ML20059H780
| ML20059H780 | |
| Person / Time | |
|---|---|
| Issue date: | 01/11/1994 |
| From: | Stephen Burns NRC OFFICE OF COMMISSION APPELLATE ADJUDICATION (OCAA) |
| To: | |
| References | |
| SECY-94-006, SECY-94-006-01, SECY-94-6, SECY-94-6-1, NUDOCS 9401310153 | |
| Download: ML20059H780 (13) | |
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ADJUDICATORY ISSUE (Inforniation) danitary 11. 1994 SECY-94-006 EOB:
The Commissioners E80M:
Stephen G. Burns, Director Office of Commission Appellate Adjudication EUBJECT_
REPORT ON NRC ADJUDICATION DURING 1993 PURPOSE:
To provide the Commission a general summary of the adjudicatory caseload, and the Commission's role in adjudicatory matters during calendar year 1993.
RLSCUSSION _
As part of OCAA's monitoring role over adjudicatory matters, I am providing the Commission this report on agency adjudications for calendar year 1993.
This report updates data contained in the last report (SECY-93-202, July 23, 1993), and is based on the information compiled in the attached charts.
The charts cover three aspects of the Commission's adjudicatory work.
Chart I covers Commission decisions or actions on adjudicatory matters.
Chart 2 covers the final decisions issued in 1993 of the Atomic Safety and Licensing Board Panel (ASLBP) that were subject to Commission review.
Chart 3 lists the new proceedings referred to the ASLBP in 1993.
About half of the current adjudicatory caseload pending before the Commission or the ASLBP consists of enforcement actions; the remaining active cases involve reactor operating license amendments, materials licenses, or decommissioning actions.
The number of new proceedings opened in 1993 fell sharply.over the past few years as indicated in the table:
Year:
1990 1991 laga 1993 New Cases:
23 23 18 11 Most cases continue to be settled or dismissed before a hearing is held.
Dismissal of proceedings generally is due to the denial of third party intervention, withdrawal of a license application, or a licensee's failure to pursue its request for hearing.
NOTE:
CONTACT:
Stephen G.
Burns, OCAA TO BE MADE PUBLICLY AVAILABLE 504-2184 IN 10 WORKING DAYS PROM Tile DA E OF TilIS PAPER 9401310153 940111 k'kg PDR SECY 94-006 PDR u
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f Although most cases never reach the hearing stage, several pending proceedings have a high potential to require an evidentiary hearing.
Evidentiary hearings were held in the Diablo Canyon amendment and the Zerr program fraud proceedings during 1993.
Both proceedings are awaiting decision.
Commission Actions:
As shown on Chart 1, the Commission in 1993 acted in 26 instances on motions, appeals,1 or in its sua sponte capacity.
Five Commission decisions related to the licensing of Comanche Peak Unit 2.
Four decisions involved the decommissioning of Rancho Seco.
Eleven Commission decisions involved motions filed directly with the Commission to stay actions, reconsider decisions, or for other relief.
Eleven decisions concerned referred rulings or i
certified questions, appeals or petitions for review of Licensing Board orders.
The underlying Licensing Board decision was i
reversed or partially reversed in three cases.2 Four appeals j
were brought under 10 C.F.R.
S 2.714a, and therefore related to a threshold denial of intervention or grant of a hearing.
The Commission took sua sponte action on four occasions.
In one instance, involving Mr. Mosbaugh's allegations against the Georgia Power Company, the Commission vacated and remanded to the staff for later consideration those portions of a partial l
Director's Decision under section 2.206 that directly. addressed matters then pending in a license amendment proceeding for the Vogtle plant.
The Commission also took sua sponte action in the Rancho Seco decommissioning proceeding to clarify earlier opinions regarding the admission of the intervenor's contention.
j In Randall C.
Orem.
D.O., the Commission acceded to a settlement agreement between Dr. Orem and the NRC staff, but sua sponte issued an opinion to underscore the importance of and complete j
and accurate information from applicants.
Lastly, the Commission issued a sua sponte opinion in Vermont Yankee to clarify a jurisdictional matter on the Licensing Board's authority to approve the withdrawal of a licensee's application.
I The Commission took no action with respect to 7 final Licensing Board orders reflected on Chart 2.
These Licensing Board 1 For purposes of this paper, I have counted as " appeals" both appeals as of right (e.g.,
10 C.F.R.
S 2.714a) and petitions for review (10 C.F.R. S 2.786) which the Commission may grant or deny in its discretion.
2 The Commission reversed the Licensing Board in the Perry proceeding in CLI-93-21, 38 NRC 87, and partially reversed the Licensing Board in proceedings involving Rancho Seco, CLI-93-03, 37 NRC 135, and Advanced Medical Systems, CLI-93-22, 38 NRC 98.
The Perry and Rancho Seco decisions involved threshold intervention rulings.
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decisions mostly involved a settlement or dismissal of proceedings prior to hearing.3 The period for possible Commission review is pending on two decisions, Twin Falls Clinic i
and Hospital (settlement regarding an enforcement order), and Seouovah Fuels Corporation (materials license renewal).
i Licensina Board Decisions:
Chart 2 lists final decisions issued i
by Licensing Boards or presiding officers in agency adjudications in 1993.
Of the 9 listed orders, 1 involved approval of a
)
settlement agreement prior to hearing, 2 dismissed proceedings i
for default, 1 terminated a proceeding after denial of intervention, 1 terminated a proceeding after the petitioner withdrew the request to intervene, 2 orders involved the j
withdrawal of applications by the applicant, and 2 constituted an i
initial decision on the merits of a case (and were decided l
without an evidentiary hearing and solely on the basis of written l.
submissions).
Three of the proceedings concluded in 1993 were conducted pursuant to Subpart L of 10 C.F.R. Part 2, while six 1
came under Subpart G.
With respect to the final decisions rendered in 1993, the Commission received only one petition for 3
review (Sequoyah Fuels license renewal proceeding).
The Commission also received referred rulings or appeals of interlocutory matters on five occasions: twice in Oncology Services, and once in Diablo Canyon, Vogtle, and Rancho Seco.
Of the 11 proceedings initiated in the past year, Chart 3 shows a
that 3 have been concluded.
One proceeding was terminated after the licensee's withdrawal of its application.
The other two i
proceedings terminated after either a settlement was concluded or the petitioner withdrew the request for intervention.
The remaining eight active cases are at varying stages, ranging from the prehearing phase to post-trial briefing. In addition to the l
new proceedings, the ASLBP also received three remanded proceedings from the Commission during 1993.
All proceedings initiated in 1993 were subject to formal hearing procedures in Subpart G of 10 C.F.R. Part 2 or, in one case, Part 13.
Types of Proceedinas:
The agency's adjudicatory caseload has continued to shift from the initial licensing of power reactors to enforcement and decommissioning matters.
The Commission itself addressed the only appeals or requests for hearing on the initial issuance of a reactor operating license (Comanche Peak Unit 2).
Of the 9 final ASLBP orders (Chart 2) issued in 1993, 3 involved staff enforcement orders or civil penalties, 3 involved amendments to reactor operating licenses, 2 involved the amendment or renewal of a materials license, and 1 involved a materials license decommissioning.
Of the 11 new cases referred to the ASLBP in 1993 (Chart 3), 7 involved enforcement matters or l
3 In Chart 2, " final" decisions of the Licensing Board include any decisions or orders deciding the merits of a case, terminating a proceeding, or denying party status to a person.
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civil penalties and 3 concerned amendments or transfers of Part I
50 reactor licenses.
The remaining case is the first NRC l
proceeding under the Program Fraud Civil Remedies Act (in this l
instance, against a former NRC employee).
Also of particular note, there were three proceedings (Vogtle transfer proceeding, Oncology Services order, and Innovative Weaponry order) involving a staff motion for a stay or continuance of discovery pending completion of investigations by 1
the Office of Investigations.
A delay in proceedings was granted for some period of time in all 3 instances, although a further extension was denied in the Vogtle proceeding.
1 Pendina Matters:
Various motions, appeals or petitions for review are under active review before the Commission in the i
following matters:
Advanced Medical Systems (suspension order)
Kerr-McGee Chem. Corp. (withdrawal of materials license j
applications)
Sacramento Mun. Util. Dist. (decommissioning)
Sequoyah Fuels Corp. (dismissal of renewal proceeding)
Yankee Rowe (decommissioning)
Univ, of Missouri (materials license amendment) l In addition to the still pending cases identified on Chart 3, other significant active proceedings pending before the Licensing Board include the following:
Advanced Medical Systems (civil penalty)
Cleveland Elec. Illum. Co. (amendment to Perry operating license) i Georgia Power Company (request to transfer operating authority over Vogtle)
Louisiana Energy Services (uranium enrichment plant)
Pacific Gas & Elec. (Diablo Canyon license extension)
Sacramento Mun. Util. Dist. (Rancho Seco decommissioning)
Safety Light Corp. (4 related-actions)
If the Commissioners would like any additional information concerning this memorandum or the attached charts, I would be pleased to furnish it.
I will provide another report in July 1994.
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CHART 1 COMMISSION ADJUDICATORY DECISIONS, JANUARY - DECEMBER 1993 Decision Type of Decision Relief Commission Number /
Case Name Proceeding Deing Sought Action Date Challenged
- 1. CLI-93-01 Texas Utilities Part 50 Operating License Request for hearing on Request denied 37 NRC 1 Elec. Co.
operating license (1/29/93)
(Comanche Peak 2)
- 2. CLI-93-02 Texas Utilities Part 50 Operating License Stay of issuance of low power Stay denied 37 NRC 55 Elec. Co.
license (2/3/93)
(Comanche Peak 2)
- 3. CLI-93-03 Sacramento Part 50 Decommissioning LBP-92-23 Appeal of denial of Appeal granted in part; discretionary 37 NRC 135 Municipal Utility 36 NRC 120 intervention intervention ordered (3/3/93)
District (8/20/92)
- 4. CLI-9341 Texas Utilities Part 50 Operating License Request for late Request denied 37 NRC 156 Elec. Co.
intervention / hearing (3/9/93)
(Comanche Peak 2)
- 5. CLI-93-05 Sacramento Part 50 Decommissioning CLI-93-03 Intervenor Motion for Motion denied 37 NRC 168 Municipal Utility 37 NRC 135 Reconsideration of procedural (3/15/93)
District (3/3/93) ruling
- 6. CLI-93-06 Georgia Power Part 50 License Transfer LBP-93-5 Licensee's application for stay Stay application referred to Board for 37 NRC 192 Company 37 NRC 96 pending appeal of order consideration with other scheduling (3/18/93)
(2/18/93) granting intervention matters
- 7. CLI-93-07 Sequoyah Fuels Materials License Intervenors' request for Withdrawal of amendment applicadon t
37 NRC 175 Corp.
Amendment (Subpart L) hearing; applicant's withdrawal approved; request for hearing denied (3/18/93) of amendment application
- - ---- - ------ J
2 Decision Type of Decision Relief Commission Number /
Case Name Proceeding Being Sought Action Date Challenged
- 8. CLi-93-08 Advanced Medical Decontamination Order LBP-92-36 Licensee's petition for review Petition for review denied 37 NRC 181 Systems, Inc.
(Materials) 36 NRC 366 of final decision dismissing (3/30/93)
(12/14/92) proceeding as moot
- 9. CLI-93-09 Babcock & Wilcox Decommissioning LBP-93-4 Intervenor had indicated she Proceeding terminated on failure to 37 NRC 190 (Materials) 37 NRC 72 would file appeal perfect appeal (3/30/93)
(2/5/93)
- 10. CLI-93-10 Texas Utilities Construction Permit LBP-92-37 Appeals of denial of Appeals dismissed as moot (one 37 NRC 192 Elec. Co.
Extension 36 NRC 370 intervention appeal dismissed for failure to file (3/30/93)
(Comanche Peak, (12/15/92) brief)
Unit 2)
- 11. CLI-93-11 Texas Utilities Part 50 Operating License Motions to Reconsider CLI Motions denied; late intervention (4/6/93)
Elec. Co.
10 and to Stay Full Power denied (Comanche Peak, License; petition for late Unit 2) intervention
- 12. CLI-93-12 Sacramento Part 50 Decommissioning CLI-93-03 Licensee Motion for Motion denied (5/26/93)
Municipal Utility 37 NRC 135 Reconsideration of grant of District (3/3/93) intervention
- 13. CLI-93-13 Oncology Services Enforcement Order LBP-93-6 Licensee *s petition for review Petition for review granted; (6/4/93)
Corp.
(Materials) 37 NRC 207 of order staying proceeding for Licensing Board was directed to refer (3/26/93) 120 days pending investigation to the Commission any ruling granting an additional stay
- 14. CLI-93-14 Randall C. Orem, Enforcement Order LBP-92-18 Sua sponte Commission review Commission permits settlement to (6/4/93)
D.O.
(Materials) 36 NRC 93 of settlement agreement take effect (8/6/92)
3 Decision Type of Decision Relief Commission Number /
Case Name Proceeding Being Sought Action Date Challenged
- 15. CLI-93-15 Georgia Power 2.206 request DD-93-08 Sua Sponte Commission review Vacated staff's partial 2.206 decision 38 NRC 1 Company (llatch 37 NRC 314 and remanded matters therein for (7/14/93)
Units 1 & 2; (4/3/93) staff's further evaluation in light of Vogtle Units 1 &
outcome of transfer proceeding 2)
- 16. 8/4/93 Ohio Edison Co.,
Antitrust LBP-92-32 Petitions for review of decision Commission declines review by et al. (Perry Unit 1 36 NRC 269 upholding denial of permitting review time to expire.
and Davis-Besse (11/18/92) applications to suspend Unit 1) antitmst conditions
- 17. CLI-93-16 Georgia Power Part 50 License Transfer LBP-93-5 Licensee's appeal of reversal Appeal denied and LBP-93-5 38 NRC 25 Company (Vogtle 37 NRC 96 of order granting intervention affirmed (8/19/93)
Units 1 & 2)
(2/18/93)
- 18. CLI-93-17 Oncology Services Enforcement Order LBP-93-10 Licensee's request for reversal Request for reversal denied and LBP-38 NRC 44 Corporation (Materials) 37 NRC 455 of 90 day stay of discovery 93-10 affirmed; portion of LBP-93-6 (8/19/93)
(6/23/93) relating to grant of initial 120 day stay declared moot
- 19. CLI-93-18 Pacific Gas &
Part 50 Operating License LBP-93-13 Referred ruling on order Denied review of referred ruling in 38 NRC 62 Electric Company Amendment (extend 38 NRC 11 granting Intervenor's discovery view of licensee's subsequent (8/19/93)
(Diablo Canyon) operating license)
(7/19/93) request for INPO document agreement to make INPO document available
- 20. CLI-93-19 Sacramento Part 50 Decommissioning Licensing Board Sua Sponte Commission Clarified earlier Commission ruling ua 38 NRC 8!
Municipal Utility August 31,1993 Review on intervenor's contention (9/10/93)
District (Rancho Notice of Prehearing Seco)
Conference
4 Decision Type of Decision Relief Commission Number /
Case Name Proceeding Being Bought Action Date Challenged
- 21. CLI-93-20 Vermont Yankee Part 50 Operating License LBP-93-16 Sua Srionte Commission review Reversed ruling that NRC staff's 38 NRC 83 Nuclear Power Amendment (diesel 38 NRC 23 approval of application withdrawal (9/16/93)
Corp.
generators)
(7/28/93) terminated the proceeding; explained that Board, not staff, had the jurisdiction to terminate. Sua smnte terminated the proceeding.
- 22. CLI-93-21 Cleveland Electric Part 50 Operating License LBP-92-4 Petitioners' appeal of denial of Appeal granted, and Licensing Board 38 NRC 87 I!!uminating Co.
Amendment (remove 35 NRC 114 intervention order reversed; petitioner's (9/30/93)
(Perry Unit 1) material surveillance (3/18/92) contention remanded to Board schedule from Tech.
Specs.)
- 23. CLI-93-22 Advanced hiedical Civil Penalty LB P-91-9 Licensee's appeal of grant of Appeal granted in part and denied in 38 NRC 98 Systems, Inc.
(htaterials) 33 NRC 212 summary judgment, which part; remanded to Board (9/30/93)
(3/19/91) affirmed staffs finding of violations, sustained the civil penalty.
- 24. CLI-93-23 Five Star Products, Investigatory Subpoena hiotion to Quash Subpoena hiotion denied 38 NRC 169 Inc. &
(10/21/93)
Construction Products Research, Inc.
- 25. CLI-93-24 Advanced hiedical Civil Penalty CLI-93-22 Staff and Licensee Petitions to Petitions denied (11/24/93)
Systems, Inc.
(hfaterials) 38 NRC 98 reconsider CLI-93-22 (9/30/93)
- 26. CLI-93-25 State of New Challenge to barge State's request for leave to Request denied 1
(12/3/93)
Jersey shipments containing intervene and for hearing irradiated fuel assemblies along New Jersey coast
CHART 2 FINAL LICENSING BOARD DECISIONS, JANUARY - DECEMBER 1993 l
Decision /
Case Referred Type of Nature of Appeal Commission Date to Board Proceeding Decision Taken Action
- 1. 2/1/93 Geo-Tech CLl-92-14 hiaterials License Dismisses licensee's No No review (LBP-93-02, Associates 36 NRC 221 Revocation (Failure to request for hearing for (3/15/93) 37 NRC 61)
(Geo-Tech Lab)
(10/21/92)
Pay Fees) default
- 2. 2/5/93 Babcock &
8/6/92 hiaterials License Denial of Intervention No - intervenor No review; (LBP-93-04, Wilcox Decommissioning granted extension CLI-93-9 2
37 NRC 72)
(Apollo)
(Subpart L) of time to file but 37 NRC 190 (3/30/93) never perfected an terminates proceeding appeal
- 3. 4/12/93 Umeteo 7/17/92 hiaterials License Initial Decision affirming No No review l
(LBP-93-07, hiinerals Corp.
(Subpart L) issuance of license (11/5/93) 37 NRC 267) amendment
- 4. 7/9/93 Northeast 6/18/92 Part 50 Operating Grants licensee motion No No review (LBP-93-12 Nuclear Energy License Amendment for summary disposition (9/17/93) 38 NRC 5)
Co. (Alillstone (Spent Fuel Pool of contention &
Unit 2)
Design) terminates proceeding
- 5. 7/20/93 St. Joseph 11/9/92 Enforcement Terminated proceeding No No review (LBP-93-14, Radiology Order /Alaterials for licensee's failure to (8/30/93) 38 NRC 18)
Associates, (Ordering Transfer of show cause why j
Inc., and Dr.
all byproduct material proceeding should not be Joseph L.
to authorized terminated for lack of l
Fisher recipient) compliance w/10 C.F.R.
$2.202(b) 4 l
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2 Decision /
Case Referred Type of Nature of Appeal Commission Date to Boar _d Proceeding Decision Taken Action
- 6. 7/28/93 Vermont 3/2/93 Part 50 Operating hiemorandum on case No Commission m sponte (LBP-93-16, Yankee Nuclear License Amendment status finding that staff's clarified that Board, not 38 NRC 23)
Power Corp.
(Diesel Generators) approval of withdrawal of staff, had jurisdiction to application terminated terminate proceeding; proceeding Commission terminates proceeding CLI-93-20, 38 NRC 83 (9/16/93)
- 7. 9/13/93 Boston Edison 6/2/93 Pert 50 Operating hiass. Att'y Gen.
No No review (LBP-93-19, Co. (Pilgrim)
License Amendment withdrew request to (10/25/93) 38 NRC 128)
(Spent Fuel Pool) intervene; Board terminates proceeding 8.
12/8/93 Twin Falls 8/26/93 Civil Penalty Approved stipulation for No Period for possible (LBP-93-24)
Clinic and (hfaterials) settlement and terminated Commission s sponte Hospital proceeding review pending until 1/18/94
- 9. 12/15/93 Sequoyah Fuels 10/25/90 hfaterials License Granted licensee's Intervenor's Time for review expires (LBP-93-25)
Corporation Renewal (Subpart L) request to withdraw its petition for review 2/3/94 unless extended license renewal filed 1/4/94 application and terminate proceeding; denied intervenors' request to consider a revised license renewal hearing on licensee's non-production activities.
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m CHART 3 NEW PROCEEDINGS REFERRED TO THE LICENSING BOARD PANEL, JANUARY - DECEMBER 1993 Date of Type of Commission Referral Case Name Proceeding Status Action r
1.
1/6/93 Lloyd P. Zerr Program Fraud Civil Post-trial briefing Remedies Act 2.
2/5/93 Oncology Services Corp.
Enforcement Order Discovery; prehearing conference Commission reviewed Suspending License scheduled for 1/26/94 earlier Board decision (hiaterials) staying discovery, l
CLI-93-17,38 NRC 44 (8/19/93) 3.
2/25/93 Safety Light Corp.
Enforcement Order Settlement Discussions Prohibiting Asset
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4.
3/2/93 Vermont Yankee Nuclear Part 50 Operating Staff notice approves withdrawal of Commission in CLI ]
Power Corp.
License Amendment amendment,58 FR 16892 (3/31/93).
20,38 NRC 83 (9/16/93) l (Diesel Generators)
Board issued memorandum on case clarified that Board, not status finding that staff's approval of staff, had jurisdiction to withdrawal of application terminated terminate proceeding.
proceeding. LBP-93-16,30 NRC 23 Commission terminates 1
(7/28/93) proceeding.
5.
6/2/93 Boston Edison Co. (Pilgrim)
Part 50 Amendment hiass. Att'y Gen. withdrew request No review (Spent Fuel Pool) to intervene; Board terminated (10/25/93) proceeding LBP-93-19,38 NRC 128 (9/13/93)
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6.
7/9/93 innovative Weaponry Enforcement Licensee withdrew hearing request Order /hf aterials (Barring 12/27/93 distribution & directing recall of gunsights t
j 7.
8/17/93 Gulf States Utilities (River Part 50 Operating Prehearing Conference 9/15/93 on l
Bend Unit 1)
License Amendments co-owner's petition to intervene l
(change in operational l
authority and in ownership of GSU) i k
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Date of Type of Commission Referral Case Name Proceeding Status Action 8.
8/26/93 Twin Falls Clinic and liospital Civil Penalty Board approved stipulation for Sua sponte review (Materials) settlement & terminated proceeding, pending until 1/18/94 LBP-93-24 (12/8/93) 9.
11/18/93 Sequoyah Fuels Corp. (Gore, Decontamination Funding Prehearing Conference scheduled Oldahoma)
Order for 1/19/94 10.
12/13/93 Indiana Regional Cancer Enforcement Order Joint Prehearing report due 1/18/94; Center (Immediately Effective prehearing conference scheduled for Suspension / Modification 1/26/94 of License to remove Dr.
Bauer from licensed activities)
I1.
12/23/93 Cameo Diagnostic Center Inc.
Civil Penalty Prediscovery (Materials)
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