ML20070M899
| ML20070M899 | |
| Person / Time | |
|---|---|
| Issue date: | 04/30/1994 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V39-N01, NUREG-750, NUREG-750-V39-N1, NUDOCS 9405040127 | |
| Download: ML20070M899 (52) | |
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2 U.S. NUCLEAR REGULATORY COMMISSION i
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9405040127 940430 PDR NUREO 0750 R PDR nnci 0
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Available from Superintentendent of Documents
. U.S. Govemment Printing Office Mail Stop SSOP Washington, D.C. 20402-9328 A year's subscription consists of 12 softbound issues, 4 Indexes, and 2-4 hardbound editions for this publication, r
Single copies of this publication are available from.
National Technical information Service Springfield, VA 22161 k
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- 1 Errors in this publication may be reported to the Division of Freedom of Information and Publications Services -
Office of Administratl q 4
U.S. Nuclear Regulatory Oc.t"'.;ssion
- Washington, DC 20555-0001 (301/492-8925) r.,
NUREG-0750 Vol. 39, No.1 Pages 1-45 NUCLEAR REGULATORY COMMISSION SSUANCES January 1994 This report includos the issuances recolved during the speciflod period from the Commission (CU). the Atomic Safoty and Licensing Boards (LBP), the Administrativo Law Judges (ALJ), the Directors' Decisions (DD), and the Donials of Petitions for Rulemaking (DPRM).
-1 The summarlos and headnotes preceding the opinions reported heroin are not to bo deemed a part of those opinions or have any independent legal significanco.
1 U.S.. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Froodom of information and Publications Services Office of Administration U.S. Nuclear Reguhtory Commission Washington, DC 20555-0001 (301/492-8925)
COMMISSIONERS lvan Solin, Chairman Kenneth C. Rogers Forrest J. Remick E. Gail de Planque B. Paul Cotter, Jr., Chief Administrative Judge, Atomic Safety ard Ucensirg Board Panel n
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CONTENTS Issuance of the Nuclear Regulatory Commission TRANSNUCLEAR, INC.
1 (Expon of 93.15% Enriched Uranium)
Docket i1004649 (License No. XSNM02748)
MEMORANDUM AND ORDER, CL1-94-1, January 19,1994.....
1 Issuances of the Atomic Safety and Licensing Boards GULF STATES UTILITIES COMPANY, et al.
(River Bend Station, Unit 1)
Docket No. 50458 OLA (ASLBP No. 93-680-04-OLA)
MEMORANDUM AND ORDER, LilP-94-3, January 27,1994....
31 INNOVATIVE WEAPONRY, INC.
(Albuquerque. New Mexico)
Docket 030-30266-EA (ASLDP No. 93-697-05-EA)
(Byproduct Material License No. 30-23697-ole) (EA 93-067)
MEMORANDUM AND ORDER, LDP-94-1, January 11,1994...
9 ONCOLOOY SERVICES CORPORATION Docket 030-31765 EA'(ASLBP No. 93-674-03-EA) (EA 93-006)
(Order Suspending Byproduct Material License No. 37-28540-01)
MEMORANDUM AND ORDER, LDP-94-2, January 24,1994...... I1 ill b
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CLI-94-1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Ivan Selin, Chairman Kenneth C. Rogers Forrest J. Remick E. Gall de Planque in the Matter of Docket No.11004649 (License No. XSNM02748)
TRANSNUCLEAR, INC.
(Export of 93.15% Enriched Uranium)
January 19,1994 "Ihe Commission denies a petition to intervene and request for a hearing on a license application for the export of 280 kilograms of high-enriched uranirm,in the form of mixed uranium and thorium carbide fabricated as unitradiated fuel, to COGEMA in France to be processed for recovery of the uranium and thorium.
The Commission determines that the Petitioner is not entitled to intervene as a matter of right under the Atomic Energy Act and that a hearing, as a matter of discretion, would not be in the public interest and is not needed to assist the Commission in making the determinations required by the Atomic Energy Act of 1954, as amended, for issuance of the export license.
RULES OF PRACTICE: STANDING TO INTERVENE Institutional interest in providing information to the public and the gener-alized interest of its membership in minimizing danger from proliferation are insufficient for an organization to establish standing under section 189a of the i
Atomic Energy Act of 1954, as amended.
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RULES OF PRACTICE: STANDING TO INTERVENE Section 304(b)(2) of the Nuclear Non-Proliferation Act of 1978 mandates that the Commission establish procedures for public participation in nuclear export licensing proceedings when the Commission finds that r.ach participation will be in the public interest and will assist the Commission in making the statutory determinations required by the Atomic Energy Act of 1954, as amended. The criteria set out in 10 C.F.R. i l10.84(a) for granting a hearing in export licensing cases as a matter of discretion accommodate this mandate.
ATOMIC ENERGY ACT: NONPROLIFERATION (SEC110N 134)
'Ihe focus of section 134 of the Atomic Energy Act of 1954, as amended,is on discouraging the continued use of high-enriched uranium ("HEU") as reactor fuel and not on prohibiting the exportation, per se, of lieu.
MEMORANDUM AND ORDER L INTRODUCTION The Nuclear Control Institute ("NCl") filed a Petition for Leave to Intervene and Request for IIearing on an application from Transnuclear, Inc. ("Transnu.
clear") for a license to export 280 kilograms of high-enriched uranium ("IIEU")
in the form of mixed uranium and thorium carbide, as unirradiated fuel fabri.
cated for the Rrt St. Vrain reactor, to COGEM A in France to be processed for recovery of the uranium and thorium. For the reasons stated in this Memoran-dum and Order, we deny the Petition for Leave to Intervene and Request for llearing.
II. IIACKGROUND
.1 Transnuclear filed an application, dated May 5,1993, for a license to export
~1 280 kilograms of IIEU containing 260.9 kilograms of uranium-235 (93.15%
enriched) and 2481 kilograms of thorium, in the form of mixed uranium and thorium carbide, as unirradiated fuel fabricated for the Fort St. Vrain reactor,' to 81he fahricated fuelis from the now decommissioned fort St. Vrain Power Stauon. a high-temperature gas cooled thorium fuel cycle prototype reactor located at I%tteville, Colorado, arut owned by the Pubhc Service Company of Colorak. The material b runently owned by Nuclear Nel Services (NFS) ami stored at the Ermer-Tenneasce facihty of Nr3 2
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. On June 24, 1993, NCI filed a Petition for Leave to Intervene and Request for llearing on the TYansnuclear license application. NCI asserts that it is a nonprofit, educational corporation based in the District of Columbia. and engages in disseminating information to the public concerning the risks associated with the use of nuclear materials and technology. Petition at 1-2.
NCI seeks intervention to argue that (1) the proposed export, if authorized, i
would be inimical to the common defense and security of the United States; (2) approval of the proposed export would be contrary to section 134 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 62160d (the "Schumer Amendment");2 and (3) the license application is deficient in meeting the information requirements of NRC regulations in that it does not sufficiently describe the ultimate intended end use of the material to be exported. Petition
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at 10-11.
NCI requests that the Commission (1) grant NC1's Petition for Leave to Intervene, (2) order a full and open public hearing at which interested parties may present oral and written testimony and conduct discovery and cross-examination of witnesses, and (3) act to ensure that all pertinent information regarding the issues addressed by NCI is made available for public inspection at the earliest possible date. Id. at 1-2,18.
Transnuclear filed an Opposition in Response to Petition to Intervene ("Re-sponse") on July 27,1993.13efole responding to the petition, 'lYansnuclear amended its application on July 16,1993, to require that the exported material be blended down and used as low-enriched uranium (" LEU") for research or test reactors. In its Response, 'lYansnuclear argues that the NRC is not statu-
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tority required to provide an adjudicatory hearing on export licenses and that, j
in any case, NCI is not entitled to a hearing as a matter of right because NCI lacks standing. Response at 2-4. Transnuclear further argued that a discre-tionary hearing would not be in the public interest or assist the Commission j
in making its statutory determination because Transnuclear's amended license application makes clear that the uranium recovered from the exported material 2 Notice or receipt of the application was publiiihed in de l'ederal #rrister on May 26. 1993 (58 Fed Reg.
30.187).
3 h Energy Policy Act of 1992. Pub. L No. 102-486, sigred Auto law on october 24.1992, among oder things, added new restrictions on the export of uranium, in a new section 134 of the Atomic Energy Act (de "Schumer Anenonent"). The schumer Amendnrnt pernnts the issuance of a hcense for export of uranium enriched to 20%
or more in the isotope-235 to be used as a fuel or target in a nuclear rewarch or test reactor only if, is addition to other requirements of the Atomic Energy Act, the NRC deternunes that (1) there is no ahernativo nuclear reactor fuel or target enriched in de isotope.235 to a lesact percent than the proposed expert that can be used in that reactor; (2) the proposed tecipient of that uranium has provided assurances diat whenever an alternative nuclear reactor inel or target can be used in that reactor. It will une that afternative in heu of highly enriched uranium; and (3) the United States Government is actively,devek ing an alternative nuclear reactor fuel rx target that can t
be used in that reacita. W applicabihty of the Sclumer Ameixinent to the instant appheation is discussed bifr.t 3
t will be blended down to LEU, thus removing the relevance of the contentions proffered by NCI. Id. at 8-10.
NCI filed a timely Reply to Applicant's Opposition to the Petition for Leave to Intervene and Request for Hearing (" Reply") on August 16,1993. ' In its Heply, NCI argues that a hearing of right is available in export licensing cases.
Reply at 2 A NCI concedes that Commission case law has denied standing, as a matter of right, to organizations with interests substantially similar to NCI's in proceedings substantially similar to the instant one, but argues that the Commission should expand its approach to standing in export licensing proceedings to meet congressional expectations regarding public participation in such proceedings. Id. at 5-7.
NCI further argues that, notwithstanding
'llansnuclear's stated intention to blend down the material after it is exported, NCI's contentions remain valid because granting the license will increase the amount of HEU in international transport and commerce, and the expressed intention to down blend is unacceptably vague. Id. at 7-14.
Subsequent to NCI's Reply, COGEMA submitted a letter dated September 8,1993, confirming that COGEMA will notify the NRC, in writing, within 30 days after all the exported material has been blended down to LEU. In a letter dated September 24,1993, COGEMA again confirmed the earlier notification commitment and further confirmed that commercial arrangements regarding the material require that all the exported material be blended down with no substitutions or sale of IIEU allowed, and that COGEMA will retain title to the j
material unti; it has been blended down to LEU.
l llL Tile PETITIONER'S STANDING A.
NCI Does Not IInve Standing to Intervene as a Matter of Right Section 189a of the Atomic Energy Act of 1954, as amended, provides, among other things, that the Commission grant a hearing, as a matter of right, to any pefson "whose interest may be affected by" a proceeding under the Act for the granting of any license, 42 U.S.C. 6 2239(a)(1).* To determine if l
i 4 The Commission's regulations at to CF.R. 6110.84 list the factors to be considered in taking action on a hearing request or intervention petition in a hcensing proceedmg for the export of nuclear materials. Section i10.84(b) i addresses considerations to deternune whether a pet tioner has standing to intervene as a matter or right and i
provides that:
(b) If a hearing request or intervenison petiuon asserts an interest which may be affected, the Conmussion will consider:
(t) The nature of the alleged interest, (2) How the interest relates to issuance or denial; and (3) The posuble effect of any order on that interest. including whether the rebef requested is within the Commissiot's authority, and, if so, whether granting rehef wrmld redress the aHeged injury.
i 10 CF.R. 6110.8404 4
a petitioner has sufficient interest in a proceeding to be entitled to intervene as a matter of right under section 189a, "the Commission has long applied contemporaneous judicial concepts of standing." Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21,38 NRC 87,92 (1993),
citing Sacramento hiunicipal Utility District (Rancho Seco Nuclear Generating Station), CLI-92 2,35 NRC 47,56 (1992), aff'd, Environmental & Resources Consenution Organization v. NRC, No. 92-70202 (9th Cir. June 30, 1993);
- Aferropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI 25,18 NRC 327,332 (1983). To satisfy the judicial concept of standing, a petitioner must demonstrate "a concrete and particularized injury that is fairly traceable to the challenged action." CLI-93-21,38 NRC at 92 (1993).
NCI asserts a claim of interest for standing based on its institutional interests in the dissemination of information concerning nuclear weapons and prolifera-tion in general and the use of HEU in particular. Petition at 3. The Commission has long held that institutional interest in providing information to the public and the generalized interest of their memberships in minimizing danger from proliferation are insufficient for standing under section 189a. See, e.g., Edlow International Co. (Agent for the Government of India on Application to Ex-port Special Nuclear Material), CLI-76-6,3 NRC $63,.572-78 (1976); Transnu-
)
clear, Inc. (Ten Applications for Low Enriched Uranium Exports to EURATOM Member Nations), CLI-77-24,6 NRC 525,529 32 (1977); Westinghouse Elec-tric Corp. (Export to South Korea), CL1-80-30,12 NRC 253,257-60 (1980);.
General Electric Co. (Exports to Taiwan), CL1-812,13 NRC 67,70 (1981).
See also Sacramento blunicipal Utility District (Rancho Seco Nuclear Generat-ing Station), CLI-92-2, 35 NRC 47,59-61 (1992) (rejection of " informational interests" as grounds for standing in reactor licensing case).
NCI " concede [s] that there is a line of Commission cases, starting with the pre-NNPA [ Nuclear Non-Proliferation Act] decision in Edlow International Co.,
CLI-76 6,3 NRC 563 (1976), denying standing to organizations with interests substantially similar to Petitioner in proceedings substantially similar to the present one." Reply at 5. NCI argues, however, that the Commission's approach to standing should be expanded to realize the congressional intention to increase public participation in export licensing through enactment of section 304 of the Nuclear Non-Proliferation Act of 1978,42 U.S.C. 6 2155a ("NNPA"). Reply at 5 7.
The mechanism for increased public participation that NCI urges already is provided for in the Commission's regulations. Section 304(b)(2) of the NNPA mandated that the Commission promulgate regulations establishing procedures "for public participation in nuclear export licensing proceedings when the.
Commission finds that such participation will be in the public interest and will assist the Commission in making the statutory determinations required by the 1954 Act." 42 U.S.C. % 2155a(b)(2). The Commission amended its regulations 5
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in 1978 expressly to accommodate this mandate by adding the criteria set out in 10 C F.R. Q 110.84(a) for granting a hearing as a matter of discretion.5 See Statement of Considerations, 43 Fed. Reg. 21,641, 21,642 43 (1978). ne regulation specifically sets forth the Commission policy to hold a hearing or otherwise permit public participation if the Commission finds that such a hearing or participation would be in the public interest and would assist the Commission in making the required statutory determinations.
%us, even though NCI has not established a basis on which it is entitled j
to intervene as a matter of right, the Commission could hold a hearing under 10 C.F.R. $ 110.84(a)(1) and (2) if such hearing would be in the public interest and assist the Commission. See Braunkohle Transport, USA (Import of South African Uranium Ore Concentrate), CLI-87 6,25 NRC 891,893 (1987).
1 II. A Discretionary llearing would Not Assist the Commission and lie in the Public Interest The issues raised by NCI - (1) the common defense and security of the i
United States, (2) compliance with the Schumer Amendment, and (3) assurance of the ultimate intended end use of the material - do concern matters that the Commission considers in making an export license decision. There is no indication in NCI's pleading, however, that it possesses special knowledge regarding these issues or that it will present information not already available to and considered by the Commission.
He Executive Branch and the Commission staff have addressed the issues sufficiently in their respective reviews of the application. ne transportation, international safeguards, and foreign physical security concerns associated with the issue of the common defense and security were addressed by the Executive Branch and the Commission staff in their consideration of the application.
De Commission has reviewed the Executive Branch's and Commission staff's evaluation of the ultimate end use of the material and the effect of the COGEMA September 8 and 24,1993 letters regarding that end use. NCI offers no reason for the Commission to differ with the views expressed by the Executive Branch and the Commission staff on these matters.
.]
SSecuen it0.84(a) of Title 10 of the Code of redaral Replation. provides timt-(a) in an export bcensmg procacting, or in an import hcendng pnxecdmg in which a hearing request or interwrdion petition does not assert or estahtish an interest which may tw affected. the Commission will consider.
(1) Whether a hearing would tc in tte public interest; and (2) Whether a heanng would assist the Commission in making the statutory determinations required i
try the Atomic Energy Ar~
10 C.F.R. I110.84(a).
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The only remaining issue raised by NCI is compliance with section 134 of the Atomic Energy Act of 1954, as amended /Jie Schumer Amendment).
- 42 U.S.C. 62160d. NCI contends that, notwithstanding that the HEU is to be blended down for use as LEU reactor fu '.
- Schumer Amendment issue
" remains alive" because of the terms of the Amc..ument. Reply at 13-14. A fair reading of the entire amendment, however, shows that, while Congress may have been concerned about the transportation of HEU, the focus of the statute is on discouraging the continued use of HEU as reactor fuel and not on prohibiting the exportation, per se, of HEU. Any other reading would be inconsistent with the i
plain meaning of the legislation sifue it allows for the exportation of HEU fuel for use in a reactor, provided that certain provisions are in place to ultimately convert the reactor to use LEU. See 42 U.S.C. 6 2160d(a)(2) and (3). Further, assuming arguendo that the terms of the Schumer Amendment are ambiguous,' a j
i review ofits legislative history clearly shows that the intent of the amerAment is to "put into law what was, from 1978 to 1990, the policy of both Democratic and 3
Republican administrations - prohibiting the NRC from licensing the exports
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of bomb-grade uraniumfuel... " 138 Cong. Rec. H11440 (daily ed. October 5,1992) (remarks of Represertative Schumer) (emphasis added). The NRC Staff advises that the material the Applicant seeks to export, although fabricated as HEU fuel for the now defunct Fort St. Vrai's reactor, is not in a form that can be used as HEU fuel or target material in a research or test reactor without first processing the material to recover its uranium content. Exporting the material for processing, bleading down, and subsequent fabrication into LEU fuel or target t
material for tee. and research reactors may aid in discouraging the continued use of HEU as fuel in reactors by increasing the availability of LEU fuel. He action, if nothing else, meets one of the goals of the Schumer Amendment, in that it will remove 280 kilograms of HEU from the world inventory and, thereby, help encourage " developing alternative fuels that will enable an end to the bomb. grade exports." /d.
In summary, nothing in the NCI Petition and Reply indicates that a hearing would gererate significant new insights for the Commission regarding the instant application. To the contrary, conducting a public hearing on issues concerning matters about which the Commission already has abundant information and analyses would be contrary to one of the purposes of the NNPA, namely,
'The Schunrr Anembnent states. in part
- a. The Commission nmy issue a license for the expert of lughly enriched uranium to be used a a fuel or target in a nuclear research or tent reactor only if, in aihuon to any other requirenent of this [Act],
the Commission determines that-(I) there is no alternative nuclear fuel or target ennched in the isotope-235 to a leuer percent than the i
proposed expon, that can be med in dint reactor; 42115 C. 6 2160d= The nraning of de phrase *to be used as a fuel" in the hrst acntence, in the context of the whole provialon, clearly nrans "to be used as an HEU fuel." The NCI argument dependa on reahng the word "fuet" in the first sentence as nraning either "HEU fuel" or " LEU fuel
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i "that United States government agencies act in a manner which will enhance this nation's reputation as a reliable supplies of nuclear materials to nations which adhere to our nonproliferation standards by acting upon expon license applications in a timely fashion." Wesfinghouse, CLI-80-30,12 NRC 253,261, (1980)(citation omitted). For these reasons, NCI's petition and request for a public hearing should be denied as not in the public interest and not necessary to assist the Commission in making its statutory determinations.
IV. CONCLUSION AND ORDER Ibr the reasons stated in this decision, NCI has not established a basis on which it is entitled to intervene as a matter of right under the Atomic Energy Act.
Funher, a hearing, as a matter of discretion pursuant to 10 C.F.R. i l10.84(a),
would not be in the public interest and is not needed to assist the Commission in making the determinations required for issuance of the export license to Transnuclear. The Petition for Leave to Intervene and Request for Hearing is denied.
It is so ORDERED.
For the Commission' JOHN C. HOYLE Assistant Secretary of the Commission Dated at Washington, D.C.,
this 19th day of January 1994.
T Conunissioner de Planque was not present for the affirmation of itns ortkr,if sie had been present she would have approved it.
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l Atomic Safety and Licensing Boards issuances ATOMIC SAFETY AND UCENSING BOARD PANEL B. Pauf Cotter, Jr.,* Chlof Administrative Judge
. 0 Robert M. Lazo,* Deputy Chiot Administrative Judge (Executive) y Frederick J. Shon,* Deputy Chlet Administrative Judge (Technical)
O Members O
Dr. George C. Anderson James R Gleason*
Dr Kenneth A. McCollom h
Charles Bechhoofer*
Dr. David L Hetrick Marshall E. Miller Potor B. Bloch*
Emest E. Hill Thomas S. Moore
- l G. Paul Bollwerk ill*
Ot Frank F. Hooper Dr. Peter A. Morris
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Gbnn O. Bright Elizabeth B. Johnson Thomas D. Murphy
- b Dr. A. Dixon Callihan Dt Walter H. Jordan Dt Richard R. Parizek Dr. James H. Carpenter Dt Cha a N. Kolber*
Dr. Hany Rein
{
Ot Rchard F. Cole
- Dr. Jer., R. Kline*
Lester S. Rubenstein I
Dr. Thomas E. Elleman Dt Peter S. Lam
- Ot David R. Schink
~ b Q
Dr. George A. Ferguson Dr James C. Lamb lil tvm W. Smith
- l Dr. Harry Fomman Dr. Emmeth A. Luebke Dt George F.Tidey Dr. Richard F. Foster Morton B. Margulies*
Sheldon J. Wotfe j
J J
s
- Permanent panelmembers i
I l
Cite as 39 NRC 9 (1994)
LDP-94-1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Ivan W. Smith, Chairman Dr. Charles N. Kelber Dr. Jerry R. Kline in the Matter of Docket No. 030-30266-EA (ASLBP No. 93-697-0G-EA)
(Byproduct Material License No. 30-23697-01E)
(EA 93467)
INNOVATIVE WEAPONRY,INC.
(Albuquerque, New Mexico)
January 11,1994 MEMORANDUM AND ORDER (Terminating Proceeding)
His proceeding was initiated pursuant to the request of the Licensee herein. -
Innovative Weaponry, Inc., for a hearing on the NRC order modifying its
-byproduct material license.' By a notice served on December 27,~ 1993, the Order Edifying Ucene (f.ffective immed ately),58 Fed. Reg. 34,598 Oune 28,1993).
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~ Licensee withdrew its request for a hearing. Accordingly, the Board terminates
- j this proceeding as moot.
FOR TIIE ATOMIC SAFETY
- AND LICENSING BOARD.
d Ivan W. Smith, Chairman
. ADMINISTRATIVE JUDGE J
Bethesda, Maryland January 11,1994 f
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Cite as 39 NRC 11 (1994)
LBP-94-2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
G. Paul Bollwerk,111, Chairman Dr. Charles N. Kelber Dr. Peter S. Lam in the Matter of Docket No. 030-31','65-EA (ASLBP No. 93-674-03-EA)
(EA 95-006)
(Order Suspending Byproduct Material Liceno No. 37 28540-01)
ONCOLOGY SERVICES CORPORATION January 24,1994 In this license suspension proceeding, the Licensing Board rules on predis-covery motions to dismiss or for summary disposition regarding a dozen of the litigation issues specified by licensee Oncology Services Corporation.
ENFORCEMENT ACTIONS: LEGAL BASIS As a creature of the Congress, the agency can only wield that enforcement authority it has been given by legislative enactment. See S U.S.C. 6 558(b).
ENFORCEMENT ACTIONS: LEGAL BASIS Previous judicial interpretation makes it clear that the Commission's enforce-ment authority under sections 161b,161i(3), and 186a of the Atomic Energy Act (AEA),42 U.S.C. 95 2201(b),2201(i)(3), 2236(a), is wide-ranging, perhaps uniquely so. See Siegel-w AEC,400 F.2d 778,783 (D.C. Cir.1968).
11
ENFORCEMENT ACTIONS: LEGAL llASIS
'Ihe Commission's broad authority under AEA section 182, 42 U.S.C.
42232(a), to define regulatory requirements likewise has received judicial recognition. See Union of Concerned Scientists v. NRC, 880 F.2d 552, 558 (D.C. Cir.1989) (determination of what constitutes " adequate protection" of the public health and safety for reactor facilities under section 182 is a matter congressionally committed to the Commission's sound discretion).
AGENCY ORDER: COMPARISON TO REGULATION A valid agency order mandating requirements for a particular licensee is on an equal footing with a valid regulation affecting licensees generally. See AEA i 161b,42 U.S.C. 5 2201(b). See also Wrangler loboratories, ALAB-951,33 NRC 505,518 A n.39 (1991).
AGENCY DISCRETION: RULEMAKING OR ADJUDICATION NUCLEAR REGULATORY COMMISSION (OR NRC): CilOICE OF RULEMAKING OR ADJUDICATION The choice of whether to use a general rule or an individual order to establish a standard is one within "the informed discretion" of the agency. See NIRB
- v. EcIl Aerospace Co., 416 U.S. 267,294 (1974); SEC v. Chenery Corp., 332
+
U.S.194, 203 (1947). This principle recognizes that in the face of a broad congressional mandate such as that given to the NRC, an agency simply cannot be expected to anticipate and promulgate a rule relative to each activity that a regulated entity undertakes. 'Iherefore, to permit administrative agencies to deal effectively with the varied, complex regulatory problems they face, those agencies must retain the power to address those problems on a case-by-case basis by issuing orders. See Chenery, 416 U.S. at 203. In the words of the Supreme Court, to do otherwise "is to exalt form over necessity." Id. at 202.
AGENCY DISCRETION: RULEMAKING OR ADJUDICATION NUCLEAR REGULATORY COMMISSION (OR NRC): CIIOICE OF RULEMAKING OR ADJUDICATION There may be instances when an agency's determination to proceed by order rather than rulemaking would amount to an abuse of discretion. See Bell Aerospace, 416 U.S. at 294.
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AGENCY DISCRETION: RULEMAKING OR ADJUDICATION NUCLEAR REGULATORY COMMISSION (OR NRC): CHOICE OF RULEMAKING OR ADJUDICATION A general "due process" concern about the agency's failure to give explicit prior notice of the standards set forth in an order generally is not sufficient to establish an agency abuse of discretion in making a choice to proceed by order rather than by regulation, given the Supreme Court's recognition of the discretion afforded agencies to utilize individual orders to establish binding standards. See Bea:er East, Inc. v. EPA, Region 111,963 F.2d 603,609 (3d Cir.1992).
AGENCY DISCRETION: RULEMAKING OR ADJUDICATION NUCLEAR REGULATORY COMMISSION (OR NRC): CIIOICE OF RULEMAKING OR ADJUDICATION In determining whether an agency has abused its discretion in choosing to proceed by order rather than regulation, the critical factor appears to be whether the challenged agency order " fill [s] interstices in the law" or whether it creates a new standard, either because the order overrules past precedents relied upon by the party subject to the ruling or because it is an issue of first impression. See United Food & Commercial Workers International Union, local No.150-A v.
NLRB,1 F.3d 24,34 (D.C. Cir.1993). Only in the latter instance is a concern about the retroactive application of the order warranted.
ENFORCEMENT ACTIONS: BASIS FOR IMPOSITION OF ENFORCEMENT SANCTION When it relies on the agency's general statutory mandate to " protect the public health and safety" instead of a specific, previously issued regulation, order, regulatory guide, or license condition as the basis for imposing an enforcement sanction, the Staff must be prepared to establish with specificity the health and safety consequences of the licensee action or inaction about which it complains.
Ultimately, the Staff must show how the standard to which it would hold the licensee (and presumably others similarly situated) regarding those matters is a reasonable component of agency's general statutory mandate to protect the public health and safety.
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i RULES OF PRACTICE: DISMISSAL OF ISSUES IN ENFORCEMENT PROCEEDING After all factual allegations in an issue specified in an enforcement proceeding are presumed to be true and all reasonable inferences are made in favor of the party sponsoring the issue, if there is no set of facts that would entitle that party to relief on the issues, dismissal is appropriate. See Hishon v. King & Spalding, 467 U.S. 69,73 (1984).
LICENSING IlOARDS: AUTIIORITY TO DISMISS ISSUES IN ENFORCEMENT PROCEEDING RULES OF PRACTICE: DISMISSAL OF ISSUES IN ENFORCEMENT PROCEEDING Consistent with the analogous agency rules regarding contentions filed by intervenors, see 10 C.F.R. 5 2.714(d)(2)(ii), it is within the Licensing Board's authority in an enforcement proceeding to entertain a Staff motion seeking dismissal of issues specified by the opposing party. See 10 C.F.R. 5 2.718.
ENFORCEMENT ACTIONS: SCOPE OF PROCEEDINGS LICENSING llOARDS: REVIEW OF NRC STAFF'S ACTIONS
'Ihe Commission intended to define the scope of an enforcement proceeding under 10 C.F.R. 6 2.202 to limit the Licensing Board to a determination regarding the sufficiency of the legal and factual predicates outlined in the Staff's enforcement order as of the time the order was issued. The extent to which subsequent circumstances warrant agency action to modify or withdraw a suspension order generally is a matter that is within the discretion of the Staff and is not subject to consideration in an agency adjudication. Cf. San i
Luis Obispo Mothersfor Peace v. NRC,751 F.2d 1287,1314 (D.C. Cir.1984),
wcated in part and rehearing en banc granted on other grounds, 760 F.2d 1320 (1985), ag'd en banc, 789 F.2d 26, cert. denied, 479 U.S. 923 (1986).
ENFORCEMENT ACTIONS: SCOPE OF PROCEEDINGS LICENSING llOARDS: JURISDICTION (STAFF ORDERS)
RULES OF PRACTICE: REVIEW OF NRC STAFF'S ACTIONS; SETTLEMENT OF CONTESTED PROCEEDINGS
'the question of the presiding officer's authority to consider whether the Staff should act to revise or withdraw a challenged suspension order can bc
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distinguished from instances in which the Staff actually has acted (1) to modify or withdraw a previously issued order during the pendency of an adjudicatory proceeding regarding that order, or (2) to enter into an agreement to take such actions to settle a proceeding. In both of the latter instances, agency rules provide that the Staff's action is subject to scrutiny by the presiding officer. See 10 C.F.R. $$ 2.203,2.717(b).
MEMORANDUM AND ORDER (Ruling on Parties' Prediscovery Motions to Dismiss or for Summary Disposition)
In a July 15, 1993 memorandum and order, the Board requested that the NRC Staff and licensee Oncology Services Corporation (OSC) consider whether certain of the nearly 100 issues previously identified by OSC for litigation in this license suspension proceeding are subject to motions to dismiss or for summary disposition. 'Ihe Staff now asks that we dismiss twelve OSC issues while OSC maintains that it is entitled to summary disposition on five of these issues.
Ibr the reasons set forth below, we deny JSC's summary disposition motion and grant the Staff's dismissal request as tc ten of the twelve issues.
1.
IIACKGROUND By order dated January 20,1993, the Staff suspended OSC's byproduct ma-terials license authorizing the use of sealed-source iridium-192 for high dose j
rate (IIDR) human brachytherapy treatments at six OSC facilities in Pennsyl-vaniac One of the principal bases for the Staff's suspension determination is a November 16,1992 incident at OSC's Indiana (Pennsylvania) Regional Cancer Center (IRCC). Following treatment at IRCC, an HDR brachytherapy patient was returned to her nursing home with a iridmm-192 source mistakenly lodged in the area of her abdomen. Also cited by the Staff in support oflicense sus-pension are the results of December 8,1992 inspections of OSC facilities in Lehighton and Exton, Pennsylvania, and a December 18,1992 letter in which OSC's radiation safety officer (RSO) allegedly improperly delegated corporate health and safety responsibilities to OSC satellite facilities.
l According to the Staff, the factual circumstances surrounding these matters, as described in the suspension order, " demonstrate a significant corporate management breakdown in the control of licensed activities." 56 Fed. Reg. 6825, 6826 (1993). While noting that the agency was continuing to investigate OSC's activities, the Staff nonetheless found that 15 5
e
i as a resuk of the information available to date and the incident in which an iridium-192 source was unknowingly left within a patient. [the Staff] lack [s] the requisite reasonable assurance that {0SC's] current operations can be conducted under [its license) in comphance with the Commission's requirements and that the health and safety of the public, including (OSC's]
cmployees and patients, will be protected.
Id. at 6827. Based on these findings, the Staff imposed an immediately effective suspension of OSC's license.
This proceeding was convened in response to OSC's timely request for a hearing to contest the order. In response to the first of three Staff requests for a delay of the proceeding to permit the agency to complete its investigations -
of the November 1992 incident and related matters, we issued a March 1993 memorandum and order postponing discovery by the parties. See LBP-93-6, 37 NRC 207, vacated in part as moot, CLI-93-17,38 NRC 44 (1993). At the same time, in an effort to have the parties begin defining the parameters of this proceeding, the Board directed that they file a joint prehearing report setting forth, among other things, the " central" issues for litigation. See Id. at 221,223.
OSC specified ninety-nine issues. See Joint Prehearing Report (May 5,1993) at 2-7,8-16 [ hereinafter Prehearing Report]. The Staff agreed with the wording of nineteen of these issues, See id. at 3-4, 6, 8-9, 11-12, 14-16, but objected to the remaining eighty, see NRC Staff's Objections to Issues Proposed by [OSC]
(May 11,1993).2 After reviewing these Staff objections and OSC's response thereto, we issued the previously referenced July 15 memorat ium and order. In it we directed that as to thirty-seven of the OSC issues, either the Staff or OSC should provide a filing that requested dismissal or summary disposition of particular issues or that outlined why those issues are not appropriate for further Board consideration at present. See Memorandum and Order (July 15,1993) at 10,1314 (unpublished)
[ hereinafter July 15,1993 Order]. We also indicated that either party was free to include any of the other prehearing report issues in any dispositive motion it filed. See id. at 3 n.1.
On Augiist 16,1993,'both the Staff and OSC filed such motions. The-Staff initially asked that we dismiss thirty-one of the thirty-two issues we had identified for its specific consideration, as well as an additional seven OSC issues not referenced by the Board. See NRC Staff's Motion to Dismiss Certain issues Proposed by [OSC] (Aug. 16,1993) at 9-32 [ hereinafter Staff Motion to Dismiss]. For its part, OSC moved for summary disposition regarding the ISulacquently. we granted two additional staff delay requests postponing discovery through early December 1993. See IEP-93-10,37 NRC 455, ag'd. CLI-93-47,38 NRC 44 (1993); LDP 93 2o,38 NRC 130 (1993), On Novernber 16, the Stafrinformed tN Board that it was not requesting any further delays in the proceeding as a vesult of the invesugations. See tetter from M Zobler, NRC Staff, to the ticensing Board (Nov. 16. 1993),
2The staff proposed nine issues, but osC agreed to the wording of only one. See Prehearing Report at 1-2,7 8.
None of these staff issues are the subject of OsC's pending dispositive rnation.
16
1
. five issues that we had asked it to address further. See Response of [OSC]
' to the July 15,1993 Order of the [ Licensing 130ard] (Requesting Further Party Filings on Controverted issues) and Motion of [OSC] for Summary Judgment with Respect to Certain of Those Issues (Aug. 16,1993) at 10-20 [ hereinafter OSC Summary Disposition Motion).
Iloth parties subsequently filed a response opposing the other's dispositive motion and a reply to those responses. As part of its response, the Staff requested that we dismiss the five issues designated by OSC for summary disposition.
See NRC Staff's Response to [OSC's] Motion for Summary Judgment with Respect to Certain Issues and NRC Staff Motion to Dismiss (Sept. 16,1993) at 30-33 [ hereinafter Staff Summary Disposition Response / Motion to Dismiss].
Additionally, with its reply to the Staff's response, OSC filed a motion to strike the Staff's additional dismissal request. See Reply of Licensee [OSC) to NRC Staff's Response to [OSC's] Motion for Summary Judgment with Respect to Certain Issues and Motion of [OSC] to Strike the NRC Staff's September 16,1993 Motion to Dismiss as Untimely, Unauthorized and Prejudicial (Oct.
1,1993) at 19-20 [ hereinafter OSC Reply la Staff Summary Disposition Response / Motion to Strike].
After reviewing these various pleadings, we issued a November 17, 1993 memorandum and order in which we denied OSC's motion to strike the Staff's additional dismissal request. See Memorandum and Order (Denying OSC j
Motion to Strike Additional Staff Motion to Dismiss Certain OSC Issues and Permitting Further OSC Response to Additional Motion to Dismiss: Requesting Additional Filings Regarding NRC Staff Motions to Dismiss Certain OSC lssues) at 3-4 (Nov.17,1993) (unpublished) [ hereinafter November 17, 1993 Order). We also directed that the Staff provide additional information relative
-]
to its pending dismissal motions. See id. at 4-8. This request was prompted by statements in the Staff's reply to OSC's response to the Staff's initial motion lI to dismiss indicating that for certain of the issues specified by OSC, the Staff's '
dismissal request was predicated on its belief that these issues had been raised l
prematurely. See _NRC Staff's Reply to (OSC's] Response to NRC Staff's Motion to Dismiss Certain Issues Proposed by [OSC] (Oct.1,1993) at 5-7. As presented by the Staff, " dismissing" such an issue now would not necessarily foreclose OSC from later attempting to introduce evidence regarding that issue j
as part of its challenge to the Staff's January 1993 enforcement order.
Noting that the intent of our July 15 order was to identify those issues that either party believed could be conclusively resolved at this point in the proceeding, in our November 17 memorandum and order we asked that the Staff again review the issues for which it requested dismissal and specify which, if any, were now subject to definitive resolution. See November 17,1993 Order at 6-7, in its November 29 response to this request, the Staff has indicated that twelve of OSC's issues currently are subject to " dismissal" under the terms of j
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' our November 17 issuance. See NRC Staff Response to the [ Licensing Board's]
e Order Dated November 17,1993 (Nov. 29,1993), at 5-7 [ hereinafter Staff Response to November 17, 1993 Order). Five of these are the same issues for which OSC seeks summary disposition in its favor. See id. at 6 n.2. In j
its reply to the Staff's response, OSC reiterates its position that none of these twelve issues is subject to dismissal. See Response of Licensee [OSC) to Staff Filings of November 29,1993 and September 6,1993 (Dec.13,1993) at 3-6
[ hereinafter OSC Response to November / September Staff Filings].
We consider the twelve issues specified in the Staff's November 29 response 3
as being ripe for decision at this time IL ANALYSIS 1
A.
OSC Summary Disposition Motion j
1.
The OSC issues in analyzing the parties' motions, we begin with OSC's summary disposition request because it potentially is dispositive of the Staff's request to dismiss the same five issues. In our July 15 order, we asked that, given its response to the Staff's objections to five of its issues - OSC Legal Issues n, s, t, v, and x -
OSC give further consideration to whether it should seek summary disposition regarding those issues. See July 15. 1993 Order at 10-14. Those issues were specified by OSC as follows:
OSC Legal Issue n.
Whether the RSO not visiting the Lehighton facility during a period of i
6-9 months constitutes a violation of 10 CER,6 35.21,10 C.F R. I35.20 or any applicable conditions of the license?
OSC Legal Issue s.
Whether, under any applicable regulations or licensing conditions, an appropriate corporate radiation safety communication must be issued before any media disclosure of an event?
OSC LegalIssue t.
Whether the failure to issue an appropriate corporate radiation safety communication prior to media disclosure of an event constitutes a basis to support an effective imrnediately suspension order?
OSC LegalIssue v.
Assuming that OSC voluntarily susp-:1,4 ficensed IIDR operations at Exton and Lehighton, whether there was any specific regulatory requirement that OSC inform the physicists at Exton and Exhighton of the November 19921RCC incident via " corporate radiation safety communication" designed to prever,t "the ro;urrence of an event such as the i
November 16, (19921 cvent," during the period of voluntary suspension and prior to the fine 3lf it finds it appropriate to do so, the Staff may renew its danussal request relative to any of the otter issues specified in its motions, nutiject to any tinw limitanons we place on fihng dinpmutive nmtions.
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that OSC and Dr. Cunningham, the RSO, had an understanding of what had occurred on November 16,19927 OSC LegalInne A Whether 10 CFR Pans 20,30, or 35 or any heense conditions require a licensee to establish and implement a periodse corporate audit program?
j See Prehearing Report at 4-6.
2.
The Parties' Positions i
in its summary disposition filing, OSC asserts that, for purposes of its motion, it will assume that the factual allegations made by the Staff regarding each of these issues is correct, i.e., that the RSO did not visit the Leighton facility for six to nine months; that physicists at the Leighton and Exton facilities l
learned of the November 1992 IRCC incident from the media rather than L!
a corporate radiation safety communication; and that OSC did not have a periodic corporate audit program in place. See OSC Summary Disposition Motion at 13. According to OSC, even with this assumption, thesc Visitation, Audit, and Communication grounds" (as OSC labels them) cannot constitute j
a basis for the Staff's finding in its enforcement order that there has been e "significant corporate management breakdown" warranting license suspensior..
OSC maintains that in each instance the Staff has failed to indicate that the purported improper actions violate any specific statutory provision, regulation, j
license condition, technical specification, or order so as to constitute a proper basis for an enforcement action. Indeed. OSC suggests that this question of a lack of authority has far-reaching implications for this case because, as with these
,'i issues, the agency's reliance upon " corporate mismanagement" as the general-basis for its suspension action likewise has no foundation in a specific regulatory requirement that would provide grounds for instituting an enforcement action.
See 14. at 1314.
l OSC cites three grounds in support of its position. See id. at 14-20. First, it contends that thiee provisions in the Atomic Energy Act of 1954 (AEA),
sections 161b.182a, and 186a,42 U.S.C. Il 2201(a),2232(a),2236(a), mandate that to establish a binding norm by which a licensee must abide, the agency has to promulgate an explicit regulatory requirement, i.e., a rule, order, tecimical specification, or license provision, and that such requirements can only be
)
prospective in application. OSC also declares that 10 C.F.R, Part 2 App. C, G VI.C(2)(a), cited in the Staff's objections to OSC's issues as supporting the agency's authority to suspend OSC's license, is a " policy statement" rather than a rule. 'Ihis, OSC asserts, means that it can have no binding effect.
Finally, OSC contends that any finding that the matters set forth in these issues constitute a basis for an enforcement action would violate its right to due process under the Constitution's fifth amendment, According to OSC, because 19 l
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there is no specific regulatory requirement covering the conduct involved in these issues, the Commission has violated OSC's rights by failing to provide it with _ notice of the legally binding standard to which it must conform its conduct.
By the same token, OSC asserts that even if section VI.C(2)(a) of Appendix C
- 1 is a legally binding requirement, its statement that a suspension order may be j
used "[t]o remove a threat to the public health and safety, common defense and l
security, or the environment" violates OSC's due process rights because it is too vague to provide OSC with notice of the standards to which it must conform and because it impermissibly permits arbitrary and discriminatory enforcement.
j in response, the Staff declares that the Commission is not limited to issuing enforcement orders based only upon a violation of its regulations. Instead, it asserts that AI2A section 161 places orders - such as the Staff's January 1993 i
enforcement order - that are issued to protect the public health and safety 1
on an equal footing with agency rules designed to afford the same standard of protection. Rirther, citing the Supreme Court's decision in SEC v. Chenery Corp., 33211. 194 (1947), the Staff states that in carrying out its statutorily imposed responsibility to protect the public health and safety, the agency is not limited to promulgating rules, which usually have only prospective application.
Rather, it can in appropriate circumstances take action by issuing an order that delineates a standard of conduct and applies that standard to the party that is the subject of the order. Finally, the Staff asserts that the AEA provisions referred to by OSC (which also are cited in the January 1993 order) provide the Commission with broad authority to act by issuing rules or orders, among j
other things permitting 'it to suspend a license for any conditions that would warrant refusing to grant an original license application or as otherwise may be necessary to protect public health and safety or to minimize danger to life _ or.
property. See Staff Summary Disposition Response / Motion to Dismiss at 10-13.
3.
The Board's Determination OSC undoubtedly is correct that section VI.C(2)(a) of Appendix C is not a legally binding requirement..Yet, this circumstance alone will not sustain its overall position. Section 2.202(a)(1) of 10 C.F.R. states that in issuing an enforcement order such as that at issue here, the Staff must "[a]Ilege the violations with which the licensee or other person subject to the Commission's jurisdiction is charged, or the potentially hazardous conditions or other facts
' I deemed to be sufficient ground for the action proposed." This language suggests that the Commission contemplated that orders need not be based upon a violation of a specific regulatory requirement, such as a rule, license condition, or technical specification.
Yet, it also is true that as a creature of the Congress, the_ agency can only
'I wield that enforcement authority it has been given by legislative enactment.
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See 5 U.S.C. QS$8(b) AEA section 186a, 42 U.S.C. 5 2236(a), permits j
revocation and, by necessary implication, suspension of a license for, among other things, "any failure to observe any of the terms and provisions of this Act." Moreover, there apparently are statutory " terms and provisions" that could
{
provide authorization for the Staff's allegations of wrongdoing here. Under sections 161b and 161i(3), kl. ll 2201(b),2201(i)(3), the agency is empowered to issue orders "to protect health or minimize danger to life or property."
Previous judicial interpretation makes it clear that the Commission's authority under these provisions is wide-ranging, perhaps uniquely so. See Siegel v. AEC, 400 F.2d 778,783 (D.C. Cir.1968).
Given the broad sweep of this legislative charge, we cannot say on the present record that the agency would be unable to impose specific requirements regard-ing either " corporate management" or the visitation, audit, and communications components of the Staff's overall management deficiency finding that are im-plicated in the five OSC issues.' Further, a valid agency order mandating such a
requirements for a particular licensee is on an equal footing with a valid reg-plation affecting licensees generally.5 See AEA i161b,42 U.S.C. 52201(b).
See also WranglerIoboratorieS, ALAB-951,33 NRC 505,518 & n.39 (1991).
What may be less clear, and is the crux of OSC's concern here, is the extent to which such orders can have retroactive application, i.e., whether the agency for the first time in an order can declare that certain conduct, or a failure to act, on the part of a licensee was improper so as to warrant sanctions.
The Supreme Court's pronouncements in this area, particularly its decisions in Chenery, 332 U.S. at 203, and NLRB v. Bell Aerospace Co., 416 U.S. 267, 294 (1974), establish that the choice of whether to use a general rule or an i
4 A further indication of the agency's broad authority to impose requirements is found in AEA section 182a.
42 U.S C. 52232(a). regardmg bcense applications. It states that the Commission has the authority to require an applicant to provide information that. by rule. the Commission Ends is necessary to determine that the upphcant has the technical, financial, and other quali6 cations appropriate for a license. In turn. AEA section 1864. id.
5 2236(a). permits suspension for any conditions revealed by an inspection or other neans that would warrant refusal to grant an original license application. The Commission's broad authority under section 182 to denne regulatory requirements likewise has receivedjudicial recognition. See Union of Concemed Scientistr v. NRC,880 E2d 552,558 (D.C. Cir.1989)(determination of what cons 6 tules " adequate protection" of the public health and safety for reactor facilities under section 182 is a matter congressionally commined to the Commission's sound discretion).
80sC refers to the Administradve Procedure Act (APA) provision on license revocations and suspensions 5 U.S C.1558(c), as providing a basis for its assertions regarding the need for the agency to silege a violation of a speci6e agency regulatory requirement, such as a rule. as the basis for a suspension order. See oSC Reply to Staff Sumnury Disposition Response / Motion to Strike at 11 12. We 6nd this provision inapplicable.
Section 558(c) permits an agency, in cases where the "public health, interest, or safety requires." to take action widmut obtierving the requirements for affording prior notice and a " compliance" opportumty that otherwise are mandated prior to imposing a suspension. This "immediate effectiveness" authority does not. however. address tic question of what violatwns traat be alleged to provide an appropriate basis in support of the order. Rather this depends principally upon the provisions of die agency's organic statute, such as the AEA. See 5 U.S.C. 5 558(b).
See also U.S. Dep't ofinstice. Anorney General's blanual on the Administrative Procedure Act 88-89. 91 (1947),
reprinted in Administrative Conference orthrU S., Federal Adminirtrative Procedure Sourcebook 154-55, 157 (2d ed.1992).
21 or a
individual order to establish a standard is one within "the informed discretion" of the agency.'This principle recognizes that in the face of a broad congressional mandate such as that given to the NRC, an agency simply cannot be expected to anticipate and promulgate a rule relative to each activity that a regulated entity undertakes. Therefore, to permit administrative agencies to deal effectively with the varied, complex regulatory problems they face, those agencies must retain the power to address those problems on a case-by-case basis by issuing orders.
See Chencry, 416 U.S. at 203. In the words of the Court, to do otherwise "is to exalt form over necessity." /d. at 202.
There may be instances, however, when an agency's determination to proceed by order rather than rulemaking would amount to an abuse of discretion. See Bell Aerospace, 416 U.S. at 294. OSC's general "due process" concern about the agency's failure to give it explicit prior notice of the standards set forth in an order generally is not sufncient to establish such an abuse, given the Supreme Court's recognition of the discretion afforded agencies to utilize individual orders to establish binding standards. See Bea:er East, Inc. v. EPA, Region 111,963 F.2d 603,609 (3d Cir.1992). Instead, the critical factor appears to be whether the challenged agency order " fill [s] interstices in the law" or whether it creates a new standard, either because the order overrules past precedents relied upon by the party subject to the ruling or because it is an issue of first impression.
See Unifed Food & Commercial Workers International Union, LocalNo,150-A
- v. NilfB,1 F.3d 24,34 (D.C. Cir.1993). Only in the latter instance is a concern about retroactive application warranted?
OSC has made no showing that the Staff's expressed concern about a
" corporate management breakdown" or the propriety of OSC's actions relative to the specific audit, communication, and visitation matters referenced in the five OSC issues are inconsistent with some prior administrative precedent. Nor can we say that this is an instance involving a question of first impression
'oSC maintains that the Chenery decision is inapposite here because (1) that case was decided prior to the effective date of the APA's suspension provision. 5 U.S C.1558(c), which OSC asserts directly addresses tic instant situation. and (2) the Court's ruling did not a&hess a situation such as this one in which an agency took summary enforcenrnt action tesed upon conduct that was not previously WntiRed as subject to any regulatory requirement or guidehne. See OSC Reply to Staff Summary Dispoutie-.esponse.Wien to $trike at 10 n.4.
Even puttmg aside our doubts about the applicability of section 555(c) to the instant case. see.rupra note 5. we are not aware of any authority suggesung that the vitality of the Chent:ry decision is impacted by the fact that it was decided before the APA becane effective. See Bett Acrospace. 416 U.S. at 292 n.23 (ahhough CArnery did not involve ApA rulemaking, it is analogous). Ibrther, de tenants of diat decision have been viewed as applicable in enforcement cases such as this proceeding. Ser Nuriomd Durillers & Cham. Corp. v. Dep't of f>crgy. 498 F.
i Supp. 707. 720 (D. Del.1980). d'd. 662 F.2d 754 (remp. r.mer. Ct. App.1981)..
)
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la lintred romt & Commerrnt %rArrr,1 F.3d at 35. tie United States Court of Appeals for the District of Cuiunibia Circuit tuned that any esceptions to de rule regarding the genceal validdy of the retmactive application
'l of individual agency orders may not withstand scrutiny under de Suprene Court's recent holdmg in flarper v.
%rginia Dep't of rusation.125 L. Ed. 2d 74 (1993), abobshing eteephons to the renoactive application of judicial ruhngs in civil cases. Lake de District of Columbia Circuit, we need not reach that question here given our findmg i
below that dw Staff's order &ws not run afoul of essaung esception starulards.
j 22 l
s relative to the agency's regulatory program. Previously, the Staff's combination of individual instances of licensee conduct have been found to support an overall finding of " corporate management breakdown" sufficient to warrant an enforcement action. See Tulsa Gamma Ray, Inc., LilP-91-40, 34 NRC 297, 317-18 (1991). See also 10 C.F.R. Part 2, App. C, 9 Vll.A (particularly serious violations, such as " serious breakdowns in management controls" may warrant escalation of enforcement sanctions). In fact, whether the Staff's management deficiency allegation will stand depends on its ability to fill a number of " interstices," among which are questions about the extent of an RSO's responsibility to stay abreast of matters at a corporate licensee's various facilities; the need for and timing of information bulletins by a corporate licensee to alert other potential material users under its license about possibly hazardous conditions; and the need for a periodic audit program by a corporate licensee when it has authorized material users at a number of facilities.
Accordingly, we must deny OSC's request for summary disposition on its Legal Issues n, s, t, v, and x. This is not to say, however, that the validity of the Staff's general charge of a " corporate management breakdown" or its specific concerns regarding the audit, communications, and visitations matters referred to in these OSC issues are now established. Because of its apparent reliance on the agency's general statutory mandate to " protect the public health and safety" instead of a specific, previously issued regulation, order, regulatory guide, or license condition as the basis for these matters, the Staff must be prepared to establish with specificity the health and safety consequences of the licensee action or inaction about which it complains. Ultimr.tcly, the Staff must show how the standard to which it would hold the Licensee (and presumably f-the agency's general statutory mandate to protect the public health and safety.
others similarly situated) regarding those matters is a reasonable component of 11.
Staff Motion to Dismiss OSC Summary Disposition Issues llaving thus rejected OSC's summary disposition motion regarding its Legal Issues n, s, t, v, and x, we next consider whether to grant the Staff's motion to dismiss these same issues. As the Staff correctly observes, if after all factual allegations in these issues are presumed to be true and all reasonable inferences are made in fnvor of OSC, there is no set of facts that would entitle OSC to relief on these issues, dismissal is appropriate
- See Staff Summary Disposition Response / Motion to Dismiss at 26 (citing Hishon v. King & Spalding,467 U.S.
69, 73 (1984)). See also Staff Motion to Dismiss at 8.
8Notwithstanding any oSC suggestion to the conuary see Response or LJcensee [osC) to NRC Staffs Motion to Distniss Certain issues Proposed by loSCl (sept. 16.1993) at 2 4, and consistent with the ant.logous agency rules regarding contentions filed by intervenors. see 10 C.F.R.12.714(dX7Xii). we find it within our audmnty to entertain the staffs nwtions seeking durnhaal of son = OSC issues. See 10 C.F.R. 6 2.718.
23 m
Applying this standard here, we note that OSC Legal Issues n, s, and 2 only ask whether there are any rules or license conditions that govern certain OSC
't activities. Because we have concluded that a negative Staff response to these questions would not adversely impact the Staff's prosecution of this action, these issues can be dismissed.
Legal Issues t and v present a somewhat different question, however. Both l
are worded more broadly. Legal Issue inquires whether the Staff's purported I
concern about the timing of a corporate safety communication regarding the ll November 1992 IRCC incident constitutes an appropriate " basis" for the order.
l.
As we outlined above, this is still an open question. So too, legal Issue y asks whether any " regulatory requirement" mandated a corporate safety -
communication when licensed activities at other facilities were voluntarily L
suspended, a specification that can still be explored in the context of the statutory l
provisions discussed above. 'Iherefore, given their wording, we will permit these issues to stand?
I C.
Staff Motion to Dismiss Other OSC issues As noted previously, the Staff also seeks dismissal of seven other OSC issues.
Within the framework we used for differentiating among issues in our July 15 order, we consider these matters.
1.
Unreferenced Factaa! Occurrences The first category of OSC issues identified in our July 15 order are those relating to factual circumstances that are not referenced in the Staff's January 20 i
suspension order, See July 15,1993 Order at 5-6. Although the Staff designated a number of these in its initial motion to dismiss, in response to our November 17 memorandum and order it has indicated that only two - Factual Issues bk and bl-are now subject to dismissal. See Staff Response to November 17,
.j 1993 Order at 7. These issues were set forth by OSC as follows:
j OSC FactualIssue bk. Whether on April 2,1993, the NRC approved an amendment sought by OSC changing its Radiation Safety Officer from David E. Cunningham Ph.D., to llernard Rogers, M D.?
OSC TactualIssue bl Whether substantial patient need exists for llDR treaunent at the facilities of OSC7 Prehearing Report at 28.
' 'We note, however, that the reference in legal Issue # to the imrnediate effectivenens of the January 1993 order is superfluous. given oSC's GIuie to challenge that condition at the appropriate tinr. See LDP 93 6. 37 NRC at 211 n.9 24 l
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%e Staff asserts that both these issues are irrelevant because they fail to
.. disprove or challenge any of the bases for the January 1993 enforcement order.
See Staff Motion to Dismiss at 20,32. OSC responds that both these issues are relevant to the overarching question of whether there was a significant corporate
- management breakdown threatening the public health and safety so as to " justify -
a continuing license suspension." OSC Response to November / September Staff Filings at 6.
Both of these issues involve matters that are irrelevant to this proceeding.
With its Factual Issue bk, OSC raises the question of whether a licensee's post-
- suspension efforts (and the Staff's response to those efforts) can be considered as factors that can mitigate or nullify the bases for a suspension order. In the
]
context of this proceeding, OSC apparently wants to present evidence showing that, regardless of the situadon sf the time the suspension order was imposed, subsequent events demonstrate that it now is exercising effective corporate man-agement control so that the suspension onder should not be upheld, See Response i
of Licensee [OSC] to NRC Staff's Motion to Dismiss Certain Issues Proposed j
by [OSC] (Sept. 16,1993) at 13 [ hereinafter OSC Response to Staff Motion to Dismiss].
Under the January 1993 suspension order, the issue to be considered is whether the order "should be sustained." 58 Fed. Reg. at 6827. If we were writing on a clean slate, we might well fmd that our inquiry into whether the order is to be " sustained" should encompass pestsuspension activities proffered.
as corrective actions that support modifying or remitting the suspension. We do not do so, however. As defmed by the Commission, our authority pursuant to this directive is to consider "whether the facts in the order are true and whether the remedy selected is supported by those facts." Boston Edison Co. (Pilgrim i
Nuclear Power Station), CLI-82-16,16 NRC 44,45 (1982), aff'd, Bellotti v.
i NRC, 725 F.2d 1380 (D.C. Cir.1983). Likewise, in 10 C.F.R. 6 2.202(b), the
' Commission has directed that an answer to an enforcement order is to specify "the reasons why the order should not have been issued." ' Moreover, while the Commission's enforcement policy explicitly notes that licensee " corrective actions" are a factor to be considered in imposing the other two types of enforcement actions, a notice of violation or a civil penalty, see 10 C.F.R. Part 2, sj App. C. Qi VI.A, VLB.2(b), it makes no such representation concerning orders,
)
including a suspension order such as that involved here.*
. 1 W $ection VIC.2 of Appen,hn C does state Otat "lolrdinarily, a hcensed acuvity is not suspended (nor is a suspennian prolonged) for failure to comply with requirements where such railure is not willful and adequate correcthe action has been taken." So too. tte January 190 auspeminn order states that it is being entered
pending.
the institution of appropriate ctutective actions on de part of tie beensee" 58 led. Reg. at 682L These statetenta. along with tlm provision of the order providing for tte Staff to relan or rescind any of Hs provisions upon a good caue showing by oSC. see 41. are an exphcit recognition of de staft's autinwity to conhier and act upon corrective actions put forth by oSC. Nonethrless, given the Corninission's exphcit
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Cnis tells us is that the Commission intended to define the scope of the prw any to lirnit tb-hud to a determination of the sufficiency of the legal and ssctual predicates outlined in the order as of the time the order was issued."
The extent to which subsequent circumstances warrant agency action to modify or withdraw a suspension order generally is a matter that is within the discretion of the Staff and is not subject to consideration in an agency adjudication."
Cf. San Luis Obispo Mothers for Peace v. NRC,151 F.2d 1287,1314 (D.C.
Cir.1984), vacated in part and rehearing en banc granted on other grounds, 760 F.2d 1320 (1985), aff'd en banc, 789 F.2d 26, cert. denied. 479 U.S. 923 (1986) Accordingly, because it seeks to present a postsuspension event that is not relevant to establishing whether the Staff suspension order should be sustained, OSC Factual Issue bk must be dismissed.
Factual issue bl must suffer the same fate, albeit for a different reason. The Staff's order is based upon a judgment about whether the license suspension is necessary to protect the public health and safety in conformity with the agency's regulatory responsibilities under the AEA. See supra pp. 20-21. Whatever the patient "need" for the treatment with licensed materials, the agency cannot authorize their use until it is satisfied that the licensee will act consistent with this statutory mandate. Accordingly, OSC Factual Issue bl is irrelevant to our consideration of whether the Staff's January 1993 order should be sustained and is, therefore, dismissed.o 2.
Applicability of 10 C.F.R. Part 35, Subpart G In our July 15 order, we also referenced a category of OSC issues regarding the applicability of the requirements of 10 C.F.R. Part 35, Subpart G, which statenents about the scope of the proceeding detailed above, in de absence of a statenent in the order providing none detail about what are the " appropriate corrective acuens." we do not consider thrse declarations sunkient to authortre us to delve into whether the Staff has abused its discretion in failing to rnodify or rescind the January 19C order in hght of osC's postsuspension corrective actions.
U 1he fact that the suspension order here was rnade immediately effective and continues to be effective does not affect this authority. The imnedsate effectiveness provision in the Commission's regulations states that the only gmunds for cornestmg effectiveness are that "the order is not based on adequate evidence but on incte susptcion, unfounded allegations. or error" 10 C.F.R. I 2.202(c)(1)(2)(!). Under diis provision the focus remains on the stated bases for the order, not subsequent licenwe actions in response to the suspension.
u This question of the presiding otheer's authority to consider whether the Staff should act to revise or withdraw a challenged suspension order can be distmguished from instances in which the Staff actually has arfed (1) to mosfy or suspend a previoudy issued order during the pendency of an adjudicatnry proceed ng regarding that order or (2) to enter into an agreement to take such accons to settle a proceedmg. In both instances, agency rules provide that the Stafr's action is subject to scruhny by the presiding ofricer. See 10 C.F.R. 68 2.203. 2.717(b). It aho is not apparent whether, at none point. Staff inaction on modifying or hfung a suspension order in tie face of heensee correcove actions effect vely nmy become a type of action that would give the lloard authonty under section 1717(b) to consider the sufficiency of those correcove actions.
U The issue of pahent "need" may well be relevant to the question of whether to grant a request to delay a proceedmg. See t.nP-916. 37 NRC at 216 20, At prewnt. however, that is not a nustter in controversy in this case See npra nme 1.
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l concerns the use of sources for bra:hytherapy. See July 15, 1993 Order at 6-7..In response to our November 17 memorandum and order, the Staff now seeks dismissal of two of these matters - OSC Legal Issues c and d. See Staff Response to November 17,1993 Order at 6. 'Ihese issues were detailed by OSC as follows:
OSC legallssue c.
Whether the regulations in 10 C.F.R. Part 35 Subpan G " Sources for Brachytherapy" apply to the use of Iridium-192 as a scaled source in a brachytherapy remote afterloader for the Ifigh Dose Radiation treatment of humans ("IIDR")?
OSC Legal Issue d.
If the regulations in 10 C.P.R. Part 35 Subpart G " Sources for Brachytherapy" apply to the use of Iridium-192 as a scaled source in a brachytherapy remote aftertonder for the treatment of humans GIDR) then whether the specific survey requirement of 10 C.F.R. $ 35.404(a) applies to Iridium 192 liDR7 Prehearing Report at 2.
The Staff argues that these issues should be dismissed as irrelevant because the January 1993 suspension order was not based upon any violation of 10 C.F.R. Part 35. See Staff Motion to Dismiss at 20-21. OSC contends that these issues are relevant because its compliance with Part 35 would satisfy any survey requirement under 10 C.F.R. Part 20, including section 20.201 that is cited in the order. It also maintains that, even if Part 35 is not applicable, the Staff's own uncertainty about whether the requirements of Part 35 are germane to HDR use is evidence that NRC never communicated with licensees properly about the applicable requirements ani devant to demonstrating that the November 1992 IRCC incident was root. ; a > " regulatory failure" rather than an OSC management breakdown. See OS' ; sponse to Staff Motion to Dismiss at 15-16.
As worded, these issues are a poor delineation of the matters _OSC evidentially wants to contest, at least as outlined in its response. The question of alternative -
compliance is aircady raised much more clearly in OSC Legal Issues e and f; which the Staff does not contend are subject to definitive resolution at this time.
See Staff Response to November 17,1993 Order at 8. By the same token, OSC Legal issues a, ac, and ad, which are not among the twelve issues specified by the Staff, are much more to the point regarding any " regulatory failure" concern that OSC may wish to pursue.
OSC is responsible for spelling out the matters it wishes to litigate with sufficient specificity. Given the Staff's acknowledgment that 10 C.F.R. Part 35 was not a basis for the January 1992 order, these two issues require too much
" reading between the lines" to link them to the particular concerns OSC now contends it wants to present. We thus dismiss these two issues.
27
3.
Omnitron 2000 IIDR Remote Afterloader Issues ne third category of issues we identified were those relating to the Omnitron 2000 IIDR remote afterloader that was in use at OSC's IRCC facility during the November 1992 incident. See July 15, 1993 Order at 7. Among these are issues regarding defects or deficiencies in that device, or in the training, instructions, and emergency procedures provided by the manufacturer regarding that device, and questions about OSC employee compliance with and reliance upon Omnitron training and procedures.
The Staff indicated in its November 17 filing that three of these issues now are subject to dismissal. See Staff Response to November 17,1993 Order at 7.
- They provide as follows:
OSC FactualIssue z.. Whether the Omnitron 2000 HDR unit was defective?
e OSC Factual Issue ab. Whether despite Omnitron's knowledge of deterioration of the source wire due to a chemical reaction resulting from its packaging. Omnitron failed to notify OSC of the defect and OSC was not otherwise informed of the possibility of deterioration?
OSC FactualIssue ad. Whether any of the Omnitron 2000 design manufacturing and/or warning defects was a cause of the November 16,1992 incident?
See Prehearing Report at Il-12.
The Staff's position regarding all three of these issues is the same: Under the factual circumstances described in the suspension order relative to the November 19921RCC incident, OSC had a regulatory obligation pursuant to Condition 17 of its license and 10 C.F.R. 6 20.201(b) to perform a survey of the patient that would not be excused by any alleged defects in the Omnitron 2000. See Staff Motion to Dismiss at 22. OSC asserts that under the terms of the January 1993 order, a central question is whether its actions relating to taking a survey were, in the words of the January 1993 order, " reasonable under the circumstances to evaluate the extent of radiation hazards that may be present." 58 Fed. Reg. at 6825. Further, according to OSC, any assetsment of the reasonableness of its action can only be made after determining wheder the Omnitron 2000 was defective, whether that defect was the cause of the November 1992 IRCC incident, and whether the machine's manufacturer knew of and failed to inform OSC about that defect.. See OSC Response to Staff Motion to Dismiss at 14-15.
We agree with OSC that as to the issue of its personnel's compliance with section 20.201(b), a central question is whether its actions relating to a survey were " reasonable under the circumstances." We disagree, however, that its proposed concerns regarding defects in the Omnitron 2000 as embodied in Factual Issues z, ab, and ad have any relevance in answering that question.
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In this context, the relevant " circumstances" are those that existed at the time of the incident. Undoubtedly, an important aspect of those circumstances is what pertinent OSC management and operating personnel knew about the Omnitron afterloader and any possible defects or problems, as garnered from such things as their operational experience or any information they were privy to as a result of training or instruction manuals. Consequently, a relevant area for litigation is the state of knowledge of OSC personnel about Omnitron afterloader defects and problems at the time of the incident."
This is not, however, what these three " defect" issues seek to explore. As we understand it, OSC contends that at the time of the incident it did not know of any defect in the operation of the afterloader or its safety systems that could cause the metal drive wire to break and leave the iridium-192 source lodged in a patient without alerting the operator. See OSC Summary Disposition Motion at 3-4. If this indeed was the state of knowledge of OSC personnel at that time, then inquiry into whether the Omnitron machine actually was defective so as to be a cause of the November 19921RCC incident or whether the manufacturer should have told OSC about problems with the machine based upon some alleged duty to discover and disclose defects will not shed any light on the central question of what OSC personnel knew at the time of the incident. Indeed, for purposes of this action, even if it is assumed that the answers to each of mew threc '.' defect" issues is "yes," we would be no closer to resolving the focal issue of whether the actions of OSC personnel regarding a survey were " reasonable under the circumstances."
Accordingly, we dismiss OSC Legal Issues z., ab, and ad as not relevant to this proceeding.
Ill. CONCLUSION Based upon our review of the parties' filings, we conclude that in this instance the Staff's reliance on matters that apparently do not constitute a violation of any specific pre-existing rule, order, license condition, or technical specification as a basis for its January 1993 suspension order did not constitute an abuse of discretion so as to warrant summary disposition in favor of licensee OSC relative to those matters. We will, however, grant the Staff's request that OSC Legal issues n. s, and x asserting such Staff reliance was improper be dismissed from this proceeding.
H other oSC inues raise queshons about such mavers. Sec. e s, Prehear.ng Repat at 10 (osC Factual inue n (Omnitron training regard ng source wire breakage)), M at iI (osC Ntual issue n (use et energency pnwedures in the omniaun manual)). M at 12 (osC Factual luue og (uwt rebance on omnitron procedures)).
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In addition, we conclude that OSC Factual Issues bk and bl should be dismissed, the former for seeking consideration of irrelevant postsuspension activities and the latter for attempting to introduce the extraneous factor of
" patient need." We also dismiss OSC Legal Issues e and d for failing to delineate ~
the matters OSC apparently wishes to litigate under those issues.
. Finally,'we find that. the allegations about whether the Omnitron 2000 afterloader involved in the November 19921RCC incident was defective and a cause of the incident are irrelevant to the matters at issue here -in particular, the focal question of whether the actions of OSC personnel regarding taking a survey during the November 1992 IRCC incident were " reasonable under the circumstances." We thus dismiss OSC lhetual Issues z, ab, and ad as well.
For the foregoing reasons, it is this 19th day of January 1994, ORDERED, that 1.
OSC's August 16,1993 motion for summary disposition is denied.
2.
He Staff's August 16,1993 motion to dismiss is granted as to OSC Legal Issues e and d and OSC Factual Issues z, ab, ad, bk, and bl.
3.
De Staff's September 16,1993 motion to dismiss is granted as to OSC Legal issues n, s, and x and is denied as to OSC Legal Issues t and v."
THE ATOMIC SAFETY AND LICENSING BOARD 1
G. Paul Bollwerk, III, Chairman ADMINISTRATIVE JUDGE 1
i Charles N. Kelber ADMINISTRATIVE JUDGE
- 1 Peter S. Lam ADMINISTRATIVE JUDGE Bethesda, Maryland January 24,1994 U Copies of the menrrandum and or&r re being sent this date to OSC counsel by facsimile transmion and to Staff counnel by fLMail transmission through the agency's wide area network system.
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Cito as 39 NHC 31 (1994)
LDP-04 3 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSINO DOARD i.
Defore Administrative Judges:
D. Paul Cotter, Jr., Chairman Dr. Richard F. Cole Dr. Peter S. Lam in the Matter of Docket No. 50-458-OLA (ASLDP No. 93-600-04-OLA)
GULF STATES UTILITIES COMPANY, of al.
(River Dend Station, Unit 1)
January 27,1994 In this Decision, the Licensing lloard grants a petition to intervene and request -
for a hearing. Standing was granted on the basis that the property interest of a petitioner in a nuclear facility, who was a co-owner of the facility, might be jeopardized by potential unsafe operation of the facility caused by underfunding.
^
The lloard accepted one of seven contentions. The accepted contention was based on potential unsafe operation of the facility caused by a lack of funding.
IMMEDIATE EFFECTIVE ORDERS License amendments can be made immediately effective solely at the discre-tion of NRC Staff, following a determination by Staff that there are no signifi-cant hazards considerations involved. Immediate effectiveness findings are not subject to review by licensing boards.
STANDING: STANDING llASED ON PROPERTY INTERESTS In past NRC cases, standing based on injury to property has been denied because the property interests in question were too far removed fmm the purpose of the underlying statutes governing those proceedings. Those cases 31
primarily involved economic interests of ratepayers and taxpayers or general concerns about a facility's impact on local utility rates and the local economy.
Notwithstanding the ratepayer / taxpayer line of cases, property interests can confer standing since the Atomic Energy Act afferds radiological protection for both human life and property. 'lhere is standing in this proceeding since the Petitioner's stated interest is to protect its property, the nuclear facility, from radiological hazards arising from the facility's unsafe operation.
STANDING: INJURY IN FACT Injury-in. fact in this proceeding was based upon potential damage to a co-owner's property interest in a nuclear facility. Potential property damage included loss of the co-owner's share of the facility, loss of plant power and revenue, and potential liability to thir(. carties from radiological accidents.
STANDING: SPECULATIVE INJURY A petitioner need not establirh that injury will inevitably result from the proposed action to show an injury in fact, but only that it may be injured in fact by the proposed action.
STANDING: FINANCIAL QUALEMATIONS Licensee's argument that a lack of funding could not adversely affect plant safety because the plant would be safely shut down is rejected by the board.
This argument contradicts the rationale of 10 C.F.R. 650.33(f) (1993) requiring i
applicants for operating licenses to demonstrate that they possess reasonable assurance of obtaining funds necessary to cover estimated operation costs for the period of the licenses.
s FINANCIAL QUALIFICATIONS Although an electric utility's financial qualification usually cannot be the subject of litigation in NRC operating license proceedings, this exemption does not apply to operators of a nuclear facility that are not electric utilities.
a 1
CONTRACTUAL DISPUTES IlETWEEN CO-OWNERS OF NUCLEAR FACILITIES Absent radiological health and safety concerns, environmental concerns, or antitrust matters subject to NRC license conditions, contractual disputes between 32
co-owners in nuclear facilities ordinarily should be resolved by the appropriate state, local, or federal court.
j JURISDICTION OF LICENSING IlOARDS: MATTERS WITIIIN TIIE JURISDICTION OF TIIE FEDERAL ENERGY REGULATORY COMMISSION Contractual = disputes among electric utilities regarding interconnection and I
transmission provisions, rates for electric power and services, cost-sharing agreements, long-term and short-term planning functions, and similar, utility-related operational agreements are matters that fall within the jurisdiction of FERC or app opriate state agencies that regulate electric utilities.
ENFORCEMENT ACTIONS: ENFORCEMENT OF NRC LICENSE CONDITIONS Licensing boards have no jurisdiction to enforce.icense conditions unless they are the subject of an enforcement action iniwted pursuant to 10 C.F.R. 5 2.202a (1993). The petitioner's only recourst in this instance is to request enforcement action by the Staff pursnnt to 10 2.F.R. 6 2.206 (1993).
MEMORANDUM AND ORDER (Oa Petition to Intervene)
I.
INTRODUCTION Petitioner Cajun Electric Power Cooperative, Inc. (Cajun), seeks to intervene in Gulf States Utilities Company's (Gulf States) applications to amend the River Bend Station facility operating license. The amendments (1) authorize Gulf States to become a wholly owned subsidiary of Entergy Corporation (Entergy);
and (2) include Entergy Operations Inc. (EOI) on the license as a new licensee to operate, manage, and maintain River Bend. 'Ihe petition was filed in response 1
to a July 7,1993 " Notice of Consideration of Issuance of Amendments to Facility Operating License, Proposed No Significant Hazards Consideration Determination and Opportunity for Hearing." 58 Fed. Reg. 36,423, 36,435-36 (1993).
The River Bend Station, a 940-MWe, single-unit, boiling water reactor, is located in Feliciana Parish, Louisiana. The facility is owned jointly by Gulf States and Cajun.
Cajun seeks two forms of relief in this proceeding. First, Cajun seeks to
'i have additional conditions imposed on the license amendments to protect the 1
33 1
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financial underpinning for River llend operations and to preserve Cajun's rights and interests in River Bend. Second, Cajun requests the enforcement of two existing license conditions.'
IL Tile PARTIES Cajun is an elect 2icity generation and transmission comp.my supplying twelve rural Louisiana electric cooperatives serving approximately one million people.
Cajun and its twelve members are nonprofit cooperatives under the Rural Electrification Act of 1936, 7 U.S.C.A. $9 901, et seg. (1980). In t.ddition to other generating facilities, Cajun owns 30% of the River Bend station, an interest Cajun values at approximately $16 billion.
Gulf States, a Texas corporation headquartered in Be.wmont, owns the remaining 70% of River Bend which Gulf States operate; for itself and Cajun under a joint agreement the two entered into in 1979. Under that joint agreement, both companies share proportionately the costs, benefits, and expenses of the facility. At the time the petition at issue here was filed, Gulf States was the operator for River llend.
Entergy Operations Inc. (EOI) is a wholly owned subsidiary of Entergy Corporation. EOl operates nuclear units for four subsidiary companies owned by Entergy, its parent. EOI will operate River Bend in place of Gulf States under the terms of the proposed new Gulf States /EOI River Bend Station Operating Agreement.
Entergy Corporation will be the parent corporation of Gulf States if the merger is approved. Entergy is the parent corporation of EOI and several mid-south regional electric utilities including Arkansas Power & Light Co., Louisiana Power & Light Co., Mississippi Power & Light Co., and New Orleans Public Service, Inc.
IIL REQUIREMENTS FOR INTERVENTION As a threshold matter, Cajun must satisfy the NRC's requirements for intervention. Those requirements are set forth at 10 C.F.R. $ 2.714(a)(2) (1993) which requires the statement of a cognizable interest in the proceeding, how that I At the outset of this pmceeding. Cajun aho had clained that a hearing should be held to decide wheder d.ese hcense arnendnrnis shoukt have teen nale imnediately effective. However.10 C.F.R 8 50.91 (1993) of the Commisuon's rules makes clear that beenne anrodnrnts can be made immediately erfective sc4cty at tiz dncretion of NRC $tafr. fouowing a determination by Stafr that dere are no signiticant harards considerations invoMd' At tir prehearing conference. coimsel for Cajuo conceded that imnediate effectiveness findings are not s
suNect to review by licensing boards, and he widukew this issue imm the pmceedmg Tr 8-9.
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interest would be affected, the reasons why intervention should be allowed, and the specific subject matter as to which intervention is sought.
A.
The Legal Standard for Standing Judicial tests of standing are applied in NRC proceedings to determine whether a petitioner has sufficient interests to be entitled to intervene. These judicial tests require a petitioner to show that: (1) the proposal will cause
" injury in fact" to the petitioner and (2) the injury is arguably within the zone of interests to be protected by the statutes governing the proceeding. See Georgia Power Co. (Vogtle Electric Generating Plant, Unitr I and 2), CLI-93-16,38 NRC 25 (1993); Public Service Co. ofIndiana (Marble Hill Generating Station, Units 1 and 2), CLI-80-10,11 NRC 438,439 (1980); Portland General Electric Co.
(Pebble Springs Nuclear Plant, Units I and 2), CLI-76-27,4 NRC 610,613-14 (1976). In addition to these two elements of standing, the asserted injury must be redressable in the instant proceeding. Public Service Co. of New Hampshire (Seabrook Station, Unit 1), CLI-91-14,34 NRC 261,267 (1991).
II. The Positions of the Parties Regarding Standing 1.
Cajun Cajun contends that its ownership interest in the River Bend facility in and of itself confers standing in this proceeding. Among other things, it claims that the license amendments may cause unsafe operation of the plant because EOI(the new operating company resulting from the merger) will be thinly capitalized and may have insufficient operating funds due to pending legal actions against Gulf States. It also claims that safety will be jeopardized because the new arrangement (using EOI as operator rather than Gulf States) will foreclose Cajun from dealing directly with the plant's operater, thus preventing Cajun from confirming that the plant is being operated safely and from being able to influence its safe operation. Cajun contends that unsafe operations can jeopardize Cajun's ownership property interest in the plant and increase the potential for third-party liability resulting from accidents.
Cajun also makes the procedural argument that Gulf States does not have the right under state law to make changes that directly threaten Cajun's ownership in the plant and that Cajun should be tilowed standing in this proceeding, as a co-owner, to contest whether Gulf States has the right to jeopardize this interest.
2.
Gulf States
_3 Gulf States opposes Cajun's standing primarily on the basis that Cajun's alleged injury is purely economic and therefore not within the zone of interests 35 l
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protected by the Atomic Energy Act which is confined to radiological health and safety matters. Gulf States also argues that the scenario relied upon by Cajun to establish standing (i.e., safety concerns at the plant caused by a lack of funding) is illusory since the plant can be safely shutdown even if these concerns occur. Moreover, it claims that the same lack of funding alleged by Cajun would result without the license a.nendments because the responsibility for the cost of operating the plant will remain with Gulf States and Cajun even if the amendments are not granted. Gulf States additionally states that Cajun's argument concerning insufficient resources for safe operation is too speculative to be the basis for intervention. Finally, Gulf States contends that, to the extent that Cajun has attempted to gain standing by identifying injury to its member 3
rural electric utility cooperatives, it has failed to do so in three respects. First, Cajun has failed to demonstrate that it has the authority to represent those persons who are members of those cooperatives. Second, Cajun has failed to show specific injury to them. Third, in any event, those persons are not members of Cajun but members of Cajun's members.
Gulf States additionally makes the procedural argument that there are two
- j separate license amendments involved in this case and therefore two proceedings
- one involving Gulf States' merger application with Entergy Corporation and the other involving the replacement of Gulf States with EOl as the operator of the River llend plant. Gulf States maintains that the board must find standing for each of these proceeding;.
1 3.
Staff Staff rupports Cajun's standing to intervene. According to Staff, injury-in-j fact by the amendments has been established because Cajun has shown it will
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suffer concrete and particularized harm traceable to the license amendment if the proposed new plant operator does not have the resources to safely maintain and operate River Bend or if the proposed amendment would cause a lessening of Cajun's influence, as an owner, to see that the plant is safely maintained and operated. Staff also states that Cajun has shown that it might sustain an actual injury if Gulf States lacks the authority to file the application on its behalf and that the grant of the application might adversely affect rights Cajun has under the present license. Staff additionally notes that Cajun has established that the alleged harm might be redressed in this proceeding by denying the amendment and keeping Gulf States primarily responsible for the safe operation of River Bend, or by granting the amendment with appropriate license conditions to protect Cajun's interests.
Staff concludes that Cajun's petition is within the zone of interests protected by the governing statute because the Atomic Energy Act states that the Com-mission shall provide for the protection of property, as well as of life, from i
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radiological hazards.. As authority, it cites sections 103b,42 U.S.C.A. 6 2133(b)
(1973), and 161b,42 U.S.C.A. (2201(b) (West Supp. 1974-1993) of the Act providing that licenses may be issued to those who will observe standards to
" minimize danger to life and p operty" and it cites section 170 providing for the indemnification of damages caused by radiological accidents. As additional-i authority, it cites section 2f of the Act where Congress found that the use and control of atomic energy is necessary "for protection against possible interstate damage" occurring from the operation of nuclear facilities in interstate com-merce. 42 U.S.C.A. 5 2012(f) (1973).
C.
A'nalysis of Standing -
At the outset, we do not agree as a practical matter with Gulf States' argument that two proceedings are involved here - the merger proceeding and the operator proceeding-and that separate standing must be established for both. Although there were two Federal Register notices on July 7,1993, regarding Gulf States' license amendments, one pertaining to the merger and one pertaining to the designation of an operator for the facility, the two amendments appear to be -
I different facets of the same undertaking and do not require separate fmdings.
Hat is, there is one nuclear power plant, one license being amended, and one part owner of that plant seeking to intervene. Gulf States' view of the matter could double the litigation burden and costs, an unhappy result this agencj normally seeks to avoid.
Aside from this procedural issue, the issue here is whether the property interest of Cajun in River Bend is sufficient to confer standing in this license
)
amendment proceeding. We conclude that it is.
Here are a limited number of NRC cases involving standing that involve property interests. Most have held that the property interests involved were insufficient to confer standing since they were outside the zone of interests designed to be protected by the Atomic Energy Act - namely, interests related to health, safety, and radiological matters. He property interests in those cases primarily involved economic interests of ratepayers and taxpayers or general i
concerns about a facility's impact on local utility rates and the local economy.
See Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1),
ALAB-424, 6 NRC 122,128 (1977); Philadelphia Electric Co. (Limerick Generating Station, Units I and 2), ALAB-789,20 NRC 1443,1447 (1984);
Tennercee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-J 413, $ NRC 1418,' 1421 (1977).
Notwithstanding the ratepayer / taxpayer line of cases, property interests can confer standing. He ratepayer / taxpayer cases failed to fmd standing because ~
.j the property interests were too far removed from the purpose qLlhe underlying statutes governing those proceedings. Cajun's stated interest in this proceeding, 37
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on the other hand, is to protect its property, River Bend, from radiological hazards arising from unsafe plant operation. Cajun's asserted interest in avoiding damage to property from nucle e-related accidents coincides with the Atomic Energy Act's stated purpose of aflording protection from radiological hazards.
As Staff conectly points out, radiological protection under the Act is afforded for both human life and property. In fact, the protection of property is specifically mentioned in the Atomic Energy Act in several places, including sections 103b and 161b which speak of minimizing " danger to life or property." 42 U.S.C.A.
65 2133(b) and 2201(b) (West Supp. 1974-1993). Cajun's property interest in River Bend thus clearly meets the zone of interests requirement for standing.2 Both license amendments found in the July 7,1993 Federal Register Notice play a role in the potentist radiological hazards that Cajun has alleged in this proceeding. The amendment naming a new plant operator will install an allegedly underfunded operator whose lack of funding may jeopardize the safe operation of River Bend. According to Cajun, potential underfunding stems from multiple legal actions against Gulf States that could cause considerable financial difficulty, including bankruptcy. The merger amendment to permit Gulf States j
to become a subsidiary of Entergy Corporation also can cause unsafe operations since the terms of the merger agreement allegedly allow for underfunding at the plant. Tims, both amendments play a part in this proceeding and both are contributors to Cajun's standing arguments.
Cajun also has demonstrated injury-in-fact sufficient to confer standing.
J Because it is a co-owner of River Bend, it arguably can suffer substantial damage to its property interest from the plant's unsafe operation, including loss of its share of the plant, less of plant power and revenue, and potential liability to
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third parties from radiological accidents.2 We reject Gulf States' argument that the alleged injury to Cajun is too speculative to be the basis for intervention. A petitioner need not establish that injury will inevitably result from the proposed action to show an injury in fact, but only "that it may be injured in fact" by the proposed action. Virginia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-342,4 NRC 98, 104-05 (1976). In this case, Cajun has supplied information to establish that safety at the plant may be jeopardized by potential plant underfunding and a lack of oversight by Cajun. It has specifically alleged in this regard that only Gulf IWe note that standmg arguably may be gramed for property interests other than those assocsated with phpical damage imm radiological hazards. See Metropohtan Edison Co. frhree Mile Island Nuclear Station, Umt 1),
C1MS.2. 21 NRC 282. 31617 (1985). However, we see no need in this case for us to deternune whetter standing may be granted for property interests that do not directly pertaia to radiological hazards.
3 Cajun bas not speci6cally clained standing hused upon potential personal injury to individuals. However. it has hated various rural electric distnbution cooperatives that are Cajun numbers whose service areas include.
Individual rnrmbers who are living adjaccat to the River Bend facihty. We agree with Gult States that Cajun cannot obtain standing thmugh those individt.als who are nembers of these member cooperatives because it has j
neider denenstrated authority to repreaent them nor has it alleged any specine injury to them.
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States will be responsible for funding the plant under the current terms of the merger agreement and that Gulf States' officials have conceded the potential for bankruptcy to Gulf States from pending litigation. We view these allegations as adequate to establish the necessary injuty in fact.
We also reject Gulf States' argument that a lack of funding could not adversely affect plant safety. Thi.s argument clearly contradicts the rationale of 10 C.F.R. 6 50.33(f) (1993) requiring applicants for operating licenses to demonstrate that they possess reasonable assurance of obtaining funds necessary to cover estimated operation costs for the period of the licenses. 'Ihe regulatory basis for section 50.33(f) would include numerous safety factors including a consideration that insufficient funding might cause licensees to cut corners on operating or maintenance expenses. Evan though, as Gulf States asserts, the plant could be safely shut down if funds ale lacking, under section 50.33(f) financial assurances would still have to be provided.4 We note that even during '
shutdown there are accident risks associated with a nuclear reactor. See generally, NUREG-0933,"A Prioritization of Generic Safety Issues"(1991).
Finally, we reject Gulf States' argument that the license conditions are immaterial to Cajun's property interests since the responsibility for operating costs at River Bend will still rest with ' ulf States and Cajun, just as they G
did before the merger. This claim is controverted in Cajun's petition where Cajun asserts that the new Operating Agreement runs only between Gulf States and EOI and, therefore, Gulf States has the full obligation to compensate EOI for River Bend operation and EO! cannot look to Cajun for payment. Gulf States' argument also fails to recognize that license conditions could arguably be imposed that would help alleviate Cajun's financial concerns.
For the reasons explained in this section, we conclude that the potential injury
- to Cajun's property interest in River Bend establishes the requisite " injury in -
fact" for standing in this proceeding and that the potential injury to this interest is within the zone of interests protected by the Atomic Energy Act.5 4 Ahhough an electric utility's Enancial quahrication usually cannot be the subject of htigation in NRC operating license procee&ngs (ree 10 C.F.R. 6 50,3XO; Public Sanqce Co. of New Hampshire (Scalwook Station. Units I and 2). CLI 89-20. 30 NRC 231 (1989)), the marier here concerns the Anancial viability or the operating company.
Eo!. which is not an electric utility. (Nr a more detailed analysis of this question. see discussion for Contention 2.Mfri)
Sour ruhng does not reach Cajun's argunrot that standtog can also be derived from its rights as a co-owner of River Bend alone. Cajun appears to argue that co-owrers and co-licensees of nuclear facihties should be allowed to contest license anendments that are conuwy to their ownenhip Interests tespecially where, as here, state law &ms not allow a joint ownership agreement to be anended in the manner proposed) regardless of the subject matter at issue. Our subject matter jurisdiction is limited by statute and we And Cajun's contractual pmperty interest at issie here inappropnate to confer standing Atment ra&ological health and safety concerns, environnental concerns, or antitrust maners subject to NRC heense conditious, contractual esputes between co-owners in nuclear facilities ordinarily should be resolved by the appmpriate state, local or federal court. Contract &sputes are not within tlw scope of tlue proceeding and will not be addresed by this board.
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IV. CAJUN'S CONTENTIONS To be admitted as a party in this proceeding, Cajun must not only establish standing, but also must proffer at least one admissible contentbn. The standards
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for admissible contentions are set out in 10 C.F.R. 62.714(bl(2) and (d)(2)
(1993). These regulations require that Cajun's contentions inc4ude a specific
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statement of the issue of law or fact to be raised or cormiverted, a brief explanation of the bases of the contentions, and a concise statement of the alleged facts or expert opinion which support the contentions, together with references to those specific sources and documents on which the petitioner intends to rely to prove the contentions. In addition, section 2.714 (b)(2)(iii) requires that Cajur:
present sufficient information to show that a genuine dispute exists on a material issue of law or fact. And, of course, Cajun's contentions must fall within the scope of the issues set forth in the notice of the proposed licensing action. See Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316,3 NRC 167,170-71 (1976).
Cajun has listed the following seven contentions for litigation in this proceed-ing. See " Cajun Electric Power Cooperative Inc.'s Amendment and Supplement to Petition for Leave to Intervene Comments and Request tbr Hearing," dated August 31,1993, at 7-22. Gulf States and Staff oppose these contentions on the basis that they are economic in nature and outside of the scope of health and safety issues in this proceeding, that they fail to have a sufficient basis, and that they would not entitle Cajun to relief even if proven.
Contention 1.
The Proposed Amendments Fall to Reflect the Public Interest and Interests of Co-owners, Wholesale Customers and Customers That May Be Affected by the Outcome of the Cajun and Texas Litigation Cajun contends that the NRC should consider the adverse financial impact that Gulf States, Entergy, and EOI would experience from a judgment or settlement resulting from presently pending litigation against Gulf States. These cases include Cajun Electric Power Cooperative, Inc. v. Gulf States Utilities Co., No.89-474.B, United States District Court for the Middle District of Louisiana, and Southwest louisiana Electric Membership Corp. v. Gulf States Utilities Co.,
No. 92-2129, United States District Court for the Western District of Louisiana.
The case brought by Cajun involves an attempt by Cajun to rescind the River Bend Operating Agreement and collect damages of over $1.6 billion for alleged misrepresentation by Gulf States regarding Cajun's ownership purchase in River Bend. Cajun cites statements of Michael J. Hamilton of Price Waterhouse to establish that a decision in this litigation in favot_of Cajun could bankrupt Gulf States and reduce the present net earnings of Gulf States /Entergy from 40 L.
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$2.20 per share to a loss of $3.34 per share. Cajun further claims Entergy will not protect Gulf States in the event of these litigation losses since the Entergy/ Cajun Reorganization Plan allows Entergy to withdraw from the merger if Cajun prevails.
Contention 1, insofar as its allegations may establish the potential for unsafe operation of River Bend, does not directly refer to safety concerns but, in fact, is an integral part of Contention 2 which does refer to safety. In essence, Contention 1 states a basis for Contention 2 since the allegations in Contention I regarding the Gulf States litigation are an element in proving the allegation of underfunding and reduced safety in Contention 2. In fact, Cajun asserts the Contention I allegations concerning financial damage resultant from litigation as a basis for Contention 2. See Item (c) under Contention 2, below, and related discussion. Accordingly, for all the foregoing reasons, Contention 1 is denied.
Contention 2.
The Proposed License Amendments May Result in a Significant Reduction in the Margin of Safety at River Bend Cajun's claim in this contention is that safety at River Bend will be jeopar-dized because the proposed new operator, EOI, will be underfunded. It asserts, as bases for this contention, that:
(a) He proposed River Bend Operating Agreement runs only between Gulf States and EOl. Therefore, Gulf States has the full obligation under the Operating Agreement to compensate EO! for River Bend operation and EOI cannd look to Entergy or Cajun for payment. (These allegations are based on provisions in the River Bend Operatmg Agreement and the statements of Edwin Lupberger, Chief Executive Officer of Entergy, and Donald Hintz, Chief Executive Office of EOI.)
(b) EOI is very thinly capitalized. If Gulf States ceases to make its Operating Agreement payments EOI has no other sources of funds to maintain safe and reliable River Bend operation. (Cajun cites the proposed Operating Agreement as the source for this allegation.)
(c) Gulf States faces severe financial exposure from litigation with Cajun and from certain Texas regulatory proceedings which could render Gulf States bankrupt and unable to make adequate payments to EOI to maintain safe and rehable River Bend operation. (To suppott this allegation, Cajun has provided the specific information described above in Contention 1.)
(d) Entergy views its obligations to support EOI in the event of lack of fonding from Gulf States to be very limited. Officials of Entergy and EOl have admitted that EOl would be forced to shut down River Bend if EOl lacked adequate funds. (Cajun has cited the testimony of Edwin Lupberger and Donald Hintz in a Federal Energy Regulatory Commission (FERC) proceeding as a source for these allegations.)
See Cajun Amendment and Supplement at 11-13 and references therein.
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i We find these bases adequate to satisfy the contention requirements of this proceeding. Cajun, of course, is not obliged to prove its entire case at this time.
See discussion in Sacramento Municipal Utility District (Rancho Seca Nuclear Generating Station), LDP-93-23,38 NRC 200,205-06 (1993).
In its opposition to Contentions 1 and 2, Gulf States primarily argues that both contentions are contrary to the Commission's " financial qualification" rule which exempts electric utilities from demonstrating financial qualification. Ilowever, j
this reliance is misplaced since the exemption in 10 C.F.R. 650.33(f) applies only to electric utilities, and EOI is not an electric utility. Contentions 1 and 2 concern EOl's, and not Gulf States', financial qualifications. EOI will be the facility's operator and it is EOl's underfunding that allegedly will cause safety _
concerns at River Bend.
Clearly, EOI is not an electric utility. EOl's sole function will be to operate and maintain the plant. An electric utility, as defined in 10 C.F.R. 6 2.4 (1993),
is an " entity that generates or distributes electricity and which recovers the costs of this electricity, either directly or indirectly, through rates established by the entity itself or by a separate regulatory authority." Gulf States will be the entity functioning as an electric utility with respect to River Bend since it will continue to distribute and sell the Rivu Bend power and will be the entity responsible for recovering its costs.
Other arguments Gulf States makes in opposing Contenti'on 2 are the same arguments it made for opposing Cajun's standing. These include Gulf States' allegations that the responsibility for funding plant operations will remain with Gulf States and Cajun, that the economic injury that Cajun asserts is too speculative to be a basis for a contention, and that the plant could safely shut down if funds were lacking. We have found these arguments wanting in the standing section of this decision and they are wanting here. For all the foregoing -
reasons, Contention 2 is accepted.
Contention 3.
The Proposed I.icense Amendment Cannot Be Approved Without Cajun's Consent In this contention, Cajun contends that the proposed license amendment requests were not properly made on Cajun's behalf and that the amendments are contrary to Cajun's ownership interest in the facility. We reject this contention for the reasons set out in our discussion regarding standing. Cajun has contracted with Gulf States to have Gulf States operate River Bend. 'Ihat authority included the power to seek license amendments. When antitrust and radiological health and safety concerns are not involved, contractual disputes between co-owners in a nuclear facility should not be resolved by the NRC. Such questions should be handled by appropriate state, local, or federal courts.
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1 Contention 4.
The Proposed License Amendments Will Adversely Affect Cajun's Rights Regarding the Operation of River Bend Cajun contends that the transfer of ownership and operation of River Bend violates Cajun / Gulf States contracts and that NRC approval of these transfers must be conditioned to protect Cajun's rights as a 30% co-owner of River Bend.
Cajun claims in this tegard that operational decisions for River Bend will no longer be made to protect the interests of Gulf States and Cajun, but rather will be made on behalf of the entire Entergy System which consists of a number of other electric utilities. Cajun also claims that the transfers to EOl will destroy Cajun's contractual privity with the plant's operator, which in turn will adversely affect River Bend safety by preventing Cajun from sharing plant operational information and participating in plant decisionmaking.
Just as for Contention 3, we reject this contention because it involves non-safety-related contractual matters between co-owners of a nuclear facility.
Jurisdiction for such issues lies in other forums, not this one. No significant health or safety concern has been presented here since Cajun has not asserted or shown any basis to establish that a safety problem would exist without its oversight at River Bend.
Contention 5.
The Proposed License Amendments Cannot Be Approved Without Certain License Conditions In this contention, Cajun lists seven license conditions which it alleges will alleviate the problems caused by the license amendments. On their face, these contentions appear related only to contractual disputes Mtween the co-owners l
of River Bend, and they do not appear necessary for the plant's safe operation.6 Consequently, we reject these conditions with the proviso that Cajun can later request license conditions for Contention 2 that include aspects of these proposed conditions if Cajun can demonstrate their safety significance.
Contention 6.
The Proposed Ownership Amendment Should Be Approved Only with Conditions Adequate to Remedy its Adverse Impacts on the Cajun / Gulf States Interconnection Agreement In this contention, Cajun alleges that the proposed Gulf States merger will adversely impact the Cajun / Gulf States interconnection agreements to
" Cajun requests condinons that. (1) require a tripartite agreement among Gulf Staies, EOi, and Cajun; (2) require 001 to be the direct agent of Cajun; (3) require Eoi to be directly liable to Cajun;(4) anow Cajun to have input 1
into Rmr Bend decisions regardmg maintenance, fuel outages, budgets, and capital improvements; (5) allow Cajun to haw access to 001 records and River Bend operanonal data;(6) require 001 to submit River Bend cost management and reguistory repor's to Cajun; and (7) allow Cajun to attend institute for Nuclear Power Operation (INPo) nretings and have accent to INPO documents.
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M-the economic detriment of Cajun and its consumers. According to Cajun, these agreements include, among other things, intefconnection and trar.smission provisions, rates for electric power and services, cost-sharing agreements, long-term and short term planning functions, and similar, utility-related, operational agreements. This contention describes utility functions that clearly lie within the jurisdiction of FERC or appropriate state agencies that regulate electrie utilities.
See 42 U.S.C.A. 5 2019.
Moreover, to the extent that Cajun's interconnection agreement concerns relate to Cajun's antitrust license conditions in the River Bend NRC license, they have been evaluated by Staff as part of a Staff antitrust review involving the Gulf States' merger. See 58 Fed. Reg. 16,246 (1993). Antitrust matters were not included in the notices governing this proceeding and this board has no jurisdiction over them. Accordingly, the contention is denied.
Contention 7.
The River Bend License Conditions Must Be Enforced in this contention, Cajun requests that Gulf States and EOl be required to comply with the current River Bend license conditions. Cajun alleges that Gulf States is violating Condition 10 (by seeking to void a transmission contract between Gulf States and Cajun) and Condition 12 (by refusing to provide certain delivery points for electric power). We reject this contention since licensing boards have no jurisdiction to enforce license conditions unless they are the subject of an enforcement action initiated pursuant to 10 C.F.R.12.202a (1993).
Cajun's only recourse to enforce these conditions is to request enforcement action by the Staff pursuant to 10 C.F.R. (2.206 (1993).7 V.
CONCLUSION Cajun's Contention 2 regarding a potential safety risk caused by underfund-ing of the plant's operator is accepted. The remaining contentions are rejected because they do not concern health and safety matters or any other basis for Li-censing Board jurisdiction. They involve contractual disputes and disagreements between co-owners of nuclear facilities, which are not within the jurisdiction of this forum. Matters argued by the parties but not addressed herein were not considered material to the decision reached.
7 we note that the hcense con &tions to which Cajun refers are the River nend anterust lir nse conditions whien a
were Ameried in the River Itend license to aHeviate anutrust concerns and ensure cornpetibon among utibties in oulf States' service area. As discuned regar&ng Contention 6. supra. the antitrust avects of the Gulf Statef rnerger MFUie subject of a separate antitrug eview conducted by NRC Staff and were not included in the nodces governing this proceeding.
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l We conclude that Cajun has met the m;uirements for standing. It has proffered one viable contention, demonstrated an " injury in fact," and alleged an injury that falls within the zones of interest sought to be protected by the governing statutes. Cajun's petition to intervene is therefore granted, and a hearing is hereby ordered in this proceeding.
VI. APPEAL RIGIITS In accordance with 10 C.F.R. 6 2.714a (1993), Gulf States or Staff may seek appeal on the question of whether the petition and request for a hearing should have been wholly denied. Cajun may not appeal this Order because it does not wholly deny its petition.
An appeal to the Commission may be sought by filing a petition for review, pursuant to 10 CER. 6 2.714a(a) (1993), within 10 days after service of this Order. Any other party to the proceeding may, within 10 days after service of the appeal, file an answer supporting or opposing the appeal.
VII. DISCOVERY AND SCIIEDULING Discovery shall begin imrnediately. The parties shall commence negotiation concerning appropriate trial schedules and file a report with suggested scheduling by March 1,1994.
Tile ATOMIC SAFETY AND LICENSING BOARD B. Paul Cotter, Jr., Chairman ADMINISTRATIVE JUDGE Richard F. Cole ADMINISTRATIVE JUDGE Peter S. Lam ADMINISTRATIVE JUDGE Bethesda, Maryland, January 27,1994.
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