ML20065H966

Nuclear Regulatory Commission Issuances for August 1990. Pages56-128

ML20065H966
Person / Time
Issue date:	10/31/1990
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V32-N02, NUREG-750, NUREG-750-V32-N2, NUDOCS 9010310170
Download: ML20065H966 (80)

Text

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Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington. DC 20555 -

(301/492-8925) c

NUREG-0750 Vol. 32, No. 2 Pages 57-128 NUCLEAR REGULATORY COMMISSION ISSUANCES August 1990 ) This report includes the issuances received during the specified period from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB) the Atomic Safety and Licensing Boards (LBP), the Ad-t/ ministrative Law Judge (ALJ), the Directors' Decisions (DD), and tne A-Denials of Petitions for Rulemaking (DPRM). The summaries and heaanotes preceding the opinions reported herein 1 are not to be deemed a part of those opinions or have any independent legal significat)ce. .J US NUCL F AH HF GUl AT ORY COMMISSlON t Prepared by the Division of Freedom of Information and Publications Services 1 Office of Administration-U.S, Nuclear Regulatory Commission 4 Washington, DC 20555 (301/492-8925)- l (; l

t t F COMMISSIONERS Kenneth M. Carr, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick

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Christine N. Kohl, Chairman, Atomic Safety and Licensing Appeal Panel B. Paul Cotter, Chief Administrative Judge, Atomic Safety and Lloonsing Board Panel 1 1 i i 4 d

i CONI'ENTS Issuances of the Atomic Safety and Licensing Appeal floards PUBLIC SERVICE COMPANY OF NEW llAMPSillRE, et al. (Scabrook Station. Units I and 2) Dockets 50443 0L,50444-OL (Offsite Emergency Planning issues) DECISION, ALAB 935, August 20.1990........................ 57 PUBlJC SERVICE COMPANY OF NEW llAMPSillRE, et al. (Scabrook Station, Units I and 2) Dockets 50443-OL,50444-OL (Offsite Emergency Planning issues) DECISION, ALAB 936, August 20.1990........................ 75 Issuances of the Atomic Safety and Licensing floards COMMONWEALTil EDISON COMPANY (Quad Citics Nuclear Ibwer Station) Dockets 50-254-OM,50-265 OM (ASLDP No. 90-609-02 OM) (EA 90-032) (Pacility Operating License Nos. DPR-29, DPR 30) MEMORANDUM AND ORDER LDP 90-28, August 1,1990....... 85 - CURATORS OF Tile UNIVERSITY OF MISSOURI Dockets 70-00270,30-02278 MLA (ASLDP No. 90 613-02-MLA) (Rc: TRUMP S Project) (Byproduct License No. 24-00513-32; Special Nuclear Materials License No. SNM 247) MEMORANDUM AND ORDER, LBP 90-30, August 24,1990...... 95 GEORGIA POWER COMPANY (Vogtle Electric Generating Plant, Units 1 and 2) Dockets 50-424 OLA,50-425-OLA (ASLDP No. 90-617 03-OLA) (Pacility Operating License Nos. NPF-68, NPF 81) MEMORANDUM AND ORDER, LBP 90 29, August 16,1990....,. 89 ROllERT L. DICKilERilER Docket 55 5043-SC (ASLBP No. 90-610 01.SC) (EA 90-031) -(Senior Operator License Limited to Fuel llandling. No. SOP-2365 8) ' MEMORANDUM AND ORDER, LDP 90-28, August 1,1990....... 85 if t r lii 1 7 '.i' a

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c' Docket 30-12319CivP (ASLBP No. 90 618 03-CivP) (EA 89 223) (Material License No. 3517178-01) o'. NOTICE OF ' HEARING AND OTIIER MATQRS. i I LBP 90 31, August 29,1990................................ 107 o Issuance of Director's Decision ' e s.: t I s .tw PUBLIC SERVICE COMPANY OF NEW HAMPSillRE, et al. l (Scabrook Station, Unit 1) } - Docket 50 443 r DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206, f A-DD-90 5, August 31.1990.................................. 109 l 1.y .g r- > ^ P. f 1 ) .{ + a i 1.] -t -f '] b:$ ' t t

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l ....J Atomic Safety and Licensing Appeal Boards issuances ATOMIC SAFETY AND UCENSING APPEAL PANEL Chnstne N Kohl. Ctairman Alan S Rosenthal l. Dr W Reed Johrtum '" i-- Thomas S Moore Howard A Wdbar G Paul Dollwerk. lll ~ L'-O to I_J(,$ }i-9- 9 hit 1 I -~ _

Clte as 32 NRC 57 (1990) ALAB 935 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges: G. Paul 80llwerk, Ill, Chairman Alan 8. Rosenthal Howard A.Wilber in the Matter of Docket Nos. 60-443-OL 60 444 OL l (Offsite Emergency Planning issues) PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al. - (Seabrook Station, Units 1 and2) August 20,1990 %e Appeal Board affirms the Licensing Board's determination in LBP 89-17,29 NRC 519 (1989), that the applicants' emergency warning system for tie Massachusetts portion of the Scabrook plume exposure pathway emergency planning zone (EPZ) is in compliance with applicable regulatory requirements and guidance. EMERGENCY PLANNING: PUllLIC NOTIFICATION - EMERGENCY PLAN (S):- CONTENT (NOTIFICATION); NOTIFICATION REQUIREMENTS An offsite emergency response plan must establish "mcans to provide early notification and clear instruction to the populace within the plume exposure pathway (EPZ)." 10 C.F.R. 6 50.47(b)(5) Marcover, subsequent to the time - state and local government officials are notified of a situation that requires F 57-4 - i r: I

~ l I urgent action,"[t]he design objective of the prompt public notification system shall be to have the capability to essentiaUy complete the initial notification of Oc public within the... EPZ within about 15 minutes." 10 C.F.R. Part 50, Appendix E, iIV.D.3. See also NUREO-0654/ FEMA REP-1 (Rev.1)," Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuencar Power Plants" (Nov.1980), Appendix 3 (hercafter NUREO 0654), t EMERGENCY PLANNING: PUllLIC NOTIFICATION EMERGENCY PLAN (S): CONTENT (NOTIFICATION)I NOTIFICATION REQUIREMENTS A proper warning system should consist of two separate components: (1) an "aler'ing signal" and (2) " notification by commercial troadcast (e.g., EDS)." NUREO 0654, App. 3, at 3 3. The "bmndcast notification" component fulfills de regulatory requirement that the warning system provide the means for " clear instruction" to the public. Sco 10 C.F.R. 6 50.47(b)(5). EMERGENCY PLANNING: PUllLIC NOTIFICATION EMERGENCY PLAN (S): CONTENT (NOTIFICATION)I i NOTIFICATION REQUIREMENTS 1he term " initial notification" as incorporated in th' "about 15 minute" requirement in 10 C.F.R. Part 50, Appendix E, ilV.D, was intended only to encompass completion of the signal that notifics the pi blic that a radiological emergency exists so that they should take appropriate action to sock additional information (e.g., by tuning to a prescribed emergency broadcast station). REGULATIONS:. INTERPRETATION REGULATORY GUIDES:. - APPLICATION EMERGENCY PLANNING: PUllLIC NOTIFICATION EMERGENCY PLAN (S): CONTENT (NOTIFICATION)I NOTIFICATION REQUIREMENTS Appendix E to 10 C.F.R. Part 50 is the only regulatory timing requirement - for warning systems, as such, it -- not the NUREO 0654 guidance - is the standard with which applicants' warning system must comply, See, e.g., Long Island LigMag Co. (Shoreham Nuclear Power Station, Unit 1), ALAB.900,28 NRC 275,290, review declined, CL1-8811,-28 NRC 603 (1988). 1 1 58 I i j

m._ v r REGULATORY GUIDES: APPLICATION 'Ihat regulatory guidance should be somewhat more demanding dian a regulatory requirement is not untoward as it acts to assure compliance with de regulatory requirement. EMERGENCY PLANNING: PUllLIC NOTIFICATION EMERGENCY PLAN (S): CONTENT (NOTIFICATION); NOTIFICATION REQUIREMENTS; FEMA VIEWS Olven the difference in language of NUREO-0654, App. 3, declaring that i a warning sysicm should include the "/c/qpabilityfor providing both an alert signal and an informational or instructional message.., within 15 minutes" and the language of 10 C.F.R. Part 50, Appendix E, iIV D 3, piat the system have "the capability to essentially complete the initial not{fscation of the public ,.. within about 15 minutes"(emphases supplied), additional FEMA guidance requiring only that the siren signal and EBS message be activated (as opposed to compleicd) "within 15 minutes" is in conformity with the NUREO 0654 guidance. EMERGENCY PLANNING: EMERGENCY PLANNING ZONE (SIZF) EMERGENCY PLANS: EMERGENCY PLANNING ZONE (SIZr:) EPZ boundaries are to be drawn to conform generally to political jurisdictions rather than strictly at a radius of ten miles from the facility. See Long /sland Lighting Co. (Sharcham Nuclear Power Station, Ue..1), CLI 8712, 26 NRC 1 383, 395 (1987), J } EMERGENCY PLANNING: PUBLIC NOTIFICATION EMERGENCY PLAN (S): CONTENT (NOTIFICATION); - NOTIFICA't10N REQUIREMENTS ~ - While a warning system should assure direct coverage of essentially 100% of the population within five miles of the site within fificen minutes, there is - 1 some flexibility in terms of the percentage of population coverage that must be obtained by the warning system for remote, low population areas at a distance of more than five miles from the facility, NUREO 0654, Appendix 3, Criteria ) B.2.b and c;isee FEMA Guidance Memorandum AN 1, " FEMA Action to l ' Qualify Alert and Notification Sysicms Against NUREO 0654/ FEMA REP.1 j 4-59 p 1 k .)- ~.4

.. ~ t 1 and FEMA REP 10" (Apr. 21.1987). Attach.1. at 12 to -3. This ficxibility, l howver, does not sanction a warning system whose design fails to provide an l alert signal and an informational / instructional message to rnore po;xilated areas Groughout Oc entire EPZ, meluding die five to ten mile portion, within fifteen minutes. APPEARANCES John Traficonte,lloston, Massachusetts (with whom Allan R. l'ierce, Leslie H. Greer, Matthew T. llrock, and Pamela Talbot, Boston, Massachusetts, were on the brief), for the intervenor James M. Shannon, Attorney Ocneral of Massachusetts. Thomas G. Dignan, Jr., Boston, Massachusetts (with whom George IL Lewald, Kathryn A. Selleck, Jeffrey P. 'IYout, Jay tiradford Smith, Geoffrey C. Cook, William Parker, and llarhara Moulton, Boston, 1 Massachusetts, were on the brief), for the applicants Public Service Cornpany of New llampshire, et al. Mital A. Young (with whom Edwin J. Reis, Richard G. Itachmann, Elaine I. Chan, Sherwin E. Turk, and Lisa II. Clark were on the brief) for die Nuclear Regulatory Commission staff. DECISION As part of the pending appeals from the Licensing Board's final disposition of emergency planning issues relating to the $cabrook Station, the Massachusetts Attorney Gencial (MassAO) has contested a Board determination. LBP 8917,8 ' concerning the cificacy of various aspects of the applicants' cmcrgency warning system for the Massachusetts portion of die facility's plume exposure pathway cmcrgency planning r.one (EPZ). Because the subject matter of this portion of his appeal is related to that involved in a rejected motion to reopen from which - l- .i 829 NRC sit 0989) The MaisAo previously acusht to appest dus Asie 1989 decision. In an August 1.1989 i unruhhahed under, we dienissed his imtlat notice of oppost, holding that any review of TSP 89-17 inug await a 6nal determination cr. onergency rianmns matters hus accurred with the 1.6 censing Board's November 1989 ruhng that emergen n planung for the Massa 4useus patie of the sentenuk 174 and ths June 1988 fullicale amargency plannan6 eaardse were adequaw to comply with energency planning sequirements en that the seabmuk

fuD power Iwares annuld be authanard. See 13P-89 32,30 NRC 373 0989), appeelt pensf.g. The MaasAo eutempiantly renewed lus challenas to 1JIP-49 l? In e timely suuses of appeal.

i t 60

i 7 t i t i the MassAO took a separate appeal and upon which we rule today.8 we now address his challenges to the particulars of the Licensing Board's decision on the emergency warning system as well. I. 'Ihc emergency warning sysicm to be employed for the Massachusetts portion of the Scabrook EI2 has been labeled the Prompt Alert and Notificadon System, or PANS.8 Like so many other aspects of emergency planning relating to Seabrook, it reflects the unique circumstances surrounding this facility. Ibliowing a December 1987 judicial indication that the Town of West Newbury, Massachusetts, was within its prerogatives to order the removal of pole-mounted . warning sirens located within its jurisdiction, applicants decided to abandon entisely the me of such sirens within the Massachusetts portion of the EI2.' As a replacement, applicants established a system referred to as the Vehicle Alert Notification System, or VANS. Under VANS, applicants will retain in excess of 100 workers to staff, on a twenty-four4iour basis, a ficct of trucks upon which warning sirens have been mounted.s In the event of a radiological emergency at Scabrook, a truck will i te dispatched from one of six staging areas to cach of sixteen predetermined ) - activadon locations.' immediately upon arrival at the assigned activation slie, the truck driver will start a h.vdraulic mcchenism that extends a telescopic boom holding the siten, enabling it to reach a height of at least forty-five fect? Once a siren has reached an cicvation of at least twenty five Icet, transmission of ' 3' the appropriate control signal by emergency response authoritics will cause it to sound for three minutes.' Each siren's warbilng call is intended to alcit the public in the vicinity of the activation site of the existence of an emergency i - situation at Scabsook about which they should seck further information. At the same time the strens are sounded, the other main PANS compo-nent, the emergency broadcast system (EHS) utilized by applicants, is activated. 8See ALAa 9.M. 32 NRC 75 (19901 A :..., ,_ __et the PANS is found in a symmm design septet prepared by apphoenis for review 1 8 by the Fedwellunegency Managernant Agency (FEMAk See Applicanss' Enh. II.A (sestensk sostim Public Alan and Nasincesian syuneen FEMA REP 10 Desipi Report (Apr. 341988)); Applicanes' Enh. Il-a (Seshouak siation Pundic Alan and Natancation synern FEhtA REP 10 Design Rapnet (Addenden 1.oct 14.1944)). i

• $ee ALAa 883,27 NRC 43,4647, aurasesf da peer en other geomade.CLI-88-8.28 NRC 419 (1988).

83ee Applirents' Direst Tesumany Regarding Ranaining Prengt Alert and Nasincation symen lasues, fal Tr. 75, et 2122 (hasminaher Appimares' Disect Temirnany); Tr 254, i ' Applicants' Esh. ll A st 2-s, i ogyreannately si fem. the anund coverage analysis for the systern oss conacontively enducted far e airen height 83er Apptwenes' Enh. Il-a et 3-7 12. Akhaugh the fuD onension height is de VANS sirens will be

or 45 feet See W at 2-12; Tr.155-57.

. sTr. 88; see Appliceree' Enh. Il A at 217. See else ife nais s3. l 61 3 3 - i ] e r r n

A his system is to provide the public in the Massachusetts pcrtion of the EPZ with information about de emergency condi*. ion and protective action instruc-tions. As that system is designed, after receiving authorization from utility emergency response officials (who have, in turn, consulted with State officials), the local radio stations with which the applicants have an agreement to transmit EBS messages will begin twoadcasting,' Their initial transmission consists of an eight second message informing listeners that what ensues is not a system test, followed by a twenty two second announcement advising what local commu-nitics are affected by the emergency condition, and den a twenty-five second tone alert signal," Immediately after this initial fifty-five second period, in ac-cordance with de directions of emergency response officials, the stations will lvoadcast an informational and instructional message detailing the nature of the emergency and recommended protective actions,88 The length of this message varies with the emergency situation, but the Liccruing Board, on the basis of its own timing of de proposed prerecorded EBS messages, found that de longest English language message would last approximately two minutes and thirty-eight seconds.u Two issues relating to applicants' warning system wen litigated before the Licensing Board: (1) whether the sound level of the VANS sirens will te too high; and (2) whether the public will te warned quickly enough, With respect to l the sound magnitude issue, on the basis of de testimony adduced during a two-day hearing, the Board found that while there could te instances of deviation from the guidance on sound levels set forth in NUREG-0654/IEMA REP 1 (NUREG-0654)," the sound levels are acceptable because of the short duration of the overage and the limited number of areas where building sound reflection would exceed guidance levels, De MassAO does not challenge this firyling, %c MassAO does, however, contest die Licensing Board's findings relative to the second issue of " timely" notification u in addressing this matter, the Board - as do we - first canvassed the regulatory requirements and guidance applicabic to apprising the public of an emergency event at a nuclear facility," 'In asselsing the adequacy of applicants' emergency warning system, of ' central concern is 10 C.F.R. 650.47(b)(5), which provides that an offsite i ' Apphcams' Eah. II.A at 12,4 see Tr.132 34. 10 Tr,144,147 IlTheresher, Uw en,argency bmndcast cornmunicatian is repeated twice. See Tr.151, u13P 89-17,29 NRC at 532 Tr. 255-86. The svorcian or the LBs unhmi l'y apphcanas also is discussed in AtAB-9R UNURIO004 NEMA aEP-1 (Rev.1), *Criieria far Preparatim and Evolumim of Radudosical Eanergency 1 aespasies Plans and Preparehens in supp<st of Nudear h>wer Mants"(Nov.1980), App. 3, at 3-s. 3' TAP 39-17,29 NRC si $426. ' "Bnef of the [MaasAo] in support of Iles Appeal of LEP.89-32 Qart 24,1990) a 87 92 [hereanafter MasaAo liner).

• TSP 8917,29 NaC at 527 29.

62 i i ..- ~

7 esnergency terponse plan must establish **means to provide early notification and E clear instruction to k populace within the plume exposure pathway [EPZ)." Also of mMar significance is the implementing pmviso of 10 C.F.R. Part 50, Appendix E, ilV.D.3, which requires that, subsequent to the time state and local government officials are notified of a situation that requires urgent action,"[t]hc design objective of k prompt public notification systern shall be to have the capability to essentially complete the initial notification of the public within the plume exposure pathway EPZ within about 15 minutes." Of final note are the applicable criteria in NUREO-0654, the emergency planning guidance directive issued jointly by the Commission and the Federal Emergency Management Agency (FEMA). Appendix 3 of NUREO-0654, which addresses specifically the means for providing prompt emergency warning to the public, stales in perunent part 6

8. Crheriafor Acceptance

t. Wuhin the plume caposure W4 the system shall provide an alerting signal and notificatkm d

by cummercial broadcast (e.g., I;BS) plus special systans such as [Natkmal Oceanogrei iic and Atmospheric Administratkm] radio....

2. %e minimum acceptable design objeaives for cwerage by the system are:

a) Capability for providing both an alen signal and an informational or instructional message to the pgulation on an area wide basis througiumn the 10 mile 17/, within 15 minutes. b) %e initial sunificatko system will assure direct coverera.a essentially 100% of the pogndation within 5 miles of the site. c) Special arrangemmts will be made to assure 100% coverage within 45 minutes d the pqedation who may run have received the initial notification within the entire plume exposure wl. In interpreting these various provisions, the Licensing Board declared that the focus of Appendix E, ilV.D.3, "on capability means to us a practical realization that the system must be able to comply with the regulations but that - no system can guarantec results regardicss of events" and that "[t]he use of the words ' essentially complete' and 'about' also indicates to us the appropriateness of some flexibility in interpretation."'8 The Board nonetheless found that this "ficxibility does not.,. permit us to exclude the notification of the public, through an EBS system message, from the clapsed time. Based on both the i regulations and the guidance, we interpret the regulation to include both alerting and notification of the public within the 'about 15 minutes' time period."" 1 Il Nt! RIG 06s4. App.3 at 3-3. 38 tJP s917. 29 NRC at s27 (arnphasis in origina4 - l'M (emphasis b Wna4 u i 63 i a } e

j i i Moreover, de Board rejected additional FEMA guidance indicating that agency would considn cornpliance with NUREG 0654, Appendix 3, Criterion B.2, had ten attained during emergency planning exercises if, within fifteen minutes of system acdvation, the siren signal is triggered and an instructional /mformational message is "on the air."# Instead, the Board interpreted the NUREO-0654 guidance "to require sequential alerting and notification since people will not know to remive the EBS notification until after they have heard the sirca alerting signal."n With this interpretation as its decisional basis, the 1.icensing Board went on to analyze each discrete element in the alerting and notification process, from Oc time of the decision to activate die VANS through the bmadcast of die EDS message it found these elements include: (1) the time to alert the VANS operators (" Alert" time); (2) the time for die VANS operators to get under way I (" Dispatch" time); (3) the transit time to the activation slia (" Route Transit" time); (4) de time to set up equipment at the activation site ("Sctup" time); (5) Oc period during which the sirens operate (" Siren Sounding" time); and (6) the time for the public to tune to an EDS station and receive verbal instructions ("1bning and Message" time).# Of these components, de Board concluded diat j only one, " Route Transit" time, is a variable with respect to individual activation sites; therefore, the remaining time elements were treated as a constant quantity j in determining the overall warning time." Regarding the final timing elements of " Siren Sounding" and " Tuning and Message," however, based upon its reading of the regulations and guidance j described above, the Board concluded that, "[u]ntil a person hears both the siren and the message, the person is not informed of the appropriate action to take "" In this light, the Board declared it appropriate to " add the lengt'l of time for the EBS message to all die previous times involved, so that those hearing the siren near the end of its sounding will have time to hear Oc EBS message."" On this basis, the Board found that at half of the sixteen siren activation sites, .t alert and notification times would be in excess of eighteen minutes and at threc ' of the seven sites within five mid of the facility, the times would be in excess of nireteca minutes." The Board held that "[u]nder all $c circumstances of this 1

1. EMA Guidance "

"- AN 1.

• LIMA Action to Quahfy Ale:S and Nemaraatian synisms Assina NUKEO.0fo4kT.MA RI.P.I and IT.MA-R1710"(Apr. 21.1987), Ausch. I at 14 thesennaher ITMA ouidsace Memnrenden AN.ll.

' MiAP.s917,29 NitC et 529. 8M M 529 33. ' DM si s33 (Tame ik 'the times assigned to de camstant tune elenants were:

• Alert" eine - 30 seconds; "thapsich" time - 50 seconds; " Setup" time - 1 ininuis; "Suen samding" tims - 3 minutes; "runing and Messaac"iinw - 3 minutes and $s seconds.16M

1. M et532.

U nut..

1. ee M st 535 (Tame 21 3

64 l t' l j. 1 o bg

r case, including the fact that conectned political jurisdictions can reduce alerting and nodfication times by making sites available for sirens permarendy mounted on poles " de " distribution" of times was " permissible" relative to the "about 15 minutes" standard in Appendix E and Oc "within 15 minutes" guidance of NUREO-0654, Apperxtix 3." On appeal, the MassAO challenges two aspects of die Licensing Board's findings. The first relates to the time required to turn on a radio and locate one of the EBS stations that is broadcasting the informational / instructional message. 'Ihe MassAO claims that there was no evidence in the record to support die Licensing Board's conclusion that twelve seconds, which were added to the "'Ibning and Message" component of the warning process, is an appropriate amount of time for the public to adjust a radio to one of the stations broadcasting emergency messages. Also in this regard, the MassAO contends that, subsequer.t to the Board's decision, the withdrawal of certain Massachusetts broadcasters from participation agreements acted to make the Board's analyses "not only unfounded but also unlikely" because it now will take longer for die public to - locate the radio stations that will be broadcasting the emergency messages." Second, the MassAO claims that, even if they are correct, the Board's findings on the alert and notification Omes are not adequate. Ile asserts that they do not meet the regulatory requirement of completion of initial nodfication "widiin . about 15 minutes" because at half the sites the times execc4 fifteen minutes by twenty percent or more." Ibrther, in an apparent reference to the Licensing Board's specificadon of certain issues for litigation," the MassAG maintains that the Board improperly relied upon the regulatory guidance in NUREG-0654, Appendix 3, Criterion B.2, to disdnguish between alert and nodfication requirements within five miles of the facility and requirements for the, area five to ten miles from the facility, making a " firm time limitation of fifteen minutes" applicabic only within a five-mile radius of Scabrook.M Marcover. - tie MassAO declares that, even if so limited, several of the siren activation sites serving the area within five miles of the facility fall to comply with the "15 minutes" criterion.""Ihc MassAO concludes that these various deficiencies 4 make it apparent that the Licensing Board's determination was based upon die application of an improper "best efforts" standard." Applicants view tic MassAO's appeal as centering on two findings by the Board: the time required to adjust a radio to one of the EBS stations and the [ "14 at 534. 3374s. " MassAo Bner at BlM

1. 14 at 9491.

".h IJiP 8917,29NHC et s22 Omuns AS3. 4). +' MMaanAo aner u 91. - # 14 u 9192. "ld at 92,. 65 .. ~ t ~ - -, e

legal standard adopted by de Board relating to the "15 minutes" standard?' As ^ to the first issue, while acknowledging there was no diftct testimony on the time required to tune a radio lo an EBS station, applicants insist dial de time utilized by the Board had to be adequate tocause it was more consen'ative (i.e., longer) than that put forth by the MassAO in his proposed fmdings regarding de total tuning and message capability time." On the second issue, applicants claim the expression "about 15 minutes" that is contained in the regulations is the controlling standard, rather than tne "within 15 minutes" language set forth in the NURE0454 guidance that die MassAO asserts should be adopted as de requirement for alert and notification timing?' Applicants argue that this is an attempt by de MassAO to expand the litigated issues to include alefting time for all of die EI2, and maintain that the MassAO is foreclosed from this course = by his failure to appeal an earlier Licensing Board summary disposition ruling limiting the scope of the alert and notification issue to the first five miles of the E12." II. The MassAO's challenges to the Licensing Board decision go to wiedict it reaches the proper conclusion relative to de time mandated under NRC regu-lations and guidance for activating the Seabrook warning system. Because the Board's interpretation of what timing elements are relevant to compliance with the regulations and NURE0454 guidance has a direct role in any determination about the adequacy of the applicants' warning system, we necessarily must ad-dress those findings.

• Apphcanes' Brief (Mar. s,1990) at 116. Cenansient whh our earher duernan Out the maff need ma duphcaie dines orgmenu er apphcants whh wha k agreed,in to imat um staff emeuned in de oppheants' assertican senative to de MamAo's appeal usanhna TSP 39-17. NRC staff Brier in keepanes to beervenor Appeals imu l AP~tt 32 and LEP-4917 (Mar. 21,1990) at 131.

" Aggecares' Bnef et 117 20. Apphcanas ame that the Board apparently made an asidunsLic arm in arriving at a time of 3:5s (mesesszeceds) for overall tuning and messaps tone, whids bi face should have been 3:48. 14 et 125. De Board, lumver, made another adatiun arm whh nopect to this tirns ; h daermined that these would be a thsee emonnd delay between the end d the thsee minuie suon somdag and es beginning d the neat messege on the basis that en inlual nessasse, sans alen, and langest _ ... ors would Isa Siu. The inhial annnuncemeeAme alast and mesesse tunes are 0.s3 and 2.38, far e tosal of 3.33. The deley can should be 33 ascends insamed et dirse seconds. De ensue *hesing tuna" of is seconds famd personary by the Basal, m 13P-4917,29 Mtc at sn (shhaugh 15 seconds needed to tune eseo, only 12 esomes added to " Tuning and Messapa" tune bessues er cuse-eeced delay befoie beginning er aussoas), and on sate 18 ascends as won,

would be assueble ln de 33+ecund delay notween Go time de seren siops and de tune the neat a=

esquence begina. As a consequence,if iming nme was, e slovent tinung facks, which we And k is not, m &pe pp. 68 69,71, them wmid be no need in these sumanstances to inchmie a&hnanal *baning ums

• as did 0.a t.ieansing Beard.

38 Aggihonnes' Bnef at 126 "14 at 12627, v I i e

i 6 ) A. In providing guidance on compliance with the requirement of section $0.47(b)(5) that an emergency plan include "means to provide early notification" to the population within the EPZ, NUREG-0654 specifies that a proper warning l system should consist of two separate components: (1) an " alerting signal" and (2)" notification by commercial broadcast (e.g., EBS)."" Both are necessary for a comprehensive warning system in that, as NUREO 0654 makes clear, "[al system which expects the recipient to turn on a radio receiver without being alerted by an acoustic alerting signal or some ouer manner is not acceptable."# j in the case of Scabrook, the VANS is intended to supply the " alerting signal" component, while tic radio station broadcast system utilized by applicants furnishes the *troadcast notification" component." As we have descrital previously, de Licensing Board's interpretation of de specific timing requirement of Appendix E, ilV.D.3, that a " prompt public notification system shall... have de capability to essentially complete the initial notification of the public within the,,. EPZ within about 15 minutes" l mandates that both the alert signal and EBS components of the Scabrook warning 1 system be completed within de allotted time frame. 'Ihis construction, however, j falls to acknowledge that de reference to "inillal notification" in Appendix E, IIV.D.3 (emphasis supplied), implies that this tiniing requirement does not necessarily encompass de totallry of the " notification" process, in fact, the Commission's explanation accompanying the final rule adopting Appendix E makes it apparent that this is indeed the case. 1 As initially proposed in 1979, the "15 minutes" requirement, which was to be contaired in a footnote to Appendix E, evidenced the Commission's expectation "that the capability will be provided to essentially complete alerting of the public within the... EPZ within 15 minutes...."*8 Thereafter, in de Statem,cnt of Consideration for the final rule, the Commission noted this condition had been " removed as a footnote and placed in the body of Appendix E."8 in addition, in responding to objections that there might never be an accident requiring fiftecti-minute notification, that the provision had the potential for significant financial impact, and that its technical basis was questionable, the Commission stated

1. NUREo-06s4, App. 3, at 3 3. section 50.d7(b)Q) also inandaies that the erarning sysism penvide the means fer

• clear bismutlan" to Wie public. %e *hmadcast runincanon".-,

also fulfuls this requimmes by surely 4g snesenges canassung protective octuw.betructions. Further regarams the escend campment NURiio-004 suggesu the unilasiian of *special symems audi as (National oceanic and Almterbene Administralian) reeo

• NURrG 004, App. 3, at 3-3, %s MasaAo has n,e nised any issue concerning the egylicanis' utilization er special maairicetian syenema.

1. NUR!io 064. App. 3, at 3 3. '

" Aldinush VANS sirens do have the cepeWiity to function as laudareakers and provide en informatimalAnsuuct-ionni meenage, App l'.sk II.A at 2c6, applzania have eschend their use for this purpnee, see IJIP-49 9,29 NRC 271,292 (1989). 8844 Fed. Res. 75.167,75,173 m.3 (1979) Do be codiried at 10 CJ.R. I%:t 50, App. E.,6 IV.D.3 m.3)(proposed

Dec.19,1979)(ems ases supplied). '

e ' "4s Fed. Reg $s,402,5s,407 09s0). 67 i \\f 9

4' that the Appendix E directive was oeing retained as wholly consistent with the rationale behind emergency planning to "prt, vide additional assurance for the

public protcetion even during such an unexpected event."*$ By way of additional explanation, the Commission declared

%Iel wide spectrum of potential accideras also refle<ts on the awrapriate use of the offsite teatikcation capability. The use of this notfication capability will range from immediate noti)ication of the public twitkin 15 minutes) to ILrlen to predes$gnated radio Ond te$eVUion stations, to the more likely events where there is substantial time available for the State and local governmental ofncials to make a judgment whether or not to activate the puMic notincation system. 9 Any accident involving severe fuel degradation or core melt that resuhs in signincent inventories of Gesian products in the containment would warrant immediate public notincatim 1 and consideration, based on the particular circumstances, of appropriate protective action because of the potential for leakage c( the containment building. In addition, the warning time available fw the public to take action may be substantiaDy less than the total time between the original initiating event and the time at which signincant radioactive releases take place. Spocyication of particular times as design objectives for notfication of ofsite authorities and the tablic are o means of ensuring that a system will be in place with the capability to notVy the public to seekfursker information by lirtening to predesignated radis or televnion stations. he Commission recognizes that not every individual would necessarily be reached by the actual operation of such a system under all crmditions of system use liowever, the Commission believes that provision of a general alerting system will signincantly improve the capability for taking protective actims in the event of an emergency." N i With this explication, Appendix E, ilV.D.3, was adopted in its present form, From this exposition, it is clear that, consistent with the proposed rule's use of the term "alcrting," the term " initial notification" as incorporated in the "about 15 minute" requirement in Appendix E was intended only to encompass com. piction of the signal that notifics the public that a radiological emergency exists so that they should take appropriate action to scck additional information (e.g., by tuning to a prescribed emergency broadcast station). *niis corresponds to the first of the two warning system components described above, i.e., the VANS alert sirens. : Complian.cc with the "about 15 minute" requirement therefore should be measured in this instance by adding the threc-minute " Siren Sound-ing" period to the " Alert," " Dispatch," " Setup," and " Route 'hansit" times. As a consequence, the time involved in tuning into and broadcasting the EBS l ' "' 16M.

• 'I6i.f. (enphasis supplied).

1 I = .l i

a 1C y.- message b not relevant to a determinatim of whether this regulatory directive has been fulfilled,* :

As illustrated in Tabic H (set forth in the Appendix to this opinion), when the threc-minute " Siren Sounding

• time is combined with the " Alert," " Dispatch,"

and " Setup" times of twenty o conds, fifty seconds, and one minute, respec-tively,*6 and the conservative winter " Route Transit" times set forth in Table A (also in the Appendix)," for all of the sixtkn siren activation sites within the ten-mile EPZ, the total time falls within the Appendix E requirement that the . initial notification be essentially complete "within about 15 minutes,"'8 "The MaasAo's concern shout the sfiect upon nonfwation timing of the low hatenefitup at the sudans odhand , n fer emergency messass broadcast thus also is irrelevant is any event, as we have esplained in ALAB-936, $2 g

NRC et 82-83, the sise of the agular suemico of these statiau is not signincent because we have been given no cause to Mlieve that the measures applicants have taker. to ensure that the public is swam of which stations

p. ids Seebenak emergency informatim are inadequais.

3 e segre noie 2L Ahhough we udhre the 20second dms far the *Alent" nmponent as sei forth by the J LJcensing Bosni, we harbor substantial doubt that h is a conect fgure. Ten seemds was the time allowed in the system design, Memorandum in sunnet of Applicants' Motion for summary Disposide of the (MassAo's) .l Amended Centention en Nau6cadan Systen (sept 17,1988), Af6 davit of oary 1 Catspano at 4 thereinafter Applicanis' Summary Disposidan Manarandurn), and was the time eccepted by the Based as en issue of fact that was not in depute, tJIP 849,29 NRC at 28184. In adding another 10 seemds, the Boera relied upon testunnny that was directed not at showing the design ehjecdve of the systern was incorrest, but rather at what miaht happen "if" the symem failed intally to opensis as designed. oiven the language of Apenas E, GIV.D.3, and NURIO0654, indicating that the regulatory focus should be cm each warning sysissn's

• design objssiive" rather than ha actual effecuveness in openeden, we 45 Fed. Reg. et 55 A07, absens e showing of a hkelihood of

. failure suf6cient to call into serious question the vshdity of apphcaras' design basis (melueng implanenta:km time) for dils " Alert" segment of the sysicun, the lleensing Board's lmpnsuion of the additional timo seems questionable. Naneshaloss,in light of the minuscule pened involved, the Board's actiim, even if armneous, does no mischief auf6cient to warrant tonection. " Ahhauch the IJcensing Board at fanh winner

• Route Transit" times in hs decisim, su IJIP.8917,29 NRC at 535 (rable 2), we have sepublished them as pan of Table A in the appendut to this opinion in order sq correci l

en additional mathematiest error made by the Board. The need for corrordon arises from the Based's sanewhat 4 - confusing analysis of the winter times. At one point, the Board declared that the conservedvs assumpdan was that winter weather would redre transit times by 25%,i.i at 534, when in fact in Yable 2 *e winner transit tinas , i - have been incuessed by 251 Nains this apparently inadvenons erme aside, the Board's determuution to impose -J a 25% incnase in transit tiru a Osisiest with ha cadar staianent that it accepted the applicants' pimition Jthat there wiD be a 25% reenctim in the speal factor during the winier months. Id. at 531. As applicanss' wiinass _ ) lidwant B. IJoherman emplained, a 25% reduction in sperd mathanatically cavens to a 33% inaease in transit ' daw. Applicanis' Sunenary Disposition Memorandum, Af6dsvit of Edwani R. IJoherman at 5. Akhmah dds l transk dine effect previously was acknowledged by the Board, we LBP-89-9. 29 NRC et 288 (Finding A.5 l), j the factar was not inrmparated inio the 6gures the Board utihaed in Table 2 in ha inimal decision, an ovmaight 1 I - we somedy/ Also whh agasd to winter

• Route Transit" times, we nose that these 6gures are inherently conservanve, h assin is not opposent to us, givai the emphasis in the seculations and guidance en " design objecdves," see segre scie 4 why the avoseen transit tinhas put forth by applicanas, whids are based tipen times far ad four assaans including -

winter, Appbcases' Dueet Testimony et 28. see act suf6cient for saassains the warning system's compliance w!th ' the Appendia E standsni (and NURE04654 guidance) Indeed, on the basis of those average 6 uses, which sino ' 3 v'

are est fenh in Table A, ni is even mee evidest that the ' nidal notincation" completion Gmes for the 16 sisse enest the segulatory requinenent of "within about 15 mimaa.*

9' As a soview of Table B makes apparent, only 6ve of da 16 tirne totals ans in oncess of 15 ininutes and of j f thase only one - that for siis 16.- entends mose than two oss beyond a quaner-hour. As ains I6's longer J 3 ' tune tasal 6nvo!ves cimenstances that, far n*. sons we detail me e fully below, aanction its comphance with ihn s guidance in NUkEo-0654 we is/rs soie 54, we conclude that. compons as well with the "about 15 minuies* , sequimnent of Agendix li ij ni y m 69 i i 6 y Ji l)t 1, F s(. + ( g 5 ,. i t i.. a h) Jn, tp g

fl

4 'f(' c A_ - H. As applicants point out, because Appendix E is the only regulatory ' timing requirement for warning systems, it - not the NUREO 0654 guidance - is the standard with which applicants' warning system must comply." Accordingly, the MassAO's assertion that the system cannot comply with the arguably rmire stringent "within 15 minutes" guidance of NUREO-0654 is of questionable significance." Nonetheless, after reviewing this matter as well, we conclude that contrary to the MassAO's insistence, the applicants' warning system also meets the NUREG-0654 guidelines. = As previously noted,' while NUREO-0654 indicates that a warning system - should include the "(c/apability for providing both an alert signal and an informational or instructional message... within 15 minutes," the regulatory requirement of Appendix E is that the system have "the capability to essentially complete the inillat notification of the public... within about 15 minutes." -(Emphases supplie.d) Although the Licensing Board apparently found no - significance in the difference in the highlighted language of these two provisions, . we conclude that this is an important distinction that must le taken into account in judging compliance with the NUREG-0654 guidance, As we have previously noted, the Licensing Board explicitly rejected FEMA's - additional guidance construing the language of NUREG-0654 as signifying only. that the alert signal must be activated and the EBS message must be on the air, instead, the Board mandated that both the signal and the message be completed. We fmd, however, that the difference in terminology between the requirement of Appendix E, 61V.D 3, for the capncity "to essentially complete" the initial notification, and the guidance in NUREG-0654 that there be the " capability for providing," 1.c., furnishing, the alert signal and the informational / instructional message to the public, supports the FEMA interpretation. In specifying that there need only be the " capacity for providing" the alert signal and message, as opposed to being " completed," we perceivci.a intent on the part of the drafters of NUREG 0654 to suggest that applicants need go beyond the activation of the strens and the EBS broadcast in' order to comply with its "within 15 minutes" guideline. Certainly, this interpretation makes good sense. As applicants suggested R 4 before the Licensing Board,sl the Board's interpretation requiring that both the 8 see, e s.,long Isinad (JsAsias

e. (Sharshern Nuclear ibwer station, Unh 1), ALAB-900,28 NRC 275,290, c

G( 4 evview decisaed. CLI 8811,28 NRC 6(D (1988). '#NUREG06s4 appesa to be move suingent than Appendia E, (IV.D.3, because k does aca cantain the qualiner - ' *sheut" round bi section IV.D.3, 'that the NUREG0654 guidance should be somewhat more demandes is not ' untoward as k sces to assure :, " whh the agulatory sequinrners. In this matance, it opphcanss' aivan signal (and EBs messass)is dauissed"whhin is minuise," which we End below is an that NUREG.0654 sugassia. - . k esame unhkely that the lenited period or tinw until that signal is concluded (i.e., Ovec to 6ve minutes, see spe s ness s2) could rail to conform whh the Appenha E sequi. that the signal be ssamuially complete,,, a ~ hhin about is mirness.". - w ' 88 see IJtP 8917. 29 NHC et s33., .r 70 1 ,t L ?. l' k i

r b ,1 I J siren and the EBS message be presented completely and sequentially penalizes 7 He use of lengthy, albeit possibly more instructive, messages. - As a result, l

the Boa-d's interpretation could have the deleterious effcct of. dissuading an applicant whose warning system may have extended activation times from

' proposing more prolonged messages, even if longer messages would otherwise better serve the public interest.8 We thus find appropriate the FEMA guidance ( requiring only that siren signal and EBS message activation begin "within 15 / minutes" in order to comply with NUREG-0654 guidance. And, as.with the L Appendix E requirement, the time involved in tuning into and broadcasting the. EBS messages is not relevant in assessing the warning system's adequacy. l Because the activation of the siren and the EBS occurs essentially simultanc-ously in this instance," in order to determine compliance with the NUREG-0654 L guidance figure of "within 15 minutes" it is necessary to include fifty five sec-E onds ofter the " Setup" to account for siren activation and the start of the EBS informational / instructional message after the initial announcements and the tonc alert signal. As is also illustrated in Table B (attached as part of the Appendix [ . to this decision), when this fifty five second time period is combined with the ? L " Alert," " Dispatch," " Setup," and corrected winter " Route 'lYansil" times, the 'l total time for the sixteen siren activation sites within the ten mile EPZ conforms with the NUREG-0654 guidance that a signal and a message be "provided... i. i: t t "The same thing wald be true fa the " siren sending" time, which the gudence indicaine should be fern '9 ' thras to 6w annmes long. NUREo 0654, App. 3, at 1-12. To conform to the IAwming Board's madmg of the .NUREG 0654 guidance, an applicant faced wuh a warning system timing prohnern no doubt snuld choose three ~ minutes as its aren acundag time avai if, in the cimunstances, something in saceas of that tone pened might be better,. .. "The testanony before the Board ' indicates that, when state officials have given permassion for warning system s? .,E activetien. apphcants' emergmey response connbnator will inform the EBs stations that they should begin. I; . bmedoasting a message at a spacined time. The coordinates than listens to the stations and, whm the EBS i - bmedcast begins,he or she immediately sends out the signet that pmmply activates the VANS sirens. Apphcants' ~ . Direct Testimony st 30t me Tr.135 38. iln a fast-breaking acciders, these is the possibihty that the aren activation signal could be given before AD. the VANS inda an at their activation sites. 66 that cimunstance, the activation signal is stored elocuorucally and, when the and reaches its destinatien and boom deployment takes the ains to a height of 25 feet, the siren ' wiu begin soundms. Tr. 87-88. Agt cants, however, have desipied the system ao that the first VANS inds to h ~ - leave endi staging ans are those sent to the most distars activatie sites served by that stagmg ones, Applicants' Dueet Tatimmy at 23 a meneurs the Ucensing Boent found (and we agree)is adequais to avoid or minimire j . any pesantial for delay, su tJIP 8917. 29 NRC et s31,- \\;

j 71 1

4 ll t i LY j 1 3 r s

~. e } [ li - within 15 fninutes,M 'Ihus, the MassAO's challenge to the applicants' emer-gency warning sysicm under NUREO-0654 likewise is without basis? . For the reasons set forth herein, the Licensing Iloard's determination in LBP. . 89-17,29 NRC 519 (1989), that the applicants' emergerley warning system for the Massachusetts portion of the Scabfook EPZ is in compilance with applicable c x regulalofy requirements and NUREO-0654 guidance is aBirmed. i mas Table B indicates, the only activadon siis that even arguably falls outside the NURE0454 guidance is siis 16, with a total time of 18:4& Because, in conformity with emergency planning sequienenia, ses long 14had lJghag Co. (Shoreham Nuclear Power station, Unit 1), C118712,26 NRC 383,395 (1987). the seabiod FIZ bandaries were deswa to conform generally to pohtical jurissctions rather than atric0y at a radius of 10 edles frun the facility, this activation siis is located betwom 10 and 11 miles from the facihty. Applicants

• I nh.

11.B at 2 9. In canplying with the eahertation in FEMA Ouidance Memorandum AN.1 that a warning system desip submittal should contain the rationale" for instances in which alert and notiacanon will be provided beyond 15 mimmes, FEMA Guidance Manorendum AN.1, Attadt I, at 13, appbcants' design ryon staies that the gengraphical area covered uniquely by the siren et si's 16 "has a manimum poplation of 401 located within an area of appronimately 3 square miles." Arrlicanis' link Il B st 2-9. This siren thus appean to cover the type of low poplation zone for which NUREO-0654 guidance permits snart and untincation to occur within 45 mimass, see &pe noss 55, and accordingly is in comphance with the NUREO guidelines. MWe also End without substance the Mas AO's ad&tional argument tha the Ucmams Board, by applying different timing standards dependma on the estance faen the facility, engaged in esses seguiring rovasal. Our cenclusim in this regard also anses fran our evaluation of the NUREO 0654 cnteria. The Canmission previously has indicated that, as alw guidance embo&ed in NUREOM54, Appendia 3. Cnteria B.2.b. and c., reneas, while a warning systavn should

• assure direct coveress of essentially 100% of the poplation

. within 5 rniles of the site," there is some Senihihty in terms of the percevuage of populatim coverage that snust be obsained by the warning system at a distance of more ihan five miles from the facihty. speciGeally, the Cumnusamn has declared that "[the lad of a spacined percentage from 5 to 10 nules is to anow plannas the ' floaibihty to design the most cosieffective systern to meet [the general objective of providing an alat signal and an informanana" H message in the 10rnile EPZ within is minutes)." Final Anie en Emingency P&ana'ng, Q180 40,12 NRC 636,638 (1980). This theme is reiterated in NURFO-0654, which declares that 1 ' "like lack of a specise design objective for a specined percent of the poplanon between 5 and 10 miles which musi receive the pnupt signal within 15 minutes is to allow flesibility in sysism desir." NUREG-0654, App.. 1 3, at 34 Also seivenisms this Afferentiation "bened a gaugraphic locatim within the emergency planning sons," FI;MA's Guidance U ^-- AN 1,in addressing quehAcation of alert and notincation syenems unda NUREC 0654, pamdes that *[apset and notiacation eyeisms must also be capable of providing an alen signal { and an Instructional message within 15 minuies heiwom 5 and to milse of the facility. liowever,in entremely J rural, low pervlatinn areas beyond 5 miles, up to 45 minutes may be allowed for providing an alert signal and an instructional message to ther. and transiera p9uladost" IEMA Guidance Memorandum AN-1. Attach. 1, et12 to 3. " As these vanous sousces make apparent, the geographic &sdnction anhadied in NUREG 0654, Appendi,3, Criteria B.2,b and c., affonis some lacitude in providag notincation to the memote areas in the portim e(the-FEZ that is 5 to 10 (or mese) miles away from the facihiy. h does not, however, sanction a warning >ystera = whose design fails to provide an alen eipal and an infornet" _<=1 mesesse to more pgunas 41 areas j throughet the entire FIZ, including the 5 to 10 mile partie, within 15 nanuiss. To the estas the licensing Board's decisim suggests the cumtary, it is incorrect. Neatheless, any misaprehension the Board nay have harbored in this negard has no practical signincance here because, as we have explained above, the tec ed before us does met supply a basis for emcluding t>tt the alert signal and broadcast message supghd by the applicants' warning sysiren throughet the EPZ fails to comply with the timing and coverage guidelines ad fonh i e NUREO-

0654, Appenibs 3.

72. s ll q l 1 o / + e t 4

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It la so ORDERED. FOR TIIE APPEAL BOARD - p d Barbsra A. Tompkins Secretary to the 1 i Appeal Doard [ -; o , }.l l1 APPENDIX f TABLE A 1 \\ . Transit Times" 5 i t, Average hansit - Winter Transit Location - Time (Min:sec)" - Time (Min:sec) y, .l', 8:37-- 11:28 '2' '5:03 6:43 -3 6:29 8:37 4L 0:00' 0:00 ?5 - 0:00. 0:00 6- ': 3:09 4:11 4;,, o7! 3:42- . 4:55 - 1 V8y .7:13-9:36 9 '- ,7:17 ' 9:41 '10 y -7:18 - 9:43 j y,, 11:

7

32 -

10:01 1 L12a L 8:25 - 11:11 13.

8:03 10:42:

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$7 Avenge Tensis Tune is based on reesswal times for aD four seasons. leid

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i, :i e i S i 4 4 ).; U 3 --$ TABLEH" o Total Times Relative to' Compliance lwith 10 C,F.R. Part 50, App. E, IIV.D.3 ' and NUREG 0654, App. 3 Time Under ' Time Under NUREG 0654 ' Location App. E (Min:sec)" (Min:sec)* 1 16:38 14:33 2 11:53 9:48 3 13:47-11:42 4: 5:10 3:05 -5 5:10 3:05 6 9:21 7:16 i 7. 10:05 8:00 j ,8 -14:46 12:41 1 g 9-14:51 12:46 F 10 14:53 12:48 ,1 11 15:11 13:06 12 16:21:- 14:16 a 13. 15:52 13:47 d 14 - 6:23 4:18 h

15.

9:11 7:06 l R 16-20:45- .18:40 I d M Computal for each she by adding "Alen* time (0.20) "Dupad" time (030), " Setup" time (1530), "Wumer ') Transit" me (m Table A), and "Sinn Soundmg" tinw Q,00). See wre p. 69. f f M Campu'ed for endt siis by adding " Alan" tirne (0.20), " Duped" tinw (0$0), "Seear" time (1:00),

• Winter j

Transh" tune (m Table A), and tinw for htitial announcements and tone slut sianal(055). See wrs 39 7172. 1 3 ,\\ n A ) ,a g f.' G i,. (' e i 'Vr,, i'@4 1 74 c.1.c - .g, i ', ([ g LJ I .c i a

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~.. -. q m. 1' 3 ..y5 @G ' < 7 , ![ W Cite as 32 NRC 75 (1990)' ALAB-936 UNITED STATES OF AMERICA ! :., ~ ~ NUCLEAR REGULATORY COMMISSION - ,o q,

6.,

ATOMIC SAFETY AND UCENSING APPEAL BOARD Administrative Judges: ,..,i s t G. Paul Bollwerk, Ill, Chairman Alan S. Rosenthal Howard A.Wilber 4 l-in the Matter of Docket Nos. 50 443-OL l 50-4444L j. (Offsite Emergency 1 Planning issues) a f,- \\ M PUBLIC SERVICE COMPANY OF

h. '

s ,(Seebuk Station, Units 1 NEW HAMPSHIRE, et al. L;t August 20,1990 "E . and 2) i 1 l . 'Ihe Appeal Board affirms'the Licensing Boant's ' decision in LBP 90-1, 31 7.'

NRC 19'(1990), denying intervenors' motion to reopen the record and admit a new contention relative to the adequacy of the emergency. broadcast system for-l4 y the Seabrook facility..

' RULES OF PRACTICE: REOPENING OF RECORD ; r . Each of the three criteria' set forth in 10 C.F.R. 62.734(a) for reopening of [: 3J ~ 1the record must be met before a reopening motion is granted. 9 hi 2 5. 3 l 4 F Y I y 4 ^

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I' j o l l = ,# 7,' ~ RULES OF PRACTICE: REOPENING OF RECORD l If a reopening motion raises a contention not previously in controversy, it must also satisfy the requirements for the admission of untimely contentions set l forth in 10 C.F.R. 5 2.714(a)(1)(i)-(v). ~ 10 C.F.R. 5 2.734(d). y l J EMERGENCY PLANNINC: PUllLIC NOTIFICATION l EMERGENCY PLAN (S): CONTENT (NOTIFICATION; PUBLIC l INFORMATION) 'Ihc Commission's regulations require that emergency response plans " pro-vide early notification and clear instruction to the populace within the plume exposure pathway Emergency Planning Zone." 10 C.F.R. 5 50.47(b)(5). ~ 1J EMERGENCY PLANNING: PUBLIC NOTIFICATION EMERGENCY PLAN (S): CONTENT (NOTIFICATION PUBLIC INFORMATION); NOTIFICATION REQUIREMENTS i Applicants.for a full power license are expected to " establish a system for disseminating to the public appropriate information... including the ' appropriate notification to appropriate Iroadcast media, c.g., the Emergency Broadcast System (EBS)." NUREG-0654/ FEMA-REP 1 (Rev.1), " Criteria for j ' Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" (Nov,1990), Criterion II.E.5. 1 EMERGENCY PLANNING: PUllLIC NOTIFICATION L' EMERGENCY PLAN (S): CONTENT (NOTIFICATION; PUBLIC INFORMATION); NOTIFICATION REQUIREMENTS L Resort to an EBS is one recognized method of providmg appropnate no-tification. An EBS customarily is a network of radio and television stations voluntarily organized, in accordance with and subject to the regulations of the e Federal Communications Commission, to broadcast emergency messages to the public in the event of an emergency.,Sce 47 C.F.R,- 66 73.901.,962. APPEALS IlOARD(S): ADVISORY OPINIONS ' ~ e . The fact that a decision is issued as an advisory opinion does not necessarily - !n preclude reliance on its icasoning. - 76 t 1 b' I -'lA a 4 i i (Ik .h [.'_ s 't 3 W 3;; , { .}

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t l w, ? EMERGENCY PLANNING: PUBLIC NOTIFICATION s' . EMERGENCY PLAN (S): CONTENT (NOTIFICATION; PUBLIC 7 ll[ INFORMATION); NOTIFICATION REQUIREMENTS

It may be assumed that in the absence of compelling contrary evidence, no participant in a state-established EBS network will refuse to discharge its communication function in a timely manner upon the occurrence of a

. ' genuine emergency requiring public notification. See Long Island Lighting Co. (Shorcham Nuclear Power Stadon, Unit 1), ALAB 911,29 NRC 247,254-55 i (1989).' EMERGENCY PLANNING: STATE AND LOCAL GOVERNMENT 1 (PARTICIPATION) EMERGENCY PLAN (S): STATE AND LOCAL GOVERNMENT PLANS (EFFECT OF ABSENCE); UTILITY PLAN AS SUBSTITUTE .j Ibr the situadon in which there is a nonparticipating state or local government, the Commission has established a "best efforts presumption." Specifically, it assumes that there will bc "some 'best effort' State and County response in the event of an accident... that... would utilize [the utility's] plan as the best source for emergency planning information and options." Shoreham, CL1-86 ' 13,24 NRC 22,31 (1986). See also 10 C.F.R. 6 50.47(c)(1)(ill); Massachusetts - 1 lv. United States,856 F.2d 378 (1st Cir.1988). - RULES OF PRACTICE: REOPENING OF RECORD . Ihc sponsors of a reopening modon have the burden of demonstrating that the c* - criteria for the grant of the requested relief have been satisfied. See Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 as 't) CL1-86-7, m 23 NRC 233,235 (1986), g'd sub ncm. Ohio v. NRC, 814. F.2d 258 (6th Cir, if ,1987); Loulslana Powr & Light Co. (Waterford Steam Electric Station,- Unit 3), CL1-86-1, 23 NRC 1, 5, g'd sub nom. Oystershell Alliance v. NRC, 800 . F.2a 1201 (D.C. Cir.1986). Y . RULES OF PRACTICE: - REOPENING OF RECORD 1 If a Boaal finds that a reopening modon does not address a significant safety : i h.; ~. or environmental issue, it need not decide whether the motion was timely. Sec l i 'k 10 C.F.R. 6 2.734(a).~ m sy x y E, N f 'f*f i e g g ')_ ,h! h f 3 l4 8 4 i fi ,M{ I ( 'k-4 l M -M t s j P %.4 m

l ~ ADJUDICATORY BOARDS: BIAS i A party's claim of bias may not rest merely upon disenchantment with f prior Board rulings. See, e.g., Northern Indiana Public Service Co. (Bailly t . Generating Station, Nuclear 1), ALAB 224, 8 AEC 244, 246-48 (1974).- See also Seabrook, ALAB 748,18 NRC 1184 (1983); ALAB 749,18 NRC 1195 _(1983); AIAB-751,18 NRC 1313 (1983), i APPEARANCES Leslie B. Greer, Boston, Massachusetts, Robert A. Backus, Manchester, New llampshire, and Diane Curran, Washington, D.C., for the intervenors, Attorney General of Massachusetts, Scacoast Anti-Pollution League, and i J New England Coalition on Nuclear Pollution. b. i Thomas G. Dignan, Jr., George H.- Lewald, Jeffrey P. 'IYout, and Jay Bradford Smith, Boston, Massachusetts, for the applicants, Public Service Company of New Hampshire, et al. ' Lisa B, Clark for the Nuclear Regulatory Commission staff. DECISION i Before us in this operating license proceeding involving the Scabrook nyclear - power facility is a joint appeal by.intervenors Massachusetts Attorney General, - Scacc.tst Anti Pollution League, and New England Coalition on Nuclear Pol- , lution from LBP-90-1.1 In that decision, the Licensing Board denied the inter. = venors' November 9,1989 motion (as supplemented on November '22) to reopen - the record to admit a new contention addressed to the adequacy of one aspect of the facility's emergency response planning. Under the Commission's Rules of Practice,'a motion to reopen a closed 4 - record to consider additional evidence may not be granted unicas, among other ; things,'it satistics each of the following criteria:' -j 'o (1) 'Ihe motion must be timely, except that an exceptionally grave issue may be ' considesed in the discretion of the presiding ofGcer even if untimely presented. A' (2) The motion must address a signiGcant safety or environmental issue. c Y o p a g

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(3) %c motion must oemonstrate that a materially ddfercrd result would be or would 1.svc been likely had die newly proffen

d evidence been considered initially?

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ln' this instance, the Licensing Board rested its denial of the motion on its fmding that noic of dese criteria had been met. Being persuaded that, at the very least,. the intervenors failed to establish the safety significance of the rew issue they . seck to present, we affirm the denial. 7

A,1. The controversy at'bar is rooted in the Commission's regulations requiring emergency response plans for nuclear power reactors to " provide early nonfication and cicar instruction to the populace within the plume exposure pathway Emergency Planning Zonc [(EPZ)]."3 Accordingly, applicants for a i full. power license are expected to " establish a system for disseminating to the public appropriate information.... including the appropriate notification to

. appropriate broadcast media, e.g., the Emergency Broadcast System (EBS),"' . With respect to the time in which such notification should occur, the governing .-regu a on s a es that'"[t]hc design objective of [this] sys:cm shall be to have U l ti tt ' de capability to essentially complete the initial notification of the public within the.'. :. EPZ within about 15 minutes."5 - ' As thus seen, resort to an EBS is one recognized method of providing appro-priate public notification. Customarily, an EBS is a netvork of radio and tele- ' vision stations voluntarily organized, in accordance with and subject to the reg-ulations of the Federal Communications' Commission, tc broadcast emergency

messages to the public in the event of an emergency.' C he Commonwealth of m

2 l 10 CSA $ 2.734(al subeection (d) provides that, if (as bere) 1:

• relates to a caneersion not prevwusly in 3 '

- caramversy annans the panies" the enatum umst also satisfy the. - - for the admissba af untimely comendes est fonh in 10 CSA 42.714(aXIXI)(v)- 310 CSA iM47(b)(5)/ See also 10 CSA ha 50, App. E., IIV.D.

• Die Canunissim and the Federal-Ernersecy Managemet Agency (FEMA) jointly issued guidsace for ful611ing the Canunission's emergency planrung requiremmes.: See NUREGM54/IEMA. REP 1 (Rev.1), "Crisens for Preparation and Ewiuation of stadiological Ernergency n==p-Plans and Pumpersdness in support of Nuclear hwar Plants". (Nov,1980).

(* thereinaher NUREG0654). NEC and FEMA also developed a supplernent w NUREG-0654 covering those. situations in which stats and/or local governments do not panicipate in energency plansang. NUREo.0654/ FEMA. REP 1 (Rev.1, supp6 I), *Cntens for Piepassion and Evaluation of Radiological Feiersency Repense Plana and Prepavedness in suppon et Nuclear Power Pleas: Chitaria for Utility offaire Planning and 7,-_ - (Final ' Reputy* (sept 1988) (hereinarier NUREG 0654, supp.1) Both NURiiG 0654 and its _. carry over the r terma eenowning notincetion to the public that are famid in 10 CSA I R47(bXs) See NUREo&54, Cntenen IIA at 43; NUREo-0654, Suw.1, Criisdon IIA at i1.' "NUREG 0654, supp.1. Crismian HAs. Becsuas the Commonwashh of hE-w is not panicipating in i i r muergency plassung, we sofar to ens anpplemera to NUREo-0654, rather than to the original docunues, where .a etsk See, e.g., tJIP-39 32,30 NRC 375,381 (1989), spreste pensEag. -. i 10 CIA Past 50, App U, l!V.D.3. See also NUREOM54, which staiss that the " minimum acceptable e desip chjectives for coversas by the systen [ include the clapability for provuhng both an alert signal and an. ~ .s - Infonnational er instestimial enessage to the population on an aves wies baas threushout the 10 mile EpL within 15 snimmes." NUREo.0654, App. 3, at 34 - Joe 47 CEA 6(73.904 962. 1 .q d [ j j 'g, .i

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p i b W * ? _.h r [I -<{, s a 1 P i W, l) Q r r h~ e Ww +y ; lJ fy ; ?, ?? i 3-r p m Rh,3, y i yvi# J s

L .t i '^. Massachusetts has such' a network in placc.' In the event of a radiological emergency at Scabrook, it can le activated through direct communication frorn the Governor of Massachusetts, the Massachusetts Civil Defense Agency, or other designated state officials to the " originating primary relay" station, WROR- -t FM in Boston. That station would be responsible for passing the messages on to the various area Common Program Control (CPC) stations, cach of 'which, in turn, would undertake to disseminate the messages to all participating radio stations within its area. Alternatively, the official (s) activatia.g the EBS might communicate direcdy with WCOY, the particular CPC station (located in Lawrence, Massachusetts) to which the local radio stations providing broadcast . signal coverage in the Massachusetts portion of the EPZ are tuned.' Quite apart from the general obligations it assumed when it became a partic-ipant in the Massachusetts statewide EBS, WCGY catered into an independent agreement with the applicants. 'Ihat agreement was reflected in a September 14, 1987 letter signed by an official of the lead applicant and the WCOY station manager, in essence, WCGY assumed (Se responsibility of activating the state EBS for the Massachusetts portion of the Scabrook EPZ, should it be requested - to do so by the applicants' Offsite Response Director assigned 10 carry out the Scabrook Plan for Massachusetts Communitics (SPMC)- the emergency response plan devised by the applicants in.the absence of a Commonwealth-sponsored plan.' Prior to this agreement with WCGY, the applicants entered into a separate compact with two " sister stations": WLYT-FM and WilAV-AM, located in llaverhill, Massachusetts. In an August 12, 1987 letter to an official of the - lead applicant, those stadons committed themselves "to provide cmergency [ information to the general public in the event of an emergency condition pt the Seabn>ok Station," 'Ib this end, the stations proposed to develop an " emergency communication link [with the applicants' cmcrgency response organizadon] so 3 that in the event of any emergency [the stadons] can confirm [the] accuracy of Llformadon and minimize the tirne, necessary to alert the public to the circumstances at issue,"5 1 . ' 7 see Intervenars' Motian to Admit a Lats 1%d Caserulon and Rayen the Recel an the sPMC Based Upon the withdawel of the Massachuseus F.B.s. Network and wCoY (Nov. 9,1989), AnaA D, Enh.1, at 2, es, App. y -I at 12 (Massahusetts [EBs] operational Plan (Rev. May 1988))[ hereinafter Interveners' Reopening Motion). see M, Anach. D (Af6 davit of Robert Boulay Reganhng Voiding of the EHs lauers of Agroanan (Nov. 9, 1989)); M, Anadt. D, Exh.1, at 24,6, App.1, at 1 1,.6 (Massachussua (EDs] opentional Plan). 'see kl., Attadi. F Enh. A (sept. 14, 1987 tsuer or Assement between Radio statim WCoY and New llampshin Ymikae's otraise Response ortenizatian).- his encianent is also an auschment to Eshibit lu er ' Apphcants' Answer to Innervenors' Monum to Admit e I. ate Illed Consention and Reepen the Record Baed 3 opat the withdrawal er the Massachuseus F.B.s. Network and wCoY (Now. 15,1989)[heminaher Applicants' Answer]. In adhtian, the Imuer of Agreenant is fand in Appendia C or the sesbrouk Plan im Massachusens Communities (Rev. O, Amend. 6) et C46 in 47, he sPMC wea admined as Applicants' Exhibit 42. L Appheants' Answer. Enh. I, AnaA B (Aug. 12,19871must from William A. oauld to FAward A. Brown). ] M

his lauer is also found ht Appendia C of the sPMC see sPMC at C44 to 45.

l f 1 i a 1 M

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2. The development that triggered the reopening motion at bar was an October 20,1989 letter from the WCOY station manager to an official of the

- lead applicant, repudiating the September 14,1987 Letter of Agreement on the . ground that the applicants had failed to supply certain equipment that allegedly - had been promised." According to the motion, without the cooperation of ' WCOY, the applicants could not acdvate satisfactorily the Massachusetts EBS, . with the further consequence that they would be unable to provide adequate public nourication of an emergency. As noted above, the Licensing Board denied the motion oil the ground that it met none of die s}wcified reopening criteria. On the matter of lack 'of safety significance, the Board relied in part upon our Shoreham opinion

of last year,n which the Licensing Board took to stand for the proposition dmt the existence of a state EDS is, in and of itself, enough to presume c

adequate coverage for noufication purposes, regardless of the presence or absence of a formal agreement." In this connection, the Board pointed to the intervenors' acknowledgment dmt, even without the agreement between WCOY and applicants, a direct communication from the Governor of Massachusetts or his or her delegate to either that station or WROR could activate the system." B. Nothing presented to us by the intervenors suggests that the Licensing ' Board erred in concluding that the reopening motion falls to raise a significant safety issuc. The nub of their appellate position is that, as a result of WCOY's repudiation of the Letter of Agreement, the state EDS will be unable to fulfill the regulatory design objective of completing the initial notification of die public in the EPZ "within about 15 minutes."u Ibr a variety of reasons, that assertion falls wide of the mark. To begin with, the fact that WCOY no longer has a separate agreement with a' the applicants does not perforce mean that it will not carry out its assigned EBS' role should it be called upon to do so in the event of a radiological emergency . at Scabrook. On this score, we adhere to our view in Shoreham:.in a nutshell, we are prepared to assume, in'the absence (a3 here) of compelling contrary evidence, that no participant in a state-established EBS network will refuse to discharge its communication function in a timely manner upon the occurrence of o 9 .a genuinc emergency requiring public notification - whether that emergency 1 " See laservennes' Raopening Wien. Attach. F., Enh. C (oct. 20,1989 teuer tiern John F. Bassett to B. Ik% ' 1r.).1his lauer is also attached to Exhihit 1H or. Applicants' Answer. Although of no passent significance, the dispee the occuracy of the suegatim concerning the equienent.'see Appbcants' Answer at 8. - a I lang Mead tirkong Co. (shareham Nuclest Power station, Unit 1), AI.AB-911,29 NRC 347 (1989) 1he fact that ALAB 9tl was issued as an sJvisory opniem did not preclude the Licensing Board's rehance en iu renarsung to the eatent hen applicable. c 3 D see t.BP.90-1. s! NRC at :ri.29. t H3ee 3d at 29 A n.44 ' U i 3ee supes p,79/ -81 x, . ] 9 i 7,1 ' ( W 6 ~

i t 3 V \\ u

arises at a nuclear pow"r facility or elsewhere, Stated otherwise, we see a

- crucial difference betwccl.. on the one hand, WCGY's change of heart respecting ~ its willingness to asssume spr.ial functions at the applicants' behest and, on the other hand, that station's refus I to perform in time of emergency a role that 11 accepted when it became a part Of the overall state EBS network. 'n that connection, such a refusal would fly in the teeth of the directive of cither the Governor or the other state official who would activate the network in his or her stead.81 1 In these circumstances, as part of their endeavor to mcct the reopening 3 criteria, it was the intervenors' obligation to establish that the fificen. minute - design objective could not be met if WCOY received the public notification - message ffom WROR or a state official (as called for by the state EBS plan), rather than directly from the applicants' Offsite Response Director (as - contemplated by the now vitiated letter of agreement), This obligation clearly -was not met. Even had it been, however, the intervenors' position would not bc -l improved. - There is no claim that stations WLYT and WilAV, with which the applicants continue to have an agreement, are incapable of providing radio broadcast i coverage throughout the Massachusetts portion of the EI'I Morcover, in the context of their reopening motion, the intervenors at least implicitly concede that those stations could supply the messages in conformity with the fiftecn-minute design objective,l' Tb be sure, as intervenors stress, the stations do . not ordinarily enjoy a, large audience, it is not important, however, how . cxtensive their established listenership might be. Rather, of crucial sigmficance ' 1834E ALAB-911,29 NRC at 254 55. ' 17Tw dw situation in which then is a nonp nicipating aute or local savarament dw Canmission has established "but efforts presumptim" speciGcally, it assurnes that there will be "some 'best effet' sute and County respeas in the event of an accident,, that,,, would utilize bhe utility's] plan as the but naurw fa emergency planung hsformation and optians." 3Aareams. CUhl3,24 NRC 22,31 (1986). See also 10 C.F.lt ' 4 5047(c)(1)(lii), which states that "the NRC will recognize the seality that in an actual emergency, aute and local goveranent of6cials will saescise their best effons to protect the hashh and safety of the public." (rhis regulaisen was esplicidy upheld in Massac4 unas v. Uniand saares,856 F.2d 378 Ost Cir.1988)).- oivon this , pasumpion, we cannet dnuht that such a drective would be farthcoming fnun the Conenenweahh in the event of an emergency. For ressans akin to these applicable to wCoY, we are similarly conndent that the directive of a state of6cial would be honomd by the enttre state EBs. This is so notwithstan&ng the attempt by the EBs Co Chairman to impudiate e special agreement dut the EBs had entered into with the applicants allowing them to seek EBs t activation in the event of. seabank energsney. See k. ' Reapening Motim, Atuch. F. Exh. B (oct 13. - .s,* 1989 Lamer finm Dousias E Rome to R. Boyd, Jr.). 18The spesars of a reapaung inetion have the bunion of dammetrating that the crinaris for the geant of the ' aquested ishof have been satished. See Clawised Eincarie flesiumanag Co. (Perry Nuclear Puner Plant Units I sed 2), CU.861,23 NRC 233,235 (1966), ag'd sis 6 nasi. 04de v. NAC, t14 F.2d 258 (6th Cir.1987); Loensions Power a liger Co. (Warford steam Electric sutien, Unit 3), CU41,23 NRC 1,5, ad'd asb nosi. Opreer:Arti ? Alliance v. NAC,800 F.2d 1201 (D.C. Cir.1986). - o I'3ee Interveers' brief in support of 1 heir Appeal of 13P 901 (Fets 16,1990) at 31 [hensaaner Inservenars' Brief). The y==i-i of timeliness of the applicants' emergency notincation system for the Massachuseus partion of de EPZ is me we dost with direedy in ALAB-935,32 NRC $7, issued this date. ' i N ft - 82, 9 l} t t p: b(,.$

• n T

+ t i r t c 't s NN u

7 y ./4, W , y + n sgs q T is.whether measurce have been taken to prompt persons within the EPZ to tune in those starsons when abried to the emergency (by strens or otherwise). Tb this end, the SPMC requires that information on emergency procedures, j including which stations will carry emergency information, be provided to the public from sources such as calendars, fliers, and pamphlets," This information !4 ' is to be, updated to keep the public abreast of relevant changes in emergency procedures,88.We have been given no cause to conclude that these requirements cither will not be met or will not serve their intended purpose," 1hc short of the matter therefore is that the intervenors have simply failed in their reopening request to demonstrate that the repudiation of the WCGY letter g of agreement puts the accomplishment of the regulatory objective of prompt public notification in substantial peril." That being so, the reopening motion }

was correctly denied.2* -

I h LDP-901,31 NRC 19 (1990), is offermed, 1 lt is so ORDERED. L FOR THE APPEAL BOARD i: Barbara A.Tompkins 4 Secretary to the Appeal Board .s 1-e t n

1. sPMC at 3,71 to 4.

y 21See SPMC 173 '... m

1. a etis sagant, at cral argunuma syclicarns' counast assured us that the saisting irtformational materials 'weie 4

t 'i to se6ect the withdsewel d WCoY fuen the sole it assumed under its special agreement. App, Tr,15151 Q ma a-6_, is.aa ed whe.e o, n.t.e -im de.ign.%vo in,a.es s,igid,es,d-i. s - a l1 ' t gunstion we addrese in AIAB-935.  ? f oivan our eenclusian en vis lack er safety signi6cance, manifestly the ihird seopening criterien (see sigwe p.. gf n 79) is ont estis6ed. We need not and do eat decids whether the moticut to recyon was timely. 9 - We een dispee sumsneruy er hearvmoss' coraplaint Ontervenors' Beier at 6) that dus pecess sequised that the 16aat Bossd address the Eh5 issue esised by thstr renpaning motion before senditien or the Board's detssian. kly. s a in IAP 89-32,30 NRC 375, authorians the ismaaneo er a tull-power operating license, whether er not such a i r due peccess right exists, our decinan that the metian failed to estisfy the Cornrnssaan's senperuns crinssia makes 4 + the assened ertu en ths IJeansing Based's part harmless at mast,.. _ Ibr ins part, interveners' related allegations orI.lcunning Board bias ignare the seuled principle that claims of. , that nasure may not set (as appersmaly dass the claim here) enerely opan disenchantment wuh prior Board ruimes.

Jes, e.g.. #erehern ladiene Ps6sc Servece Co. (Bailly oenerating Sistiun, Nucisse.1), AIAB.234,8 AEC 244 -

? 24648 (IFM). See else,in the quement poosading. AIAB.748,18 NRC 1884 0983); ALAB 749,18 NRC 1195 y (1983); AIAB 751,18 NRC 1313 0983)). - ' s b s ~f 1k-' T s - y l=1 . o 3 u 'Q:4 4 4 :. O'l i,H c o> .k. 1 + 3 h '(,k.', -*'l ,[( s3 y 4 s 34, /\\ , bf n',N '; n q. O bl, ja > by Y e ye x 1 o 1

I ~ E e a Atomic Safety and Licensing Boards issuances I ATOMIC SAFETY AND UCENSING BOARD PANEL h:' B. Paul Cotter,* Chief Administrative Judge Q Robert M. Lazo,* Deputy Chief Administrative Judge (Executive) Frederick J. Shon.* Deputy Chief Administrative Judge (Technical). Members Dr George C. Anderson Dr Cadet H. Hand Jr. Cr Emmeth A. Luebke Charles Bechhoefer* Dr. Jerry Harbour

• Dr Kenneth A. McCoHom Peter B. Bioch*

Dr. David L. Hetrick Morton B Margules* .9.; Glenn O. Brght Emmet E. Hdi Gary L. Mdholhn ,h Dr A. Dixon Calhhan Dr. Frank F Hooper Marshall E. Mdler James H. Carpenter

• Helen F. Hoyt*

Dr Oscar H. Paris' Dr Rchard F. Cole

• Enzabeth B. Johnson Dr David R. Schenk Dr George A. Ferguson Dr. Waher H. Jorden Ivan W. Smith
• 2 Dr Harry Foreman Dt Michael A. Kirk-Duggen Dr. Martin J. Steindler M

Dr. Rchard E Foster Dr Jeny R.10lne* Seymour Wenner y John H Frye lit

• Dr. James C. Larnb 111 Sheldon J. Wolfe w

James R Gioason Gustavo A. Unenberger* l I + gw-. w I l

p i f. 7 Cite as 32 NRC 85 (1990).. LBP-90-28 UNITED STATES OF AMERICA' NUCLEAR REGULATORY COMMISSION . ATOMIC SAFETY AND LICENSING BOARD i Before Administrative Judges: 4 .-i Charles Bechhoefer, Chairman l Dr. Jerry R. Kline Gustave A. Linenberger, Jr. ,7 in the Matters of . ROBERT L. DICKHERBER Docket No. 55-5043 SC (ASLBP No. 90 810-01 SC) (EA 90-031) _ (Senior Operator License m-Limited to Fuel Handling, No. SOP 2365-8) .j - COMMONWEALTH EDtSON COMPANY. Docket Nos. 50 254 OM j -'(Quad Cities Nuclear Power - 50 265-OM

8tation) ~

(ASLBP No. 90 80942 OM) { i (EA 90432) s (Facility Operating License Nos. DPR 29, DPR-30) : i

4 i August 1,1990

y .u..: N - Ihc Licensing Board approves a Settlement Agreement between the parties. and terminates two enforcement proceedings.' l ~ l I i i k t i 3 7 >~8 q ,;.i. 1 3)- m as - a (, 4 a c-( i 1 3 ) 4 s s. c. 4! f j l V h l Fj 4L '3 e ti. + i i, fI i {. 4" g.e m e

7__ W li l7 ,i s? o; N. h 4 ,; M ' RULES OF PRACTICE: SE'ITLEMENI' OF CONTESTED PROCEEDINGS - e , m .1 Where a Notice of }{ caring has been issued, a Licensing Board is authorized '^ ' to approve termination of an enforcement proceeding on the basis of a settlement Lagreement, "according due weight to the position of the staff." 10 C.F.R. I 2.203. MEMORANDUM AND ORDER +. $~ 9 (Approving Settlement Agreement and Terminating Proceedings) -l 1 These proceedings involve two enforcement orders issued by the NRC Staff, - both emanating from an incident occurring on October 17,1989, during refueling l operations at the _ Quad Cities Nuclear Power Plant, involving Mr, Robert L Dickherber, holder of a Senior Operator License Limited to Puel llandling. Mr. ( Dickherber allegedly directed a refueling crew to perform an unauthorized fuel i

manipulation to correct a fuel load error. Moreover, control room personnel

-l g N allegedly were not notined of the fuel manipulation, as required by governing i 4 procedures. As a result, the NRC Staff issued the two enforcement orders: '(1) 'L, an order suspending Mr. Dickherber's license and ordering him to show cause Ls

why his license should'not be revoked; and (2) an order to modify the Quad

[', i Cities Nuclear Plant facility license to prohibit Mr. Dickherber from participating 4 ~ in "any licensed activity." 55 Fed. Reg. 7798,7797 (Mar,5,1990). Because we found Mr. Dickherber to be adversely affected by both orders, j j .(' "we admitted him to both proceedings by our Memorandum and Order dated May 1 L E4,' 1990 (unpublished).1 On May 4,1990, we also issued a Notice of licaring [i.1 9s for both proceedings.' 55 Fed. Reg. 19,684 85 (May 10,1990). . On ' April 13, 1990, Mr. Dickherber filed an answer to both enforcement j orders. In.the aforementioned May 4,1990 Memorandum and Order, we . provided that the NRC Staff should respond to Mr. Dickherber's answer by June 51 1990c.1We also invited Commonweakh Edison Company to Ale a response. . By Memorandum and Order dated May 9,1990, and thereafter by Menerandum Vand Order dated July.2,'1990,~we granted joint motions of all parties to defer - d Mt

the Bling dates for answers to July 9,1990, and July.30,1990, respectively.

l (The deferrals,were to permit settlement negotiations between the parties and,- .i ~in' addition, would permit = responses to a supplemental ans'wer Bled by Mr/ Dickherber on June 1.1990.1 a I i On_ July.30, the Staff forwarded for our approval a joint motion. of Mr. g. 4 l Dickhorber and the NRC Staff for approval of a-Settlement Agreement. The! a motion states that Commonwealth Edison Company, Inc facility licensee, does: not oppose the modon. In situations such as that presented by these proceedings,. J q* ', y Lwhere a Notice of Hearing.has beers issued, we are authorized to approve s 4_; A,' . gf 1 0: gg ,$, L w s . h i s / ~ q o q w y' a Y'] ' r f).

,7 l

W ' : j *, , q. Q%.. 's "\\ 4 1, p/ g4 1 ,k 5 g i g,

yy, i a w termination of a proceeding on the basis of a settlement agreement,"according j . due weight to the position of the staff." 10 C.F.R. 6 2.203. . The Settlement Agreement forwarded to us provides several discrete condi- - tions. First, Mr. Dickherber admits the allegations of fact set forth in both orders and withdraws his request for a hearing as to these orders. Second, the Staff indicates that it has concluded that the October 17,1989 . incident appears to have been an isolated event, based on Mr. Dickhcrter's an-swer and supplemental answer, two leuers (dated June 4,1990, and July 11, .1990) to Region III, NRC, submitted by Commonwealth Edison concerning Mr. Dickherber's past performance and his acceptance of Commonwealth Edison *s ' " Individual Performance Monitoring and improvement Plan" (Remediation Pro- , gram), and an enforcement conference on July 13,1990. On the same basis, the W Staff has concluded that Mr. Dickherber has properly carried out responsibili-ties in the past, understands the gravity of his actions on October 17,1989, is g . committed to avoid a repetition of such actions and is willing to participate in '~ the Remediation Program, and accordingly that Mr. Dickherber's license shouki - not be revoked. Third, the Staff finds that successful completion of the Remediation Program by Mr. Dickherber should provide the requisite reasonable assurance for Mr. Dickhcrber's resuming licensed activitics and that the Regional Administrator of Region III will relax as necessary the condition in the Quad Citics plant op- -erating licenses prohibiting Mr. Dickhcrber's participation in licensed activities, ( provided that Mr. Dickherber participates in the Remediation Program. 'Ihc agreement further states that Commonwealth Edison has agreed to notify the ' Regional Administrator, Region Ill, promptly if Mr. Dickhcrier should cease participation in the Remediation Program. Finally, the agreement states that upon successful completion of the Remedi-ation Program,' as'dctermined by the Staff, but no sooner than March 17,1991, f the Staff will withdraw its order suspending Mr. Dickherber's license and the Region 111 Administrator will terminate the condition in the Quad Citics facility.- license precluding Mr. Dickhcrber frorn performing licensed activitics. At our request, the Staff on July 31,1990, forwarded to the Board copics of 1 the two letters from Commonwealth Edison, including the Remediation Program. - The letters included an evaluation of Mr. Dickherber's work history for the past ' 25 years, together with the results of a satisfactory medical evaluation performed Iby, Commonwealth Edison.1 The Remediation Program seeks to implement a i staged acturn of Mr. Dickherber to various productive work activities, under

diminishin'g levels of supervision. Commonwealth Edison states, however, that S

. It will "most assuredly scck the concurrence of Region III before reassigning [Mr. Dickherber] to SROL [ Senior Reactor Operator License] duties." (letter - k .'to Region III, NRC, dated July 11l 1990, at 2.) 5

ig i

87-y o I ~.# \\ .n. .x ) 1 iL 9< s

( ,y .1 I .g 1 The Board regards this agreement as fair to both parties, taking into accoui.; j, .the isolated nature of the incident as well as the seriousness of Mr. Dickherber's 9cy ~ = failure to notify appropriate officials promptly of the incident. With reference to the criteria in 10 C.F.R. 52.203, the settlement accords duc weight to the

position of the Staff, which has stated that termination of the proceeding on the basis of the Settlement Agreement is in the public interest. On that basis, we are approving the Settlement Agreement and terminating both proceedings subject

to that agreement. -

c,' For the foregoing reasons, it is, this first day of August 1990, ORDERED:

1. The Settlement Agreement between Mr. Robert L. Dickherber and the NRC Staff, governing both procccdings before us, is hereby approwd.

' 2. Pursuant to 10 C.FR. 52.203, the two proceedings are terminated, subject to the terms and conditions of the Settlement Agreement.3 I

3. This final order is effective immedialcly and, as provided by 10 C.F.R.

.: $ 2.760, becomes the final action of the Commission 30 days after its date, t Tile ATOMIC SAFETY-AND LICENSING BOARD Charles Bechhoefer, Chairman " ADMINISTRATIVE JUDGE, Dr. Jerry L. Kline ADMINISTRATIVE JUDOE Oustave A. Linenberger, Jr. ADMINISTRATIVE JUDOE . Bethesda, Maryland _ August 1,1990 1 q d 'l 4 s IBeseuse the form er the seulenent Agruenere submined for our approval had not yet been signed h au partaas. ' E out tenninetian e( the proceedings is subject to the oppnwel (and sipiatures) er su parties or their represarsativue - to the sondement Agisement unchanged from that provided to us; - il &I 4:L ?- 4 1} r '}' Y1 ~; ?'. i ., h -' t4

'i' 'l

• :q q,.,

i s r 4 Cite as 32 HRC 89 (1990) LBP 90 29 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION M ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: V O Charles Bechhoofer, Chairman Dr. James H. Carpenter. Dr. Emmoth A. Luebke in the Hatter of Docket Nos. 50-424-OLA 50-425-OLA (ASLBP No. 90-61743 OLA) (Facility Operating License Nos. NPF48, NPF-81)

GEORGIA POWER COMPANY, et al

-(Vogtle Electric Generating Plant, 3 . Units 1 and 2) - August 16,.1990 ^ In a proceeding involving a proposed amendment to an_ operating license technical specification, the Licensing Board considers the admissibility of a i petition for intervention, establishes filing' dates for further submissions, and schedules a prehearing conference to consider this question. P ve

li RULES OF PRACTICE

JINTERVENTION

.. Under governing rules, to be admitted to a proceeding, a potential intervenor must demonstrate that it has standing to participate and must proffer at least onc .l acceptable cor.tention. Contentions need not appear in the intervention petition f itself but, rather, are to be set forth in a supplement filed not later than 15 days s before the first prehearing conference.. n y, 4 a [. i i iu < i w

7 [' RULES OF PRACTICE: INTERVENTION PETITION -i[ A potential intervenor may amend its intervention petition without leaw of 1the Board until 15 days prior to die f'rst prehearing conference. 10 C.F.R. i 2.714(a)(3).. I J RULES OF PRACTICE: STANDING TO INTERVENE A petitioner for intervention in an NRC proceeding may not base iu standing - on reference to its participation in other proceedings, both NRC and otherwise. . RULES OF PRACTICE: STANDING TO INTERVENE To establish standing to participate in a particular proceeding, a petitioner must show that the subject matter of the proceeding will cause " injury in fact" and that'the injury is arguably within the " zone of interests" protected by the Atomic Energy Act of 1954, as amended, or the National Environmental Policy . Act, as amended. i RULES OF PRACTICE: INTERVENTION PETITION (GROUP) Where a petitioner for intervention is a group or organization, it may establish standing cither through its own organizational interests or through the interests Jof its members.- In past reactor licensing or licensc-amendment proceedings, residence or employment of a petitioner within 50 miles of a facility has been

sufficient to demonstrate that a petitioncr's interest may be affected by the proceeding.

I RULES OF PRACTICE: INTERVENTION PETITION (GROUP) 4 . If representing the interests of one of its members, a group must demonstrate ' by affidavit of that member that it is authorized to repret. eat that member.'De group must also demonstrate that it has authorized the representative appearing on its behalf to represent the group's interest. i -~ MEMORANDUM A D ORDER N

(Interventum Petition)

- His proceeding involves the request of Georgia Power Co., et al. (herc-inafter, Applicants) to amend the operating licenses for Vogtle Electric Ocncrat. 1 e 's { -, i i 4 I 7 p Rl ~ i' p3 g

s R ( () ' ing Plant, Units 1 and 2, to revise the 'Ibchnical Specification (TS) Surveillance Requirernent 64.8.1.1.2h(6)(c) to permit the high jacket water temperature trip to be bypassed to minimize the potential for spunous diesel generator trips in the emergency start mode. Pending before us is the petition to intervene filed on ~ July 23,1990, by Ocorgians Against Nuclear Energy ("GANE"). By responses ' dated August 7,1990, and August 13,1990, the Applicants and NRC Staff, re-s i spectively, have opposed the petition. Because we do not agree that the OANE 3 petition may at this time be rejected on its face, we are hereby scheduling a prehearing conference to consider the petition (including any supplement filed) 7 and setdng a schedule for the filing of such a supplement. 'Ile intervention provisions applicable to this proceeding are set forth in 10 C.F.R. 6 2.714(a), as amended effective September 11, 1989 (54 Itd. Reg. 33,168 (Aug.11,1989)). Under those rules, to be admiued to a proceeding, .a potential intervence must demonstrate that it has standing to participate and must proffer at least one acceptable content'on Contendons need not appear in < tie intervention pedtion itself but, rather, arc to be set forth in a supplement to ' the. intervention petition filed not later than 15 days prior to the first prehearing conference.10 C.F.R. 62.714(b)(1). Ibrther, a potential intervenor may amend its intervemion petition wWut leave of the Board until 15 days prior to the first prencaring conference.10 C.F.R. 62,714(a)(3). As we shall sec, it is this latter provision which saves the OANE petition from summary dismissal. y .. As the Applicant and Staff point out, the one-page petition before us falls' to include an adequate demonstration of. standing - i.e., a statement of the g f_g petitioner's interests in the proceeding and of how those interests may be affected - by the proceeding. GANE attempts to incorporate by reference statements of ' standing filed in other proceedings in wh_ich'it has participated,- both NRQ and otherwise Standing in a non NRC proceeding is not relevant to standing before' ' us, at least in the absence of a showing (not here made) of the eqtdvalence of, applicable standards and an overlap of relevant issues. With wspect to NRC, OANE participated in the operating license proceeding for this facility,. , which took place a number of yes s ago and was of different scope than the j y~' ' current proceeding. See Georgia T.nwr Co.'(Vogtle Electric Ocnerating Plant,=

Unie 1 and 2), LBP-84 35,20 NLC 887,916 (1984). GANE's interest in that.

proceeding may not be the same as its interest (if any) in this proceeding. ~ Ib establish standing to pan.cipate in a particular proceeding, a petitioner ' must show that the subject ny act of the proceeding will cause an-'.' injury in s 2 fa:t" and that the injury is art unbly within the " zone of interests" protected by. j the Atomic Energy Act of 1954,' as' amended, or the National Environmental - n ' Policy Act, as amended. See Florida Power & Light Co.. (St. Lucic Nuclear- ,. Power Plant, Units 1 and 2), CLI 89-21; 30 NRC 325,^329 (1989). Ibrther, where.(as here) a petitioner is a group or organization, it may establish standing either through its own organizadonal interests' or through the interests of its f g hy 91 4

.Q

~f, + e > N x i + y y;l ' ' y c n. .n 1

7 y 8 U '}

D d

'M 1 members. 'llouston Lighting and Powr Co. (South Ttxas Project Units 1 and

1. - 2), ALAB-549,9 NRC 644,647 (1979).

As a group, the proposed intervenor has failed to set forth how any of its inscrests, or those of its members, will be affected by the instant proceeding. In V, - past reactor licensing or licensc-amendment proceedings, residence or employ-E ment of a petitioner or group member within 50 mhes of a facility has been sufficient to demonstrate that a person's interest may be affected by the proceed- ' ing. See, e.g., Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and ' 2), ALAB-413, 5 NRC 1418,1421 n.4 (1977); llouston Lighting and Powr Co. (South 'Ibxas Project, Units 1 and 2), LBP-79-10, 9 NRC 439,443-44 v (1979), qW'd, ALAB.549, supra; Virginia Electric and Pour Co. (North Anna Nuclear Power Station, Units 1 and 2h ALAB 522,9 NRC 54,56 (1979). In that connection, if representing the interests of a member, a group must . demonstrate by affidavit of that member that it is authorized to represent that E member. Moreover, the group must also demonstrate that it has authorized the . particular representative appearing before us - in this case, Ms. Olenn Carroll - to represent the group's interest. See South Texas, supra, ALAB 549,9 NRC at 646. None of this type of information appears in the petition before us. 'An intervention petition also must set forth the aspect or aspects of the subject matter of the proceeding as to which the petitioner wishes to intervenc. In.the paragraph numbered 3 of its petition, GANE appears to have satisfied this requirement, although we express no opinion at this time on the relevance to the proceeding of the various statements in the paragraph. 'Ihe Applicants'have taken the position that the proposed intervenors may 3 not even be requesting a hearing but only seeking to comment on the Stafi's "no significant hazards condition" finding. -We reject that approach. Alti ough l GANE did not formally request a hearing, the group did seek to " intervene" and, in.our view, could not have practically donc so without implicitly requesting a.hcaring in which to intervene. Further, any request filed on July 23, 1990, j . the date of GANE's petition, to address the Staff's finding would have been - J i t untimely, whereas a request for a hearing filed on that date is timely filed. For these reasons, we are treating OANE's petition as a request for a hearing and a ~

petition for leave to intervene,

~ In addition to the standing requirements twilined above, to become a party = to the proceeding OANE must file at least one acceptable contention. 3 Under .the revised criteria referenced above, each contention must include, inter alla, i f a specific statement of the issue of law or fact to be raised or controverted. In - ~. addition; each contention must include the following information: , (1)~A brief explanation of the bases of the consention; - g;W .(2): A concise sistemme of the alleged facts or expert opinion which support the i contention and on which the petitioner insends to rely in proving the contention at the hearing. -l s-i \\ h 92 .j j y p l ' }; l jj 37 4 q p4 - m, p

S .y, i s i n _ together with references to those specine sources and documaan of which the petinonet is - sware and on which the petitioner insends to rely to establish those facts and expert opinion; + (3) Sufncies information (which may include that prwided under paragraphs (1) and i . (2) above) to show that a genuine dispne caists with the applicant on a material issue of law or fset. This showing must include references to the specine ponions of the applicanon (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute,or,if the petinoner babeves that the applicannn fails to corsain informenon on a relevers matter as requed by la,. the idennneadore of each failure and the supponing reasons for the petiti<rcr's belief. t.% issues arisbg under the Nanonal Environmernal Policy Act, the pentioner shall fde conterenns basrJ on the applicant's environmensal report. The petitioner can er.wnd those cortendons or Sie new corsentions if there are data or conclusions in the NRC draft or Snal env onmenta' 8 . impact statement, environmental assessment, or any supplements hl: i.; kreto, that differ signincainly from the data or conclasions in the agyticant's document 10 C.F.R. 6 2.714(b)(2)._ ' As we have suggested, the OANE petition in its present form h grossly deficient in its statement of the ' group's standing. We reiterate, however, that GANE has an unlimited right to amend its petition until 15 days prior to the first prehearing conference. Accordingly, we are hereby scheduling a prehearing conference for Wednesday, September 19, 1990, and establishing 7besday, September 4,1990, as the final date on which OANE may submit (mail) an amendment to its petition to enhance its statement of standing. We are also establishing the same date, September 4,1990, as the fmal date on which OANE may file a supplement to its intervention petition setting forth the contentions it wishes to assert in this proceeding. We will permit the Applicants and Staff to - respond to any supplementary GANE filings, as long as any such responses are recc8 ed by us (by FAX if necessary) no later than Friday, September 14,1990. v . (if it appears that the statement of standing is clearly inadequate, based on the supplementary statement, we may dismiss the proceeding prior to the prehearing ' - conference.) ./ One further matter warrants our brief comment at this time. By telephone, w requested the NRC Staff to forward to the Board copics of the Staff's Safety . Evaluation Report, as well as the proposed license amendment submitted on May 25,1990,' *the Staff has complied with this request. After examining thesc materials, we request the Applicants to clarify why they added a vague footnote. to their technical specifications rather thantdeleting the phrase "highJacket ) water temperatures" from Technical Specification Surveillance Requirement. ,j 4.8.1.1.2h(6)(c). Further, does the footnote in question permit bypass in other ~ han emergency conditions? 'Ihc Applicants may respond to C.,:sc questions at t the prehearing conference or, if they wish, in any respo ise they file to GANE's supplemented petition, flhe September 19 - 1990, prehearing conference is scheduled to be held at the Federal 'Rade Commission, Room 1010,1718 Peachtrec St., N.W., Atlanta, - 93 5 1: 3 I l 1 .p l. y;

1 5 ) ) l Ocorgia, beginning at 9:30 a.m. Although we are authorizcd to entertain limited - appearance statements during the course of this proceeding, in accordance ' ~ l with 10 C.F.R. 5 2.715(a), we will not permit oral statements at this particular conference.

IT IS SO ORDERED.

9 FOR THE ATOMIC SAFETY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland August 16,1990 y. t l \\ /> ' r i i 4 1 ' E [.. t (- o 'f ^ [' s f T, I -]) ! t i$ "li-.. ?- '\\\\ ,g

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) l-One as 32 NRC 95 (1990)- LBP 90 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judge: 1 i Peter B. Bloch 3 In the Matter of Docket Nos. 7000270 30 02278-MLA (ASLBP No. 90-613-02 MLA) i (Re: TRUMP-S Project) - (Byproduct License No. 24-00513-32; Spe:lal Nuclear Materials License No. SNM 247). CURATORS OF THE - UNIVERSITY OF MISSOURI August 24,1990 The presiding officer in this Subpart L proceeding denied a request for a temporary stay of Licensec's planned experiments with neptunium and pluto-nium; lle said that he understood why the documents available to Intervenors has caused them concern about the salcty of the planned work, liowever, after - reviewing the detailed technical response filed by Licensec, the presiding officer was satisfied that none of the grounds for a stay existed and he denied the stay.: RULES OF PRACTICE: :- SUHPART lj; REQUFSr FOR TEMPORARY - STAY' Pursuant to 10 C.F.R. Q2.1263,' the presiding officer may. issue a stay in : response to intervenors' motion for a stay, which they included with their request i _- - for a hearingc in this case, the presiding officer had deferred action on the stay-: motion included with the request IIence, the terms of section 2.1263 refer to 10 D 95-y o -l i, t ? l )' l e 8s y q sf G 6 s 4

C.F.R. 62.788 for the standards governing the granting of a stay of the Staft's licensing action. Under diat sectkm, the criteria for dc4crmining whether or not to grant a stay are set forth t wtsection (e). Additkmally, sulsection (g) permits a temporary stav '. cimaordinary car,es, even without waiting for die filing of any answer, in tiis instance, the presiding officer was able to await an oral answer and a written answer from Licensee before acting on the motion for a temporary stay. SPECIAL MATERIALS LICENSES AND lt.YPROL' JCT MATERIALS LICENSES Applicatkms for special materials licenses and byproduct materials licenses must demonstraic that they are adequale to protect lealth and minimize danger to life or property pursuant to 10 C.F.R. Il 30.33(a)(2) and 70.23(aX3). 'Ihey must also avnply with 10 C.F.R. 620.106, which limits de er. tent to which ' Licensee may release neptunium or plutonium into die air or water in excess of natural tackground radiation. '!hese regulations are interpreted in Regulatory Guide 10.3, which requires a detailed description of the equipment, facilitics, and instruinentation, and - for ' chemical or physical processing operations - a description of controls for fire preventkm. TECHNICAL ISSUES DISCUSSED 'Ihc following technical issues are discussed: IIEPA filters; DOP testing of EIEPA likers; Olove bon design; Plutonium, handling of; Neptunium, handling of. MEMORANDUM AND ORDER (Temporary Stay Request) '1 Memorandum I.

SUMMARY

1%is ponian of the Memoiamlwn

• l.

SUMMARY

"- was sent to the panics on August 23,1990, for the purpose of informing thcen af the decisket on the stay maion. his ~ early maice was prwr isad to the University of Missourt, which had voluntarily suspended hs ' wmk on anpennien, pendmg the Ikant's determination on the motion for a tenporary stay. I None that the Univershy of Missouri was initiauy called "Aylicant" tv I have coneesed p this to 'tjconsee," which is snore descripive.) ' /> A, u m k 1 ( h-I u-

interverurs have requested a temporary stay of wark with neptunium arxl plutonium ht the University of Missouri (Licensee) is planning to do in its TRUMP.S project. De initial filowing of possible grounds for a stay relie4 on documents ottained from Oc Licensee without the anistance of de pesiding officer. Those docunents indicated that a University consultant, Mr. Stepgen, considered diat there was a " major design flaw" in the Alpha Laboratory that required the installation of an additional filter device. Rey also showed Ont the University of Missouri was sufreiently concerned alcut the recommendation to order the recommended filter and to consider deferring the start of its experimental pogram. Ahhough the tkicuments filed by Intervenors caused me to hau enough concern alo'it de safety of De Alpha Laboratory to consider granting a {- temporary stay, I have now armlyzed de answering documents submitted by Licensee. I am persuaded by the affidavit of the University of Missouri-Columbia Research Reactor's (MURR's) Interim Director, Dr.J. Steven Morris, that there is no serious risk either to the health of members of the public or to workers in the Alpha Laloratory. Consequently, after weighing each of Oc factors reqalred for a stay or temporary stay, I have decided that die request for a temporary stay should te denied. Although I have considered the possible need for a public hearing to test die testimony offered by Licensee, I have decided that there has tot been esough of a showing by Intervenors for me to require such a hearing in this proceeding, which is teing conducted under Subpart L of de Commission's procedural regulations. II. RELEVANT DOCUMENTS %c relevant documents include Intervenors' Application for Tbmporary Stay to Preactve the Status Quo, August 20,1990.5 and Supplemental Memorandum, August 20, 1990; Licensec's Response to "Intervenors' Application for Tem-porary Stay to Preserve the Status Quo," August 23, 1990, and affidavits of William J. Adam, filed July 26,1990, and August 22,1990. Also relevant, but tot relied on in this memorandum, are an Affidavit of Dr. J. Steven Morris, filed June 15,1990; a Declaration of James C. Wurf and Daniel O. liirsch, filed June 12,1990. L .ISee du Certiricas of sevke, found in 1:ahibu 11. 1 97 i A 6 .J s l

P 5'4 i i Ill. LEGAL AUTHORITY A. - Authority to lasse a Temporary Stay Pursuant to 10 C.F.R. 5 2.1263, I have audiority to issue a stay in response to intervenors' motion for a stay, which they included with dielt request for a hearing. In LBP-9018,31 NRC $$9,575 77,578 (1990), I deferred action on Oc stay acqucst.

• ne terms of section 2.1263 refer me to 10 C.F.R. 6 2.788 for the standards governing the grarning of a stay of the Staff's licensing action. Under thai section, the criteria for deictmining whether or not to grant a stay are $ct forth in subsection (c). Addidonally, sulsection (g) permits me to grant a scinparary l

stay in extraordinary cases, even without waiting for Oc filing of any answer. i in this case, the voluntary action of the University in deferring its work with I neptunium made it possible for me to wait for its answer before acting. Thus, there was no harm to Intervenors from my waiting for a response frorn Licensee and circumstances were Ocrefore not so extraordinary as to permit action before i-a response was filed. 1 u i H. App? able NRC Regulathms . Sections 30.33(a)(2) and 70.23(a)(3) of 10 C.F.R. require that **[t]hc Lt. censee's proposed equ'. ment and facilitics (tel adequate to protect health and minimize danger to life or property." Part 30 applies to byproduct materials i U licenses and Part 70 to special nuclear material licenses. Section 20.106 of 10 C.F.R. limits the extent to which Licensee may release neptunlum or plutonium into the tJi or water in excess of natural background radiadon. Addillocally, Licensee must keep teleases of radiation As how As Reasonably Achievabic (ALARA).10 C.F.R. $ 20.1(c). L IV. ARGUMENTS A. latervenors'. Arguments 'the principal safety ground relied on in the requert is that a University of Missouri consultant, Mr. Steppen, found only onc major flaw in the facility design" for 'IRUMP S.8 According to the Steppen Memo, at page 1: o l ~8Marnemendem of June it,1990,inen Mn it.rnst in Charhe httKihhan.

• summary of Consehant Visu* (sieppen

. Morno), eiushed to linerwners' Appheedan ris Tenpry suy in Preserw the sinius Quo. l s e f l i 4>

l DOF. segulations mquire two IXW'8 tested ilEPA fibers between a camaaminauan swrte and perstemel or puWic. %s alpha lah is designed to this standard ercess fue the case of an 1 saidenial pressuriratie of the etheust law. If that should occur she skwe boa ethase: cxadd te forced into de occiqiied area of tie alphe lab via the staan exhaust he skwe lua air wndd have passed thrwgh tuo sus of IllTA fihers, udy cue d which can he DOP l tesied. At a subsequent meeting of de University of Missouri's TRUMP-S Oroup, held July 19,1990, the following minute was recorded: We espect bids for the IllTA fihen housings for the exhaust air syuoms on July 30. With four week delivery, we week installation and testins, the lahurwxy should te rency for neptuniurn taperiments on Septemher 4. his change was recommended Ibyl Mr. Steppen, Alpha consuhant (see memo frtun lirnst to McKiWe dated June 19, 1990)[.1 llowever, the TRUMP-S work with neptunium was scheduled to tegin August 22, prior to installation of the !! EPA filters The University of Missouri, at my request, voluntarily defened its work with neptunium in order to permit me to receive its written respontic to the request prior to acting on it.11cnce, I was able to permit Licensec to respond to the stay request prior to acting on it. Intervenors would have us telieve that commencing work with septunium or plutonium without the fiher recommended by Mr. Steppen does not adequately assure public safety and is being donc under contract pressure They state, on page 4 of their motion, that Steven J. Morris, lab director, filed a June 14,1990 affidavit stating diat the alpha lab was provided with IIEPA filters adequate for e any emergency, t xlundant and DOP-tested. 'Ihey further state, on pages 7 8 of ticir motion, diat: [Tlhere is imminent risk p.ed by operation without the sequired dual IXM'-tesicJ llEPAs. %e tiniversity has sosted vinuaDy its entlic assenlon of sarety on the claim that, in a worst. case accident, one of two DOP tested IIITA fihers would fail or be bypassed and the semaining fiher would be able to reliaWy function, reducing esposures lof the puWic to radioilon1 by several onlers of magnitude. t i II, Licensee's Arguments 1. No imminent Risk Licensec argues, first, that there is no imminent risk posed by planned operations.'It states that the consultant cited by intervenors has not identified any portinent DOB regulations or sequirements that Licensec is violating and - Snetui iis s sopa.uc maniq.r. 4 aniumns.ervancy er u. roi.in n ins pnicia fran n se su no. ti

• y e

t' that he may leve teen expressing his beliefs concerning DOE practices.' It also states, supported by the Affidavit of Dr. J. Steven Morris, August 23, 1990, 116h and 7d, diat the only possible consequence of the scenario set fortn by tic consultant would be a release of radioactive materials within the laboratory itself and not to any unrestricted arcas that could affect the public.s Licensoc further shows that even a release within de laboratory would be very unlikely. Mr. Steppen's concern was diat: I-DGE regulaties require two DOP tested i!I3% fdiers between a canamination source and persatnel or putdic. The algda lab is designed ic this standard excegt for the case of an accidernal ps. r'tatim of the exhaust line. If that should occur de skwe boa exhaust p cudd te im.~ > die occupied area of de alpha lab via de stuun exhaust. 'The skwe l tua air studd have passed through twv una of I!!TA fihers, erdy one of whie can be DOP i tested. l ? l Mr the ricenario of concern to occur, there must first te an accidental pressur-tration of de exhaust line, which can only occur if: (1) tic emergency exhaust valve is open, and (2) de air pathway through IIEPA filters 3 and 4 is completely or almost completely blocked or the damper downstream from filter 4 is closed. See Figure 1. Alpha Laboratory Air Flow Diagram and Morris Affidavit at16h. i In that instance, the alt flow could proceed in a reverse direction through the room exhaust system and back into the room,14. Licensec has several ways of addressing this possibility, One response is that under this scenario the flow would have passed through IIEPA filters 1 and 2. l-IIEPA filter 2 has been DOP tested in place; thus there is no problem about that I I filter, IIEPA filter 1, while not tested in place, was validly tested with respect to its filtering capabilities. Morris Affidavit 16c, Licensee believes that tie testing prior to installation is valid because tie installation is simple bccause: 1he 6her is innalled by screwing the irsact tenied unh into the secquacle prtwided.1his installation has the same singde nachanical coupling as used to cranect devices that ccessin ' trudecules sus se water and natural gas whid are smallet than the particles dallenging these fihet units.' Licensec also does not accept Mr. Steppen's hypothesis that tiere could bc an " accidental pressurtration of the exhaust lire," /d.17d. It states that there is no mechanism to pressurize the air. That is, there is no fan or blowcr that could drive air from the argon glove box to tie emergency exhaust line. This

• tkoos.e'sas.p

.tsn2 IAhhnugh intervonon have aca densuutreted that any of their mornbens are workert La the laturstory and seiemimently have nas shown a htigable irnemst in protecting the werkers, I beve analyzed de possible effect en emban beoeues ed the trapaitars gentdes interest involved 'h4cma Afndavit, e 100 y f [ t 6

is unlike other glove-box facilitics in which there are such fans or blowers. /d. (Sec 17d for additional details concerning argon circulation through a minimum resistance loop, not shown in Figure I, under the conditions of concern to Mr. Steppen.) Licensec also states that "since the pressure in... filters (3 and 4) is monitored, the possibility that an experiment would te taking place and result in a release to such filters w hen they are clogged is minimal. Id.17. Furthermore, if the danger were closed, there would te some pressure increase in the Alpha Laboratory, causing a.i alarm that would permit corrective action to te taken. Id. Licensee den corcludes that applicable NRC requirements have been met and that there is rt.asonable assurance that de health and safety of both the public and MURR perronnel would te protected even if the air flow through HEPA filters 3 and 4 were blocked. It also concludes that it would be incorceivable for there to te pressurization in the exhaust line. Id.17d. It also states that the postulated multiple probicms or failures are remote. Id. 2. Conspiknet erith Regulatory Guide 10.3 Licensee states that its laboratory complies with Regulatory Guide 103. Such regulatory guides are issued by the Staff and are presumptive evidence of compliarce with He more general regulations that they interpret. Although they do not prove compliance, persuasive evidence must te introduced to demonstrate the inadequacy of the guide. in this instance, Regulatory Oulde 103, cited by Licensec, states in pertinent part: i N equipman, facilities, and radiation detection instrumentation for eadi site of use should be desceihed in detail. N pmpuaed equipnent and facilities for eadi acsivity must he adequate to protect health and minimiae danger to life and property. In describing available equipment and facilities, the folloming types of infonnatim should be induded, as agrupriate: i eeee

4. Physical plant, laboratory, or working area facilities. A descripim of all fume hoods, slm tea. wasis veceptados. special sinks, venillation and containmere systems, efnuent 6her systems,includmg the design specifications and capabilities of these systems, should be induded... Aplications for chemical or genysical processing operatims'should indude -

a descripsion of controls for fue prevention and the Erenghting squipment available. Sketdees showing lahoratory or plant arrangements and the natute and use of areas Mj was to areas in whidi special nuclear materials will be prownsed should he submitted. -r 1 Nehher Arrheeni nar start have indiceied whsoise owy betwve this douae sghes to the Alphs tAuniary. i: 101 i

f Licennec also attempts to place its c(unpliarec with this regulatory guide into t catext. It states, in Mcrris Affidavit 16a, diat tic guide ls inicanded im applkations to possess and use up to 2(KKI grams of piamium, whidi gready eutals Ow 5 gewns of pluumiwn tha, t.icensec wiu have in invenury for ue 1 RUMP-S tescardi, and especiaUy dic 0.t grams a less that will le used in any as thermodpamic expennrat C. Staff Arguments Staff's argument concerning the possible need for IIEPA filhWn in mnrec-tion with the TRUMP S work is: (1) 10 C.F.R. does not specify that particular filters are needed, and (2) the Staff has found that it is permissible to license TRUMP-S work under 10 C.F.R. Part 20 with no furtler filters required to pro-vide an adequate assurarre of safety. Despite my specific invitation, the Staff chose not to be responsive to my expressed needs and has therefore failed to provide any analysis of tic reasons for its findings. Mernorandum of 1tlephone Conference Call of August 21, 1990 (unpublisted), at 2. n b p D. Conclusion j I The eviderse available to Intervenors caused them serious cosecrn atout tic safety of permitting Licensee to proceed with its TRUMP S work with neptunium. Timt evidence included a mcrnorandum stating that a University consultant, Mr. Sieppen, had found a " major design flaw"in the alpha laboratory, it also included 1 memorandum of a TRUMP S design group that ordered the additional filic recommended by Mr. Steppen and appeared to make the addition of the filter to the laboratory a necessary condition before the experimentation i wouki confirme. The mcrnorandum stated that the laboratory should be ready for neptunium experiments on September 4"- after the filter was installed. Now dint I have received the answer of Licensee, I am no longer concerned. x The Affidkcil of J. Steven Morris describes in great dcLall Licensec's ressons for E believing its laboratory to be safe without the filter, The affidavit is accompanied by a figure, which I have attached to this Memorandum and Order, that enabics ~ me to follow quite casily Mr. Morris's description of how air would flow under different conditions. Furthermore, the affidavit is well organized and kigical, i . attending to specific details that support the conclusions. It is the kind of careful technical memorandum that not only makes its point but adds to my confidence in the professional competence and carefulness of Mr. Morris and of the research scactor and laboratory that he runs. 5' I ^102. y + m. t s .j .21

I find that de everit described by Mr. Steppen is unlikely to occur. IIEPA filters 3 and 4 are monitored for pressure; therefcre, undetected clogging or oleration with clogged filters is very unlikely. Were the damper downstream of IIEPA 4 improperly closed, there would be some reverse circulation of air Orough the room exhaust and a slight overpressurization would occur in die laboratory, setting off an alarm that would permit corrective action with respect to Oc damper. Were this unlikely reverse-circulation of air event to occur, there would be a natural circulation return Grough the room exhaust system. The return would not be driven by f ns or blowers and therefore would not te at high pressure. Rirthermore, the air would pass through tw IIEPA filters, providing an adequate assurance of safety, it will have passed through IIEPA I as it left the glove tox. l (There is ore llEPA 1 fihcr townstream of each of the argon glove boxes.) It also will pass Grough flEPA 2 shortly after it leaves the Alpha Laboratory in i tic exhaust line. Additionally, I find that each of these IIEPA filters has been tested adequately -IIEPA 2 having been tested in place and IIEPA 1 having j teen installed sutsequent to testing. Whatever health risk does exist in this scenario exists within the laboratory itself - a location in which none of the interests of any of the intervenors or petitioners would be compromised since dere are no intervenors or petitioners who have been shown to be workers in Oc laboratory, licree, no one las standing to ruine possible injury within the laboratcry as an injury affecting l. Orm. It is part of traditional judicial standards of standing diat intervenors may not act as private attorreys general and raise issuca Omt are of concern to them but do not affect them directly. I am aware that Intervenors. as part of their motion, made various charges of misrepresentation and winnholding of information by Lk casec. Given what the Intervenors knew, it was proper for them to raise these concerns. I am always concerned with the accuracy and completeness of my record and would pursuc dese matters in an appropriate fashion were I to agree with the Intervenors. l. Ilowever, these matters are peripheral to the motion before me and I find that l. they are fully explained by Licensee, when they are understood in relationship to the full technical evidence that has been presented. With respect to the applicable stay criteria, I find that intervenors have not l' demonstrated that there is any problem concerning the adequacy of the safety . of the Alpha Laboratory; consequently, they are very unlikely to succeed on de merits of this claim. Since there is no showing that there is a failure in the assurance of the adequacy of safety, there obviously is no irreparabic injury from commercing the planned experiment. There obviously is some harm to the l-University of Missourt were it to te restratac4 from completing its TRUMP-S contract commitments at this time; hence, this factor is adverse to Intervenors as well. Nor is there any showing that the public interest would be adversely 103 P h h-h.

l i affected. Consequently, there are no grounds for granting a stay or temporary stay, and de request will te denied. In closing, I wish to state that I am sadderiod by the lack of communication that seems to be affecting my relationship to the Staff. I requested their assistance because I sincerely thought I needed their help. Yet their answer provided no reasoning that could be of any telp to me. Ticir naked statemeint that they reviewed the Application and found it to be adequate is not helpful in ) cvaluatSg specific grounds presented by intervenors, in this instance, Licensec's proof was sufficient to establish the appropriateness of the position urged by tic Sthff. Honver, I could not know what proof Licensee would present when 1 made die Staff a party for a limited purpose. I regret their continuing unwillingress to provide helpful information with respect to a live issue diat I had a duty to decide.' Although it is not clear that I am permitted to hold a hearing in which ! 3 I could ask questions of Mr. Morris and Mr. Steppen to test the adequacy of de conclusions I have reacted, I ncycrthclcss considered that possibility. The reason for considering that step is that the examination of witnesses is such an important part of our jurisprudence and because Intervenors wer prohibited j even from commenting on Licensec's proof by 10 C.F.R. 5 2.788(d), which stales that, 'No further replies to answers [to motions for a stay) shall bc entertained. in this instance, the Temporary Stay motion relied on one of Licensec's consultants and the response consisted of an affidavit rebutting die grounds for the first consultant's opinions, Given the completeness of the responsive affidavit, the fact that neither of the witnesses involved in the papers was sponsored by intervenors, and the preference of Subpart L for avoiding hearings, 1 decided not to hold a hearing with respect to the motion for a temporary, stay. Order Rw all th: foregoing reasons and upon consideration of the entire record in this matter, it is, this 24th day of August 1990, ORDERED, that: I 4 c 's.a.wi.de. w o sun h.d m dat ima mid Iiw. u m er om, unwaims cmaa i.. somalted fium ow name pensure wwler wluch my onter placed then. Under the ci.- . I elao rett under tune pressum and asked riv the ssaft's help at a time that I nouded h. - 104 i f n .' f l i. r

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_ -. -. - -. ~ 1 b-TIx o-i, -i t 4 ei { u. Intervenors' Applicahon for ihmporary Stay to Preserve the Status - w , Quo, August 20,1990, is denied. a I Respectfully ORDERED, Peter B. Bloch, Presiding Officer ADMINISTRATIVE JUDOE t ) Bethesda, Maryland 't 4Ek I e s I t; i N i M. s i 2 -t i ck- ,5, '}- i -A .E 5 f .I 1 h I .'-) ' f 3 r ) i _'b i n. ,j.'. 3 .p g<, _ s [ I'. ,k. ' t i y <p? Q? { 'f,

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,i i Che as 32 NRC 107 (1990) LBP-90-31 UNITED STATES CF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD l Before Administrative Judges: Morton B. Margulies, Chairman Dr. A. Dlmon Callihan - Dr. Jerry R. Kilne i - Docket No. 30-12319-CivP in the Matter of (ASLBP No. 90 618-03-CivP) (EA 89 223) (Material License No. 3517178-01). TULSA GAMMA RAY,INC. August 29,1990 - NOTICE OF IIEARING AND OTHER MATTERS, Notice is hereby given that at the request of Licensee hisa Gamma Rhy, Inc.,. of hira, Oklaixxna, a hearing will be conducted in the captioned proceeding in - accordance with the provisions of Subparts B and O of Part 2 of Title 10 of the L Code of Federal Regulations (10 C.F.R. Part 2, Subparts B and G). De time and place of hearing will be by further notice. i On June 6,1990, the Deputy Executive Director for Nuclear Materials Safety. - Safeguards, and Operations Support issued an Order titled " Order imposing y Civil Monciary Penalty" (55 Fed. Reg. 24,949-52). %c Order stated that on December 29, 1989, a Notice _of. Violation and ' Proposed imposition of Civil Penalty was issued for violations identified during - an October 2-4,1989 inspection for which a $7,500 penalty was proposed. The. Order further stated that the Licensco responded to the Notice of _ Violation on February 22,1990, admitting nine of the ten alleged violations and requested reconsideration of the civil penalty for a variety of reasons. -107- .,I s-t- A s f_ f

=-. - 4, ne Order recited that based on NRC Staff's evaluation of the Licensec's respo:se, it concluded that ninc of the ten violations occurred as stated and diat 'I ore alleged violation should te withdrawn. Because of the withdrawal of one of the ten violations alleged, the penalty of S7,500 was also reduced by ten lercent to 56,750. No other grounds were accepted by Staff to further reduce j Oc penalty. De Order provided Disa Gamma Ray, Inc., die opportunity tt request a hearing, the issue to te considered shat: be whether, on the basis of the 4 ) violations admitted by die Licensee, consisting of the violations set forth in Dic i Notice of Violation as modified by the willdrawal of Violation 3, [the] Order shall be sustained." By letter dated July 3,1990, Licensec requested a hearing and filed a request for reconsideration of the imposition of de civil penalty, in a letter dated July 31,1990, the Director of the Office of Enforcement refur.cd to withdraw its June 6,1990 Order, As a result, this formal adjudicatory proceeding was initiated. His Board requests that, before it conducts the hearing offered by Staff and requested by Licensec, the parties confu and considct steps that will expedite i tic proceeding and reduce its costs. De maucts to le considered should irclude the establishment of a schedule for furdict actions in die proceeding, dic ] Identification of witnesses, the simplification of issues, and any other maucts diat may aid in the orderly disposition of the proceeding. ne parties should also consider seulement, a process encouraged by dic Commission. Settlement can provide an expeditious and cost effective way of ' resolving the dispute. De parties shall, by letter, report tack to the Board, no later than September 21, 1990,- the results of their discussions. Ihture prehearing and hearing scheduling will depend on the achievements of the parties, j ' It is so ORDERED. l TOR Tile A'IOMIC SAFETY AND LICENSING BOARD l Morton B. Margulics, Chairman l ADMINISTRATIVB LAW JUDOE a i Bethesda, Maryland i August 29,1990 i l j 1 + a 108 -{ v l

i Directors' Decisions Under 10 CFR 2.206 1 l ( \\ i i 1 I I I l l i i ? C- .= - -..-.....-.)

) i j' Cite as 32 NRC 109 (1990) DD 90-5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR LEGULATION i Thomas E. Murley, Director in the Matter of Docket No. 50 443 PUBLIC SERVICE COMPANY OF NEW HAMPSNIRE, et al. (Seabrook Station, Unit 1) August 31,1990 ] I in an Emergency Motion filed icfore de Commission on tchalf of New Eng-land Coalition on Nucleu Pollution. Scacoast And-lbiludon League, and the Commonwealth of Massachusetts (Ittitioners) in the U.S. Nuclear Regulatory Commission's (NRC's) licensing proceeding for de Scabrook Station, Unit 1, i Itudoners alleged the existence of recent, previously undisclosed industry re-ports of extensive and serious regulatory noncompliance at Scabrook. Petitioners argued that dese materials (certain reports prepared by de Insutute for Nuclear Itwer Operations (INPO)) denenstrated that the NRC had no valid technical tesis for fmding that Seabrook Station Unit 1 of the Public Service Company of New Hampshire, et al. (Licensee) complied with the NRC's regulations and was safe to operate. . The Modon was reicned to the Director of the Office of Nuclear Reactor Regulation (NRR) for preparadon of a response pursuant to 10 C.F.R. I 2.206. 'the Director of NRR has reviewed the INIO reports referred to by Ittitioners and has found the allegations not to te sutstantiated. *lle INIO reports on which the allegations were founded do not indicate that tne Scabrook facility - 'is out of conformance with NRC requirements or that it is unsafe to operate. The Licensce's corrective actions were appropriate and responsive to the INPO - fmdings. Consequently, the Director of NRR determined that no action punuant to section 2.206 need be taken in this matter. 4 L 109 ) 'c x-. e +

j 1 DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206 l 1. INTRODUCTION t. 11y letter dated March 14,1990, Ms. Diane Curran, Esq., filed an Emergency j j Motion with the Commission on behalf of New England Coalition on Nuclear i Polluticm, Scacoast Anti-Pollutk n League, and the Commonwealth of Mas-l. sachusetts, (Intervenors) in the U.S. Nuclear Regulatory Commission's (NRC's) licensing proceeding for the Seabrook Station, Unit 1. Intervenors' motics was i l based on al!cged recent, previously undisclosed industry reports of extensive j L and serious regulatory noncompliance at Scabrook. Accompanying the motion { was de affidavit of Robert Pollard and the testimony of Mr. Pollard and Ralph Nader presented before tle Subcommittee on General Oversight and investiga-tions, Committee on interior and Insular Affairs, U.S. Ilouse of Representatives, during a hearing on March 14,1990. *!he motion argued that these materials 1 demonstrated diat the NRC had no valid technical tesis for finding that Scalwook Station Unit 1 of the Public Service Company of New flampshire, et al. (PSNil or Licensec) complied with the NRC's regulations and was safe to operate. In an Order issued on March 15,1990 (unpublished), de Commission denied de Emergency Motion which sought an extension of the stay of full power operation issued by the Commission in its Memorandum and Order of March 1, I 1990.8 In CLI 90-3, the Commission authorized the Director of NRR to issue a full power license consistent with de provisions of CLl 90 3 for a housekeeping stay. In its March 15,1990 Order, the Commission concluded that no extension was inecded to fulfill the purpose of the stay provided for in CL190 3 Moreover, de Commission noted that de modon failed to address de stay factors specified l In 10 C.F.R. C 2.788. Prior to issuance of a full power license for Scabrook Unit 1, de NRC Staff reviewed die substance of the information on which de Emergency Motion is tened.. Specifically, both the Regional and licadquarters staffs reviewed de three Institute for Nuclear Power Operations (INPO) reporu cited in the congressional testimony. Based on the Staff's review, I concluded that there was no information in the three INPO reports that would change the Staff's conclusion that there was reasonabic assurance that the Scabrook facility could ) te operated safely. Accordingly, on March 15, 1990, I issued the full power license for Scabrook. On March 15,1990, the Intervenors' Motion (Petition) was referred to my Office for the preparation of a response pursuant to 10 C.F.R. 6 2.206. A letter ICLJ 903. 31 NRC 219 (1990). 110 i l i e t

I acknowledging receipt of the Petition and its status as a Petition for consideration pursuant to section 2.206 was sent to Intervenors on April 9,1990.

11. IIACKGROUND j

s Prior to responding to de Ittidon, an explanation of INIO and how its eval- - untion reports relyr M de NRC's regulatory process is necessary. INTO is an j . !ntion funded by memter utilitics, which was created industry group, x following the 'n f ;t Island accident in 1979. INPO performs a number of functions for its members, including conducting periodic inspections of op-erating nucicar plants, plants under construction, and corporate organizations. These periodic inspections are documented as INTO Appraisal / Evaluation rc. i ports, which are the reports referred to in the Petition. The relationship between the NRC and INPO reflects the desire for a coop-erstive relationship in the exchange of experience, information, and data related to the safety of nuclear power plants. In an Octoter 1988 " Memorandum of Agreement" (MOA) signed by the NRC and INIO, the provisions for coordi-nation in regard to INPO appraisals and evaluation activitics were discussed. Included are pmvisions that INPO expects its member utilitics to make operat-ing plant evaluatkm reports available to the NRC for review. Ibrther, INIO will make final evaluation reports availabic to the NRC for review by appropriate NRC management personnel at the INPO offices in Atlanta. It should be noted, however, that dicsc INPO documents and information are of a proprietary na-ture, are not publicly availabic, and NRC access is in the inscrest of improving j nuclear plant safety.' i INPO has no regulatory authority. INPO recommendations in cach arca are base.d on what it views as test practices, rather than on NRC standards or i requirements. Accordingly, areas where improvements are recommended are not necessarily indicative of unsatisfactory performance or noncompliance with NRC requirements. In the event that an INIO cvaluation revealed that a licensec failed to comply with a legally binding requirement such as a rule, license condition, or 'ibchnical Specification, the NRC Staff would evaluate the situation and take the appropriate action pursuant to the NRC's " General Statement of Iblicy and Procedure for NRC Enforcement Actions," 10 C.F.R. Part 2, Appendix C (Enforcement Iblicy). Ibrther, under such NRC regulations as 10 C.F.R. il50.55(c),50.72, and 50.73, a licensec's failure to report significant violations or safety deficiencies revealed in such documents (such as INPO reports) is subject to enforcement action under that Enforcement Policy, t 111

III. DISCUSSION i The bases for the Intervenors' (hereinafter Petitioners) request are its allega-tion that issues raised in certain INIO reports descrite a wide array of " serious safety deficiencies" at the Seabrook plant, including: inadequate training of maintenance personnel and radkmetive waste technicians, continuing failures by plant persontel to follow procedures, the permanent installation of equipment not shown on plant drawings or included in plant procedures, the lack of staffmg for the solid waste radioactive waste handling group, the lack of an effective check valve preventative maintenance program despite numerous cleck valve failures, and failure to cornplete a design review of check valves.8 The Petition. ers also indicate that PSNil stated in the reports that it does not plan to correct a number of the deficiencies until well after de plant is lleensed. On these bases, the Petitioners allege that these reports raise such grave new issues of regulatory noncompliance as to completely undermine the NRC's previous conclusion that the Scabrook reactor is ready for safe operation at full power and ask that the license te denied or revoked. 1 On March 14,1990, the Staff requested that the Uccasce provide a response to de March I *,1990 testimony presented by Ralph Nader and Robert D. Pollard to the Sutcommluec on Ocneral Oversight and Investigations. On March 15, 1990, de Ucensee provided its Response, including copies of the dire 4 INIO reports referenced in the congresslunal testimony. In addidon, the Licenset provided a status update of its actions for each INPO finding or otscrvation and the correlatkm of the INPO finding with the corresponding allegation presented in de congressional testimony. The Ucensee concluded, from its review of the INIO findings from the three reports in question, that its existing programp and practices related to each item exceeded regulatory requirements. In its Response, the Ucensec emphastred that the allegations described as "scrious safety deficiencies" mischaracterized the nature of the INPO findings. 'the Ucennec maintained that the INPO findings and recommendations are tesed on test practices, rather dian minimum acceptabic standards or requirements, and are not indicative of unsatisfactoiy performance. i 'lhe Ucensee also discussed INPO's policy that, if INIO observes a situation i d . that is reportable in accordance with NRC requirements, INPO will encourage de utility to report the matter, if the utility does not report the matter, INPO will do so. *lhe Ucensee asserted that, in the course of the INPO visits at Scabrook d . Station, no reportable matters were identified. The'Ucensee also indicated its

• ne spear.c INeo sapou selwml w by huumes em "rrip aspwt - speciel Amounce Van w sashowA suume." dened Fehmery s.1988. "Evolueuen er sembroek sienan.* daied sapeamber 1989 and "Evolustien or rubbe savice Campany or New Itempshise New flempshire hnkee Invieim's Carparois suppan end

- h4minaring of soebma suna fnen ocu*er 2 duough 6.1989,* dened Decenbar 26,1989. 112

i telief that there were no existing safety issues or concerns and no issues that would prevent the safe, conservative startup and operadon of Scalvook Station 1 upon issuance of a full power operating license. 'ne Staff reviewed and evaluated each of the issues raised by the Petitioners as well as de Licensee's response to each issue. Each of Oc specific issues raited by the Petitioners is characterited below, followed by the Staff's evalua-f tion. The issues are presented in the following order.

1. INp0 Trip Report dated February 8,1988 (3 issues) 1

2. INPO Evaluation dated September 1989 (8 issues)

3. INPO Evaluation dated Decemter 26,1989 (4 issues)

A. lasses Discunned in INPO ' nip Report Dated February 8,1988 ~l issue el Petitioners quoted an INPO finding that several New flampshire Yankee (N!!Y) employces did not know their complete assigned dutics and had never 1 seca a position ()ob) description. A specific example cited was that no position description was available describing all of the duties and functions of the Radiological Assessment Manager, his INPO observation related to the Scabrook Station emergency prepared. ness efforts and organization. In its Re.:ponse, de Licensee indicated that, at l de time of the audit, the organization had not yet been stabilized and personnel massignment to handic priority' issues was common. The Licensee indicated that it is probable that some of the personnel interviewed as part of the basis of this INPO observation are now in entirely new assignments or, possibly, are no longer with Seabrook. His issue has been addressed by the Liccusee with the development and distribution of job descriptions for Emergency Planning staff positions and de reduction in staffing to a constant workforce. With regard to the Radiological Assessment Manager, the Licensec redefihed this position to l that of the Radiological *lbchnical Specialist in plant procedures and has reas-signed certain responsibilities to other Emergency Phnning staff posilloris, nc Staff has reviewed and evaluated the Licensee's actions set out in its' Response to de INPO findings. %c Licensee's corrective actions, if i pmperly implemented, should be sufficient to ensurc diat Emergency Planning staff position dutics and responsibilities are adequately documented and that . personnel are aware of th:Ir responsibilities. %c Staff considers the Licensec's corrective actions to be appropriate and responsive to Oc INPO findings.- In addition, subsequent to the issuance of the INPO Trip Report documenting the above findings, throc separate emergency preparedness (EP) inspections werc ' conducted at Seatwook Station by NRC EP specialists, %csc inspections arc ] documented in NRC Region't inspection Reports'(IR) 50-443/88-03, 89-02, i 113 i e 1 i I J S,

.I u i 1 and 9041. Areas of inspection included the Scatwook EP organization ard ' de Scalvook staff's knowledge and performance of duties. 'Ile specific INIO fmdings were encompassed within the scope of the NRC inspections. Scabrook personnel knowledge and performance of duties were noted in IR 50443/90-01 as beinE n compliance with 10 C F.R.150.47(b) and section IV of Appendix i E to 10 C.F.R. Part 50. %e creation of the Seabrook staff position of Radiation Tbchnical Specialist was noted in IR 50-443/9041. 'Ile inspection determined that de Licensce's emergency organt.ation continued to moet de requirements l of section 50.47(b) and section IV of Appendix E to 10 C.F.R. Part 50. Based on the NRC inspections conducte4 in the areas of Scabrook emergency preparteness and the Staff's assessment of Licensce's corrective actions in response to the INIO findings, the Staff las concluded that de issues raised by INPO have teen satisfactorily addressed by the Licensee and that they do not present a z!gnificant health or safety lasuc. Isser #2 Petitioners quoted an INIO fmding discussing an inconsistency between the Emergency Plan and the Emergency Plan impicmenting procedures and/or how the Plan is actually implemented. Petitioners also cited INIO findings indicadng dat revisions to onsite procedures were being made through unauthorized, undocumented methods that shortcut the approved process. ) in its Response, the Licensee stated that discrepancies telween the Emer. gency Plan and its implementing procedures had been corrected through a series of revisions. %cac revisions have been in accordance with an established ad-ministrative procedure which requires a series of reviewer approvals, incipding an independent review by the Station Operadons Review Committee (SORC) and final Station Manager approval. This administrative procedure has been in effect since August 19,1988. De Staff has reviewed and evaluated the Licensee's actions in response to i the INPO finding. %c Licensee's corrective actions included actions to correct the noted inconsistency and to establish controls to prevent similar pioblems from recurring. De Staff's assessment is that the Licensce's cortective actions adequately address the INPO findings. In andidon to the three NRC inspections of EP activities noted previously, tw EP chercises were observed by NRC inspectors since the INPO 'IYip Repormg lasued. The results of these inspections are documented in irs 50-443/88 0%d . 8910. %c inspection of the EP exercise conducted in Sepicmber 1989 ressiwi in an overall conclusion, as stated in IR 50-443/89-10, that observed Licensee activities in the areas of EP were consistent with the emergency respon.se plan and implementing procedures and that no exercise weaknesses are identified. 114 ) ? 1 i E l

~ he Licensce's Change Control Program is discussed in IR 50-443/89-0). His IR documents that procedur] changes arc approved only after de conduct of an internal review which results in the concluskm thm the revision does not negatively impact the emergency plan. Additionally, several emergency plan I and implementing procedure changes were reviewd by NRC inspectors, as documented in IR 50443/9001, and found to have been satisfactorily controlled. Based on the NRC inspections conducted in the areas of Scabrook emergency preparedness and the Staff's assessment of Licensec's corrective actions in response to the INPO findings, the Staff has concluded that these issues raised by INIO have been satisfactorily addressed by the Licensec and do not present a signincant health or safety issue, hsue #3 Ittitioners quoted an INPO finding discussing deficiencies in the Emergency Preparedness training program including a failurc of the then-current training l program to comply with tie applicable procedural requirements and a finding that the training instructors were not being selected or qualined in accordance with specified criteria. We Licensee stated in its Response that the training procedures referenced in the INPO finding were developed for operator training and were not applicable for other training programs. The Licensec has since developed a scrics of Nuclear *naining (NT) procedures and revised the Emergency Plan impicmenting l procedure to be consistent with the NT pmcedures. %c Licensee did not explicitly discuss the issue of training instructor selection or quali6 cation as noted in the INPO fmding. However, the Staff discussed this issue with the Licensec and was informed that the NT pmcedures specify training instructor selection and qualification criteria. De Staff has reviewed and evaluated the Licensee's actions in response to the INPO finding. De Staff considers the Licensee's corrective actions involving the development of a series of NT procedures and Irvising the Emergency Plan - implementing procedure to be appropriate responses to de INPO fmdings. With regard to EP training, an NRC inspection determined that the Licensee's Ihlly Integrated Nuclear Information System tracks training requirements and requalincation time periods, while nu.ntaining the correct status of. training ' records. De inspection, conducted in January 1990, and documented in IR 50443/9041, also noted that EP training at Scabrook was being conducted in compliance with section 50.47(b) and section IV.F of Appendix E to 10 C.F.R. Part 50. Based on the NRC inspections conducted in the areas of Scabrook emergency pass and the Staff's assessment of Licensec's corrective actions in response to the INPO findings, the Staff has concluded that these issues raised 115 Fm

i i i by INPO have been satisfactorily addressed by ths Licensee and do not present a significant health or safety issue. 1 II. lasues Dbcussed in INPO Evaluation Dated September 1989 issue el Petidorers quoted an INPO finding that monitoring of plant acdvities, pro-i grams, and supervisors is often ineffective in identifying needed improvements. As an example, Petidorers cited the INIO finding that senior stadon managers were unaware that instrumentation and Controls (l&C) technicians routinely used vendor manuals to troubleshoot and repair equipment, although the manuals are not approved by de Site Operations Review Committee and no program exists to keep the manuals updated. in its Response to the INPO findings, the Lkensee took several correcuve o acdons. The S:ation Management Manual was revised to clearly state expected s management oversight in the workplace which included a requirement for supervisors to submit a monthly summary of oversight acdvities performed to tie Station Manager. The Licensee also upgraded pidance for supervisory walkdowns. In addition, the Licensee, with guidance from INPO, improved the exisung plant administradve procedures governing the use of vendor manuals in the performance of maintenance acdvities. The Staff has reviewed and evaluated the Licensee's actions in response to die INPO findings. Providing clarification and guidance with regard to supervisory oversight responsibilities in the workplace should improve management oversight effectiveress. The Staff considers the strengthening of administrative controls governing the use of vendor manuals as a proper and effecdve corrective siction. The Staff considers the Licensee's corrective acdons to be apgwopriate and l responsive to the INPO findings.. The Staff, through its inspection activities, routinely observes and comments on management monitoring of plant activities and programs. Although the spe-cific issue regarding technician use of unapgwoved vendor manuals has not been previously documented by the Staff, references to the effecdveness of Seabrook [ management in monitoring of plant activities are typically summarized in the Systemade Assessment of Licensee Performance (SALP) Reports. Specific ref-crences to management oversight of maintenance acdvities can be found in SALP Repons IR 50-443/86 99 and IR 50-443/87 99, in IR $0-443/87 99, the l Staff indicated that, overall, the effecdve performance of maintenance activities had resuhed in a high level of plant equipment operability. In addidon, the Staff stated that the maintenance program had excellent controls in place which ef-fcctively tracked and managed the yorkload. *lhe Staff's findings in the area of ,a s 116 ,1 m l: r 4 4 1 3

. ~ i management oversight and Oc performance of maintenance activitics indicated acceptable Licensec performance. l Based on the NRC inspections conducted in the areas of management oversight and maintenance at Scabrook and de Staff's assessment of the Licensec's corrective actions in response to the INPO fmdings, Oc Staff has concluded that the issues raised by INPO have been satisfactorily addressed by the Licensec and do not present a significant health or safety issue. Issae 02 Petitioners quoted an INPO fmding that the Scabrook Station had experienced recurrent events duc to inadequate idendfication and investigadon of in-house operadonal events. Pedtioners cited one of six INPO examples: recurrent events involving the inadvertent draining of the refueling water storage tank (RWST) and the condensate storage tank (CST). The Petidoners further noted the significance of the events in that the RWST and CST provide water to safety systems needed in the event of an accident. De Lices,sce responded to this INPO fituting through several programmatic enhancements to improve its invesugation of in house operational events. %c Licensee indicated in its response that the Operadng Experience Review Pro-gram would te revised to incorporate industry experience azul improve distri-bution of Station Information Reports (SIRS). SIRS are used to document Oc investigation and evaluation of significant operating events. Other enhancements included the initiation of a program that would examine ogerational events of a lower threshold than those that would be examined by an SIR. De Licensee also implemented a Human Performance Evaluadon System (HPES) program to review events from a human performance standpoint, De Staff has reviewed and evaluated the Licensee's actions in response to die INPO findings. De programmade enhancements and improvements initi-ated should increase the Licensec's ability to investig: le and evaluate significant events and learn from industry experience, initiation of a program that would capture events of a lower threshold for examination is a significant improve-ment which could provide optrations penonnel with valuable information on . activities that are potential precursors to events. The Staff also considers the implementation of an HPES program an imponant action for the analysis of human performance, %c Staff considers the Licensee's coricctive actions ap. pmpriale and icsponsive to the INPO findings. l In addidon, the Staff has closely evalusted and reviewed the Licensee's idendlicadon and investigation of certain in-house operational events. For example, the Staff reviewed the Licensec's mrrective actions in response 10 the inadvertent draining of the RWST and CST in irs 50-443/88-15 and 89-03. De Staff determined that the correcdvc actions taken were adequate and appropriate 117 h [g -E e ww +

I considering the significance of the events. The Staff also routinely reviews the Licensec's application of industry experience to Fevent similar occurrences at Scabrook. 'The Licensee's review of NRC Informadon Nouces, which provide industry experience to nucicar utiliucs without requiring a speciGc licensec response, are discussed in irs 50443/87 24 and 8811. 'Ihc Staff concluded in IR 50443/8811 that the Licensee's engineering group was satisfactorily responding to operational issues that might impact plant operadons at Scabrook Based on the NRC inspections and the Licensce's corrective actions in response to the INPO findings, the Staff has concluded that the issues raised by 1NPO have been satisfactorily addressed by the Licensee and do not present a . significant health or safety issue. Y issut 0.1 Itutioners quoted an INPO finding that improved applicadon of industry operating experience, specifically INPO significant operating event reports (SOERs) and significant evcat reports (SERs), could have prevented some events that occurred at the Station. Implementation of corrective acdons to pcvent occurrence of events described in SOERs was frequendy found not to be effective or timely, in addition, INPO found that some SERs were not reviewed completely or timely, In hs Response to the INPO findings, the Licensee indicated that it had revised its Operating Experience Review Program with goals to review and implement recommendations from specifically designated SOERs within 90 days of receipt and other SOERs and SERs within 120 days, in addition, the Licensee indicated g ,that all SOER recommendations and SER suggestions have been reviewed and corrective action plans and schedules have been determined for all open SOER l t recommendations and SER suggestions.

• Ihe Staff has reviewed and evaluated the Licenscc's actions in response to the INPO fmdings. The Licensee's acdon to review :md schedule any resulting corrective actions with regard to the outstanding SOERs art SERs should bring its pogram up to date. 'The revision of the Operating Experience Review

~ Program will then provide the mechanism necessary to keer the pogram current with industry experience. *lhe Staff considers the Licensee's corrective actions to be an appropriate response to the INPO findings. r

The Staff does not typically review a licensce's actbus whh regard to INPO SOERs and SERs.1*Ihe Staff considers INPO SOERs and SERs to be useful industry tools providing information designed to help licensees enhance their plant operations. The Staff utilizes its own system of Bulletins and Generic Letters to alert licensect to safety-significant issues. As noted above, the Licensec's action in this area have been acceptabic..

f f 4 F 5 g I x 3 :

I 1 I l . Based on the Staff's assessment of the Licensec's corrective actions in response to the INIO findings, de Staff has concluded that the issues raised by INIO have been satisfactorily addressed by the Licensee and do not present a significant health or safety issue. Issue N Petitioners quoted an INIO linding involving the lack of adequate design review and documentation for plant changes and failure to incorporate changes into plant drawings and procedures with the possibility that these failures could result in plant events and reportable conditions. The INIO exampic referred to indicated that there were sixty-four outstanding temporary modifications, with some installed more than 4 years ago. Of these, fifty two required a i design engineering decision to make the modification permanent or to cancel the modification. The Licensoc had scheduled twenty-one of dese items to be completed by 1990, ton items for 1991 or later, and twenty one had no dates established. i in its Response to the INIO findings, the Licensee stated diat it has committed to review the scope of the temporary modification program. Previously installed temporary modifications that have been made permanent are being reviewed to ensure that appropriate maintenance documents are accurate. Existing plant administrative configuration controls are being enhanced. %c Licensee also initiated a program to minimite the use of future temporary modifications and i is in the process of reducing the current backlog. De Staff has reviewed and evaluated the Licensee's actions in response to the INIO Andings. The review of previously installed temporary modificptions is prudent to ensure that all controlled documents and modificalic,n checks were completed as necessary. Enhancements to the temporary modification program and adrain:strative configuration controls, if properly implemented.- - should strengthen the temporary modification process as well as minimlic the j future use of temporary modifications. The Staff considers the Licensee's J corrective actions to be appropriate and responsive to the INIO findings. In addition, the Staff routinely reviews the Licensec's temporary modification , program through the NRC inspection program. IR 50 443/87-02 documents ~ inspector discussions with the Licensee concerning minor discrepancies on certain piping and instrumentation drawings, which the Licensee corrected. A routine review of the Licensec's Monthly 'Ibmporary Modification Report which noted no discrepancies is documented in IR 50-443/8913. The Staff's review of the Licensec's overall temporary modification program is documented in IR 50-443/9045.. In IR 50-443/90-05, the Staff noted two violations for i which no citations were issued (due to the low safety significance of the itc4ns) 119 ' \\. 3 5 t, y

involving temporary modifications, tot overall found the Licensee's temporary modincation program satisfactory. Ilaned on the NRC inspecdons of the Licensee's temporary modification - program and the Licensee's corrective actions in response to the INPO fmdings, the Staff has concluded that the issues raised tiy INPO have been satisfactorily addressed by the Licensee and do not present a significant health or safety issue. issue #5 Petitioners quoted an INPO fmding involving inadequate preventative main-tenance measures for check valves. De Iicensee's check valve monitoring program was also found to be deficient in ** quantitative acceptance criteria" and insufGcient testing of check valves at Seabrook which may not identify degraded internal conditions. Check valve failures cited by INIO involved several safety systems. In addidon, INPO noted that test and inspection requirements had not 4 been speciAed for 64 of the 220 valves listed in the check valve monitoring program. Petitioners also discussed the importance of check valves in prevent-ing overpressurization of low-pressure systems and the possibility of a resultant interfacing systems loss of coolant accident. In its Response to the INPO Andings, the Licensee indicated that the check valves used at Seabrook were selected, speclAed, designed, psocured, installed, s and tested to the applicable industry codes and standards. The Licensee also i indicated that it had developed design changes or work requests to address cach m specinc check valve issue cited in the INPO report. The Licensee is currendy reviewing its current check valve design and monitoring program in order to enhance the existing check valve maintenance program. His effort is scheduled to be completed by October 1990. The review follows industry guidance and includes an assessment of the appropriate preventative maintenance measures and acceptance criteria. %e Licensee is also performing a design review of check valves for applicability in accordance with accepted industry guidelines. - De Staff has stylewed and evaluated the Licensee's actions in response to the INPO Gndings. De Staff views the Licensee's action to address each check ( - valve issue identined in the INPO report with the appropriate design change or work request as responsive.7 he Licensee's efforts to upgrade hs check I . valve design, monitoring, and maintenance programs in kund i.cc with industry guidance should result in improved check valve reliability. De establishment of J appropriate preventative maintenance measures and suitable acceptance criteria is a vital part of a comprehensive program to ensure check valve operability. De - Staff considers the Licensee's corrective actions as appropriate and responsive to the INPO nndings. q ~ 120 1 ~ i u ,i s 0 -E+5-- . 5 e.U m___.__.. _ _ __. __,.,, _.,__ _ _ _ _ f

- ~ I 4 in addition, de Staff has routinely inspected the Licensec's actions with re-gard to check valve operability. The Staff has found de Licensec's programs involving check valve design and monitoring of check valve operability accept-4.10 as documented in NUREO-08%,8 Supplements 5 and 7. %c Staff also found the Licensec's in-service testing program for all safety-related pumps and valves (which includes check valves) acceptable as stated in NURf4-08%, Sup-picment 6. Based on the Staff's review of the areas involving check valve operability at Seabrook and the Staff's assessment of de Licensec's corrective actions in response to the INPO findings, the Staff has concluded that the issues raised by INPO have been satisfactorily addressed by the Licensec and do not present a i significant health or safety issue. Issue N De INPO finding quoted by Petitioners involved the use of unaggroved vendor technical manuals in the performance of various maintenance activitics. he finding also indicated that some of the manuals lacked sufficient information to provide sufficient technical direction for conducting maintenance. %c Licensce's Response to ti.c INPO finding indicated that the current program and procedures for handling vendor technical information, including vendor technical manuals, has been enhanced to include applicable INPO, and other industry guidance.' The program has been strengthened to include additional evaluation of vendor technical information upon receipt to determine any necessary actions. All required actions are den tracked to completion. We Licensee has also provided additional trikining to personnel on procedures regarding vendor information. %c Staff has reviewed and evaluated the Licensec's actions in response j to the INPO findings. ' The Licensee's programmatic enhancements should strengthen its program for the control of vendor technical information. The Staff j' has recently issued Generic Letter (OL) 9003 which descrites its position on vendor interface with regard to safety relatedemponent vendors, in the OL, the Staff references the Vendor Equipment 'Ibchnical information Pmgram (VETIP) described in INPO Report 84 010. The Staff has found the VE11P INPO report, j which the Licensec has used to upgrade its program and procedures for handling vendor technical information, to be acceptable. Thus, the Licerace's corrective 1 ~ actions have been taken in accordance with the Staff's stated policy. Based on the Staff's assessment of the Licensec's corrective actions in j response to the INPO findings, the Staff has concluded that the issues raised by 8NURno Os96, %rety Evaluanas aspwt aelated to the ope,enan er Seebronk sinnon. Uniu I and 1* supplanant Na s. My 19s6. end supplaners Na 7. Ondier 19s7. ) + '121 .) I i j R in i'l,

INIO have been satisfactorily addressed by the Licensec and do not present a significant health or safety issue. Issue 07 Petitioners quoted the INIO finding involving the adequacy of the Licensec's equipment tagging and isolation procedure. Petitioners also indicated that INPO had cited three problems, some involving safety systems, where the procedures in effut were not adequate to prevent equipment damage or personrel injury. As a result of the INPO finding, the Licensee indicated in its Response that it is revising the station tagging control procedure tc include additional guidance and controls. Additional guidance includes upgrading procedures governing the proper sequence for component isolation and providing for tagging order audits on a frequency adequate to identify problems. 'Ihc Licensec has indicated that, as part of these revisions, the applicable INPO guidelines and good practices are icing used and the INPO findings addressed. 'Ihe Staff has reviewed and evaluated the Licensec's actkins in response to the INPO findings. The strengthening of component isolation procedures can reduce the likelihood of component damage during maintenance activitics, increasing the program audit frequency should provide the Licensec with timely feedback on the effectiveness of the programmatic enhancements. These improvements, if properly implemented, should result in an improved equipment tagging and isolation program. The Staff considers the Licensec's corrective actions to le responsive and appropriate to the INIO findings. In addition, the Staff routinely monitors the Licensec's program of equipment tagging and isolation. Ibr exampic, in 1987 the Staff issued a violation to the Licensee for failure to proprxly implement the requirements of the equipment i tagging program with respect to work performed on the service water system, in response to the Staff's concerns, the Licensee revised tie tagging procedure and actrained the operators involved. 'Ihe issue is discussed in IR 40-443/88-02, Since closure of this violation, Staff inspections of the Licensee's equipment tagging and isolation program, documented in irs 50-443/89-08 and 89-13, have found no violatiora. Based on the NRC inspections conducted in this area and the Staff's as-sessment of the Licensec's corrective actions in gesponse to the INPO findings, the Staff has concluded that the issues raised by INPO have been satisfactorily addressed by the Licensec and do not present a significant health or safety issue. l 122 i l' i l l I' L v

f p' l [ issue 08 Petitioners quoted an INPO fmding involving the material condition of plant equipment and piping. %c fmding indicated that some plant equipment and piping was degraded due to corrosion and that many equipment deficiencies were not in the work control system. Exampics included safety system components. %c Licensee indicated in its Response that it has taken several corrective actions in regard to this INPO Gnding concerning equipment deficiencies. Dese - actions include upgrading the program for supervisory walkdowns, adding a T ' deficiency tg',ing program to enhance mutine equipment reporting, and the condnuation of a 5-year plant painting program. nc Staff has reviewed and evaluated the Licensec's actions in Response to the INp0 Gnding. The Licensec's corrective actions involving the initiation of 'a deficiency tagging program and the continuation of a 5-year painting program appear to be an appropriate response to the INPO fmdings. In addition, 1 supervisory walkdowns are typically an effective management tool in focusing attention on a plant's material condition, %c Staff considers de Licensec's corrective act!ons to be appropriate and responsive to the INPO fmdings. %c plant's material condition is routinely observed, inspected, and docu- .k mented through the NRC inspection program. Routinc inspections of the plant's material condition are conducted by the NRC plant realdent inspectors and are C documented in irs 50443/88-04, 8b-07, 8810, and 90-05.' nese inspections ' found the plant material condition to be satisfactory overall, and no violatbns were noted! In addition to the routine inspections conducted by the plant resi. k dent inspectors, NRC regional management has also conducted reviews of the plant material condition. IR 50-443/89 20 documents the review conducted by NRC regional management. Again, the Staff found no violations and concluded that the plant material condition was acceptable. 1 Based on the NRC inspections conducted in this area and the Staff's as-sessment of the Licensce's corrective actions in response to the INPO findings, Y the Staff has concluded that the issues raisAl by INPO have been satisfactorily i 4 addressed by the Licensee and that they do not present a significant health or q A safety issue, g n d C. Issues Discuaned in INPO Evaluation Dated December 26,1989 y W \\ issue el n@@. _ Petitioners quoted an INPO fmding involving the needed shifting of corporate Al I [ cmphasis fmm s' construction to an. operations orientation. In this regard, j z gi Lthe INPO finding. indicated that the solid radioactive waste handling gmup C'T required 'stafGng and that recent maintenance training had been cancelled duc- - to insufGcient resources. %c INPO report also indicated that senior plant and Ilni f;g" + n 123 o m e p q 1 ,#1 .4 c. ( o 4 d'*,m 4_ Vid [ y' lll{ 1 I ,( ? 1 n [

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? I corporate management were unaware of the cancellation of training and the impact on em maintenance department's readiness for power operations. 'Ihe Licensee in its Response indicated that the responsibilldes of the Pro-l . duction organizadon and those NHY organlutions supporting Production are defined in the NHY manual system. ScrOr Production Management now chairs regular meetings with appropriate station supervision and corporr,te supervision. - The Licensee emphastred tlut production priorities are clearly defined and the support necessary to resolve production problems are identified and allocated. I in response to this INPO finding the Licensee has since staffed the Radioac. l - tive Waste Handling Group ano the Operations Support Group, in addition, the Licensee stated that the INPO finding regarding maintenance training has been fully addressed. Adequate resources and auention to correct maintenance training have been applied. 'the Staff has reviewed and evaluated the Licensec's actions in response to the INPO findings. The Staff recognizes that Dese types of findings are not atypical of a plant shifting from a construcdon to a producticn orientation. 'Ihe Licensee's corrective actions, if properly implemented, should help dirent the organizadon toward a production orientation. The Staff expects the Licer.sce to L continue concentration on staffing and training as plant operation continues. 'Ihe Staff considers the Licensce's corrective actions to be appropriate and responsive to the INPO findings. in addition, the Staff has closely monitored the Licensec's activitics in its 1 transition from a construction to an operations orientation. As indicated previ- 'ously, the Staff typically.uses the SALP process to comment on management

performance. The last three SALP Reports, irs 50-443/85-98,86-99, and 87-j

.99,' document the Staff's assessment of the Licensec's shifting of emphasis from a construction to an operations orientation. 'Ihc Staff has noted in these W CALP Reports that the Licensec's performance reflected a continued commit. , rient to quality as the t ition from construction to operations progressed. IR 50-443/90-03 documems die Staff's inspecilon of the IJcensee's radioactive processing and paciaging pmgram. No violations were identitied and the Staff ' determined that the facility'was'rcady for full power operation. Based on the NRC inspections conducted in this alta and the Staff's as- - sessment of the Licensec's corrective actions in response to the INPO findings, the Staff has concluded that the issues raised by INPO have been sadsfactorily - alkiressed by the Licensec and do not present a significant health or safety issuc. - ] Issue 02 . The INPO findings ciuoted by Petitioners involved the timeliness and ade-q J quacy;of implementation of corrective acthns to tesolve problems identified' j + m l p t ( L,. . 124 i. 4 II 1Q* . g, + i $ !$$. a ,, f. 'Il s ><l4 m hi', + m: a 1 1, @t' .e t 1 i 's ( 3 J ) (qc: L hy. % W, Ruv n:c w w 7 4 M ) W s 'g u@o i[i 'd. i

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~_._ 5 E + 1 t t within the NHY organization. Examples included repetitive procedural adher-ence problems and check valve failures. De Licensee indicated in its Response that it has developed a program to identify open issues and problems areas, consolidate the issues into an Integrated Readiness Document and assign a completion schedule %cse issues are dien ' reviewed by senior management and tracked until closure. Meetings between ,^ senior management and employees are held weekly to obtain feedback on issues 'and effectiveness of corrective acdons implemented. In regard to procedural ' adherence problems, the Licensee completed procedure compliance training for all slic personnel in December 1989. %c Licensee also indicated that a design ,/ review of check valves as well as a review of prevendvc maintenance acdvitics, using industry guidelines, is currendy being conducted. De Staff has reviewed and evaluated de Licensec's actions taken in response l i to the INPO fmdings. The issue involving check valves has been previously discussed herein. In regard to the repctitive nature of procedural adherence E problems, compliance training for all site personnel, stressing the significance of following procedures, is generally effective at focusing personnel attendon on the importance of procedural adherence. %c Licensee's corrective acdons, if. - properly 1,aplemented, should provide the basis for reduction of the instances of inadequate procedural adherence. The Staff considers the Licensce's corrective actions to be appropriate and responsive to the INPO findings. ' %c Staff has closely monitored the Licensec's actions with regard to proce- . dural adherence through the NRC inspecdon program. This issue is of particular concern to the Staff in view of the past failure of certain Licensec managers observing a natural circulation test at Scabrook on June 22,1989, to ensurc ' adherence to test procedure requirements. The June 22, 1989 cvent is, doc-l , umented in.!R 50-443/89 92 and discusses the failure of die operating crew [ s to comply with an explicit procedum! requirement. De event resulted in the , Staff issuance of Confirmatory Action Letter (CAL) 89-11 which required the .Licensec 10 perform a number of corrective actions with regard to procedural 1 adherence. These actions included issuance of the Licensec's policy defming '[1 d . Imedural adherence requirements for all activitics, issuance 06 9 memorandum to all personnel recmphasizing the requirement that all procedures N followed, in

and enhanecment of the Seahmok Management Manual to ckarly state the only D

iconditions under which departure from approved procedures is allowed. The . y' k completion and closure of the Licensec's corrective actions is documented in IR g s 50443/89 831The Staff concluded the this Licensec had adequately adoressed l the issue of procedural compliance. .. Based oc the.NRC inspections conducted in this area and the Staff's as-y ,s sessment of the Licensee's corrective actions'in reslonse to the INPO findings,- i 4

e ; the Staff has concluded that the issues" raised by INPO have been satisfactorily ;

1 addressed by the Licensec and do not present a significant health or safety issue. I + jy ;p Yp' Nh~n ...? .H A . 125;. 1 4/SL 4" D s 1 .[ .l r N,>il o 1 j, f I f Y ( '.7, i 3 [. / 3 'a,, 4 v lL Qf, ') ' m E Wi jf, > !/ 3 s 9 gpg ' ' g w n n(( [ gMQ7[t, if i m m

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I--- I i t - Issue 03 Ittitioners quoted an INPO finding which indicated that corporate and station 1 management were often not held accountaNe for timely completion of assigned e E

tasks. thamples cited by INPO incluu 1 past due integrated commitment

- tracking items, failure 80 achieve 62 percent of the corporate goals for 1989, and overdue personnel annual appraisals. %c Liccusec in its Response indicated that it has taken a number of corrective ? actions with regard to this INPO fmding. A Core Values and Work Ethic Program was implemented to strengthen attention to detail, accountability, and corporate expectations regarding high quality work with appropriate attention to 11 comatitments, cost control, and work effectiveness. De Integrated Commitment 'nacking System (ICTS) was revised, implementing a new priority system, -3 tighter controls, and closer tracking. Personnel are being held accountable for completion of INPO findings through the use of the ICTS. Accountability for completion performance appraisals has been tied to annual wage and salary r -actions, Accomitability for established goals has been emphasized in writing to all manegers. %c goals program is being reviewed monthly to ensume that establis%l goals are consistent with management priorities. %c Staff has reviewed and evaluated the Licensee's actions taken in response to the INPO fmdings, nc ICTS should provide management with the tool it l' becds to accurately track outstanding commitments and to ensure accountcbility for the timely completion of assignments. Assigning accountability for specific goals clarifies management's prioritics and should focus the organization on the issues considered important by management. Monthly review of site goals should keep middle management and the plant staff current with senior man-O . agement prioritics. %c Licensec's corrective actions, if properly implemented, should provide the basis for improved accountability and more timely comple-L tion of assigned items. %c Staff considers the Licensce's corrective actions to R' .be appropriate and responsive to the INN findings. l l , %c Staff, in the course of its inspection program, les reviewed and evaluated 4

a number of the Licensec's programs for goal accountability. %c Staff discusses the Licensec's Com Values and Work Ethic Policy statement in IR 50-443/89 l

. and found the statement satisfactory. S ALP Report 50 443/87 99 documents the Staff's assessment that the Licensec's performance with respect to maintenance work requests relative to Station goals was also satisfactory, in addition, the Staff 41 reviewed, as appropriate, a number of documents involving personnel actions 4 i taken by the Licensec as the result of the Junc.22,1989. natural circulation : 7% - test event as documented inLIR 50443/89-21,9 The Staff concluded that the J

Licensec's actions were appropriate.

= Based on the NRC inspections conducted.in this area and the Staff's as-g p . sessment of the Licensec's corrective actions in response to the INPO findings, Q n s ~ r 4 IX j )g

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] -I _ the Staff has concluded that the issues raised by INPO have been satisfactorily j i addressed by the Licensee and do not present a significant health or safety issue. l Issue N ' Petitioners quoted an INPO finding that insufficient management attention had been given to the development and implementation of a radioactive waste handling program and that key segments of the program were not in place. INPO examples cited by Petidoners included: uncicar responsibility between two Licensee departments for radioactive waste processing and shipment. incomplete reorganization and staffing of the propr) sed radioactive waste organization, the J ~ failure of the radioactive waste minimization commluce to meet for over 2 years, "7 ^ . and the failure to communicate plans and milestones for the temporary storage of radioacdve wasic prior to the availability of long-term storage, g in response to the INPO fmdings, the Licensee developed a comprehensive ~ radioactive waste program with acccmpanying staffing requirements and imple-i i mented a training program for radioacdve waste technicians. Transfer of the chairmanship of the established radwaste minimization committee was also fi-nalized.' A minimization program and fmal plans for temporary storage of solid low level waste have also been completed. 'Ihe Staff has reviewed and evaluated the Licensec's actions taken in tesponse to the INPO findings. Completion and implementatkm of a comprehensive ra-4 dioactive waste progroun should clarify departmental responsibilitics and result in

adequale staffing. Reestablishing the chairmanship of the radwaste minimization s

commitlec should result in a more active committee. 'the Licensee's corrective ~ rwtlons, if properly implemented, should result in an effective radianctive. waste handling program. The Staff considers the Licensce's corrective actions to be appropriate. and responsive to the INPO findings. In its inspection program, the Staff has conducted a startup inspection to review and assess the Licensec's ability to control and quantify radioacti~.' waste and to review management controls of the Licensec's radioacdve waste ( pmgrams. The inspection results are documented in IR 50-443/89 18 and IR 50- ' 443/90-03. The Staff found the management controls in place for the radioactive g waste program to.be satisfactory and conchuled.that the Licensee's radwaste programs were ready for full power operations. p . ' Based on the NRC inspections conducted in the area of radwaste controls \\ tand the Staff's assessment of the Licensec's coricctive actions in response to - ,'g i _.y +y i the INPO findings, the Staff has concluded that the issues raised by INPO have H f

been satisfactorily addressed.by the Licensee and that they do not present a '

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.c. l IV. CONCLUSIONS 1%e NRC Staff has reviewed the allegations in the Intervencts' Petition v including the congicssional testimony of Messrs. Pollard and Nader, which maintained that the Scabrook Unit I facility was not in compliance with NRC requirements and was unsafe to operate and has found the allegations not to bc - substantiated. De INPO reports on which these allegations were founded do not indicate that the 5:abrook facility is out of conformance with NRC requirements or that it is unsafe to operate. The Licensec's corrective actions were appropriate and responsive to the INPO findings. %c NRC Staff's assessment extended beyond the specific issues raised in the Petition and included an assessment of the overall impact of INPO findings with regard to the Scabrook facility. As noted herein, the NRC Staff has access to and has reviewed all INPO Reports that have assessed the performance of j the Licensec. De reviews of all these reports, as well as those referred to above, did not reveal any substantial health and safety issues that would call into question the cor.unued safe operation of Scabrook Unit 1. De institution of proceedings in response to a request pursuant to section 2.206 is appropriate only when substantial health and safety issues have been raised.' See Consolidated Edison Co. of New York (Indian Point, Units 1,2, and 3), CLl 75 8, 2 NRC 173,176 (1975), and Washington Public Power Supply System (WPPSS Nuclear Project No. 2), DD-84 7,19 NRC 899,923 (1984). . His standard has been applied to determine whether any action in response to the Petition is warranted, Ibr the reasons discussed above, no basis exists for 'taking any action in response to the Petition as no substantial health or safety issues have been raised by tne Petition. ' Accw ingly, no action pursupt to section 2.206 is being taken in this matter. A copy of this Decision will be filed with the Gecretary of the Commission for the Commission's review in accoedance with 10 C.F.R. 62.206(c). FOR Tile NUCLEAR REOULA'lDRY COMMISSION Thomas E. Murley, Director Office of Nuclear Reactor Regulation : -~ t c Dated at Rockville, Maryland, + ( this 31st day of August 1990. .c sd: i .'"i i j .-zg t,....: M (s ,y. ' 128 L , a x + li bY., j 8, 3 . 1

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