC used its lawyers. It is appropriate that these professionals should be given as much information as possible without having to risk public disclosure of their work. The attorney-client privilege protects this activity, and the company need not later reveal the affidavits it compiled. (Needless to say, it is only the affidavits that are protected and not the underlying facts, which are certainly discoverable. Upjohn,449 U.S.
at 395-96,66 L. Ed. 2d at 595.)
In this instance, GPC's employees spoke to GPC's lawyer concerning an important safety event. It was the lawyers' job to represent their employer, to ascertain the truth, and to disclose the truth as perceived by GIC. It is the purpose of the attorney-client privilege to provide the conditions under which employees may talk freely to the company attorney.
We therefore hold that these documents are covered by the attorney-client privilege, C.
Limitations on the Privileges There is one more complication to this situation. This arises because Inter.
venor asserts that some or all of these individuals may have been " hounded" or otherwise pressured to sign these affidavits? This mere assertion, not demon-strated at a hearing, is not sufficient to overcome the attorney-client privilege or the attorney work-product privilege. However, if Intervenor proved that fact at hearing, we could be persuaded to release the affidavits at that time. Upjohn, 449 U.S. at 396,66 L. Ed. 2d at 595, citing Federal Rules of Evidence 501 and S. Rep No. 93-1277, p.13 (1974) ("the recognition of a privilege based on a confidential relationship... should be determined on a case-by-case basis").
Texas Utilitics Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-84-50,20 NRC 1464,1468-69 (1984), citing Rule 1.7 of the ABA Model Rules of Professional Conduct.
7 1nicrven#s Motion to Conviel at 2.
125 l
1 P
i
Ill. TIMELINESS In its response to Intervenor's Motion to Compel, GPC claimed that the request to compel production of these documents is untimely and should be prohibited. Under NRC rules, Intervenor has no automatic right to reply to this claim in order to defend its timeliness. However, a reply will not be necessary because it appears to the Board that the documents being sought are sufficiently important that we will not deny them to Intervenor on the ground of untimeliness.
On the other hand, we caution all the parties to be timely, as the Board has the authority to penalize untimeliness in appropriate ways.
IV. WAIVER Intervenor's claim to waiver of the attorney-client privilege is based entirely on attorney statements concerning actions by Mr. Aufdenkampe.' These state-ments are not supported by affidavits. They are contradicted by GPC's attorney.'
l So we find that there is insufficient evidence to persuade us of the facts alleged I
to lead to waiver. Furthermore, as counsel for GPC points out, when the client is a corporation, the power to waive the attorney-client privilege rests with the j
corporation's management and is normally exercised by its officers and direc-i tors.'* In re Grand Jury Subpoenas, 89-3 and 89-4, John Doe 89-129 v. Under Seal,902 F.2d 244,248 (4th Cir.1990).
V.
ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 8th day of September 1993, ORDERED that:
Allen L. Mosbaugh's Motion to Compel is denied.
At any hearing in this matter, Georgia Power Company shall have available for production the affidavits covered by the Motion to Compel.
- 1J at 1.
'GPC Response at 2122.
30 1d at 19.
126 v
GPC shall promptly file in this docket the date on which each of the o
affidavits mentioned in the previous paragraph was taken.
THE ATOMIC SAFETY AND LICENSING BOARD James H. Carpenter (by PBB)
ADMINISTRATIVE JUDGE Thomas D. Murphy ADMINISTRATIVE JUDGE Peter B. Bloch, Chair ADMINISTRATIVE JUDGE l
l Bethesda, Maryland 1
l l
l 1
1 I
I 127 i
v 1
1 l
i
?
t t
i Cite as 38 NRC 128 (1993)
LBP-93-19 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD j
i
?
Before Administrative Judges:
i James P. Gleasce, Chairman Charles N. Kelber
[
Thomas D. Murphy j
[
In the Matter of Docket No. 50-293-OLA (ASLBP No. 93-678-03-OLA).
[
(Facility Operating License No. DPR-35) t i
f BOSTON EDISON COMPANY (Pilgrim Nuclear Power Stat!on)
September 13,1993 i
MEMORANDUM AND ORDER i
(Termination of Proceeding)
{
In connection with the Boston Edison Company (Licensee) application for an expansion of a spent fuel pool at its Pilgrim Nuclear Power Station, the Board has pending a request for hearing and petition to intervene filed by the Massachusetts Attorney General (Petitioner) on May 27, 1993. Several extensions of time for filing contentions were requested and granted and a subsequent notification j
from the Petitioner, dated August 25,1983, informs the Board that matters at issue with the Licensee have been satisfactorily resolved. "Ihe Petitioner therein withdraws its motion to intervene and request for hearing, and the Staff on
)
September 2,1993, advised the Board the it has no objection to the withdras:al.
)'
Accordingly, no matters in controversy existing between the panies, the Board terminates and dismisses the proceeding herein.
I
.l 128 l
I
I It is so ORDERED.
f FOR THE ATOMIC SAFETY AND LICENSING BOARD James P. Gleason, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland September 13,1993 P
I l
l 129 j
l i
)
l l
I Cite as 38 NRC 130 (1993)'
i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD i
Before Administrative Judges:
f I
G. Paul Bollwerk, Ill, Chairman Dr. Charles N. Kelber Dr. Peter S. Lam in the Matter of Docket No. 030-31765-EA (ASLBP No. 93-674-03-EA) t (EA 93-006)
(Order Suspending Byproduct Material License No. 37-28540 01)
[
i ONCOLOGY SERVICES CORPORATION September 21,1993 In response to a third NRC Staff motion for an additional delay in conducting a license suspension proceeding, the Licensing Board orders discovery delayed l
for seventy-five days.
t ENFORCEMENT ACTIONS: STAY OF PROCEEDINGS in determining whether to delay an enforcement proceeding pending the outcome of a Staff investigation, five factors must be weighed. 'Ihey are: (1) r length of the delay; (2) reasons for the delay; (3) risk of erroneous deprivation of the due process property or liberty interests of the licensee or any other pany; (4) assenion of the right to a hearing by the party opposing the delay; and (5) prejudice to the party opposing the delay. See CLI-93-17,38 NRC 44,49-52 (1993).
t f
130 I
i i
I e
9
-r r
r-
, = - - -
y
+*
re-- - ' - --
+-
w T -
-v
+ - '
w
,-e-w--
+-
+w r--+---
1
i ENFORCEMENT ACTIONS: STAY OF PROCEEDINGS l
In assessing the balancing factor of the reasons for the delay in the proceeding, the presiding officer is called upon to appraise two separate concerns. First, there is the question of what legitimate government interest is served by the delay. This involves an inquiry into the propriety of the Staff's demonstration that there will be a detrimental impact on the investigative process if the delay is not granted. Additionally, there is the question of whether the Staff has shown that there is a legitimate basis for the period of delay it seeks. This l
involves an inquiry into whether the Staff has made "a credible showing that it is attempting to complete its investigation expeditiously." LBP-93-10,37 NRC 455,462 (1993), ag'd, CLI-93-17,38 NRC 44 (1993).
EVIDENCE: HEARSAY (STANDARD OF ADMISSIBILITY)
RULES OF PRACTICE: IIEARSAY EVIDENCE It is the rule in administrative hearings that hearsay evidence is generally admissible so long as it is reliable (as well as relevant and material) evidence.
See Duke Power Co. (Perkins Nuclear Power Station, Units 1,2, and 3), ALAB-668,15 NRC 450,477 (1982).
ENFORCEMENT ACTIONS: STAY OF PROCEEDINGS f
Two components that make up the factor of prejudice to the party opposing delay in an enforcement proceeding are prejudice to the party's ability to conduct licensed activities and prejudice to its ability to defend against the charges in the enforcement order.
f ENFORCEMFNr ACTIONS: STAY OF PROCEEDINGS Regarding the ability of the party opposing any delay in an enforcement proceeding to defend itself against the charges leveled by the Staff, although the i
passage of time is likely to affect the memory of some witnesses, the prejudice arising from this phenomenon is extremely difficult to gauge in the abstract. See -
CLI-93-17,38 NRC at 58-59.
l ENFORCEMENT ACTIONS: STAY OF PROCEEDLNGS In granting a Staff request to delay an enforcement proceeding, the presiding officer has the responsibility to minimize the effects of any delay and to monitor 131
{
t
+
i I
l
i I
closely the status of the Staff's investigation to ensure that due diligence is being j
exercised to bring its inquiry to a conclusion. See id. at 60.
[
i MEMORANDUM AND ORDER I
(Granting in Part NRC Stan Motion to Delay Proceeding; Requhing Submission of Staff Status Reports)
Presently before us is the NRC Staff's third request to delay this license sus-pension proceedmg pending the completion ofits investigation into the activities of Licensee Oncology Services Corporation (OSC). De suspension at issue was imposed by a January 20,1993 Staff order discontinuing OSC's authorization is use sealed-source iridium-192 for high dose rate (HDR) human brachytherapy treatments at six specified OSC facilities in Pennsylvania. See 58 Fed. Reg. 6825 (1993). He investigation, which is being conducted by the NRC's Office l
l of Investigations (01), had as its initial focus a November 1992 incident in which a nursing home resident, after undergoing an HOR brachytherapy treatment at OSC's Indiana (Pennsyhunia) Regional Cancer Center (IRCC), was released l
with an iridium-192 source still lodged in her abdomen.
Acting pursuant to 10 C.F.R. 5 2.202(c)(2)(ii), we have granted in part two previous Staff requests for a delay in this proceeding by deferring discovery by the parties for consecutive periods of 120 and 90 days, or up through and i
including September 21, 1993. See LBP-93-10, 37 NRC 455 (1993), ag'd, l
CLI-93-17,38 NRC 44 (1993); LBP-93-6, 37 NRC 207 (1993), meated in part as moot, CLI-93-17, 38 NRC 44 (1993). He Staff now makes a request for i
an additional ninety-day delay. See NRC Staff Motion for Additional Delay of Proceeding (Sept.1,1993) [ hereinafter Staff Additional Delay Motion]. OSC f
again opposes this Staff request. See Response of [OSC] to NRC Staff's Third Motion for Additional Delay of Proceeding (Sept. 10,1993) [ hereinafter OSC Additional Delay Motion Response].
Ibr the reasons stated below, we grant the Staff's request in part by delaying _
j l
discovery for an additional period of seventy-five days. Also, we continue to require the Staff to submit status reports on the progress of the OI investigation.
j L BACKGROUND Our prior decisions in LBP-93-6,37 NRC at 210-13, and LBP-93-10, id.
at 459-60, contain an extended discussion of the backdrop to this proceeding from its initiation in early February 1993 through mid-June 1993 when we ruled on the Staff's second delay motion. Thercafter, as directed in LBP-93-10, id.
at 467, the Staff filed a status report on the ongoing investigations of 01 and 132 l
'l 1
i
.a
the agency's Office of Inspector General (OIG) into the November 1992 IRCC incident and related events at other OSC facilities. NRC Staff Status Report on Investigations (Aug. 2,1993) [ hereinafter Staff Status Report].
Referencing the accompanying affidavits of 01 and OlG officials, the Staff stated in its status report that both the 01 and OlG investigations were still on-going. As it had done previously, the Staff noted that because of OlG's findings from one completed report regarding OSC's activities, OlG was pursuing addi-tional issues. OlG's completion of this additional inquiry was being hampered, the Staff contended, by the failure of OSC to comply fully with outstanding ad-ministrative subpoenas and by OSC's requests to delay scheduling interviews.
See id. at 2. The Staff also stated that the 01 investigation was not yet completed because interviews 01 previously had indicated it wished to conduct still had not been obtained. He Staff asserted that this was a result of OSC's failure to provide all documents requested under several outstanding administrative sub-poenas. He Staff further declared that it was working with the agency's Office of the General Coursel to request that the United States Department of Justice (DOJ) seek a court order enforcing the subpoenas. Sec id.
With its September I,1993 motion, the Staff now seeks a third delay of this proceeding, through December 20,1993. His time, however, the Staff puts forward only the incomplete 01 investigation as the basis for delay.1 Referring to statements in the attached affidavit of 01 Deputy Director Roger A. Ibrtuna, the Staff asserts that OI still has not been able to complete the necessary witness inteniews or reach a final determination about whether any other documents are needed because of the purported failure of OSC to produce all subpoenaed documents. The Staff also continues to maintain that, pending the completion of the 01 investigation, the release of investigative documents and interview j
transcripts through civil discovery could adversely affect ops investigation by jeopardizing the integrity of any witness interviews yet to be conducted and by revealing to OSC the methods and focus ofits investigation. See Staff Additional Delay Motion at 6-7.
In its response, OSC again protests that further delay is unwarranted because the Staff has failed to meet its " good cause" burden under section 2.202(c)(2)(ii).
OSC maintains that the purported basis for the delay -its failure to supply subpoenaed documents - is not compelling because the Staff has not demon-strated the relevance of the documents requested so as to meet its increasing burden to justify any delay. See OSC Additional Delay Motion Response at 1-4. This demonstration is particularly wanting, OSC asserts, in light of Ol's
'In its motion. the Staff states that O1G is not requesting any additional delay in this proceedmg. See Staff Additional Delay Monon at f, n.3 Fwther. in its August status report the staff inforned us that a Commonwealth j
of Pennsylvama cnnunalinvestiganon regardmg the November 1992 IRCC incident has been concluded and s'ill not result in any state entrunal cimrres against OSC or its employees. See Staff Status Report at 2 3. The staff thus makes no attempt to rely on any potential state prosecution as a basis for delay.
133
recent issuance of an additional subpoena for the documents that 01 previously contended were required to be disclosed under several outstanding subpoenas.
OSC also declares that there is a substantial risk that the Staff's suspension order is erroneausly depriving OSC of its license, as evidenced by recent fil-ings regarding summary disposition of several issues posed by the parties for litigation in this proceeding. See id. at 5-6.
IL ANALYSIS In its recent decision affirming our June 1993 determination to delay discov-ery in this proceeding for an additional period of 120 days, the Commission identified five factors it found were appropriate to weigh in reaching a deci-sion about whether to grant the Staff's delay request. These elements are: (1) length of the delay; (2) reason for the delay; (3) risk of erroneous deprivation of the due process property or liberty interests of the Licensee or any other party; (4) assertion of the right to a hearing by the party opposing the delay; and (5) prejudice to the party opposing the delay. See CLI-93-17,38 NRC at 49-52.
These factors continue to be the relevant considerations and we thus evaluate each in turn.
A.
Length of the Delay If granted, the additional delay sought in this instance would mean that discovery in this proceeding will have been deferred for a little over ten months from the initiation of this litigation in early February 1993. In CLI-93-17, the Commission found the eight-month total delay engendered by our grant of the Staff's second delay request "to be tolerable only if Staff can demonstrate an important government interest coupled with factors minimizing the risk of an erroneous deprivation. 38 NRC at 53. This observation applies with equal force here, mandating that we give close scrutiny to the reasons for delay given by the Staff, a.; well as the risk of an erroneous deprivation of any OSC property interest in its license.
B.
Reasons for the Delay In assessing the reasons for the delay, we are called upon to appraise two separate concerns. First, there is the question of what legitimate government interest is served by the delay. This involves an inquiry into the propriety of the Staff's demonstration that there will be a detrimental impact on the investigative -
process if the delay is not granted. Additionally, there is the question of whether the Staff has shown that there is a legitimate basis for the period of delay it j
i 134
seeks. As we noted previously, this involves an inquiry into whether the Staff i
has made "a credible showing that it is attempting to complete its investigation expeditiously." LBP-93-10,37 NRC at 462.
In its second delay request, the Staff put forth as its principal reason for delay the potentially deleterious impact that the disclosure of witness interview transcripts and documentary evidence gathered during agency investigations would have upon the integrity of yet to be completed witness interviews. The Staff expressed particular concern about how the disclosure of materials gathered by the agency's initial fact-finding Incident Investigation Team (IIT) concerning the November 1992 IRCC incident would impact upon the OI investigation as it focuses on possible incomplete and/or inaccurate statements by OSC personnel.
In its third delay motion, the Staff expresses this apprehension again, by way of the affidavit of OI Deputy Director Fortuna. See Staff Additional Delay Motion, Affidavit of Roger A. Fortuna at 4 [ hereinafter Rrtuna Affidavit]. In addition, Deputy Director Fottuna indicates a concern about the possibility that information obtained by 01 subsequent to the IIT investigation, if prematurely disclosed, "could reveal to OSC the methods and focus of the continuing 01 investigation and thereby harm the ongoing investigation." Id. at 4.
In CLI-93-17, in assessing the validity of the Staff argument that premature disclosure of investigative materials could jeopardize the integrity of still to be completed witness interviews, the Commission concluded that the Staff has provided enough detail to demonstrate that discovery here, which would disclose documents and transcnpts associated with the IIT report and related documents and transcripts obtained subsquent to the IIT investigation, would interfere with the ongoing 01 investigation into possible incomplete or inaccurate statements by cancer center personnel and OSC officials.
38 NRC at 55. OSC now contends that the Staff's continued reliance upon this basis is insufficient to fulfill our admonition that additional delay requests require Staff explanations that are more specific and detailed. See OSC Additional Delay Motion Response at 2-4 (citing LBP-93-6,37 NRC at 221; LBP-93-10,37 NRC at 466 n.8).
We conclude, however, that at present this Staff statement of reasons con-tinues to suffice.2 'Ihe potential relevance of the IIT transcripts and documents 2in its response, OSC contends that the affidavit of 01 Deputy Director Fortuna, which provides the evidentiary underpinning for the 3 aff's delay motion, should be disregarded because it is based on " hearsay" that lacks substance and credibility. See OSC Additional Delay Motion Response at 4. It is, of course, the rule in administrative hearings that hearsay evidence is generally admissible so long as it is retiabk (as well as sekvant and snaterial) evidence. See Duke l'ower Ca (l'erkins Nuclear Station. Units I,2 and 3). AIAB-668.15 NRC 450, 477 (1982). Deputy Duector Fortuna is a senior 01 supervuor rather than the Ol investigator with direct operational responsibility for the OSC investigation. Nonetheless, his affidavit snakes it cicar that he is " responsible (Contenued) 135 v
to this proceeding, and thus their status as possibly discoverable material, remains obvious. Further, OSC has provided no basis for questioning the l
Staff's assertion that some fifteen witness interviews, including some with IRCC personnel, are necessary to complete the 01 investigation, thereby implicating 6
the Staff's concern about the impact of premature disclosure on the integrity of witness statements. In addition, OSC presents nothing suggesting that the Staff's concern about premature disclosure of the " methods and focus" of the 01 investigation is ill-defined or unfounded. At this juncture, therefore, the Staff's showing is sufficient to establish a strong government interest in any delay.
Of course, this strong government interest showing must go hand-in-hand with a demonstration that the Staff is acting with reasonable diligence to complete its investigation. In seeking a second delay, the Staff advised us that it hoped to conclude its investigation by October 1993, with the caveat that this depended upon completing witness interviews and OSC compliance with outstanding document production requests served upon OSC in February 1993. See LBP 10,37 NRC at 462. Now, the cardinal reason offered by the Staff for not having finished its investigation is OSC's purported lack of cooperation regarding these OI subpoenas. As noted above, see supra p.133, the Staff first advised us in its August status report that because OSC had not complied fully with several cetstanding subpoenas, it was taking action to obtain judicial enforcement of the subpoenas. In its delay motion, however, the Staff declares that on August 26, 1993, it served OSC with a new subpoena with which OSC now must comply before OI can complete its witness interviews and conclude its investigation.
See Staff Additional Delay Motion at 6.
(
For its part, OSC asserts that Ol's actions regarding these document requests i
demonstrate that the Staff is not acting diligently to complete the investigation.
OSC declares that it has objected to some of the OI production requests as unduly burdensome and not relevant to the OIinvestigation. See OSC Additional Delay Motion Response at 1-2. Before us, however, OSC has not presented any specific arguments supporting its position that the document requests are improper. Instead, it relies upon Ol's purported failure to justify the relevance of its requests as proof that they are invalid and thus cannot support the Staff's additional delay request. OSC also contends that Ol's issuance of a new subpoena in lieu of enforcing the prior subpoenas evidences conduct that improperly delays this proceeding. See id. at 2.
In assessing whether the Staff is attempting to complete its investigation promptly, we need not make any judgment about whether certain documents are i
for, among other things, the daily oversight of ol field operations
- and that he is familiar. through my discussions l
with Gerard Kenna, the investigator assigned to this investigation, with the status of the loSC) investigation."
Ftriuna Affidavit at 1. This is sufficient in this instance to establish the rehability of the statemems in his 4'hdavit.
136 t
r s
, - ~
i I
i or are not subject to disclosure under a particular Staff investigative subpoena, t
panicularly when the party seeking to avoid comphance has not presented any substantive arguments to suppon its refusal to comply.3 The issue, instead, I
becomes one of the reasonableness of the Staff's efforts to complete its inquiry, given the complexities of the panicular investigation.
The Commission already has recognized that the 01 investigation is a complex one that is not necessarily subject to a prompt resolution. See CLI.93-17,38 NRC at 56. In this context, we do not think it untoward for 01 to want to see its investigative document requests substantially complied with before it completes any final interviews and closes its investigation. Nor do we think it unreasonable for 01, when OSC is aggressively challenging the scope of existing subpoenas, to attempt to ensure that there is no question about what documentation is j
being sought by issuing a subsequent, niore detailed subpoena.* Thus, rather than denoting a Staff failure to attempt to complete its investigation diligently, these recent developments regarding the Staff's subpoenas provide sufficient justification to suppon some additional delay.
C.
Risk of Erroneous Deprivation In assessing the factor of risk of erroneous deprivation relative to the Staff's second delay request, the Commission found "of panicular relevance" the fact that OSC had failed to avail itself of the opponunity afforded by 10 C.F.R.
j
$ 2.202(c)(2)(i) to request that the Board set aside the immediate effectiveness of the January 1992 suspension order. CL1-93-17,38 NRC at 57. The Commission also noted that in responding to the Staff's previous delay requests, OSC had i
never challenged whether there was " adequate evidence" to support the basis for the immediately effective suspension order. See id. The Commission concluded that these factors established that the risk of the erroneous deprivation of OSC's property interest in its license had been reduced such that, in conjunction with the Staff's showings about possible interference with the 01 investigation and the strong government interest in protecting that inquiry, it weighed in the Staff's favor. See id.
While the first circumstance - OSC's failure initially to contest the imme-diate effectiveness of the Staff's suspension order - remains extant, OSC now 3 0ur authonty to delve mto the vuhdity of de 01 investigative subpoenas is not enurely clear given that. under de terms of the subpoenas. OSC could have presented its substant:ve concerns about deir validity to de Conunission in the form of a rnotion to quash. As far as we are aware. OsC has not done so.
"In companng the O! subpoenas med m February 25 and 26.1993. to the nere recent August 26, 1993 request. the nuun distinctions see a to be flut (1) the Augurt subpoena is aimed at disclosure of particular types of docunents relating to OsC's s spended Byprodua Mmenals License No 37-285441, wlereas the Tebruary subpcenas set forth broancr categonca of documents retning to that license, and (2) de August subpoena seeks disclesure of dacunents relatmg to another purported OsC byproduct matenals license, No. 37-2817941. in gercral categones that are smular to those set farth in de February subpoenas 137 l
w-
seeks to invoke the erroneous deprivation fact-by raising a challenge to the ad-equacy of the January 1993 enforcement order. According to OSC, its pending summary disposition motion challenging cenain of the bases for the suspension order establish that the order is, in substantial part, without a legal foundation.
This, OSC concludes, establishes a clear risk of an erroneous deprivadon of its property interest in its license (and its ability to carry out the medical activities authorized by that license) such that further delay in this proceeding should not be permitted. See OSC Additional Delay Motion Response at 5-6.
We are unable to agree with OSC's assessment. Initially, we must point out that the issue raised by OSC regarding the legal sufficiency of certain bases for the January 1993 order is not, as OSC seems to suggest, a matter that has been definitively resolved in its favor. In a recent response to OSC's summ::ry disposition motion, the Staff contests OSC's argument that there is an inadequate legal footing for some bases in the order. See NRC Staff's Response to [OSC} Motion for Summary Judgment with Respect to Certain Issues and NRC Staff Motion to Dismiss (Sept. 16, 1993). But, even assuming that these OSC legal assertions ultimately are found to be correct, the suspension order bases in question are not all-encompassing. They involve only two of the eight instances of alleged OSC deficiencies identified during December 8,1992 inspections of OSC's Ixhighton and Exton, Pennsylvania facilities and two of four deficiencies attributed to the corporate radiation safety officer as a result of agency investigations and inspections relative to the November 1992 IRCC incident. Given that OSC's summary disposition challenge does not relate to the various other bases put forth by the Staff in support of its January 1993 suspension order, we cannot say that it establishes that the order otherwise is based only upon " mere suspicion, unfounded allegations, or error" so as to fail to meet the minimal " adequate evidence" showing required under section 2.202(c)(2)(i). Accordingly, OSC has failed to show any risk of erroneous deprivation sufficient to establish this as a significant factor favoring the denial of the Staff's delay request.
D.
Assertion of the Right to a IIcaring In assessing the Staff's second delay request, based on OSC's past actions the Commission found that it has insisted upon its hearing rights such that the founh factor regarding the assertion of hearing rights weighs in its favor. See CLI-93-17,38 NRC at 57-58. As is evident from its response to the Staff's third delay request, OSC persists in claiming its right to a hearing with considerable vigor. Accordingly, this factor continues to weigh in its favor.
138
\\
i E.
Prejudice to the Party Opposing the Delay Of the two components that make up the factor of prejudice to the party opposing the delay - prejudice to the ability to conduct licensed activities and prejudice to the ability to defend against the enforcement order charges - tne former is the casier to measure in this instance. In considering the propriety of our ruling on the Staff's second delay request, the Commission noted that because its license suspension has been rescinded at the only two facilities at which OSC subsequently requested permission to treat patients,"the exact extent of the financial burden on [OSC] at this time is unclear." CLI-93-17,38 NRC at 59. OSC's conclusory declaration before us that its assertion of its hearing i
rights has involved " substantial cost," OSC Additional Delay Motion Response at 6, provides no greater elucidation.
Here remains the concern about OSC's ability to defend itself against the charges leveled by the Staff. As the Commission observed, although the passage of time is likely to affect the memony of some witnesses, the prejudice arising from this phenomenon is extremely difficult to gauge in the abstract. See CLI.
93-17,38 NRC at 58-59. The inherent uncertainty of this factor, in conjunction with OSC's failure up to this point to offer any concrete evidence that the additional delay arising from the Staff's request will otherwise impede its ability to present evidence when a hearing is convened, leads us to conclude that at present the impact of delay on OSC's " ability to defend" does not provide a compelling counterweight for OSC in the balancing process.
F.
Conclusion Based upon the showings made by the Staff and OSC relative to the Staff's delay request, the one factor that clearly weighs on OSC's side of the balance is its continued, forceful assertion of its right to a hearing, ne other factor that accretes to OSC's side of the balance is the length of delay, which continues to grow and requires that the Staff provide compelling reasons for its hearing postponement requests As we have explained, however, the Staff has met this burden at present by demonstrating that there is a significant government interest in protecting the integrity of the 01 investigation, that permitting discovery has a reasonable likelihood of impairing Ol's ongoing investigation, and that, notwithstanding the need for more time, OI continues to conduct its inquiry with reasonable expedition so as to bring it to a timely conclusion. Nor do we find that OSC's challenges to the legal justification for some of the Staff charges in the January 1993 suspension order establish a lack of " adequate evidence" for the order, thereby allaying any argument that there is a compelling risk of an i
erroneous deprivation of its property interest in its license. Finally, and perhaps most critically, OSC again has failed to establish that any additional delay will 139 1
result in any particular harm to its fmancial interests, to the interests of its patients, or to its ability to present an adequate defense at any future hearing.
We conclude, therefore, that the balance remains in the Staff's favor so as to warrant some period of additional delay.
III. FURTilER PROCEEDINGS BEFORE Tile BOARD We have advanced, and the Commission has not disavowed, our authority to minimize the effects of any delay and to monitor closely the status of the Staff's investigation to ensure that due diligence is being exercised to bring its inquiry to a conclusion. See CL1-93-17,38 NRC at 60. In exercising this responsibility previously, we have granted the Staff's delay request only as it encompasses discovery and any portion of the adjudicatory process that can proceed only after discovery is completed. We do so again here. In addition, we have concluded that it is appropriate to grant only a portion of the delay period requested by the staff. For the reasons set forth below, we do so in this instance as well.
As we noted above, see supra p.137, the Staff's determination to issue an additional subpoena rather than seek judicial enforcement of its outstanding document requests was reasonable under the circumstances. That action, however, does have potentially far-reaching consequences for the expeditious completion of the 01 investigation and, by implication, this proceeding.5 As such, it merits our close scrutiny to ensure that it does not prolong the OI inquiry unnecessarily.
Prompt negotiations between the parties to resolve their differences about any outstanding 01 document request, as opposed to agency-initiated subpoena enforcement litigation, may well be the most expeditious means for resolving any dispute over the scope of that request. Nonetheless, in the context of this proceeding in which the Staff has chosen to suspend OSC's license while at the same time continuing an investigation into its activities, the Staff ultimately has the burden of demonstrating that it is acting expeditiously to complete its investigation. As a consequence, if good-faith negotiations are unsuccessful in resolving the dispute between the parties over document production,6 expeditious 5 The Staff already has suggesed that its concern about the detrinental impact of premature release ofinvestigative rnaterials rnay well apply to ele DoJ cnminal-referral process that could follow completion of the 01 inquiry.
ser LBP-93-10,37 NRC at 459 & n1 Such an eventuahry could cause the staff to request an additional delay ndmg de outc.one of any DOJ referrals.
{In this regard, we note that in a september 16,1993 letter to the staff regarding compliance with tie August 26, 1993 subpoena, counsel for OsC declares that
- absent a federal court order, osC mill not be compelled te respond to irrelevant and/or overly burdensone requests." NRC staff Report on Documemation sought in Administrative subpoena (sept. 17, 1993), attach. at I (letter from M. Colkitt, General Counsel, oSC, to B. tests, Director, of Repon 1 Field ofhee, NRC (sept. 16, 1993)). The lener goes on to indicate which requests in the August 26 subpoena osC considers irrelevant and burdensome.
140 W
l action to obtain prosecution of a subpoena enforcement action in federal district I
court likely is the most viable avenue open to the Staff for fulfilling its burden to demonstrate it is acting to complete its investigation promptly.
We need not reach now the issue of the appropriate timing of any Staff action in this regard. Our concerns about the potential for delay do, however, merit our heightened scrutiny into the status of this document dispute. For the same reason, we will shorten somewhat the stay period granted from the requested ninety days to seventy-five days.
Accordingly, at twenty-one day intervals, the Staff is required to file a status report, accompanied by supporting affidavits, regarding the still-ongoing OI investigation. In particular, the Staff should describe the status of any negotiations with OSC regarding any outstanding Staff document requests rela'ing to the 01 investigation or, alternatively, when the Staff anticipates subpoena enforcement litigation will be instituted. Further, although the Staff apparently no longer relies upon the OIG investigation as a direct basis for delaying this proceeding, see supra note 1, if it anticipates that OlG activities will be relevant to any further delay request, the Staff should advise us of those activities as well.7 Finally,' as with our previous determinations, to obtain a delay of this proceeding beyond the seventy-five day period we sanction today, twenty days before the expiration of that period the Staff must file a further request with the Board that indicates the specific period of additional delay sought and describes in detail, with supporting affidavits and documentation, the specific reasons why
" good cause" exists for the delay. The schedule for such a Staff motion and OSC's response are set forth below.
For the foregoing reasons, it is this twenty-first day of September 1993, ORDERED that:
I 1.
The September 1,1993 motion of the Staff to delay this proceeding for a period of ninety days is granted in part in that all discovery in this proceeding is delayed for a further period of seventy-five days, up through and including Monday, December 6,1993, provided, however, that if the Staff files a request for additional delay in accordance with 3 bdow, discovery will not commence absent further order of the Board.
2.
On Tuesday, October 12,1993, and Tuesday, November 2,1993, the Staff I
should file a report, with supporting affidavits, describing:
7With the Comrnonwealth's deternunahon that it will not bnng any ennunal prosecuuons relauve to the November 1992 IRCC incident, see supre note 1. we have not included in this nemorandum and order our pnur directive that the Staff inform us of any mminal indictnrnt er informanon filed agamst OsC or any of its employees relative to that incident or die January 1993 suspension order. Nonetheless, it is apparem that if a amunal acuon were to be insututed relaung to the matters at issue in this proceedmg, the parues should notify the Board of tius fact promptly 141 I
~-
A.
The status of the OI investigation regarding the matters set forth as the basis for the January 20, 1993 suspension order and any related circumstances, including a discussion of OSC's compliance with any outstanding OI administrative subpoenas that describes (i) the status of any negotiations between the Staff and OSC regarding any subpoena or (ii) the Staff's actions concerning any timetable for the institution of civil enforcement litigation relative to any subpoena.
B.
The status of any OlG investigative activities regartling the November 1992 IRCC incident and any related circumstances, if the Staff anticipates that those activities will be relevant to any further Staff delay request.
3.
A Staff request for an additional delay of any aspect of this proceeding -
beyond Monday, December 6,1993, must be filed on or before Tuesday, November 16, 1993. In its motion the Staff must describe in detail, with l
supporting affidavits and documentation, why " good cause" exists for the delay, including an exposition of the specific reasons why the Board's failure to grant the additional period of delay sought will prejudice any ongoing federal or state investigation or criminal prosecution. OSC may respond to the Staff's request on or before Monday, November 29,1993. Both the Staff's motion and OSC's response should be served on the Board's members and opposing counsel by a method (e.g., express mail) that ensures delivery by the next business day.8 THE ATOMIC SAFETY AND LICENSING BOARD G. Paul Bollwerk, III, Chairman ADMINISTRA~ITVE JUDGE Charles N. Kelber ADMINISTRATIVE JUDGE l
Peter S. Lam ADMINISTRATIVE JUDGE i
Bethesda, Maryland September 21,1993 I
6 Copies of this nenorandum and order are tang sent this date to OsC counzl by facsimile transmission aru! to staff counsel by r,-Mail transmission through der agency's wide area netwat system.
142 l
1
t Cite as 38 NRC 143 (1993)
LBP-93-21 UNITED STATES OF AMER!rA i
NUCLEAR REGULATORY COMMISSION
+
ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Peter B. Bloch, Chair Dr. James H. Carpenter Thomas D. Murphy in the Matter of Dockd Noe. 50-424-OLA-3 50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3) l (Re: License Amendment; Transfer to Southern Nuclear)
GEORGIA POWER COMPANY, et af.
(Vogtle Electric Generating Plant, Units 1 and 2)
September 24,1993 f
k The Board acknowledged error in an earlier opinion, re.sulting from accepting the unopposed arguments of Intervenor and therefore interpreting a portion of the Intervenor's Amended Petition out of context. This opinion narrows the issues.
RULES OF PRACTICE: MOTION FOR RECONSIDERATION (NOT FOR NEW ARGUMENTS)
Motions for reconsideration are for the purpose of pointing out errors in the existing record, not for stating new arguments. However, new arguments have been presented and there is no time pressure in the aresent status of this case.
Consequently, the Board chose in its discretion to decide the motion on the merits by granting it.
I i
I43 l
i
t RULES OF PRACTICE: CONTENTIONS Intervenors must carefully comm icate the scope of their contentions so that neither the board nor the other parties need to guess their meaning. Unclear l
contentions may be construed narrowly rather than having the parties search for l
materials that might have been referenced by a vague, ut. specific reference.
l i
RULES OF PRACTICE: CONTENTIONS (REFERENCES TO
~
OTilER MATERIALS)
He Board refused to rule that contentions could not reference material not included in the petition. It considered it more important that the contentions be clearly worded, with or without references, and that the parties not be required by a nonspecific reference to hunt for a needle in a haystack l
4 RULES OF PRACTICE: CONTENTIONS ne amended petition should be construed in light of all four corners of the i
document, and individual passages should not be interpreted out of context.
MEMORANDUM AND ORDER (Georgia Power Motion to Reconsider Scope of Proceeding) i i
In our unpublished decision of August 12,1993, at pages 2-3, we said:
{
J We f:nd that Intervenor is correct in each statement it makes in Intervenor's Report,3 l
2 j
especially at p. 2. footnote 1. In particular, the Arnended Petition states, at p. 6, footnote 2
2 (continued)- with respect to 10 CFR I 2.206 petitions filed on September 11,1990,and l
July 8,1991:
Because both of these petitions contain significant factual information relating to all
]
four contentions, petitioners hereby incorporate by reference these two petitions into the body of this amendrnent.
j Subsequently, on August 23, 1993, Georgia Power Company (GPC) filed a Motion for Reconsideration of August 12, 1993 Memorandum and Order or in the Alternative for Certification. (Motion for Reconsideration.) his Memorandum and Order shall grant GPC's Motion for Reconsideration.
1 j
8 Intervenor's Report of the Status of Discovery ( ugune 9,1993).
2 j
Arnendrnents to Petition to Intervene and Request for Hearing. Decernher 9.1992.
]
4 144 j
2 i
e r
.,_,,_.m m.-. - -... -,..
..._-,,,,....,,.r
,mvm.-.,,,,-
_m,.,..,,.r,,-,,._m...
., _ _m,
.- ~.
i l
Our review of the Amended Pethion persuades us that the main text of that -
Petition clearly delineates the major issues that suppo t the contention. 'Ihere are a few references to the section 2.206 petitions - but only in footnotes.
These footnotes reference only portions of the petitions that are relevant to the text that is being footnoted. If Intervenor intended more than this, he did not
{
make it plain in the document, and parties and adjudicators are not required 10 i
search for useanings that are not obvious. We have therefore decided that the l
footnotes are an add-on and do not change the thrust of the primary argument I
in the text.
L PRELIMINARY PROCEDURAL POINT i
f n
We consider GPC's Motion for Reconsideration to be extraordinary because
'l it raises new arguments that GPC had the opportunity to raise at each of the i
following earlierjunctures: its response to Allen L Mosbaugh's (Intervenor's) d motion to produce, its response to Intervenor's motion to compel, and its status ?
i report concerning negotiations among the parties. Indeed, Intervenor's argument -
l in its Report on the Status of Discovery, August 9,1993, was persuasive to -
l us concerning the scope of discovery. Since GPC knew that this issue was.
l unresolved it also had an opportunity to use its status report to brief this issue.
{
Ordinarily, a motion for reconsideration points out a deficiency in the way l
a board considered the arguments before it. It should not delay a case by.
l presenting new nrguments that should have been presented earlier. ~ Texas l{
Utilities Electric Co. (Comanche Peak Electric Station, Units 1 and 2), LBP-84 '
-l j
10,19 NRC 509,517-18 (1984); Tennessee Valley Authority (Hartsville Nuclear -
Plant, Units I A,2A,1B, and 2B). ALAB-418,6 NRC 1,2 (1977).
i In this case, no party objects to the nature of this motion and we are no' under any time pressure because a delay in discovery has been granted to permit Staff '
.l to complete a pending investigation. Therefore, we do not deny this request.
l because of its extraordinary nature. Instead, fairness requires that we decide the motion on its merits.
j II. THE MERITS OF THE PETITION A.
References Relating to Alienation of Control J
The most persuasive argument presented by GPC (Motion at 13,14, and 15) '
I is contained in the following statement:
)
)
Intervenor's Amended Petition did not specify any issues other than the atleged illegal license j
transfer and the alleged false statements relating to LER 90-006...
1 145 4
1 3
9 I
e t
Nor could GPC reasonably infer that Intervenor intended to raise.. issues (relating to its section 2.206 petinonsl in his Arnended Petation. In tte cxmtext in which they were used in the Anrnded Ittition, the references to the ( 2.206 petitions appeared to be nothing rnare than references to doeurnents asserted to support the specific allegations discussed in the Amended Ittition.
Ibr exarnple, footnote 2 of the Arnended Petition appears in tte section discussing the alleged illegal license transfer and references the 2.206 petitions as evidence aclated to the creation of Southern Nuclear.
tntervenor's broader view of the references to his 2.206 pentions is unreasonabic.
The Staff of the Nuclear Regulatory Commission (Staff) agrees with GPC's position.3 B.
Principles of Interpretation We conclude that 10 C.F.R. 5 2.714(b)(2) should be interpreted not only as a pleading requirement but also as a principle of interpretation. Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CL1-93-3, 37 NRC 135,142-43 (1993)(petitions should be organized so that their meaning is obvious);* Public Service Co. of New Hampshire (Seabrook Station, Units I and 2), CLI-89-3,29 NRC 234,240-41 (1989) (a reference in a contention to a massive document lacks sufficient clarity because the Commission need not 1
search for a needle in a haystack).
Section 2.714(b)(2) requires that Petitioner state what he will rely on and the portion of the application that he is differing from. Thus, the regulation requires substantial specificity and it is a settled rule of practice at this Commission that contentions ought to be interpreted in light of the required specificity, so that adjudicators and parties teed not search out broader meanings than were clearly intended.
We reach no holding on the broad argument that material cannot be incor-porated in a petition by reference. It appears to us that such matters are better decided on a case-by-case basis by interpreting the materials actually filed and the nature of the references in question. As the Appeal Board said in Texas Util-itics Electric Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868, 25 NRC 912,930 (1987):
3 staffs septenter 9.1993 Response to Munon for Reconsideranon of August 12.1993 Menoranduin and order or in the Ahernauwe for Ceruficauon. at 6-7.
8 We do not accept stafra argunere that de cited case neans that no outside docunents nwy be referenced.
(Staff Respume at 5.) In Rosha sero. 37 NRC at 146. the Conumssion says diat Stdr questmar may not be cited in support of a ewiennon because questons do not by thennelves indicate that an I:nvironnental Report is inadequate.
146 r
e
i
[T]he bases requisernent is merely a pleading requirement designed to make cenain that a proffered issue is sufficiently articulated to provide the other parties with its bmad outhnes
)
i and to pmvide the Licensing floard with enough information for deternuning slether the issue is appropriately litigable in the instant proceeding. The requirement generally is fulfilled
{
when the sponsor of an otherwise acceptable contention provides a brief recitation of the factors underlying tic contention or references to docunents and texts that provide such reasons.
We are persuaded that the scope of the contention should be determined by interpreting it in hght of the entire Amended Petition. We admit that after re-J reading that document in light of the Motion for Reconsideration, we conclude that we erroneously accepted Intervenor's argument and interpreted passages out of context. We also conclude that Intervenor's references to the section 2.206 petition were intended only to supply additional material in support of the basic facts that were supplied in the petition.5 A careful examination of the Amended Petition will show this to be so.
Ihr example, at page 5 n.2, Intervenor makes his first mention of the section 2.206 petitions. The footnote begins: " Evidence relating to the creation of SONOPCO is contained ir, petitions filed.. pursuant to 10 C.F.R. 2.206."
This is the predicate for a footnote that concludes:
Because both of these petitions contain significant factualinformation relating to aH four contentions, petitioners hereby incorporate by reference these two petitions into the body of this amendnent.
His concluding paragraph, read out of context, seems very broad. It could be a general reference to all the issues and evidence presented in the petitions.
However,in light of the first sentence of the footnote, we think it appropriate to interpret the concluding paragraph as a careful effort to ensure that Intervenor could rely on anything in the petitions having to do with the creation and operation of SONOPCO.
C.
References with Respect to Character The Amended Petition contains the same general pattern that we have just discussed in subsequent references to the petition contained in its discussion of the factual basis of Contentions 2, 3, and 4.
At the bottom of page 14 5 sce, in support of tlus pouuan, the Sepeember 9,1993 NRC staff Response to Motion for Reconsiderauon of August 12,1993 Memorandum and order, or in the Ahernauve for Ceruficanon (Staff Resptmse). at 6.
we are aware that Intervenor's Response, at 3, particularly footnote 1, cites paruons of GPC's Response to the Anrnded Prution in support of its mterpretation However, we were rever impressed by GPC's argument omt erre was any relevance to the adrrusr. ion of contrnuona in this proceedmg to whether or run tiry were raised in the prior secuan 2EM peupon. We are also not persuaded that because GPC made diat argurrerd Otat either GPC or de Bonrd should interpret er Amended Ittinon to incorporate in its enurery or secuan 236 petition i
147 i
l 1
I i
1 1
i of the petition, Intervenor states,"ne factors demonstrating that SONOPCO management does not have the candor, truthfulness and willingness to abide by regulatory requirements necessary to operate a nuclear facility follows." The Amended Petition then focuses on an alleged conspiracy to submit materially false information in two different arenas. Near the end of the discussion of Contentions 2,3, and 4, on page 16, in footnote 11, there is general language l
l reminiscent of the language we have discussed in the text above. "Ihe footnote
" incorporates the petition." We conclude, however, that this reference is solely for the purpose of buttressing other bases for the existence of the alleged conspiracy to submit false information.
Similarly, on page 18, Intervenor " incorporates by reference the entirety of his July 8,1991 petition" but then specifically mentions two sections relating to false statements. We also interpret this general language as a careful, lawyerly device to preserve the right to use material contained in the petitions that supports the allegation of a conspiracy to submit false information.
l t
D.
Conclusions To the extent that the cited reference material falls within the argued con-tentions, the references are effective to incorporate referenced material that may be the basis for further discovery. But the references do not raise new points l,
not argued in the Amended Petition. There wits nothing in the Amended Pe-tition that we interpret to indicate that Intervenor would rely on other portions of the section 2.206 petitions, including portions of those petitions that allege violations of technical specifications.
l Since Intervenor knew of the other allegations in the section 2.206 petition at the time it filed the contention, we conclude that it included by reference only those portions of the section 2.206 petition that were relevant to its discussions of its contention in its Amended Petition. It voluntarily excluded the nondiscussed matters from the scope of its petition. Hence, those nondiscussed matters may not be included in this proceeding at this time.'
Intervenor is not precluded from moving to add additional matters as bases to its contention, but the ground for this motion must be that the additional matters are relevant and newly discovered. We derive this principle from Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units I and 2),
l LBP-93-1,37 NRC 5,20-21 (1993), which stated, with citation to appropriate authority:
' At the conclusion of Phase I of this proceeding, we will have compikd a secord and we wiU be responsibic for deciding whether that reand is moequate or whether we should require that it be expanded in order to make it adequate. At that Dne, we may consider whether further aHegations in the seccon 2.206 petition should be included in this case.
l 148 i
l t
l 1
i i
+
6
t We note that, in proving its claim, [Intervenor] will not be imuted to the specific incidents i
relied on to admit its contention. As set forth in the Statenent of Considerations for tie
' ed contention rule.
[The contention] requirement does not call upon the intervenor to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinion, te it one fact or opinion or many, of which it is aware ar that point in ame which provide the basis for its contention.
54 Fed. Reg. at 33,170 (emphasis supplied in Diablo Can.wm).
incidents such as those that MFP attempted to resi into the record at the prelearing conference may be acceptable, as long as they are material to the implementation of the surveillance and maintenance programs. To the extent that MFP is asked to do so, towever, it must identify prior to heanng all of the incidents on which it intends to rely in advancing and going forward with its contention.
i IIL RELEVANCE OF CLI 93-15 Intervenor's Response, at 5 n3, relies on CL1-93-15,38 NRC 1 (1993), as having determined that all the issues in the section 2.206 petition are properly before this Board. Our review of the Commission's decision does not support this view. Instead, we prefer the following view, found in the Staff Response at 8-9 n.5:
T!e Commission in Georgio Power Co. (Vogtle Electric Generating llant, Units I and 2),
CLI-93-15,38 NRC [1 (1993)], indicated that the issues before this Board did not encompass all of the many issues in the 2.206 petitions. It stated [38 hT.C at 3];
Moreover, we remgnize here that Mr. Mosbaugh has not invoked section 2.206 to avoid a pending adjudication and that his section 2.206 petition seeks relief with respect to I
issues and facilities that are not before the Licensing Board in tie pending transfer proceedmg.
We note, in addition, that on the same page of the Commission's decision, it notes an overlap and similarity of some issues between the section 2.206 petition and the transfer proceeding" (emphasis added) pending before us. His j
is consistent with the position we are taking in this Memorandum and Order?
7 We note GPC's rnotion to Cerufy a Quesuon, but that monon is moot We would teve denied that neuon because of the procedural nature of nur challenged action if we had been requuta so reach that motion on the nents. ser Staff Respome at 9-10.
149 l
e I
i l
l i
IV. ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 24th day of September 1993, ORDERED that:
1.
Mr. Allen Mosbaugh,Intervenor, included by reference in his Amended Petition" only those portions of his prior section 2 206 petitions that were relevant to his discussions of his contention in his Amended Petition.
2.
Matters tnat were not discussed in the Amended Petition, except by reference to Intervenor's prior section 2.206 petitions, shall not be considered to have been raised in the Amended Petition and shall not be included in Phase 1 of this proceeding?
FOR THE ATOMIC SAFETY AND LICENSING BOARD James H. Carpenter ADMINISTRATIVE JUDGE
'Ihomas D. Murphy ADMINISTRATIVE JUDGE Peter B. Bloch, Chair ADMINISTRATIVE JUDGE Bethesda, Maryland 8Anendnrnts to Petition to Intervene arul Request for Hearing. December 9.1992.
' We conunue to utre the parues to conclude supulations that will streamline the pmmeding or to rea:h a negouated settlement. In our opinion such agreerrents should be casier to reach than the agreenent between the Palesumans and luar.hs.
150
l l
i Administrative l
Law Judge l
l 4
)
)
1 l
i i
l l
i i
l I
l l
i i
l l
i r
1
Cite as 38 NRC 151 (1993) -
' ALJ-93-1 l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '
l l
t ATOMIC SAFETY AND LICENSING BOARD PANEL Before Administrative Law Judge:
?
Morton B. Margulies
-Ij in the Matter of Docket No. 93-01-PF l
(ASLBP No. 93473-01-PF) i LLOYD P. ZERR September 20,1993 I
RULING ON DEFENDANT'S MOTION TO DISMISS l
There is before me for decision a motion filut try the Defendant, Lloyd P.
Zerr, on August 16,1993, entitled " Motion to Dismiss," seeking dismissal of this proceeding on the grounds that it constitutes double jeopardy in violation of the Fifth Amendment of the United States Constitution and beceuse the institution of the proceeding violates agreements reached with the United States government. The United States Nuclear Regulatory Commission, in a response dated September 2,1993, contends that the motion is entirely without merit and that it should be denied. A reply was served by Defendant on September 10,
)
1993. I find against the Defendant on the motion.
l t
BACKGROUND i
Defendant was indicted by a Grand Jury in the United States District Court for the Southern District of Georgia on December 9,1991, on two counts of violating 18 U.S.C. 5 287 (Making False. Fictitious, or Fraudulent Claims) and three counts of violating 18 U.S.C. 61001 (Making False Statements). The activities charged occurred in almost all of the time frame alleged in the subject complaint, served December 10,1992, alleging violations of the Program Fraud 151
,,,,..,......,,v...--m.,.
Civil Remedies Act of 1986 (31 U.S.C. 3801-3812)(Making False Claims). %e same activities alleged in the indictment underlie much of that alleged in the complaint.
In May 1992, Defendant entered into an " Agreement for Pretrial Diversion,"
with the United States Attorney for the Southern District of Georgia which provided, among other things, that prosecution would be deferred for a period of 18 months and, if Defendant complied with the conditions of the agreement, no prosecution for the offense charged in the indictment would be instituted in the District and that the indictment would be discharged. A condition of the agreement provided that Defendant's attorney, the Assistant United States Attorney, and a Special Agent of the Inspector General of the Nuclear Regulatory Commission would determine "what restitution, if any, is owM by [ Defendant]
to the United States." The sum arrived at was for the amount of the alleged false claims, totaling $7454.57. The United States Attorney found the amount to be adequate restitution for resolution of the matter before him.
The indictment was dismissed without prejudice on May 20,1992, because Defendant was placed on pretrial diversion. By letter dated June 30, 1993, the United States Attorney advised the Nuclear Regulatory Commission that Defendant had fulfilled the terms of the diversion agreement and that no further prosecution would be forthcoming for the crimes covered by the agreement.
On Feb uary 7,1992 Defendant resigned his federal employment. De Notification Of Personnel Action under Remarks stated that it was a " Resignation in Lieu of Adverse Action."
DEFENDANT'S MOTION i
Defendant, by counsel, argues that the subject complaint is punitive in nature in seeking restitution and monetary penalties. He contends that Defenim has already been subject to criminal sanction, having been indicted and having reached a settlement with the United States government on restitution. He states that the subject action places Defendant in jeopardy twice for the same matter, which constitutes a violation of the double jeopardy clause of the Fifth Amendment of the Constitution.
Defendant further argues that the United States having already received restitution under a settlement previously reached, now seeks to breach the settlement by the subject action. Additionally, he alleges that the Defendant resigned from federal employment in lieu of adverse action but now is made the subject of adverse action. Defendant requests that the complaint be dismissed because the United States has been fully satisfied in this matter and all that remains is an sttempt to obtain additional penal sanctions, which are barred by the Consutution.
i 152 i
1
No case law was cited in support of Defendant's position.
COMPLAINANT'S RESPONSE Complainant argues that the Constitutional provision against double jeopardy, which protects an accused against a second prosecution for the same offense after acquittal, against a second prosecution for the same offense after conviction, and against multiple punishments for the same offense, requires that jeopardy first attach sometime prior to the second punishment, citing Fransaw v. Lynaugh, 810 F.2d 518 (5th Cir.1987), cert. denied, 483 U.S.1008 (1987). Complainant contends that the mere bringing of an indictment, followed by its withdrawal after the conditions of a pretrial diversion agreement were met, never placed i
Defendant in jeopardy so that he can claim protection against double jeopardy.
Complainant asserts that jeopardy never attached as a result of the Georgia indictment and pretrial diversion agreement. It argues that forjeopardy to attach, in a jury trial it is when the jury is impounded and sworn and in a bench trial l
when evidence is heard, citing Bugington v. Baltimore County, 913 F.2d 113 (4th Cir.1990), cert. denied, _ U.S.
113 S. Ct.1106 (1991), or when a court unconditionally accepts a guilty plea, citing United States v. Baggett, 901 F.2d 1546 (11th Cir.1990), cert. denied,.__ U.S.
11: S. Ct.168 (1990).
Complainant argues that procedural matters preliminary to a trial, such as a pretrial diversion agreement, do not constitute jeopardy. It cites United States v.
Soto-Alvare:, 958 F.2d 473 (1st Cir.1992), cert. denied, _._ U.S.
113 S. Ct.
221 (1992), where the court considered, only forjeopardy purposes, those counts to which defendant pled guilty and not those that were dismissed and on which no finding of guilty was made. It also relies on United States v. Schaffner,771 F.2d 149 (6th Cir.1985), where there was a pretrial diversion agreement concerning defendant's violation of obstruction of process. Defendant's subsequent trial for obstruction of justice was held not to violate the rules of double jeopardy because defendant was never tried on the obstruction of process charge and therefore was never put in jeopardy.
i As to the matter of Defendant's claim that the United States seeks to breach the conditions of the diversion agreement by the subject action, Complainant contends that it is without merit. It states that the only commitments made by the United States Attorney in the diversion agreement, to defer prosecution for 18 months and to not prosecute and to discharge the indictment apon Defendant meeting the terms of the agreement, were carried out.
Complainant further asserts that Defendant's resignation in lieu of discharge did not foreclose the NRC from bringing this complaint under the Program Fraud Civil Remedies Act. It contends that the adverse action that the resignation was 153
in lieu of was being fired and not the filing of the subject complaint. Complainant argues that Defendant's claim is unsupported by any evidence m the contrary.
DEFENDANT'S REPIX in the Reply served September 10, 1993, Defendant asserts that the Com-plainant, in its response to the motion, incorrectly cited cases Complainant relied upon and did not cite other cases that would assist Defendant.
Complainant had cited Baggett, supra, for the proposition that jeopardy attaches when the court unconditionally accepts a guilty plea. Defendant claims that the case provides that the concept of due process and double jeopardy means that the government with all of its resources and power should not be allowed to make repeated efforts against an individual, subjecting that individual to embarrassment, expense, and ordeal and compelling that individual to live in a continuing state of anxiety and insecurity. The government is permitted "one complete opportunity" against the individual. It also states that the case provides that any effort to discourage resolution of cases by prearrangement with prosecutors is contrary to the interest of justice and that, where violations of the agreement take place, both parties are to be returned to the position that they occupied before relinquishing those positions. Defendant argues that the case is supportive of Defendant who entered into an agreement with the government, which the latter now seeks to avoid.
Complainant had cited Scha,[fner, for the proposition that a pretrial diversion agreement does not place a defendant in jeopardy. It is Defendant's position that the Court in Schaffner recognized that diversion prohibi ed further prosecution on the same offense and that diversion is enforceable.
In support of Defendant's case it cited Sanrobello v. New York, 404 U.S. 257, 92 S. Ct. 495,30 L Ed. 2d 427 (1971), where the Court upheld the enforceability of plea agreements stating that they involved promises that must be fulfilled.
Defendant also cited United States v. Halper,490 U.S. 435,109 S. Ct. I892, 104 L Ed. 2d 487 (1989), where the Coun held that an analysis of double jeopardy and due process issues requires a particularized assessment of the nature of the penalty sought, not the simplified labeling of civil or criminal.
Defendant argues that in violation of due process and double jeopardy protection, the government instituted the subject proceeding despite the fact that Defendant fulfilled the pretrial diversion agreement and voluntarily left government employment in lieu of any further action.
154
DISCUSSION AND CONCLUSIONS l
I cannot fmd, on the facts and law presented, that this proceeding constitutes double jeopardy and that it should be dismissed under the double jeopardy clause of the Constitution. Defendant has neither established that the criminal action taken against him in the Southern District of Georgia is the initial jeopardy needed to invoke the claim of double jeopardy nor has he shown that this civil j
proceeding for false claims against the government, brought under the Program j
Frauds Civil Penalties Act, would rise to the level of punishment for the purpose of applying the double jeopardy clause.
l Defendant's indictment, his entering into a pretrial diversion agreement under which he arranged for restitution in the amount alleged to be falsely claimed, the deferral from prosecution by the United States Attorney and the dismissal of the i
indictment do not constitute jeopardy as contemplated by the double jeopardy clause None of these activities placed him in judicial jeopardy, an essential element in claiming the protection of the double jeopardy clause. Fransaw, 810 F.2d at 523. Defendant, under the pretrial diversion agreement, had obtained the benefit of not being prosecuted at the cost of not being placed in jeopardy.
The failure to establish the initialjeopardy vitiates any claim to doublejeopardy protection. Id. That alone is sufficient to deny the motion.
Even had Defendant established that the Georgia process had constituted jeopardy, the bringing of the subject action does not per se constitute double jeopardy. It is well established that Congress may impose both a criminal and civil sanction in respect to the same act or omission. Heh'ering v. Mountain Producers Corp., 303 U.S. 390, 399 (1937). If jeopardy has attached and the civil penalty for filing false claims with the government bears no rational relationship to the government's loss, then there is double jeopardy.1 Halper, supra.
In Halper, the Supreme Court upheld the District Court finding that a sanction in excess of 5130,000 set under mandatory penalties of the False Claims Act, where the government's losses, costs, or expenses were approximately $16,000, bore no rational relationship and constituted a second punishment in violation of the double jeopardy clause.
The Court held that the government is entitled to rough remedialjustice, that it may demand compensation according to somewhat imprecise formulas, such as reasonable liquidated damages, or a fixed sum plus double damages without being deemed to have imposed a second punishment. Id. at 446. It may include ancillary costs such as the costs of detection and investigation.
i
' T1e Court stated dun de governnent can neck or full t;vil penahy against a defendant who previously fund not been punished for the sane conduct even if the civil sanction imposed is punstive.1d at 450.
155 I
l l
He Court went on to state that the protection of the double jeopardy clause "is intrinsically personal. Its violation can be identified only by assessing the character of the actual sanctions imposed on the individual by the machinery of l
the state" (footnote omitted). Id. at 447.
Assuming arguendo that Defendant had established the initial jeopardy, it is premature for him to contend at this time that this proceeding constitutes double punishment and therefore is double jeopardy.
He actual sanctions imposed on the individual must be analyzed to determane whether the civil penalty is to recompense the government or is punitive. There is no way to do that at this pretrial stage when no determination has been made as to whether a penalty is warranted, it should be noted that this proceeding differs irom that in Halper which involved mandatory penalties. In this proceeding the judge can mitigate penalties and asse.;sments and obviate double punishment.
13 C.F.R. Q 1331.
Defendant's Reply does nothing to warrant a different result. Baggett, supra, does not preclude the filing of a complaint under the Program Fraud Civil Remedies Act where Defendant had entered into a pretrial diversion agreement in the criminal matter. Subsequent action can be taken against a defendant even after jeopardy has attached. In Halper, supra, the Court held that a proceeding for a civil sanction could follow jeopardy in a criminal proceeding so long as a second punishment is not imposed. Id., 490 U.S. at 446.
In Baggett, a second action was permitted to be taken against the defendant after jeopardy attached. Defendant had entered into a plea agreement after the jury was sworn and the Court accepted the guilty plea. As a result a number of counts were dismissed. He trial judge rejected the sentencing agreement at the sentencing hearing, and permitted the defendant to withdraw the guilty plea. D Iendant was brought to trial on the dismissed counts and objected on the grounds of double jeopardy.
l The Court held "that a strict application of the rule thatjeopardy attaches upon the swearing of ajury or the acceptance of a guilty plea would result in a decision in favor of Baggett." However, the Court would not so find because it would provide defendants with an opportunity to avoid prosecution by entering a plea bargain after trial commences and revoking the plea at sentencing. Also,it would discourage prosecutors from entering into plea bargains after commencement of trial. Permitting the defendant to be tried on the dismissed counts placed the parties in the same position as they had been before they voluntarily relinquished it. Baggett, 901 F.2d at 1550. Baggett does not support Defendant's position on double jeopardy.
The facts submitted do not support Defendant's claim that by filing this action the government is breaching the pretrial diversion agreement. Dat agreement settled the criminal matter that was within the jurisdiction of the United States Attorney. Nothing was cited in the agreement that would preclude the Nuclear 156 i
1
Regulatory Commission from Sling a civil action against the Defendant as is authorized by the Program Fraud Civil Remedies Act. Congress has authorized a criminal and civil sanction in respect to the same act, which it is authorized to do. Helvering, supra.
Defendans argument, that his resigning from government employment in t
lieu of adverse action precludes the filing of the subject action, is not convincing; He has not shown that the adverse action referred to involves more than being fired.
He cases of Schagner and Santobello, supra, cited by Defendant for the propositions that diversion and plea agreements are enforceable, that they must be kept, and that they prohibit prosecution on the same offense, pmvide no basis '
for altering the findings above.
In Schafner, defendant had entered into. a pretrial diversion' agreement-under which a charge of obstruction of process was dismissed with prejudice; Defendant was subsequently tried for obstruction of justice, a separate criminal.
offense, which was not contrary to the terms of the pretrial diversion agreement..
He Court had ruled, in response to defendant's claim that the two charges constituted the same offense, that the elements of the offenses were different,
~
and there could be no double jeopardy on that basis. He Court never ruled that '
the pretrial diversion agreement constituted a prior jeopardy. I:. fact, the Court found that "because he was never found guilty of violating i1501 (obstmetion of process), the subsequent trial of the i 1503 (obstruction ofjustice) charge was not barred by resjudicata or collateral estoppel." Schagner,771 F.2d at 152.
Jeopardy did not attach under the pretrial diversion agreement absent a guilty finding. Fransaw, 810 F.2d at 523.
Here Defendant has not made a legal or factual showing that the ' pretrial diversion agreement entered into by Defendant does not permit the filing of the subject complaint by the Nuclear Regulatory Commission or that the resignation from federal employment in lieu of adverse action prohibits the filing. Absent such showing, no finding can be made in Defendant's favor..
Defendant's motion is not meritorious on the issues that he has raised.-
157.
w-
t ORDER Based on all of the foregoing, it is hereby Ordered that Defendant's motion filed August 16,1993, requesting dismissal of the proceeding, is hereby denied.
Morton B. Margulies CHIEF ADMINISTRATIVE LAW JUDGE Dated September 20,1993, at Bethesda, Maryland.
158 e
' ~ -
_a
.a a
--,.... ~., -... -. - _,. _ _
l i
l l
i i
l Directors' i
Decisions 1
l Under 10 CFR 2.206 i
I P
j 1
i l
l l
l l
l 1
l l
l l
,7,
n.
w w
a w.
u
- ~
a 1
I l
e i
l;
(
Cite as 38 NRC 159 (1993)
DD-93-15 j
i q
UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION l
OFFICE OF NUCLEAR REACTOR REGULATION 4
Thomas E. Murley, Director I
l In the Matter of Docket No. 50-440 (License No. NPF-58)'
j i
CLEVELAND ELECTRIC ILLUMINATING
}
COMPANY, et al.
4
?
(Perry Nuclear Power Plant, Unit 1)
Septe.mber 21,1993 Il i
'Ihe Director, Office of Nuclear Reactor Regulation, supplements his denial j
of this petition regarding the construction and operation of an interim onsite
}
low-level radioactive waste processing and storage facility that was set fonh in DD-93-5 (37 NRC 238 (1993)). In DD-93-5, the Director had concluded that the construction and operation of the proposed interim facility did not raise any j
j substantial public health and safety issues and that the Licensee had complied
' i with all applicable NRC regulations and guidance. This Supplemental Decision was prepared to respond to a letter from the Petitioner to the Commission j
l asserting that DD-93-5 fell far short of demonstrating the safety of the interim.
low-level waste facility itzlf and only addressed the effect the facility could 3
have on existing equipment at the plant. In this Supplemental Decision, the NRC Staff reviews the Licensee't: safety evaluation and supponing documentation for i
i the design, construction, and operation of the interim facility and concludes that those activities do not raise an "unreviewed safety question" under 10 C.F.R. 650.59 and that the design and operation of the facility will conform to the Licensee's Final Safety Analysis Report (FSAR) prepared for operation j
of the Perry plant. In confirming his earlier decision, the Director clarified the following points: (1) with limited exceptions, the design and operation of the j
interim facility do not involve changes in the handling and storage of low-level radioactive waste as described in the FSAR; (2) those few changes to the FSAR i
description do not involve unreviewed safety questions; and (3) therefore, under j
section 50.59, NRC arview and approval was not required for construction and j
4 159
-. ~...
~ -
d i
operation of the facility, no federal action was required for the construction and operation of this facility, and the requirements of the National Environmental i
Policy Act (NEPA) and the Commission's NEPA implementing regulations do l
l not apply.
t SUPPLEMENTAL DIRECTOR'S DECISION UNDER 10 C.F.R. f 2.206 -
l L INTRODUCTION i
On September 29,1992 Mr. Steven C. LaTourette submitted a petition on behalf of the Lake County Board of County Commissioners (the Petitioners),
requesting that the Director, Office of Nuclear Reactor Regulation, take certain
'i actions with respect to the proposed constmetion of an onsite, low-level radioac-tive waste storage facility at the Perry Nuclear Power Plant (Perry). The petition j
specifically requested that (1) a public hearing be held before the Licensee con-l structs such a facility and (2) the construction of the facility be suspended until
~
(a) either the U.S. Nuclear Regulatory Commission (NRC) or the Licensee (the l
Cleveland Electric Bluminating Company, et al.) produces an environmental I
impact statement assessing the risks of onsite storage oflow-level waste and (b) the NRC promulgates regulations for storing low-level radioactive waste at nu-clear power plant sites. On March 28,1993 (DD-93-5,37 NRC 238), I denied the Petitioners' request on the bases that the Petitioners raised no substantial health and safety issues and that the Licensee had complied with the applicable -
l j
NRC regulations and guidance.
s In a letter of April 21,1993, the Petitioners requested that the Commission review and reverse DD-93-5. In that letter, the Petitioners contended that DD-93-5 and 10 C.F.R. 650.59 " fall far short of demonstrating the safety of the l
facility itself," as they claim that the discussion in the director's decision only addresses the effect the facility could have on existing equipment in the plant.
l Although 10 C.F.R. 52.206(c)(2) provides that the Commission will not entenain' I
any petition or other request for review of a director's decision under that section, I am issuing this supplemental decision to clarify the bases for my earlier decision, in response to the Petitioners' letter of April 21,1993.
IL BACKGROUND l
Part 50 of Title 10 of the Code of Federal Regulations, " Domestic Licensing of Production and Utilization Facilities," includes regulations governing the I
licensing and operation of commercial nuclear power plants in the United States.-
l i
160 1
- I e
l
~.. -
w.;_!_.,_.-
..,.,._.._,___i
Section 50.59 addresses the disposition of changes, tests, and experiments at these facilities, as follows:
(a)(1) The holder of a license authorizing operation of a producuan or utilization facility i
may (i) make changes in the facility as described in the safety analysis report, (ii) make changes in the procedures as described in the safety analysis report, and (iii) conduct tests or experiments not described in the safety analysis report, without prior Commission approval, unless the proposed change, test, or experiment involves a change in the technical specifications incorporated in the license or an unreviewed safety question (2) A proposed change, test, or experiment shall be deemed to involve an unreviewed safety question (i)if the probability of occurrence or the consequences of an accident or malfunction of equipment important to safety previously evaluated in the safety analysis report may be increased; or (ii) if a possibility for an accident or malfunction of a different type than any evaluated previously in the safety analysis report may be created, or (iii) if the margin of safety as defmed in the basis for any technical specification is reduced.
(b)(1) The licensee shall maintain records of changes in the facility and of changes in procedures made pursuant to this section, to th-extent that these changes constitute changes l
in the facility as described in the safety analysis report or to the extent that they constitute i
changes in procedures as described in the safety analysis report. The licensee shall also maintain records of tests and experiments carried out pursuant to paragraph (a) of this section. These records must include a written safety evaluation which provides the bases for the determination that the change, test, or experiment does not involve an unreviewed safety question.
(2) The licensee shall submit, as specified in i 50A, a report containing a brief description of any changes, tests, and experiments, including a summary of the safety evaluation of each. 'Ihe report may be submitted annually or along with the PSAR updates as required by 5 50.71(e), or at such shorter intervals as may be specified in the license.
(3) The records of changes in the facility shall be maintained until the date of termination of the license, and records of changes in procedures and records of tests and experiments shall be maintained for a period of five years.
(c) The holder of a license authorizing operation of a production or utilization facility who desires (1) a change in technical specifications or (2) to make a change in the facility or procedures described in the safety analysis report or to conduct tests or experiments not described in the safety analysis report, which involve an unreviewed safety question or a change in the technical specifications, shall submit an application for anendment of his license pursuant to i 50.90.
In August 1992, the Cleveland Electric Illuminating Company announced plans to construct an interim onsite low-level radioactive waste (LLW) storage and processing facility, in anticipation of the possible loss of access to the three disposal sites currently operating in the United States. In accordance with section 50.59 and NRC Staff guidance in NRC Generic Letter (GL) 81-l 38, " Storage of Low-Level Radioactive Wastes at Power Reactor Sites," dated November 10,1981, the Licensee performed and documented a safety evaluation for the proposed facility, In the safety evaluation, the Licensee concluded that the construction and operation of the interim LLW facility do not constitute an unreviewed safety question as defined in 10 C.F.R. 6 50.59(a)(2) and that 161 l
l 9
no changes in license conditions or technical specifications are necessary.
Derefore, the Licensee further concluded that the facility could be built and operated without prior NRC approval, as stated in 10 C.F.R. 6 50.59(a)(1).
The NRC Staff has reviewed the Licensee's safety evaluation and supporting documentation for the interim onsite LLW storage and processing facility. As discussed in DD-93-5, the Staff concluded that the Licensee correctly determined that the interim LLW storage and processing facility does not constitute an unreviewed safety question and that the design and operation of the facility will conform with the safety analyses in the Perry Final Safety Analysis Report (FSAR).
IIL DISCUSSION In accordance with 10 C.F.R. 5 50.59(b)(1), the Licensee evaluated the interim LLW facility in a written safety evaluation, which provided the bases for the conclusion that the interim onsite LLW storage and processmg facility does not involve an unreviewed safety question. The bases for the Licensee's conclusion and the Staff's agreement with that conclusion are described below in greater detail, to address the Petitioners' assertions of April 21, 1993, that DD-93-5 and section 50.59 fall far short of demonstrating the safety of the facility itself and only address the effect the facility could have on existing equipment in the plant.
De Licensee analyzed the processing and storage of solid radioactive waste in section 11.4 and a spectrum of potential accidents and events in Chapter 15 of the Perry FSAR, to demonstrate the ability of the plant to operate within regulatory guidelines without undue risk to the public health and safety. His spectrum was selected to represent the types of accidents and events postulated to occur at Perry and to bound the potential consequences of less significant accidents and events. He NRC Staff evaluated and accepted this spectrum of accidents and events as part of the licensing basis for the plant. While this spectrum of accidents and events is primarily focused on reactor safety and the equipment and systems directly affecting reactor safety, the Licensee also evaluated other types of accidents not affecting reactor safety, including fuel handling accidents and liquid radioactive waste tank failures, both of which could result in the release of radioactive material off site.
He Licensee addressed the three criteria of section 50.59(a)(2) to determine if a change, test, or experiment involves an unreviewed safety question, as part of its safety evaluation of the construction and operation of the interim onsite LLW storage and processing facility. The Licensee divided the three criteria into seven separate items in performing its analysis. Although the Licensee's seven-point analysis did not explicitly address certain of the matters discussed 162 l
l i
i
below, the Licensee's safety analysis and its attachments, and the FSAR, provide sufficient information for the Staff to confirm that the construction and operation of the interim LLW facility do not involve an unreviewed safety question.
I.
Effect on the Reactor Facility De Licensee's analysis clearly demonstrates that there are no interactions between the interim onsite LLW storage and processing facility and the operation of the reactor facility. De Licensee has analyzed the potential catastrophic failure of the interim LLW facility and determined that the facility is located l
far enough away from cther plant structures to prevent a postulated complete failure of the building from damaging any plant systems or equipment important to reactor safety. De interim LLW facility is not interconnected with any system relied on to mitigate any accident or event previously evaluated in the FSAR. De only significant system connected to the interim LLW storage and processing facility is the fire protection water system (FPWS), which is controlled in accordance with facility-approved guidance (i.e., Licensee procedures and training provide that the FPWS is to be available when and where it is needed and also provide that it can be isolated from the interim LLW facility, if necessary to ensure integrity of the FPWS). De Licensee determined that a failure of the FPWS branch piping to the interim LLW facility will not reduce the fire suppression capability in the plant.
He NRC Staff has reviewed the Licensee's evaluation and agrees that, with respect to the safe operation of the reactor facility, the construction and operation of the interim LLW storage and processing facility will not (1) increase t
the probability or consequences of an accident or malfunction of equipment important to safety previously evaluated, (2) create the possibility of an accident or malfunction of a different type than previously evaluated, or (3) reduce the margin of safety.
f Operation of the Interim LLW Facility I.
Dry Solid Radwaste Currently, processing of dry solid radioactive wastes is carried out mainly in the radwaste building, but some activities are carried out in other locations of i
the plant in accordance with the FSAR description. Many of these activities will continue to be performed in the same locations. De processing of low-level dry radwaste material with average contact radiation levels less than 5 millirem per hour (mrem /hr) will be carried out in the interim LLW storage and processing facility. Dry solid radwaste with radiation levels in excess of 5 mrem /hr will continue to be processed in the radwaste building. In addition, l
i 163 i
I I
i
~
l
the plant will retain the previous capability to process dry solid radwaste in the radwaste building.
Dry solid radwaste will be stored in the interim LLW storage building. De operating license for Perry contains no restriction on the storage of dry radwaste and the FSAR addresses the storage of dry radwaste at any location at the site, i
provided such interim storage locations are evaluated for compliance with NRC GL 81-38. GL 81-38 provides guidance on a number of aspects of the design of onsite, temporary low-level radwaste storage facilities, including limits on 6
the amount of radwaste to be stored, the potential consequences of design-basis accidents, shielding and dose limits from normal activities, container selection and inspection, physical security, monitoring of potential release pathways, and I
the control of liquid drainage. The Licensee's evaluation demonstrates that storage of dry radwaste in the interim LLW facility complies with the provisions of GL 81-38. Thus, the storage of dry radwaste at the interim LLW facility does not involve a change to the Perry FSAR.
)
%e only change to the FSAR description for the processing of dry radwaste is the location of the compactor used for processing low-level dry radwaste I
with average contact radiation levels less than 5 mrem /hr. His material will be i
processed in the interim LLW building rather than in the radwaste building.
Although the interim LLW facility will use an improved compactor and a shredder, neither tne plant's operating license nor the FSAR specify details of the compactor. Further, the Licensee indicates and the Staff agrees that this equipment is similar to that currently used and does not represent a handling process cifferent from that described in the Perry FSAR.
Rus, the storage of dry radwaste has been evaluated against the guidance of GL 81-38 as set forth in the FSAR, and the changed location for the processing of dry radwaste with radiation levels below 5 mrem /hr has been evaluated against i
the standards of section 50.59.
He Licensee designed the interim LLW facility and has established adminis-i trative controls to ensure that (1) the volume and activity of the stored radwaste will be limited, (2) sufficient radiation shielding will be provided, (3) periodic j
monitoring and inspections will be performed, and (4) the other applicable pro-visions of GL 81-38 are satisfied.
He interim LLW facility will iicorporate safety features similar to those existing in the radwaste building processing and storage area, including foot-thick concrete walls for shielding, a fire suppression sprinkler system, and a ventilation system incorporating high-efficiency particulate air filters and radiation monitors. He facility ventilation system is designed to maintain a negative pressure in the building so that all effluents will be discharged through the filtered, monitored pathway. Although NRC regulations do not require such facilities to be designed to specific sekmic criteria, the basic structure of the facility is designed to withstand the effects of the maximum predicted 164
earthquake. However, the Licensee did not take credit for this design feature in conservatively postulating a complete failure of the building (due to unspecified causes) for the purpose of performing an accident analysis, as discussed later.
In addition, the Licensee sited the building so that the probable maximum flood from Lake Eric would still be 15 feet below the level of the curb surrounding the building.
He Licensee has analyzed the consequences of various potential accidents involving the interim LLW facility, including a catastrophic failure of the building itself, which the Licensee does not consider a credible event. For such a failure, the Licensee assumed that 10% of the radioactivity of the entire 5-year volume of LLW wc,uld be released, a reascnable assumption based on the design of the storage containers, the nature of the waste, and the design features of the facility described above. He maximum calculated radiation dose to an individual at the nearest offsite point (the shoreline of Lake Erie, north of the plant) is approximately 5 millirem for this accident. His accident dose is several hundred times smaller than the NRC Staff guidance of GL 81-38 for accidents involving onsite storage of radwaste,2.5 rem (i.e.,10% of the 10 C.F.R. Part 100 limits of 25-rem radiation dose to the whole body).
He consequences of accidents involving dry radwaste processing or storage were not specifically calculated in the Perry FSAR; rather, the FSAR computes the consequences of a category of accidents involving " radioactive release from subsystems and components." His category encompasses releases from radioac-tive waste systems. De radiological consequences of accidents in this category were bounded by the consequences of the fuel handling accident, for which the calculated consequences result in a radiation exposure of approximately 1000 millirems at the exclusion area boundary.
De potential radiological consequences from the storage and processing of dry radwaste at the interim LLW facility were calculated to be a maximum of 5 millirem, far below the value specified in the guidance of GL 81-38.
Rus, the storage of dry radwaste conforms to the provisions of the FSAR, and the consequences associated with the processing of dry radwaste with contact radiation levels less than 5 mrem /hr are far below the consequences of the category of radwaste accidents previously evaluated in the FSAR.
He NRC Staff concludes that the storage of dry radwaste in the interim I
LLW facility is consistent with the requirements of the FSAR and that the processing of dry solid radwaste at the interim LLW facility will not increase the probability or consequences of an accident or malfunction of equipment important to safety previously evaluated, nor will it create the possibility of an accident or malfunction of a different type from that previously evaluated. He dry solid radwaste processing and handling activities are essentially unchanged, except for the fact that some of these activities will be performed in the interim LLW facility. He equipment and processes to be employed in the interim LLW 165
t facility are similar to the equipment and handling processes currently used in the radwaste building. Here are no margins of safety associated with the handling of dry solid wastes as defined in the basis for any technical specification.
2.
Resin Processing he processing, dewatering, and handling of radioactive resins is unchanged and will continue to be carried out in the radwaste building. De dewatered or solidified liners resulting from these activities will continue to be packaged into high-integrity containers (HICs) in the radwaste building. De only change in resin handling is that the HICs containing spent resin will be placed in individual Onsite Storage Containers (OSSCs). He OSSCs are cylindrical concrete and steel-reinforced vessels designed to provide additional shielding and structural protection for the HICs containing spent resin material.
Again, the Perry operating license contains no restriction oa the storage of HICs, and as indicated above, the FSAR permits the storage of radwaste, including dewatered resins, at any location at the site, provided such interim storage locations are evaluated for compliance with NRC GL 81-38. De Licensee's evaluation demonstrates that storage of dewatered resins in the OSSCs complies with the provisions of GL 81-38. Rus, the storage of HICs in the OSSCs does not involve a change to the Peny FSAR.
He Licensee has analyzed the effects of tornadoes, floods, and seismic events on the OSSCs and concluded that these events will not result in the failure of the OSSCs, nor in the release of any radioactive material contained in the HICs inside the OSSCs. Further, the OSSCs will be kept on a concrete pad away from any potential sources of combustible material and are not themselves subject to combustion. Herefore, the Licensee does not consider a potential fire in the vicinity of the OSSCs to be a credible event.
De specific consequences of accidents involving spent resin radwsste pro-cessing or storage were not explicitly calculated in the FSAR for the Perry-facility, but are encompassed by the category of accidents involving radioac-tive releases from subsystems and components. His category of accidents is bounded by the consequences of the fuel handling accident.
In connection with the design of the interim LLW storage and processing facility and the OSSCs, the Licensee calculated the consequences of an accident involving the failure of a HIC as a result of dropping a HIC during placement into an OSSC. He calculation assumes that 10% of the contents of a HIC are i
released for dispersal into the atmosphere. His is a very conservative estimate since the radioactive material is chemically and physically bound to the resin l
material and would not be readily dispersed. In addition, the HIC is designed and tested to withstand a drop of 25 feet, and the Licensee has established administrative controls to limit the lifting of a HIC to a maximum height of 15 166 i
feet. He maximum calculated dose at the nearest offsite point (Lake Erie, north of the plant) is approximately 80 millirem for this accident. His is about 3%
of the limit recommended in the NRC Staff guidance in GL 81-38 for accidents involving the onsite storage and handling of radwaste. It is also substantially lower than the offsite dose consequences calculated for the bounding fuel drop accident in the FSAR (approximately 1000 millirem).
In summary, storage of the HICs in the OSSCs conforms to the guidance of GL 81-38 and thus conforms to the requirements of the FSAR.
Although the consequences of an accident involving the failure of a HIC were not explicitly calculated in the FSAR, the FSAR indicated that such storage containers would be used for offsite transport of spent resin material. He failure of a HIC as a result of dropping the container while loading it into an OSSC would be similar to a potential failure during the existing processes for the temporary storage or loading of HICs for transport offsite. He dropping of a HIC while loading it into an OSSC would not be more likely than a handling accident during the temporary storage or loading of a HIC for transport offsite.
De NRC Staff has concluded that the Licensee's evaluation of the three criteria of section 50.59(a)(2) is sufficient and that the construction and operation of the interim onsite LLW storage and processing facility and the associated OSSCs at Perry do not involve an unreviewed safety question.
Environmental Impact Statement Issue The National Environmental Policy Act of 1969 (NEPA), as amended, requires the preparation of an environmental impact statement for a major federal action significantly affecting the quality of the human environment. He Commission's regulatious in 10 C.F.R. 51.20 also specify criteria for licensing and regulatory actions requiring environmental impact statements. Since the Licensee can construct and operate the LLW storage facility on the Perry site without prior NRC approval, no federal action is involved and neither NEPA nor the provisions of section 51.20 apply. Therefore, neither a hearing nor an environmental impact statement is required.
IV. CONCLUSION In DD-93-5, I determined that the Petitioners
- requests concerning the temporary onsite low-level radioactive waste storage and processing facility at the Perry Nuclear Power Plant did not present any substantial health and safety l
i issues and did not provide a basis for the NRC to require a public hearing for the construction and operation of the facility, or for the NRC to write (or require the Licensee to produce) an environmental impact statement for the use of the 167 i
l l
facility. 'Ihe Staff concluded that the irterim LLW facility does not require an amendment to the plant's operating license; therefore, in accordance with section 50.59(a)(1), prior NRC approval is not required for the Licensee to construct and operate the facility. In this supplemental decision,1 have clarified the bases for the Staff's previous finding that the construction and use of the facility does not constitute an unreviewed safety question. I am issuing this supplemental decision to address the Petitioners' contentions raised in their letter of April 21, 1993, to the Secretary of the Commission. I find that those contentions also fail to raise any substantial health and safety issues.
Therefore, I confirm my previous ennelusion in DD-93-5, that the Petitioners have not submitted a sufficient basis for the NRC to require the preparation of an environmental impact statement or to hold a hearing regarding the facility. I have not changed my previous finding from that discussed in DD-93-5 concerning the Petitioners' request for rulemaking.
In accordance with 10 C.F.R. 6 2.206(c), a copy of this supplemental decision will be filed with the Secretary of the Commission for the Commission's review.
FOR THE NUCLEAR REGULATORY COMMISSION Thomas E. Murley, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 21st day of September 1993.
I i
i 168 I
1 i
1 l
\\
l l
l L