ML20070B870

Nuclear Regulatory Commission Issuances for November 1990. Pages 333-393

ML20070B870
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Issue date:	01/31/1991
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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NUREG-0750, NUREG-0750-V32-N05, NUREG-750, NUREG-750-V32-N5, NUDOCS 9102040314
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NUCLEAR REGULATORYL l

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NUCLEAR REGULATORY COMMISSION ISSUANCES L

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l NUREG-0750 Vol. 32, No. 5 Pagos 333-393 NUC_ EAR REGULATORY COV1VISSION ISSUA\\CES November 1990 J

l This report includos the issuances rocoived during the specified period from the Commission (CLl), the Atomic Safety and Liconsing Appeal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Ad-ministrativo Law Judges (ALJ), the Directors' Decisions (DD), and the Donials of Petitions for Rulomaking (DPRM).

1 The summarios and headnotes procoding the opinions reported herein are not to be doomed a part of those opinions or have any Indopondent legal significance.

U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Froodom of Information and Publicatione Services Offico of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925) lu

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COMMISSIONERS Kenneth M. Carr, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick Christino N. Kohl, Chairman, Atomic Safety and Licensing Appeal Panot B. Paul Cotter, Chief AdmWstrative Judgo, Atomic Safety and Uconsing Board Panel

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CONTENTS

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l luuance of the Nuclear llegulatory Commission STATE OF ILLINOIS Dacket PR 90-1 MISC (Amendment No. I to Section 274 Agreement

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Itetween NRC and Illinois)

MEMORANDUM AND ORDER, CLI 9011, November 8,1990.... 333 l

luuance of the Atomic Safety and 1.lcensing Appeal floard J

PUl!LIC SEP.VICE COMPANY OF NEW ll AMPSilIRE, et al.

(Seabrook Station, Units 1 and 2)

Dockets $0-443 01., $0-444 OL (Offsite Emergency Planning issues)

Dl! CISION, ALAB 941, November 21,1990.....................

337 luuances of the Atomic Safety and Licensing Iloards CLEVELAND ELECTRIC ILLUMINN!1NO COMPANY, et al.

(Perry Nuclear Power Plant, Unit 1)

Docket 50-440-OLA 2 (ASLUP No. 90-605-02 OLA)

INITIAL DECISION, LDP 90 39, November 1,1990........... 368 CURATORS OF THE UNIVERSITY OF MISSOURI i

Dockets 70 00270,30 02278 MLA (ASLBP No.90-613 02-MLA)

(TRUMP S Project) (Dyproduct License No. 24-00513 32; Special Nuclear Materials License No. SNM 247)

MEMORANDUM AND ORDER, LBP 90-38, November 1,1990... 359 CURATORS OF 'lllE UNIVERSITY OF MISSOURI Dockets 70 00270,30-02278.MLA (ASLBP No. 90-613-02.MLA)

(TRUMP S Project) (Dyproduct License No. 24-00513 32; Special Nuclear Materials License No. SNM 247)

MEMORANDUM AND ORDER, LDP 9041, November 16, 1990.. 380 PUBLIC SERVICE COMPANY OF NEW llAMPSillRE, et al.

(Seabrook Station, Units 1 and 2)

Dockets $0-443 OLR 3,50-444-OLR 3 (ASLBP No. 90-619-03-OLR-3)

(Offsite Emergency Planning)

MEMORANDUM AND ORDER, LDP.9040, November 7,1990... 376 111 L

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k TULSA GAMMA RAY, INC.

IAxket 30-12319 CivP (ASLUP No. 90-618-03-CivP)

(Materials License No. 3517178 01)(EA 89 223)

PRElIEARING CONFERENCE MEMORANDUM AND ORDER, LDP 9042, Octolet 29,1990...............................

387 TULSA GAMMA RAY,1NC.

Docket 3012319 CivP (ASLBP No. 90418 03 CivP)

(Materials License No. 3517178 01)(EA 89 223)

MEMORANDUM AND ORDER, LBP 90-43, November 15, 1990.. 390

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CLI 9011 4

UNITED STATES OF AMERICA i

NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Kenneth M. Carr, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick in the Matter of Docket No. PR 90-1 MISC (Amendment No.1 to Section 274 Agreement Between NRC and Illinois)-

i STATE OF ILLINOIS -

November 8,1990

• Ihc Commission denies Kerr hicGec's petition for reconsideration of its Oc-tober 17,1990 Order (CLI 90 9,32 NRC 210) which denied Kerr hicGec's re-quest for an adjudicatory hearing prior to Commission approval of an amendment to the NRC/Illinols Agreement to allow Illinois to assume regulatory authority over section lle(2) byproduct material. The Commission finds that Kerr htcGee has given no reason why the further hearing that must be held before Illinois can impose its differing standards must be held now, before Illinois has even L

formulated a disposal plan detailed enough for a Commission determination as to whether Illinois' standards would achieve a level of protection of public health and the environment equivalent to, or greater than, the level that would be achieved by Commission standards. The Commission also denies Kerr hicGec's regtzst to stay any further action on the Amendment to the NRC/ Illinois Agree-ment MEMORANDUM AND ORDER On October 29,1990, the Kerr McGee Chemical Corporation filed a petition for reconsideration of the Commission's October 17,1990 hiemorandum and 333 1

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Order denying Kerr-McGec's motion requesting the Commission to hold an adjudicatory hearing before deciding whether to approve a proposed Amendment to ita Agreement with the State of Illinois. In the Matter of State ofIllinois.

CL190 9. 32 NRC 210 (1990). I!!inois responded to Kerr McGec's petition on November 5,1990. De Amendment, which tecame effective November 1,1990, approves the State's generic program for the regulation of " byproduct material" as defined in section lle(2) of the Atomic Erergy Act of 1954, as amended (AEA), and permits Illinois to assume regulatory authority over such material,in accordance with section 274 of the AEA. Sorne of the standards in the State's generic program differ from analogous standards established by the Commission, in denying Kerr McOce's motion for an adjudicatory hearing befo,6 approv-Ing the amendment, the Commission held that the Commission did nonetheless have the very important oldigstion (under section 274o or de AEA) to ensure that a state's amlication of standards that differ from those established ty the Gunmissian also achieves

, a level of protection of public heahh and the environment, equivalent to, to the extent practiable,or greater than, the level that would be achieved ty the Ornmission's sten!ards.

CLI 90-9, 32 NRC at 216. Ilowever, the Commission ruled that "this site-specific obligation will arise only later if and v hen !!!!nois,., socks to impose standards that differ from the Commission's own standards." /d. at 217.

Kerr McOce's petition for reconsideration of the Cornmission's October 17, 1990 Memorandum and Order is denied. De petitio; presents no relevant argument not considered previously by the Commission. In particular, the Commh.sion fully expected that its approval of the Amendment to Illinois' section 274 Agreement would lead one or more of the parties in the proceeding l

now pending before the Atomic Safety and Licensing Appeal Board (Docket No. 40 2061 ML) to move to terminate that procccding and vacate the initial decision. As Kerr McOcc points out, such a motion has teen filed with the Appeal Board, and the Commission expresses no opinion as to how that motion should be declJed. Moreover, Kerr McGee has given no reason why the further hearing that must be held tefore Illinois can impose its differing standards must te held now, before Illinois has even formulated a disposal plan detailed enough to permit the Commission to determlnc in a hearing whether the plan achieved a level of pmtection of public health and the environment equivalent to, or greater than, the level that would be achieved by the Commission's standards.

Kert McOce's motion for stay of further action on the Amendment to the section 274 Agreement is also denied. Again, no new argume.it is presented on the need for an adjudicatory hearint., and the motion fails to address the usual factors associated with grants of stay motions. See 10 C.F.R.12.788(c).

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i lt is so ORDERED.

For the Cornmission

$AMUEL J. CHILK Secretary of the Commission l

Dated at Rockville, Maryland, this 8th day of November 1990.

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1 ATOMIC SAFETY AND UCENSING APPEIL PANEL

,h Chnstmo N Kohl, Chairman Alan S. Rosenthal l

Dr. W. Reed Johnson Thomas S. Moore

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Howard A.Mtier 0 Paul bothverk. til

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ALAB 94i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

ATOMIC SAFETY AND LICENSING APPEAL BOAMD II Administrative Judges:

i G. Paul Bollwerk, Ill, Chairman Alan S. Rosenthal l' award A. Wilber 4

in the Matter of Docket Nos. 50-443 OL 50-444-OL -

_ (Offsite Emergency Planning issuec)

PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.

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(Sembrook Station, Units 1 ana 2)

November 21,1990 l

In examining intervenor appeals regarding contentions on the scope of a " full participation" exercise addressed by the Licensing Board in LDP 89-32,30 NRC 1

575 (1989), and in an unpublished Memorandum and Order (Dec.15,198fs), the Appeal Board affirms. the Licensing Board's disposition of certain contentions, reverses a Board determination relating to gnrticipation by school offic:als in the exercise, and dismisses as moot the Massa 0's appeal from the Board's disposition of a portion of a contention regarding utilization of a mobile alerting systun during the exercise.

RULES OF PRACTICE: CONTENTIONS (APPEALAllILITY OF '

DISMISSAL)I FINALITY OF DECISIONS 4

Under the Commission's Rules of Practice, an appellate challenge to du rejection of a contention in an interlocutory order must await ihe rendition

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of a Licensing Board inillal decision encomlussing the subject matter of the contention. Sec 10 C.F.R. I 2330(f); Nonhcrn States Powcc Co. (Tyrone Enctgy 1* ark, Unit 1), ALAD 492,8 NRC 251 (1978).

RULES OF PRACTICE: CONTENTIONS (SPEClflCITY AND ll ASIS)-

A "contendon" should be a statement of the issue sought to be lidgated while d e "teses" accompanying the contention should be the factual allegations that provide some credible foundation for the contention. Sec 10 C.F.R. 5 2314(b).

OPERATING LICENSE (S): EMERGENCY PREPAREDNESS (EXERCISE)

Appendix E, ilV.F.1 of 10 C.F.R. requires a full participation emergency preparedness exettisc withh; twr ars tefore the issuance of a full powvr operating liccuse.

RULFS OF PRACTICE: CONTI:NTIONS (SCOPE OF EXERCISE)

EMERGENC) PLAN (S): SCODE OF INIT:AL EXERCISE Doth the Commission's regulations and the " fundamental flaw" criterion governing the admission of exercisc-related contentions establish that a con-tention questioning the adequacy of the scope of a full participation exerc5c is appropriate as part of an adjudicatory challenge to the sufficiency of the ex:

crcise. Long ' stand Lighting Co. (Shoreham Nuclear Power Stadon, Unit 1),-

A'.All 900, 28 NRC 275, 285 93, revicw declined, CL18811,28 NRC 603 (1988).

OPERATING LICENSE (S): EMERGENCY PREPAREDNESS (EXERCISE) -

EMERGENCY PLAN (S): SCOPE OF INITIAL EXERCISE REGULXi'lONS: INTERPRETATION (10 C.F.R. PART 50, AI'PENI#1X E)

'the scope of a fuh partkipadon exercise is to encompass the " major

tecrvable portions" of both onsite and offsite emergency plans (including the mobilitation of state, local, and applicant personnel and resources), in a manner

_ sufficies? to verify that, in de context e the uccident scei rio, cmergency r

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. response capability is adequate. Shorcham, ALAll 900, 28 NRC at 292 93

-(citing 10 C.F.R. Part 50, App. E, $ 1V.F.1 n,4),

OPERATING LICENSE (Sh EMERGENCY PREPAREDNESS (EXERCISE).

• lhe purpose behind allowing litigation relative to an exercise is to ascertain if there are any fundamental P ws in the emergency plan being tested.

REGULATIONS: INTERPRETATION (10 C.F.R. PART 50, APPENDIX E)-

OPERATING LICENSE (S): EMERGENCY PREPAREDNESS (EXERCISE).

A facility's public alert aM. notification system is a " major observo 'e portion" of an offsite energency plan. See Shoreham, ALAB-900,28 NRC at 294.

OPERATING LICENSE (S): EMERGENCY PREPAREDNESS (EXERCISE)

EMERGENCY PLAN (S): NOTIFICATION REQUIREMENTS The emergency broadcast system (EDS) portion is "an integml component of the public nollfication system," Shorcham, ALAB 900,28 NRC at 294, as is the other major component - the siren alerting system,. Each component Inust function adequately in order for the public notification system to be fully operational.

EMERGENCY PLANNING: FEMA FINDINGS (NEED FOR FINAL FINDINGS)

EMERGlCY PLAN (S):- FEMA FINDINGS (NEED IVR FINAL FINDINGS); NOTIFICATION REQUIREMENTS The final FEMA test or findings concerning the siren system design need not be completed prior to a Licensing Boani finding concerning the adequacy of planning efforts regarding the system. Carolina four & Light Co. (Shearon llartis Nuclear Power Plant), ALAB 852,24 NRC 532,546 (1986).

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EMERGENCY PLAN (S): SCOPE OF INITIAL EXERCISE (DEFICIENCIES IN)

The cure for an exercise scope deficiency is to provide for testing of the relevant component in a remedial exercise. Shoreham, CL188 il,28 NRC at 601.

. REGULATIONS: - INTERPRETATION (10 C.F.R. PART 50, '

APPENDIX E)

OPERATING LICENSE (S): EMERGENCY PREPAREDNESS (EXERCISE)

EMERGENCY l'LAN(S): SCOPE OF INITIAL EXERCISE The proviso of 10 C.F.R. Part 50, App. E, IIV.F.1 that an exercise must test as much of the emergency pla as is " reasonably achievable without mandatory public participadon" does not generally exempt from participation in the exercisc a private emergency relief organization like the American Red Cross (ARC) whose participation is contemplated by a particular emergency plan.

EMERGENCY PLAN (S): ' NOTh1 CATION REQUIREMENTS

'The timing of the EDS broadcast, as opposed to the sounding of the sirens, is irrelevant to compliance with the 15. minute initial notification requirement of 10 C.F.R. Part 50, App. E, 6 IV.DS. See ALAB 935, 32 NRC 57, 68-69 (1990).

REGULATIONS: INTERPRETATION (10 C.F.R. PART 50, APPENDIX E)

OPERATING LICENSE (S):- EMERGENCY PREPAREDNESS (EXERCISE)-

EMERGENCY PLAN (S):. SCOPE OF INITIAL EXERCISE While the " participation of state and local governments in an emergency exercise is not required to the extent that the applicant has identified those governments refusing to participate," 10 C.F.R. Part 50, app. E, iIV.P.6, such exemption is not applicable to the ARC as a private organization.

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EMERGENCY PLAN (S): SCOPE OF INITIAL EXERCISE REGULATIONS: INTERPitETATION (10 C.P.R. PART 50, APPENDIX E) _

Appendix E, OIV.P.I n.4 of 10 C.F.R Part 50 declares that response personnel and resources are to be mobilized in " sufficient numbers to verify the capability to respond to tic accident scenario." la the enntext of determining the.

appropriate scope of an exercise, ascertaining just what are " sufficient numbers" involves the_ appliccdon of reasoned judgment diat takes account of both dic intricacies of the emergency plan, as well as the geretal exercise objective of testing the adequacy of the plan.

1 EMERGENCY PLAN (S): SCOPE OF INITIAL EXERCISE REGULATIONS: INTERPRETATION (10 C.F.R. PART 50,

-APPENDIX E)

Activation of two of four planned reception centers, cach of which was roughly representadve of one of the unactivated recepdon centers, constitutes

" sufficient numbers to verify the capability to respond to the accident scenario."

10 C.P.R. Part 50, App. E, 6 IV.F.1 n,4.

RULES OF PRACTICE: CONTENTIONS (EMERGENCY PLANS) in alleging that emergency plan deficiencies, as revealed in an exercise, are sufficier.t to suggest a fundamental flaw in the emergency plan that requires -

correction, the contentions must be "well focused" and " concrete" with " greater detail" than nonexercise contentions. Shcrcham, ALAB 903,28 NRC 499,506 (1988).

RULES OF PRACTICE: CONTENTIONS (SPECIFICITY AND llASISI EMERGENCY PLANS)

A contention's reference to a FEMA report on an exercise, without even specifying what part of the report might provide a foundation for its allegations, is totally wanting under the standard which requires that emergency plan contentions be "well focused." See CLI 89-3,29 NRC 234,240-41 (1989).

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EMERGENCY PLANNING: EVACUATION (SPECIAL POPULATIONS)

EMERGENCY PLAN (S): CONTENT (EVACUATION)

"[TJhc potential evacuation of schools within the emergency planning zone (EPZ) is a major element of offsite emergency planning." Shorrham, ALAB.

900,28 NRC at 297.

EMERGENCY PLAN (S): CONTENT (EVACUATION); SCOPE OF INITIAL EXERCISE "A sufficient number of school and related personnel must... participate in a full participation exercise so as to permit verification of their integrated capability to respond to the accident scenario." Shoreham, ALAB 900,28 NRC at 297.

EMERGENCY "LAN(S): SCOPE OF INITIAL EXERCISE REGULATIONS: INTERPRETATION (10 C.F.R. PART 50, APPENDIX E).

An exercise that encompasses a reasonable representative sample for cach school category - public, private, and nursery / day-care - cnables the "verifa.

cation of [the schools'] integrated capability to respond to the accident scenario."

Shoreham, ALAB 900,28 NRC at 297.

EMERGENCY PLANNING: EVACUATION (SPECIAL POPULATIONS)

EMERGENCY PLAN (S): CONTENT (EVACUATION); SCOPE OF

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INITIAL EXERCISE Concerning letters of agreement (LOAs) that bus companics have with applicants to assist in evacuating special needs populations, the possibility that some extrancous circumstance - such as, for example, a region wide bus l1 drivers' strike-will preclude the fulfillment of the terms of the LOAs does not constitute a " fundamental flaw" in the emergency plan. See Shoreham, ALAB-903,28 NRC at 505, i

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EMERGENCY PLAN (S): CONTENT (DEFICIENCIES IN); SCOPE OF INITI AL EXERCISE in no circumstance can a lack of appropriate scope in an exercise per se 2

establish a fundamentalflaw in the plan that is the subject of that exercise.

Rather, the result of an unduly limited exercise, in addition to noncompliance with the Commission's regulations requiring full participation, is an inability to l

determine whether the plan is, in fact, fundamentally flawed in some essential respect.

APPEARANCES e

John Traficonte, Boston, Massachusetts (with whom Alan R Fierce, Leslie 11.

G reer, Matthew T. Ilrock, and Pamela Talbot, Boston, Massachusetts, were on the brief), fc' the batervenor James M. Shannon, Attorney General of Massachusetts, Paul McEachern, Portsmouth, New llampshire (with whom Diane Curran, Washington, D.C., was on the joint brief), for the intervenors Town of flampton and the New England Coalition on Nuclear Pollution, respectively.

Robert A. Itackus, Manchester, New llampshire, for the intervenor Scacoast Anti Pollution league.

Thomas G. Dignan, Jr., Boston, Massachusetts (with whom George II.

Lewald, Kathryn A. Selleck, Jeffrey P. Trout, Jay Ilradford Smith, Geoffrey C. Cook, William Parker, and Barbara Moulton, Boston, Massachusetts, were on the brief), for the applicants Public Service Company of New llampshire, ci al.

Mitzi A. Young (with whom Edwin J. Reis, Richard G. Bachmann, Elaine I. Chan, Sherwin E. Turk, and Lisa 11. Clark were on the brief) for the Nuclear Regulatory Commission staff, 343

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DECISION in June 1988, an assertedly " full participadon" exercise of both the Seabrook Plan for Massachusetts Communitics (SPMC)' and the New flampshire Radio-

- logical Emergency Response Plan (NHRERP) for the New Hampshire segment of the EPZ was conducted. In conjunction with their. appeals from the Licens-ing thard's disposition of various emergency planning issues in this operat-ing licena proceeding,intervenors Massachusetts Attorney Ocncral(MassAO),

Seacoast Anti Pollution League (SAPL), New England Coalition on Nuclear Pollution (N! CNP), and the 'Ibwn of !!ampton, New Hampshire (1011), have raised concerns about the scope of that exercise, it has cune to our attention that another full participation exercise of bodi the SPMC and the NHRERP is scheduled for next month Because the outcome of our examination of these intervenor attacks ul on the scope of the previous exercise might influence the Ji-mensions of the upcocning exercise, we address those particular concerns now,8 I.

Ibliowing the comple' ion of the full participation exercise held on June 28 29,.

1988, the Licensing Board provided the intervening parties with an opportunity to file contentions challenging the conduct of the exercise, in a memorandum and order dated December 15,1988, the Licensing Board ruled on the admissibility of the various contentions,$ Before us, intervenors MassAO and SAPL cach protest the Board's threshold dismissal of one of their contentions relating to the scope of the Jure 1988 exercise,'

3The sPMC in the emergency respones plan ror de Masadeseus agmas of the sesbrook nusteer facihty's plume espaws pathwsy emergary plannes sme (172). It was davised and is to be implemented by the applicants in haa of a smwnmess. sponsored plan.

3Previously, in AIAB.937,32 NRC 135 (1990), we addressed that portien of the MasaAo's pending speal qucwtioning the threshold dismissal of ans of he comuantions regardmg imdwr parncipsturt in an evacuanon of the Massachuesus EPZ schnois. In autmequers issuances, we will addries truerverer ameals crmeerning ths Lkensing Daerd's threshold stjectim of other contentsons challenging either the sPMC or the sesuha or the June 1988 exercise, as wou as the Bosal's numeruus determinatims en the nwrits regarding the sPMC sad the caercise, which are contained in hs November 1989 ininal decision,l.BP.89-32,30 NRC 37s (1939). -

3MemoranAim and onier (Dec.1s,1985) (mpublished) [heremaher F.aercise Cauentims order).

4 Ahhough the rejecnon af thesa contentions tank place in an huertacutory order, under the Ccenmission's Rules of Praedce an appellate diallenge had to await the rendinan cd a licensing Bosni iniual decision encarngasses the Ime 1988 exercise. 3s410 Cf.R. 4 2.730(f); Nor:Aern 3s,sw Power Co. (ryteen Energy Park, Unit 1),

AtAR492,8 NRC 2sl (IM8), and cases dure cited. 'niat decision, wtuch covered bah the sPMC and the eaamine, having now bem imed, ud mere note 2, Ow Bos:(s earher daerminanon rejecting those conterems is properly berare us on imervanors'spreals take from the decisien, -

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'Ihe MassAG protests the Licertsing Iloard's threshold rejection of his Contention EX.2. Itases A,11, C, F, and 0.5 Itasis A alleges that, contrary to the dictates of 10 C.F.R. Part 50 App, E, iIV.F.1 relative to exercise scope,'

neither the hardware involved in the Vehicular Alert Notificatioa System (VANS) portion of the alert and notification system for the Massachusetts EPZ not the capability of applicants' emergency response organization to utilize the VANS hardware in a timely and effective manner was tested during the June 1988 exercise. in Itases 11 and C, the MassAO challenges the adequacy of the scope of the exercisc as it tested another aspect of the Massachusetts alert and nosifcation system, the emergency broadcast system (EBS). Basis F focuses on the failure of the test to demonstrate the ability of the Massachusetts chapter of the American Red Cross (ARC) to establish and maintain congregate care and other planned mass shelter facilitics, due to die ARC chapter's nonparticipation in emergency planning. Finally, in Basis G the MassAG alleges that the scope of the exercise was insufficient in light of purported inadequacies in die Federal Emergency Management Agency (FEMA) cvaluators' assessments of the response preparedness of school, hospital, and other special facility administrators.

As we made clear in our decision in ALAH 900 in the Shoreham proceed-ing, both the Commission's regulations and its " fundamental flaw" criterion governing the admission of exercise related contentions establish that a con-tention questioning the adequacy of the scope of a full participation exercise is appropriate as part of an adjudicatory challenge to the sufficiency of the exercisc.' We further determined there that the scope of a full participation ex-crcise is to encompass tic " major observable portions" of both onsite and offsite emergency plans (including the mobilization of state, local, and applicant per-sonnel and resources), in a manner suf0cient to verify that, in the context of the accident scenario, cmergency response capability is adequate.' As we pointed 5 As applicable here, e *contentum" should be a statsinnit of the sstud sought to be hugatal while the " bases" occanpenying the contentum should be the /,acauI eUngissioar that pawide smne crahble fountlatim for the cmtenuon. see 10 CER. (2.714(b). Under this standani, many of the %een" spenried by Intervennra in the pmceedtng might be cmsidered *cmtentions" in and of themselves, so that the licenaang tlosed acted appropnately in reviewing and ruluig upon the vanous intervonar "consentions"in terms of the spenne " bases" presmtcd.

'in pertinent part.10 C.I'.R. Part 50. App. I',6IV.F.1 pnwides:

4 A full participatim exercise which testa as much ad the hcensee, state arul bral emergency plans as is reasonably achievable without mandatory puhhc portac$ation shall be conducted for each site at which a power reactor is located,, within twn years before the tasuance or the.. opersnog beense far full pont..

4 alhtt penmipettm,, suus armats ite msW abervah6 pretnam of the anne and ottna omrrgemy plam a

out uud,dsatse of Stam. baal amileranse perestal aral oder resiarcos 5 saftsats unmhers m verify its satehtiny no

.peni e n ec his senann 7 tens isl.mdli 4:uis Co. (shoreham Nuclear Ponct station, Urut I), AtAB-900,28 NRc 215,2s5 93, review t

dulaa,J. C118811,28 NKC 603 (1988)

'lJ et 292-93 (cuing 10 C.F.R. Part 50. App. I;, llV.F.1 n 4) 345

i out in ALAB-900, to preclude consideration of the sufficiency of the scope of die exercise would seriously undermine the purpose behind allowing litigation relative to die exercise, i.e., to ascertain if there are any fundamental flaws in Oc emergency plan being tested. Providing for challenges to the scope of die exercise ensures that the drill is not unduly limited to either strong or weak plan-ning areas that would not reflect a fair measure of overall emergency response l

capability.'

1.

In rejecting Bases A, B, and C of MassAG Contention EX-2, the Licensing Board declared that, in light of ALAB 900, the allegations therein about the scope of the exercise with regard to the VANS cnd the EDS were deficient because they failed to assert that major observabic elements of the plan were not tested. More specifically, the Board held that these bases pointed only to " isolated ponions" of the major observable element (l.c., the public notification system) that were not tested and found that "litde information of significant independent utility would have been gained by testing these isolated portions of those elements."I' The Board also stated that these tuses were deficient because the MassAG failed to make a " convincing showing why these isolated portions of the major observable element were critical to a full participation exercise. Any defects which might be revealed by testing them would appear to be minor, readily correctable problems, not fundamental flaws in the plan.""

• Ihc MassAO asserts before us that the Licensing Board's attempt to cate-gorize the VANS and the EBS as " isolated portions" of the public notification system fails to recognize that these two components are, in fact, the heart of that notification system, and that neither was sufficiendy tested. lie also disputes the Board's finding that little information of independent utility would te gained by fully testing these portions of the system, asserting that testing both the VANS and the EBS would reveal significant information about the public notification system's ability to comply with the fifteen minute " initial notification" require-ment of 10 C.F.R. Part 50, App. E, 6 IV.D3.n Applicants and the NRC staff urge affirmance of the Licensing Board's determination for the reasons given by the Board.

ALAB-900 established that a facility's public alert and notification system, which is referred to as the Prompt Alert and Notification Sysicm (PANS)in the Massachusetts ponion of the Scabrook EPZ, is a " major observable portion" of an offsite emergency plan.u That decision also held that the EBS portion

'lir at 236.

30Eneideo Contanums order at is.

UIbul u Reconly, in AIAB 935, 32 NRC 57 (1990), n interpmed this regulatory rapinnau os n apphes to the seabmok alert an.1 nouncatum eyitan. The Comnussion duhned renew or AIAB-935 en odober 11,1990.

Osu shorAim, A1 AIL 9% 28 NRC at 2%

346

of the system is "an inkgral component of the public nodfication system."$*

This holding a; plies with equal force to the system's other major component, siren alerting, which in the Massachusetts EPZ is provided by the VANS.

Each of these elements constitutes a separate portion of the overall alert and nod 0 cation system; each must function adequately, however, in order for the public nod 0 cation system to be fully operational. To dismiss the MassAG's separately stated concerns about de scope of the test for either the VANS or the ED3 component on the ground that one or the odict was only an

" isolated portion" of the notification system falls to account for the independent importance within the system of each part arad the concomitant need to exercise ca h component in a full participation exercise,'8 Nonetheless, the result reached by the Board with respect to the bases for the contention proffered by the MassAG was correct.

As we have ocscribed in some detail previously, the VANS system is a mobile siren alerting system utilized in the Massachusetts El'I. as a substitute for pole mounted strens. The FEMA report concerning the June 1988 cxcrcise indicates that the VANS system was tested by deploying vehicles to the various predesignated acousuc locations and thereafter simulating siren activation." In Basis A of his Contention EX.2, de MassAO maintains that the scope of the exercise was not adequate because vehicles other than the actual VANS trucks wem used, which rest;1ted in differences in activation timing and an inability to test whether de drivers knew the proper procedures for deploying the sirens,i' By order dated October 24,1990, we noted that an additional full participation exercise of the New llampshire and Massachusetts emergency plans is scheduled for December 13, 1990, and requested that the parties address whether the scope of this exercise would address any of the alleged probicms relating to the scope of the June 1988 cxercise idendfied by the MassAO or other intervenors in their pending appeals. The response from applicants indicated that in die upcoming December 1990 exercise "[t]he actual VANS trucks will be driven to the acoustical locations during this exercise; in June 1988, other vehicles 13Citmg Carolina Anwr a light Co. (shaarun Itarna Nuclear Power Plant), ALAH 852,24 NRC 532, s46 (1986), both apphcants and the starr cmtend ht there is no regulatory mIuirement Llat the stren sysicm be included a pan or an saarcise. Dat case, in which we held that the final IU(A test or rindman conceming the siren system duiga need act be completed pnar to e tJcensing floard rindmg concerning the adequacy or planeng errons reganimg the system, does not speak to the need to include symra testing when the plan is esercised.

l'su AIAB-935,32 NRC at 61

" Applicaats' lith. djF OutA Esercise Repon (seg. I,1988)) at 222.

nsin addition, the MassAo asserts that the failure to stilize the actual VANS vehicles meant that there was no shounns estahhshing the suitahihty or each acmstic site for VANS dephynent. This clearly is a challerige directed to the damsa buis or the VANS system, not the sege cd the exervi.e, and should have been raised prevknaly as part or the MassAo's attad upon that basis. su A1AB-915,32 NRC at 62.

347 i-

were used,"" The MassAO responds that this "may" ultimately moot his Basis A concerns? This equivocadon notwithstanding, the crux of the MassAG's concern about the exercise clearly is the failure to utilize and deploy the actual VANS vehicles? The circumstances of the upcoming test with respect to the VANS essentially encompass the relief to which intervenor would be entitled if the scope of the earlier exercise without the VANS vehicles was found deficient?

Basis A of the MassAO's Contention EX-2 thus has been rendered moot 23 i

Also wanting, although for a somewhat different reason, are the MassAO's allegations regarding inadequate exercise sco.e relative to the EBS portion of 1

the public notification system, 'Ihe MassAO asserts that ALAB 900, which also dealt with allegations relating to scope of EBS testing, compels a finding that the scope of the June 1988 exercise was deficient on this score. We do not

agree, i

in ALAB 900, the unrebutted assertion was that no attempt uns made to implement any part of the EDS process with respect to the designated EDS station, including providing the appropriate EBS message to the station or having a message actually bfoadcast? ilere, however, the contention is that particular aspects of that process were not adequately exercised. Unlike the exercise at issue in ALAB 900, the EBS process for the Massachusetts EPZ was tested, first, by making a facsimile transmission of the appropriate emergency message to the EBS station and, then, by both a simulated and an actual bfoadcast of a test message 25 The MassAO maintains that the message broadcast process "licenaces' Response in Appeal Board onter of ocwber 44,1990 04av, I,1990) at 2 n.3 [hereuufter ticensees' Respmse to Appeal Board order).

to Response to the Appeal Board's order of oaober 24,1990 (Now 13,1990) at 3.

(

211n tu respmsne fihng. the staft nous that the VANS system was tested during the spnna of this year and suggests that this pnmdes grounds for declanns Basis A moot staff tetier to Appea! Board Giov. 5,1990) at 2 n.3. Our review of the refenneed RMA test report indicates, however, that the May 1990 iesnns was duected I

towerd auw signal coverage, an issue d.stmct from the VANS hardware /deploymers/activane concerns expressed g the Mis:Ao in Buis A to his Contentim EX.2 see sAnsAam, CtJ-88-il,28 NRC at Ol (cure for exercue scopo deficimcy is to prwide for tutar.g of c<roponert in a remedial exercise).

2J ibither, we a<ta that the appbcanu have estabhahal a regular schedule for testmg the hardware, deployment, and activaten of each VANS vehicle, including biweekly, quarterly, and annual tests and inspections of vanous VANS vehacle siren componets and funcuans. see Apphcanu' Esh. II.A (Seabruuk sunon Pubhc Aleit and Nouficathm systan IIMA REP.10 Design Report (Apr. 30,1984)) at 2 22 to 24 (cued ht AtAB-935,32 NRC at 61 rL3 as admiued into evidence in that poruon of Seabrook licesing procee. bag cmcerning VANS design adequacy); Appucanu' FA 11.D (scabnx* sunon Pubbe Alert and Notif. cation system ITMA. REP 10 Design

• port (Addedum 1, oi t.14,1988)). Atuch. E (sarne).

Re sAoreAm. AIAB 900,28 NRC at 293.

18 Arphearas' Exh. OF, at 222. According to FEMA's esercise report, the actual broadcast of the EBs test

(

message carne several minutes after the enesange brundcast was simulated as par, of a prearrangesners with the EDs sunm so as not to cause undue intenvpnen d its regular programming. see ibid.

The MamAo sancits in Basu C that the scope deficiency in the esercise also is illustruied by the fact that a more ciennrehensive test would have revealed that the then.pnnury 13s stade (WCGY) dul nos have the requisite equipment to hnk it with the applicants' respome cuganizanort Dnef of the (MauAo)in support ofihs Appr'al of 1.BP.19-32 (hn. 24,1990) at 41 [hemnafter MaasAo Bnet). But our findmg in another crmtent that intervenor has failed to esuMinh any safety sigmficance in wCUY's subsequent wahdrawal and replacement by Wt.YT-lM (Conamsd) 348

should have been tested further, i.e., there should have been a measure of how much time it takes to prepare an announcer to read the rnessage and how well he or she will read it after that preparation. These actions however, only entail an announcer performing his or her usual duty of prepar,ag for and presenting a broadcast messal;e. Thus, as en indicator of fundamental planning flaws in this major observable portion of the exercise, their role is hardly so central that it compels a finding that the absence of any assessment of these activities establishes a material deficiency in the scope of the exercise.26 2.

Following the lead of the Commonwealth, the Massachusetts chapter of the American Red Cross previously had announced its intention not to be involved in the Seabrook emergency planning process in that state." Consistent with that position, the ARC did not participate in the June 1988 exercise. As a result, none of the more than two dozen congregate care centers due to be administered and staffed by the Massachusetts ARC was activated. With Basis F of Contention EX 2, the MassAO seeks to establish that this is a deficiency in the scope of the exercise that requires correction.

In rejecting this basis at the threshold, the Licensing Board noted the Com.

mission's concituion in the Shoreham proceeding that it can be assumed, based upon the ARC's historical practice, organizational policy, and congressional mandate, that the ARC will respond in the event of an emergency, including a radiological emergency,28 Finding that this created a presumption that the ARC would respond,2' the Licensing Board declared the Massachusetts chapter's re-fusal to do so in the context of an exercise rendered the testing of congregate care facilities "not reasonably achievable" within the meaning of 10 C.F.R. Part 50, App. E, ilV.F.1.30 The MassAO now challenges this conclusion as based on the erroneous assumption that ARC nonparticipation precluded exercise of this element of the plan.

For the reasons set forth in ALAB-900 concerning the section IV.F,1 proviso that an exercise must test as much of the emergency plan as is " reasonably achievable without mandatory public participation,"31 we have a serious question whether the failure to activate the congregate care centers because of ARC as a pnmary EBs statim. AlAB 9% 32 NRC 75. 82 83 (1990). deprives the hsAo's scop anegade of any practwat sigmacance. Morimer, WlYr not WCGY, was the station utihmt far the EBs bnudeast dunna the Juns 1988 exercisa Ses Appbcants' Enh, 43F, at 222.

26 in ad& tam, although the MasaAo asserta that t' e statim's message-procemains actima are necessary to estabhah n

the pubbe notincatim syucm's cornpliance with the 15-minute irutial not26 cation requimnent of 10 C.F.R. Pan 50, App. E, llV.D.3, we pevimaly have held that the Lindng of the EBs broadcast, as opptwed to the sanans of the sirms,is trwJeant to cunplunce with that pardcular sundard. 344 ALAB-935. 32 NRC at 68-69.

"See LEP 89-32,30 NRC at 584 85.

2a 3ss Enemse Cmtentims otder at 20 (cidng Img Idamtlighg Co. (shoreham Nuclear Power Station. Urut 1), C1187 5,25 NRC 884,187 88 (1987)).

"Ib,,L See else (EP 89 32,30 NRC at 586 57.

30 Esercise Contatims onier at 20-21.

33SAoreAam, ALAB-900,28 NRC at 295%

349

nonparticipation can be condoned as "not reasonably achievable" within die meaning of that section. We would not generally consact that provision's exemption of the public from actual participation in exercises to extend to

-a private emergency relief organization like the ARC whose participation is contemplated by the emergency plan, Nor does it appear that by its terms the additional exemption for governmental nonparticipation in exercises found in section IV.F.6 of Appendix E is applicable to the ARC as a private organization.M in this instance, however, we conclude that the Licensing Board's exclusion of Basis F was correct The duties assigned by the plan to the ARC involve administering and staffmg several "special population" and generai evacuec shelter facilities located outside the EPZ. It is beyond challenge that providing shelter maintenance services is a traditional ARC cmcrgency response role that Oc organization has performed in the face of all types of natural and technological disasters." In light of the Commission's recognition that it can be assumed that the ARC will answer a request for emergency assistance, in an instance such as this, in which Oc response role assigned to the ARC in an emergency plan conforms to one it traditionally has fulfilled, we see little use, in terms of identifying fundamental flaws in the emergency plan, in admitting a contention challenging the scope of an exercise founded solely upon the ARC declination to participate in an exercise. This is especially so in the absence of any specific information indicating that the orgarnization hicks the ability to discharge its conventional and oft fulfilled role.

3.

In Basis O of his Contention EX-2, the MassAO asserts that FEMA eval.

uators improperly failed to include school, hospital, and other special facility administrators among those exercise participants that were quizzed concerning their knowledge and capability (and those of their staff) to implement the role assigned under the SPMC In rejecting this basis, the Licensing Board referred to our expressed concern in ALAB 900 that a similar argument raised ques-tions about "the fairness of penalizing a license applicant for the shortcomings in an exercise ewaluation (as contrasted with the exercise itself) that are solely attributable to FEMA."" On appeal, the MassAO asserts that the Licensing Board misread Basis O as a " critique of FEMA's evaluation" and contends 01at M Pan 50, Am. E, IIV.F.6 or 10 C.F.R. pinvides:

The parUcipation er state and kxal gmernments in an anergency etercise is not ratuired to the estent thss the a[plicant has idesnified those amernmans as reruams tu participate lutther in emergerwy plannmg activiues, punuant to 10 CIR 5a47(cXI). In such cases, an exercise shan be held with the applicant or tscensea and sudt gmernmental anuues as elect to partacipate in the eurgency planning pnrass.

Msee IJIP.89 32,30 NRC at 589.

M sAoreAinai, AIAB-900,28 NRC at 300 n.27 (emphases in nnginaD.

350

It in fact is a challenge to the scope of the exercisc based upon the failure to obtain the participation of hospital, school, and other special facility personnel?

'Ihe biassAO's argument is little more than a belated attempt to recast this basis for his contention. This is casily seen by contrasting Basis G with Toll /NECNP Contention EX 1, discussed more fully lifra, the cicar gist of which is that, for New ilampshire El'I schools, the exercise failed to test (Klequately a major observable portion of the plan and therefore was insufficient in scope. Just as plainly, the focus of Basis O is the failure by FEhiA officials in tic course of thei; evaluation of the exercise to question administrators of special facilitics (including schools and hospitals) in order to asser,s their knowledge of emergency planning. Our observation in ALAB 900 about penalizing the applicant for alleged FEhiA cvaluation deficiencies applies with full force to this portion of hiassAO Contention EX 2 and the Licensing Board properly dismissed it.

B.

In its Contention EX 12. SAPL sought to challenge the adequacy of various aspects of the evacuce registration, radiological monitoring, and decon-tamination program for the New Ilampshire EI'l, as demonstrated in the June 1988 full participation exercise. Although the Board admitted for litigation the contention concerning the implementation difficultics alleged, it rejected other aspects of the basis for the contention. Before us SAPL challenges the Board's ruling that, because "[t]hc exercise included one large and one small (reception) center out of two large and two small centers,")* It was sufficiently representative in scope with respect to the number of reception centers activated and staffed in the New flampshire portiot of the Scabrook EPZ. Both applicants and the staff urge affirmance of the Bot rd's action.

As the Board indicated in t's ruling regarding this scope aspect of the contention's basis, there is no regulatory requirement that a full participation exercise include the activation and staffing of all reception centers designated as part of the emergency planning process. In describing a full participation exercise, Appendix E to Part 50 d:clares that response personnel and resources are to be mobilized in " sufficient i umbers to verify the capability to respond to the accident scenario.""In the cont xt of determining the appropriate scope of an exercise, ascertaining just what are " sufficient numbers" involves the application of reasoned judgment that takes account of both the intricacies of the emergency plan, as well as the general exercise objective of testing the adequacy of the plan, in this instance, we have no hesitancy in concluding that the activation of two of the fo"r planned New llampshire EPZ reception centers, each of which was roughly representative of one of the unactivated reception centers, MMusAo Pnef at 41 "Inercise Contanuans onier at 6L U10 CJA Pan 50, App. F, (IVE.1 n.4, su sAoreham ALAB-900,28 NRC at 2M.

351 l

was a judicious exercise of such judgment so as to comply with the governing standard,"

II.

In addition to rejecting the foregoing exercise scope contentions at the thresh.

old," the Licensing Board admitted and decided on the merits Toll /NECNP Contention EX 1, which concerns the scope of the June 1988 exercise as it pertained to the NIIRERP,"Its assigned bases focus specifically upon aspects of the exercise directed to protective measures for school childfen; traffic move-ment and control during an evacuation; and available transportation resources to meet cvacuation needs These bases are said to suppoft the overall claim that, in contravention of Commission regulations,' the reach of the exercise was too limited either (1) to yield " valid or meaningful results regarding the capability to impicment" the NilRERP; or (2) to permit a finding that the exercise " evaluated major portions of emergency response capabilitics,"'2 We consider the various portions of the contention seriafim, A As initially presented, Bases (a) and (b) of the contention were directed to the absence of the participation in the exercise of any teachers employed in schools within the New llampshire EPZ. Subsequently, however, the issue was Min addidon to protesting the (Jcensing Board's disposition or ht ponion of the basis d Carmennon EX 12 est concerned saaecise scope, sAPL contests the Board's rejection of that part of the buis aDeging that employees of the New llampshire Department of Publie llealth savices (DPils), who staffed the New llampshire state emergency operaties cela and are inteided to be a resource to the recercion center pernamel, nmetheless were unfamiliar with their responsibilities and duties. We agree with the Board that sAPL failed to prwide suf$cient informanon in support of its claim of inadequacies.

As we how indicated previously, in alleging that emergency plan de6ciencics, as revealed in an esencisa, are suf$cient to suggest a fundamental Saw in the emergency ptsn that requires conection, the catentions snust be *well-focused" and *concreto" with " greater detail" than nonexercise contenies. Long Island Ugbg Co.

(Shonham Nuclear Power sLatior, Unit 1). ALAB.903,28 NRC 499, $06 (1988) 13 contrast to the other, aaniued porties of the basis of this contation, which alleged a rusmi,er of sped 6c inddents n specinc times and places, the ausgations about DPlis senployees in the original coreenram contained no refaena to panicular incidents that occursed dunns the esercise or any other indication of the factual grunds supporting the sAPL aDesation of inadequats training and preparatim. Ahhough sAPL purported to offer the Board some specines cmccrains the DP11s in its reply to the objections of the applicaras and the staff concenting this pardon of hs contention.

f

- its rufenmco to a IY.MA nyort en the exercise, withet sven specifying what pan of the report might prwide a foundation for its aDegotions, is totaDy wanting under this standani. see C1J-89 3,29 NRC 234,24041 (1989)

- Thus, the IJeansing Board properly dienissed this portion of the cascotion's basis as well. -

8Whas the staff suggests that rejected Toil /NECNP Camer: tion EX 2 (ths dianisaal of which thme pardes sweal) also is a scope consanim, see NRC staff Dnef in Respmse to Intervonor Aweals fnun ISP.89 32 and LSP.8917 (Mar. 21,1990) at 63, we agree with the applicants that this is hs fact an smarcise " performance" contention, see IJcensees' Respmse to Appeal Board order at 2 n.2. Accontingly, we will address k in 4 sutuequent issuance.

"LBP 39 32,30 NRC at 630 3),63849.'

'IThe consentico infers to 10 Cf.R. Il 50.47(a)(1),(a)(2), and (b)(14), in additim to 10 Cf.R. Pan 50, App. E, IIV.F.1.

'31 Toll /NECNP] Emergency Planning Cmtasions m the June 28 29,1988 Exercise (Sept. 21,1988) at 14 352

broadened to include as well the asserted lack of participation on the part of school administrators."

1. The essential facts pertaining to this issue do not appear to be in dispute.

As summarized in the Toll /NECNP Brief without contradiction, there are 113 schools and day-care facilities within the seventeen towns in the New llampshire EPZ." Each town has a separate emergency response plan and, in appendices to those plans, there are individual school plans for each school (public or private) and day care facility in the particular town."

Although the plans assign to the administrator of each school specific emergency preparedness and response undertakings, none of those administrators participated to any significant extent in the June 1988 exercise. To the contrary, it appears that the participation of the schools in the exercisc consisted solely of the receipt of telephone calls by two of the 113 institutions - one of which (the public Swasey Central School located in the Town of Brentwood) reported that it was not in session," and the other (the private Country Kids nurscry or day-care facility located in the Town of Stratham) provided a census of eight students. In addition, an " administrative representative" for each of the five New llampshire. School Administration Units (SAUs) with jurisdiction over the public schools in the EPZ received at least one telephone call from state emergency response personnel during the exercise. The intervenors tell us, however, that the applicants were unable to shed light upon the identity of the contacted individuals and, thus, could not say whether those persons nad decisionmaking authority.

2.

In ALAB-900 in the Shorcham proceeding, we took note of the fact that "the potential evacuation of schools within the cmergency planning zone (EPZ) is a major element of offsite emergency planning "" Ibr this reason, we concluded, "[a] sufficient number of school and related personnel must...

participate in a full participation exercisc so as to permit verification of their integrated capability to respond to the accident scenario."'8 in the exercise under review in ALAB-900, only one high school - out of a total of forty-eight public and private schools in the Sholtham EPZ - was a participant. Even the Shoreham applicant acknowledged that was not enough to satisfy the regulatory "In that hint toer. Toll /NECNP explain how the broadening occurred. Town of Ilarnpton and New England Coahtian en Nuclear Pullution Drier en Appeal of IEP 89 32 Qanuary 24.1990) at 8 n.12 [ hereinafter Toll /NECNP Brier). That saplananon has nor been chauenged and it is apparent that, in the November 1989 initial decision, the tJeamns Board treated the issue as covenna both teachers and administrators. See 12P 89-31 30 NRC at 638.

" Toll /NECNP Brier at 91(L Diny-6ve of these inaututions are public; the remaining 78 are private. Ses iM "Eg., NlutERP (Town of scabruuk). Vol.16 App. F (rev.11986) Unless otherwise indicated, hencerarth the term "adoor' will be used to include nursery or day-care facilities.

"Because the exercise tora place m June 28 29. the academic year had come to an aid for schonia (ahhough p7resumably day. care facihties mnained in operation).

28 NRC at 297.

'8 /M 353

- ~ ~

~ ~ ~~ -

standard." Moreover, for its part, FEMA determined that much broader school participation would be necessary before it could verify the ability of the schools generally to respond in the event of an emergency at Shoreham and, indeed, recommended that all schools within the EPZ be included in offsite exercises."

In these circumstances, we found wholly insubstantial the applicant's attack upon the Licensing Board's finding that there had been inadequate school participation

~ in the exercise and that, consequendy, the exercise was deficient?

3. On the face of it, the situation at hand does not call for a disparate result. Contrary to the view of the Licensing Board,# we are unable to discern a material difference between the extent to which EPZ schools were involved in the Shoreham exercise and what confronts us here. As we have seen, in no -

real sense were any of the 113 schools in the New flampshire EPZ called upon to participate in the June 1988 cxercise of the N!!RERP. And the telephone calls to the SAUs scarcely cured that omission. Imving aside the fact that the applicants appetently could not establish that those calls were received by pctsons in authority, the SAUs serve the thirty five public schools alone and, thus, have no jurisdiction over the seventy-cight private educational institutions.

Consequently, insofar as concerns the schools, the exercise fell far short of enabling an informed judgment on the existence of a " fundamental flaw" in the NiiRERP. That plan is undergirded by seventeen individual town emergency response plans and 113_ individual school plans, covering a wide variety of institutions (in both type and size), On the basis of the exercise at least, it is impossible to determine whether any of those plans, and thus the master NIIRERP, will fulfill its intended objective of ensuring that adequate protective

. measures will be taken for school children within the EPZ in the event of a

'Scabsuok radiological emergency.83 this ~ls not to say that the exercisc requitw the direct involvement of classroom teachers, as distinguished from school administrators. For one thing, inasmuch as the schools were not in session at the time of the exercise, such involvement would not have been possible. That consideration to one side, we determined earlier this year that, should 'a Seabrook emergency occur,

.there will be no necessity for New llampshire teachers to embark upon any

• lbi.i 30 Ibi.L 33,( at 29697, 1

n3,e I.BP.89-32,30 hRC at 639J 33With respect to ethools, the tkenning Board viewed the purpose of the smarcise to be to datunutrite that the stsis of New Hanpshire and the (apphcants' orfs te response organinthst] had the capabihty to notify echnois of the custence er en ernergmcy, so enntnunicate protective action seconenendations or decisions, to ascertain whether the schools or day-care centers requtred transpiutation assistmco for ther children, and to deliver that assistance shen raluested.

1.r at 638. Amndes, without deciding, the sufricimcy or that obpctive,it scarcely could have been fuirdled by the telephone cats to two schools and to unspecined individuals in the hve sAUs.

354 1

i q

9

undertaking not analogous to those that are part of their normal dutics and responsibilities $' Decause it is reasonable to assume that the teachers are fully capable of performing such functions as " accounting for and supervising the l

chikiren and assuring their safe boarding of evacuation buses" - functions not dissimilar to the duties they routinely discharge 55 - their inclusion in the exercise hardly would have been necessary to ferret out any fundamental flaws in the N!!RERP.

Nor do we suggest that it was obligatory that the administration of ewry New flam;> shire EPZ school participate la Oc exercise, Although, as noted in ALAll-900, f'EM A strongly recommended such all inclusive participation in j

Oic case of the Shoreham EPZ schools,86 we think it would have sufficed had the exercise encompassed a reasonable representative sampic for each sc!K)ol category - public, private, and nursery / day care? Such a sample likely would i

have enabled, in the words of ALAD-900, the " verification of their integrated capability to fespond to the accident scenano,"5' Once again, without the real j

participation of a single school-and particularly not one of the seventy eight private institutions outside of the domain of the S AUs - such verification simply was not possible, l

Accordingly, Die Licensing Board's disposition of Bases (a) and (b), as liti.

gated, cannot stand in full measure. Insofar as concerned the school adminis-trators (but not the teachers), those bases were meritorious, As a consequence, l

in line with the Commission's guidance concerning the correction of exercisc 1

scopo deficiencies," the failure to clicit sufficient school participation in the June 1988 exercise should be corrected in a subsequent exercisc, 11, Basis (d) of Toll /NECNP Contention EX-1 raises questions respecting tic scope of the exercisc in the area of traffic control during an evacuation of the New llampshire EI'Z., in sum, this basis asserts the lack of sufficient New ilampshire State Police participation in the excfcise, with particular reference to the staffing of traffic control posts (TCPs). Essentially for the reasons detailed by the Licensing floard, which require no rehearsal here," we conclude diat diere is insufficient substance to that assertion.51 M344 AIAB 932,31 NRC 371,39840tt (1990). N Comnuaawn dectumt review of AIAB-932 on July 12, 1990 00see isl at 406.

soin the case of seabnuk, and for runone that are not fuuy apparent, EMA baa not memly retreated fmm that recmunendation, but now seemingly entertams no difrtculty with the lack of sigr.iricant puticipatwn or any schools.

O ses supre gy. 35152.

sa28 NRC at 297.

M sse supre note 22, "s,e (J1P-89 32, s0 NRC at (L10M

In their brief, hitervene aDude specirically to the llampton Beach TCPs TolLNECNP Bnef at 21. we see no reasm, however, why they shouht hne bem singled out during the esernse for staic Pobce pasticapstiert li may nll be that during the ranmer mornha en evacuatwn fmn the beach area would pmduce " bumper to bumper" (Coatuu+ad) 355

~. _

C. - The remaining bases of the contention assert an inadequate participation in the exercise of transportation resources. According to Basis (f), only three of the eighteen bus companics relied upon by the NIIRERP for the transportation of special facility populations, e.g., nursing home and school populations, were involved in the exercise. Moreover, the eighteen " regular" buses provided by those companies represented only four percent of the total number of such buses dat would be needed in the event of an evacuation of the New llampshire EFZ.

Additionally, Basis (f) asserts that but one of forty eight ambulances and two of seventy one "special needs" buses took part in the exercisc, Basis (g) takes issue with the purported failure to determine, during the exercise, the actual number of bus drivers available to carry out their assigned evacuation dutics.

On this score, the basis claims that the telephone calls to Oc bus companies had as their purpose mercly a restatement of the number of drivers specified in cach company's letter of agreement.

'Ihc prircipal difficulty with Bases (f) and (g) is that they rest explicitly on the erroneous premise that a purpose of the exercisc was to demonstrate (in the words of Basis (g))"the actual availability of necessary transportation resources." The NIIRERP makes specific provision, in the form of the letters of agreement with the various bus and other transportation companics, for the transportation of those having a special need for such service in the event of an accident. Obviously, the assumption is that, in the event of an ordered evacuatim, each company will be able to meet its contractual obligation. In afd of that assumption, as the Licensing Board noted, FEMA conducted its own survey of the transportation facilitics for Scabrook." Nonethclcss, the possibility always exists that, on the day of cither an exercise or an actual emergency calhng for an evacuation, some extraneous circumstance - such as, for example, a region wide bus drivers' strike - will preclude the fulfillment of the terms

-of the ic!ters of agreement. That possibility manifestly does not constitute a

" fundamental flaw". in the plan," but doubtless explains why, as part of the exercise, the State of New flampshire placed an additional eighty seven possible drivers under its jurisdiction on standby,"

In short, no matter what the extent of bus or driver participation in it, an

- exercise cannot ascertain the actual availability at all times of the number of

- traffic. But severe trafric cagestim can also be espected in other postims of the EPZ in the event of an amcrgency

- dictating evacustion.- Morerwer, as interwnars themselves stressed in Basis (s) of this cmtention (whose thnahold rejection, m Exercise Contentions onier at 6748, they do not appeal), in nonemergency situatime the state Pohee soutinely encounter sudi congestion at flamptm Beads hat being so, the actual prior esperience or the state Police and other trafric control authanties in dealing with beadi congestico provides at least as good an indication of how such congestion might be confronted in an svictation as would have been ottained in a simulation of accidents and other tie ups during the esercisat 8see 1,BP s9-32,30 NRC at &ls. See also sf. at 644.

0 344 samba, ALAB 903,28 NRC at 50s, "See t.BP 89 32,30 NRC at 6447.

I 356

+

9

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---wn---

+

rw

-m nn ew- - - -

-m

,irw-v v

--,r, vn

-w e'--.

- - - -. - ~ ~ - - ~ ~ ~

J drivers prescribed in the letters of agreement and, therefore, cannot have the assurance of such availability as an objective, (It is this factor that makes provision for teckups a desirable part of an emergency response plan.) Rather,

- insofar as the transportation of special facilitics populations is concerned, die aim of the June 1988 exercise was simply to test such elements of the NIIRERP as the channels of communication and the sufficiency of the instructions that will te provided to the drivers. Tb this end, sixteen of the eighteen bus companies were contacted and the buses that participated in the exercise completed 207 out of the 224 evacuation routes establisled in the NIIRERP for the (nmsportation-dependent."

In light of these considerations, it cannot te said that, as is insisted in Bases (f) and (g), the lack of greater participation in the exercise on the part of transportation resources represented "a fundamental flaw in the NHRERP," Of course, in no circumstance can a lack of appropriate scope in an exercise per se establish afundamentalflaw in the plan that is the subject of that exercise.

Rather, the result of an urxiuly limited exercise, in addition to noncompliance with the Commission's regulations requiring full participation, is an inability to

' determlnc wt. ether the plan is, in fact, fundamentally flawed in some essential respects flerc, however, except with regard to the participation of certain school personnel (Bases (a) and (b)), the scope was satisfactory insofar as the testing

-of transportation resoun;cs is concerned, fbr the foregoing reasons, the Licensing Board's dcarmination in LDP 89-32,30 NRC 375, regarding Bases (a) and (b) of Toil /NECNP Contention EX 1 is reversed. The Board's disposition in that initial decision of. ases (d), (f), and l

B (g) of TOII/NECNP Contention EX 1 is affirmed. The Board's disposition, in an unpublished Memorandum and Order (Dec. 15,1988), of MassAG Contention EX 2, Bases B, C, F, and O, and of SAPL Contention EX 12, concerning exercise scope and New llampshire DPHS personnel adequacy, is afJirmedJ The MassAO's appeal from the Board's disposition of Basis A of his Contention

- EX 2 is dismissed as moot, it is so ORDERED, FOR Tl!E APPEAL BOARD.

l Barbara A. Tompkins Secretary to the

. Appeal Board "su kr at 644,617. His was in aherp contnet to the si:uation with spect to the schools. As previously noud, only tw or the 113 schools were even contacted, and none became signincantly involved in the narcise.

357

l b

i i

1 Atomic Safety l.

and Licensing i

Boarc s issuances i

i ATOMIC SAFETY AND LICENSING BOARD PANEL i

B. Paul Cotter

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

Frederick J. Shon,* Deputy Chief Administrative Judge (Technical)

Members i

Dr Georgo C. Anderson John H Frye lil*

Dr. James C. Lamb 111 Charlos Bochhoofor*

James R Gioason Gustavo A. Unenberger Potor B. Bloch*

Dr Cadet H. Hand. Jr.

Dr. Emmoth A. Luobko Glenn O. Bright Dr. Jeny Harbour

• Dr Kenneth A. McCollom Dr. A. Otxon Calhhan Dr David L. Hotrick Morton B. Margi*os*

James H. Carpentor*

Emost E. Hill Marshall E. Millor Dr. Rchard F. Cole

• Ot Frank F. Hooper Dr David R. Schink Dr George A. Forguson Elizabeth B. Johnson Ivan W Smith

• Dr Harry Foreman Or Walter H. Jordan Sheldon J. Wotfo Dr. Richard F. Fator Dr. Jorn! R Klino*

l l

' Permanent panel members I

l 1E.. -..-.

~

Cite as 32 NRC 359 (1990)

LDP 90-38 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judge:

Peter B. Bloch

- In the Matter of Docket Nos. 70 00270 30 02278-MLA (ASLBP No.90-613 02 MLA)

(RE: TRUMP S Project)

(Byproduct License No. 24-00513 32; Special Nuclear Materlais

-License No SNM 247)

CURATORS OF THE UNIVERSITY OF MISSOURI.

November 1,1990 After receiving Licensec's response to his order granting a temporary stay, the Presiding Officer determines that many of the findings that the stay was based on are no longer valid, llence, he issues favorable findings concerning the likelihood that Licensec will succeed on the following issues: (1) that the -

-- amount of241Pu that it possesses is less than 2 curies,-(2) that its emergency plan

-;is adequate to cover the TRUMP-S activitics in the Alpha Imboratory and that

-the Columbia Fire Department would fight a fire at the laboratory, rad (3) that

,the Licensec has not committed any errors that cast doubt on the competence

. of its personnel.

The Presiding Officer also rules that Licensec should have reported the amount of 241Pu that it is licensed to possess as a substantial contaminant. lie authorizes the Staff of the Commission to issue an amendment covering the amount of 241Pu that Licensec may possess.

2 Since Licensec has not n:sponded to all the elements that led to the granting of the temporary stay, the stay is left in effect.

359

~ ~

RULES OF PRACTICEt TEMPORARY STAY OR STAY; NO RIGilT TO REPLY--

7hc proponent of a temporary stay or stay may not reply to de opponent's response.10 C.F.R. I 2.788(d) (applicable by inference to 10 C.F.R. 6 2.788(l)).

i l

SPECIAL NUCLEAR MATERIALS: SUllSTANTIAL CONTAMINANT Section 70.22(a)(4) of 10 C.F.R. and Regulatory Oulde 10.3 require dial an applicant for a special nuc! car materials ll;caso disclose the presence in its licensed amount of plutonium of 1.21 curies of 24t u, which is a beta emitter P

l with about 1/50 the relative biological effectiveness of de same amount of curies generated by an alpha emitter.

SPECIAL NUCLEAR MATERI ALS: EMERGENCY PLAN It is appropriate for a fire department to have a procedure in which firefighters may cease fighting a fire when radiation levels reach dangerous levels. This is similar to procedures when great heat or smoke cause firefighters to cease fighting a fire from a threatened location.

TECllNICAL ISSUES DISCUSSED The following technical issuca are discussc('- lbuve Biological Effeedve-ness; 241Pu as a contaminant in special nuclear materials; Emergency planning with respect to special nuclear materials.

MEMORANDUM AND ORDER (Licensee's Partial Response Concerning Temporary Stay).

' Memorandutu On October -20,- 1990, I issued a temporary stay of de University _of Missouri's (Licensec's) use of plutonium, neptunbun., and americium in the-TRUMP-S Project. The decision was 8.succ, pursuant to 10 C.F.R. 602.1263 lc and 2.788, before Licensec respondeu to the filings that pmmpted my action.

- The ground for issuing the temporary stay was that the criteria for a stay had been -

met, including the likelihood (based on the available filings) that the Misscuri Coalition for the Environment, the Mid Missouri Nuclear Weapons Freeze, Inc.,

360 L

i

the Physicians for Social Responsibility /Mid. Missouri and several individual mtervenors (collectively,"Intervenors") would succeed on the mtrits of a variety of their allegations.1 Now Licensee has responded in a thoughtful, well-documented way that causes me to reverse cach of the determinations that they have addressed.

Under the procedural regulations, Intervenors are prohibited from replying to Licensee's response.10 C.F.R. 5 2.788(d) (applicable by inference to 10 C.F.R.

6 2.788(i)). %cy may, however, move for recorisideration of this decision within 10 days on the ground that I have acted erroneously on the information that is before me, ney may not subrnit new evidence with respect to the temporary stay.

Although many of the grounds for the temporary stay have been eroded, the stay will remain in effect until I receive and evaluate Licensce's response to my findings concerning the likelihood of success on the merits concerning the use of improperly tested IIEPA filters.

Licensce's thoughtful response to the two principal issues of concern to me relieves me of any serious concern, at this time, concerning its competence or the competence of its investigators.

I.

CURIE CONTENT OF WPu 2

in granting the temporary stay, I stated:

Section 70.22(aX4) of 10 C.F.R. requires that an a;T cation for a bcense include the li name, amount, and specifications (including the chemical and @ysical form and, where airlicable, isotopic content) of the special nuclear material. Regulatory Guide 103, which has suggestive force in this proceeding, rcquires in section 43:

the special nuclear material requested should be identified by isotope; chemical or physical form; activity h. curies, minicurks, or mkrocuries; and mass in grams.

Speci6 cation of isotopes should include principal iseccpe and significant contaminants.

[ Fen @ asis added.]

"Ihe Declaration of the Trumps Review Panel persuades me that Intervenors sia likely to succeed on the merits of the following arguments:

1The purpwe or the stay was to pnxect the phbc safety inwn a possible nsk during the ume that Licensce is prepanns ha response. *!his seems to be the pnper balance between apparent safcay naks sad an adverse impact on I Awues.

obviousl. in such a situation, there was no Ending on the meriu" of the latervenors' allegatims. *!here could be no rev ruwimg undt Licensee had a reasonable chance to respmd. Ibwever, these nuances or legal pleading are hard to emvey securately in peas accounts and I am aware that, as a ter.ah, one erfect or the issuance or the temporary stay was that the scenatam or the University or Musouri surfe,ed an undeserved adverse impset 2 Memorandum and onier (orant or Tempxary Suy), tJ1P435, ?2 NRC 259, 264-65 ("Tempxary suy orders 361

~ - -, - -.. -.

.~

.i

~'

Licensee failed to disclose that ther, were other forms of plutonium present in its e

material other than just Pu-239 arul Pu '40 and that those forms may contain cwie amounts d other piutonium inopes, not Pat milbcunes or microcunes; the total curie conters d plutonium possessed by Ucensee, whether the smrce e

of the material be weapons grade plutonium or reactor grade plutmium, is substantially in excess of 2 curies; Licensee's personnel should have known that the curie contert of its plutmium e

was far more than it disclosed and this casts doubt on their competenced t

~1 now find, based-on the " Affidavit of Dr. J. Steven Morris Regarding Plutonium Content," October 29,1990' (Morris Affidavit), that these findings are no longer valid. 'lhe TRUMP-S Review Panel was relying on library research that led 11 to the apparently incorrect conclusion that Licensee had to be using cithef weapons grade plutoniura or reactor. grade plutonium and that the smallest f amount'of 241Pu that could be present would be about 5 curies! By contrast.

l 4

the Mofris Affidavit provides a detailed analysis of the form of plutonium =that Licensee possenes, including "New Brunswick Laboratory Certified Reference Materials Certificate of Analysis, CRM 127" (Attach. 'i'), a similar analysis by the National Bureau of Standards of a predecessor form of this same material f

(Attach. IB), a 1982 analysis of this same special nuclear material by the Los

' Alamos National Laboratory (Attach. 7) and a calculation deriving the amount

= of 241Pu in September 1990 from the Los Alamos analysis (Attach. 6).

At the present time, it appears likely that Licensec can succeed on the merits of each of the following arguments:

• : De plutonium that the Ucensee has received is a single 5 grair lot of New linmswick Laboratory (NBL) Certi6ed Reference Material (CRM) 127?

1 e - A conservative esthnate of the total curie content of the 10 sms of plutonium that MPu' - is t,992 Licensee is authodzed to pmsess -including 1.21 curies of curies!

3 Declaration of TRUMP.s Review Panel at 610..

' Attachment to s louer to me fran Maurice Aneltsd. october 30,1990. l find that Mr. Morris is qi.alified as an expert witnema with respect ki bla testimony by reason of his education and professional experience,. Morris

. Affidavit at 12 3I have no opinion emcerning whether the TRUMP s Review Panel should have known that other forms of

- plutonium were available..I have some sympathy for their plight because in this litigation they had no formal discovery rights - that Ls, no right to obtain answers to their questions fran the 1.icensee. I have no reason to doubt their sincerity or their general empenise -- thhough their specific knowledge concerning the availability of attemative isotopic compos 1tions of plutonium does seem to be in sane doubt at this time.

All snachments are to iho Morris Afiidavit.

3Morria Amdavit st 3.

a g, pc,,,,,;,, og MPt. is not expressly authorized in the license amendmau.

?The arnamt is derived from the Les Alarnos analysis (Attach. 7), adjunted acconing to Ikensee's estimate

- (Attach. 6) and summartred in Martia Affidavit Table 1. at 6 - adjis.tal by subtracung alpha activity auributed j

'Contime*4 I

362

')

l l

h I

241Pu is the same e.:.G242 curie s, or j

• 1 The bicicsical effectiveness of 1.21 curies of m

24.25 millicuries, of an equivalently effectiw alphwanitar)8 '

l Although it would have been geeferable to disclose this quantity of material as a significant contaminant under the regulatimt, since it is equivalerv. to a millieurie d.

quantity of an alpha emitter, this anission is not fatal to the application." I shall authorire de Staff of Oc Nuclear Regulatory Comrnluion to amend Sh%247 to permit the possession of this material and shall cmsider the licertse smlicati'n to be amended to contain this new information until Staff has had an opportunity to -

act.

The failure of liensee to disclose the presence d 1.21 curies d *Pu - the e

equivalent in biological effectiveness of alpha radiatim equal to,0242 curies -

-in the licensed amount of plutonium does not cast doubt on its cannetence or ett fi the competence of its persmnel. Although I cmsider this to be a mistake,it h a mistake without any serions safety significance.

II, EMERGENCY PLANNING In grantifig the temporary stay, I stated:t2 Intervenors correctly ptsnt out wat Licensce's possession of 25 curies of Americium requires them to conduct an evaluation or to haw an applicable emergency plan. %e Declaration of the Trump-S Review Panel at 17 22 petsuades me that Intervenors are likely to succeed on the merits of the following arginnents:

4 to Americium. (If the americium is incWded,the total curie coent is 1.992, which is stillless that 2. Ibwver, 1 And that it is not accessary e include the americium in compating the aincunt of pbtenism.)

1 n<e also that the Statemmt of Considerations to 10 C.F.R. Pans 30,40, s,mi 70,"Emeramcy Pr paminess

. for Ibel Cycle and Other Radioactive Material Uconsees," Ap 0 7,1989,54 Fed Res.14,0'l r 14,052 sutes -

that the table of pantities in Pan 30 " includes all alpha eminers timed a say licaue for which the guntity to theoreucally deliver a 1 rom effective dme equivalent wouW be less than 2 curies." h therefore app 4rs that iha NRC did not intend to include 241 Pu, which is a beu eminer, in the 2 curies of pluimium listed in @ s tegulatices sa the threshoW for emergency planning.

10 Morris Affidavis, Finding 29, at 12 (citing 10 C.F.R. pan 71, Table A 1 The derivation of milicuria is my -

egulatory Guide'10.3,'*0uide fa the Preparition of Applications for Special Nuclear Mater al Ucenses of.

lass 'than Critical Mass Quantuun," section 43 provWes:

the special nuclear material requaiad shouW be idatined by isotope; chanical or physica form; sctivity -

in curies, mikwise, or micreewist, and mass in grams, Specinestion of isotopes should it. :lude principal isotope and signi6 cant antaminanu. Major dove <entribwing cataminants preamt or c4 ccted to build up are of panicular intercat." [Lnphasis added.]

~

Now that ths Nuclear Material Transsetim Repon stuough whidt Lcensee received the specid nuclear material

from Rockwellimernatimal Corporatim disclosed that it contained trace amounu of Pu 241 ad Pu-240. Morris

- Afndavis, Ausch. 3. -

Note also that Imervenors have suted m several occasions that Ucensee has permusior to possess 0.7 curie of plutmlum. That does nra spreat to be the case. Their permission is to posseu J0 grams of "PWtonium -

- 2.19/PMonium 24&* kt seconlance with lu application aad three speci$ed leuers. SNMM, Ammencot Na 12, Docket 070 LOO 270 (Mar.19,1990) 16nd that they can also possess the associated 24 %

i 33Ternparary Suy Order, LBP-90 35,32 NRC at 2M.

-363 l

o i

1

s the only analysis of potential release fractimas petwided to sne so far by ticensee e

is a ' summary" of a study that does not exist and that does nm pnwide adequate assurance of safety to the public; the assumptions in the summary" are not conservauve; e

emergency action is likely to be seeded beymd 1 mile frian the Alpha Laboratory;D e

the k> cal fire departmera may resporid to a ftie but wwld not fight it" e

With respect to my finding concerning 25 curies of americium, Licensee now states that 10 C.F.R. 6 3032(i) was not applicable to Liccusec's application because the lleense was granted before the citective date of the regulation, April 7.1990." At this dme, I am not prepared sa xcept the conclusion that the section is rot applicable in this proceeding',(Ms qt wtlon secrns to me to require briefing,I' It is clear that the t.pplication did not need to the compliance nth this rec-tion prior to the time it vm granted. ElowercL this porceding is now petiding, and it is my responsibility to review the adequacy of the %eg oppliattion at tiiis time, it tt general practice at the NRC ta permit applicant to amend its application papers t remedy defecis Glat may be disclosed dering the pendency of a proceeding, thus creating a dynamic liculshg environment. During this period of adjudication, it seems to me anat Licensec also ought to show com-pliance with new regulations effective during the pendency of the pmceedir:g, However, this is a point on which I am not awarc of pmccient, so I will request Licensee to bri:f this point as part of its respoasc to Inter enors' written filing.

Intervenors may respond 10 business days after receiving Licensec's documer,t, Despite this difficulty concerning Licensce's legal positioil, I nevertheless have resolved my doubts concerning the adequacy of its emergency planning."

'Ib begin with, let me state that I am satisfied that the Columbia Fire Department will respond to a fire at the Alpha Laboratory and will take appropriate action, The Affidavit of flenty Ottinger, which was the basis for this portion of my opinion granting a tempori.ry stay, is a hearsay report of a conversation with UDochridon of 'IRtJMP.s Review Panel. *rable !!f, et 2lbt attached ANSl/ANs!5,16 (1982), "thergency

]

Clataes."

H ikclaration of Ilauy otunger,Italt 2.

UM Fed. Reg.14,051 (Apr. 7,1989). lauer of Osbar 30,1990, at 34 n1 I"Ahh aigh !Jcensee's neuer d october 30,1990, was not tabeled as a respcuse to any pleading.I consider it to be a response to my order and io the plea hnas that pawneted it. limco, e ecply is out of order and Mr. Osen's letar of October 31,1990,which is a reply, cannra be cosuidered in this pnxeeding. lie may resubmit some of the material,if appropnate, as a motim (tw seconsideratim of this Order tw as a specially pernutted reply to A pticant's respmse to the wntien Aling.

I7accause I am satistal with the emergency ;danning at this stage of the proceedr the evaluation of risk is nr4 relevant. At thia poial, however, nothing bat been submittal that wmld chsage my 6admgs concerning the likelihood that irservanova could strcoal en the merits of their claim that Applu: ant's evaluation of risk is inadapme.

364 l

02 man L. Call, Ballation Chief for the Columbia Fire Department. Mr. Call now states, by Affidavit of October 24,1990, that he disagrecs with Mr. Ottinger's interpretation of his remarks. Regardicss, Mr. Call's own af6 davit is direct testimony and is entitled to greater weight.

Mr. Call states that "the Columbia Fire Department would perform fire dutics in response to an alarm at the NURR [ Missouri University Research Rea; tor].'"'

ile then states that:

Such firefighung would continase until sudi time as the crews encountered saliation hvcle that the incident Commarxler determined might subject the crew to unaccepable r:Judon doses.

1he current MURR &nergency Plan (page 12,5.0.1 Protective Actsuns for All Classes) shows the acceptabte radiation doses and whether anyone Isom the Columbia lire Droartment would be subjcued to that maximum would be at the judgment of the Incident Commander tused am the cunditions at the time "

%is affidavit therefore raises the possibility that conditions could exist in which a particular crew might avoid a radioactively " hot" area. In this sense, they might temporarily interrupt or redirect their firefighting activity. If their activity were interrupted, they would then resume their dutics as soon as feasible

- just as they might Jo in an ordinary fire when affected by smoke or great heat. To my mind, this shows careful planning with the lives of the firefighters as an important consideration. Nothing Intervenors have said Mdicates that this is u defect in the emergency plan.

I also have received the "Af6 davit of Walter A. Meyer, Jr. Regarding Emergency Planning," October 29,1990 (Meyer Affidavit), and I have studied it with great care. I am convinced that he is qualified by reason of experience and education to testify concerning the adequaev of the emergency plan for the work on TRUMP S in the Alpha laboratory.

I am convinced by the Meyer Affidavit that Licensee is likely10 succeed on the merits of each of the following allegations:

lhe MURR Facdity Emergency Nn has been approved by the NRC and applies e

to all activities within the MURR Ihcility, including the Alpha laboratory in the 20 basement of the MURR licility The Columbia Fire Departmer,t (CFD) would Gght fires involving radioacdve snaterials at the MURR facility, including the Alpha Laboratory. 1he CfD participates in biennial training of its perscenel at the MURR Facility. Six Gremai

" Arrulavis. EaA A.

" 14 toMeya Arfidavn et 3.

365

\\

inen dw two fire annpanica dist mudd respmul to the MURR Incihty uralerwers en sw.asti m inur of the Algt.3 tahusury armi enemieted facihuca. The CIV clso has gerskigated in drills at MURR dini invulved radioactive snaterials as part of die drill scesario_S!

+ %e einergmcy gJan calls few taimsive axwdinatkn during an inciders beautta trainc4t professimals msking for dw MURR lullity and de 6tengtsers who might U

respevi I?catures of the Algdia taturatory have licen designed to minimise dw eficas of a e

nre."

Hre dt.ection arul fightlog equigeners is awnsined in de Algde taturatory and e

neartsy.as The MURl' Ivellity empkys C(sural Ro(wn wersuws who wwk 24 Imus a day I

e and are pregered to resped, even 6. times that &te erv sin persmncl in de Algde 14knetory, to alarms in the awarol <mun er ' URR that indicate emergency nemlities in the Alphs tatawakwy.u There are gdans to deal with severs Gres in de AlgJa latzwetory."

o ne Cit) mudd see de same procedures at de Algdie talmury that dwy e

geeerally n;5 y to nres limdving hasardous, dwmical, or (aher types af redmactive 4

meieriat. This is adeqmw?

ower.uy,.ppropriaie daection, nre a hiing erut deams.minske prucedurea heve e

s toene&qeedas III. EITECT ON STAY MOTION AND ON WRI'ITEN PRESENTATION

• the gurpose of this Memorandum is to address issues related to die vmpo-rary stay that I granted, llecause Oc procedures on die request for a stay ano.'ie written presentation are different, findings in this decision concerning "!! kell.

hood of success on dic merits" are not conclusions that affect de determinatic*)

of Oc issues raised by the Intervenors' written pt:sentation,"

' II14 at 7.

Uld at 1.s.

U14 et s.

Mi1etslh Uld et 14.

asgg,, gg.

Uld at 16.

'* 14, penani.

8'suue I mn ensimised to doisemins de sesima er this cens based en the wtman Ahnse, hearwsmus' nunion la swivnary thermition, Octaher 25, 1990, essms transvant. N Maim for other Rehef conna' nd in the a

sans documerd, tassins s vampuma 5

366 j

Ordel hr all the itscroing reas(uts ard u[on consideration of the entire record in this rnatter, it is, this is' day of November 1990, ORDERED, Otat:

1.

Findings in the accompanying Memorandum supersede those in LBP.

9435,32 NRC 259 (1990)(~ fem;orary Stay Onkt).

2.

Tie Staff of the Nucler Regulatory Commissani is authorked to amend tic license of the Cue-' ors of tne University of Missouri so that they may possess M

up to 1.21 euries of Pu as part of the 10 grams of plutonium th.i t'ry an.

authorticd to possess under SNM 247. Should tic Staff (kride that it is not appropriate to issue such an amendment, it may file a statemrit of its reasons within 15 bustress days of the date of issuance of this Order.

3. Tic ternporary stay I issued on Octoter 20,1990, shall continue in effect.

4.

Parties may file a request for reconskkration of this Memoranduri and Order within 10 bustress days of ti.e date of issuance of this Memorandum and Order.

Respectfully ORDERED, Peter P. Bkeh, Presiding Officer ADMINISTRATIVE JUDGE j

liethesda, Maryland 1

367 1

1

.- _~. ~. - -. -. - - -. - --_~ ~

I Cito as 32 NRC 308 (1990)

LBP 90 39 UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

John H Frye, lit, Chairman q

Dr. Jerry R. Kilne l

Frederick J. Shon in the Matter of Docket No. 50 440-OLA 2 (ASLHP No.90-605 02 CLA)

J CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.

(Perry Nuclear Power Plant, Unit 1)

November 1,1990 J

Staff issued a lleense amendment that permits Licensec, rather than Staff, to set cycle-specific parameter limits for the operation of the reactor, provided that Licensee employs StatT approved methodology. As a result, no opportunity for a hearing on the cycicapect'ic parameter limits will be offered. Following a stipulallon of fact agreed to by the parties which provided that the license amend-ment issued to Liccasce does not permit the Licensee to exercise discretion, the Licensing Dourd concluded that the license amendment will not improperly de-prive intervenor of hearing rights guaranteed by i189a of tic Atomic Energy Act.

INITIAL DECISION (Approving Liceme Amendment)

Ris proceeding results frorn a petition to intervene and request for a hear.

ing filed on March 8 1990, by Ohio Citizens for Responsible Energy, Inc.

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2 (OCRI).' OCRE peulioned in response to a notice that NRC was consider-irig the issuance of a license amendrnent to the Cleveland Electric Illuminating Cornpany (CEf).S The Ikense tunerdment in question removes cycle 4pecific core operating limits ard other cycic4pecific fuel information from die plant's Technical Specifications (TS) and replaces them with NitC approved methcdol-ogy for determining these limits. *ltese limits provide the technical rules under whkh the reactor may lie operated. OCRE wishes to litigate a single contention which states:

1he LAensee's prwvicd amermimmt to remme cyde. specific parameter hmits and <<hcr eyde elet.fg fuel informatim inuti the plura Tediriital Specificadms to the Core Operating limits Repst violates Secnon 189: of ine Atcmaic l'rwrgy Act (42 USC 2239s) in that it dernves members of the pubhc of tre right to rmtice and q5urtunity for hearing on any d.anges to de tyde specific parameters and fuelinformadm.

In its petition, OCRE agreed with CEI and Staff that the amendment involves purely an administrative matter that raises no significant hazards considerations as the lauer term is defined in 10 C.F.R. 6 $0.92(c). It stated that its intent is to raise a legal issue, vis.: that die grant of the amendment will deprive OCRE members of the legal means to gurticipate in the consideration of significant changes to the plant's cycle specific operations.

In LDP 90-15, 31 NRC $01 (1990), and LDP 90-25, 32 NRC 21 (1990),

we determined that OCRE had standing to intervene and had stated a valid contention under 10 C.F.R. 6 2.714. We based our conclusion with regard to the contention on the following reasoning.

1he (tweention anserts that i189s prohibits the chminadan of an qqurtunity f(n hearms m these chariges. Secum lit 9s requires a hearing on hcense amendments, and dianges in ledinical Specificanue,s require such amerwiments. Thus (X'RE's contentim is correct y cyde speci6c parstneter hrnits and fuelinformation are d sudi a nature as to be required to be in the Tedmical Speci6 cations. C1carly, the Troj.vi decision (Portland General Electric Co. (Trojan Nudear Ptars). At.All $31,9 NRC 263,271."l4 (1979)) requires that some such hmitatime must be induded in the Trdmical Speci6catkwa.

1he amermhnent would both remme these hmitations from the Tedmical Speci6 cations arvi permit Cl3 to calculate them accordmg to apptwed methcablogy, 1: rum this we assume that Cl3 would be permitted to implement the tww eyde.specinc parameter limiu so calcadated widunit prior Sinff a[yrmal. Given the safety significance d the ryde specific 3 ockl' is a puvste, sumprofit corporatics; that specialaes in naeanh and admcacy cet issues of nuclear reactor safety and pnenes the emheauan it Oc highest safety standania to sah fwihues-It was an inicrvence in the 1%rry operstm5 heenne peucced ng in pas pmceedmg. it seeks to intervme ami behalt of ha puznher and tervseentauvs. susan t thau. who mides withm 15 miles or the Perry plant CEI and staff do not queste ocki'/s reivestiusuuns in this regant 2 see $$ 1 ed kes 4282 (I sh 7.19'80L 3Cl;l is lead eithcara for itself and Duqucune t.ight Cwnpany. Ohio TAsm Carnpany, hnmylvarus hmer Campariy, asui the Tolado lason Ctenpany, comest or the ltrry Nucncar hwar plant 369

gerameterlimiu,this mndd <sdy he peq cr of dw medad&>gy required to'ic a;5 ed does tus 4i prmit sulatorsial discretum (si de part of Cl3. In that circumstance, the C4=nmisske will encroise its statutory responibilities through approval of the enethmk&igy, therely remming the rwed to include cyde-specific parameter imists in de *Iedmical Specihcatkm.'

In LilP 90 25, we set a r,chedule for limited discovery and a 3 day hearing strictly con 0ned to the factual issue posed by the contention, sn., whether the amendment would vest excesshe discretion to set cycle specific parameter limits in CEl, ibliowing the cornpletion of discovery, the parties entered into a sdpulation of fact which obviated the need for a hearing. That stipulation is attached to and made a part of this initial Decision, in their stipuladon of fact, the parties agtne diat li)he Uti Nudear linergy rneth(akuogy for setung cycle specif e core operating hmits, which is a;3,wed tiy the NRC and specified in the PNPP Tedinical Specifications, &ies not permit substarsial diseraion cm the part of 1.icensees (or Gli Nudcar linergy acting as their design agers) arul does run require sututarsial trigineering judgmers to dr: rive the cyde-specific parameter hmhs induded in the Core Operwing limits Regert The supulation also states that OCRl!, de NRC Staff, and IJcemees agree that the facu sd;mlated and agreed to atme denumistrate that substarnial engineering judgmess is run treded to derive the cyde-specific informatkm included in the Core Opersing tJrrJu Repnt from the snethalokgy specifwd in the PNPP Tedinical $pecifications.8 Based upon the above supuladon and on the reasoning stated in L11P 90-15 and LIIP 90-25, we conclude as a matter of law that the license amendment in question will not improperly deprive OCRE of hearing rights guaranteed to it by i189a of the Atomic Energy Act.

In consideration of the foregoing, it is hereby ORDERED

1. That Staff's issuance of License Amendment 33 to ibcility Operating LI:ense NPF 58 is approved; 2.

Pursuant to 10 C.F.R. 62.762, any party aggrieved by this initial Decision may take an appeal by filing a nodce of appeal with the Commisdon within 10 days after service of this initial Decision; and

• 1JtP 4025,32 NRC at 26.

5 stquist.an at $ lp,374. sabel 370

l

3. That pursuant to 10 C.F.R. 6 2.760(a), this initial Decision shall ronstitute tie final action of the Nuclear Regulatory Cunmission 45 days after its date unless ap;caled.

Tile ATOMIC SAITTY AND LICENSING BOARD Frederick J. Shon ADMINISTRATIVE JUDOE Dr. Jerry R. Kline ADMINISTRATIVE JUDGE John 11 Frye, Ill, Chairman ADMINISTRATIVE JUDOB llettesda, Maryland Novemler 1,1990 371

ATTACllMl;NT October 17,1990 i

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

Before the Atomic Safety and Licensing Board in the Matter of Docket No. 50-440-OLA 2 (ASLBP No. 90 605 02 OLA)

THE CLEVELAND ELECTRIC ILLUMINA11NG COMPANY, et al (Perry Nuclear Power Plant, Unit 1)

STIPULATION OF AGREED FACTS IlETWEEN LICENSEES, NRC STAFF, AND 01110 CITIZENS FOR RESPONSillLE ENERGY The license amendment whlu is the sut@ct of this hearing authorized li-cernees to replace the cycle specific core omrating limits in the itchnical Spec-Ifications for the itrry Naclear Power Plant Uc411 ("PNPP") with a reference to tic values in the PNPP Core Operating Limiu iteport. Ibrtlermore, the lleense amendment amerped the 1bchnical Specifications la require that cycle specific core operating limits be estabilded using the specified, NRC approved method.

ology, as descriled in GESTAR (NEDE 240ll P A the approved revision at the time reload analysett are performed), and, tefore cach reload cycle or remaining part of any rehad cycle, that these limits te documented in a Core Operating Limits Report which is provided to tic NRC upon issuance. The Technical i

Specifications also continue to require that Licensees operate the plant within tic limits specified in the Core Operating Limits Report (referenced in the 7bch-nical Specifications) atxt require the exact stune actions to be taken as before, if tiese limits wem to be execeded.

Ohio Citizens for Respor ;ble Energy, Inc. ("OCRE") has sought to raise tic single issue of whether t ilicense amendment violates secthm lH9a of the Atomic Energy Act by depriving members of the public of the right to notico 1

)

372

1 I

i l

and ogyortunity for hearing on any changes to the cycicopecific pararneters ark!

fuel infantmtion.

Ily its Memoranda and Orders dated June 11,19X) (LilP 90 l$) and July 23,1990 (LilP 425), the Atomic Safety arxl Licensing Itoard ("the Board")

ordered that an evidentiary hearing be held in this rnatter to determine w hether, "as a matter of fact, Sutstantial enginecting judgment is needed to derive the cycic4pecific parameter limits to be.tncluded in the Core Operating Limits Report. LitP 90 25, (32 NRC at 23), quotingfrom LilP 90-15.

j lulowing the completion of discovery in this pneceding and the informal submission of additional informatkut by Liternees to OCRE, the parties have l

ngreed to supulate to the following agreed statement of facts, ircluding the parties' agrrement that the approved methodology for $ctting cycle specinc parameter hmits does not permit substantial discredon on the part of Liceraces and does not require substandal enginecting judgment to derive the cycle specine parameter limits included in the Ccre Operating Limits Report. The parties agree that this stipulated staternent of facts represents a fair and reasonable $ctilernent of the factual issue designated by the Iloard for evklentiary hearing.

• Ihe agreed statement of facts is as follows:

1.

• ihe license amendment (a) audionted Licensees to relocate cycle specific core 0; crating limits from PNPP's Technical Specifica-tkwa into a Core Operating Limits Report, (b) authorized Liceraces to l

replace the speciGC values for the core operating limits within the Techni-cal Specifications with at reference to the Core Operating Limits Report, (c) requires that the core operating litnits be determined by using the NRC approved methodology specl6cd in the Technical Specificadora and (d) requires that the plant be operated within the limits specl6cd in the Com Operating Limits Report.

l

2. *Ihe methodology used to establish the core operating tiraits for i

PNPP, including the process for developing inputs, the various models and correlations used in the methodology, the treatment of the model and model input uncertaintics, and the applicatkri of the methodology, i

may not be changed without prior NRC approval.

l

3. OE Nuclear Energy es',ablishe; the cycle specific c<re operating limits for PNPP in accordance with the NRC approved methodology described in GESTAR (NEDE 240!! P A, the approved revision at the Ome rekiad analysts are performed) as specified in PNPP's Technical Spoelliccdons.

4.

Input parameters to the mediodology are based on the intended modes of operuuon, plant and fuct design and configuration described in the safety analysis report and the Technical Specificatiorn, and are devekped frun controlled design documents and test and performance data.

373 I

5. The rekul armlyses performed by GE Nuclear Energy are fully verified in accordarre with the GE Nuclear Energy Quality Assurance Prograrn approved by the NRC.

6.

The CEI fuel management organization independently reviews the activities of GE Nuclear Energy, and the PNPP Nuclear Assurance Department perforn,3 quality assurance audits of the GE rekud program and the CEI design control prograrn.

7.

CEI reviews the results of GB's reload analyses through its engineering, licensing, and reactor engineering and fuel management units, and any changes to the Core Operating Limits Report are required by PNPP plant procedures to be reviewed by the Plant Operations Review Cornmittee.

8.

The GE Nuvicar Energy methodology for setting cycle specific core operating limits, which is approved by the NRC and speeltied in the PNPP Technical Speci0 cations, does not permit sutstantial discretion on the part of Licensecs (or GE Nuclear Energy acting as their design agent) and does not require substantial engineering judgment to derive the cycle-specific parameter limits included in the Core Operating Limits Report.

OCRE, the NRC Staff, and Licensecs agree that the facts stipulated and agreed to atove demonstrate that substantial enginecting judgment is not needed to derive the cycle specific information included in the Core Operating Limits Report from the methodology specified in the PNPP Technical Specifications.

Therefore, the parties believe that the factual questions raised by the Board in its Memorandum and Order (Granting Ittilkm to Intervene) dated June 11 1990 (LDP 90-15) and in its Memorandum and Order (Denying Staft's and Licensec's Motions for Reconsidemtion) dated July 23,1990 (LDP.90-25) have been answered.

By stipulating and agreeing to these facts, Licensecs, the NRC Staff, and OCRE believe that the need for the factual hearing ordered by the Board has been obviated. Therefore, the parties respectfully submit that the Board accept 374

I as true the facts stipulated and agreed to above and cancel the factual hearing scheduled for Octaler 30,1990.

Respectfully submitted, Jay E. Silberg SilAW, PITrMAN, POTTS & TROWDRIDGE 2300 N Street, N.W.

Washington, D.C. 20037

)

Counsel for Licensees Susan L. filatt OCRE Representative 8275 Munson Road Mentor, Ohio 44060 Colleen P. Woodicad Counsel for NRC Staff Office of the Genctn1 Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 375

Cite as 32 NRC 376 (1990)

LBP 90-40 l

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

Ivan W. Smith, Chairman Dr. Richerd F. Cole Dr. Kenneth A. McCollom in the Matter of Docket Nos. 50 443 OLR 3 50-444 OLR 3 (ASLBP No. 90419EOLR 3)

(Offsite Erara* % **aning)

PUBLIC $ERVICE COMPANY -

OF NEW r,1?'PSHIRE, et af.

j (Seabrook Station, Units 1 and 2)

November 7,1990 i

MEMORANDUM AND ORDER (Denying Licensee's Motion for Summary Disposition of Issues Remanded in ALAH 937)

In ALAB 937, Septemtxt 18,1990,32 NRC 135, de Appeal Board reversed the Licensing Board's reption of Massachusetts Attorney General's Contention 47 Basis R, relating to the evacuatlau and cue of children in schools and day-care centers within N Massachusetts portion of the Scabrook EPZ in the event of l

a radiological emergency. The proceeding we remanded to the Liccasing Board to explore two related subissues: (1) Whether there is reasonabic assurance that a sufficient number of teachers and day care center pc sonnel would be availabic to escort the children to tic designated School llost Pacility at lloly Cross College and remain with them until rcileved of that assignment; and (2) if such reasonable assurance does not exist. have the applicants made satisfactory 376

J alternadvc arrangernents for the care and super ision of the children tioth on the bus trip to lloly Cross College (lwated in Worcester, biassachusetts) and during their st.iy at the college. Id. at 152. The Liceming ikwd is authorit.ed to susperal tic Seabrook operating lic$nse pendente life should the hiassachusetts Attorney General challenge Applicants' affidavits respecting alternative arrangements. We are directed to act upcm such a challenge with "all possitile expedition. Id. at 137,152.

Licensecs now move the Itoard for judgment on all issues remanded by ALAll 9? by secking summary disposition of three material facts as to which, Licertsecs assert, there is no genuire issue to le heard.L Intervenors oppose the rnotion.8 Thc NRC Staff is not participating in the resolution of the summary dispositko motion.8 Licensecs support ticir motion with the affidavits of Dr. Dennis S. hiileti and Anthony bl. Callendrello. Each has been found by the lloard to te qualified to speak to the subject matter of their affidavits. Similarly, the affiants dupporting intervenors, Dr. Steven Cole and hilchael C, Sinclair, are qualified to address tic matters set out in their affidavits.

First, supported by the affidavit of Dr. hilleti, Licensecs assert, as a general proposition, that:

1. I'trsisis in roles of responibihty for ahers tefore an einergency begins have rule certairsy staan tming responible for their charges during an ernergency irdependers of planning and training.

hiotkm at 4, citing hiileti Affidavit,1j 74.

Intervenors do not directly address Licensecs' first statement of material fact, despite their clear obligation lo do so. See 10 C.F.R. 5 2.749(b). Rather, Intervenors refer to that portion of Dr. Cole's Affidavit which discusses role conflict. In effect. Dr. Cole challenges the infefences one might draw from Licensecs' first statement.' The Board passes over the first statement because Ilka sees' Mem fis summary thspuiuon d Issues Ranandal in AIAB 937, oisaher 22.1990. The llaard amenaus the mdLion pusuars to Ow pnwisuus of 10 C.FA (1749. Licanaess'staiemas thei the nuam is pnsghs persuers to 10 CIA 6 2.734 La, si halave, a mimaks 11ntervauss' ommam to themees' Mnm far sianmary thspsin<m of Isauce Rananded in ALAB.937, Nmember L 1990. see also Amendmani lo intervaiors' oppuuthm to Ikenaces' Rnm for sununary therminan of lasues Remanded in ALAB 937. Neember s.1990 In Gw lauer pleadmg. Imerveuws sutunitted a het of maienal facss ennelative to (kawes' het M at 3.

8tn e scheduling islesdunw call to IWwin L Rena. tal., orr,ce of oamral Ciamsel, en Neanhar 5,1990, ow Ikinsms Board Chairman observed that ALAB 937 empires the Ikensms hard to act with au puenlJe tapediuen in the evers of a chenense to thermees' puitum on the rwnsaded issues. Mr. Ras sisted that, ahhaugh the NRC stafr intauls to coruuh with rEMA and to paniciguie in the sesolutum d shs temanded ismes, the stafr done nra ebject to the Board's fulmg without delay on the pleadmgs submined in the Ikensass and Inicrvenars.

lie stated that es NRC sufr will pneas its painan in connectum with any funha puceedmgs repused by thu order.

4 see Intervants' Amendmas si s, sina Cute Afridsm.1112,15 21.

377

we are denying the motion with respect to the second and third statements of material fact. Strinding alone, unquantified and genenil as it is, the firi.t staternent leads nowhere.11 is better that the first statement be ex.amined against a relevant factual background if Licensecs remain inclined to prove that assertion.

Licensees'second statemerit of material fact states:

2. %ere is reantratu ensurana that suffiewnt sdxwd eru=viel will resi=wid to care Isw t

and sugervise aduma children and day 4are center duldren being evacuated as a resul of a t

rad ologkal einergency at Scatwod Statket Motion at 4, ciririg Mileti Affidavit, passim.

Intervenors' affiant, Dr. Cole, challenges the soccod statement directly and in detail. Cole Affidavit, passim. Stace :ntervenors need St.ow only that a genuine issue of fact remains in dispute, the motion with respect to the second statement is denied.

The third statement addresses the second subissue remanded in ALAll 937.

Licensecs' state that:

3. Dere are sufficient Oito personnel assigned to care for the cMiren at the Schad llust I:scihty, even if teachers sh<ndd abandon their darges and refuie to accernpany <r care for tiem in a radiological energency at Seabrma Stathwt Motion at 4, citing Callendrello Affidavit, passim.

Intervenors counter the third statement with Mr. Sinclair's affidavit which clearly establishes a genuine issue of material fact.

Order Accordingly, Licensecs' motion for summary disposition and judgment is denied.

All cligible parties intending to participate in the resolution of the issues remanded in ALAll 937 are directed to attend a prehearing conference for the further identification and simplification of the subissues and to provide for a schedule for the disposition of the remanded matter.

The prehearing conference will be conducted at the NRC llearing room, Fifth i

Floor East West / West Towers Ilullding,4350 Fat West Illghway, Ilethesda, Maryland, teginning at 10:00 a.m., Decemter 13,1990.

Since the basic factual positions of the Licensees and Intervenors have been revealed by the affidavits supporting their respective pleadings, the Board telieves that very little discovery will te required. Ilowever, the Board i

3 711

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nuttorirts any needed discovery to tegin immediately in accordance with Part 2 discovery rules,10 C.F.R. il2.740-2.74'z.

1 IOR Ti!E ATOMIC SAFETY J

AND LICENSINO BOARD Ivan W. Smith, Chairman ADMINISTRATIVE LAW JUDGE Dethesda, Maryland November 7,1990 j

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Cite as 32 NRC 380 (1990)

LBP 90 41 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD 4

Before Administrative Judge:

Peter B. Bloch in the Matter of Docket Nos. 70 00270 30-02276 MLA (ASLBP No.90-413 02-MLA)

(RE: TRUMP S Project)

(Byproduct Lloonee No. 24 00513 32;

)

Special Nuclear MaterIsle l

Lloonee No. SNM 247)

CURATORS OF THE UNIVERSITY OF MISSOURI November 16,1990 After reviewing the criteria for a temporary stay in light of Licensce's last responsive filing, the presiding officer &cides that the criteria for the stay diat had been granted are no longer met and that the stay should be lifted.

RULES OF PRACTICE: TEMPORARY STAYI SUllPART L lt is appropriate to grant a temporary stay on die application of a party that shows that the criteria for a temporary stay are met, After the lleenscc filc4 a responso that demonstrates that the temporary stay criteria are not met, it is then appropriate to lift the temporary stay.

- TECilNICAL ISSUES DISCUSSED

'the following technicalissues are discussed: IIEpA. rattan; DOP testing of !! EPA filters; Singic failure criterion, for glove toxes; Giove toxes; Preven-t 3110

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tion of plutonium fire; Plutonium (unencapsulated), release fractions for; Release fraction, plutonium (unencapsulated).

h1Eh10RANDUh1 AND ORDER (Dissolution of Stay) hiemorandum This is tie fourth memorandum in this case in which I have addressed issues related to tic granting of a temporary stay. The other memoranda are:

LIIP-90-30 (1tmporary Stay Request),32 NRC 95 (1990);

L11P 90 35 (Grant of Temporary Stay),32 NRC 259 (1990)1 and LILP 90 38 (Licensec's Partial Response Oranting 7bmporary $tay),

32 NRC 359 (1990).

In each of ticsc decisions, I have addressed Oc infortnation placed tefore me by tic parties in light of the regulatory requirements concerning the granting of a temporary t.:.,. In LIIP 90 30, which was related primarily to the issue of IIEPA filtration, Intervenors'8 allegations were acktressed by thoughtful affidavits filed by Licensec ; and I denied the arquest for a temporary stay, 'Ihen Intervenors 2

filed lengthy affidavits by their experts, whom they called Oc 'I11 UMP S review panel, and I issued L11P 90 35 granting a temporary stay and providing for Licensec to address the grounds for Oc stay as rapidly as Ocy were able. During the time that they have teen assembling their response, a stay was put into effect and kept in effect - thus protecting the public because the information before me showed diat the public would te exposed to an unacceptable risk, which I determined consututed irreparable injury, LIIP 9038 was issted after Licensee made a partial response to the grounds for de temporary stay, 'lhe decision made findings favorable to the Licensee but continued the stay in effect until the final grounds for a temporary stay could be addressed by Licensec Now that has occurred, and I conclude that the grounds for a stay are no longer present and dat the stay should be dissolved.

While tic Stay process is cumbersome and has produced the appearance of vacillatkm, it seems to no to te tmsically sound and even to te a tribute to the concern that the Nuclear Regulatory Commission shows for public safety. It is approjriate that activitics should be suspended until evidence of irreparable irdury can be properly relotted. Until de rebuttal is submitted and found to te IN Weaud Cashtion tar ow levimnment. sw WI Wasaud Nuclear weapara Fruen, ine,, ou Physicians fw sucial ResponsihdityM4 Weaud Ospear. and isn inevidual intervanon 3The Cureuws or ow University of Wamd 381

L persuasive, t!ere is no way to exclude the possibility that the activity itself is 1

unduly dangerous, in the process, there has teen some injury to the efficiency and reputation of the Licensce, llowever, if the process is fully understood and the carefulness of Licensce's filings fully appreciated, the damage to its reputation shoukt bc mitigated.

1, ISSUES RELATED TO llEPA FILTERS

. In granting a temporary stay in LDP 90-35, I said (32 NRC at 265):

he Declaration of the Tnanp4 Review Panel at 22 25 persuades rne that huervenurs j

ere likely to succeed on the enerits of the fuuowing arguments:

+ tJcensee has not installed two DOP tesud !! EPA fahers as required by industry practice, surported by tX)E Order 6430.l A, l 1300 3.6, whidi referenas A5hm N510; it is not proper to take credit fur IIEPA fihers that are van DOP tested in place; e

in the event of a Are or explosicut, it is not proper to take credit for llEPA hhers e

whether or nca they are LX)P tested; a serious fire or explosion could resuh in substarsial release of cxwaarnination e

directly to the envirorunera.

. Licensee has now persuasively rebutted each of these grounds, widch I shall discuss one at a time.

- A, Licensee has not installed two DOP tested ilEPA filters as required by industry practice, supported by DOE Order 6430.1A, i 1300 3.6, which references ASME N510 s

Licensec has submitted " Affidavit of Veryl O. Eschen Regarding Argon Olovebox Exhaust System," Licensec Exh. 7. Mr. Eschen has B.S. and M.S.

degrees in Metallurgical Engineering and has worked for Ocneral Electric Company and Argonne National Laboratory, among others, lie also has been-associated with the utilization of DOE Order 6430.1 A,"Ocacral Design Criteria" and in field investigations of glove-box systems, both at Rocky Flats plant. Id.

at 12. lie appears to be a qualified engineer, Mr. Eschen's affidavit persuades me that Licensec is likely to succeed on the.

merits of its argument that the one llEPA filter in the Alpha Laixtatory that E

cannot bc DOP tested in place is an extra filter that is not required in order to meet the Department of Energy's single-fallure criterion (and the general policy of this agency to require redundancy as a safeguard against accident).

382

i 1

'Ihe reason I accept at this time tte argurnent that the single fadure criterion is rnet is that there ap; car to lie two exhaust goths from the glove tox and either exhaust goth contains twu llEPA filters (counting cach of tie final, two stage hlter systern as a hlter). 'lhis seems to be sufficient. Id. at 2. Additionally, I find l

persuasive the Affidavit of Dr. J. Steven Morris Regarding Steppen Suggestions arid Comments, Licensee Exh. 8 at 3 (16) that it is corntnan pra:tice to have a llEPA filter in the exhaust outlet for a glove box and not to count that filter, which cannot be DOP tested, as a formal IIEPA stage ibrtiermore, I am assured by D*, Morris's Affidavit, at 4 8, that serious considemtion was given to recomtnendations of Mr. Steppen arxl that tMrc was nothing hasty or arbitrary in disregarding his advice that there was a major design flaw in (te Alpha taloratory.

l

11. It is not proper to take credit for llEPA filters that are not DOP tested in place

'Ihis staternent of Intervenors is correct. Ilowever, as I have just discussed above, Licensec has submitted evidence I am likely to accept on the merits that

]

it is not counting on the llEPA filters that cannot te tested in phee.

1 C.

In the event of a fire or expk>sion,it is not proper to take credit for 4

llEPA filters whether or not they are DOP tested Dr. Leon Krueger, who is a Ph.D. chemist employed by MURR, with 20 years' experience as a research chemist, has submitted his Affidavit. Exh. 5 at 1. lie appears to be well qualified. Dr. Krueger states, in the following numbered paragraphs.

10. Iloth die equi iners in der Alpia tataratory and die procedures for die TRUMP-S l

experinents were designed to reduce the possibility d a Gre. The nudnds for eninimii.ing fire harards are lased on avoidmg the presence of (1) a fuel saurve, (2) an oxidner, or 0) the mininal energy / ignition ternperature that must tw supphed to create a fire.

eoe 1s.1here are no e uplosives, gaudire, diesel fuct, Lerusene, fuel oils, n>aor oils, aladot, acetone or other flanimable solvents or cleaning agents or natural gas piping systems h(wed inside Ow Alpha tatxwatory.

In the remainder of his affidavit, Dr. Krueger discusses in detail the different items and tools that can be present in tic Alpha Labor $1ry and presents his expert opinion concerning why each is not a credible sourte of fire.

Additionally, there is the Affidavit of Chester B. Edwards, Jr., Regarding the Adequacy of Alpha laboratory Equipment, Firc Related Features in the 383

1 Alpha Laboratory and Geteral liasement Area, and the Storage and Transfer of Actinide and Archived hiaterials (Licensee Exh. 4). hit. Edwards is a career reactor operator win has tan a licensed Senior Reactor Operator since 1968 and who was responsible for the design of the Alpha Lateratory, lie states that the equipment in the Alpha Laboratory has tan adequately inspected and tested. Id. at 3 5, IIc then states:

20. The Alpha taturatory has been constructed so as to minimite cannbustibibry d ikKr. walls anJ +cihngs.

31. As previmsly described the Algha laboratory mas constructed to minimire the possibility d a 6re spreading frtwn within tic Alpha taboratory to the basemers area. liven if this were to occur, the exnstruction d the basement area is such that r. would prevers the spread d a f re any further. The Algte t.aboratory is housed in the basement area outside cmtairunent. The reinforced poured concrete vault in which the Alpha 14horntory is housed has a 12 Irt thick concrete fkur,8 in. thkk cmcrete ceiling, and 16 irt, thid accrete walls on the rurth, east, south and west. In effect, the Alpha taboratory is eraornbed iruide a cmcrete vault isolated from the rest d the facility.

%csc are important portions of Mr. Edwards affidavit. Ilowever, I have reviewed the entire affidavit and find it to tx thoughtful and persuasive.

%c key affidavit on this point, however, is that of Dr. J. Steven hiorris (Licensec Exh, 3), My reading of this affidavit, which analyzes literature in detail and reaches thoughtful, well reasoned conclusions, prevents me from concluding that the Intervenors are likely to succeed on the merits of their allegation that Licensee cannot take credit for a !! EPA filter in the event of a ftre or explosion. This is because I am likely to accept Dr. Morris's conclusion, in 143, that:

Gre, with a loss of c(usairunentkonfinement, is not a credible acciders relative to the storage d, transit d, or experimeraation with, the actinide anaterials at MURR. 'ihereftwe, any release of actinides from a fire would te fikered thruugh the stad.

D, A serk>us fire or explosion could result in substantial release of contamination directly to the environment Because Licensee seems likely to prevail on the merits of its argument that fire with kiss of containment is not a credible accident, I am likely to accept Dr. Morris's conclusior,, in 152, that in the event of a hypothetical worst case accident:

1he doses at 100 rneters resuhing frtun a hypothetical murst<ase accidera at the MURR involving actinides are negligible.... Actual fractional release factors would be smaller 384

than 1 a ld ard ru) tredit is taten for c'fecove emergency resprac (Lt., tatinguishing the fire te. fore the entire working inventury is cmsurnc-d)

In lay terms, Dr. Morris is testifying that in the event of a worst case fire mel-dent involving experimental materials, less Omn one millionth of the materials involved could be expected to te released to the environment.

I am also completely unable to accept the suggestion of the TRUMP S parel that the release inction should be treated as 3%. That suggestion is born of die Chernobyl experience, which resulted from a runany textor and a graphite fire. Furthermore, Dr. Morris states that even in that event, which lasted for over 10 days, there was considerably less than 3% respirable release - since a significant part of the release was in nonrespirabic fact fragments. Licensec Exh. 3 at 9. Indeed, based on what I now know, the use of Chernobyl for comparison seems highly inappropriate here.

II. CONCLUSION The criteria for a stay are no longer met.

As discussed above, Intervenors are unlikely to succeed on the merits of any of their important arguments. I also find that Intervenors have not persuaded me that either they or the public would be irreparably injured if a stay were not granted. There is the additional factor of cost arx! trronvenience to Licensec, which it has demonstrated in its filing, but in de absence of the other grounds for a stay, I need not discuss diat factor.

I wuld point out that in dissolving the stay, I am not affecting the breadth of Licensec's licenses in any way, in particular, this opinion is silent on whether or not Licensee is properly licensed to possess the "Pu and the americium which it has said are present in the 2"Pu and 2*Pu material that it is authorized to possess and use.

Nor does this opinion affect the decision on the merits of the written filings.

There will be a procedural scheduling conference by telephone in the near future to schedule further written filings. I will be able to make decisions alxxit the possible need for oral argument or for an evloentiary hearing, as has teen suggested by Intervenors, only after I have analymt all the written filings.5 3 10 C.F.R. ll 2.t D3,1215, m aire 10 CF.R 61120W 385 i

l

i Order Itr all the foregoing reasons arxl u[on consideration of the entire record in this rnatter, it is, this 16th day of Novemter 1990, ORDERED, that:

The temporary stay issued in this proceeding is vacated and is of no further effect. Motions for reconsideratkut of this Memorandum and Order may te filed within 10 txisiness days of the date of issuance of this Memorandum and Order.

Respectfully ORDERED, Peter B. Illoch, hesiding Officer ADMINISTRATIVE JUDOE Ilettenia, Maryland 386

Cite as 32 NRC 387 (1990)

LBP-90-42 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND L! CENSING BOARD Before Administrative Judges:

Morton B. Marguiles, Chairman Dr. A. Dixon Callihan Dr. Jerry R. Kline in the Metter of Docket No. 3012319-CivP (ASLBP No. 90 61843-CivP)

(Materials License No.,3517178-01)

(EA 89 223)

TULSA GAMM A RAY, INC.

October 29,1990 PREIIEARING CONFERENCE MEMORANDUM AND ORDER On October 16, 1990, a telephonic prehearing conference was held in the

. captioned proceeding. Its purpose was to identify and simplify the issues; establish a schedule for further actions in the proceeding to include discovery, the i&ntification of witnesses, and the setting of the time for hearingt and consider any other matters that may aid in the tsdctly disposition of the proceeding. NRC Staff counsel, Susan L. Uttal, and Peter C. Moss, president of licensec, 'Ibisa -

Gamma Ray, Inc. (TOR), represented the respective parties.

On the matter of identification of the issues, Staff's position was that the Licensec had admitted to the violations in its response to the Notice of Violation and that the only issue was whether the amount of the penalty imposed was appropriate. Staff would have the Board consider whether a monetary penalty should have been assessed and whether the amount of the penalty is proper considering mitigating circumstances. In determining whether a monetary penalty should have been assessed, a mattet for review would include whether 387

- _. -, - -,. ~

i it was correct to colle tively classify the Severity level IV and V violations as a c

single %e <tity Level 111 violation under the Cornmission's Enforcement ibbey.

1hc " Order imposing Civil Idonetary penalty," dated June 0,1990 (55 i ed.

l<eg. 24,949 52 (June 19.1990A which grar,ted Licensee the right to a hea*ing and defmed the scope of the hearmg, was predicated on Licensee having admitted nine violations of Severity Level IV or V. The Order stated " die issue to tv considered at such bearing shall be whether, on the basis of the violations adtnitted by the hcensec, coraisting of the violations set forth in the Notice of Violation as modified by the withdrawal of Violation 3, this Order should be sustained."

In inquiring of Licensee on the issues in the proceedmg, it was indicated to the lloard that it had not admitted to the alleged violations.

The lloard did tot have available to it Licernec's l'ebruary 22,1990 Answer to the Notice of Violation where the admissions to violations were stated to be contained and upon which admissions the Order specifying the scope of this proceedmg was pretnised.

We interrupted the prehearing conference to ascertain whether the Licensee's Answer contained the adtnission of violations the Order triied upon and if absent, to obtain the views of the parties on its effect on this proceeding.

The February 22,1990 Answer has since l<cn furnished to the Itoard. We have reviewed it and are satisfied that there is no reason to question that the violations were admitted as set forth in the Order defining the jurisdiction of this proceeding.

The lloard has the limited jurisdiction defited by the Order dated June 6, 1990. There proved to le no soui.d reason for questioning the validity of that Order.1he Order limits the scope of the proceeding to whether the amount of the penalty imposed was proper under the Commission's Enforcement iblicy, i.e., whether it was correct to collectively chasify the Severity Level IV and V violations as a Severity Level 111 violation and impose a monetary penalty, and whedict the amount of the penalty was correctly arrived at taking into account die factors in the Enforcement Policy, including mitigating circumstances.

The proceeding does not extend to the issue of whether the Severity level IV and V violations were committed. Should the Licensee now have second thoughts on whether the violations should have been admitted, any proposed withdrawal of those admissions is not a matter to be raised and considered in this proceeding because it is beyond its scope.

No further inquiry need be made of the pardes prior to resuming the pre-hearing conference. The briefs referred to during the prehearing conference are no longer necessary, The resumed prehearing conference will be held by 388

l telephone on Novemter 7,1990, at 1090 a.tn. eastern Umc and 9:00 a.m. central tirne.

it is so ORDERED, FOR THE ATOMIC SAFETY AND LICENSING BOARD Morton B, Margulics, Chairman ADMINISTRATIVE LAW JUDGE Beticsda, Maryland October 29,1990 389 i

s y

,~

Cite as 32 NRC 390 (1990)

LBP 90-43 UN!TED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Morton B. Margulles, Chaltman Dr. A. Dixon Callihan Dr. Jerry R. Kline in the Matter of Docket No. 3012319-CivP (ASLBP No. 90-61843 CivP)

_ (Materiale Ucense No. 3517178-01)

(EA 89-223)

TULSA GAMMA RAY,INC.

November 15,1990 MEMORANDUM AND ORDER (Meteorializing Prehearing Conference)

Pursuant to Board Order of October 4,1990 (unpublished), a telephone pre-hearing conference was held on October 16,1990, in the captioned proceeding for the purpose of identifying and simplifying the issues, setting a prehearing schedule and considering any other matters that may aid in the orderly dispost-4 tion of the proceeding.

The October 16, 1990 prehearing conference was recessed to ascertain whether the Licensec admitted to the Severity level IV and V violations as was stated in the " Order Imposing Civil Monetary Penalty," dated June 6,1990 (unpublished), and, if the violations were not admitted, to obtain tie views of the parties on the effect the absence of such admissions would have on the proceeding, ibilowing the furnishing of relevant information to the Board, we determined that there was no basis to question the validity of the June 6,1990 Order insofar as it alleged that admissions were made of nine Severity Level IV and 390 t

1

1 1

V violations and that there was no need to obtain the siews of the parties as was (oce considered.

In a "Prehearing Confercree Memorandum and Orir" of Octoter 29, 1990 (1, IIP 90-42, 32 NRC 390), we memorialized what occurred during de interrupted preheanng conference of October 16,1990. %c Ik>ard defined the issue in de proceeding to be whether the amount of the penalty imposed was correct under the Commission's Enforcement Policy,10 C.F.R. Part 2, Appendix C, l.c., whether it was correct to collectively classify the Severity Level IV tmd V violations as a Severity 12 vel !!! violation and impose a monetary penalty, and whether the amount of the psity was correctly arrived at, taking into account the factors in the Enforcement Policy, including mitigating circunstances. We also ordered that the prehearing conference be resumed to complete the original agerxla. ne final date for die continued telephonic prehearing conference was set in an Order of October 31,1990 (unpubhshed).

%c conference, by telephore, resumed on Novemter 8,1990. Participating with the lloard in the conference were Susan 'L. Uttal, Esq., and Sherwin E.

hrk, l'.sq., for NRC Staff and President Jcam C. Moss and Peter Moss of hisa I

Gamma Ray, Inc.

The parties agreed that the issue in the proceeding was that as defired by the Iloard in its Order of October 16,1990.

A discussion was held on the adequacy cf die notice given to Ucensee of tic matters of fact and law relied upon by NRC Staff in regard to aggrel;ating and collectively classifying de Severity Level IV and V violations as a Severity Level !!! violation for which a moretary penalty was imposed.

Section 554(b)(3) of 5 U.S.C. provides that persons entitled to an agency hearing shall be timely informed of the matters of fact and law asserted. %e Daard was unable to find in the record that the NRC fxicquately informed IJcensee of the specific regulatory provisions it rchd upon to consider die Severity IV and V violations collectively as a Severity Level III violation.

hisa Gamma Ray, Inc., had requested a hearing by letter dated July 3,1990, following the publication of the Federal Register Notice of the " Order imposing Civil Moretary Penalty" dated June 6,1990, in response to that request, the Director, Office of Enforcement, in a letter dated July 31, 1990, advised the Licensec:

You raise me addukmal goint cecerning the fact that the volatims in this case were cmsidered in the aggregate as a Severity level 111 problem. '!his aggregation is approgviale in accordance with Sections III and V.D and Supplements IV.C12 and VI.CE. of the Enforcement Policy....

391

i Th: Itoarrt concludal Otat this tipprisal of One Licensee of the applicable pro.

visioris o'un wri;6 NRC Staff wie acting along widi any additiortal information that was previously provided was irmdequote to satisfy the notice requirements.

IW cxample, Supplement IV.C.12 of de Enforectnent Iblicy provides:

Ilreakckwn in the redistkm safety prograin invulving a number of vk>1alkaa that art related or, if isolated, that are reotting that collecuvely reprt.cra e patentially signifaara luk of auentkm <r carelessness kvard Inensed respwuibiliucs (enytasis suppliedi.

The Staff did not inform Licensec as to which of the disjunctive actions the Licensee is accused of committing. Duc process requires that the Licensee be adequately apprised.

Notice was fully adequate in regard to the Severity Level IV arx! V violations alleged. NRC Staff was directed to notify Licensee of the specific provisions of the Enforcement Iblicy upon which it relied to impose the civil penally on Tulsa Gamma Ray, Inc.

it was agreed to by the pardes and with Doard approval that the required notice shall be served by letter on the Licerge by Novemter 20,1990, and that discovery can commence on December 4,1990.

It was further agreed to by the parties with 110ard approval thht the schedule in de proceeding shall be as follows:

December 4,1990 Interrogatories to be served.

January 4,1991 Interrogatories to be answered.

January 18,1991 Requests for admissions to te served.

February 1,1991 Requests for admbslons to te answered, February 25,1991 Depositkins to be completed.

March 25,1991 DUpositive rnotions to be filed.

April 15,1991 Responses to dispositive motk>ns to be filed.

May 15,1991 Board ruling on anotions.

Junc $,1091 Prefilsd testimony to be filed.

June 25,1991 llearing legins.

Dbcovery can be conducted by either party in accordance with the above schedule. Discovery of NRC Staff is limited to Oc cttent specified in die Commissions' Rules of Pra:tice, i.e.,10 C.F.R. Il 2.720(h)(2)(i),2.720(h)(2)(ii),

2.740(f)(3), 2.740a(j), 2.741(c), 2.744, and 2.790.

During the course of the conference, the ikxml attempted to encourage both sl&s to comprumise the civil penalty in accordance with Commission Policy.

Ilowever, neither side would Inove from their initial position.

I 392

r____

Ot@ctions to this Memorandum arxl Order nuy te filed tiy Ttilsa Garntna Ray, tre., within 5 days after.crvice. NRC Staff may file objections within 10 days after service. Uc filing of ot@ctions shall not stay the provisions of this Memorandum and Gnier.

It is so ORDERED.

IOR Ti!E A'IDMIC SAT 1TY AND LICENSING BOARD Morton B. Margu'ics, Chaltman ADMINIS'IRATIVE LAW JUDGE 11cticsda, Maryland Novemter 15,1990 e

393

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