ML20059L998

Nuclear Regulatory Commission Issuances for August 1993. Pages 25-79

ML20059L998
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Issue date:	11/30/1993
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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References
NUREG-0750, NUREG-0750-V38-N02, NUREG-750, NUREG-750-V38-N2, NUDOCS 9311180066
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l NUREG-0750 Vol. 38, No. 2 i

Pages 25-79 l

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

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

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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 (301/492-8925) l l

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I NUREG-0750 Vol. 38, No. 2 l

Pages 25-79 i

i NUCLE /(R REGULATORY COMMISSION ISSUANCES 1

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j August 1993 l

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I This report includes the issuances received during the specified penod i

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).

The summaries and headnotes preceding the opinions reported herein I

are not to be deemed a part of those opinions or hava any independent legal significance.

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l U.S. NUCLEAR REGULATORY COMMISSION l

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Prepared by the Division of Freedom of information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission l

Washington, DC 20555-0001 (301/492-8925) l L

l COMMISSIONERS fvan Selin, Chairman Kenneth C. Rogers Forrest J. Remick E. Gail de Planque i

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

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CONTENTS Issuances of the Nuclear Regulatory Commission GEORGIA POWER COMPANY, n al (Vogtle Electric Generating Plant, Units I and 2) l Dockets 50-424-OLA-3,50-425-OLA-3 MEMORANDUM AND ORDER, CLI-93-16, August 19,1993 25 ONCOLOGY SERVICES CORPORATION Docket 30-31765-EA (Suspension Order)(Byproduct Material j

License No. 37-28540-01)

MEMORANDUM AND ORDER, CLI-93-17 August 19,1993 44 j

j PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units I and 2)

Dockets 50-275-OLA-2,50-323-OLA-2 (Construction Period Recovery)

MEMORANDUM AND ORDER, CLI-93-18, August 19,1993 62 Issuance of the Atomic Safety and Licensing Board l

PACII~lC GAS AND ELECTRIC COMPANY l

(Diablo Canyon Nuclear Power Plant, Units I and 2)

De.kets 50-275-OLA-2,50-323-OLA-2 (ASLBP No. 92-669-03-OLA-2)

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

MEMORANDUM AND ORDER, LBP-93-17, August 13,1993.

65 Issaance of Director's Decision 1

BALTIMORE GAS AND ELECTRIC COMPANY (Calvert Cliffs Independent Spent Fuel Storage Installation)

Dockets 72-8, 50-317,50-318

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DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206, DD-93-14, August 16,1993..

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Cite as 38 NRC 25 (1993)

CLl-93-16 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Ivan Selin, Chairman Kenneth C. Rogers Forrest J. Remiek E. Gail de Planque In the Matter of Doeket Nos. 50-424-OLA-3 50-425-OLA-3 GEOPGIA POWER COMPANY, et af.

(Vogtle Eleetrie Generating Plant, Units 1 and 2)

August 19,1993 he Commission considers the appeal of a licensing board decision, LBP-93-5. 37 NRC 96 (1993), which granted a Petitioner's request for intervention and for hearing on a proposal by the Georgia Power Company to transfer its operating authority over the Vogtle nuclear power plant to a new licensee, the Board's decision also admitted one consolidated contention. The Commission denies the appeal and affirms the Licensing Board's order, finding that the Petitioner has standing to intervene and has submitted admissible contention.

ATOMIC ENERGY ACT: LICENSEE'S CIIARACTER I

Re integrity or character of a lipensee's management personnel bears on the Commission's ability to find reasonable assurance that a facility can be safely operated.

ATOMIC ENERGY ACT: LICENSEE'S CIIARACTER Lack of either technical competence or character qualifications on the part of licensee or applicant is sufficient grounds for the revocation of a license or the denial of a license application.

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ATOMIC ENERGY ACT: LICENSEE'S CIIARACTER (STANDARD FOR DETERMINATION)

In making determinations about character, the Commission may consider ev-idence bearing upon the licensee's candor, truthfulness, willingness to abide by regulatory requirements, and acceptance of responsibility to protect public health and safety. However, not every licensing action throws open an opportunity to engage in an inquiry into the " character" of the licensee. There must be some direct and obvious relationship between the character issues and the licensing action in dispute.

ATOMIC ENERGY ACT: LICENSEE'S CIIARACTER (STANDARD FOR DETERMINATION)

The past performance of management or high-ranking officers, as reflected in deliberate violations of regulations or untruthful reports to the Commission, i

may indicate whether a licensee will comply with agency standards, and will candidly respond to NRC inquiries.

1 RULES OF PRACTICE: STANDING TO INTERVENE To determine whether a petitioner has established sufficiem interest to in-tervene in a proceeding the Commission has long applied judicial concepts of i

standing.

RULES OF PRACTICE: STANDING TO INTERVENE I

Rr standing, a petitioner must allege an " injury in fact" from the licensing i

action being challenged, and this injury must be to an interest arguably within the zone of interests protected by the governing statute. The alleged injury must l

be concrete and particularized, fairly traceable to the challenged action, and likely to be redressed by a favorable decision.

1 RULES OF PRACTICE: STANDING TO INTERVENE (INJURY IN FACT)

Rr proceedings involving the issuance of a construction permit or operating license, the Commission generally has recognized a presumption in favor of standing for those petitioners who have sufficient contacts within the geographic area that could be affected by a release of fission products. Ilowever, for this presumption to apply to license amendment proceedings, the proposed action must involve " clear implications for the offsite environment, or major alterations 26 i

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to the fxility with a clear potential for offsite consequences." Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Units I and 2), CLI-89-21, 30 NRC 325, 329 (1989). Otherwise the petitioner must allege a specific " injury in fact" that will result frorn the proposed action.

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RULES OF PRACTICE: STANDING TO INTERVENE (INJURY IN FACT)

A request to transfer operating authority under a full-power license for a power reactor may be deemed an action involving " clear implications for the 1

offsite environment," for purposes of determining threshold injury.

RULES OF PRACTICE: CONTENTIONS (ADMISSIBILITY)

Under 10 C.F.R. 6 2.714(b)(2)(iii), if an application contains disputed in-formation or omits required information, the petitioner normally must specify the portions of the application that are in dispute or are incomplete. However, a petitioner need not refer to a particular portion of the licensee's application when the licensee neither identified, nor was obligated to identify, the disputed issue in its application.

MEMORANDUM AND ORDER l

L INTRODUCTION I

Georgia Power Company (GPC or Licensee) has appealed the Atomic Safety and Licensing Board's Memorandum and Order, LBP-93-5,37 NRC 96 (1993),

which granted Allen L. Mosbaugh's petition for leave to intervene and for hearing on a proposed transfer of the licenses to operate the Vogtle Electric i

Generating Plant (Vogtle) Units I and 2.

'Ihe proposed licensing action would transfer all operational control of Vogtle Units 1 and 2 from GPC, the present Licensee, to Southern Nuclear Operating Company, Inc. (Southern i

Nuclear). The Licensing Board granted Mr. Mosbaugh standing and admitted a consolidated contention which alleges that Southern Nuclear lacks the requisite character and integrity to be a Commission licensee. On appeal, GPC argues that Mr. Mosbaugh's petition should have been wholly denied because Mr.

Mosbaugh both lacks standing and failed to submit an admissible contention.

Mr. Mosbaugh and the Nuclear Regulatory Commission (NRC) Staff oppose GPC's appeal. Ihr the reasons stated in this Order, we deny the appeal and affirm the Licensing Board's admission of the Petitioner as a party to this proceeding.

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II. BACKGROUND On October 14, 1992, the NRC Staff published in the l'cderal Regirrer a notice of opportunity for hearing on the proposal to transfer all operating l

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authority over the Vogtle plant from GPC, the current operator, to Southern J

Nuclear. 57 Fed. Reg. 47,135 (Oct.14,1992). Southern Nuclear presently functions as an unlicensed support services company. If the transfer is approved, Southern Nuclear would have the exclusive authority to possess, manage, use, operate, and maintain the facility. The proposed transfer would involve only the authority to operate Vogtle and would not change the ownership interests in the plant; GPC and the other named owners would continue to own the Vogtle plant in the same percentages as today.

Both GPC and Southern Nuclear are wholly owned subsidiaries of Southern Company. Southern Company incorporated Southern Nuclear in December 1990 for the purpose of consolidating within Southern Nuclear those Southern Company personnel engaged in nuclear operations. As a transitional stage prior to the incorporation of Southern Nuclear, Southern Company organized the Southern Nuclear Operating Company (SONOPCO) " project." Numerous SONOPCO project - now Southern Nuclear - personnel are also officers of GPC. GPC explains that this process of" double-hatting" is a common method to maintain a licensed utility's authority and control over transitional organizations, prior to the transfer of operating authority to a new affiliate."

On October 22,1992, Messrs. Allen L. Mosbaugh and Marvin B. Hobby filed a joint petition to intervene and for hearing on the proposed transfer of the Vogtle licenses. The Petitioners claimed that Southern Nuclear's management does not have the character, competence, or integrity to ensure the safe operation of the Vogtle plant, and therefore should not become the licensee. Petition to Intervene and Request for Hearing of Allen L. Mosbaugh and Marvin B.

Hobby at 2 (Oct. 22,1952) [ hereinafter Petition]. In an unpublished order dated November 17,1992, tSe Licensing Board concluded that Mr. Hobby, who alleged only injury to his eenomic interests, had not demonstrated sufficient interest for standing and, accordingly, the Board dismissed Mr. Hobby's petition.

Mr. Hobby has not appealed. Mr. Mosbaugh claimed that he resides within 50 miles of the Vogtle plant and will face increased risk of radiological harm as a consequence of the proposed transfer. The Board ordered Mr. Mosbaugh to 7,ubmit an amended petition, to contain both his particularized contentions and a more detailed statement of his contacts in the Vogtle plant area.

GPC has claimed that the transfer would not result in any significant change in 4

nuclear operations personnel or support organizations. Therefore, of particular I GPC*a Enef in Responne to the Board's January 1$.1993 Request for Informarion and Briefs at 18 (Feb. 4 1993).

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note in this proceeding is the Licensee's repeated assertion that even after the transfer of operating authority to Southern Nuclear, "the change in the 1

actual personnel in control of licensed activities will be insignificant."2 For example, GPC states that once the proposed transfer becomes effective, the onsite organization responsible for operations at the facility will be transferred as a unit to Southern Nuclear.3 GPC claims that the transfer also would not l

significantly alter offsite line management; three of the four GPC officers who 4

are the current Vogtle offsite managers are also officers of Southern Nuclear, and GPC states that upon the authorization of the transfer these three officers would continue managing the plant, although they would do so only as officers of Southern Nuclear, not of GPC. GPC thus characterizes the proposed change i

as resulting primarily in a licensee name change, not a change in the individuals managing the Vogtle plant, and therefore not a change that would result in any new injury to Mr. Mosbaugh.

In LBP-93-5, the Licensing Board determined that Mr. Mosbaugh satisfied the l'

Commission's requirements for both standing and an admissible contention, and admitted Mr. Mosbaugh as a party to the proceeding. 'Ihe Board rejected GPC's argument that Mr. Mosbaugh faces no injury as a consequence of the proposed l

I transfer. The Board found that Mr. Mosbaugh resides periodically at a house located about 35 miles from the plant. Mr. Mosbaugh was found to have alleged.

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with an adequate basis, that the proposed transfer does not meet the NRC's safety requirements, and that even though " material safety deficiencies he has alleged may already be occurring," the transfer of control from GPC to Southern i

Nuclear could affect Mr. Mosbaugh's health, safety, and property interests. 37 l

NRC at 98,107. The Board also found three of the Petitioner's submitted contentions acceptable, but in the interest of efficiency consolidated these into a single admitted contention. In essence, this contention alleges that the authority l

to operate Units 1 and 2 should not be transferred to Southern Nuclear because the company lacks the requisite character, competence, integrity, truthfulness, and willingness to abide by regulatory requirements.

GPC has appealed the Licensing Board's decision pursuant to 10 C.F.R. 6 2.714a (1993). On appeal, GPC presents principally four arguments. GPC claims that the Board cried in concluding that (1) the proceeding is an appropri-l ate forum in which to address Mr. Mosbaugh's allegations; (2) Mr. Mosbaugh demonstrated that he would sustain an injury in fact from the proposed transfer

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J sufficient for standing; (3) the injury complained of is likely to be redressed by a decision favorable to Mr. Mosbaugh; and (4) Mr. Mosbaugh satisfied the Commission's requirements concerning the admission of contentions.

2 GPC's Hnef in support of its March 4.1993 Nauce of Appeal at 4 (Mar. 4.1993) thereinaher GPC Appeal Enerl

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Mr. Mosbaugh answers the Licensee's appeal primarily with a defense of the Licensing Board's finding of standing. The Staff, which initially had concurred with the Licensee that Mr. Mosbaugh had not demonstrated injury, now supports 4

the Licensing Board's finding of standing, based upon the Board's analysis of redressability. NRC Staff Brief in Response to Licensee's Appeal at 6-7 (Mar.

16, 1993). Staff has not taken a position on the adequacy of Mr. Mosbaugh's l

contentions.* Re Staff, however, maintains that the Licensee's c*iaracter can be i

an appropriate consideration in this proceeding.

I III. ANALYSIS A.

Scope of the Proo eding Because this issue his importance to GPC's arguments on both Mr. Mos-baugh's standing and his contention, we first address GPC's claim that this 1

proceeding is not an appropriate forum in which to address Mr. Mosbaugh's allegations. GPC emphasizes that character issues have not been considered in other transfer proceedings and that "[a]bsent specific direction from the Com-mission in enforcement proceedings, an applicant for a license transfer need only demonstrate financial and technical qualifications." GPC Appeal Brief at 43-44 (footnote omitted). GPC suggests that under Commission precedent the Commission permits inquiries into a licensee's character only after the initiation j

of enforcement actions. Id. at 40-41.

We concur with the Staff that the character of a proposed licensee is an appropriate issue in a proceeding to consider transfer of operating authority. He I

adequacy of a licensee's corporate organization and the integrity and competence of its management are certainly matters that the Commission may consider in its licensing and oversight responsibilities under the Atomic Energy Act (AEA).5 Section 182a of the AEA authorizes the Commission to decide, by rule or regulation, what information is necessary to determine the qualifications of an applicant, including the " character" of the applicant. Sec 42 U.S.C. 6 2232(a).

i Although the Commission has not enacted regulations that specifically refer to

" character," it has considered the character of licensecs and applicants when directly relevant to the proposed action.

'However, in a Parnal Director's Decision Under 10 C.r.R.12.206," DD.93-8, 37 NRC 314, 317 24 (1993),

i that was issued afer the staff's inef was fded, the Staff rejects tie trents of one of tte bases far Mr. Mosbaugh's contenuons. i.e, tte alleged defarro transfer of the Lcenses to southern Nuclear. Because sone of the factual a

issues addressed in DD-93-8 overlap with those now pendmg in this gwoceeding, we vacated DD-93-8 and remanded the pennon to the staff for further consideration as the conclusion of this proceedmg. See generafly CLJ-93-15.

38 NRC 1 (1993)

S See AIA i182a,42 U.S C i 2232(a),10 C.F.R 6 50.34(b)f6)(i).

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Commission precedent establishes that lack of either technical competence or character qualifications on the part of licensee or applicant is sufficient grounds for the revocation of a license or the denial of a license application. See Hous-ton Lighting and Power Co. (South Texas Project, Units I and 2), CLI-80-32, 12 NRC 281,291 (1980). He Commission has looked to whether a licensee's management displays "the climate, resources, attitude, and leadership that the Commission expects of a licensee."* In making determinations about " integrity" or " character," the Commission may consider evidence bearing upon the li-censee's " candor, truthfulness, willingness to abide by regulatory requirements, and acceptance of responsibility to protect public health and safety."7 He past t

i performance of management or high-ranking officers, as reflected in deliberate violations of regulations or untruthful reports to the Commission, may indicate whether a licensee will comply with agency standards, and will candidly respond to NRC inquiries.8 Under 10 C.F.R. 9 50.80(c), before the Commission may approve an appli-cation for a transfer oflicense it must determine that the proposed transferee is i

" qualified to be the holder of the license," and that the transfer of the license is otherwise consistent with applicable provisions of law, and Commission regu-lations and orders.' The regulation does not ;>crmit a lower standard of qualifi-cations of a proposed transferee than of an initial license holder. He predictive findings that the Commission must make prior to the issuance of an initial license are no less relevant and no less applicable to a proposal to change the operator of l

a nuclear facility. For instance, the Commission may issue an operating license only after finding that there is reasonable assurance that the activities authorized by the operating license can be conducted without endangering the health and safety of the public, and that such activities will be conducted in compliance with regulations.10 C.F.R. 6 50.57(a)(3). Rese threshold determinations are equally appropriate in a proposed fransfer of operating authority under a license to a new licensee. He integrity or character of a licensee's management per-sonnel bears on the Commission's ability to find reasonable assurance that a j

facility can be safely operated. See Three Afile Island, CLI-85-9,21 NRC at 1140.

GPC would like us to view the proposed amendment as no more significant than a change of corporate name. But the significance of a total transfer of i Verropohran Edmm Co. (Three htile Island Nuclear str. ion. Urut 1). C118s-9. 21 NRC 1118.1137, cg'd sub nom in rr Threr Afile bland Alrrr. Inc.,771 r.2d 720 (3d Cir 1985). cert. denied. 475 U.s.1082 (1986).

7 1d. at 11%37.

8 Ser llamim Testmg laboratones. inc 2 ALC 423,428 (l964), af'd sub nom. llamhn Testmg laboratories.

Inc. v. AEC. 357 F.2d 632 (6th Ctr.1966).

'Scr aho AEA (184. 42 U.S C. { 2234 ("No hcense _

shall be transferred, assigned or in any nenner disposed of. voluntanly or involumarily directly or indirecdy. through transfer of control of any hcense to any person, unless the Comrrussion shall. after secunng fuD infurrnanon. imd that the transfer is in acenrdance widi the prtwisions of this Act. and shall give its conwnt in wnting"),10 CJ.R.150.54(c).

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operational control and responsibility over a nuclear power plant licensed to operate at full power makes relevant to this proceeding the proposed Licensee's integrity and willingness to abide by regulatory requirements. As Staff has emphasized, the proposed transfer may not be approved "[i]f personnel who will be involved in the operation of the facility lack the character to operate the facility."* A resolution of properly admitted contentions regarding character or l

integrity has a direct, bearing on the Commission's ability to find that Southern Nuclear will operate the VoFtle facility in compliance with Commission rules, regulations, and the AEA, and without endangering the health and safety of the public.

We do not mean to suggest that every licensing action throws open an opportunity to engage in a free-ranging inquiry into the " character" of the licensee. There must be some direct and obvious telationship between the character issues and the licensing action in dispute. Where, as here, the proposed action concerns the transfer of the license to a new organization and management that will be responsible for the safe operation of the plant, character issues may i

be directly relevant.

B.

Mr. Mosbaugh's Standing We next turn to GPC's argument that Mr. Mosbaugh failed to allege an injury both linked to the proposed transfer and redressable by this proceeding, l

and that accordingly he lacks standing to intervene in this proceeding. To l

determine whether a petitioner has established sufficient interest to intervene in a proceeding, the Commission has long applied judicial concepts of standing."

Ibr standing, a petitioner must allege an " injury in fact" from the licensing action being challenged, and this injury must be to an interest arguably within the zone of interests protected by the governing statute. The alleged injury must j

be concrete and particularized, fairly traceable to the challenged action, and likely to be redressed by a favorable decision. See generally Lujan v. Defenders of WildIrfe,112 S. Ct. 2130, 2136 (1992); Public Service Co. ofNew Hampshire (Seabrook Station, Unit 1), CL1-91-14,34 NRC 261,266-67 (1991) (Scabrook).

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Injury may be actual or threatened. Wilderness Society v. Griles, 824 F.2d _4, 1i (D.C. Cir.1987).

'Ihe standing dispute in this appeal centers on the nature and redressability of Mr. Mosbaugh's injury, not on whether that injury is to an interest that falls within the " zone of interests" protected by the AEA. Because GPC anticipates l

• NRC staff Respot w to licensing Itoard Questions at 6 (Feb. 5.1993).

"See Sacramento Municipal Utility Durrict (Rancho seco Nuclear Generating station). CL1-92-2. 35 NRC 47,

$6 t1992). qf'd Environmental & Resources Defense Conserwritm organizaswn v. NRC, No. 92-70202 (9th Car.

June 30.19931 32 t

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t that the proposed transfer will result in only what it deems to be a negligible change in personnel, the Licensee argues that Mr. Mosbaugh faces no potential injury from the transfer. GPC states that "the only anticipated change in personnel at this time is that the Executive Vice President of GPC (who is also the President of Southern Nuclear) will no longer report to the President of GPC but will instead report solely to the Board of Directors of Southern Nuclear,"

and that this reporting change is insignificant because the president of GPC will remain a member of the Board of Directors of Southern Nuclear. GPC's Answer to Petition at 1I & n.5. GPC thus concludes that no potential for adverse offsite consequences will arise from the assumption of operating responsibilities by Southern Nuclear. Id. Ibr the same reason, the Licensea emphasizes that the injury of which Mr. Mosbaugh complains, if it exists, would not likely be redressed by a decision favorable to him, but would exist regardless of whether the transfers are granted or denied. GPC's Appeal Brief at 20,27. We address injury and redressability separately and seriatim.

1.

Injury in Fact to Afr. Afosbaugh's Interests Mr. Mosbaugh predicates his alleged injury upon his contacts in the area near the Vogtle plant, namely periodic residence at a house in Groveton, Georgia, located approximately 35 miles from the plant. Mr. Mosbaugh alleges that the management of Southern Nuclear lacks the character, competence, and integrity to safely operate the Vogtle plant, and lacks the candor, truthfulness, and willingness to abide by the regulatory requirements neces3ary to operate a nuclear facility. Petition at 1-2. More specifically, Mr. Mosbaugh alleges that the highest levels of Southern Nuclear's management intentionally submitted 2 Mr.

material false information to the NRC in a Licensee Event Report.

Mosbaugh further claims that Southern Nuclear managers deliberately submitted additional material false statements to the NRC Staff to obstruct an NRC investigation by the Office of Investigations (01). Amended Petition at 16-19.

Moreover, Mr. Mosbaugh alleges that Southern Nuclear officials, in violation of NRC regulations and of the Georgia Power Company's license, used legal and illegal methods to " wrench the control of Plant Vogtle" from GPC and, as a result, GPC, the current Licensee, has ceased to be in control of operations at the plant. )

12 Anrndnrnts to Pennon to Intervene and Regi.est for lleanng at 1516 (Dec. 9,1992) tirreinafter Anrnded Pennon) 33 Transenpt of January 12,1993 Preheanng Conference at 67-71 {hettinafier Preheanng Conference Transenpt)

(remarks by Mr. Mmbaugh's coumeD. see afw Anended Peution at 514. Peduoner's Brief in Response to the Iked's Request for inforrnation at 15 (Feb. 5.1993). Allen L Mosbaugh's Enefin Opposidon to GICs Appeal of the ticenung Board's Feb lit.1993 Mernorandum and order at 4-7 (Mar. 22.1993).

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Mr. Mosbaugh submits that at the time that Georgia Power Company received 7'

its operating license, GPC personnel had the requisite integrity and abided by safety regulations," but over time GC's previous " management team was reconfigured to accommodate the Southern Company's establishment of t

SONOPCO. As a result of this transition, all of GPC's line managers over the plant manager have been replaced."" This new management team chosen to staff Southern Nuclear allegedly has evinced a willingness to risk safety and deceive the NRC.H' Mr. Mosbaugh concludes that the influence of Southern Nuclear management personnel at Vogtle resulted in a corporate culture prone to taking risks in areas of safety." Due to the alleged "new corporate milieu"" of intentional corporate misconduct by top management at Southern Nuclear, the Petitioner argues that a transfer of operational authority to Southern Nuclear would " encourage Southern Nuclear management to engage in the very type of misconduct Mr.

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Mosbaugh fears could result in a nuclear accident," and thus would increase the possibility of an accident and "otherwise represent [] an unsafe operating condition." Amended Petition at 3. 'Ihus, Mr. Mosbaugh emphasizes that the formal transfer of operating control to Southern Nuclear will ratify a management organization that has violated and currently is in violation of Commission requirements, and that a transfer to individuals who tolerate -

if not encourage - violations will place him, by virtue of his frequent presence i

in the plant area, at greater risk of radiological injury.

For proceedings involving the issuance of a construction permit or operating license, the Commission generally has recognized a presumption in favor of standing for those petitioners who have sufficient contacts within the geographic area that could be affected by a release of fission products. See, e.g., Virginia Electric and Power Co. (North Anna Power Station, Units I and 2), ALAB-522,9 NRC 54,56 (1979) (North Anna). Especially given the possible health consequences of accidental releases, the siting of a plant in a petitioner's environment may be deemed a direct and pfesent injury. Duke Power Co. v.

Carolina Environmental Study Group, Inc., 438 U.S. 59,74 (l978).

Ilowever, the Commission has stressed that this presumption in favor of an interest to intervene applies only in " proceedings for construction permits, op-H 5ee, e g.. Pentioner's Brief in Response to Imarts Request for Infarrnanon at 4 a.4. Pietraring Conference Tranicnpt at 109.

U Peuuoner's Bnef in Response to the Board's Request for Infornmuon at 4 m 4.

"'id; Preheanng Conference 7tarnenpt at 71 Consequently, de Peutioner argues 6at *it is incumbent upon GPC to show that the propowd new nanage:nent of souttern Nuclear - not er old nanagement of GPC-has de requisite character and integrity to cperate a nuclear facility" Petionner's Drief in Response to the Board's Request for informacon at 6 "Prehcanng conference Transcnpt at 7172.

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'8 14. at 71.

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Pentioner's Bnef in Responw to de Board's Request for Informanon at 6 7.

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erating licenses, or significant amendments thereto," where the proposed action involves " clear implications for the offsite environment, or major alterations to the facility with a clear potential for offsite consequences." Florida Power and 1

Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CL1-89-21,30 NRC 325,329 (1989) (St. Lucie). In the absence of"such obvious potential for offsite consequences, a petitioner must allege some specific ' injury in fact' that will result from the action taken." Id. at 330. For example, proximity alone did not establish the requisite injury for standing in St. Lucie because the proposed action primarily affected the occupational safety of workers in radiation areas within the plant, and posed no readily apparent potential for safety consequences to the offsite public.

He Licensing Board concluded in LEP-93-5 that Mr. Mosbaugh's petition satisfies threshold standing requirements. The Board determined that the peti-i tioner owns a house located approximately 35 miles from the Vogtle plant, and since August 1991 has resided at this home approximately I week each month.2 The Licensing Board determined that the proposal to transfer operational au-l thority to Southern Nuclear presents an " obvious potential for offsite conse-quences," and that, accordingly, because of his frequent presence near the plant Mr. Mosbaugh had adequately established an interest to intervene. LBP-95-5, 37 NRC at 108. He Board reasoned that allegations ofintentional withholding of safety-related information by key Southern Nuclear officials pertain to the plant's overall safety, and "[t]he risk of non-safety-conscious management is as i

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great as many other risks that could be adjudicated in an operating license case "

Id.

j On appeal, GPC contests the Board's conclusion that the proposed action involves an obvious potential for offsite consequences. To the Licensee, the i

proposed amendments involve "little more than a name change" since any change in the personnel who will control licensed activities will be minor. GPC Appeal Brief at 15-16. GPC therefore claims that the transfer of operating contml poses no injury to Mr. Mosbaugh.

We concur with the Licensing Board that Mr. Mosbaugh sufficiently has r

alleged an injury linked to the proposed amendments. Mr. Mosbaugh has established in the Board's estimation regular, though intermittent, residence near the plant. Comparc North Anna,9 NRC at 57 (periodic recreational activity). A j

request to transfer full operating authority over a power reactor may be deemed a "significant" amendment or action involving " clear implications for the offsite

)

environment," for purposes of determining threshold injury.

20 37 NRC at 107. In response to Mr. Mosbaugh's peution, tie licensee had chauenged Mr. Moshaugh's asacrtion that he resides in Georgia. The Board reached its hndmgs about Mr. Mosbaugh's contacu in tie Vortie plant area based upon suppenental fit;ngs and an evidentiary heanng held January 12,1993.

35 i

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We agree with the Petitioner that although key officers at Southern Nuclear may already be in managerial roles as GpC officers at Vogtle, the officers' current presence at Vogtle does not obviate the need for Southern Nuclear to show that it has the willingness to follow NRC mgulatory requirements before the company is granted the responsibility for the plant's operations. Amended Petition at I n.l. As Staff counsel stated before the Licensing Board," character has to be looked at, even though it appears to us that these are the same people named both times.

To issue a license amendment would be an indication that the NRC in some way says at that point character was [ acceptable]

in the past and that character can continue into the future."28 'Ihus, we cannot accept at this threshold stage GPC's conclusion that no injury would result from tfansferring responsibility for safe operation to persons in Southern Nuclear's corporate management who are alleged to have violated agency regulations and to have submitted false information to the NRC. Given the need to ensure before 4

the licenses are transferred that Southern Nuclear's management will operate the Vogtle facility consistent with regulatory requirements, we will assume that the transfer has potentially significant public health and safety implicatiaris.

GPC's approach would have us ignore. matters concerning the individuals filling positions in the new organization simply because they presently occupy similar positions of responsibility in the old one. This approach would insulate the proposed licensee from scrutiny for reaans having nothing to do with the relevance of the matters to the licensing action at issue or with the specificity of the allegations.22 Whether some or even all of the Ley personnel are already managing i

the facility does not climinate the implications of granting total control over operations to corporate management alleged to be lax on safety. If Mr.

Mosbaugh's allegations are correct, the license transfer would act to ratify and reward corrupt management. The Commission has acknowledged that high-level management plays a significant role in assuring "that a proper attitude is followed throughout the organization." Three Mile Island, CL1-85-9, 21 NRC at 1139. In assessing threshold standing, we simply cannot conclude 1

21 Preheanng Conferena Transenpt at 99-100 22 Tir Licensee states ttmt er licensmg Board's ruhng dacctly conflicts with Derrod Edima Co. (Enrico Fermi Atomic Power Plant. Unit 2), LBP-78-11. 7 NRC 381. 386. og 'd, ALAB-470,7 NRC 473 (1978)(Term 0. GPC's Appeal Bnef si 35-36. Termiinvolved a procedmg to amend a construcuan permit to add erw co-owners. The Licensing Ibard in Termiconcluded that the scope of the proceeding did not encompass consideranon of wirtter Detroit t4 son had violated Commission regulauons by transfernng ownership interests in advance of Commission action on the proposed amendnent GPC clains that the Licensing Board in LBP-93-5 should have rejected Mr.

Mosbaugh's allegations because he likewise seeks only to htigate histoncal allegations. We find de instant case distmpuishabic. Here. Mr. Mosbaugh claims diat southern Nuclear personnel cunently lack the character to 1

operate or plant Tius claim is teed on alleged imennonal violations committed by southern Nucicar officers, which are cited to depict an alleged corrupt managenent organization that is unfit to o;rrate a nucicar pouer d

plant. There were no such allegations about the character of the rrw co-owters in Termi, whether Detroit lidison had violmed Commission segulations in the past simply had no selevana to that promeding 36 4

i

l that hir. hiosbaugh would not face increased risk of radiological injury from a formal transfer of operating responsibility to an organization whose high-rankmg j

officers are allegedly willing to violate safety regulations.

l GPC itself has stressed the significance of the authority and "fmal say," so to speak, exercised by the company named as the exclusive operating licensec.

thr instance, under the culTent license, in an irreconcilable dispute between the president and chief executive officer (CEO) of GPC and the president and CEO of Southern Nuclear over whether an employee of GPC should be fired, the GPC president, as president of the Licensee, would prevail." A " double-hatted" officer of GPC and Southern Nuclear stressed that if such a conflict "can't be ironed out, obviously, the stronger hand in this is [the current Licensee]

[T]he sanctity of the license and responsibility is absolute. There can never be a dilution.

in the sanctity of that operational responsibility.~24 Quite simply, transfer of the license will mean that a different corporate entity,

)'

Southern Nuclear, will be responsible for activities at Vogtle. Even if the same personnel will be operating the plant on the day after the transfer, they will be reporting to a different organization. 'Ihis new organization will have the ability to replace the plant management and affect plant operation in any number of ways. Thus, we do not accept GPC's argument that the amendments repioent nothing more than a corporate "name change."

If a licensing action involves an obvious potential for offsite consequences, l

the petitioner need not meet the heightened requirement under St. Lucie for specification of the " injury in fact" that will result from the action taken, nor must the petitioner particularize the causal relationship between the alleged i

injury and the results of the proceeding. Sec Sr. Lucie, 30 NRC at 329-30; North Anna,9 NRC at 56. hir. hiosbaugh's intermittent residence in the plant's vic nity, coupled with his allegation that personnel of the company that will be authorized to control the Vogtle facility lack the integrity to operate the plant safely, is sufficient to meet the " injury" requirement for standing in this proceeding.

I f

t D Src 'Iramcope of Public Meeting on inglenentauon of Souttern Nuclear oprinting Company at 39 Oan.

11.1991) Oefemng to analogous hypoortical dispute between er preudents of Alatama Power Company and Soutfern Nuclear). attached to GPC's Responw to the Board's Jan. 15.1993 Request for Infornation (Feb. 4 i

1993). The licemce emphasizes that after the transfer de only change in hne management personnel resptmsible j

for heenwd actinues will be that Mr. Mcdonald. a senior ufficer at GPC and Southern Nuclear, will no longer report to Mr. Daldberg. de president of GPC, and instead wdl report to de Board of Duectors of Southern Nuclear 'De licensee submits that this change will be inngmficam because Mr. Datdberg is on tie Southern Nuclear Board of Duectors. At dus point, in determining threshold standmg. we are not prepared to resobe tir estent to which the hcenw transfer may result in any changes in the velauwe influence of perumnet at the Vogtle facibry, and if so. what the effects migts be of sudi a shift in inf!uence.

24 g,, 39 37 i

2.

Redressability of hir. AIosbaugh's injury Notwithstanding a finding of injury to Mr. Mosbaugh's interests, GPC contends that Mr. Mosbaugh cannot satisfy the redressability component of the standing test. GPC argues that even if Mr. Mosbaugh's claims are adjudicated and found to have merit, with the result that the trar sfer is disapproved, his 4

asserted injury would not be redressed by this proceednr Disapproval of the transfer, GPC argues, will merely leave the plant under its present management, which employs the same personnel v hose integrity Mr. Mosbaugh is attacking.

4 Derefore, this argument goes, a hearing on Mr. Mosbaugh's contentions cannot result in any relief from his claimed injuries, and his case for standing fails the redressability test.

We find GPC's argument unpersuasive. De underlying implication of GPC's approach is that approval of the proposed transfer would in fact be an action of no real consequence or significance. But an adjudication that ended by confirming Mr. Mosbaugh's allegations about the unfitness of Vogtle management,if upheld on further administrative review, most assuredly would do more than simply result in denial of the transfer amendment. Mr. Mosbaugh's asserted injuries would be redressed if he should prevail in this proceeding or even partially prevail. For example, as the Licensing Board suggested, Mr. Mosbaugh could obtain relief if the tasfer was granted subject to changes in the structure and personnei.f Luthern Nuclear.25 As the Staff states, "an order prohibiting or limiting the activities of certain of these officers at Vogtle might prevent potential harm from operation under the proposed transfer."26 Moreover, determinations made in this proceeding, i.e., a finding of adverse character, would have a collateral estoppel effect on related licensing actions or in later proceedings brought on the same facts 27 he consequence of such adverse findings resulting D LBP-93-5,37 NRC at 105. GPC argurs that de Board ened in suggesting its own theory of redressatshty, unadvanced by the peutioner. GPC's rehance on Comnhsion precedent to support this argunrot is misplaced. In Arcona rubhc Senic Co. (Palo Verde Nuclear Generatmg Station. Units I,2 and 3), CLI 91-12,34 NRC 149 155 56 (1991). the Comrmuion he;J that licensing boards may not freely infer bases for comenorms in franung specific issues for buganon once stan&ng is estabbshed. We do wt beheve that this decision can be read to prohibit the Board from comidermg generally the reach of its W adiction to fashion a remedy in determining redrenabihty.

26 NRC Staff Bnef in Resporne to Licensee's Appeal at 7. GPC sulmuts that if the Board were to approve tie amendnrnts sutject to con &tions that GPC found unacceptable. GPC might simply reject those conditions since it can contmue operaung Plant Vogtle under the eunent organizauonal structure? GPC Appeal Uncf at 26-27. GPC, however, may not unilaterally withdraw its applicanon The Comnussion provides under 10 C.F.R. 5 2107(a) that "[tlhe Comnussion may permit an appbcant to withdraw an apphcanon prior to the issuance of a nouce of hearmg on such terms and con &tions as it may presenbc. or may, on receiving a sequest for withdrawal of an npphcanon, deny the apphcanon or dnnuss it with preju&ce. Wathdrawal of an apphcanon after the issuance of a nonce of tranng shall be on such terms as the presi&ng officer may presente? See clso Sequovah fwls Cwp.. CLi-93-7. 37 NRC 175,179 (1993); ractfer Gas and Electric Co. (stannlaus Nuclear Project. Unit 1).

CL182-5.15 NRC 404. 405 (1982).

27 Collateral estoppel pnncipics may be apphed by the Conumssion in administranve proceedings to bar re-linganon of previously resolved factual tasues See Alabama remer Co. (Joseph M. Fhriey Nuclear Plant.

j fContinued) 38 U

_-._,m-..

1 i

i from the litigation of Mr. Mosbaugh's allegation is fairly a result of this 4

proceeding. 'Ihus, the Petitioner's alleged injury is "likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26,38 (1976).

]

lhe 1.icensee notes that in Scabrook, which also involved allegations about character, the Commission denied standing to the Seacoast Anti-Pollution i

l League (SAPL) for failure to demonstrate that its alleged harm would abate by l

i l

a favorable decision. However, Scabrook is distinguishable on its facts. Fearing the alleged corrupt influence of Northeast Utilities (NU) management on NU's 4

subsidiaries, SAPL challenged a proposed transfer of a substantial ownership i

interest in the Seabrook plant from Public Service Company of New Hamp-l j

shire to NAEC, an NU subsidiary. Yet SAPL failed to respond to a notice of j

a separate proposed amendment to transfer operational authority to NAESCO, j

another NU subsidiary. This second proposed amendment authorized NAESCO l

to manage, operate, and maintain the Seabrook faci;ay, actions central to the j

Petitioner's fears of unsafe operation. As a result, the Commission found that I

SAPL's alleged injury would not be redressed by the denial of the proposed transfer of an ownership interest to NAEC. 34 NRC at 268. Unlike Seabrook, Mr. Mosbaugh's alleged injury stands to be redressed by a favorable decision l

}

in this proceeding.

i 1

C.

Admission of the Consolidated Contention i

j To be admitted as a party, a petitioner for intervention must not only establish standing, but must also proffer at least one admissible contention. Commission J

regulations under 10 C.F.R. E 2.714(b)(2) and (d)(2) establish the standards for j

j an admissible contention. Sectian 2.714(b)(2) mandates that a contention include a specific statement of the issue of law or fact to be raised or controverted, a brief explanation of the bases of the contention, and a concise statement of the alleged facts or expert opinion that support the contention, together with references to those specific sources and documents on which the petitioner j

intends to rely to prove the contention. Additionally, the petitioner must present

]

sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Asserted contentions must fall within the a

scope of the issues set forth in the notice of the proposed licensing action. See l

Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units I l

and 2), ALAB-316,3 NRC 167,170-71 (1976).

l

'Ihe Licensing Board found admissible three of Mr. Mosbaugh's proffered contentions, all of which related to the character of Southern Nuclear's manage-i Units 1 and 2), AtAll 182,7 AIC 210. 214. armanded on eder gmunds. CtJ-74-12. 7 AIC 203 0974); Comhna l

hwr and taght th (Shearon Hams Nuclear Powr Plani). AIAll-837,23 NRC 525. 536 0986).

I 39 i

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f ment. A fourth contention focused upon Southern Company, the parent com-l pany of GPC and Southern Nuclear; the Board rejected this fourth contention for 4

j lack of an adequate basis for questioning the character of Southern Company.

i LBP-93-5,37 NRC at 105. In brief, the bases for Mr. Mosbaugh's contentions i

j concerned (1) whether the formation of Southern Nuclear's relationship to the q

Vogtle plant, particularly the alleged illegal transfer of operating authority, evi-l dences a lack of trustworthy character in Southern Nuclear's management, and

]

(2) whether high-ranking officers of Southern Nuclear intentionally submitted material false statements to the NRC concerning the March 1990 site area emer-i j

gency and resumed operation after that event. Sec id. at 102-03,104-05. In the j

interest of efficiency, the Board consolidated the three admissible contentions j

into the following single contention.

3 De license to operate the Vogtle Electric Generating Plant. Units 1 and 2. should not be l

transferred to Southern Nuclear Operating Company, Inc., because it lacks the requisite

]

character, competence, and integrity as well as the necessary candor. truthfulness, and I

willingness to abide by regulatory requirements.

t Id. at 110.

On appeal, GPC argues that the Licensing Board erred in concluding that Mr.

Mosbaugh satisfied the Commission's requirements concerning the admission L

l of contentions. GPC claims that Mr. Mosbaugh's contentions lacked either factual or legal basis. GPC Appeal Brief at 30. Specifically, GPC submits that the Board incorrectly found that Mr. Mosbaugh satisfied the Commission's contention requirements under 10 C.F.R. 5 2.714(b)(2)(iii). Id. This provision mandates that the petitioner provide the following as to each contention:

I Sufficient inforrnation.

to show that a genuine dispute exists with the applicant on g

a matenal issue of law or fact. Ttus showing must include references to the specific portiom of the application.

that the petitioner disputes or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law the

]

identification of each failure and the supporting reasons for the petitioner's belief.

j i

10 C.F.R. I 2.714(b)(2)(iii).

i GPC argues that the Petitioner failed to identify any error or omission in GPC's application, and that the Licensing Board improperly implied that the licensee was required to include Mr. Mosbaugh's allegations in its applications and that GPC's failure to do so constituted an omission. GPC Appeal Brief at

31. In this regard, the Licensing Board stated:

We note that 10 Cf.R. 5 2.714(bX2Xiii) requires the specification of how the application

~

fails to contam information that it should contain. In this instance, Mr. Mosbaugh has alleged material facts that are relevant to the application. The omission of these facts from the application is not surprising, since they are adverse to the interest of the Applicant.

{

40 4

.i

4

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Ccmsequently, Mr. Mosbaugh fulfills its requirenrnts of this section because the omission from the application of the facts he has alleged is material to proper consideration of tie j

arnendnent.

l 37 NRC at 103-04. GPC stresses that the Board's suggestion that GPC should have included the Petitioner's alleFations is unreasonable because "[n]owhere in the regulations is there any requirement that an applicant for a license transfer l

elaborate on its ' character.'" GPC Appeal Brief at 31.

We disagree with the Licensing Board's reasoning to the extent that it j

may suggest that the Petitioner satisfied the requirements under 10 C.F.R.

{

$ 2.714(b)(2)(iii) because the Licensee "omitted" from its application Mr. Mos-l baugh's allegations about Southern Nuclear's character. The Licensing Board's

{

approach relies upon a legal fiction that is neither contemplated under our reg-

[

ulations nor necessary to satisfy them. We accept arguendo that Commission regulations did not require GPC to include references to character allegations in its application. However, in fairness, we cannot then require that to adequately specify a dispute over a material fact, a petitioner must refer to a particular r

portion of the licensee's application, when the licensee neither identified, nor l

was obligated to identify, the disputed issue in its application. Such a narrow reading of section 2.714(b)(2)(iii) would have the unintended effect of prohibit-ing petitioners from raising issues otherwise germane to a proceeding.

i Under section 2.714(b)(2)(iii),if an application contains disputed information or omits required information, the petitioner normally must specify the portions cf the application that are in dispute or are incomplete. But the rule is not l

intended to preclude contentions that rest on relevant matters not required to

(

be specifically addressed in the application. As we noted in the Statements of j

Consideration accompanying the revised contention rule:

[

L Where the intervenor believes the application and supporting material do not address a l

relevant matter. it will be sufficient for the intervenor to explain why the apphcation is l

deficient.

l 54 Fed. Reg. 33,168,33,170 (Aug. I1,1989). Thus, section 2.714(b)(2)(iii) only

[

j requires the Petitioner to identify the disputed portion of the application or the l

omission of required information if the disputed matter is actually considered

}

or is required to be considered in the application. In this special circumstance, l

no purpose would be furthered by requiring Mr. Mosbaugh to identify a specific 1

portion of GPC's application, when the Licensee had no requirement to refer to

" character."

l The Licensee also argues that the Board should have found Mr. Mosbaugh's l

contentions inadmissible because the factual bases for his contentions do not l

raise any concern with changes in personnel who operate plant Vogtle that would l

occur upon the issuance of the proposed license amendments. GPC Appeal Baef 1

1 41 1

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1 I

h at 34. GPC argues that the Petitioner failed to demonstrate a nexus between the contentions and this proceeding. Id. at 35. 7his argument in effect goes to the j

l Petitioner's standing, which we have discussed in section Ill.B of this decision.

i The remainder of GPC's challenge to the contention concerns the claim that Mr. Mosbaugh's contention is not appropriate for resolution in this proceeding 4

because character issues are not generally addressed in transfer amendment proceedings.2" For reasons already outlined in section Ill.A of this opinion, we i

have decided that this transfer proceeding is an appropriate forum in which to address character issues. We believe that our contention rules provide reasonable j

discipliae when character is a relevant inquiry to ensure that a licensee is not 1

subjected to defending frivolous or unspecific claims. For this reason, our rules require the intervenor to articulate particular contentions and the bases therefor 4

to ensure reasonable specificity and adequate notice of the matters being raised against the proposed action, and to ensure the existence of a genuine dispute of law or fact. See 54 Fed. Reg. 33,168-70 (Aug.11,1989); Texas Utilitics Electric i

Co. (Comanche Peak Steam Electric Station, Unit 1), ALAB-868,25 NRC 912, 932-33 (1987). In this regard we note, too, that an intervenor is not free to j

change the focus of an admitted contention at will as litigation progresses, but t

is bound by the terms of the contention.3" Y.

CONCLUSION For the reasons stated in this decision, Georgia Power Company's appeal is denied and the Licensing Board's order in LBP-93-5 admitting Mr. Mosbaugh i

as a party and admitting the consolidated contention,is agirmed.

l I

i i

i 1

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1 J

2 i

I "GPC clama that de 1.icensing Board impmperly inferred a irral twas for Mr. Mosbaugh's contention. GPC l

Appeal Encf at 3134 (citmg LBP-915. shp op. at 7). we disagree we view de Board only as fmdmg character-I legally germane to de grant of ste proposed beenw transfer Tie Board adds nothing to de contenuon or tte bancs proffered by Mr Moshaugh "Scr tut >hr $rrvice Co. of New &mpshire (seabrook stanon. tinits I and 2). ALAB-899. 28 NRC 93. 97 m Ii

)

(19M), ag'd sub nrmt Afassmhuscris v NRC,924 F.2d 311 (D C Cu ). cerr denied.112 s. 01275 (1991).

J 42 s

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I It is so ORDERED.

i Ibr the Commission" SAMUEL J. CIHLK Secretary of the Commission Dated at Rockville, Maryland, this 19th day of August 1993.

i l

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I

• 'Comnussioner Renuck was not prernt for er affirmanon of this Order,if he had teen preseta,le would have approved it

{

13 i

)

i l

Cile as 38 NRC 44 (1993)

CLi-93-17 l

UNITED STATES OF Ai1 ERICA l

NUCLEAR REGULATORY COMMISSION CnnanamesONERS:

l l

l hen Selin, Chairman j

Kenneth C. Rogers l

Foneet J.' Remick E. Gall de Planque I

i Docket No. 30-31765-EA rof:

(Suspension Order)

. (Byproduct Material License No. 37-28540-01) g

'iY SERVICES CORPORATION August 19,1993 i

(

ommission" denies Onlogy Services Corporation's request to reverse l

- !O, 37 NRC 455 (1993), which granted in part the Nuclear Regulatory I

' ion Staff's motion for an additional delay of this enforcement proceed-vacates as moot portions of LBP-93-6,37 NRC 207 (1993), an order granted the -NRC Staff's original snotion for a stay.

l t

RCEMENT ACTIONS:. STAY OF PROCEEDINGS

presiding officer may delay an enforcement proceeding for good cause.

1 F.Rf $ 2.202(cX2Xii). In determining whether good cause exists, the nog officer must consider both the public interest as well as the interests person subject to the immediately effective order.

FORCEMENT ACTIONS: STAY OF PROCEEDINGS in determining whether to delay the conduct of an enforcement hearing suant to 10 C.F.R. 52.202(c)(2)(ii), the Commission need not choose between

' test applied by the Supreme Coust in United States v. Eight Thousand Eight

ndred and Fufty Dollars ($8,850) in United States Currency, 461 U.S. 555 l

1 44 l

v

' b 'l et

It is so ORDERED.

i For th: Commission" SAMUEL J. CHILK l

Secretary of the Conunission t

i Dated at Rockville, Marylant,,

this 19th day of August 1993.

I i

f i

i f

t

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1 l

"Conumsunner Renuck was not preser.t far the affirmation of this Order;if he led been present,le would have approwd it 1

43

~. _.

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d i

Cile er 38 NRC 44 (1993)

CLl-93-17 1

i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

A l

COMMISSIONERS:

l Ivan Selin, Chairman Kenneth C. Rogers l

Forrest J. Remick E. Gail de Planque

[

t in the Matter of Docket No. 30-31765-EA

}

j (Suspension Order) i l

l (Byproduct Material License l

No. 37-28540-01)

ONCOLOGY SERVICES CORPORATION August 19,1993 i

i The Conunission denies Oncology Services Corporation's request to reverse LBP-93-10,37 NRC 455 (1993), which granted in part the Nuclear Regulatory i

Commission Staff's motion for an additional delay of this enforcement proceed-ing, and vacates as moot portions of LBP-93-6,37 NRC 207 (1993), an order that had granted t:ie NRC Staff's original motion for a stay.

)

i j

ENFORCEMENT ACTIONS: STAY OF PROCEEDINGS The presiding officer may delay an enforcement proceeding for good cause.

10 C.F.R. { 2.202(c)(2)(ii). In determining whether good cause exists, the i

presiding officer must consider both the public interest as well as the interests of the person subject to the immediately effective order.

1 ENFORCEMENT ACTIONS: STAY OF PROCEEDINGS In determining whether to delay the conduct of an enforcement hearing pursuant to 10 C.F.R. 6 2.202(c)(2)(ii), the Commission need not choose between i

the test applied by the Supreme Court in United States v. Eight Thousand Eight 1

Hundred and I'ifty Do!!ars ($8,850) in United States Currency, 461 U.S. 555 l

1 44 1

i J

t

_.-_,.._.,,.,a.

i (1983), and the test applied by the Supreme Coun in FDIC v. Mallen,486 U.S.

230, 242 (1988), but may weigh the factors considered by the Coun in both cases.

ENFORCEMENT ACTIONS: STAY OF PROCEEDINGS In determining whether good cause exists for delay of an enforcement i

proceeding, the factors to be considered in balancing the competing interests include (1) length of delay, (2) reason for delay, (3) risk of erroneous deprivation, j

(4) assertion of one's right to prompt resolution of the controversy, (5) prejudice to the licensee, including harm to the licensee's interests and harm to the licensee's ability to mount an adequate defense.

ENFORCEMENT ACTIONS: STAY OF PROCEEDINGS i

'Ihe deterinination of whether the length of delay is excessive depends on the facts of the particular case and the nature of the proceeding.

I ENFORCEMENT ACTIONS: STAY OF PROCEEDING The risk of erroneou.; deprivation is reduced if the licensee is given an oppor-tunity to request that the presiding officer set aside the immediate effectiveness of the suspension order by challenging whether the suspension order, including the need for immediate effectiveness, is based on adequate evidence.

t ENFORCEMENT ACTIONS: STAY OF PROCEEDINGS Staff's showing of possible interference with an investigation being conducted by the NRC Office of Investigations and a strong interest in protecting the integrity of the investigation in conjunction with a demonstration that the risk of erroneous deprivation has been reduced weighs heavily in the Staff's favor.

ENFORCEMENT ACTIONS: STAY OF PROCEEDINGS Irrespective of whether the licensee failed to challenge the basis for the immediate effectiveness of the Staff's suspension order, a licensee's vigorous opposition to a stay and its insistence on a prompt adjudicatory hearing are entitled to strong weight.

45 i

l

ENI'ORCEMENT ACTIONS: STAY OF PROCEEDINGS Without a particularized showing of harm to the licensee's interests, li-censce's argument that the stay affects its interests and the licensce's vigorous i

opposition to a stay do not tip the scale in favor of the licensee when balancing the competing interests.

MEMORANDUM AND ORDER I.

INTRODUCTION Re Commission has before it a referred ruling from the Atomic Safety and Licensing Board, LBP-93-10,37 NRC 455 (1993), in which the Licensing Board granted an additional 90-day stay of discovery in this enforcement proceeding, ne proceeding stems from a request for a hearing by Oncology Services Corporation (OSC or Licensee) on the Nuclear I< egulatory Commission (NRC) Staff's January 20, 1993 order that suspended OSC's license to use sealed sources containing iridium-192 for human brachytherapy treatments at specified OSC facilities in Pennsylvania. Order Suspending License (Effective Immediately),58 Fed. Reg. 6825 (Feb. 2,1993). The Licensing Board referred its grant of an additional 90-day stay to the Commission in accordance with the Commission's direction in CL1-93-13,37 NRC 419 (1993).

j The Commission took the unusual step of directing the Licensing Board to j

refer its ruling because of the peculiar circumstances that arose in the context j

of the grant of an initial 120-day stay of discovery in this same enforcement j

proceeding. With respect to the first stay, the Commission granted OSC's l

petition for interlocutory review of the Licensing Board's March 26, 1993 Memorandum and Order, LBP-93-6, 37 NRC 207, which granted in part the Staff's motion for a 120-day stay of this enforcement proceeding. CL1-93-13, 37 NRC 419 (1993). Because the stay expired by its own terms on June 23, 1993, and because some of the same issues were raised again in the context of Staff's motion for an additional delay filed June 3,1993, we directed the.

Licensing Board to refer to the Commission for review any ruling granting Staff's motion for an additional delay.

Upon consideration of the record below and the additional filings before us, we vacate as moot portions of LBP-93-6 challenged by OSC in its original petition for review and the Commission declines to review the remaining unchallenged issues. To the extent that any of these issues relate to the grant of an additional stay, they have been reviewed and decided as they relate to LBP-93-10. OSC's request to reverse LBP-93-10 is denied, and LBP-93-10 is affirmed.

46

11. BACKGROUND On December 1,1992, the NRC was notified of an incident involving the loss of a 3.7-curie iridium-192 source from the Licensee's Indiana Regional Cancer Center in Indiana, Pennsylvania. He Staff investigated the incident and on January 20, 1993, Staff issued an immediately effective order suspending OSC's license to provide brachytherapy treatment at the Pennsylvania cancer treatment facilities named in the license. Order Suspending License (Effective immediately), 58 Fed. Reg. 6825 (Feb. 2,1993). De suspension under the order is open-ended.

According to the Staff's order, on November 16,1992, an iridium-192 sealed-source, which was inserted into a catheter in the abdomen of a nursing home l

patient, broke off and remained in the patient when the patient was returned to the nursing home that same Pv. After some 90 hours0.00104 days <br />0.025 hours <br />1.488095e-4 weeks <br />3.4245e-5 months <br />, the catheter containing the source was dislodged from the patient, and was then handled by various persons who did not know that the catheter contained a radioactive source. He catheter containing the source was only retrieved after it triggered an alarm at a waste disposal facility approximately one week later. He patient died on November i

21,1992. De Staff's order does not specify the cause of the patient's death.

l De Staff alleges that as a result of this incident the patient received a significant amount of radiation exposure and rumerous other individuals, including health care workers, visitots, sanitation workers, and other members l

of the general public, were exposed unnecessarily to radiation. 58 Fed. Reg. at l

6826. He Staff also identified certain practices and procedures which, according to Staff, demonstrated a significant corporate management breakdown in the control of licensed activities. The Staff concluded that this breakdown was of the utmost regulatory concern because it contributed to the occurrence of the incident noted above. Consequently, the Staff concluded that the public lealth, safety, and interest required an immediately effective suspension of the license.

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l Id. at 6826-27.

l Since the initial suspension was imposed, the Staff relaxed the order and, on a case-by-case determination, has allowed OSC to treat more than twenty patients upon a good-cause showing for the individual treatment.' By letter dated June 3,1993, the Staff further relaxed its suspension order to allow resumption l

of licensed activities at two of the facilities named in the OSC license. He suspension remains in effect for the other facilities named in the license. Letter to Douglas R. Colkitt, M.D., President OSC, from Thomas T. Martin, Regional Administrator, Region 1, NRC.

l 3 Str. t g, letter from *neonus T. Marun. Reponal Adnurustramr. NRC to Dr Colkitt, osC, "Mdfacation to Order? hnuary22.1993.

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i On Febrnary 5,1993, OSC filed a request for hearing on the Staff's order, and an Atomic Safety and Licensing Board subsequently was established pursuant to OSC's request. On February 23,1993, the NRC Staff filed a motion pursuant to 10 C.F.R. 5 2.202(c)(2)(ii) (1993), requesting that the Licensing Board delay the conduct of this proceeding for an initial period of 120 days. The Staff asserted that the delay was needed to prevent prejudice to ongoing federal and state investigations regarding the propriety of OSC's activities under its license. OSC opposed Staff's stay motion. The Licensing Board granted, in part, the Staff's motion by staying for 120 days (through and including June 23.1993) discovery and any portion of the proceeding that necessarily must follow discovery.

In accordance with the Board's instructions for filing such a motion, the Staff sought an additional stay of the proceeding in a motion filed on June 3, 1993. In LBP-93-10, the Licensing Board granted in part the Staff's motion for an additional delay. Although the Staff had requested another 120-day stay of the proceedings, the Licensing Board granted only a 90-day stay of discovery (through and including September 21,1993). In addition, the Licensing Board again required that the Staff provide a status report detailing the progress of any investigation and further instructed that any request for an additional delay must be filed on or before September 1,1993. LBP-93-10,37 NRC at 467.

Upon the Licensing Board's referral of LBP-93-10 to the Commission per our instructions in CLI-93-13, the Commission set a schedule for the filing of briefs and directed the Licensee to specify the basis for any assertion that LBP-03-23 contains errors of fact or is inconsistent with established law or precedent; we also asked both parties to address whether the Commission should vacate LBP-93-6 on the ground that it is moot. Unpublished Commission Order (June 24, 1993). In response to our order, OSC filed a brief requesting that the Commission reverse LBP-93-10 and deny any further stay. The NRC Staff filed a reply brief requesting affirmance of LBP-93-10.

III. MOOTNESS We first decide whether the Licensing Board's order granting the original 120-day stay, LUP-93-6, should be vacated on the ground of mootness. The Staff favars vacating as moot the portions of the Licensing Board's order penaining to the 120-day stay of the proceeding, but the Staff asserts that the portions of the j

order regarding unrelated procedural matters still pending before the Licensing Board are not moot and, thus, should not be vacated. NRC Staff Response to Brief of OSC in Response to Commission Order of June 24,1993, at 21-22 (July 13,1993)(hereinafter Staff Brief). Although OSC objected to vacating LBP 6 as moot, it is apparent that OSC only objected to vacating the portion of the order that penains to the procedural matters still pending before the Board. Sec 48 l

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l Brief of OSC in Response to Commission Order of June 24,1993, at 12 (July 6,1993) (hereinafter OSC Brief). Thus, neither pany has asserted a continuing cognizable interest in the portions of LBP-93-6 that pertain to the grant of the 120-day stay.

When the original stay expired by its own terms on June 23,1993, the portion of LBP-93-6 pertaining to the 120-day stay ceased to have any operative effect or purpose, In addition, as will be discussed in more detail below, in this order we review all matteis raised in the Licensing Board's subsequent order, LBP-93-10, including matters that were originally raised and contested in the context of LBP-93-6. '1has, the portion of this proceeding relating to the Licensing Board's granting of an initial 120-day stay, is now moot. Fewell Geotechnical Engineering, Ltd. (Thomas E. Murray, Radiographer), CL1-92-5, 35 NRC 83, 84 (1992) (hereinafter fewell).

In cases such as this, when prior to the outcome of the appellate process, through happenstance, a proceeding becomes moot, the decision below is normally vacated. See United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (l950); A.L Meckling Barge Lines, Inc. v. United States, 368 U.S. 324,329 (1961); fewell, 35 NRC at 84. Such action is appropriate here with respect to the portion of the Board's order relating to the granting of the initial 120-day stay.

Ilowever, still pending before the Board are matters related to the portion of LBP-93-6 pertaining to the submission of a joint prehearing report detailing the central issues for litigation, issues amenable to summary disposition, an estimate of the length of time needed for both discovery and the holding of an evidentiary hearing, and the status of any settlement discussions. Therefore, this ponion of LBP-93-6 is not moot. See LBP-93-6,37 NRC at 223. Moreover, because neither party has raised before the Commission any challenge relating to these procedural instructions, the Commission leaves undisturbed this portion of LBP-93-6.

i IV. GENERAL PRINCIPLES RELATING TO DELAY OF PROCEEDINGS Our rules of practice specifically authorize the presiding officer to delay an enforcement proceeding for good cause. 10 C.F.R. 6 2.202(c)(2)(ii). In de-termining whether good cause exists, the presiding officer must consider both the public interest as well as the interests of the person subject to the immediately 1

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effective order.2 He determination of whether a delay is reasonable depends on the facts of a particular case and requires a balancing of the competing interests.

l To balance the competing interests in this case, the Licensing Board applied the same test that was applied in United States v. Eight Thousand Eight Hundred I

and Fifty Donars in United States Currency, 461 U.S. 555 (1983) (hereinafter 58,850). This test, initially developed in Barker v. Wingo, 407 U.S. 514 (1972),

includes four factors to be considered: " length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant."

14. at 530 (footnote omitted). In Barker, the question at issue was whether the government's delay in affording a trial to a defendant indicted for murder a

more than 5 years earlier amounted to a deprivation of the defendant's Sixth Amendment right to a speedy trial. The Court in Barker did not intend for its test to comprise the exclusive factors considered in every case. Rather, the Court stated, "A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the i

factors which courts should assess in determining whether a particular defendant has been deprived of his right." 1d. at 530.

In 58,850, the question at issue was whether a delay in a forfeiture proceeding, 18 months afier seizure of the pmperty, amounted to a denial of the claimant's Fifth Amendment right against deprivation of property without due process of law. Although the claim in Barker involved the Sixth Amendment right to a speedy trial and not the Fifth Amendment right to due process, the Court in 58,650 found that the claimant's challenge to the length of time between the seizure and the initiation of the forfeiture trial " mirrors the concern of undue i

delay encompassed in the right to a speedy trial." 38,850,461 U.S. at 564. Rus, l

the Court concluded that the Barker balancing inquiry provided an appropriate 3

i framework for determining whether the delay of 18 months amounted to a due process violation.

]

The Staff argues that it was appropriate for the Board to rely only on the analysis in 58,650 because the Court there addressed the same question at issue here - whether a delay of a hearing violated an individual's right to due process.

In asserting this argument the Staff maintains that two other cases that applied l

a different balancing test and are cited by the Licensee here for their relevance, Logan v Zimmerman Brush Co.,455 U.S.422 (l982), and Matthews v. Eldridge.

424 U.S. 319 (1976), are inapposite. Staff Brief at 5-8.

It is tmnecessary to determine whether the claim here mirrors the claims at issue in logan and Matthews. De same interests found relevant to the facts of i

2 in promulgaung secuan 2.202(cM2Wti). de Comnussion stated that "any delay in the pocecang should take mto considerabon not only de interests of de goverunre but the persons affected tiy de order as well" and we imtructed presid ng ofhocrs to stay the proceeding "only if dere is an ovem&ng pubhc interest for the delay" Revisions to Procedures to luue orderr Challenges to Orders hat Are Made immediairly t.ffective, Final Rule 54 Fed Reg 20.194,20.197 (Wy 12,1992).

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d Logan and Afarthews were applied in a subsequent case that involved a claim very similar to the one being asserted here. In FDIC v. Afallen,486 U.S. 230, l

242 (1988), the Supreme Court found that the same interests balanced by the l

Court in Logan and Afarthews were also relevant interests to be weighed in l

4

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determining how long a delay is justified before affording a post-suspension l

hearing.

At issue in Afallen was whether the government's interest in ensuring the integrity of the banking system justified a delay of up to 90 days in a post-suspension hcaring. The private interest involved a suspended bank officer's l

i property right to continued employment. According to the Court in Afallen, i

In determining how long a delay is justtfied in affordmg a post-suspension hearing and decision, it is appropriate to examine the importance of the private interest and the harm 3

to this interest occasioned by delay; the justification offered by the Government for delay and its relation to the underlying governmental interest, and the likelihood ' hat the interim decision may have been mistaken Cf Logan v. Zimmerman Brush Co.,455 U.S. 422,434 (1982); Mantrws v. Eldridge,424 U.S. 319,334 335 (1976).

)

Afallen. 486 U.S. at 242.

i We recognize that the balancing in Afallen is arguably different than the balancing in 58,850. In Afa!!cn, unlike in 58,850, the Court analyzed as a i

separate factor the risk of erroneous deprivation of the property interest at stake.

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'Ihe Court also did not explicitly disctss whether the delay would hamper the private party's ability to defend against the charges brought by the government in the civil proceeding. Instead, the Court in Afallen considered the importance

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of the private interest - the individual's continued employment - and the harm to this interest occasioned by the delay. In contrast, the balancing by the Court in 58,850 of the prejudice to the claimant seemed to consider only the prejudice i

to the claimant's ability to mount an adequate defense. See United States v.

Premiscs located at Route 13, 946 F.2d 749, 756 & n.ll (llth Cir.1991)

("Ihe lack of marketability and the inability to buy inventory do not constitute r

prejudice in the manner proscribed by 58,850.

fif.e., causing prejudice from the loss of witnesses or evidence.")

'Ihe Commission does not believe that we must choose between the tests in J

Afallen and 58,850. As the Court emphasized in 58,850, "none of these factors is a necessary or sufficient condition for finding unreasonable delay. Rather.

these elements are guides in balancing the interests of the claimant and the Government to assess whether the basic due process requirement of fairness has been satisfied in a particular case." 461 U.S. at 565 (footnote omitted). Both tests have been applied in cases involving the question of whether a delay in I

a post-deprivation hearing was improper. 'Iherefore, we apply an analysis that considers all of the factors listed above.

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in this instance the Licensing Board considered both the prejudice to the Licensee's ability to defend against the charges in the suspension order and harm to the Licensee's interest in continuing uninterrupted licensed activity. We believe that the risk of erroneous deprivation is also a relevant consideration.

V.

APPLICATION OF TIIE GENERAL PRINCIPLES i

With these general principles in mind we turn to the facts of this particular case to determine whether the Staff has shown a sufficiently compelling interest to justify the delay in the post-suspension hearing.

1.

Isngth of Delay The Licensing Board viewed the delay requested here,120 days, of moderate duration, but that it was made more significant by the fact that it comes on the heels of the prior 120-day delay. LBP-93-10, 37 NRC at 460. Thus, the Licensing Board concluded that the Staff must provide a reasonably compelling justification for the requested delay. Id.

i ne Licensee argues that the delay at this point amounts to at least 210 days (120 days for the first stay plus the additional 90 days for the second stay). OSC Brief at 3. However, because it is not clear whether the Staff will ask for an additional stay, OSC argues that the actual length of delay cannot be determined.

Id. ne NRC Staff argues that the Licensing Board's handling of this factor is adequate. Staff Brief at 8.

here are several points of reference that a e relevant to our examination of whether the delay here isjustified. First, the incident involving the overexposures occurred in November 1992. Therefore, by the time the current stay expires, approximately 10 months will have passed since the occurrence of the incident that provided the catalyst for this enforcement proceeding. This is relevant to the question of prejudice to the Licensee's ability to mount an adequate defense.

Second, the Staff suspended OSC's license in January 1993. Thus, licensed activity, at least at some of the Licensee's facilities, will have been suspended for approximately 8 months by the time this stay expires. This is relevant to the question of harm to the Licensee's interest. Third, the proceeding will have i

been delayed for 210 days at the request of the Staff. This span of time, and perhaps all of the others listed above, are relevant to our examination of Staff's reason for delay.

The Licensing Board stated that the delay being requested at this time is "of moderate duration and its significance is enhanced by the fact that it comes on the heels of the prior 120-day delay period. LBP-93-10,37 NRC at 460.

However, it is not clear on what facts tne Licensing Board based its conclusion 52 i

that the requested delay is "moder'te." "Little cer, be said on when delay becomes presumptively improper, for the determination necessarily depends on the facts of the particular case." $8,850,461 U.S. at 565; cf. Clcretand Board of Education v. Loudermill, 470 U.S. 532,547 (1985) ("la] 9-month adjudication is not, of course, unconstitutionally lengthy per se").

' i Therefore, in order to appreciate whether the delay is excessive one must analyze the nature of the proceeding. Compare Barker, 407 U.S. at 530-3L Ihr example, a delay may require a strong justification in a proceeding to revoke a license which depends to a great extent on the testimony of witnesses.

i llowever, in a civil penalty proceeding where the penalty has not been paid and the proceeding depends less on witness testimony, a delay may need less justification.

The case here more closely resembles the first example because it involves l

, suspension of licensed activity and apparently it will require the testimony of v mnesses to prove or disprove cenain aspects of the Staff's case. Therefore, we find that the delay here, which adds an additional 90 days - with the possibility of further delay - onto what will be an 8-month-long proceeding by the time the stay expires (OSC requested a hearing in early February 1993 and the stay will not expire until late September 1993), to be tolerable only if Staff can l

demonstrate an important government interest coupled with factors minimizing the risk of an erroneous deprivation.

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Reason for Delay f

In this instance, the Licensing Board determined that the Staff had demon-l strated an overriding public interest in favor of granting the requested delay by pmviding the Board with an adequate explanation of the reasons why an ongoing investigation will be impaired without a delay in the proceeding and by mak-ing a credible showing that the Staff is attempting to complete its investigation f

expeditiously.

in its earlier decision, LBP-93-6, the Licensing Board granted a 120-day stay i

of discovery through June 23,1993, on the basis that discovery would interfere with investigations being conducted by the NRC's Office ofInvestigations (OI),

the NRC's Office of the Inspector General (OlG), and the Commonwealth of Pennsylvania. In LBP-93-6, the Licensing Board identified two concerns with permitting discovery at that time: (1) naming unidentified witnesses and (2) premtturely disclosing witness interview transcripts and documentary information gathered by Staff investigators.

In LBP-93-10, the Licensing Board granted a stay through September 23, j

l 1993, on the basis that discovery would interfere with the 01 investigation by pre-l maturely disclosing witness interview transcripts and documentary information l

gathered by the mvestigators. The Staff did not argue, nor did the Licensmg

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M Board find, that a basis for the current delay was that discovery would lead to the naming of unidentified witnesses. Neither did the Licensing Board rely on the OlG investigation as a basis for its ultimate determination. Although the Staff attached to its second stay motion an affidavit from OlG, the Board noted that,in its view, the OlG's affidavit was too vague to provide a sufficient basis for a further stay. LBP-93-10,37 NRC at 466 n.8. The Staff did not attach to its second stay motion an affidavit from the Commonwealth of Pennsylvania. The Staff later informed the Commission that the Commonwealth had terminated its criminal investigation.'

As we indicate in our discussion of mootness, we are not reviewing matters that were at issue only in LBP-93-6 and, thus, do not remain in controversy with respect to the second stay motion. Therefore, we will only review whether the concerns outlined in the current 01 affidavit establish a strong government interest in favor of delay.

OSC apparently does not dispute that the pendency of a criminal proceedmg is a consideration in determining whether a delay is reasonable. OSC Brief at 4.

Ilowever, OSC asserts that the pendency of the Fovernment investigation here i

does not justify a delay. First, OSC argues that the 01 affidavit lacks sufficient i

specificity to establish that discovery will hamper the government's investigation.

OSC maintains that the OI affidavit does not establish that the transcripts in its possession at the time of the Staff's motion have "been reviewed in their entirety, understood, or concluded to evidence regulatory violations." OSC Brief at 9.

In this respect OSC is challenging, in part, whether there is probable cause for finding criminal wrongdoing. Second, OSC asserts that the Board improperly found irrelevant a recent Supreme Court decision, United States Department of Jusfice v. Landano, 61 U.S.LW. 4485 (U.S. May 24,1993).

)

Attached to Staff's June 3 motion for an additional delay is an affidavit from 01 Region I Field Office Director Barry R. letts. The Licensing Board found compelling the following excerpt from this affidavit' 01 coritinues to believe that the early release of incident Investigation Team GIT) doc-uments/ transcripts would adversely impact the ongoing 01 investigation, particularly, that portion focusmg on possible incomplete andl/ lor inaccurate staternents by cancer center per-sonnel and corporate officials. The release of the documents / transcripts obtained from the IIT could adversely impact the investigation because the premature release of information could jeopardize the integrity of the interviews yet to be conducted, and allow personnel an opportunity to tailor their testmxmy or statements in subsequent interviews so as to explain previous statements in order to avoid culpability or conform testimony with the testinxmy of others who have been interviewed. Furthermore, it is my concern that information ob-3Scr isner from Manan 7obler. Counsel for NRC Staff, to Sanmel Chilk, Secretary of tie Conunission (July 14, 1993), wnh Anachment. tetter imm tawrence N Claus. Oiicf Deputy Attorney General. Commonweahh of Pennsylvama Of6ce of Attorney Gercral to the Honorable Michael Handler, District Anorney of Indiana Ccmury (July 9.1993).

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i tained during the course of the 01 investigation conducted subsequent to the Staff's Order Suspending License, could be prematurely released through civil discovery.

Letts Affidavit at 4. He Licensing Board found that ops concern here is well 3

grounded. See LBP-93-10,37 NRC at 461-62. In accepting the legitimacy of i

this basis for delay, the Licensing Board relies on general language contained in forfeiture cases. See id. at 460-61 (citing United States v. Premises Excated at Route 13, 946 F.2d 749,755 (IIth Cir.1991); United States v. Forty-Seven l

Thousand Nine Hundred Eighty Dollars ($47,980) in Canadian Currency, 8M F.2d 1085,1089 (9th Cir.1986), cen. denied, 481 U.S.1072 (1987)); sec also LBP-93-6, 37 NRC at 214 (citing 58,850). While we agree that the

[

Staff's concern here is well grounded, we think that the forfeiture cases are not dispositive.

As the Court stated in 58,850, the pendency of a criminal trial does not automatically toll the time for instituting a civil proceeding. 461 U.S. at 567-68.

l Thus, it is necessary to look at the facts of a particular proceeding. In forfeiture proceedings a pending criminal proceeding provides strong support for delay of a civil forfeiture proceeding because, as was the case in 58,650, the criminal proceeding often includes forfeiture as part of the proposed sentence. Rus, in the forfeiture cases it is obvious that the civil proceeding could interfere by either l

providing opportunities to the claimant to discover the details of a contemplated or pending criminal prosecution or serving to estop later criminal proceedings.

In addition, if the government prevails in the criminal case and forfeiture is part of the sentence, the civil forfeiture proceeding will be rendered unnecessary. Id.

In this instance, even if the government prevails in a criminal case brought as a result on the matters to which the Letts affidavit refers, the effect, if any, l

on the suspension proceeding is unclear. He suspension order does not specif-ically refer to incomplete and inaccurate statements by cancer center personnel.

Nevertheless, Staff indicates that disclosure of information contained in docu-l ments and interview transcripts associated with the IIT report would interfere with Ol's investigation. Although imposition of the two stays has prevented l

discovery up to this time, it is obvious that the IIT documents and transcripts are relevant to this proceeding and are likely to be requested once discovery is permitted. Therefore, the Staff has provided enough detail to demonstrate that I

discovery here, which would disclose documents and transcripts associated with the IIT report and related documents and transcripts obtained subsequent to the IIT inspection, would interfere with the ongoing 01 investigation into possible incomplete or inaccurate statements by cancer center personnel and OSC offi-cials.

The agency has a strong interest in ensuring the truth and accuracy of information provided to the Commission by a licensee. Randall C. Orem, D.O.,

CLI-93-14,37 NRC 423,427 (1993). Allegations of this type may form the 55 l

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basis for further enforcement action, e.g., pursuant to 10 C.F.R. 99 30.9 and 30.10, and criminal prosecution, e.g., pursuant to 18 U.S.C. i 1001. Therefore, during the course of such an investigation, the government has a strong interest j

in preventing premature release of information that could jeopardize the integrity j

of interviews yet to be conducted, and that could allow witnesses to tailor j

their testimony or statements in subsequent interviews so as to explain previous statements in order to avoid culpability or to conforrn testimony with the testimony of others who have been interviewed.

He Licensing Board found, and we agree, that the Staff is diligently pursuing completion of its investigation. LBP-93-10,37 NRC at 462. Investigations of 4

this type can take time. His investigation involves multiple facilities named in the license. According to Mr. Letts, approximately thirty-five to forty interviews have been completed and 01 anticipates conducting approximately twenty.five additional interviews. letts Affidavit at 3. The investigation has led to compilation of more than 11,000 pages of documentation, and several thousand more pages of material could be received before the investigation is i

completed. Id. at 2.

OSC argues that this volume of paper establishes nothing more than inves-tigator "insatiety. OSC argues that in order to show a compelling interest in 4j the investigation,01 was required to review the material th.it it had collected prior to requesting this stay and provide an affidavit that demonstrated that in-formation already in its possession evidenced regulatory violations rather than the possibility of regulatory violations.

it is clearly in the public interest and to some extent in OSC's interest that a decision concerning further wrongdoing is not made with excessive haste.

Cf. Afallen, 486 U.S. at 243. Herefore, we do not find that in order to show i

i a compelling interest Staff was required to reach a conclusion regarding the j

possible wrongdoing prior to concluding its investigation.

Our finding that Mr. Letts' affidavit contains adequate specificity to support i

Staff's stay motion is not contrary to Landano. He relevance of the holding in j

Landano to the particular circumstances in this proceeding is questionable. He l

Landano decision pertains to the degree of specificity that is required in order for the government to prevail on an assertion of confidentiality as an exception i

to disclosure under Exemption 7(D) of the Freedom of Information Act (FOIA),

5 U.S.C. 5 552(b)(7)(D). He Staff is not relying on confidentiality of witness statements as a basis for the present stay. In addition, the Staff has requested only a temporary stay of discovery, rather than an absolute bar against any l

discovery of investigatory material.

ne controlling case related to Exemption 7(A), the exemption more closely i

analogous to the Staff's rationale in the instant case, is Nationallobor Relations Board v. Robbins Tire, 437 U.S. 214 (1978). See Department of Justice v.

Reporter Committee for Freedom of the Press, 489 U.S. 749, 776-80 (1989).

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OSC has not demonstrated that the Court in Robbins Tire contemplated a greater degree of specificity than that provided by Staff in this proceeding.

3.

Risk of Erroneous Deprivation We find of particular relevance to our assessment of the risk of erroneous deprivation the fact that OSC has been provided an opportunity to request that the Board set aside the immediate effectiveness of the suspension order by chal-lenging whether the suspension order, including the need for immediate effec-tiveness, is based on adequate evidence. Pursuant to 10 C.F.R. 5 2.202(c)(2)(i) the Staff's order provided OSC an opportunity to contest whether the order, in-cluding the need for immediate effectiver.ess, was based on adequate evidence rather than mere suspicion, unfounded allegations, or error. 58 Fed. Reg. at 6827. Such a challenge had to be filed at the time the answer was filed or sooner. OSC did not avail itself of this opportunity. Additionally, in its plead-ings filed in opposition to the stay, OSC has never challenged whether there is adequate evidence to support the basis for the immediately effective suspension order.

OSC was provided a fair amount of detail regarding the reasons and bases for the Staff's conclusion that the public interest, health, and safety required an immediately effective suspension of OSC's license to conduct brachytherapy.

The order includes specific details regarding Staff's assessment of the event in question. The Staff also specified the relevant findings that formed the basis of the Staff's conclusion that there was a significant corporate management breakdown in the control of licensed activities. OSC could have challenged whether there was adequate evidence for any or all of these findings.

Because OSC has been provided this opportunity, we find that the risk of erroneous deprivation has been reduced.* This, in conjunction with Staff's showing of possible interference with the 01 investigation, and a strong interest in protecting the integrity of the investigation, weighs heavily in the Staff's I

favor.

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' Cf Transco Scranrt Inc. v. Irreman. 639 F.2d 318 (6th Cn.) (upholding Governnent Services Admirustration regulauons pernuttmg a suspension of a contractor for a period of 12 to 18 months in order lo anow tte tkpartarnt of Jusuce an opportunity to prepare its case and decide whcorr to seek an indictnrnt), terr. denard. 454 U s.

820 (1981); ser alw norne Bros inc v foird. 463 F.2d 1268 (D C Cir.1972). In 7ransco. the court found that the regulations providmg for the 12-to 18-numth amnediately effective suspension of a untractor accuwd of fraud were not etcessive because under the regulations a suspended contractor would be provided nonce and an opportunity to challenge wtether there was adequate evidence" to support a suspension 639 F.2d at 324 57

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OSC's Assertion ofits R.-I* to a Hearing According to the Court in Barker, the more serious the deprivation, the more likely a defendant is to complain. He defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." 407 U.S. at 531-32. Analogously, the Licensee's vigorous opposition to any stay of the proceeding and its constant insistence on a prompt full adjudicatory hearing are entitled to strong weight.

The Licensing Board found, as the Staff urges, that OSC was not entitled necessarily "to all of the benefit this factor might otherwise engender," because OSC did not avail itself of the opportunity to challenge the order's immediate effectiveness. LBP-93-10,37 NRC at 464. Although OSC did not avail itself of the procedures in section 2.202(c)(2)(i). OSC is entitled to all of the benefit that this ' actor may provide.

It is possible that resolutit,a of the " adequate evidence" question could delay ultimate resolution of the final controversy. Herefore, it is conceivable that a party challenging an immediately effective order could hasten resolution of the controversy by requesting only a hearing on the merits. This may be attractive to a party that does not believe it has a good chance of prevailing on the " adequate evidence" question.

While OSC maintains that it will ultimately demonstrate tha. it will prevail on the merits, this is far from saying that the agency as a matter of discretion did not have adequate evidence to impose the suspension in the first place. To prevail in a preliminary hearing pursuant to section 2.202(c)(2)(i), the Staff need only show that it had:

facts and circumstances within the NRC staff's knowledge, of which it has reasonably i

trustworthy information. are sufficient to wiurant a person of reasonable caution to believe j

that the charges specified in the order are true and that the order is necessary to protect the pubhc health, safety, or interest.

Revisions to Procedures to Issue Orders: Challenges to Orders That Are Made i

l Immediately Effective (Final Rule) S7 Fed. Reg. 20,194,20,196 (May 12,1992).

On the merits, to sustain the order the Staff has the burden to prove by a preponderance of the evidence that the basis of its order is true. See Revisions to Procedures to Issue Orders; Deliberate Misconduct by Unlicensed Persons, 56 Fed. Reg. 40,664,40,673 (Aug.15,1991).

OSC's assertion that the stay of this proceeding is interfering with its rights weighs in OSC's favor.

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5.

Prejudice to OSC I

As stated earlier, we view potential prejudice to the Licensee to include both prejudice to its ability to defend against the charges in the order and prejudice i

to its interest to conduct activity under its license.

We assume that litigation of the merits of the suspension order will rely to -

some extent on testimony of witnesses. OSC argues that granting the delay here will allow more than 10 months to lapse between issuance of the order and discovery and a few more months between initiation of discovery and the holding l

of a hearing. Thus, it may be close to a year before the witnesses actually testify before the Licensing Board. It is certainly conceivable that the passage of time may affect some witnesses' memories. However, the extent of prejudice from any potentially faded memories is far from clear. Compare Barker, 407 U.S. at 534 (after more than 5 years had lapsed between the perpetration of the crime and trial, "[t]he trial transcript indicates only two very minor lapses of memory l

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- one on the part of a prosecution witness - which were in no way significant to the outcome").

Moreover, OSC has made no other demonstration that its ability to proffer evidence will be unreasonably compromised by the delay. In contrast we note i

that in Finlay Testing loboratories, Inc., LBP-88-1 A,27 NRC 19 (1988),5 the Licensing Board found compelling the Licensee's argument that some witnesses had already been relocated and military documents would in due course be moved, stored, transferred, lost, or destroyed. He Licensee here has made no similar argument.

OSC also did not detail the harm to its finances and reputation. Obviously, the suspension order has curtailed the Licensee's unfettered ability to conduct licensed activities. However, the degree of lost business or financial harm attributable to the suspension order is unclear. The Licensee argues that the Licensing Board ignored an affidavit demonstrating $10,000 in expenses l

incurred by OSC. OSC Brief at 1I (referring to Exhibit A, Verified Statement i

of Kerry A. Kearney). Beyond this showing, the Licensee did not specify particular financial harm.

In contrast, the licensee in Finlay argued that it had already lost $400,000 in revenue and would continue to lose over $36,000 in monthly revenues as a result of the suspension. LBP-88-1 A,27 NRC at 25. In OSC's case, because the order has been relaxed, the exact extent of the financial burden on the Licensee at this time is unclear. OSC has always been permitted to treat patients on a good-cause basis. Additionally, the suspension has been rescinded entirely as it pertains to two facilities. Of significant import is that these two facilities were 1

I S Tie staff pennoned de Commissmn for a stay of de t.icensing Board's order in falay. In a March 17,1988 unpubhsted order, the Comnussion stayed for 30 days the effecoveness of dc licensing Board's decision only 1

after de Departnrat of Jusuce f&d a request for a stay of only 30 addmonal days.

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I the only facilities at which the Licensee had requested to treat patients on a good-cause basis.

6.

Balancing of the Comycting Factors On balance, the Commission finds that the Board's stay of discovery is i

reasonable. We acknowledge that the stay will adversely affect the Licensee's interest to some extent. However, there has been little, if any, specification of j

financial or other consequences of the suspension. The absence of any particular showing of financial burden or detriment to patient care, coupled with the Staff's i

rescission of the order at two OSC facilities, indicates that OSC has suffered only moderate, if not minimal, harm to its interests. Without a more particularized showing of harm, OSC's argument that the stay affects its interests does not tip I

the scale in OSC's favor. Herefore, we agree with the Licensing Board that l

the Staff has established good cause by demonstrating an overriding government interest in protecting the integrity of its investigation.

Despite the Licensee's assertions otherwise, our decision is not contrary to l

the Supreme Court's holding in Barry v. Barchi,443 U.S. 55 (1979). In Barchi, the Court found "little or no state interest, and the state ha[d] suggested none, in an appreciable delay in going forward with a full hearing." 443 U.S. at 67. In contrast, in this case the Staff has demonstrated a strong interest in suppon of staying the proceeding and we have found that the risk of erroneous deprivation is reduced. Moreover, the Licensing Board is closely monitoring the status of

-l the NRC investigations to ensure that due diligence is being exercised to bring l

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the investigations to a close. See LBP-93-10,37 NRC at 467.

j Additionally, the Licensing Board is pursuing resolution of matters that do not j

depend on discovery. Pursuant to the Board's direction in LBP-93-6, the parties have filed pleadings outlining their positions with respect to central issues for i

litigation, issues amenable to summary disposition, and the status of settlement discussions. De Licensing Board, in an effon to dispose of any issues amenable to summary disposition, issued an order on July 15, 1993, requesting further party filings on controverted issues.

l VI. CONCLUSION Ror the reasons stated in this order, OSC'r request for reversal is denied j

and, accordingly, the Licensing Board's order, LEP-93-10, is affirmed. The i

Licensing Board's order LBP-93-6, to the extent indicated, is vacated as moot.

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b It is so ORDERED.

Ihr the Commission 6 i

SAMUEL J. CHILK Secretary of the Commission i

i Dated at Rockville, Maryland, this 19th day of August 1993.

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'Comnussioner Remick was not prencnt fw the affirmation of this Order;if te had been present,le would have aggwoved it.

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Cite as 3B NRC 62 (1993)

CLI-93-18 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 Nos. 50-275-OLA-2 50-323-OLA-2 (Construction Period Recovery)

PACIFIC GAS AND ELECTRIC COMPANY l

(Diablo Canyon Nuclear Power

)

Plant, Units 1 and 2)

August 19,1993 i

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The Commission declines to address the issue, referred by the Licensing Board, of whether an Applicant should be required to disclose to Intervenor a document prepared by the Institute for Nuclear Power Operations. The l

Commission noted that,.fter the Board had referred the issue to the Commission, i

the Applicant agreed to disclose the document and the Licensing Board issued a protective order addressing the conditions under which the document is to be released. The Commission found that these events rendered Commission interlocutory review of the matter unnecessary under 10 C.F.R. 6 2386(g).

RULES OF PRACTICE: INTERLOCUTORY REVIEW Where subsequent developments indicated the absence of any immediate controversy suggesting that interlocutory review was appropriate of a licensing board's order to disclose an assenedly privileged document, the Commission declines review of the licensing board's referred ruling.

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MEMORANDUM AND ORDER The Commission is declining review of an intellocutory discovery order that the Atomic Safety and Licensing Board had referred to us in accordance with 10 C.F.R. s 2.730(f). See LBP-93-13,38 NRC 11 (1993). In the referred ruling the Licensing Board had ordered Pacific Gas and Electric Company, the Applicant in this amendment proceeding, to make available to the San Luis Obispo Mothers i

for Peace, the Interrenor, a document prepared by the Institute for Nuclear Power Operations (INPO) that the Applicant claimed was confidential and privileged.

The Licensing Board had found that the document was relevant to one of the Intervenor's discovery requests and, therefore, should be disclosed. The Licensing Board, however, permitted disclosure to the Intervenor subject to a j

protective order that would prohibit further public dissemination of the document or its constents, As the Applicant had urged, the Licensing Board referred its ruling to the Commission and stayed the effect ofits order pending Commission review.

Upon receipt of the Licensing Board's referral of its ruling in LBP-93-13, we set a schedule for briefs from the parties. Counsel for the Applicant later informed the Commission in a July 22 filing that the Applicant had decided to disclose the INPO document to the Intervenor if agreement could be reached on an appropriate protective order, and counsel moved for a deferral of the briefing on LBP-93-13. In a July 23 order, the Commission granted the motion in part and deferred briefing until August 3 in the event agreement on a protective order could not be reached.

As a result of further discussions among the parties and a telephone confer-ence with the Licensing Board on July 29, agreement on a protective order has been reached and the Licensing Board has issued a protective order reflecting that agreement.8 Accordingly, the Applicant's counsel informed the Secretary on August 3,1993, that the Applicant would not be filing a brief on LBP-93-10 and suggested that the Licensing Board's referral was now moot.

When LBP-93-13 was issued, the controversy over the disclosure of the INPO document seemed to fall within the narrow class of interlocutory orders for which Commission review might be appropriate 2 However, the Applicant's subsequent agreement to disclose the INPO document and the Licensing Board's entry of a protective order satisfactory to the parties indicate that our review is unnecessary to resolve any immediate controversy. Accordingly, in the absence I Mcnerandum and order (Protenive order Govermng Non-thstlosure or INPO Report) (Aug 3.1993. un-pubhahedt src also Memorandum and order (Icleplmne Conferera Call 7/29N3), at 2-3 ( Aur. 3,1993.

unpubbshed).

2 Ser Kacas Gas and Ekctnc Co. (Wolf Creek Generaung Stanon, Unir 1). ALAIL327,3 NRC 408,41109'6) 63

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of any present circumstance suggesting that interlocutory review is appropriate under 10 C.F.R. 6 2.786(g), we decline review of the referred ruling.

It is so ORDERED.

i For the Commission' SAMUEL J. CIIILK Secretary of the Commission j

i Dated at Rockville, Maryland, j

this 19th day of August 1993.

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3 Comnunioner Remick was not preunt for the aflirmauon of stus Order,if he had been preunt. te would lasve approved it I

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Atomic Safety and Licensing i

Boarcs issuances l

ATOMIC SAFETY AND LICENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge Robert M. Lazo,* Deputy Chief Administrative Judge (Executive) l Frederick J. Short,* Deputy Chief Administrative Judge (Technica!)

Members Dr George C. Arxjerson Jarnes R Gleason*

Dr. Kenneth A. McCollom Cha.les Bechhoefer*

Dr. David L. Hetnck Marshall E. Miller Peter B. Bloch*

Emest E. Hill Thornas S. Moore

• G Paul Bollwerk til*

Dr. Frank F. Hooper Dr. Peter A. Moms Glenn O. Bnght Elizabeth B. Johnson Thomas D. Murphy

• Dr. A. Dixon Callihan Dr. Walter H. Jordan Dr. Richard R. Parizek j

Dr. James H. Carpenter

• Dr. Charles N. Kelber*

Dr. Harry Rein Dr. Rechard F. Cole

• Dr. Jerry R. Kline*

Lecter S. Rubenstein l

Dr Thomas E. Elleman Dr. Peter S. Lam

• Dr. David R. Schink j

Dr George A. Ferguson Dr. James C. Lamb lll Ivan W. Smith

• i Dr Harry Foreman Dr. Emmeth A. Luebke Dr. George F. Tidey l

Dr. Richard F. Foster Monon B. Margulies*

Sheldon J. Wotte l

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• Permanent panelmembers

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Cito as 38 NRC 65 (1993)

LBP-93-17 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION s

l ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

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

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

PACIFIC GAS AND ELECTRIC COMPANY (Diablo Canyon Nuclear Power Plant, Units 1 and 2)

August 13,1993 In response to a request by Intervenors for further discovery concerning alleged attempts to alter fire logs (the subject of an admitted contention) as I

to which the NRC's Office of Investigation had made preliminary inquiries but found no further inquiry warranted, the Licensing Board defers action on the motion pending cross-examination at the hearing of the custodian of the records regarding any possible falsification. The Board also requires that a sanitired copy of the letter raising the question be made available to the Intervenors.

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MEMORANDUM AND ORDER (Telephone Conference Call,8/13/93)

On July 15, 1993, the NRC Staff prepared Board Notification 93-18 and transmitted it to the Board and parties. (Board members received their copies 1

on July 23, 1993.) The Board Notification stated that the NRC Office of Investigation had investigated an unsigned and anonymous letter from two engineers stating that a high-ranking PG&E employee had put pressure on a PG&E licensing engineer to alter fire logs with respect to Contention V (implementation of Thermo-Lag compensatory measures). 'Ihe Notification stated that 01 had interviewed the named licensing engineer, who denied receiving any such instructions frc n PG&E or that any fire logs had been altered.

01 then determined that there was no need for funher inquiry.

On August 11,1993, the San Luis Obispo Mothers for Peace (MFP) filed a motion to conduct funher discovery on this question and to postpone the hearing on Contention V pending completion of such discovery. On August 12,1993, PG&E and the NRC Staff each filed faxed responses, opposing the request i

for further discovery. Both viewed the request as creating a new contention without good cause, and each noted that the PG&E custodian of the records was l

to be a witness and that he could be cross-examined concerning any possible falsification. The Staff noted that the manner in which 01 conducts investigations was not a proper subject for inquiry in this proceeding.

On August 13, 1993, the Board conducted a telephone conference call involving all parties. Under discussion was whether the integrity of the NRC hearing process was being compromised absent some further inquiry into the circumstances, particularly identification of the "various meetings in a public forum" at which the directions allegedly were given.

The Board finds that the incident in question is clearly relevant to MFP Contention V. The Board further finds low probative value to anonymous, un-corroborated allegations. The Board also recognizes the privacy considerations attendant to unsupported allegations against company officials and with respect to whistleblowers, as well as the integrity of the hearing process considerations necessary to be protected in a licensing-board proceeding. To this end, we view cross-examination of the custodian of the records as a first step, and will permit that to take place (as suggested by PG&E and the Staff). In addition, however, we direct that the unsigned letter - sanitized to remove all names of individ-uals - be also provided to MFP (either by PG&E or the Staff), to assist it in its cross-examination. Following cross-examination, the Board will determine whether further discovery may be necessary or whether the allegations should be disregarded.

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l ITIS SO ORDERED.

1 FOR THE ATOMIC SAFETY i

AND LICENSING BOARD

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Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE

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Bethesda, Maryland

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August 13,1993 i

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Directors' Decisions Under 10 CFR 2.206 l

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M Cite as 38 NRC 69 (1993)

DD-93-14 i

J UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2

i OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS l

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Robert M. Bernero, Director l

In the Matter of Docket Nos. 72-8 50-317 50-318 BALTIMORE GAS AND ELECTRIC f

COMPANY (Calvert Cliffs independent Spent l

Fuel Storage installation)

August 16,1993 1

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The Director of the Office of Nuclear Material Safety and Safeguards denies e

a Petition filed by the Maryland Safe Energy Coalition regarding the licensed Independent Spent Fuel Storage Installation (ISFSI) at the Calvert Cliffs Nuclear l'

Power Plant. Petitioner had requested that the NRC: (1) halt the transfer of nuclear waste from the spent fuel pool to the ISFSI until certain alleged safety j

problems had been fully solved; (2) conduct hearings for further rulemaking and regulation of nuclear waste at the plant; and (3) deny a Certificate of Compliance (COC) and suspend the license issued to the Licensee for dry cask storage of l

l spent fuel until the concerns set forth in the Pet tion had been addressed by the l

NRC and the Licensee. Preliminarily, the Director noted that the licensing of this

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ISFSI did not fall under the Subpart of 10 C.F.R. Part 72 requiring rulemaking and issuance of a COC for approval of the cask design and, therefore, denied i

this part of the Petition. (Earlier, the Director had informed the Petitioner that its 3

j request for further rulemaking and regulation of dry cask storage was a request to modify the Commission's regulations and had advised the Petitioner to follow

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the provision of 10 C.F.R. 6 2.802 if it sought rulemaking.) ne Director then j

considered each of the safety problems alleged by the Petitioner and concluded

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that the Petitioner had not raised any substantial health and safety issues. He I

Director, therefore, denied the remaining actions requested in the Petition.

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t DIRECTOR'S DECISION UNDER 10 C.F.R. A 2.206 1.

INTRODUCTION By letter dated Dece:nber 21,1992 (Petition), the Maryland Safe Energy Coalition (Petitioner) requested that the Nuclear Regulatory Commission (NRC) iastitute a proceeding pursuant to 10 C.F.R. 9 2.202, with regard to the Indepen-dent Spent Fuel Storage Installation (ISFSI) at the Calvert Cliffs Nuclear Power Plant (CCNP '). The Petitioner requests that NRC: (1) halt the transfer of nu-i clear waste from the spent fuel pool at the CCNPP to the ISFSI, until certain alleged safety problems have been fully investigated and solved; (2) conduct hearings for furdici ruiemaking and regulation of nuclear waste storage at the plant; and (3) deny a Certificate of Compliance and suspend the license issued to the Baltimore Gas & Electric Company (BG&E or Licensee) for dry cask l

storage of spent fuel until the concerns set forth in the Petition are addressed by NRC and BG&E. Subsequent to the Petitioner's request, NRC's Executive Director for Operations and the Director, Office of Nuclear Material Safety and Safeguards, received letters from individuals supporting the request by the Pe-titioner. In addition, the Petitioner, by letter dated February 10,1993, enclosed fifty questions and requested answers from BG&E and NRC.

The Petitioner asserts s the basis for these requests that several relevant omissions from past NRC hearings, expert testimony, and rulings may seriously impact the safe operation of dry cask storage of spent fuel at CCNPP. In addition, the Petitioner asserts that new information allegedly proves the inadequacy of NRC's and BG&i';.aluations of this spent fuel storage, to wit, that the Cove Point Natural Gas Plant, which is expected to resume operation in 1993, is a potential danger to safe storage that has not been analyzed. Failure to analyze it is an alleged violation of NRC procedure (sce section 111.1, below).

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The Petitioner also alleges that safety problems related to the ISFSI at the l

Calvert Cliffs Plant exist regarding the following matters: the thermal limits of passively cooled concrete vaults may be exceeded if the air convection ports become blocked, which could also damage the fuel in the canisters, increase the temperature of the canister beyond the design limits, or increase embrittlement (see section III.2, below); NRC has failed to require radiation limitations at the air inlets and outlets or to require inspection for canister emb-ittlement, corrosion or leakage, or internal canister monitoring (sce section 111.3, below);

NRC is allowing fuel with " pinhole leaks" to be transferred to the dry casks without limits in quantity (sce section 111.4, below); if the thermal limits of the concrete in the ISFSI are exceeded and the concrete cracks, the canisters may i

become irretrievable (see section III.5, below); an/ dry cask storage has not been adequately tested (see sectior 111.6, below).

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The Petition has been referred to me for a decision. Ibr the reasons given below, I have concluded that the Petitioner's requests should be denied.

IL BACKGROUND On December 21,1989, BG&E applied to NRC for a materials license under 10 C.F.R. Part 72, Subpart B, to allow spent fuel storage in an ISFSI to be located at the CCNPP site. The ISFSI employs the Pacific Nuclear Fuel Services, Inc.

(PNFS, formerly NUTECH) NUHOMS-24P concrete module and steel canister j

dry storage system. The ISFS1 would consist of up to 120 modules on concrete pads. In connection with the license application, BG&E submitted a Safety Analysis Report (SAR) and an Environmental Report (ER). Subsequently, on February 9,1990, NRC, by Notice in the Federal Register titled " Baltimore Gas & Electric Co., Consideration of Issuance of a Materials License for the Storage of Spent Fuel and Notice of Opportunity for a Hearing,'" notified the public of receipt of that application and of the opportunity for a public hearing on the application. In response to the Notice, the State of Maryland asked for a hearing, and a Licensing Board was convened. No petition for leave to intervene i

in the proposed licensing action was received from any other pany within the deadline specified in the Federal Register.

Intervention was withdrawn when agreement among the State, BG&E, and the NRC was reached. In essence, the agreement stated that the State of Maryland would be kept completely informed by all parties in regard to all correspondence, reports, documents, and meetings during the licensing review process, that a method of airing the State's concerns would be established, and that BG&E would consult with and allow the State to review and qualify a radiological a

monitoring program for the ISFSI. When the State of Maryland subsequently elected to withdraw from the proceeding, the Licensing Board terminated the proceeding.2 On M'.ch 22,1991, the NRC Staff completed its environmental review of BG&E's proposed licensing action, in accordance with 10 C.F.R. Part 51, and issued an Environmental Assessment (EA) and Finding of No Significant Impact for the Calvert Cliffs ISFSI at the CCNPP.S Subsequently, the Staff completed its safety review, and a Staff report titled " Safety Evaluation Report for the Baltimore Gas and Electric Company's Safety Analysis Report for an Independent Spent Fuel Storage Installation" was completed in November 1992.

Materials License SNM-2505 was issued to BG&E on November 25,1992, and the Staff provided public notice of the action in the Federal Register.'

I 55 Fed Reg. 4742 (Feb. 9.1990) 2 LEP-9a13,31 NRC 456 0990) 55 Fed. Reg.13.1% (Mar. 29.1991).

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' 57 red Reg 57.247 (Dec. 3.1992).

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111. DISCUSSION The Petitioner's three specific requests involve issues related to rulemaking on dry cask storage, as well as specific issues related to the BG&E ISFSI license.

l In Petitioner's February 10,1993 letter, Petitioner also enclosed fifty questions to which it is seeking answers from BG&E and NRC, and it indicated that it intends to discuss these questions at the requested rulemaking hearings.

t Materials License SNM-2505, issued to BG&E, is a specific license for an ISFSI, pursuant to 10 C.F.R. Part 72. Subpart B. This licensing action does not fa'l under the general license provision of 10 C.F.R. Part 72, Subpart K, and, therefore, no rulemaking or Certificate of Compliance is required ts approve the NUHOMS-24P cask design in NRC's acknowledgment letter to the Petitioner, dated February 24, 1993, the Staff informed the Petitioner that its request for further rulemaking and regulation of dry cask storage was a request to modify a rule and that thc I'ctitioner should follow the provisions of 10 C.F.R.12.802 if it seeks rulemaking.5 Therefore, this Decision addresses the specific issues expressed by the Petitioner in relation to BG&E's Part 72 license. The NRC Staff has also considered the similar concerns raised in those of the Petitioner's fifty questions that related to the licensing of BG&E's ISFSI.' Those specific allegations are discussed directly in this Decision.

L Dangerfrom Core Point LNG Plant Has Not Been Analyzed Petitioner alleges that the Cove Point Natural Gas Plant, which it alleges is expected to resume operation in 1993, is a potential danger to safe storage that 8 Subsequently, on Jure 23. 1993, de Petinorer Sled a pention far rulemaking to nm&fy specific idenufed pronsions of 10 C FR. Part 72. '! hat pennon is curnetty under counderanon by ate staff. Also by ktter to or i

Dutctar. NMss. dated July 26.1993. Peutioner sought to haw its rulemaking pection treated as an addendum to uns 10 CIR. I 2.206 peupon. Tte staff has revrwed ou July 26.1993 kuer and has determined shar de requested acuan is appropnately part of de rukmuking peution. rather than this sechan 2206 petition One aspect of de ktier, wtuch requests con:inuous ra&ation norntors at te IsrSI exit coobag vents, could be imerpreted as a seassernon of a poim already raised in the section 2 206 peution and addressed in this Decision. Other Dian i

that aspect. all of the other matters raised in the letter are appropnately addressed in a rukmakmg coment. To the extent that the ktter can be read to request a reopening of tte OCNPP ists) bcensing acnon. no adequate basis is prended for such acuan Tir matters raised in the rulemakmg pention inclu&ng er July 26.1993 leuer will be fully conudered by the Staff in the rulernaking. and er issuance of dais Decision does not in any way preju&ce de Praoner's right and consideranon of its request for rukmaking i

• Ahhough the Petiuoner auerts deat several relevant omissions frorn past NRC hearmgs. expert ersoneny, and ruhngs may senously impact sie safe operanon of dry cask storage of spent fuel at '"alvert Chffs, it d d not i

prende any estanons to past hearings. cyert testimony. or rulings related to heakh and safety issues. Ttus would appear to be a reference to a rukmaking pmeceding. since the Calwrr C7@ tsrSt proceeding erver went leyond a very prehnunary stage. nantly a ruhng that de state of Maryland had estabbshed stan&ng to intervene. See t.BP-9413. supra note 2. Accor&ngly. Or NRC Sta4 considered das very generahzed assenion of an inadequacy in a rulemaking record to be a matter that the Peutwer could pursue in accordance with 10 Cf R. 62 802 if n I

so elech.d. and &d not conuder er assertion further ic this Drcision.

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has not been analyzed, andfailure to analyze it is a violation ofNRC procedure (see related Question No. 27 in Petitioner's letter da:cd February 10, 1993).

On August 13,1976, when NRC issued an operating license for Unit 2 of the CCNPP, NRC imposed a license condition requiring submittal of a license amendment application with a supporting hazard analysis 60 days prior to the i

operation of the Cove Point Natural Gas Plant. In 1978, before granting the amendment, the NRC Staff, in its license amendment action, had conducted a I

detailed analysis of the potential risks from that plant to the CCNPP.7 Based on the Staff's review, it was concluded that the likelihood of an LNG accident in the vicinity of CCNPP causing a significant radioactivity release is acceptably low, that such an accident does not involve a significant hazard consideration, and that there is reasonable assurance that the health and safety of the public will not be endange ed by the effects of an LNG accident on CCNPP. Ibr precaution, at that time, the Staff required, as a license condition, a contingency plan to ensure appropriate prudent action in the event of an LNG accident.

When the Cove Point Natural Gas Plant ceased operation in 1980, BG&E then requested the deletion of some of the license conditions, which NRC subsequently granted. ne Licensee committed that if the Cove Point Plant resumed operation, the Licensee would submit an updated hazard analysis report, with proposed actions and mitigating measures (if any are deemed necessary or advisable), to NRC,60 days before the Cove Point Plant resumed 4

operation. This updated information would allow the NRC Staff to evaluate any changed circumstances with respect to the operation of Cove Point Plant and i

any significant differences in accident consideration. NRC could then impose appropriate action or mitigating measures, such as those earlier conditions

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NRC imposed when the Cove Point Plant was in operation in 1978, to ensure protection of the public health and safety in the event of accident.

1 De past Cove Point Plant analysis for the CCNPP is applicable to the

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ISFSI. He ISFSI horizontal storage module (HSM) reinforced concrc;c system j

is designed for severe wind, tornado missile, and pressure loadings as specified in NRC Regulatory Guide 1.76, which is the same regulatory guide currently j

used for nuclear power plants. Because of the NUHOMS storage system's robust design and construction, it has inherent resistance to blast pressure, and, thercfore, the threat to nuclear safety from a potential natural gas explosion is expected to be negligible. In the NRC Staff's Environmental Assessmen:

(EA)* for the Calvert Cliffs ISFSI, the Staff evaluated a variety of accidents and concluded that a hypothetical bounding case accident would result in a release 4

l 7 Ui Nuclear Regulatory C&mnussion, "NRC safety Evaluation Regardmg Prommity of Cove Point LNG Facihty,' June 13.1978 Docket Not S317 and S318.

'US Nucicar Regulatory Commisson. NRC T.svironmental Anessment Relaied to Construction and Chierat on of the Calvert Chffs in:lepemient speni Fuel Storage Installation" at 2429 (March 1991),

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of radioactivity from the ISFSI facility from a dry shielded canister (DSC) leakage. De Staff postulated and analyzed a worst. case DSC leakage accident and concluded that the radiation dose to the general public is negligible, and that there is no significant impact to the offsite environment. The 3everity of the Cove Point Plant's potential hazard to the ISFSI is much less than the worst-case accident for the ISFSI, since the NRC Staff does not expect any release of radioactivity from the ISFSI facility from potential accidents related to operation of the Cove Point Plant.

He Cove Point Natural Gas Plant is expected to be reopened no sooner than December 1994, and NRC understands that BG&E will be notified at least 12 months before its startup. In addition, a joint study between BG&E and the Maryland Department of Natural Resources (DNR) was conducted to evaluate the risks associated with the Cove Point Plant planned resumed operation, thereby updating the study conducted at the time of Cove Point's maiden operation in 1978. The study concluded that the resumption of operation i

of the Cove Point Plant would not represent an unacceptable risk to the ISFSI, nor the power plant itself.'(By letter dated June 7,1993, BG&E has submitted j

updated information on this study to NRC, and the new information, along with information submitted to the Director, NMSS, by the Petitioner in a letter dated July 27,1993, is currently under review by the NRC Staff.)

l 2.

Dangerfrom Blockage of Air Conrection Ports The Petitioner contends that the shermal limits of passively cooled concrete uzults may be exceeded if the air convection ports become blocked, which could also damage thefuelin the canisters, increase the temperature of the canister i

beyond the design limitsfor the concrete nzult, or increase embrittlement of the l

canister (see related Questions No. 24, 28, and 29 in Petitioner's letter dated

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February 10, 1993).

In NRC's Safety Evaluation Report (SER) (see section 2.2.6.2 of SER),

the NRC Staff conducted an evaluation and concluded that for the HSM inlet and outlet blocked accident, the peak fuel cladding temperature would be

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significantly less than the acceptance criterion, and the peak concrete temperature would also be acceptable. The accident scenario conservatively assumed full i

blockage of all air inlets and outlets. For this specific cask and system design, no damage of fuel cladding or degradation of shiciding function is anticipated in the event of air inlet and outlet blockage for a perind less than 48 hours5.555556e-4 days <br />0.0133 hours <br />7.936508e-5 weeks <br />1.8264e-5 months <br />. Consequently, the Licensee is required by license condition to conduct a

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surveillance program to inspect the air inlets and outlets once every 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />, to

'lener imm Torrey C Emwn (Maryland Department of Natural Reumrces) to Mr. Rictmrd Ochs Ottiuoner).

r dmed January 26,1993 t

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t ensure that they do not become plugged. If the air inlets and outlets are plugged, they are required to be cleared; and if the screen is damaged, it is required to be replaced.

j In NRC's EA (see section 6.2.2), the Staff analyzed an accident involving the blockage of air inlets and outlets and found that there are no offsite dose consequences as a result of this postulated accident. The Petitioner's concerns do not raise significant health and safety issues to members of the general public.

In addition, the Licensee's occupational and environmental monitoring program will further ensure the protection of the health and safety of workers and the general public. Herefore, the Staff considers that the Petitioner's concerns have l

been adequately addressed in the EA and SER.

3.

No Requirements for Radiation Limits, Inspection, and Monitoring Petitioner n!!egn +at the NRC hasfailed to require radiation limitations at the air inlets and outlets. which are the points ofgreatest porential radiological risk, or to require inspection for canister embrittlement, corrosion, or leakage, or internal canister monitoring (see related Question No. 40 in Petitioner's letter dated February 10, 1993).

In the ISFSI license speci6 cations, NRC has imposed contact dose rate limits at the HSM walls and door (20 millirem per hour (mrem /hr)) at the HSM walls and 100 mrem /hr at the access door) to ensore that worker's doses are below i

the limits that are specified 10 C.F.R. Part 20. De air inlets and outlets of the HSM are localized areas, compared with the overall HSM surfaces. He surface dose rates at the air inlet and outlet locations are less representative than dose rates at the HSM walls and door for assessing the effect on the direct radiation levels to individuals located beyond the controlled area. Further, NRC requires that the overall radiation dose to a member of the general public from the CCNPP's operation be below the U.S. Envirormental Protection Agency's Environmental Radiation Standards for fuel cycle facilities - i.e., 25 mrem /yr (0.25 milli-Sievert per year (mSv/yr)) to the whole body and 75 mrem /yr (0.25 mSv/yr) to the thyroid, from the plant's routine operation. When workers are in the vicinity of loaded HSMs, radiation levels at the air inlets and outlets would be measured, in accordance with the Licensee's radiation protection program,

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to ensure that worker exposures are within the requirements of Part 20. Rese are the radiation limits imposed to ensure worker safety and the protection of the general public. Radiation limits at the air inlets and outlets, as suggested by the Petitioner, are not needed.

Before the DSC is installed in the HSM system, the Licensee will inspect and check the DSC vacuum system, helium backfill pressure, helium leak rate of primary seal, and DSC surface contamination, and will perform DSC dye penetrant test of closure welds. After the DSC is installed in the HSM, the 75 I

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Licensee will measure the air temperatures and surface dose rates on the HSM to determine that all design criteria are met. Because the DSC is made of stainless a

steel, it is not subject to corrosion or embrittlement; therefore, the DSC will not deteriorate under normal conditions. The NUHOMS-24 system is designed to last much longer than the period of the ISFSI license.38 During operation, the Licensee will have to demonstrate compliance with Part 20 worker dose limits, as well as dose limits for the general public. The Staff concludes that daily inspections to observe abnormalities occurring in the system, and the current radiological environmental monitoring program, are adequate to determine when corrective actions must be taken to maintain safe storage conditions. The Petitioner's proposed requirements to inspect for canister embrittlement and corrosion leakage, or to perform internal canister monitoring would involve periodically removi::g the DSC or inserting a device into the canister for measurement. These inspections are not necessary to ensure safe operation of the ISFSI and me not w= ranted. In addition, to perform some of these measurements, or to remove the DSC out of the HSM, could result in a potential increase of the worker's occupational exposures or accident probabilities.

5.

Allowing " Pinhole Leaks" Fuelin Dry Cask a

The Petitioner alleges that NRC is allowingfuel with " pinhole leaks" to be transferred to the dry casks, without limits in quantity (see related Questions No. 31, 32, 33, and 31 in Petitioner's letter dated February 10,1993).

As stated in the Part 72 license issued to BG&E,6 3.1.1, at 3/41-1 of the fuel technical specification, fuel assemblies known or suspected to have structural defects sufficiently severe to adversely affect fuel handling and transfer capability

]

shall not be loaded into the DSC for storage. De required fuel specification is directed at avoiding structural defects, or cladding deFradation, that could 1

lead to gross rupture of the fuel, and could pose operational safety problems in the later handling of the fuel, during its removal from storage for further l

processing or disposal. He NRC Staff does not consider the " pinhole leaks" significant within the context of storage in the ISFSI, since the fuel will still be a

confined in the cladding, and will be contained and scaled in the DSC. Under normal operations of the ISFSI, leakage is not expected to occur, since the design and the double-seal welding of the DSC covers are checked and tested to provide structural integrity throughout the interim storage period. In practice, the j

percentage of spent fuel having " pinhole-leaks"is very small," and radioactive i

a 30 l

NUTICH. Inc. ~ropical Report far the Nutech Horiztmtal Modular sinrage System for Irradiated Nuclear Fuel." NL'HoMs 24P Ouly 1989).

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" U.S. Deparment of Energy. Tharacteristics of Ibiential Re;mnary Wam." Dor /RW-0184-RI. Vol.1 Ouly

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gas, such as Kr-85, will be contained once the fuel is sealed in the DSC During the storage period in the ISFSI, it is not expected that gas will leak out of the DSC. Ilowever, the Licensee is still required to maintain ISFSI operations in compliance with the environmental dose limits for public health protection, as specified in 10 C.F.R. (72.104. He gas can be vacuumed during retrieval, to minimize occupational exposure.

6.

Thermal Limits for the Concrete in the ISFSI Could Be Exceeded The Petitioner alleges that sf the thermal limitsfor the concrete in the ISFSI are exceeded and the concrete cracks or moves, the canisters may become irretrievable (sce related Question No. 23 in Petitioner's letter dated February 10, 1993).

I As discussed in item 2 on thermal limits, the thermal limits of the concrete in the ISFSI will not be exceeded under normal or accident conditions, such as the blockage of the air inlets and outlets. With the daily surveillance program, it is unlikely that this full blockage would occur and would be unnoticed by l

the inspector. Concrete exposed to accident temperatures would be expected l

to begin a slow degradation process resulting in some loss of its strength, but would not fail so that a DSC could not be retrieved. The required surveillance l

program will further ensure the safe operation of dry fuel storage.

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7.

Dry Cask Storage Has Not Been Tested and Should Require Stringent Regulation The Petitioner is concerned that dry cask storage has not been tested over the length of time of the 20-year license. The Petitioner asserts that, given so many uncertainties, this new procedure can only be called experimental and, as such, requires most stringent and conservative regulation.

1 Irradiated reactor fuel has been handled under dry conditions since the mid-1940's when irradiated fuel examinations began in hot cells. Light-water reactor fuel has been examined dry in hot cells since approximately 1960. Some of l

these fuels have been stored continuously in hot cells under dry conditions for approximately two decades. Experience with storage of spent fuel in dry casks i

is extensive. The United States has extensive experience in the licensing and safe operation of ISFSIs. At the beginning of 1993, five site-specific licenses for dry cask storage had been issued. They include: Virginia Electric and l

Power's Surry Station, issued July 2,1986; Carolina Power and Light's (CP&L)

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l H.B. Robinson Steam Electric Plant, issued August 13, 1986; Duke Power's Oconee Nuclear Station, issued January 29,1990; Public Service Company of Colorado's Rn St. Vrain Nuclear Generating Station, issued November 4,1991; i

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and BG&E's Calvert Cliffs Nuclear Power Plant, issued November 25, 1992.

All have commenced operation and loaded fuel with the exception of BG&E.

Two hundred and fifty-two assemblies are in storage at Surry,56 assemblies are in storage at H.B. Robinson,528 assemblies are in storage at Oconee, and 1482 fuel elements are in storage at Fort St. Vrain.

For the specific Calvert Cliffs ISFSI system (i.e., the NUHOMS system), the topical report (see note 10) submitted by NUIIICH, Inc., had been evaluated thoroughly by the NRC Staff, and the Staff issued a letter of approval, with an SER, on April 21,1989. De Staff reviewed the various safety features, such as i

criticality, structural, thermal, and shielding aspects of the design, under normal and accident conditions. In the Staff's safety evaluation, conservative approaches or assumprinns were used in case of uncertainties, to ensure safety protection of workers and the general public. He Staff concluded that the NUHOMS system can be used to safely store spent fuel assemblies. At present, the system or similar systems. c used at the Oconee ISFSI and the H.B. Robinson ISFSI. He safety features of the system have been reviewed thoroughly and documented.

The design criteria on each of these safety features have to be demonstrated by testing and surveillance during or prior to the installation and operation of the system. Because of the passive design of the NUHOMS system, the long-term integrity of these safety features will be maintained once the system is properly installed. He Licensee's daily inspection program and radiological environmental monitoring program will further ensure the safe operation of the facility. Since the safety features of the NUHOMS system have been tested and evaluated, there is ample margin of safety for its operation for the period of interim storage of spent fuel at the Calvert Cliffs site. The Staff disagrees i

with Petitioner's characterization that dry cask storage and, particularly, the NUHOMS system is " experimental," based on the Staff's review and the operational history of the systems currently in operation.

CONCLUSION For the reasons discussed above, there is no basis for taking the actions requested by the Petitioner. He institution of proceedings pursuant to 10 C.F.R. 9 2.202 is appropriate only where substantial health and safety issues have been raised. See Consolidated Edison Co. of New York (Indian Point Units I, 2, and 3), CL1-75-8,2 NRC 173,175 (1975); Washington Public Power Supply System (WPPSS Nuclear Project No. 2), DD-84-7,19 NRC 899, 924 (1984).

This is the standard that I have applied to the concerns raised by the Petitioner in this Decision to determine whether action is warranted. As provided by 10 1

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C.F.R. 6 2.206(c), a copy of this Decision will be filed with the Secretary of the Commission, for the Commission's review.

FOR THE NUCLEAR REGULA1 DRY COMMISSION Robert M. Bernero, Director Office of Nuclear Material Safety and Safeguards Dated at Rockville, Maryland, this 16th day of August 1993.

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