ML20077D465
| ML20077D465 | |
| Person / Time | |
|---|---|
| Issue date: | 05/31/1991 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V33-N03, NUREG-750, NUREG-750-V33-N3, NUDOCS 9105300258 | |
| Download: ML20077D465 (64) | |
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Vol. 33, No. 3 Pages 175-232 4
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Available from Superintentoncent of Documents U.S. Governmont Printing Offico Post Office Box 37082 Washington, D.C. 20013-7082 A year's subscription consists of 12 sof tbound issues.
4 andoros, and 2-4 hardbound editions for this publication.
Singlo copios of this publication-are availabio from National Technical information Sorvice, Springfield, VA 22161 0
Errors in this publication may be reported to the
. Division of Froodom of information and Pub" cations Sorvices Of':ce of Administratie U.S. Nuclear Rogutatory Corr, i asion Washington, DC 20555 (301/492-8925) t L,,,,,,,,,,,,,,,,.,
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i NUREG-0750 Vol. 33, te
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\\UCLEAR REGULATORY COV V SSIO\\ ISSUA\\CES March 1991 I
This report includes the issuancos reconved during the specified poriod from the Commission (CLI), the Atomic Safety and Liconsing Appoal Boards (ALAB), the Atomic Safety and Licensing Boards (LBP), the Ad.
ministrativo Law Judgos (ALJ), the Directors' Docisions (DD), and the Donials of Petitions for Rulomaking (DPRM),
I The summarios and headnotes procoding the opinions reported horoin are not to be doomed a part of those opinions or have any indopondent legal significa.ico, i
, U.S: NUCLEAR R GULATORY COMMIS.SION I
Prepared by the Division of Froodom of Information and Publications Services Ciffice of Administration U.S. Ni,; clear Rogulatory Commissior, Washington, DC 20555 (301/492-8925) 1 i
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l COMMISSIONERS Kenneth M Carr, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick Christine N Kohl, Chairman, Atom 6e Safety and Uconsing Appt3al Panel D. Paut Cotter, Chiet Administrative Judge, Atomic Satoty and uconrirg Doard Parel i
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CON'llNI S issuance of the Atomic S.iftty and I kensing Appeal linard PullLIC SERVICE COMPANY OF NEW llAMPSillRE. et al.
(Seabrook Station. Units I and 2)
Dockets 50443-OL 50-444 OL (Offsite Emergency Planning issues)
MEMORANDUM REGARDING CERTillED QUESTION, ALAll 94 5, Manch 20,1991............................... 175 Issuances of the Atomic Safely and 1.kensing lloards ADVANCED MEDICAL SYSTEMS, INC.
(One Pactory Row, Ocneva. Ohio 44(M1)
Docket 30-16055 CivP (ASLilP No. 89 592-02 CivP) (Civil Peralty)
MEMORANDUM AND ORDER,1.llP-919, March 19,1991....... 212 LONO ISLAND LIOllTING COMPANY (Shoreham Nuclear Ibwer Station. Unit 1) thlet 5(b322 OLA (ASLl!P No. 91-62101-OLA)
(ibssession Only License)
MEMORANDUM AND ORDER, LilP 917, March 6,199)........ 179 NORTilERN STATES l'OWER COMPANY (Prairic Island Nuclear Generating Plant. Units 1 and 2)
Dockets 7210,50 282 RS,50-300 RS (ASLBP No. 91-627-01.RS)
(Independent Spent Puel Storage Installation)
MEMORANDUM AND ORDER, L11P-918A, March 14,1991.....
210 PUllLIC SERVICE COMPANY OF NEW !!AMPSillRE. ct al.
(Seabrook Station. Units 1 and 2)
Dockets 50-443 OLR4,50-444-OLR4 (ASLilP No. 90-620-(4-OLR4)
(Offsite Emergency Planning)
MEMORANEUM, LDP-91 8, March 12,1991................... 197
'ENNESSEE VALLEY AUTilORITY (Sequoyah Nuclear Plant, Units I nnd 2)
Docket 50-327 OLA. 50-328 OLA (ASLDP No. 90435 07 OLA)
(Technical Specifications, Work Schedules)
MEMORANDUM AND ORDER, LIlP 91-10, March 18.1991..... 231 lli
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ATOMIC SAFETr AND UCENSING APPEAL PANEL l
Chnstine N Kohl, Chairman h,,
Alan S. Rosenthal l
Dr W Red Johnus)
Thomas S. Moore E
i Howard A. Wilter O Paul Doltwork.111 l
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I Cite as 33 NRC 175 (1991)
ALAD 945 UNt1ED STATES OF AMERICA NUCLE AR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL DOARD Administrative Judges:
G. Paul Dollwork, Ill, Chairman Alan S. Rosenthal Howard A. Wilber in the Matter of Docket Hon. $0-443 OL 50-444 OL (Offsite Emergency Planning lasues)
PUDLIC SERYlCE COMPANY OF NEW H AMPSHIRE, et al.
(Seabrook S'ation, Units 1 and 2)
March 20,1991
'lhe Appeal Board accepts a certified question from the Licensing Doard as to whether the Licensing floard may consider certain posthearing changes to the New llampshire Radio!ogical Emergency Response Phm and other posthcaring developments as resolving sheltering issues raised in the hearing record, as identified by the Al peal Docrd in ALAll 939, 32 NRC 165 (1990). The Appeal Ikiard concludes that vhile the posthcaring information, if accepted, would resolve the matters identified in ALAll 939, ensuring that the record, as developed through summary disposition or oWer appropriate procedural avenues, properly reflects that information is, in the first instance, the responsibility of the Licensing 110ard.
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MEMORANDUM REGARDING CERTil?!ED QUESTION
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in ALAll 939,8 we resporkled to questions Witified to us by the 1.icerising g
Ikurd in this operating license proceeding involving the Seabrook nuclear facihty, in doing so, we identified several concerns arising from die evidence of record on the New llampshire Radiological Emergency Response Plan (NilRERP) as it relates to the intended use of the so-called " shelter in place" protective action option for Oc general population visiting the Atlantic Oecan beaches near the Scalmok plant,' We also directed the Licensing Ikurd to ensure that Oc record is clear with respect to diose inatters,5 In a memorandum dated March 12,1991, the Licensing floard has certified to us an additional question regarding shchering as a protective action for the New llampshire beach population.' Specihcally, Die lloard requests guidance on whether Oc concerns we ideritified in ALAll 939 are resolved by gosthear-ing amendruents to the NilRERP and representations in a January 10, 1991 memorandum, attested to by New ilampshire Emergency Management Director Ocorge L. Ivesson, to the effect that evacuation is the only planned protective action for the general teach population. As this queshon relates directly to our response in ALAll 939 to die several quesuons previously put lefore us by the Licensing Ikiard, we accept the certTalk i.'
As the Licensing Ikard describe r >me detall in its March 12 memoran-
'etion for the general beach populadon dum, the role of sheltering as a t.
(i.e., the transient beach population v
- amportation) has been an " evolving" matter. Testimony beitue the lloard Alting lu original hearing on the NilRERP established that, while they considered it of extremely limited utility, applica-ble perhaps to only the so called " puff release" scenario, planners nonedseless sicwed sheltering in one form or another as a viable emergency response for portions, if not all, of the general beach popliation,* In their most twent sutu missions to die Licensing Ikard in the wake of ALAll 939, however, several of the parties have indicated that this is no longer the case.
As the State of New flampshire explained in its comments to the Ikurd regarding the matters discussed in ALAlb939, under the NilRERP evacuation I32 NRC 16s (1990),
3M st 178 80.
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'tJtP 914,33 NRC 197 (1991) 8 Af'm emrul emidersum of the perues' rihngs krnre the IAemma lloord, ses ISP 91.s,33 NRC at 200 rm 6-10, 207 an 37 38, and the transenpt nr the January 23,1991 telepme ennferon umh the guruas, see 1r 28,462 99, se hm conclude.d that we have e sistricist understami ng or the peruns' pasibuns regardmg A!All.
i 939 en) the tasues idonbried therein so that we tan pamde guidau regenhng the rettified quem 6m mWinut sec4 mg turther ringwmees
- A g., Appbcams' throct Tesumany No. 6 ($heherms), rol Tr.10.tr22, et 19 20,1r.10,714-15,10.719 20. See abo 1EP 88 32,28 NRC 667,751,758 59,763 (1984) 176 l
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- not shellering - is the " planned" sesponse for de general beach population (and, in&cd, for the critire population in the area within appnnimately two miles of de Seabrook facility) in all circumstances it can tow "foresce,"'lbr its part, the Federal Emergency Management Agency (111MA) now pmelaims that de circumstarces in which sheltering for the general beach population would be of any use are " entirely theoretical arxl will never come alcut at a General Ernergency/5 'lhe NRC staff similarly maintains that the scenario imder which sheltering might be useful as a protective option for the general beach population "is so unlikely as to te, for emergency planning purposes, a null set.
- these filings make clear that the entities most direcdy resgunsible for the administration and evaluation of the NilRERP now insist that sheltenng is Imt a planned protective aethin option for the general beach population in any foresecable circumstance."'If accepted, this asserdon would negate the pretnise upon which our record clarification directive in ALAll 939 (and, in large part, our initial remand of the beach sheltering issue)" was anchored. This acceptarre hinges, of course, upon whether the record itself reflects that the " evolution" of the consideradon of sheltering as a protective action for the general teach population has reached the point where it effectively has been discarded as such an option. If that is the case, the issues we identified in ALAll 939 relating to the use of a sheltering option for the general beach population would in essence have become moot and so would le resobed.
'the Licensing floard apparendy is prepared to accept the position of diese entities, based in substantial part on posthcaring amendments to the NilRERP and the State's recent comments on ALAll 939, as attested to by its Emergency Planning Director during a telephone conference.u 'Ihe lloard's certified ques-tion essentially asks that we do the same. As with our directive in ALAll 939, however, we leave it to the lloard to ensure, in the first instance, that the admin-7 Memwandum of the state of New llamphire am AI All 939 (Jan.10,1991) at 12, Tr. 28,468 8 Advice of tlT.MA] Regarding laaues Raised tiy AIAll 939 (Jan.11.1991) at s.
'NkC star! Views m Manars Referred in AtAll 939 (Jan. II,1991) at 2.
W lur ihme pn, arphcama accep the siaie's emuun with respect to she.itermg the beach pqm! stem See thensm' Respose to de Mamarandian and order of Nmember 14,1990 d the Atmuc safety and thatsmg Ihwrd te ALAft 939 (Jan 10,1991) at 3-4 Intermies Massachusetta Antarney ocmetal and the New legland Cosbuon wt Nudear Polluuan, e the <<her hand, have raised t=4h suhtanuve and panedural challeriges w diat peuort. Among other Dungs, these intervenors asacrt diet 02 state in fact is retainmg shelterms as a planned pMnective stunn opaan for the brach pnpulaum, atlet with only ad har implementaum. kespwe or the MaesAo and N1CNP to the t.icensmg therd's Orda uf January 24,1991 (Feh.14,1991) at s, lhry funher emia 4 diat, assunung evacuatum ruw la the culy pnamtave ecuan for en energency seammae planning area near Ow seahrrwa factbiy. an even larger number d peeple rtak raaving no da e reducunn twause full time reaidants as stil as beachgorre are 6ncluded in the pyttauon 041 wdl nra tw sheJtered. /d at 4 in addatum, they qucauan the pynesy or reliance by the t.htensmg lloerd m pathearms inrarmauan (such as the State's remit rdmas) as "evidmce" of New llampshire's puium em shelterms Ow beach pTulauon.1hry maintain that to tio ao permits a hmnad reigenang or the record without affurding than the tytutunny la esamme the foundaum d that evidence or to present c<smtervadmg evidm<s,14 at 4 s "See AtAB 924,30 NRC 331,37073 (1989), paarwarfor review pe=4ag U,e IJIP 91.g,33 NRC at 207, 3
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istrative record, as developed through surnmary disposition or other approgviate procedural aventes, reficcis any infor: nation necessary to its resolutitui of the inatters identified in ALAll 939.
FOR Tile APPEAL !!OARD flatbara A Toinpkins Secretary to tie Appeal 11oard 178
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Atomic Safety and Licensing Boards issuances ATOMIC SAFETY AND LICENSING BOARD PANEL B. Paui Cotter,' Chlof Administrative Judge nobert M. Lazo,* Deputy Chict Administrativo Judge Xxccutive)
Fredorick J. Shon.* Deputy Cnict Administrativo Judge (lochnical)
Members Dr George C. Anderson James P Gioason Dr Emmoth A LuetAn Charles Dochhoefor*
Dr. Cadet H Hand. Jr Dr Kenneth A. McCollom F%ter B Doch*
Dr. Jerry Hartoer*
Morton B Margules*
Glenn O. Dnght Dr. Daed L. Hotnck Marshall E. Miler Dr A. Dixon Calkhan Errest E. Hill Dr Peter A Moms James H. Carponter*
Dr. Frank E Hooper Dr. Rciard R Paniek Dr Rchard E Colo*
Elizabeth B Johnson Dr Harry Rein Dr Thomas E Elleman Dr. Watter H Jordan Lester S Rutenstein Dr Grorge A. Ferguson Dr Charlos N. Kalter*
Or DaAd R Schink Dr Harry Foreman Dr. Jerry R Kline*
lean W *ath*
Dr Rchard F Fostor Dr Pater S Lam
- Dr George Tidey John H Fryo lil*
Dr James C. Larnb 111 Steldon J Wolfe
- Permanent panel members d..
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Cite as 33 NRC 179 (1991)
LDP 917 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOAFID Before Administrative Judges:
Morton B. Margulles, Chairman Dr. George G. Ferguson Dr. Jerry R. Kline in the Matter of Docket No. 50 322-OLA (ASLBP No. 9162101 OLA)
(Possession-Only License)
LONG ISLAND UGHTING COMPANY (Shoreham Nuclear Power Station, Unit 1)
March 6,1991 MEMORANDUM AND ORDER (Ruling on Requests for Intervention) 1.
INTRODUCTION The Commission, in CL191 1, 33 NRC 1 (1991) (Carr, Chairman, dissent-ing), assigned for disposition by the Licensing Board two nearly identical plead-
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ings styled as " Comment on Proposed No Significant llazards Consideration and fttition for Leave to Intervene and Request for Prior llearing." They were filed September 20,1990, by the Scientists and Engineers for Secure Energy (SE2) and the Shoreham-Wading River Central School Diswict (School District).'
Ine peu6ans wm tarwarded to this 1.icomin8 Board with their related supplantrus and answere in add,6m to amicw pleadings fded by the tag tiland Power Authority (llPA), the Depattrnant or laergy (DOE), the Council on Envirmmerna1 Quahty (CLQ), and the state or New % t (State).
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'the petitions relate to a January 5,1990 application by long Islarul Lighting Company (LILCO);o amend its full pour operating license for the Shoreham Nuclear Ibwer Station, Unit 1, to one to " possess, use, but not operate Shortham." Licensee proposed Omt its full power operating license be amended to become "a defueled operating license" w hich may be treated as a " possession-only license."
i Additionally, the amendment would prohibit the plrcement of fuel in k reactor and delete provisions that Licensec considers are not pertinent to a situation where fuel may not be put into k reactor vessel and the reactor will not te operated. Generally, k license conditions regarding the Flux Monitor. Instrumentation and Control Systems Required for Safe Shutdown, Steam Condensing Mode of RilR, Emergency Diesel Ocnerator, Fission Oas Release and Ballooning and Rupture, Strike Shutdown, Iturricane Shutdown, County Liaison, Brentwood Staffing, and Quarterly Drills would te deleted.
The Licensec would not be allowed to operate the facility at any core power level.
Notice of the application to amend the license was published in the Federal Register. '!he notice listed the twenty-two proposed changes to the Technical Specifications of the Shoreham operating license. Also, it advised that k Licensec had determined, on the tusis of its own analysis, that k proposed changes do not involve a significant ha7ards consideration.1he notice further stated, following a restatement of the Licensec's analysis, that the Commission had made a proposed determination that the amendment request involves no significant ha7ards consideration and that the Commission may decide to issue license amendments authorizing vatxts portions of the application, while it continues to review the remaining portions of the application. 55 Fed. Reg.
34,098 101 (Aug. 21,1990).8
'lhe Commission sought public comment on the proposed determination and offered any person whose interest may be affected by the application the opportunity to file a request to intervene in a hearing on k proposed amendments to the operadng license. Id. at 34,100101.
In response, SE2 and School District, on September 10, 1990, filed their petitions in wlhich they argued, inter alia, that a final determination by the Com-mission that the proposed amendment poses no significant hazard is " fatally" premature, that Petitioners be permitted to intervene, and that a hearing be held on the issues presented by the proposed amendment to the full-power license.$
IA federal Reg 4nst New of sepamber s,1990. denenbed the amendmers aquut as remmns tJtma suthonty in operate shon: ham and mndd resuh in the issuance of a "pos,emaion only" twesa 3 htinawes on october 10,1990. rded supplements to their september 10,1990 peunms ciung funher reasons is ths reHaf sought.
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11y order of October 3,1990, the C(unmission icquested Lilf0 and the NRC Staff (Staff) to address Petitioners' arguments on the subject matter (1) that a proposed "defueled operating license" actually constitutes a "Imssession-only license" (IOL) and (2) that under 10 C.F.R. I50.82, LILCO must sulunit and Stall must approve a decommissioning plan prkt to the sutvnission of an application for a ICL.
LILCO, on October 12, 1990, responded to lYtitioners' petitions filed Sep-tember 20, 1990, and the Commission's order of October 3,1990. Licensec requested that the petitions for leave to intervene and requests for hearing be denied.
Staff ori Cktober 24,1990, res[onded to the petitions arxl the Comtnission't order of October 3,1990. In addition to answering the Commission's October 3 request, it opposed the petitions to intervene on the grounds that l'eudoners have not shown that they would suffer an injury in fact by the granung of LILCO's application for a 8'OL or that they have raised issues entitling thern to a hearing.
In a separate matter, on October 17, 1990, the Cornmission had mued a Memorandum and Order involving three separate proposed changes to the Shorcham full-power operating license stemming In in Licensec's agreement with State not to operate Shoreham ark! the plant's defueled status. The thanges to the Shoreham licer;se involved a Confirmatory Orc'er that prohibits LILCO from placing any nuclear fuel in the Sixncham reactor vessel without prior NRC approval; an amendment that would allow changes in the physical security plan and a reduction in the security forces; and an amendment that would remove certain license conditions regarding ofisite emergency preparedness activities.
CL190-8,32 NRC 201 (1990), ag'd on reconsiderarlon, CLI 912, 33 NRC 61 (1991).
'Ihc Commisskm, in ruling on certain aspects of the petitions filed by SE2 and School District in those matters, determined, in part, that the National Environmental Policy Act (NEpA); id the Atomic Energy Act (AEA) do not require the NRC to consider resumed operation of Shoreham as an alternative to decommissioning under the facts of the proceeding. SE2's and School District's petitions to intervene and to hold a hearing were forwarded by the Commission for handling by a Licensing Board that is composed of the same members as this Licensing Board. 'the Licensing Board was directed to review the three matters and resolve all other aspects of the hearing requests in a manner consistent with the opinion.'
don Jam ary s.1991 the 1kensing Dwd Lis6and a Manorandurn and onler. ISP 911. D NRC is (1991). In -
whuh h round that Pahmern had railed to meet the requinments or 10 C.Fi l 2.714(sX2) to permit intervenuon.
Ftshinners were permitted in rile amended peuunns whkh they did an l'eleuery 4.1991. on January 23.1991 INsitarmrs had sprested the Memorandten and order. TSP 91 1, to the Cirnnusswet 1N1
In the subject proceeding the Commission has accepted comments filed by LIPA, IX)E, CEQ, and State. CL191 1, 33 NRC at 5 n.3.
In its Jantary 24,1991 Memorandum and Order, CLI 91 1, the Commission determined (1) that the requested arnendment would transform the Shoreham l
ogerating license into a POL; (2) that such a l'OL may be issued without any preliminary or fmal decommissioning information; and (3) that the petitions should be forwarded to the Licensing Ikurd f<r consideration under 10 C.F.R. 6 2.714 and in accordarse with the opinions expressed in CL1911 and CLI-948.
In this Mernorandum and Order, the Licensing floard rules on the petitions requesting intervention and hearing. We find, lused on the filings leftwe us, that Petitioners have failed to meet the requirements of 10 C.F.R. 6 2.714(a)(2) to permit intervention. In accordance with C(xnmission practice, Petidoners are given the opportunity to file amended petitions Out may cure the defects that I
the Liccasing floard has found.
II. SCOPE Ol' PROCI:1: DING A.
The licaring Notice and Commk 8on Guidance Define the Scope of the Proceeding In licensing matters, the Commissl(xi has followed de rule Out the hearing notice, published by the agency for the proceeding, defines the scope of the proceeding and its issues. The hearing notice limits the Licensing Ikurd's jurisdiction. Northern Indiana Public Service Co. (llailly Generating Statum.
Nuclear 1), ALAll 619,12 NRC $$8, $65 (1980); Commonwrahh Edison Co. (Carroll County Site), ALAll-601,12 NRC 18,24 (1980).
Furthermore, the Commission has inherent supervisory authority over adjudi-catory proceedings and can step in to & cide any matter itself, in so doing, the Licensing floard is bound by the guidanx or direction given in determining die scope of the proceeding. Long hland LIgMng Co. (Shoreham Nuclear Power Station, Unit 1), CL1912,33 NRC 61,74 (1991).
'Ihe Commission, in forwardmg the matter for handling by Die Licensing Iloard, advised Out the petitions should be decided in accordance with the opinions in CLI 91 1 and CL190-8. Our jurisdiction on Oc scope of the issues is limited accordingly, 11 The llearing Notlee The hearing notice was published in the Fedcral Register as one part of a notice titled " Consideration of Issuance of Amendment to liwility Operating 182 l
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t License and Progused No Signincant liarards Consideration lktermination arnt Opportunity for llearing; long Islarul Lighting Co." $$ Fed. Reg. 34,0 % 101
( Aug. 21,1990).
As previomly &scriled, the prog used amergirnent would remove the Li-censee's authonty to operate de facility rs an operating reactor.1here would be twenty-two changes to the Shortham full.gower operatmg license.1he changes would for the most part climinate '!cchnical Specifications that LILCO has to comply with as the holder of a full. power license.
1hc notke recited Dial the Commisskm had made a prolosed determinadon based on the Licens(t's analysis, that the request for amendment involves to significant harards considera00n and that the Commission may decide to grant portions of the request, in whole or part. *lhe C<unmission sought public comment on the pro [xised determination and gave nodce of opgertunity for hearing on the amendment.
A determination of no significant hazards comideration is not a substantive determination of public heahh and safety issues for the hearing on the proposed amendment. The only effect of such a determinatkm on the learing is to establish whether the amendrnent may be approved liefore a hearing is held or, if there is a fmding of significant ha/ards considerathm, a final decision must awall the conclusion of the hearing.
C<vnmission reguladon is very clear that u Licensing floard is without authority to review Staff's signincant hazards consideradon determination.10 C.F.R. 6 50.58(b)(6).1hc Licensing floard will abide by the tegulation a:Al not consider any challenge to a significant haiards considerad n determinadon 1y Staff.1 hat part of the Commission's notice of Aug. 21,1990, reladng to Staff's significant harards consideratkm determinathm, is tryond the scope of de hearing on the proposed amendment.
As to that part of the Commission's notice offering the opportunity for intervention to a person whose interest may te affected by the issuance of the amendment, the scope of the hearing is whether Oc proposed amentment should le gnmted under the applicable law and regulatkm.
C, Commission Guidance I,
Cil 90-8 Petiuoners submitted comments on three license changes to the Shoreham operating license, and each rcquested a hearing. The Commission delayed forwarding the petithms for handling by a licensing board in order to address at the threshold some significant policy questions almut 'he operation of the dec:xumissioning regulatkos tlut had been raised by Petithmen.
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1hc Cor.unisskm has ruled that LILCO is endtled to make an irrevocable decision not to operate Storcham without NRC approval 1he alternatives of resumed operation, or other meduxis of generating electricity, are alternatives to the decision not to operate Shoreham arki thus are beytod Commission consideration in any NEPA review of decommist,loning.1hc Commission has concluded that it has no legal authority, except under spxial circumstances not I
applicable here, to order the (peration of e nuclear power plant? W Staff derefore need not consider resumed operadon of Shoreham as an alternadic
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course of action in any environmental review of decommissioning it performs.
The Commission fourxl that the luoadest NRC aedon related to Shorcham decommissioning will be approval of the deciske of how decommissioning will le accomplished, not whether to decommission. With respect to three licensing nedons then under consideration, it concluded diat NRC's only c<ocern urxler NEPA was uhether the actions wwld prejudice decisions corretning the means of decommissioning.' -
2, Cil 911 In a policy review of LlLCO's alplication for amendment of the Shoreham license, the Cornmission deletmined that the requested "defueled operating lleense," if granted, would convert the Shoreharn operaung license into a lOL.
It also ruled that the request for ICL need not be preceded or accornpanied by either a decommissioning plan, or particular environmental informathm, or
.a NEPA review related to decommissioning. Ilowever, a NEPA review for a IOL may be warranted despite the categorical exclusion, for example, if the IOL clearly could be shown actually to foreclose alternadve ways to conduct decommissioning that would mitigate or alleviate some significant environmental impact. 1hc Commission fotmd that neither NEPA nor 10 C.F.R. Part 51 serves as a basis for linking a ICL with the filing or review of any preliminary decommissioning plan?
3.
Ilcensing floard Conclusion Upon review of CLI.90-8 and CLI 91 1, tic Licensing Board concludes that it is without authority to issue an order for the purpose of causing or preserving I Seesushma 108,156(4, and lit nr the Aumuc Imrgy Act or i9s4. es amended
'ne carrussum afstmed on rensidessunn its ruling m deannm.sskning polwy in Cl2 M s CtJ 912.
sv's 7in making tu polwy daarminsunns. ihe enmrnission amsided amneras trwn IJpA. Dol' C1Q. and stais.
These mnmmters addressed bmsd policy 6ssues reisind to NRC's damneruwanma regulauons tut did na cannment specireally tm the prTnsaf amendment or any si ha subpans, <w an esuier cd the petithmer's parucular han for standmg in esis genceedms-184
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the option of resumed operation of Shoreham. "Ihe Licensing floard will not entertain any issue in the IOL pnicceding for which the relief sought is an order leading directly or indirectly to resumed operation of Shoreham as an alternathe under NEPA.
'the Licensing floard also coacludes that, execpt in special circumstarres which have not teen asserted here, it lacks authority to order an environmental review in the request for a ICL, or the prior filing of a decommissioning plan as a condition for approval of LILCO's request foe a IOL. ~Ihe Licensing Ikiard will therefore not entenain any issue for which that relief is souit t in this h
proceeding.
111. LEGAL ItEQUlitEMENTS FOR INTERVENTION Section 189(a)(1) of the A;omic Energy Act, which provides for a hearing to any person whose interest may be affected by the amending of a license, is implemented in 10 C.F.R. 5 2.714. Section 2.714(a)(1) states that "any person who>e interest may te affected by a proceeding and who desires to participate as a party shall file a written petition to intervene."
Requirements for such petitions are contained in section 2.714(a)(2), which provides:
'1he petition shall set forth with g articularity the interest of the petitioner in the proceedmg.
how that inscreu may lie affected ty the results of the proceedmg. includmg the reaums why petitimer shouk* be permitted to intervene, with panicular reference to the f actors in peregraph (d)(1) d this secakut, and the specific aspect or aspects of the subject rnatter d the proceeding as to which poiuaner wishes to intervene, To determine whether a petitioner has sufficient interest to intervene in a proceeding, tic Commission has held that a licensing board may apply judicial concepts of standing. Portland General Electric Co. (Pebbh Springs Nuclear Plant, Units 1 and 2), CLI-76 27,4 NRC 610 (1976).
Judicial concepts of standing require a showing that (a) th( action sought in a proceeding will cause injury in fact and (b) the injury is arguably within the mne of interests protected by statutes covering the proceeding. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CL183 25,18 NRC 327, 332 (1983). A petitioner should allege, in an NRC proceeding, an injury in fact that is within the zone of interests protected by the AEA or NEPA. Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), LDP 83-45, 18 NRC 213,215 (1983).
In addition, the petitioner must establish (1) that it personally has suffered, or will suffer, a distinct and palpable harm that constitutes an injury in fxt; (2) that the injury can be traced to the challenged action; and (3) that the injury is 185
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likely to be remedied by a favorable decision granting de rehef sought. Dellums
- v. NRC, 863 P.2d %8, 911 (D.C. Cir.1988); see also Nuclear Engineering Co. (Shef6 eld, Illinois Low Level Radioactive Waste Disposal Site), ALAll-473,7 NRC 737,743 (1978).
Ibr an organiration to hase standing, it must show injury in fact to its organiiadonal interests or to the interest of rnembers who have authorited it to act for them, if the organization is depending upon injury to the interests of its members to establish starnling, die (vganiration must provide with its petition identification of at least one member who will be injured, a description of the nature of that injury, and an authoritation for the organitation to represent diat individual in die proceeding. Philadc/phia Electric Co. (Limerick Generatic Station, Units I and 2), LDP 82-43A,15 liRC 1423,1437 (1982).
A petitioner may base its standing upon a showing that an organizadon or its members are within the geographic tone diat might be affected by an accidental release of fission products, llouston Ughting and Power Co. (South Texas Project, Units 1 and 2), LDP 7910,9 NRC 439,443 (1979). Chisc proximity under those circumstances has been deemed standing, akme, to establish the requisite interest for intervention. In such a case, the petitioner need rot show diat the concerns are well founded in fact. Distances of as much as $0 miles have been held to fall within the tone. V/rg/nla Electric and Power Co. (North Anna lbwer Station, Units I and 2), ALAll $22,9 NRC 54, $6 (1979); Duquesne Ught Co. (ficaver Valley ower Station, Unit 2), LilP 84-6,19 NRC 393,410, p
429 (1984).
The Commission does not allow the presumption to be applied to all license amendments, it only does so in those instances involving an obvious potential for offsite consequences. Those include applications for construedon permits, operating licenses or significant amendments thereto such as the expansion of the capacity of a spent fuel pool. *lhose cases involve the operation of die reactor itself, or major alterations to the facility with a clear potential for offsite consequences. Absent situations with obvious lotential for offsite consequences, a petitioner must allege some specific injury in fact that will result from the action taken. Florida Powr and Light Co. (St.1.ucie Nuclear Ibwer Plant, Units 1 and 2), CLI 89 21,30 NRC 325,329 (1989).
Economic interest as a ratepayer (kxs not confer standing in NRC licensing pmecedings. Threr Afile Island CLI 83-25, supra, Ifs NRC at 332 n.4. Dose economic concerns are more properly raised before state economic regulatory agencles. Public kvice Co. rfNrw flampshire (Scabrook Station, Unit 2), CLI-84-6,19 NRC 975,978 (1984); Philadelphia Electric Co. (Limerick Generating Station, Units I and 2), ALAB-789,20 NRC 1443,1447 (1984).
l Assertions of broad public interest in (a) regulatory matters, (b) the admin-istrative process, and (c) the devekyment of economical energy resources da t
not establish the particularized interest necessary for participation by an individ-l 186 l
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ual or group in the rmelcar regulatory adjudicatory pnress. Thirr Milt Island.
CLI.83 25, supra,18 NRC at 332.
IV. RI: QUESTS FOR INTERVENTION AND 'IO 110LD A lil'ARINO A,
SE2's l'osition SE2 claims that it meets all criteria for starxlirig. It describes itwlf as ari organitation dedicated to correcting misunderstandings on fundamental sciendfic and technological issues permeating the " national energy delete" Ittidoner offers its views, based on the expertise of its members, to the public and to goverranental agencies with responsibility for the resolution of crergy issues.
Many of its members are said to live, work, and have pnpeny interests in the vicinity of the nuclear plant SE2 claims Otat the organl>.ation and its members have a special interest in die radiologically safe and environmentally benign operation of Shoreham to provide them with reliable electricity and to avoid Oc subsdtution of fossil fuel plants and their adverse effects, i.e., relying on imported gas and oil which have adverse effects on the physical environment.
Oc trade deficit, and national energy security.
Ittitioner overall views LlLCO's application for a ICL as another effort toward defacto decommissioning of the Shortham plant without an approved decornmissioning plan. SE2 claims that it's a per se violation of the AEA and a heahh and safety violation, it believes that with the relaxation of the Technical Specifications, as re-quested, Lilf0 would be free to allow the facility to deteriorate and to acdvely dismantic systems that are vital to an operating system.
SE2's key point is that Shoreharn's decommissioning is noi a foregone conclusion and that the NRC must complete an Environmental impact Statement (EIS) tefore any such appmval for decommissioning may be given. It argtes that tic EIS must include as an alternadve the operadon of Shoreham.
SE2 further asserts that granung the POL with drastically related Technical Specifications, which were considered necessary for safe operation, would increase the health and safety risk posed by the plant should the resumed-operation alternative ultimately be pmsued.
In summary, peutioner concludes that a Staff. approved decommissioning plan is required prior to the issuance of a POL; Otat prior to the issuance of a POL, Oc Staff must issue an EIS; and the EIS must consider resumed operation as an alternative decision to decommissioning the facility prior to the issuance of die IOL.
petitioner also claims that Litf0 has failed to maintaM the reactor at a full operational level and that Licensec by not abiding by its full power operating license had increased petitioner's radiological health and safety risks. SE2 stated 187 j-w w
3
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llut the pro;vsed amendment would only further compound the risks. Petitioner siews the granting of the amerkiment as an endangerment to the rmhological health, safety, and other interests of its members umler the AliA and NEPA.*
Sli2 secks organtiational standing asserting, later alia, that the Commission interferes with its informational purp>ses by its refuwl to corkluct a NEPA study, which Apives the organitation of its ability to carry out its organi/adonal purgises. Its Executive Director is a signer of the Ivtition.
SE2 asserted that it is injuicd by Staff's refusal to prepare an EIS on the decornmissioning of Shoreham because that deprives Petitioner of the ability to:
(1) cornn ent directly on the environmental report prepared by LILCO arxl the Draf t tilS prepired by the Staff;'(2) advise its members of the environmental risks involved with each alterrutive explored by the environmental studies; and (3) report the findings and rnommendadons based u;cn the environmental evahiadons to the public and pilitical leadership as set forth in SE2's charter, Petitioner cites in support of its posidon Competittue Enterpfl3r inst. v.
National //ighwy Traffic Sqfety Adm/n.,901 P.2d 107 (D.C. Cir,1990), for the proposition that organizational standing is established whenever the agency's action interferes with the organization's informational purp>ses to the exterit that it interferes with the organization's activities.
Representational standing is sought on the basis of five named individuals with mailing addresses in Shoreham, l' ort Jefferson, and Westbury, New York.
'lhey are said to live and/or work arkt have property interests within a 50-mile radius of Shoreham and have an interest in whether the proposed arnendmcut provides reasonable assurahse of their radiological health and safety under AEA atxt whether tie decision on the poposed amerklinent and the larger decommissioning proposal, of which it la a part, is rnade in accordance with
- NEPA, Members have un interest in obtaining sulficient amounts of electricity at reasonable rates, They are concerned that dismantling Shoreham and building substitute oil or gas burning plants will delay any increase in energy production capacity and increase costs w hkh will be passed on to the ratepayers. SE2 secks to protect its members from adverse health consequences that would result from the substitute oil burning plants.
'Ihe specific aspects that SE2 states that it wishes to intervene on include:
the adequacy of the evidence to stipport a grant of the proposed amendrnent; 8 on october 10, 1990, ech Peutimer f&ti e denment utled "surytemmt to Commmta on Popsed No sigmricara narards Iktermtnaum. Ptanian ic Imervas, sad Request for neanns" 1%umers assen that t riro, on August 21,1990, s<aight to diange Ow h k cat spenfnatans by rermw mg en indrpendora er3gmaaring gvoup previesly datermtned by NRC in be samtis) to laensed actmues lhey allege that by this regaest "1.1100 secha remmel ed this linpanant mecharwr, Ah is reqmred to samurs the safe conduct d all twenned acuvities, regardices sd whrsbar slenacity is prmhed*
'No Dieft lits was propaved by the stafr,1%tiumer's assuuan is a reprai or that fonde in its pnnr peutms to tmervene m aher changes to the shoreham twenne 188
- ~
u resumed plant operation; (kcominissioning; the need for a dwommissioning plan; the no significant hazard consideration standards arxl determinadon; whedier the prop > sed changes would endanger the pubhc health and safety or be inimical to the common defense and security, now or in the event of full powes operadon; and whether the amendment will sette a useful purpose proportional to die quantities of special nuclear material or source rnaterial to be possessed.
Further,Itutioner sects to have a full arxl fair NEpA consideration of what it terms the decommissioning proposal and considers the instant applicadon to j
be an interdeperxlent part. It lists eight aspects under NEPA on whlLh it f.ccLs to intervene.
Ittidoner seeks ten remedies in the pniceeding. 'Ihc first two involve requesting an order permitting Itutioner's intervendon arxl directing a hearing on the issues presented, ne others are far ranging. Dey caterxl from requesting an order to bar Staff, pendente Iire, from issuing the proposed amendment in order to allow for Licensing floard review of the issues, to requesting the C(wnmission to stay the effectiseness of any final decision of a no significant ha/.ards determinadon, until 10 days after publication of that final decision in the federal Register, in order to allow Itudoner to seek a court determination.
- 11. Staff's Respon',e to SE2's Petition on the POL Staficontends that SE2 has failed to show that the proposed amendment may reasonably be fourxl to hase some adverse impact upon any interest Petitioner may have identified; and that SE2 has failed to sho" diat such injury can fairly be traced to the challenged aedon, or that such injury could be redressed by a favorable decision in this proceeding.
Staff kxAs upon Petitioner as having an acadernic and an economic interest, neither of which contributes to standing. Staff asserts that die petition falls to identify how the proposed amendment would have a direct and adverse impact on SE2's cognizable interests. It states that Petitioner's interests do not relate to the proposed IOL, but to the abatxionment of Sixircharn which SE2 claims may be returned to operation at some future date. Staff states that Ittilioner does not contend that the public health would be endangered by Franting die instant amendment but that the amendment would cause undue deterioration of die facility and increased costs, if die Licensec should seck to commence full-power operation, a matter not at issue. Staff further states Otat Ittitionct's bare allegation of adverse impacts is insufficient to demonstrate a potential adverse cffeet upon its interest and does not confer standing.
Additionally, Staff argued that (a) a IOL may issue before a final decommis-sioning plan is finalired or approved and (b) the proposed no significant hanirds consideration (k)cs not permit a hearing on that matter, 189 m.-.
_,_,m_
i C.
Lit.CO's litsponse in SE2's Petition on the POI, LILCO op[uses SE2's petition for intervention and a hearing, Iicensec asserts that Petitioner must specifically allege Out granting the amendment presents a radiological health and safety threat cognit.able untk r the AEA. It is not etiough to advance vague, un[wticularited allegations that the proposed amendment wuld siolate the AEA, as Petilkoct has done. LILCO alleges that SE2 never explained how the license arnerkiment dat is dmcted toward the shukkswn of Shoreham increases their radiological risk.
Licensec disputes Petitioner's claim dut NRC approval of a full decommis.
sioning plan is a prerequisite for issuance of a IOL and that granting the license amendment might present a radiological health and safety threat should some future deciskm te made to operate Shoreham. Licensec states that the latter clahn is not relevant because it concerns the hy[vthetical future operation of Shoreham.
LILCO contends Out even if ittidoner's speculatkm proves true regarding die need for building fossil fuel plants, because of the shutdown of Sinircham, NEPA does not require either an assessment of the alleged indirect effects of die plant's abandonment or a discussion of the alternative of plant operation.
Lil CO argues that the decision tot to operate Shoreham is its own private decision and not a major federal action Out is governed by NEPA, Licensec states that it will not operate the plant irrespective of whether the amendment is granted.
D.
School District Position School District's petition differs from Omt of SE2 only insofar as the description of the Petitioner, its organizational purpose, those whom it seeks to represent, and the nature of their interests, its petition differs from Out of SE2 as follows, School District alleges that it seeks intervendon in order to protect die interests of School District, its students, and employees.
'the School District is reported to be atout 12 square miles in site with the Shoreham facility kicated within its boundaries, Ittitioner asserts that it is krated within the 50 mile limitation used by the Commission to determine whether an intervenor, expressing contentions under the health and safety provisions of the AEA, has an interest suflicient to allow intervention.
Petitioner depends on LILCO to meet the energy needs of its physical plarit which includes five schools, School District's stated interest is to ensure an adequate supply of electricity at reasonable rates. In its view, any actions to dismande the facility, and to build substitute oil burning plants, will harm the region's electrie energy production capacity and increase rates. Anodier 190
ecorkimie interest of the Scinol District is that the ;woperty tases paid by LILCO for Shoreham constitute appnnimately Wt of School Dirstrkt's las ime.
Stinel District also claims that it has an interest in protecting the health and envir(vunent of almost 2(KU students and $(O employees, who live arul/or work in thisc proximity to die Sh(veham facility, from the radiological imiucts of the proposed amendment and the adverse health arki oder envimnmental consequences of non4>peration of Shoreham. These are said to te air pollution praluced by substitute oil arxl gas plants.1hc harm is said to be cognitable under NEPA. It seeks representatiotal status for the President of the Itoard of Iklucadon, a resident of Wading River, New York. lie was a signer of School District's petition.
E.
Staff's and Lil.CO's Responses in School Dhtrict's Pethion Staff and LILCO cach filed a single response to both petitions. Their respomes did not identify any significant diflerences between the petihons. In effect, they resporaled to Imth petitions in the same way, l'.
Licensing Iloard's Huling on SE2's Petition on POL
- Ihe Licensing floard finds dut SE2 has failed to satisfy the requirements of 10 C.F.R. I 2.714(a)(2).
Ittitioner, as an orgaalration, has not established that it will suffer a distinct and palpable harm that constitutes an injury in fact. Its organitational interest is educational and informational in nature on the subject of the " national energy debate.
SE2's principal claim of injury is based on F,iaff s refusal to prepare an EIS on the decommissioning of Shoreham, Petitior cr etates ihat this deprives it of its right to comment directly on the EIS, to advis* its members on its meaning and l
to make recommendations to the public and political leadership on lYdtioner's cvaluation of the EIS.
l l
'The Commission ruled in CLI 91 1 that the POL may be issued without any l
envinomental review. Ittitioner does not have a cognirable claim of injury
(
where Staff did not preparc an EIS, an action the Commission found that Staff is not required to perform. Staff's failure to prepare an EIS is a nonissue.
Petidoner's claim of organizational standing based on Stalf's refusal to conduct a NEPA review, which SE2 states interferes with its organliational purposes i
and activides, was rendered moot by the Commission's action denying the need for the NEPA review,
'The Commission was very clear in CLi 91-1 in denying SE2's claim that a Staff approved decommisskming plaa is required prior to tie issuance of a POL; l-1 191 l
t
f that prior to the issuance of a POL, the Staf f must issue an 111S; and die i IS must consider resumed operation as an alternauve detisson to demurnissioning.
'1he Commission's action deprived Petitioner of the nudt imputant tuses of its claim for intervention.
Furdictmore, Pet tioner's broad public educational and informahonal interest, urxler Conunission decision, does not establish de particularized interest neces-sary for participation in the adjudicatory process. 7hrre Afile hlarki, CLi 8b25, supra,18 NRC at 332, SE2's petition is addidonally defauve in diat it has failed to identity any particular injury that can be traced to the cha"anged action. Driturris v. NRC, 863 F.2d at 971.
1hc matter at issue in the POL arnendment is whether the changes requested in the T:chnical Specifications can be accomplished without endangering public health and safety. SE2 did not identify within the scope of the [voceeding any particularucd injury that would stem from this proposed action.
SE2 claims that injury would re.sult from the relaxation of die Technical Specifications tocause it would cause plant deterioration and be incornpatible with maintaining the plant in an operutional nate, which is necessary should resumed operation ultirnately be pursued. This alleged injury is also a snatter beyoml Hic scope of diis proceeding. The Commission, in CLIJXb8 and CL1-91-1, ruled out conshieration of any alleged injury reladng to resumed operation.
SE2 r' 9 makes a bare allegation piat Licensec, by not abiding by its full-power operaung license and by reducing the Technical Specifications require-ments, increases rmliological health and safety risks.1he proposed amendment is directed at shutting down a defueled non operating pla,t. To make such an assertion without identifying a particulari7cd injury diat may be caused by the proposed amendment results in failure by Ittitioner to establish the necessary elem:nts for standing. Dellums v. NRC, supra. Also, no nexus was shown between the proposed amendment and the alleged harm from de future con-struction of substitute fossil fuel plants.
As to representational standing, SE2 has not stated that its organitational purpose provides authority to represent members in adjudicatory proceedings such as this one. Even if this can be inferred from the fact that its Execuhve Direchir is a signer of the petition, SE2 has not satisfied the requirements for representational standing.
Petitioner states that the five members wham it seeks to represent have audiorized it to do so.1 heir interests were not broken down individually but wen: stated collectively by Ittitioner, Ibr an organizadon to rely upon injury to the interests of its members, it must provkle, with its petithin, identification of at least one of die persons it secks to wpresent and a description of the nature of injury to de person, and it must demonstrate that the person to be represented has in fact authorizcd such 192
representation, limerirl, LitP-82-43A, supra,15 NRC til 1437. No supimrting statement containing that information was sulunitted from any member sought 3
to be represented, as is required, Altiniugh the memters are said to live arxl/or work and have property interests within a 50-mile radius of Shoreham, these facts do not create a presumpuon of standing because it is not a ;roceeding for a construction permit, an operaung license, or a significant amendment that would invohe an obvious potential for offsite consequences. St. Lucic, CLI 89 21, supra.
Shoreham is a defueled nuclear power plant that has not been used commer.
cially. To satisfy starnling requirements, it would have to be shown by SE2 that a member's particulariied injury in fact results from the pro [used related Technical Specifications that were for a full power op; rating license. Under the proposed amendment, Licensec could not operate the Shoreham plant. Petiuoner has failed to make this necessary showing for itself, or its members. Merely making bare allegations of radiological harm, as previously discussed, is legally insufficient to establish standing.
1 As to SE2 wanting to protect its members from alleged au,erse health consequences that would result from substitute oil burning plants, there was no nexus shown tetween the proposed amendment and the alleged resultant construedon of subsdtute oil burning plants and the harm that would be created.
Memlet interest, in part, is described as obtaining sufficient amounts of electricity at reasonable rates. It is very well setded in Commission practice that a ratepayer's interest does not confer standing in NRC licensing proceedings.
SE2 has not established the requisite interest for standing, organizationally or representationally, A petidon to intervene must contain the specific aspect or aspects of the subject matter of the proceeding as to which petitioner wishes to intervene.10 C.P.R. 6 2,714(a)(2),
Petitioner submitted three groupings of aspects. One grouping is general in nature and overlaps a second grouping that relates to AEA issues. De third grouping pertains to NEPA issues, NEPA is not at issue; therefore, those aspects are inappropriate for this proceeding and will not be discussed funhet.
As to the remaining aspects, there were a sufficient numter to sausfy the aspect requirements of section 2.714(a)(2), %cre were others that are tryond de scope of the proceeding.
Those aspects that relate to the subject matter of the proceeding include:
whether the proposed changes involve a significant increase in the probability of an accident previously evaluated; whether the proposed changes create the poss:bility of a new or different kind of an accident previously evaluated; and whether the proposed changes involve a significant reduction in a margin of safety, Also included as acceptable aspects are those involving the adequacy 193 l
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of the evidence to suplort a grant of the application and whether the proicsed changes would endanger public health and safety.
At this stage it is premature to determine whether questions invohing common defense and security and whether the proposed activities serve a usef ut purpose proportional to the quantities of special nuclear material or source material to be possessed will be at issue in the proceeding.
Dose aspects set forth by the Petitioner that deal with decommissioning, resumed operations, and the Staff's no significant hazards consideration (e-termination ure not relevant to de issues in tic proceeding and will not be considered.
As to the remaining issue of Petitioner's ten requests for relief, no ruling will be made at this time because it has not established standing in this pmceeding.
G.
Licensing floard's Ruling on Sch(xd District's Petitiori ori POL
%c School District's petition is identical to that of SE2 in many areas. To the extent that the two petitions are the same, vec make the same rulings we did on the SE2 petition. We will discuss those areas where the peutions differ and rule accordingly.
%c Board firxis that Schont District has failed to satisfy the requirements of section 2.714(a)(2) to establish standing.
School District's organitational interest is that of a ratepayer and a tax recipient. These are economic concerns llut are outside the Commission's jurisdiction. nc Commission has no regulatory responsibility for rates and tax distribution. They do not sonfer standing in NRC licensing proceedings and, therefore, School District has no basis for organl/ational standing.
As to its ret resentational standing School District wishes to protect the health and environment of its employces, one of whorn has been identified as the President of the Board of Education. Ile is a signer of the petition and his address is Shoreham, New Yoi Ar',ain, the fact that the individual may reside or work in close proximity to die nu:Icar facility does not create a presumption of standing. There is no obvious potential for offsite consequences where the actia complained of requires that the Licensec not operate the plant.
%c School District's petition, like that of SE2, fails to particularize any injury, within the scope of the proceeding. that it can trxc to granting of the POL. Any alleged harm relating to abandonment of Shorcham, failure to maintain the facility so that it can resume full-power operation, the need for a NEPA review, and restart of Shoreham as a NEPA alternative are all beyond the scope of this proceeding.
%c bare allegation of employee adverse health and safety effects stemming from the proposed amendment does not establish necessary elements for starxb 194 4
~ -.
ing Dellums v NRC mpra School District has not parueulatired a distinct and palpat le harm that constitutes an injury in fact not (k>es it trace such injury back to the challenged aedon, under which Licensee could not operate the Shoreham plant %c rnere allegation, without specifics, does not meet the regulatory re.
quirements.
School District has failed to establish the requisite interest for standing, organizationally ot representationally, 1
Y.
CONCLUSION De lloard having reviewed each "Itution to Intervene and Request for licating" has determined that Ittidoners have failed to establish standing, as required by section 2.714(a)(2). De deficiencies that have been found to exist have teen discussed in detail in this Memorandum.
Itudoners have, for de most part, based their cases on the claims that the IOL is part of the defacto decommissioning of Shoreham; that the ICL application should be preceded by a decommissioning plan; that prior to the issuance of a POL Staff must issue an EIS; and that the EIS must consider resumed operation as an alternative to decommissioning tecause it is a viable alternadve, %c Commission's policy decisions in CLI 90-8 and CL1912 stripped away Ittilloners' main argrmmts for standing.
Pcutioners did not have the bene,'.t of the Comtnission's two precedential policy decisions at the time they filed their petitions to intervene, ncir pedtions focused on matterr that the Commission subsequently determined to te beyond the scope of consideradon in this proceeding. Tlw Licensing B<urd concludes that tecause of these circumstances lttilbners should te afforded the opportunity to amend their pedtions to intervene to take into account tic recent Cornmission decisions and the deficiencies in their peutions that are specified in this Memorandum, his conclusion is predicated, in lurt, on the Commission tw:ing rather liberal in permitung petitioners the opportunity to cure defective petitions to intervene. It has donc so on the tuses that, "the particliution of intervenors in licensing proceedings can furnish valuable assistance to the adjudicatory process " Virgirda Electric and Powcr Co. (North Anna Ibwer Stadon, Units 1 and 2), ALAB 146,6 AEC 631 (1973).
Order Based upon all of the foregoing, Ittidoners are afft.,cd the opportunity to amend their peddons to cure the defects found by 11L Licensing Board.
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Amernica [Klitiotis are required to lie bled within twenty hvc (25) days after service of this Order.1.1100 shall ble its resixvise within ten (10) days ol' u rvice of the amernied petitions, and Stafi shall luse an addilitutal five ($)(Liy s within which to res[xvut.
I:OR Tilli NIOMIC S AlliTY AND 1.lCliNSING llOARD Morton 11. Margulies, Cnairm::1 ADMINIS11tATIVi! LAW JulX]I.
liethesda, Maryland March 6,1991 196
Cne as 33 NRC 197 (1991)
LBP-914 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING DOARD Defore Administrative Judges:
Ivan W. Smith, Chairman Dr. Richard F. Cole Dr. Kenneth A. McCollom in the Matter Decket Nos. 50-443-OLR4 50-444-OLR4 (ASLDP N.',0-620-04-OLR4)
(Offsite Emergency Planning)
PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, of af.
(Seabrook Station, Units 1 and 2)
March 12,1991 MEMORANDUM (Certifying ALAB 939 Question)
I BACKGROUND ALAll 924 in ALAB-924, 30 NRC 331 (1989), the Appeal Board remanded to this Board an issue concerning impicmentation of the sheltering option for the general summer beach population near the Scatrook Station.8 The Appeal Board explained that, notwithstanding the low probability of employing sheltering as a protective action for the transient summer beach population, so long as sheltering IThe remanided issues were m reyww imm the Punial tnnial Decuust on the New llamphire Radu*gical Enwramcy Rusnmse Plan,111P 8842,2A NW' 667 (19881 197
remains an option under the NilRERP, respective implementing measures are required. 30 NRC at 32.
LilP.9012 In obedience to ALAll-914, and in disposing of related motions to reopen the record,'this lloard repor'ed that the New ilampshire Radiological Emergency Response Plan (NilRERP) does not provide for actually shelt%ig the general beach population, Rather, the plan employs a " shelter in place" concept.2
% noted that Richard Strome, then Director of the New llampshire Office n Emergency Management, had explained how the " shelter in-place" concept would be implemented:
New Ilampshire emphrys the "Sheter in-Place" conces.1his prtrvides for shchering at the locatitm in which the sheltering instruction is received. 'those at htune are to shcher at htune; those at work or schswd are to be shchered in the workplace or idxx4 buildmg.
Transients located indoors or in private hennes will be asked to shdier at the locations they are visiting if this is feasible. Transients without access to an in(kxir kration will be sJvised to evacuate as quitkly as possible in their own vehides (i.e., the rhiclea in which they attived). Ikparting transients will be advisc41 to close the windows d their vehides 6*] use recirculating air until they have deared the area subject to radiation. If necessary, tranatents without transportation mty neck directions to a nearby public buildmg frorn h> cal emergency workers. (NilRERP Vol 1, p. 2.64)
LilP-90-12,31 NRC at 444, citing Applicants' Direct Testimony No. 6, ff. Tr.
10,020, Ap;rndix 1, at 4 5.
We al30 reviewed the rare circumstances that must prevail before the " shelter-in-place" option would be the most effective in achieving maximum dose reduction under a " condition (1)" scenario.$
2 Memorandum and Orde (Rulirts un Censin Remanded and Raferad lasues), t. bpm 12. 31 NRC d27 (1990).
Incas circunutances arms (1) De relesse unust be nmpardculate (gamus) and of shon dumtion, his is most often mfermd to as a " puff" miesia.
(2) %e release rnust be pmheted to arnve at the beach within a platively ahon time period, when, because of a lars;e beach population, the evacuatmn ume would be signiricantly longer than the exposure duration. %s purpose is to avoid a anuation in whidt a shelkred ppation wmld he esposed or mesposed to rndioactive panicuatra deg:mited on the gmund (gmundanine) dunng their sutmequcnt, pmtrelease eat:ustion.
(3) Dere annot hsw been rn earher order for headi cloning tv evacuation.
(4) And eront imponent of a!!, emergency decisiestmders m. art huwr in eJwmce wisA streng ce# ace that all of the sevent clemems calling for actual sheltering are and will remain peacnt throug'unn the emergency.
3t NRC at 44041.
I We also suaed an important aspect of item (4) above. SheNr-inface will not be an opmn whenever the l
poternal mnains val a later evacuation of the beach area would be required. Il at 45152; Tr. 28,361-R t
i 198 i
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Aftca reviewing the evidentiary record and posthcaring informadc1, the Li-censing Board sought further guidance from the Appeal Board. We reported diat " actual sheltering of the general beach population is a vanishingly improb-able protective action choice under the N!!RERP" and stated that there was no need to amend the NilRERP to include implementing detail for sheltering diat population. LBP 9')-12,31 NRC at 453 54.
We also noted that a review of the record following the remand in ALAB-924 disclosed uncertainty about some details of the NilRERP, Although there was no significut safety issue remaining, we suggested that the Appeal Board might consider supplementing ALAB 924 by providing greater discretion to the Licensing Board to resolve any remaining uncertaintier Id.
Subsequently, after considering forther information and discussing with the parties aspects relating to " condition (2)" (impediments to evacuation), the Licensing Board recommended that the refemis :o the Appeal Board in LDP.
90-12 be vacated and ruled t! at the issues riananded in ALAB-924 had been resolved.*
ALAB 939 In ALAB 939, the Appeal Board declined to accept our.eling t at the shel-h tering issue remanded in ALAB-924 had been resolved, alu~ogh it recognized that the need for implementing detail for sheltesing "has for all practical pur-poses been vitiated." 32 NRC at 178-79. Ir. stead, the Appeal Board adopted our earlier suggestion that we be afforded greater discretion to resolve uncertaintics in the record.8 Ilowever, the Appeal Bo ird identified its own set of uncertainties in New Ilampshile's planning for the general beach population:
IW]e find it incumbeat upm the Licensing Board to ensure that, as a cmsequence of evidence previously sulunitted by amlicswas in the course or the hearing, several related mauers are cit. : lied. First, because the evidence presented by applicants indicates that automobiles are assigned no cloudshine shehering value by plannea, the Iloard should ensure that the record cnntains an adcountely supponed esplanation for distinguishing between those pontransportation-dependent beachgacrs already within a tuildmg. who witl be directed to shcher, sad all other beadigoers, who will be directed to go to their cars and evacuate, in terms of camdition (lys prpose of utilizing sheltering for " achieving maximum dose reduction." In addition, given t, estimony by New llampr. hire emergency planning officials suggesting the need to distin;msh between suitable and unsuitable shelter, the Licensing
!!oard should emure that the r; cord is clear as to whether sus measures are necessary relative to the "shcherdn-place" glion as now described by the State. Finally, given amlicants' evidence acknowledging the centralimportance of quality emergency notificatim messages, the licensing floard shmid ensure that any Ells / beach public address message proposed for
~ 'IJiP-9420,31 NRC 441,585,588 0990).
832 NRC at 179.
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use relauve to condition (1) makes clear the steps that au members of the bendi population are to take in the event that o *shcher-in place," as now described by the State,is reannmmded.
32 NRC at 179-80 (citations and footnotes omitted),
his Board sought the advice of the parties on how to proeecd with the clarili-cation required in ALAll 939 Responses were filed by the State of New llamp-shire,' the Federal Emergency hianagement Agency,' NRC Staff,' Licensecs,'
Intervenors New England Coalition on Nuclear PolluCan and the hiassachusetts Attorney General, and Seacoast Anti Pollution 1.rague." De parties joined the Board in a telephoned prehearing cor.ference to discuss the responses.32
- 11. PARTIES' POSITIONS ON ALAll 939 AND ANALYSIS De State of New Ilampshire, FEh1A, and the NRC Staff now state that there is no " shelter.inf ace" provision in the NIIRERP fo-ERPA-A, the area within l
2 miles of the Seabrook Station including the beaches, Rus, according to the government parties, the premise of ALAB-939 is incorrect, Licensees adopt the same position, and argue further that the clarification of the first two items required in ALAB-939, while irrelevant, can be found in the evidentiary record, The Board initially perceived a chat.;;c of position on the part of New llampshire and FEhiA, and as we explain below, there has been at minimum, a change in focus. Interve: ors would ignore eny such change and seek to litigate the three areas seen by the Appeal Board as needing clarification.
New Ilampshire's Evolving Position Early in 1990, in attempting to comply with the remand in ALAB-924, the Board evidered the comments of the State of New Ilampshire and the affidavits of New llampshire's leading emergency planning officers," We regarded some portions of New Ilampshire's comments to be " enigmatic," including the following identical portions of the affidavits of the Emergency hianagement
- M,rnorandum of the State of New llampshue on AIAB-939, Januity 10,1991.
7 Advice or the Federst Emergacy Managenent Asmcy Reganhng Issues Raised by AIAll 939, January 11,
- 1991,
'NRC start Views a Mauses Refened to in AtAll 939, January 11,1991.
'liemaces' Raipanse to the Memmandum and Order of Nrwember14,1990 of the Atrunic Safety and L.icmsmg noard Re ALAB 939, January 10,199L 10Memorandura or the traervmcas en the Remanded SheJtenna laaues, January 10, IN1.
" sAPL Response to Memorandum and onier of Noven.oer 19,1990 Re: AtAn-939. s APLis nra authorved to pai.icipate in poceedings berars thia Board and its responn was n<a considered.
12 Tr. 28,4s3 99, January 23,1991.
U staie of New Itampshire's Commets Regardmg Agyhcara's Resymne to IJcmams Board order or January 11,1900, Fetuusry 16,1990, with Ivenon and wallaae Amdavits enached.
200
Director, Mr Ocorge L. Iverson, and the Pubhc llcalth Director, Dr. William Wallace:
- 4. Where implemernation of prttective actim is deemed appnpriate (i c. - a prognosis d detteasmg stality to mitigste the emergeswy at the plant) evacuation is prefstrad and generally will be the sdected protective action quion. See NIIRIRP Rev. 3,2/90, Vol.1,
- p. 2411,
- 5. The October 1988 ameralments to the NIIRIRP confirmed the procedures underlying this protective adion (ptim by chminating a shdier.in. place rectrnmendation for ERPA.A
- henever the pswential remains for a later evacuation of the beach area.
6.1he planned pnxective actim for IRI'A.A in the event of declaration of a General lanergency is evacuation, liowever, the (ption of recommending shcher.in place for IRPA.
A mus nor practated by the amendments to the NilRERP in October 19R8 or in any subsequent amendments or revisims, lhe shelter in place (gtim remains for the so.
cslied " ruff release" scenario, and may also be caercised when physical impediments make evacuation impossible.
7, The shcher in-place tytion is affirmed by the pnnisims of the NilRERP which: (a) permit cimaideration of a recarnmendation of shelter.in place of ERPA.A in the event of a release of radianctive material at she Site Area Ernergency (NilRERP Rev. 3, Vol. 8. Sec.
7, p. 6.17), and (b) allow for recon,mding theher.m place of IRPAs (ther than IRPA.A at the General Emergency (NilRERP Rev. 3. Vol. 8, p. 6.18).
31 NRC at 451-52 &mphases added).
Also at that tin, counsel for tic State affirmed that the "N!!RERP provides for sheltering the general beach population in two very limited cirrumstances:
[ Condition (1), and Condition (2)],"" Again, on May 28, 1990, counsel for New llampshire informed the Appeal Board that the shelter in place option has not been precluded for the Condition (1) (puff release) scenario providing that several appropriate preconditions "cannot be categorically ruled out,""
Following ALAB-939,~ in response to our requcA for advice, the State of New llampshire stated that it " reaffirms that with respect to Condition (1), the short duration nonparticulate gaseous puff release, evacuation - not shelter-in-place -is the planned protective action.""In surinort of this reaffirmation, New 'lampshire refers us to its two 1990 pleadings, supra. Thus, according to the State, it is not necessary to be concerned with the dose reduction factor of autonmbiles Nor is there any need for an EBS message addressing a non-existent shelter-in place option for the beach population "
H New Itamphire's February 16,1990 Comments at 2.
"Conwnents of the State of New llampshire Regardmg NilRERP shchenng and IEPW12, at 2-3, May 28
- 1990.1his pleading, rtled with the Appeal Dostd, was reriled with the 1.icennna Itoerd with New flampshire's Memorandum at May 31,1990. This information was provided to us in anuetretmn of the Hoerd's pnheanns cmference of June 5,1990, and in part, persuaded the Board that the sheltenng issue runandal in AI AD-924 had been resolved, L.HPM20,31 NRC at 585,588.
l* Menmrundum of the State of New Ilampshire on AI AH-939, isntary 10,1991, at 12 (emphasis added)
UNota 16 ugwa.
201
~ --
As to whether New Ilampshire has changed its position from the ALAB-924 remand to the ALAB/>39 remand, we note that Mr. Iverson and Dr. Wallace did in fact state in their February 1990 affidavits that "[t]he planned protective action for ERPA A in the event of declaration of a General Emergency is evacuation." llowever, the Ic. lance of the same paragraph states that " shelter-in-place for ERPA A was not precluded" t y relevant amendments to the NIIRERP, and that the " shelter in place option remains for the so-called ' puff release' scenario... " F,201, supra,16. Moreover, New liarapshire's counsel then vic'ved "[e]vacuation as the preferred (not planned] protective action for the beach population."'8
. As noted, in examining the matter pursuant to ALAB-939, the Board per-celved an evolution in the positions of New llampshire and FEMA on the L r.h shelter in-pl&c issue
'IY. 28,462. Queried by the Board, counsel for hes llampshire explair.ed that any difference between the State's position following ALAB-924 and its present position on ALAB-939 is one of focus. 'n. 28,466-67.
Counsel reemphasized that since October 1988, evacuation is the only planned protective action for ERPA A and that the references to " shelter-in. place" for that area are simply an indication that shelter in-place is not precluded if "cir-cumstances that we can't foresec arise " Tr. 28,467 48, 28,487-88.
FEMA's Evolving Position On February 16, 1990, FEMA explained to th appeal Board that "the
' shelter-in-place' concept of NiiRERP has since it least February 11, 1988 called for the transient beach population to evacuate and for the people indoors to remain indoors.""
Again, on May 30, 1990, FEMA informed this Board that we correctly understand (in LBP-90-12), that the shelter-in-place concept in the NIIRERP would call for"immediate evacuation of all the summer teach day trippers with their own transportation and without access to shelter." FEMA explained again that people in buildings or those who may enter buildings immediately without direction from officials would utilize those buildings as shelter?
But in its pleading of January 11,1991, in response to our request for advice on ALAB-939, FEMA stated that "it is impossible to have the combination nf events to constitute ' Condition 1* because the requisite certainty will never exist that a given accident will not get worse" Therefore, FEMA states that it has
" May 28.1990 Commenia at 2.
"Respnnae of me Federal Emergency Management Agency to Emersecy Moum d the Intervenors to been the Recm1 as to the Nerd ror sheltenng in Cenam Circumstances. February li,1990, e. Su abo id et 3,4 2 Memorandum er the Federal Emergency Man 4gement Agency Reganhng Resolution or AL.AB 924 lasues, May 2 im..t 1 202
approved the NiiRERP with Oc interpretation that evacuation, not shelfrr-in-place, is the protective action for ERPA A at a general emergercy. 'lherefore, accordmg to FEMA, it is unnecessary to address Oc first two issues sent down in ALAB 939, and is not necessary to have additional Ells messages for a Condition (1) scenario. Condition (1), FEMA repeats, is " entirely Ocoretical and will never come about at a Ocneral Emergency for ERPA-A."2'
- While FEMA disavows any substantive change of position on the beach sheltering issue, FEMA's counsel acknowledged that its carlier position "wasn't as clean as it needed to be." Tr. 28,466-67. FEMA now focuses more sharply on aspects of the issue that came to light in connection with our inquiry in respcmse to ALA!1-924. First, FEMA cites to our findings that "so long as the potential remains for a later evacuation the State of New ilampshire states that it will not ever recommend shelter in-placc."8 New in ITiMA's position is the reali7ation that a Condition (1) scenario is categorically ruled out (as compared to extremely improbabic) at a general emergency in ERPA A since a later evacuation can never be ruled out. '11. 28,46647.
NRC Staff's Position
'lhe NRC Staff, responding to the Board's request for advice on the ALAll.
939 issues, states that "[t]hc NilRERP, approved by FEMA, provides for q
evacuation, and not shelter in-p ace, as a protective action for ERPA-A in a Oc..cral Emergency." Moreover, according to the Staff "(all the very most, die shelter in place concept for the beach population is merely an unplanned ad hoe option available to the State of New Ilampshire."23 Ily way of analysis, the Staff reviews the unlikely set of circumstances needed to establish a Condition (1) event and concludes:
"the occurrence of the combinatim of circumstances in the Condition I scenario (tr cludmg strong conndence in the fact that the clernents that call for shelter will remam constant) is so unlikely as to be, for emergency planning purposes, a null set.
See supra note 23, Licensees' Position Licensecs have acceded to New llampshire's interpretation of its own radio-logical emergency response plan since th State challengad Licensecs' interive-21FDtA Advice, January 11,1991, at 2-3.
22 14 at 2. cinag 1.nPM12. 31 NRC at 452.
21NRc start Views on Matters Rarerred in AIAn-919. January 11,1991, at 1-2. streac insst alue. Tr.14.241 (Keller).
203
tation of the Octoter 1988 amendments to the plan," Licensees now adopt New llampshire's position that there is no need for an EBS/ beach public address message atout sheltering," llowever, Licensees offer advice respecting the first two items sent down in ALAB 939. as we discuss telow under Section 111.
Intervenors' Position Intervenors argue that the present record does not address any of the issues sent down in ALAB-939 and that a full-blown hearing with discovery is required.8 'Ihe Board discusses the merits of that position below. For now, out attention remains directed to the current provisions of the NilRERP with respect to shelter-in place in ERPA-A, In general, intervenors attribute to the NilRERP not only its express provisions, but impute to it inferences to be drawn from what State officials and FEMA have said about the plan as we have discussed above? Ilowever, as we note in the next section, an'ervenors have joined in a stipulation concerning which portions of the NIIRERP are relevant to resolving the issues before us, Ill. FURTilER ANALYSIS Foilowing the prehearing conference of the parties, the Licensing Board nc:cd the need for a common, clear understanding and identification of the relevant express provisions of the NIIRERP as it has evolved since August 1986 -
the version received into evidence as Applicants' Exhibit 5 We noted that there are important distinctions to be made among, for example, (1) the express provisions of the NIIRERP,(2) State and FEMA interpretations of the express provisions, and (3) protective actions, possibly reserved as ad hoc options, that are not precluded by the NIIRERP, We directed the Licensee to prepare a com-mon reference document containing the relevant protective actior.s for ERPA-A showing changes from the August 1986 versions of the plan.28 Licensees sub-mitted such a document (hereinafter " Reference Document") on January 28,
" Anticants' Advice to Ixensma Board Re Ermnams statements in Appheants' Respmse to licensing floard order or January 11,1900, February 16,1990.
"ljeerwees* January 11,1991 Response at 1 8Memorankm or the Intervaars an the Rcmanded shchering lasues, January 10,1991.
" Response or the Mass Ao and NTCNP to the licensing Board's order of January 24,1991, February 14,1991.
" Memorandum and order, January 24, 1991.
204 1
- 1991." Wr the purposes of resolving the ALAH-939 issues, the Reference Document is as important for what it doesn't say as it is for what it does say.
'lho Reference Document reveals that in the August 1986 version of the NIIRERP, sheltering is recommended for portions of ERPA-A in a general emergency. Reference Document at 11. As late as the February 1988 version of the plan, sheltering remained a protective option for the seasonal beach population in ERPA A during a general emergency. Id. at 35. Thereafter, beginning in October 1988, c t:ntion is always the protective action for ERPA-A in general emergencies. No aspect of sheltering is provided for ERPA-A in a genemi emergency. Id., e.g., at 64,79,84,85.
It should also be noted that k so-called " Condition (1)" and " puff release" and their various dimensions are not a part of the NilRERP. Id., passim. In the one place where "shclier in-place" is an option for the balance of the plume exposure EPZ because of evacuation constmints, the NilRERP cautions that at a general emergency, evacuation is nevertheless the preferred protective action for ERPA-A. /d. at 85-86.
We conclude, ticefore, that New Ilampshire Emergency Planning officials have not changed their position on the " shelter-in place" option as it relates to ERPA-A in a general emergency. Mr. lverson and Dr. Wallace selected their words carefully in their affidavits of February 16,1990, quoted at p. 201, supra. The shelter in-place concept has not existed in the NilRERP in a general emergency for ERPA-A since October 1988, Whatever force the concept has for ERPA-A exists only in the minds of the New ilampshire radiological emergency decisionmakers as an ad hoc possibility for unforeseen events.
Our discussion in LBP-90-12 of what the parties said about the shelter-in-place concept in the NIIRERP rather than the provisions of the plan itself invited the inference that a shelter in-place concept in the NilRERP still pertained to ERPA A in general emergencies." The focus of the response by this Board md the parties in addressing the issues remanded in ALAB-924 was whether NilRERP included an option to xtually shelter the general (nontransportation-dependent) transice' beach population as compared to the evacuation element of the shelter-in place ention as it was litigated during the NHRERP phase of the proceeding.
"The Reference Dncument has its own arnbenna sysian supenmpisod upon the numbering of its conuituent documents. Our rerarences are to the Rererence Document page numbers. All ponies supulated that the Rererence Document is surriciently enmplete and accurate for the purposes stated in our January 24, 1991 rnemorandum.
We are intermed that references to Attachmems A and C in the october 1988. Rev. 2 veruon (at 64) are to Attachmer.ts A and C to the February 1983 Rev. 2 version (at 55-59. 61-62). teuer. Dignan to Board, FeNuary 12.1991.
"see gewrelly 3t NRC at 439-55.
l 205 l
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Regardless of sne reason, because of the changes in the NilRERP, this Board cannot ensure that the three items sent dowa in ALAll 939 arc clarified ly evidence previously sulaniitted by Licensecs in the course of the hearing.
Neverthclcss, if one were to assume, fee whatever unfareseen reason, that the shelter-in-place concept still otStined la ERPA-A in a general emergency, Licensecs have addressed items sent down in ALAB 939. With respect to the first item, Licensecs cite to the evi&ntiary tecord to explain that those in the beach population who are directed to go to their cars and evactute as a general emergency are so directed because of the transportaticn salue of automobiles, not for any dose reduction factor afforded by automobiles,
Similarly, New llampshire observes that "[t]he NilRERP does not corwider the automobile as a location for sheltering."32 Again assuming for argument that shelter-in-place would be considered as an ad hoc protective action in ERPA A in a general emergency, these is better rccord support than de terse comments by Licensees and New llampshire available to clarify the Appeal Board's first area of concern. In LBP 90-12, we quoted at length the explanadon of New llampshire's Mr. Strome of why evacuation is the dominant aspect of the shelter-in-place concept Mr. Strome's explanation is directly relevant to the Appeal Board's first area of concern. In simple terms, the distinction between sheltering those already at shelters and evacuating those who are not, is that time, thus doses, would be saved by not first moving the 33 unshcltered population to sheltering With respect to the second coaccru of ALAB-939, i.e., the suggested need to distinguish between suitable and unsuitable shcher, Licensees cite to Tr.
10,147-51 and Tr.10,578 to the effect that suitabic shelter is the equivalent of
" indoor locations,"" Licensecs are correct. The Appeal Board itself identified similar testimony; i,c., suitable shelter means accessible shelter. Tr. 10,206-07.
'The Appeal Board's query was founded on the testimony of New llampshire's Mr. Bond (n,10,757) to the effect that there may be a need to distinguish 31ticenaces' Respmae to the Mamnandum and order of November 14,1990 or the Atanic safety and 1.icerums Board Re AIAB.939, January 10,1991, at 2-3, cang Appl. Dtr. No 6, fr. Tr.10,222, Appenha 1 at 4, 8. Tr.
10,18182,10,464 66, and 10,55152.
32 New llampshire's January 10,1991 Manmardum at 2.
33As sta:ad in ISP-90-12,
[l'}he state ruls that ir a release d radiatius warranted movement of the pubbe, they are mudt more hkely to be artorded meaningful dnse reductama by rrmmg out of the Tf2 than by maing to a shcher withm the EPZ 'nus is the case since the members or the pubhc would t% m effect,"evacuaung" to a shcher.
his action would require formma ramily gmuru or social uruta pnor to movmg, decidmg whetha to seek sheher or evacua:e armtaneously, choosmg a mode or trartspor'.atum (i s., walk or rule), seekmg a destination (i.e.,hane or shelter), and undertaking the physical movement. Furthermore, smco shchermg is a ternporary pentective scion, thene that sought pubbe shcher would be faced with the prospect of assunung some done while aeding shelter, more wnise shchermg, and even more dunng a subsequent evacuatum.
31 NRC at 445.
"tjecruces* January 10,1991 Respmae at 3 206
l between suitable and unsuitable sheltei." Mr. Bond's testimony on this point is f
an' aberration and was not given weight by the Licensing Board in LBP-88-32, supra.
s IV. CERTIFIED QUESTION For the reasons stated above, the Licensing Board cannot comply with the directive in ALAB-939 to ensure that the staicd matters be clarified based upon evidence adduced during the course of the hearing because there have been material changes in the NI!RERP since the close of the evidentiary record. No party disputes that there have been changes relating to prutective actions planned
. for ERPA-A. Nor is the nature of the changes in dispute. The changes have been established by reliable, albeit non-evidentiary, information?*
De Licensees and the NRC Staff urge this Board to certify to the Appeal Board a question, a'l affirmative answer to which would permit considering the posthcaring information as a basi.4 for resolving the AL AB-939 issues."
Intervenon correctly senic that such a course would Icad to a resolutior, of the remanded issues without reopening the evidentiary record. Rey oppose the questien proposed by Licensees and stand by their position that this Board should reopen the record, perndt discovery, and conduct a hearing on the beach shelter'ag issues, in the alternative, Intervenors propose a question to be certified which hypothesizes that the shelter-in-place option as understood in ALAB-939
- remains a protective action for ERPA-A under the NIIRERP, They would require a litigation of the protection afforded to those in the beach population who would evacuate under a shelter in-place option."
We cannot accept Intervenors' advice to reopen the evidentiary record, in part, because we lxk jurisdiction to do so. Our jurisdiction, as we understand ALAB-939, is limited to examining the evidentiary record as it existed at the close of the hearing.
Eve,i assuming jurisdiction, we would not reopen the evidentiary record for the litigation sought by Intervenors. Ibr one thing, Intervenors wish to amend a record that "does not reflect any calculation as to the level of dose that
~
will be received by the cvruating portion of the beach population under the present ' shelter-in place' option."" Apparently the Intervenors have forgotten the 33 32 NRC at 174 nnAO,41.
3'supulation and Rercrence Docsanent; Memorandum or the state or New llampshire m AI.AB-939; and the ettestadon under caut by oeorge Iverson. Directnr d the New Itampshire ofrwe or Emagency Managanent.
UIkmsecs' suggestion for Certi6ed Questim, January 27,1991; NRC stafr Cornments m ikensecs' Pmprmed CertJwadon Quesuon Regarding sheltering. February Is.1991.
3a Response of the Mass Ao and NECNP to the liensing Board's order or January 24.1991. February 14.1991.
3'# ntervmors' Manorandum. Jarnary 10,1991.
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Commission's rejection of their measured-doses concept of emergency planning.
CLl %2,31 NRC 197, af'd. Comnwnweahh of Afassac)wetts v. NRC, Nos.
89-1309, E132, 90-1218, F.2d slip op. at 33 (D.C. Cir. January 25, 1991) (exclusion of Sholly/fleyca testimony not improper),
in addition, the Intervenors do not explain how a reopened litigation on shel-tering versus evacuation of the beach population will bring a better understand-ing of how to avoid doses to that population. There has already teen extensive litigation of that very issue. LilP-88-32,28 NRC at 750-76.
The gencial tenor of Intervenors' pleadings before us on ALAB-939 issues -
is that they wish to resurrect a defeated litigation strategy that, under NRC regulations, sheltering is an essential protective action option for the general beach population." llowever, in sending this matter down to us, the Appeal Board expressly stated that it does not attempt to impose upon New llampshire officials a requirement that they adopt sheltering for that population. ALAD-939,32 NRC at 174,178.
V.
CONCLUSION The Board certifics the following question to the Appeal Board:
May the Licensing Board treat the posthcaring amendments to the New llampshire Radiological Emergency Response Plan (NilRERP) and the January 10,1991 Memorandum of the State of New ilampshire, attested to by Mr. Iverson (Tr. 28,493), to the effect that evacuation is the only planned protective action for the general beach population in ERPA-A
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"E g,Intervenors' Memandum at 2-5; Response at 4,7.
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at the Ocneral Emergency Level' under the NilRERP as resolving the matters posed in ALAll-9397 Tile ATOMIC SAFETY AND LICENSING BOARD Richard F. Cole ADMINISTRATIVE JUDGE Kenneth A. McCollom (by 1.W.S.)
ADMINISTRATIVE JUDGE Ivan W. Smith, Chairman ADMINISTRATIVE LAW JUDGE
' Bethesda, Maryland March 12,1991 209 4
o r.
~,c.,
n
1 Cite as 33 NRC 210 (1991)
LB P-91-8 A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD i
Before Admin!strative Judges:
Robert M. Lazo, Chairman George C. Anderson Peter S. Lam in the Matter of Docket Nos. 7210 50-282-RS 50-306-RS (ASLBP No. 91627-01 RS)
(Independent Spent Fuel Storage Installation)
NORTilERN STATES POWER COMPANY-(Prairie island Nuclear Generating Plant, Units 1 and 2)
March 14,1991 MEMORANDUM AND ORDER (Dismissing Proceeding)
- Petitioners for leave to intervene in the above-ideatified proceeding, Min-nesota Department of Public Service, Minnesota Environmental Quality Board, and the Prairie Island Mdewakanton Sioux Indian Community, cach represented by counsel, have filed a Notice of-Withdrawal in this proceeding following the reaching of a Settlement Agreement dated March 8,1991, between the applicant -
Northern States Power Company, the NRC Staff, and the three petitioners.
There being no other matters outstanding, this licensing proceeding is hereby
' dismissed without prejudice.
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l'OR Till! A'lOMIC sal'ETY AND 1.lCENSING IlOARD Robert M. Lam, Chairman ADMINISTRATIVE JUDGE issued at 11ethesda, Maryland, this 14th day of March 1991.
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211 l
Coe as 33 NRC 212 (1991)
LBP 91-9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMiSS!ON ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Robert M. Lazo, Chairman Harry Foreman Ernest E. Hill in the Matte [of.
Docket No.3016055-CivP (ASLBP No. 89 59242-CivP)
(Civil Penalty)
ADVANCED MEDICAL SYSTEMS, INC.
(One Factory Row, Geneva, Ohio 44041)
March 19,1991
SUMMARY
DISPOSITION A party opposing the motion may not rest upon the mere allegations or denials of its answer; its answer by affidavits or as otherwise provided by regulation must set forth specific facts showing that there is a genuine issue of fact.10 C.F.R. 5 2.749(b); Texas Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 and 2), LBP-82-17,15 NRC 593,595 96 (1982).
SUMMARY
DISPOSITION When a proper showing for summary disposition has been made by the movant, the party opposing the motion must aver specific facts in rebuttal.
Where the movant has satisfied its initial burden and has supported its motion by affidavit, the opposing party must proffer counter;ng evidential material or an affidavit explaining why it is impractical to do so. Federal Rule of Civil Procedurc 56(c) and (f) and Advisory Committec Note; Public Service Co. of New //ampshire (Scabrook Station, Units I and 2), LBP-83-32A,17 NRC 1170, 1174 n.4 (1983).
212
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SUMMARY
DISPOSITION If there is no material factual dispute and the case can be decided as a mattet of law, no due process has twen denied. Federal Rule of Civil Procedure 56(c) and Advisory Committec Notc; see Poller v. Colwnhia Broadcasting System, Inc., 368 U.S. 464 (1962),
DISCOVERY: MATERI ALS 1.ICENSE PROCEEDINGS
'Ihc Commission's regulations do not prohibit licensing boards from ordering informal or formal discovery upon the request of licensecs or intervenors prior to a prehearing confefence in a materiais liccese proceeding. The regulatory prohibition against discovery prior to a prehearing conference found in 10 C.F.R. 5 2.740(b)(1) is limited to "an application for a construction permit or an operating license for a production or utilization facility."
MEMORANDUM AND ORDER (Granting NRC Staff Motion for Summary Disposition and Terminating Proceeding) 1.
In this enforcement action proceeding, the NRC Staff comes before the Atomic Safety and 1.icensing Board sccking a summary end to litigation con-cerning a civil peu.iy imposed on Advanced Medical Systems, Inc. ("AMS"), of Geneva, Ohio, for alleged license violations occurring in late 1984. As a result of investigations conducted by the Staff of the Nuclear Regulatory Commission, the Director of the Office of Inspection and Enforcement issued a Noticci in June of 1985 which concluded that four regulatory and license condition vio-lations had occurred, together constituting a single Severity Level til violation under Commission policy considerations.2 As a result of further investigations, the Deputy Executive Director for Nuclear Materials Safety, Safeguards, and Operational Support issued an Order imposing Civil Penalties in the amount of
$6250 against AMS in May of 1989.2 IAdvanced Medical Systems, Inc, Ncaice of Violanon and INywed Impositim of Ovil 1%alties, June 28, 1985.
20eneral Statement or Ptdscy and hucedure for NRC 1:nroccement Actwns,10 CFA Pan 2, A ud2A C h
3 Advanced Medical systems, Inc., onter imposing Civtl Mmewy l%aines, May 30,1989 (s4 l'c4 Reg 24,433, June 7,19s9).
213
%c Staff now comes before us seeking three independent determinations:
(1) that there are no factual disputes remaining for hearing; (2) that there were violations of either Commission regulations or Ah1S license conditions; and (3) that the Director correctly interpreted Commission policy in his decision to impose the Severity Level 111 fine.
De four alleged violations are as follows:
(1) An AhtS employee received a whole-body dose of 2.9 rems in the fourth calendar quarter of 1984. This dose exceeded the 10 C.F.R.
(20.10!(a) limit of 1.25 rem per calendar quarter because conditions provided in 10 C.F.R. 5 20.101(b), which would permit a greater occupational dose, were not applicable; (2) On November 6 and 21,1984, inadequate radiation surveys of the Licensce's hot cell were conducted prior to entry of the cell by AMS employees, ne Licensec's method of surveying the hot cell violated 10 C.F.R. I 20.201(b);
(3) On the afternoon of November 21,1984, two AhtS employees failed to read their dosimeters at intervals consistent with the anticipated dose rate they would receive while working in the hot cell. His failure violates Condition 16 of the AhtS license which references the AMS " Radiation Safety Procedures hianual, ISP-1," dated July 1983, 57.2.c; and (4) The dosimeters used by the two individuals who worked in the hot cell on November 6 and 21,1984, had not been calibrated for more than 180 days. He failure to calibrate dosimeters violates the AMS License Condit on 16 which references Section E of the AhtS application, which requires dosimeters to be calibrated at intervals of 180 days or less or before first use, if longer than 180 days since last calibration.
IL In order fe' the Staff to prevail, it must first demonstrate that there are no material factual issues remaining in tir case, he Commission's Rules of
~
Practicc provide for summary dispositier cf a case where the statements of the parties in affidavits and other filings show that there are no genuine issues of material fact.' If there are no material facts in dispute, the lloard may rule for the moving party as a matter of law.
De party moving for summary disposition is required by Commission regulations to annex to the motion a separate, short, and concise statement 4 10 CIR. I 2,749(d).
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of the_ material facts as to which the moving party contends that there is no genuine issue to le heard? The party oppeifg the motion is required by the same regulations to annex to any answer a separate, short, and concise statement of the material facts as to which it is contended there exists a genuine issue to te beard,' All material facts set forth in the statement required to te served by the moving party will be deemed to be admitted unless controverted by the statement required to be served tiy the opposing party? A party opposing the motion may not rest upon tic mere allegations or denials of its answer; its answer by affidavits or as otherwise provided by regulation must set forth specific facts showing that there is a genuine issue of fact?
The burden of proof with respect to summary disposition is upon the inovant who must demonstrate the absence of any genuine issue of inaterial fact > The record and affidavits supporting and opposing the motion must be viewed in the light most favorabic to the party opposing the motion.18 The opposing party need not show that it would prevail on the issues but only that there are genuine issues to be tried," When a proper showing for summary disposition has been made by the movant, the party opposing the motion must aver specific facts in rebuttal,- Where the movant has satisfied its initial burden and has supported its motion by affidavit, the opposing party must proffer countering evidential material or an affidavit explaining why it is impractical to do so.u A,
'the Staff's Motion sets forth five statements of material fact about which, the Staff claims, no genuine issue exists:
(1) An AMS employee received a whole body dose of 2,9 rems in the fourth quarter of 1984; (2) On Novemb2r 6 and 21,1984, surveys of radiation levels at the door of the hot cell at the AMS facility were the only surveys made to 310 C.F R. I 2.749(a); Detrylead rower Coopersove (la Cnsae Baihng Wawr Reactor), IJtP 82-58,16 NRC 312, 520 (1982).
8 34, myira nraa s.
' id.
814; Taume Unatin.: C<a<renas Ca. (Comanche Peak Stearn Electnc Statirm, Units 1 and 2), IJIP-8217, is NRC 593,39s 96 (19821
' Alde=a tower Co. Doneph ht issley Nuclear Plant, Units 1 and 2), A1AB-182,7 ALC 210,217 0974).
1054, rehe Servie Co. of New flanyu Aire (seatyma '.. Unita 1 and 2),1.nP-74 36,7 AI.C 87! (1974),
and cam entsJ shorein.
H Commonwrah4 E,&4on Co. (Braidwood Nucleac rbwer amm 'Jnits I and 2),1JIP-8612,23 NRC 414,418 1986),
(u dhc Servka Co. of New flaavuAire (scabn=A statwn, Unita 1 and 2), LJ1P 83 32A,17 NRC 1170,1174 r
n.4 (19831 We note at Ltus junctura mat AMs has neither attached aflidavita inits Answer nor erfered caplanation as to why it those not to do na Instead, AMS has mmmted its derenne by relymg on staienians made in the transcribed interviews the stafr has attadied to its Moten Counsel for AMs is nt. unfamihar wuh summary disposition prncedum and the ese of ar6 davits. Sie IJ1PW17,31 NRC s40 (1990). While this tactic is nr4 in itself fatal to the AMs cause (ue ClevelaaJ Elsesric filwmaanag Cc. (Ibrry Nuclear Pmver Plant. Units I and 2),
ALAll-443,6 NRC 741,752.s4 0977)),it pnmded AMS wuh hule in the way or ducct, contrad story evidence to aid tia effett to estabhsh the existence of genuine issues of matenal ract.
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assess the possible exposure of AMS employees who worked in tic hot cell; (3) %c surveys f. ' F at the door of the AMS hot cell on Nover'iber 6 and 24,1084, were not adequate to detect the radiation level within the hot cell; (4) On November 21, 1984, two AMS employees failed to read their dosimeters between entries to the hot cell; (5) Dosimeters used by two AMS employees on November 6 and 21, 1984, had not been calibrated for more than 180 days.
We will address these factual contentions first, scrlatim; then we will turu to the other issues in this proceeding.
B.
Contention 1.
An AMS employee received a whole-body dose of 2.9 rems in the founh calendar quarter of 1984
%c Staff meets its initial burden by offering in support of its contention a signed letter Imm liarol 1 Irwin of Advanced Medical Systems, Inc., dated March 8,1985, sent to the U.S. Nuclear Regulatory Commission in which he states that an AMS employee received a 2900-millitem exposure during the month of November 1984? Dis fact is further supported by a Radiation Detection Company (Sunnyvale, CalifornM Dosimetry Report for the month of November 1984 which shows the AMS employee named in the Irwin letter to have received 2900 millirems of radiation during that time period."
AMS does not dispute this statement of material fact in its Answer. %c statement is deemed admitted."
Contention 2.
On November 6 and 21,1984, surveys of radiation levels at the door of the hot cell at the AMS facility were the only surveys made to assess the possible exposure of AMS employees who worked in the hot cell.
%c Staff offers the sworn and transcribed statements of two individuals present at the cell entries on November 6 and 21, " Individual A" and Glenn Sibert, icspectively, one of the AMS employces who entered the hot cell and his supervisor, and a third individual, lloward Irwin, who is a self-described
" manager" in the AMS corporate hierarchy. Tir three individuals describe the preentry procedures conducted on the two dates in question. As described, one air sampic reading was taken by remote sersor on cach day.o detect airborne contamination in the cell.I* Also, one radiation survey was taken at the cell door cach day using a haud-held radiation monitor to detect nonairborne radiation levels within the cell? AMS d(,cument.: referred to as "lSP-18" also show that
" start Motient, Attach.1, Attaa D at 1.
i H a et s.
l I
38All material facts ses ronh in the statement requued to be served by the nwing pony will be dcemed to be admitted unlem caurwened by the statement required to be nerved by the eppasing pany.10 CLR. I 2,749(a).
I* stafr Motion. Anach. 7 at 1114. Ansch. 8 at 2628, Attach. 6 at 24.
37/a. Ansch. 6 et 14. Attach. 8 et 27-28. 47-44. AnaA 7 at 2427.
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" stay time" estimates for individuals enteririg the cell were tused on radiation levels detected at the cell door.58 ne AMS Answer counters by stating that preparation for tie cell entries
- began several days in advance."" AMS offers statements by Glenn Sibert to support this assertion:2' Prior to going into the cett we always pided and cheded the cell for stray pcucts because the way they were buying the cotalt it cisnes in a canister and when )w cut it open it flies in every direction. We had to spend at least two or three days scanning fix pellets every time we went in.
. With the pnhe, a Victorcen 500 rneter.
iwe would scan Ithe cell) using rnanipulators... We get it as low as we could get it with that meter. 'lhen the next procedure was to get ready to go in."
Iloward Irwin also agrees that r moia-probe radiation detection is performed prior to cell entry as part of the W. Gecontamination procedures.21 he AMS Answer misses the mark. Neither Mr. Sibert nor Mr. Irwin states that the remote sensor was used to assess possible exposure of AMS employees who worked in the hot cell on November 6 and 21. ney say only that the remote sensor was used as part of the preentry decontamination procedures.22 Although decontamination would have lowered the potential radiation risks in the hot cell, it is, in itself, immaterial to the Staff's assertion that the cell-door survey were the only surveys made to assess potential radiation exposure levels.
By not disputing the Staff's factual statement in its Answer the Licensee has l
failed to carry its burden, ne statement is deemed to be admitted.
Contention J.
The surveys made at the door of the AMS hot cell on November 6 and 21,19M, were not adequate to detect the radiation level within
(
the hot cell.
As the foundation for this assertion, the Staff provides the results of the actual j
dosimeter readings taken from the hot cell entries conducted on November 6 and
- 21. The results demonstrate that the actual exposure readings were nearly 50%
higher on both dates than the anticipated exposures calculated on the basis of the door siirveys taken on those dates."
1s /d. Apach. I at Anech. B.
" AMs Answer at (L
- siaff Motion, Ausch 8 at 24 25.
II/d, Attach. 7 at 25-21, 22 Tm other panu are tangentially significant. l'irst olenn siben admined that the remote pmbe "could unty survey to a certain point, and then it got to the point where you had to open up the cell door and stidt a meter in."
(d. Anack 8 at 59. second,lloward Irwin admiued that the temete prohe was not calibrated 14. Anach. 7 at 26 It appears that the remote pruhe would have been incapable or providmg accurate measurernenta er potential radiation exposure enn if it had been used. 'Iherefore, whether or not the remote prr+v was used becomes immatenal to whether or na a regulatevy violation occuned, as will be dtscussed, hq(re.
l D staff Metion. Anach. I et 4. &.
217
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nere is littic,if any, merit to the AhtS rebuttal, nc AhtS Answer makes a r,eries of assertions that skirt but do rol confront the issue presented by the Staff.
AhtS points to hir. Sibert's unsupported opinion that die cell door would always have the greatest potential for radiation exposure, to hit. Sibert's opinion that iklequale surveys WCTc performed, and the assertion that most of the required work leading to exposure would be conducted at the door to the cell.2d in addhion, AhtS argues that "no evidence was ever presented to demonstrate that hir. Sibert's results would love been different had he done his surveys any differently,"a nese statements do little to cither rebut die Staff's claim or to establish the existence of a material fact in dispute. As AhtS admits, on both dic/*
dut the bot-cell entries were made, the only cahbrated radiation readings were ones conducted at the door of the hot cell by slightly opening the door and extending a hand held radiation detector into the cell. %c Staff has presented direct evidence, in the form of signed AhtS reports, diat the cell 4xir survey technique underestimated actual radiation exposure by 50% on botn dates in question. AhtS has neither challenged those readings nor offered an explanation for dic underestimation. %c Staff has presented unrefuted evidence that the radiation surveys conducted on November 6 and 21,19% were inadequate for die pu poses of assessing radiation levels in the hot cel'...id AhtS is remiss by not countering that factual assertion in its Answer. The fact is dcened to be admithd.
Contention 4. On November 21,1984, two AhtS employees failed to read their dosimeters between entries to the hot cell.
On November 21. die hot-cell door was opened twice - once in die morning and once in the afternoon. Ir. the morning, Individuals A and 11 pushed the cask containing cobalt 60 into the cell Dere is no dispute that there occurred only one cell entry by each individual during the morning. After the cell door was closed Otat morning, Individual A checked his dosimeter but did not record the results." Individual B believes he read leis (kasimeter after leaving the decontamination room and says he "probably" told somcouc the reading "out of habit."" There is no evidence that cidict of the dosimeter readings taken in the morning were ever recorded.28 24AMs argu::s that since the cash cantaming the cohah shipment is or such a substamal sue, the employeca do nra actually ener the nwm when they wheel the cask in the hra celt Therefore AMS asserts that the dorw survey is adequaia, lloweva, the Nmember 6 aary entailed replacing light bulbs and a wall bra.Act, and the Nmember 21 entry auailed teplacmg the treme, table it, and traahhag and the maalla6m or the sirA after the cask had been semmed Id., Anach. I at 5, Anach. 9 at 25.
25AMs Answer at 7 and cites therem.
26 staff Motion. Anach. 6 at 35-%
U staff Mcaim at 26 27, 25While the me ning entry plays no part in the dqute at hand, it !a tratructive in defining the AMs rebunal argument.
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i In the afternoon, the cell (kior was again opened. Atter Individaals A and f entered the cell to move the cask out, they had trouble with the ('evice that aids die movement of the cask. 'lhey stepped out of die cell into the ('econtamination room and moved behind the cell (k or to receive further instructions from Glen Sibert. After learning how to correct the problem, Individuali A arx1 Il again entered the cell, made the necessary adjustments, and movej the cask out of the cell. Next, Individual 11 reentered the cell to rtplace de frame and tahic top. Individual A then reentered the cell to install Oc sink and to replace the trash bag on the cell wall. Iloth IrKlividuais A and 11 statt that at least three cell entrics were made in the afternoon." Iloth Individuals A and !! state that cach read his dosimeter only after they exited the decontammation room when the work was completed."
AMS counters Q three arguments - that only one cell entry was made in the afternoon; that Josephine Ibwell, t hose job it was to monitor how long each individual remained in the cell, requested Individuals A and 11 to read their dosimeters through unc PA system; and that Mr. Sibert remembered Individuals A and 11 checking their dosimeters and calling out an interim reading."
'the first argument would directly counter the Staff's assertion if in fact only two cell entries had taken pixe. Since both Individuals read their dosimeters after they left the decontamination rom. in the morning, and if there was only one cell entry in tie afternoon, technica.ly, an interim reading would have been taken prior to cell entry, llowever, the evidence upon which AMS relics to support this semantic argument is less than solid.
AMS points to statements made by Glen Sibert to argue that only two cell entrics were made on November 21, in Mr. Sibert's opinion, a " typical
. cell procedure" amounted to "[p]ush[ing) Oc container in, unk>adling) it and puliling) it out of the cell. Just really two [cntries],"22 lie repeatedly states diat only two entries we'c made on November 21. Ilowever, diis assertion becomes clearer when he admits that in his opinion, when the hot-cell door is open, the ha' :cIl anc 3e decontamination room became one in the same for the purposes of "ccli entry," 1.c., if the door is open, stepping out of the het cell into the decontamination room does not mean that you had to "rcenter" die hot cell?
On the odict hand, Mr. Sibert admits that the two AMS employees working in the hot cell had to come out and stand behind the cell door in the decontam-inadon room to receive instructions when they started to have trouble removing die container." lie also admitted that if a person is in the decontamination room, 8Surt Mahm, Anack 6 at 20. Attadt. 8 si 25.
"Id. AnaA 6 at 20-21,36, Anack 1 et 24 33 AMs Answer at corncted pese s.
12 surt Maim, Anack 8 at 52-53. 70.
33 14 at 34, M/d at s3.s4.
-219
that juson cannot be in the hot cell." hiore on point, earlier in his interview he directly contradicts his later statements concerning hot-cell entries:"
Q. I would hke to have ymr dcrmitim of whst cmstitutcs sn entry into the cell as far as time in ue cell. While you're in (Fe deunaamination navn,is it afier you go into the cell itself?
A.
Into the cell iiscif. Ikcmtam; nation rtain is me thing and the ctil is different.
ilesween the dcwn nuun and the cell you got Sh feet mgh &nsity uncrete and hi the lah you gte regular dmble dmts with veras.
hir. Sibert's inconsistent statements siruply lack credibility.
The AhtS arguments alleging that "onc minute dosimeter checks were re-quested by Josephinc Powell through the PA system" and that "she let them know when to check their dosimeters"37 do little to establish whether or not the dosimeters were actually read prior to cell entry or at appmpriate intervals during the procedure. Ah15 has not cifered any affidavit by his. Powell stating either that she made the requests or that she saw the dosimeters being read.
The closest AMS comes to directly challenging the Staff's statement is an asse Con that Mr. Sibert recalled one of the individuals calling out an interim dosimeter reading of 160 millirems during the pmcedures. flowever, this statement by Mr. Sibert also proves different than it appears on first blush:"
Q. Do yuu know if m either event, the fah or the 21st, they diecked their dosimeters at the one.minut.: interval?
A.
I recall asking them what they picked up, and -
Q. nat would he -
A.
I asked (Individual Al and [lnd vidual ill and it seems to me, l.ke they told me, that they picked up IN1Mit Q. Okay,that doesn't jive with the - doesn't coincide with the infonnatim that they recorded. %cy get atamt 845MR dusimeter readmg.
A.
Yes. Is that for the 21st?
Q. Yes, wc*re m the 21st hat's the date.
A.
Well,845 is their final dosimeter reading.
Q. Okay, that was at the - at the end of how marry entnes was that?
"IL at 55,
- 14 si 38.
37 AMs Answer at 8 (corrated rege).
M I4 "starr Motion, Attah. 8 at 51-52,7071, 220
A. 'that wadd be - their fmal dmimeter reading wmid be at the end of that work time. Now see, what hat to te dune that day, the cuntainer had to te put irao the cell. I have to go out of the cell, or out of the lah, take a shower, get dressed, cane back out to the cell wimlow to get ready to unload this container.
While I'm geuing it unkaded, these two are in the tah out of the high radiation area. 'lhey are out of the - twer by the view window wherc ytm can look into the lah, and they have to wait until I get that container unloaded before we make premrations to take the container out of the cell.
Q. Okay, so you remember them rnaking ho* many dosimeter checks during those intervals?
A.
I know me.1(0, is what they told me they pided up, and that's almt a!! I can
- remember, Q, Did these individuals that were working there read their dosimeters at the 6mes indicated prior to entry and at times within the work perial?
A.
The dosimeters were read.
Q. Earlier you indicated that ym don't recall seeing them read these dosimeters durmg the work period. Are you assuming they did?
A. 'Ihey did read them. You got to read them through a plastic bag.
Q. Earlier in the interview you indicated that you don't recall having seen them do this, You just -
A.
No, I didn't see them. ljke I said, I am not aware - ! can t he a mother hen to them. Otherwise -I can't watch every nuwe iney make, because dunng the course of cobalt being put away I'm in and out, in and out.
On die basis of the statements made during the investigatory interviews, the 160-millirem reading was one taken after die two AMS employees left the decontamination room in the morning, prior to suiting up again for die afternoon entries. Both individuals remember reading their dosimeters at that time. Individual B stated that he probably called out his dosimeter reading.
Both individuals have stated that they did not read their dosimeters during the afteanoon procedures until they led the decontamination room for the final-time.'* AMS has offen'd no credible e <idence to raise a doubt as to the veracity of those statements.
l Contention 5.
Dosimeters mi by two AMS employees on November 6 and 21,1984, had not been c.uity.ated for more than 180 days.
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40 De only other potential eyewitnesace io the hot cell entnes wadd have bem Josephine 1%eil and whoever was stational at the omnitaing wmdow timing the entnea. Mr. sAen never saw the dosimeters being rad and AMS failed to aner any affidavita by those persms who would have been at the mmitanns wmdow statructmg that the dosimeters be red indeed, we rind it pecutier that Counsel for AMs dut not anadi an affidavit from Ms. Powell.
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'Ihe AhiS Answer states:
(T]he standard practice for cabbration of dosimeters was to emipare the desimeter readings
- with film badge readirgs.-,.. 'Ihis praaice moddied a 1979 procedurt stuch was found to be unworkable because it yielded a 25% disenpancy.'.
'lhe NRC has never been thle to produce any eviderice that the dosimeters were not in calibratim or that the meth<nl of calibration used in Nmember,1964 was not adequate.
Once again, while the NRC Staff may disp e whethee the calibrations were acceptable, there is testimony that cahtwations stre grformeds Unfortunately, both the Staff and AhtS have either misstated or misinterpreted she material fact to be argued. The question is not whether the dosiraeters were calibrated, because that is immaterial to the issue of whether the dosimeters were calibrated in the manner set forth in Se AhtS license agreement'2 It is that fact that is germane to the issue of a license violation. Regardless, the pleadings and accompanying documents demon:trate that Ah1S has admitted deviating from license conditions with regard to the calibration of the dosimeters used in November 1984.43 'Ihe issue is moot.
C.
We next address whether or not Ah1S has violated Commission reg-ulations or conditions that are part of its own license agreement in order to
- determine the larger issue of whether the Director's actions were correct with respect to the imposition of the menetary penalty against AhiS. To do so, we once again revisit the four _ violations as they are set forth in the Notice of Vio-lation of June 28,1985, and the Staff Summary DUposillain hiotion.
Violation 1.
An Ah15 employee received a whole-body dose of 2.9 rems in the fourth calendar quarter of 1984. This dose exceeds the 10 C.P.R. 5 20.101(a)
- limit of 1.25 rem per calendar quarter. Conditions provided in 10 C.F.R.
- 5 20.101(b) which permit a greater occupational dose are not applicable in this situation.
On hiay 24,1988, Dr. Seymor Stein, President of Ah1S, wrote to the Director, Office ofInspection, stating, without qualification, that AhtS wishes to concede that technically a violation o' 10 CIk S.101(a) did occur."" The Board finds no reason to disagree.
4AMs Answer at 8-9.
Ohs staterperst er material tact argued by the staff stuuld have mars alppaiely read: Dimimeters used by two AMs a joyees an Novanbar 6 and 21.1984, had nin heen calhated for more than lac days acev d ar se r
she en!.brahon secW serforth an she AMS Econne openment 43 staff M<aion, Ausch. 3 at 34, Anach. 7 et 3s-37.
- 14. Anach. 4. sectica 20.101(a)lirrad the whole-body dose of an indmdualin a restricted area to 1.2s rums per calmdar quaner. sacept as prot,1cd by 10 CER. 5 20.101(b). The iedmical violauan invohed AMs's failure to docummt Individual B's past exposure levels onder section 20.101(b)(1) pru.r to tus entry into de h<a cell in November. De only wnum reenrd of Individual B) exposure hinory estara ws: signed in January 198s - aber individual B had recoved 19 rurn done of radioactiny -- and postdated to september 1984 to make ~ appear a
est regulations had twee comphed with. See AMS Answer at 4.
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Piolation 2.
On November 6 and 21,1984, inadequate surveys at the dmr of the hot cell at the AhtS facility were made. 'this failure to adequately suncy a high-radiation area, prior to potential exposure to humans, violates 10 C.I'.R.
I 20.201(b).
Section 20.201(a) requires that each licensee make such surveys as may be necessary to comply with all sections of 10 C.F.R. Pan 20. As defined in section 20.201(a)," survey" rneans an evaluation of the radiation hanuds incident to the production, use, release, disposal, or presence of radioactive matenals or other sources of radiation under a specific set of conditions. hit. Sibert stated diat die only survey of the radiation level in the hot cell was the one taken at the door to the cell and the air sample to determine airborne contamination.*5 lloward Irwin also stated that the in-cell moriitor was only used for decontamination and not to assess the amount of time workers could stay in the hot cell." hioreover, the in-cell monitor was not calibrated during the November entries.*' When a comparison is made between the exposure estimate based on the cell door suncy and Or actual dose rexived by the two employees, the calculation from the cell door survey underesumates die actual exposure by SOE" As we have already noted, a radiation survey with a margm of ermr of 50% is not a reliable survey capable of pmtecting health or promoting safety in any stretch of die imagination. We can find no fault with the Director's decision pertaming to this violation of 10 C.F R. ( 20.201(a) and (b).
Violation J.
Oa Noven,ber 21, 1984, two AhtS employees failed to read their dosimeters at intervals consistent with the anticipated dose rate. This failure violates Condition 16 of the Ah15 license which references the Ah15 " Radiation Safety Procedures hianual, ISP-1," dated July 1983, 6 7.2.c.
License Condition No.16 requires that licensed material be possessed arul used in accordance with statements, representations, and procedures contained in " Radiation Safety Procedures hianual, ISP 1" dated July 1983. Secuon 7.2.c,
" Personnel bionitoring," of ISP-1 states, P
Work in high dose areas will be preceded by a survey with apprnate mon Loring equipment and an estimated total accumulated exposure determined.
. The pencit type dosimeters will k read at intervals mnsistent with the anticipated dme rate to determme that the actual exposure is not greater than the anticipated exposure."
"3 suff Mmm, Attad 8 at 25. AttaA 6 at 1315,19.
"id, Atta.:h 7 at 25 77.
"'ll at 26,
'8 14, Attaut. I at 44 AMs perimnel shm.1d have bewme amare of the discupency brawsen the esumated and actual espruce after the Natrihr 6 entry liweever. no correcuons were made, based on the mformata guhered on Nmember 6. pnot to the November 21 entry "The Staft's rehaus upm sumorung dacurrents as the besta few license rapiremerus is cmsment with t}w Atonut I.nergy Act, Cannusen ngdauens, and past Comnusamn praace See Atorme 1.nergy Aci of 19M, 1152(a),42 U s C. 6 2232 (Commtsam awhmty to raptre supplemental trif ormauon fnn lactise arphts u and (Conumed) 223 1
nere is no dispute that on November 21,1984, two individuals worked in the Licensee's hot cell, an area where high radiation I vels exist.S ne Licensee estimated a wrk exposure for the day to be approximately 750 millirems and established I minute as the " maximum allowable exposure time befcre checking dosimeters.*'3! When the two individuals who entered the hot cell read their dosimeters for the first time that afternoon (upon exiting the d' contamination room), both 1 rem dosimeters were off scale. Individual A had received a 1625-millirem dose and Individual B had received a 1600-millirem dose for that day, more than twice the estimated dose for each person. Ilad the dosimeters been read consistent with anticipated dose rates, at approximately 1 minute, the overexposures should not have occurred.
AMS has produced no evidence to support a claim that dosimeters were read consistent with anticipated dose rates. The two individuals who entered the cell have both stated that they did not read their dosimeters until die end of the procedure. Here is sufficient, unrebutted evidence lo find a violation of License Condition 16.
Violation 4.
On November 6 and 21,1984, the Licensee allowed two individuals to enter a high radiation area equipped with dosimeters that had not been calibrated within a 180 day time period prior to their use License Condition No.16 requires that liccased material be possessed and used in accordance with statements, representations, and procedures contained in the application received July 16,1979, and in certain referenced documents, Schedule E of the application states that dosimeters will be calibrated at intervals of 180 days or less or before first use if longer than 180 days since last calibration. De Licensee is required, in accordance with the provisions of License Condition No.16,-io calibrate dosimeters by using a calibrated (cobalt) radiation source? Both Dr. Stein and lloward Irwin acknowledged that dosimeter calibration procedures at AMS involved calibrating dosimeters by comparison with film badge readings instead of the procedure found in the AMS license agreement?
to incorporate such into bcense); 10 Cf.R. 4 3034,10 C F.R.135.26(by, preamble ta NRC hrm 374 (5-84)
Also,in late 1986, the Canmission pubbshed actics in the federal Regsser or its nmsim w 10 Cf.it pans 3435. Fmal Rule. $1 Fed. Reg. 36.932 0 9161 In that notice, the nunmission gives a clear as 'unt or its agulatory pnyam and heenstng pracuces regsnhng bypnxtuct matenal bcenses of the type issued to A. % Su id. at 36,933.
2on April 25,19s5, the beennes made a surwy of the mtenor of the hat cell utth2mg a Victoricas 500 Dactraneter with a model s50 6A high. energy probe. The survey showed radiatim lewis inside the cell as high as Il rems per hour. His amount was appmsawely rour umes lugher than the radisson level med liy the licennee whas calculating cell suy umes dunna November.
O suft Motion. Anach.1, Atuch. C at IJ
$2 14. Anach. s. Arpendin at 4.
33 14, Anai 3 at 3 4, Attach. 7 at 35 37.
224
Ah1S is bound by its license agreement to follow the conditions of that agreement which clearly called for calibration by radiation sourec, Calibration by radiation source is the method used throughout the nuclear industry and is the only calibration metini currently approved by the Commission?' By its own admission, AMS failed to follow license conditions in the calibration of its dosimeters..We therefore have no alternative than to find Ah1S in violation of License Condition No.16.
111.
The Staff Motion requests the floard's concurrence that the imposition of a civil penalty of $6250 is " consistent with Commission policy."""Itc Staff has attached to its Motion an affidavit of James Lieberman, Director of the Office of Enforcement, which explains that the Staff's calculation of the amount of the civil penalty is in accordance with the Commission's " General Statement of Policy and Procedure for NRC Enforcement Actions "" In his affidavit, Mr.
Lieberman states that the four violations are considered collectively as a Sescrity Level 111 violation as defined in the Policy Statement in i C.4 of Supplement IV and iC.1 of Supplement VI, Under Table IB (Base Civil Penalties for Severity Levels) the base civil penalty amount for a Severity Level III violation is 50%
of the amount listed in Table 1 A, or in this case,55,000 Mr. Lieberman goes on to state:"
As provided in the Policy iStatemers) under Section IV.IL3., the tase civil penahy was increased 1 25% in the June 28,1985 Proposed Ovil Pmahics Wice because of the failure 3
of AMS to implement previous correcuve actim for prhu similar problems. Specifically, a March 1983 ietspection resuhed in a July 13,1983 order Imposing Ovil Mmetary Penahics of $mv? Mause of circumstances surruimding an overexposure -
in or near the licensee's hot cell..
Those circumstances were similar to circumstances described in the June 28, 1985 Nerice..., and included failure to follow procedures for checking dosimeters while wortmg in a high dose rate area.
'lte AMS answer does not follow the usual procedural pleading the Board has seen most often in enforcement proceedings involving the imposition of civil penalties. It is the case, more often than not, that licensee's counsel seeks mitigation of the civil penalty.58 Instead, AMS argues that the NRC Staff " erred 8'14, Attad. s at 4.
" staff Matim at i1.
"10 Cf.Il Paa 2, Appenda C.
UStaff M<aion, Affidava d Jamm lieberman (sussed) at 2.
" AMs de cas portima d the Commission's Ibhey statement regardmg the imposition of civil penabes that have beanns en the autigation a theme penahes. Ilowever, no arguman is made 4 at thcae cuiderauons were unproperly overlooked in the Duector's decuion to unpose the penakes.
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in considering the alleged four violations to be collectively al a Sevefity level 111,,, due to the fact that they do not meet any of the conditions of Severity Level ill either collectively or singularly., land] wwld te, at most, Level IV, not level 111 [ violations)."
We have chosen to set out these portions of 10 C.F.R. Part 2, Ap;rndix C -
General Statement of Policy and Procedure for N RC Enforcement Actions - in this text because the language of that Statemeni leaves no room for doubt that the Director's decision to levy a Severity Level.11 violation finds its foundation in those guidelines:
The fellowing statement of general policy and pnicedure explams the enforenent policy arul pmcedures of the US Nuclear Regulatory Commissim and its staff in initiatmg enforcement actwns, and of presidmg officers.., in reviewing these actims.
'Ihe purpme of the NRC enforcement program is to pnmxe and pruted the radiological heahh and safety of the public,includmg employees' health and safety... by:
e Ensuruig canpliance with NRC regula6ms and license conditions; e beterring future violatims and occurn:nces of cmditions aJverse to quahty;
- Encouraging improvement of ticensee and vendor performance,
. Ead enforcement ac6cn is degndent on the circumstances of the case and requires the exercise of discretion after consideration of these policies and procedures. In no caw, however, willlicensees who canrmt adieve and mamtain adequate levels of pnxecten be permined to conduct licensed acuvities.
Seventy tevel Ill violations are cause for significant cmcern. Seventy tevel IV violaties are less senous but are of more than minor cmcern; i.e., if left uncorrected, they could lead to a more serious concern...
While exaraples are provided in Supplernents I through Vill for detemtining the aprogiste sescrity level for violations in each of the eig s activiry areas, the examples are 5
neither exhaustive nor controlling.
... Each d the examples in the supplements is predicated m a violation of a regulatory requirement.
, la some cases, violations may be evali.ated in the aggregate and a single seventy level assigned for a group of violatims.
.. Civil pens! ties are designed to emphasise the need for lasting remedial actim and to deter future violations.
Civil penal 6cs are petrosed absent mitigating circumstances for Seventy Level I and II violatims, are cmsidered for Sevenry (Evel Ill violations, and may be imposed for Seventy
statement of Matenal Facts Whidt Are in Dispute. f4 Counsel gm en to nam
'the basis of Mr, Laeberman'a judganera certainly raius a quesum c( matenal fact... (h)ven if the vmlatinns were ptyerly tevel n! tiolanons. James Lieberman's statemcnt that the impmum of the fuie as bemg in amniance wah 10 CFR Pan 2 Appendan C.
. is a matenal fact in duputa"
--Id at 25-26 if the 6 asis for the Duector's judgman is to be uphc!d in accordance wah Cumnussmn reedaums.
it is cleady a questmn of law that will determme the outene.
226
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3 Level IV violatims that are similar to exvious violations for which the licensee did not take effective correcise actiert NRC reviews each proposed civil penalty case m its own merits and aJjusts the twe civil penalty ulues upward or downward appnyriately.
3De word "sunDar," as used in stus polwy, refers to Omse nolsums whwh enuld have been resumably expected to have bem prevented by the hcenece's enr ecuve action for the previous violauort Under Appendix C, Supplement IV, the Director identified an example of a Severity level 111 violation with significantly similar, if not identical, circums ices surrounding the AMS violations of 10 C.FA (120.101 and 20,102 regarding adequate radiation surveys and worker safety:
Substarsial potential for an exposure or eclease in excess of 10 C.FR. 20 m hether or not such exposure or releasc occurs (e.g., entry into high radiaticai areas, such as under reactor vessels or in the vicinity of exposed radiographic sources, without having perfartned an adequate survey, operation of a radiation facility with a rmnfunctioning intetlock system),i"]
Under Appendix C, Supplement VI, the Director identified another example of a Severity Level til violation that, while broader in scope than the previous example, is representative of the Licensec's obligation to folicw the express conditions of its materials license agreement under 10 C.F.R. parts 30 through 35 regarding rnaterials operations:'t Failure to control access to licensed materiats for radiatim purposes as specified by NRC requirements;[8]
We see no reason to disturb that portion of the Director's analysis Moreover, even if we were to consider the AMS violations to be Severity Level IV violations, the policy guidelines clearly allow the Director the discretion to impose fines for level IV, especially in the case of repeated violations, as is the case here, The AMS algument that its violations amount to " Level IV,
- 10 CSA Part 1 Apperxhs C, soppicmera IV - seventy Catesones, #sehA Phncs 10 CIA Part 20 $ CA 63 In stus context,10 Cf R. 6 30.3.t(e) staus:
i ne Cemnussim rnay irmrporate,in any hknse issued guesuant to the regulatons in thu part and Pans 31 thmugh 35 and 39, at the tune or the issuance, or lineaher by apprurmate rule, regulaum or order, l
such addisimal mquiremems and con &tims wah tespect to the hcensee's rsetpt, prosessim, use and uvister or byproduct matmal as at deems appmpriate or necessary in ader la (2) Pmaect heanh or a minuniza danger to hfe or propeny.
C j
10 CIA Part 1 Appedia C, supplemmt VI - seventy Cawgones, fuel Cycle amt Wrm. ale Opmrios, j
( C.I.
'3 I
As stated earher, AMs was rined s*it0 in 19g3 for an mennpmire with circumstances similar to the cucurnstances occumng ui Noveniber 1985.
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not Level 111" violations carries no weight. Accordingly, we fmd the Director's decision to impose the civil penalty in the amount of $6250 to be fully in accordance with Commission policy and see no reason to overturn the decision or to mitigate the penalty.-
IV.
There remains one matter the Board has decided on its own to address.
Counsel tor AMS has Prgued that " Summary Disposition is not the appropriate administrative action to take...."*' Counsel opines that "all interrogatories (ne] were conducted in the absence of AMS's Counsel. As such, AMS has had no opportunity for cross-examination.'" Counsel bormws language from Poller v. Columbia Broadcasting System, Inc., 368 U.S. 4M (1962),10 support an argument that can be interprrted no other way than to imply that AMS has been denied due process if summary disposition is granted. A succinct statemerit from Poller has been used in the AMS Answer to illustrate this point:*6 Trial ty affidsvit is no subsutute im trial ty jury which so lang has been the haltmark of
- cven handed justice."
We do not share the same view of summary disposition in the matter before us, for two reasons First, from the time AMS petitioned for a hearing on this matter (June 20,1989), or even from the time of the fding of the Staff's Motion (August 29, 1990) to the time the AMS Answer was submitted (October 4, 1990), there was significant passage of time to engage in voluntary disect cry and to solicit interrogatories and affidavits from the people who would have tu:en most informed on the circu*nstances taking place on the dates in questiy. 'I here are many indications that AMS had direct access to the facts, as it appears that several of the individuals that AMS relies upon to inake its case are either AMS employees or ex-employees located within close proximity to the AMS lacilities.
Moreover, even if adversarial posturir'S could have inhibited the effectiveness of voluntary discovery, we fmd nothing in the Commission's regulanons that would have prohibited Counsel for AMS from petitioning the Board for formal discovery even prior to a prehearing conference
- Second, our reading of Poller shows that case v; be concerned with issues not present in the case before us - foremost among them, conspiracy. AMS i
6' AMs Answer et 30.
"It at i t.
"Polke, mere. 36A U.s. at 473.
- The regulatory piuhabinon agairtst darmcry pner to a prcheanns confererre fmnd in 10 Cf112.*l40@O)is laused to "an appbcauon for a consuucuan Fernst or an crersung heense far a prr=tatmn a saduation facthty
- 228 l
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i misquotes from foller the exact language that should have alerted Counsel that the case is inapposite;"
We kx4, et the record cm summary judgement in the light most favorshic to.,, the party opicsing the motion, and conclude here that it should n<a have been granted We believe that
<ammary prxeJares should be used sparmgly in cinnples avitrust hiigation wActs eive an.f Lascar play leahis rdes, the pner is largely in the hands of the alleged cmspirators, and hostile witnesses thicken the pkw lemphases supphed) h is only when the witnesses are present and subject to crtes<mammation that their credibility and the weight to be given I
their testimony can be appraised.
Dere is no motive or intent at issue here, just facts. If there is no material factual dispute and the case can be decided as a matter of law, no due process has been denied.
V.
For all the foregoing reasons and upon consideration of the entire record in this matter, it is this 19th day of March 1991, ORDERED:
- 1. The NRC Staff Motion for Summary Disposition (August 29,1990) is granted;
- 2. Advanced Medical Systems, Inc., of Geneva, Ohio, is found to have violated Commission regulations and li.ense conditions as those violations have been set forth in the Notice of Violation and Proposed imposit'.i of Civil Penalties (June 28,1985);
- 3. The Order imposing Civil Monetary Penalties (May 30,1989) in the amount of $6250 issued by the Deputy Executive Director for Nuclear Materials Safety, Safeguards, and Operational Support is sustained; and
- 4. There being no additional issues pending in the matter, this Civil Penalty proceeding is terminated."
Pursuant to 10 C.F.R. 6 2.762, within 10 days after its service, any party may appeal this Memorandum and Order by filing a Notice of Appeal with the Commission. Each appellant shall file a brief supporting its position on appeal
'" AMS Answer at II.gavnag Peller, sera. 364 U s. at 471 Ws ran with desamst that Counsel far AMS omiued the Atsu,:es' reference to "arastrust" h6gation in the cited paragra[t m its Ansm
- one campanion caw remams pmdmg-la sAs Marrer cf A.lmced Meacal Sysumr. lac, (Deumtanuranon Order), Ixdet Na 34160350M, AsLBP No. s74$s-014Nt 229
within thirty (30) days. (or within forty (40) days if the Commission Staff is the appellant) after the filing of the Notice of Appeal,"
Tile ATOMIC SAFETY AND LICENSING BOARD Robert bl. Lazo, Chairman
.l ADhilNISTRATIVE JUDGE liarry Rireman (by R.M.L)
ADMINISTRATIVE JUDGE Ernest E. liill (by R.M.L)
ADMINISTRATIVE JUDGE Dethesda, hiaryland
- March 19,1991 (Administrative Judges liarry Breman and Ernest E. Ilill concur with this Memorandum and Order but were unavailable to sign this final draft of the decision.]
M5ee 10 Cf.R. 61715 as amended October 18.1990 (55 red. Reg 42,944. tk1L 24,1990) 230 x-. v
..m.
Cite as 33 NRC 231 (1991)
LDP-91 10 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMisslON ATOMIC SAFETY AND L10ENSING DOARD Before Administrative Judges:
Peter B. Bloch, Chair James H. Carpenter Charles N. Kolber in the Matter of Docket Hon. 50 327 OLA 50-328-OLA (ASLBP No.90-635 07-OLA)
(Technical Specifications, Work Schedules)
(Facility Operating Licenses Nos. DPR 77, DPR 79)
TENNESSEE VALLEY AUTHORITY (Sequoyah Nuclear Plant, Units 1 and 2)
March 18,1991*
Re Board dismissed this case on March 18, 1991, after a soluntary with-drawal of the petition based on e agreement of the parties that was encouraged by the Board.*
MEMORANDUM AND ORDEl' (Dismissal of Petition)
Memorandum On March 15, 1991, we received a telephone call from counsel for the Tennessee Valley Authority informing us that a settlement had teen achieved
- Re served Apnl 1,1991 231
and ttut we should :spect to receive by facsimile transmission a letter from James T. Springfield, ilusiness Manager, IBEW local 721 (Petitioner) to the Secretary of the Commission formally withdrawing the petition in this case.
The withdrawal request, which we received on the ISth, stated in part:
1T A and the Internathmal lirwhertaind llectrLal (llil:W) W<rkers met (m March It and
- 12. lWl, to dacuss etmccrns and wteked cut an (quitahic remluthm lYA and the lill:W haw cone to a puis understanarg whidi rrsolves safety um< tins. De lill:W anireciates ibc Atomic Safety and tiwning flourds' effics in helpmg bish parties resolve this intic.
Accordingly, after having verified by telephone that the Staff of the Commis-sion has no objection to dismissing this case (to which no party has officially j
twen admitted), we have decided to dismiss the proceeding pending before us.'
Order Rx all the foregoing reasons and upon consideration of the entire record in this nutter, it is, this 18th day of March,1991, ORDERED, that:
This case is dismined.
i Tile AlOMIC SAFETY AND LICENSING IlOARD James 11. Carpenter ADMINISTRATIVE JUDGE Charles N. Kelber ADMINISTRATIVE JUDGE Peter B. Bhx;h, Chair ADMINISTRNFIVE JUDGE Bethesda, Maryland I5ime the lamt or withdrawak wtuch was surpuble to the panics. &ies nin datas whether the pcttuon u wnhdraen *1th or =$1ut rapi6te (an usue that wuld be emponant only m the unkkely event that Pisiumer s myht to refde its peuumt we reach no dermm on that nsae.
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