ML20078D747

Nuclear Regulatory Commission Issuances for August 1994. Pages43-132

ML20078D747
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Issue date:	10/31/1994
From:	NRC OFFICE OF ADMINISTRATION (ADM)
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References
NUREG-0750, NUREG-0750-V40-N02, NUREG-750, NUREG-750-V40-N2, NUDOCS 9411080019
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Available from Superintendent of Documents U.S. Government Printing Office P.O. Box 37082 Washington, DC 20402-9328 A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.

Single copies of this publication are available from National Technical Informatio.1 Service Springfield, VA 22161 l

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Errors in this publication may be reported to the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301/415-6844)

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Vol. 40, No. 2 j

Pages43-132 i

I NUCLEAR REGULATORY i

COMMISSION ISSUANCES i

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August 1994 3

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.i This report includes the issuances received during the specified period

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from the Commission (CLI), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions j

(DD), and the Denials of Petitions for Rulemaking (DPRM).

l The summaries and headnotes preceding the opinions reported herein j

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

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U S. NUCLEAR REGULATORY COMMISSION i

Prepared by the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301/415-6844) l

i COMMISSIONERS Ivan Selin, Chairman Kenneth C. Rogers E. Gail de Planque i

B. Paul Cotter, Jr., Chief Admirustrative Judge, Atomic Safety and Licensing Board Panel l

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CONTENTS Issuances of the Nuclear Regulatory Commission GULF STATES UTILITIES COMPANY, et al.

(River Bend Station, Unit 1)

Docket 50-458-OLA MEMORANDUM AND ORDER, CLI-9410, August 23,1994 43 SEQUOYAH FUELS CORPORATION and GENERAL ATOMICS (Gore, Oklahoma Site)

Docket 40-8027-EA (Decontamination and Decommissioning Funding)

ORDER, CLI-9411, August 23,1994 55 SEQUOYAH FUELS CORPORATION and GENERAL ATOMICS (Gore, Oklahoma Site)

Docket 40-8027-EA (Decontamination and Decommissioning Funding)

MEMORANDUM AND ORDER, CLI-94-12, August 23,1994 64 SEQUOYAH FUELS CORPORATION and GENERAL ATOMICS (Gore, Oklahoma Site)

Docket 40-8027-EA (Decontamination and Decommissioning Funding)

MEMORANDUM AND ORDER, CLI-94-13 August 23,1994 78 Issuances of the Atomic Safety and Licensing Boards GEORGIA POWER COMPANY, et al.

(Vogtle Electric Generating Plant, Units 1 and 2)

Dockets 50-424-OLA-3,50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3)

(Re: License Amendment; Transfer to Southern Nuclear)

MEMORANDUM AND ORDER, LBP-94-24, August 18,1994.

83 GEORGIA POWER COMPANY, et al.

(Vogtle Electric Generating Plant, Units I and 2)

Dockets 50-424-OLA-3,50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3)

(Re: License Amendment; Transfer to Southern Nuclear)

MEMORANDUM AND ORDER, LBP-94-26 August 22,1994.

93 GEORGIA POWER COMPANY, et al.

(Vogtle Electric Generating Plant, Units I and 2)

Dockets 50-424-OLA-3,50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3) iii l

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(Re: License Amendment; Transfer to Southern Nuclear)

MEMORANDUM AND ORDER, LBP-94-27, August 26,1994.

103 INDIANA UNIVERSITY SCHOOL OF MEDICINE l

(Indianapolis, Indiana)

Docket 030-09792-CivP (ASLBP No. 94-689-02-CivP)

(EA 93-111)(Byproduct Material License No. 13-02752-08)

MEMORANDUM AND ORDER, LBP-94-28, August 29,1994...

I17 NUCLEAR SUPPORT SERVICES, INC.

l (Order Requiring the Removal of an Individual from NRC-Licensed j

or Regulated Activities and Order Directing Review of Personnel Security Files (Effective Immediately))

Docket EA 93-236 (ASLBP No. 94-692-05-EA)

MEMORANDUM AND ORDER, LBP-94-25, August 18,1994..

88 ONCOLOGY SERVICES CORPORATION l

Docket 030-31765-EA (ASLBP No. 93-674-03-EA)(EA 93-006)

(Order Suspending Byproduct Material License No 37-28540-01)

MEMORANDUM AND ORDER, LBP-94-29, August 31,1994.

. 123 ROBERT C. DAILEY (Order Prohibiting involvement in Certain NRC-Licensed or Regulated Activities (Effective Immediately))

Dockets IA 94-003 (ASLBP No. 94-691-04-EA) l MEMORANDUM AND ORDER, LBP-94-25, August 18,1994, 88 l

l SACRAMENTO MUNICIPAL UTILITY DISTRICT I

(Rancho Seco Nuclear Generating Station) 1 Docket 50-312-DCOM-R (ASLBP No. 93-677-01-DCOM-R)

(Decommissioning Plan)(Facility Operating License No. DPR-54)

MEMORANDUM AND ORDER, LBP-94-23. August i1.1994.

81 Issuance of Director's Decision ARIZONA PUBLIC SERVICE COMPANY (Palo Verde Nuclear Generating Station, Units 1,2, and 3)

Dockets 50-528,50-529,50-530 DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206, i

DD-94-8, August 12,1994.

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Cite as 40 NRC 43 (1994)

' CLl-94-10 UNITED STATES OF AMERICA 1

NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

tvan Selin, Chairman Kenneth C. Rogers j

E. Gail de Planque in the Matter of Docket No. 50-458-OLA GULF STATES UTILITIES COMPANY, et al.

(River Bend Station, Unit 1)

August 23,1994 The Commission considers the appeal of a Licensing Board decision, LBP-94-3, 39 NRC 31 (1994), which granted a request for intervention and for hearing on 19 applications submitted by the Gulf States Utilities Company (GSU). In one application, GSU sought to transfer its operating control over the River Bend nuclear power plant to a'new licensee. GSU's second application sought a license amendment to reflect a change in the ownership of GSU.

The Commission denies the appeal and affirms the Licensing Board's order, finding that the Petitioner has met the threshold requirements for standing and

' i an admissible contention.

RULES OF PRACTICE: STANDING TO INTERVENE To determine whether a petitioner has alleged the requisite interest to inter-vene, the Commission applies judicial concepts of standing.

RULES OF PRACTICE: STANDING TO INTERVENE For standing, a petitioner must allege a concrete and particularized injury that is fairly traceable to the challenged action and likely to be redressed by a favorable decision.

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RULES OF PRACTICE: STANDING TO INTERVENE In the absence of a clear misapplication of the facts or misunderstanding of law, the Licensing Board's judgment at the pleading stage that a party has crossed the standing threshold is entitled to substantial deference.

RULES OF PRACTICE: STANDING (INJURY IN FACT)

The Atomic Energy Act authorizes the Commission to accord protection from radiological injury to both health and property interests. See AEA, il103b, 161b,42 U.S.C. fi 2133(b), 2201(b).

REGULATIONS: INTERPRETATION Commission regulations recognize that underfunding can affect plant safety.

Under 10 C.F.R. 6 50.33(f)(2), applicants - with the exception of electric utilities - seeking to operate a facility must demonstrate that they possess or have reasonable assurance of obtaining the funds necessary to cover estimated operation costs for the period of the license. Behind the financial qualifications rule is a safety rationale.

RULES OF PRACTICE: CONTENTIONS Commission regulations mandate that a contention include a specific state-ment of the issue of law or fact to be raised or controverted, a brief explanation of the bases of the contention, and a concise statement of the alleged facts or expert opinion that support the contention, together with references to those spe-cific sources and document on which the petitioner intends to rely to prove the contention. The psitioner must also demonstrate that a genuine dispute exists with the applicant on a material issue of law or fact.

RULES OF PRACTICE: CONTENTIONS At the contention tiling stage the factual support necessary to show that a genuine dispute exists need not be in formal evidentiary form, nor be as strong as that necessary to withstand a summary disposition motion.

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MEMORANDUM AND ORDER I.

INTRODUCTION j

Pursuant to 10 C.F.R. 6 2.714a, the Gulf States Utilities Company (GSU) has

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appealed the Atomic Safety and Licensing Board's Memorandum and Order LBP-94-3,39 NRC 31 (1994). The Board found that the Cajun Electric Power Cooperative, Inc. (Cajun) has standing to intervene as a party in this proceeding I

and that one of Cajun's seven contentions is admissible. On appeal, GSU claims that Cajun lacks both standing and an admissible contention. The Nuclear Regulatory Commission (NRC) Staff concurs with the Licensing Board that Cajun has standing to intervene, but submits that the Board improperly admitted Cajun's contention. The Commission affirms LBP-94-3.

II. BACKGROUND GSU is a Texas corporation and holds a 7C% undivided interest in River Bend Station, Unit 1, located in Feliciana Parish, Louisiana. Cajun is a Louisiana i

cooperative corporation engaged in the transmission, distribution, and sale of electricity to rural electric distribution cooperatives. Cajun owns the remaining 30% undivided interest in River Bend. Specifically, this proceeding involves i

two separate applications filed by GSU in January 1993 for changes in the River Bend operating license. In one application, GSU sought to transfer control over River Bend's operations from itself to Entergy Operations, Inc. (EOI), pursuant to 10 C.F.R. 6 50.80. GSU's second application was for a license amendment to refleet a change in the ownership of GSU, which through a merger would become a wholly owned subsidiary of Entergy Corporation (Entergy). The merger would not affect River Bend's ownership. The NRC Staff has approved l

both applications. See 58 Fed. Re g. 68,182 (Dec. 23.1993).

l Cajun and GSU entered into a Ioint Ownership, Participation, and Operating Agreement (the JOPOA) in 197V. Under the agreement, Cajun and GSU, proportionate to their ownership interests. share the costs, expenses, and benefits of the River Bend Station. The agreement named GSU as the Licensee l

responsible for operating Riser Bend. Now, after the transfer of operating control requested by GSU, and pursuant to a new River Bend Station operating agreement executed by GSU and EOI, EOl is the new operator of the facility.

EOI is a wholly owned subsidiary of Entergy Corporation, and also operates nuclear stations for four other Entergy subsidiaries.

Before the Licensing Board, Cajun alleged that both the transfer of operating j

control to EOI and GSU's merger with Entergy raise concerns about the safety l

of River Bend's operations. Cajun alleges that EOI may lack sufficient funds l

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to operate the plant safely. Cajun states that EOl is thinly capitalized, and that under the new River Bend operating agreement between EOI and GSU, i

GSU bears the full obligation to compensate EOI for the plant's operations.

Accordingly, Cajun emphasizes that EOI will be dependeat upon GSU for the funds to carry out River Bend's operations, and cannot look to Entergy or to Cajun itself. Cajun alleges that GSU faces potentially severe financial exposure because of pending litigation with Cajun and with Texas regulators, and that potential litigation losses could result in GSU being unable to fund EOl adequately to maintain safe operations at River Bend.1 The Licensing Board first determined that Cajun has standing to intervene.

I Cajun seeks to protect its property interest in the River Bend facility from radiological harm. Cajun allegedly has invested approximately $1.6 billion for its 30% ownership share of River Bend. The Licensing Board concluded that radiological harm to Cajun's property interest is a protected interest under the Atomic Energy Act. LBP-94-3,39 NRC at 38. The Licensing Board also found J

that the alleged injury can be redressed because license conditions could be imposed to reduce the potential for injury to Cajun. See id. at 39.

i The Licensing Board admitted one of seven contentions proferred by Cajun.

The admitted contention alleges that proposed license amendments may result in a reduction in the margin of safety at River Bend. See id. at 41-42. The

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contention is based on claims identical to those that go to Cajun's standing:

j namely, that operations at River Bend may be underfunded because the new operator is thinly capitalized and intends to receive the bulk of its funding from 1

GSU, which in turn faces the risk of substantial fmancial losses from pending litigation and which, in the event it has difficulty funding EOi, will not receive any assistance in funding EO! from the Entergy Corporation, the parent of both GSU and EOI.

On appeal, GSU claims that the Licensing Board erred in granting Cajun's petition to intervene because Cajun lacks both standing and an acceptable con-tention. Brief in Support of GSU's Appeal (GSU Appeal Brief) at 17-18 (Feb.

15, 1994). In brief, GSU argues that Cajun never alleged how GSU's merger with Entergy, or how the operation of River Bend by EOi, could adversely affect Cajun's interests. GSU cmphasites that responsibility for funding River Bend's operations remains unchanged by the license amendments. GSU Appeal Brief I Calun has filed a lawsuit against GSU wncernmg Capun's ownenhap status in River Hend Cajun seeks to restmd its operaung agreenent with GsU and obt:nn damages of at least s16 billain for alleged misrepresentation Two of the Cajun Cooperanve's members also have filed suit agamst GsU. alleging that the operatsng agreenent between Cajun and GsU is null because n was never submmed to the Louisiana Pubhc Senice Commissk,n Cajun also hled two lawsuits in the D C. Careuit Coun of Appeals against the NRC attackmg (apparently on anntrust grounda the two beense amendments granted to GSU in thn proceedmg The Coun conschdated the two cases but has not set a bne6ng schedule Cajun states that GsU aho is mvolved in htigabon with the Pubhc Unbry Comrrusuon of Tesas, which dnallowed s63 5 milhon of River Bend plant costs, and ordered Gs0 to place in abeyance appnuumately $14 bilhon of sts in cunwnt j

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at 7,22-24. The responsibility for funding plant operations will remain with the plant owners, GSU and Cajun, in proportion to their ownership interests. Id.

at.24. GSU argues that EOI's " capitalization" is irrelevant because GSU is not relying on EOl to demonstrate financial qualifications, only to operate the plant.

GSU concludes that Cajun's interests in River Bend could be affected only if GSU is unable to meet its financial obligations to fund plant operations. Id.

at 18. GSU stresses that such an eventuality could result from GSU losing its pending litigation, but not from the two license amendments, which will have no effect on the pending litigation. See id. at 18,20,22. Moreover, GSU argues that the pending litigation against GSU is overly speculative a basis upon which to support Cajun's standing and contention. Id. at 23,36. Lastly, GSU claims that no link exists between a financial qualifications review and plant safety because if adequate funds are not available for safe operation, a plant simply can be shut down. See id at 34-35.

l The NRC Staff concurs with the Board's finding of standing, but argues that the Board erred in admitting the contention.2 The Staff claims that the transfer of operating control to EOI will affect neither GSU's obligation nor its ability to fund River Bend's operations, and therefore could not affect the plant's operations. Staff Appeal Brief at 9-10.

Ill. ANALYSIS A.

Cajun's Standing Under section 189a of the Atomic Energy Act, the Commission must provide a hearing upon the request of any person "whose interest may be affected j

by the proceeding." 42 U.S.C. R 2239(a). To determine whether a petitioner has alleged the requisite interest to intervene, the Commission applies judicial l

concepts of standing. See Clercland Electric Illuminaring Co. (Perry Nuclear Power Plant, Unit I), CLI-93-21,38 NRC 87,92 (1993)(Perry). For standing, a petitioner must allege a concrete and particularized injury that is fairly traceable to the challenged action and likely to be redressed by a favorable decision. See generally Lujan v. Defenders of WildHfe, i12 S. Ct. 2130,2l36 (l992); Perry, 38 NRC at 92. The injury must be to an interest that is arguably within the zone of interests protected by the governing statute. Injury may be actual or threatened. Wilderness Society v. Griles, 824 F.2d 4, i1 (D.C. Cir.1987); Perry, 38 NRC at 92.

In the absence of a clear misapplication of the facts or misunderstanding of law, the Licensing Board's judgment at the pleading stage that a party has 2 NRC staff Respese to GSU Appeal (Mar 119941(staff Appeal BneO at 4. 6.

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i crossed the standing threshold is entitled to substantial deference. "'[W]e are 1

not inclined to disturb a Licensing Board's conclusion that the requisite affected i

interest has been established unless it appears that that conclusion is irrational.'" Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), ALAB-273,1 NRC 492,494 (1975).3 "Ihe Licensing Board's conclusion here that Cajun has alleged sufficient l

interest and injury for threshold standing is not " irrational." The Atomic Energy Act expressly authorizes the Commission to accord protection from radiological i

l injury to both health and property interests. See AEA, il 103b,161b,42 U.S.C.

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l interest in the River Bend Station.

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il 2133(b),2201(b). Cajun alleges a threat of radiological harm to its property l

We reject GSU's argument that Cajun's stated interests are purely economic l

and "without a legitimate nexus to ' unsafe plant operation.'" GSU Appeal Brief i

at 18. Although seeking to protect a property interest, Cajun asserts an adverse impact on that interest from potentially unsafe operation of River Bend if the funding resources for the plant are unduly strained. As the Licensing Board recognized, such a claim is far different from the claims of disgruntled ratepayers or taxpayers whose complaints of rising rates or taxes have been rejected as a basis for standing in our proceedings. See 39 NRC at 37 (citing cases). Rather, Cajun's claim bears on safety in relation to the underlying financing for the plant, a matter that our regulations address.

Commission regulations recognize that underfunding can affect plant safety.

Under 10 C.F.R. 6 50.33(f)(2), applicants - with the exception of electric utilities - seeking to operate a facility must demonstrate that they possess or have reasonable assurance of obtaining the funds necessary to cover estimated operation costs for the period of the license. Behind the financial qualifications rule is a safety rationale. In drafting the original financial qualifications rule (which did not exempt utilities), the Atomic Energy Commission "'must have intuitively concluded that a licensee in financially straitened circumstances would be under more pressure to commit safety violations or take safety " shortcuts" than one in good fmancial shape.'"4 Indeed, the Commission has presumed that

"[slhortcuts in safety at full power conceivably could avoid shutdowns.

and thereby contribute to greater plant availability and revenue t' rom power sales."5 I

f 3 Onormt Nor'herer Siares her Co titairie Island Nuclear Carneranng Piara Um s I and 2). A1.AB-107, 6 AEC 18N.193 (197h afd twi otArr grounds. Cl.1-73-12. 6 AL.C 2411197h afd suh nom. Br/ t AEC. 502 F.2d 424 @ C. Car 1974) Ser sha Duquesar bpht Co- (Beaver vancy Power Smtmn. Umt it ALAB-109,6 AFC 243.244 (197h cf rargmsa Electric and Arr Co (Ninth Anna Power stauon. Units I and 2). At.AB-522.

9 NRC 54. 57 n.5 (1979:

4 Final Rule. Elienmanon of Review of Fmancial Quahficanons of Electric Uuhues m operahng 1.scense Review and Heermgs for Nuclear Power Plants. 49 Fed. Reg 35.747, 35.749 (Sept.12.1944t 5

Pubhc Smh e Ca of Nr= Hamp3here (seabrook stanon. Unns I and 2t CLI48-10,2N NRC 573,600 (1988K ser shu 49 Fed Reg 35.749 (sept 12.19k4t 48 l

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In addition to highlighting EOl's thin capitalization and GSU's potential inability to fund River Bend's operations because of litigation risks, Cajun also stresses that the merger will contribute to the potential for underfunded operations at River Bend. Through the merger, Entergy Corporation will become the parent of GSU. Entergy's obligations to EOI are found in a River Bend Station Guarantee Agreement (Guarantee Agreement) made by Entergy, GSU, and EOI. Under the agreement, Entergy will have no obligation to support EO!

financially if GSU ceases to fund EOI. And, according to Cajun, "EOl cannot look to Cajun for payment." 39 NRC at 39.6 Because of GSU's pending litigation risks, Cajun stresses that "[t]he possibility that GSU may be unable to fund EOI operations of River Bend.

is more than an academic concern." Cajun's Petition for Leave to Intervene (Aug. 6,1993) (Cajun's Petition) at 17.

Cajun claims that the merger results in Entergy and its shareholders being financially " insulated" from events involving EOI and GSU.7 After the merger, as reflected in the license amendment, GSU no longer is a publicly owned utility, but is a wholly owned subsidiary of the Entergy Corporation. GSU Appeal Brief at 7. Cajun explains that, before the merger, GSU shareholders would have been directly affected by a GSU bankruptcy, but t!.at after the merger Entergy shareholders will be " insulated from liability through the corporate structure of Entergy's subsidiaries, GSU and EOI." Id. at 21. Because Entergy and its shareholders would be protected from any fmancial responsibility related to the underfunding of River Bend if GSU ceases to fund EOI, Cajun concludes that "EOI may be unable to ensure the safe shutdown of River Bend in the event of a GSU bankruptcy." Id. at 21-22.

In sum, we cannot conclude that the Licensing Board's standing determina-tion was irrational. Whether the restructuring of GSU and the transfer of operating control to EOI ultimately harms or enhances River Bend's operation is a matter over which Cajun and GSU sharply disagree. It may well be that the two actions cannot be shown to have an impact on the safety of River Bend or that our regulations require no more demonstration of financial qualifications than that already found adequate by the Staff. But such findings would require us to reach beyond the minimum threshold for standing. Although we accept the Board's determination that Cajun has made a sufficient showing for threshold standing on the pleadings, we do not intimate any opinion on the merits of Cajun's claims, which upon further factual development may prove inadequate to survise the summary disposition stage.

GSU also argues on appeal that "[b]y rejecting the fact that two - not one

-license amendment applications are at issue and collapsing both amendments into a single proceeding, the Licensing Board erroneously concluded that

'See alm Cajun's Bnef in oppoutwn to G5U's Apgal(Mar 2,1%4 (Cajun Appal Bnef t at 21 7 5re Camn Appeal Dnef at 6.

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i separate standing (and a separate admissible contention) need not be established i

in connection with each license amendment.'

GSU Appeal Brief at 13.

GSU submits that the Licensing Board's analysis involves only the transfer of l

operating control to EOl and does not reflect any assessment of the potential 1

impact to Cajun's interests from the merger of GSU with Entergy. See id. at 14-

15. GSU complains that the Board did not make separate findings of standing and, in failing to do so, bootstrapped its jurisdiction over the merger amendment.

l Although we concur with GSU that licensing boards do not have the liberty to assume jurisdiction over separate license amendments and hold a hearing simply

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l because the same facility and same parties may be involved, we do not believe that the Licensing Board here has overstepped the bounds ofits authority. A fair j

reading of Cajun's initial pleadings reflects that Cajun sought a hearing on both licensing actions.8 The Board concluded that "the two amendments appear to be i

different facets of the same undertaking." LBP-94-3,39 NRC at 37. We note, j

too, that GSU itself has linked the two actions. In its application for the transfer t

j of operating control to EOI, GSU declared that the application was " submitted in I

contemplation of the proposed merger, and would become effective only upon 1

consummation of the merger."' On appeal, GSU emphasizes that even had the

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transfer of control been denied, the merger could have proceeded as a matter of law," but this assertion does not crase an apparent relationship between the actions.

In context, the Licensing Board's finding of standing goes to both challenged amendments. The Board noted that both amendments could increase the poten-tial for underfunded operations at River Bend, and that thus both amendments "are contributors to Cajun's standing arguments." Id. at 38.

At this stage we accept, as the Licensing Board has found, that the issues pertaining to both the transfer of control and the merger may overlap, and that Cajun's alleged injury could result from both actions in tandem. De Board also has found Cajun's admitted contention pertinent to both actions, and we affirm the threshold admission of the contention in the next section of this Order.

Although further litigation of Cajun's contention may well show it to be of little consequence to one or both of the licensing actions at issue, we discern no reason on the basis of the minimal record before us to disturb the Board's conclusions.

l Sec. c a. Cajun's Anrndment and Supplenent to Pennon, at 54 (Aug 31.1991). We nue that Ca.run's 8

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onpnal Pennon referred to the federaf Regater nonce for the pnposed nerger anrndment. while the Pennon l

highhghted dr proposed transfer of control, the notice of which appeared on the following page m the federal Rrgurer. when the offwe of the Secretary (51 CY) refened Cajun's petinon to the tjcensing flourd on August i

17. 199,1 SLCY noted only the proposed nrrger amendment in m supplement. Cajun clanhed its innenrien to contest both propowd hcenang actams To the essent that any detect euued m the enabbshnent of de !Jcenung Board. we rennne it now.

'Istier from P.D Graham. GSU. to NRC Document Control Desk at I dan D.1993) (attached to letter from Mark weiterhan. GsU counwl. to NRC Anonuc S.ifety tacenung Bond (Sept 1.1993

• GSU Appeal Bref at 15 50 I

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To the extent that the Board consolidated its consideration of the amendments it is empowered to do so under 10 C.F.R.12.716 when reasonable. We generally will defer to the Licensing Board's judgment on consolidation. See Safety Light Corp. (Bloomsburg Site Decontamination and License Renewal Denials), CLI-9213,36 NRC 79,89-90 (1992).

B.

Cajun's Contention Ihr admission as a pany, a petitioner for intervention must proffer at least one admissible contention. He standards for an admissible contention are found under 10 C.F.R. l 2.714(b)(2) and (d)(2). Commission regulations mandate that a contention include a specific statement of the issue of law or fact to be raised or controverted, a brief explanation of the bases of the contention, and a concise statement of the alleged facts or expert opiniori that support the contention, together with references to those specific sources and documents on which the petitioner intends to rely to prove the contention. The petitioner also must demonstrate that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions must fall within the scope of the issues set forth in the notice of the proposed licensing action. See Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units I and 2), ALAB-316, 3 NRC 167, 170-71 (1976).

The contention rule, however, does not require Cajun to prove its case at this point. At the contention filing stage the factual support necessary to show that a genuine dispute exists need not be in formal evidentiary form, nor be as strong.

as that necessary to withstand a summary disposition motion. What is required is "a minimal showing that material facts are in dispute, thereby demonstrating I

that an ' inquiry in depth' is appropriate."il The Licensing Board admitted only one of Cajun's seven proffered con-tentions. The admitted contention alleges that "the proposed license amend-l ments may result in a significant reduction in the margin of safety." LBP-94-3, 39 NRC at 41.n Central to Cajun's contention is the concern that EOI will lack adequate funds to operate River Bend safely.

Cajun's bases for the contention can be summarized as follows:

U Final Rule. Rules of Pracuce for Domesuc tuensing Proceedings - Procedural ChanFes in the Heanng Process.

33168. 31.173 ( Aug i1.198H, qwitag Cunnecucur SanArrs Aswrwrion i Baard of Gmernors. 627 F 2d 245 (D C. Cir.1980)

U GSU subrruts that Cajun s cententum contains a fatal defect because the 'ma' Fin of safety" stand.trd ts a term of art that concerns only whether a "signihcant hazards conuderatwn" esists that could affect the imung of the effetuseness of the hcenung acnons. He do nos beheve that the espresnon margm of safety" has been uxd as a term of art sa this manner by either Cajun or the txenung Board We understand Cajun to be alleFing an l

adverse impact on saicry 51 l

1.

'Ihe new River Bend Operating Agreement underlying the transfer of operating control to EOI runs only between GSU and EOI. Under the agreement, GSU is obligated to provide all of EOl's funding for l

River Bend's operations. As a result, EOI will be dependent upon GSU for the funds necessary to operate River Bend.

2.

EOl is thinly capitalized. Consequently, if GSU ceases to make its operating payments, EOI will have no other source of funds to maintain safe River Bend operations.

3.

GSU faces severe financial exposure from litigation with Cajun and from Texas regulatory proceedings. Losses could render GSU unable to make sufficient payments to EO! for continued safe plant operations.

4.

Under the merger agreement, Entergy Corporation, the parent of GSU and EOI, will not be responsible for funding EOl's operation of River Bend if GSU ceases to fund EOI.

See id. at 41.

As the Licensing Board found, the arguments both in support of and against the contention are similar to the arguments presented on Cajun's standing.

See 39 NRC at 42. Both GSU and Staff stress that the license amendments cannot affect River Bend's safety because funding for the plant's operations will remain primarily the responsibility of GSU, and GSU's financial exposure from litigation risks exists regardless of the amendments. Consequently, GSU believes EOl's financial qualifications to be irrelevant to the proposed actions.

We cannot accept GSU's conclusion that "[t]he financial qualitication of EOI is not at issue in this proceeding." GSU Appeal Brief at 32-33. Our regulations make EOl's financial qualification an issue. See p. 48, supra. GSU's arguments l

simply fail to recognize that EOI as the new operator is subject to the financial qualifications rule, and that the reliability of funding for River Bend's operations has been placed into question. Cajun's contention and its bases bear directly on whether the Commission's regulations are satisfied..

GSU's conclusion that "[t]he financial status of River Bend is, at worst, I

unchanged by the merger and likely is improved,"" may upon inquiry prove to be true, but is open to some question. We note that Staff, which objects to the admission of the contention for generally the same reasons as GSU, states I

that it has examined the financial qualifications of EO! and found "the requisite reasonable assurance of source of funds in the Operating Agreement between l

GSU and EOI." Staff Appeal Brief at 10 n.6. But this conclusion merely restates

[

the Staff decision. It is contested by Cajun. A Staff conclusion alone is not l

enough to defeat Cajun's right to litigate a contention.

U Gs0 Appeal Bnef as 33 52

i The Licensing Board found that the terms of the merger agreement contribute to the potential for underfunding. 39 NRC at 38. At this stage, we are unable to resolve whether corporate restructuring under the merger will result in " insulation" from liability that can contribute to EOl's potential inability to safely operate or safely shut down the facility. We also cannot assess with finality the significance of the pending lawsuits against GSU." or the significance of

)

the new operating agreement making GSU solely responsible for funding River Bend's operations? We cannot say, however, that the Licensing Board erred in finding that Cajun has delineated a basis for further inquiry into its contention that underfunding of operations may occur.

How much further examination the contention warrants must now be resolved by the Licensing Board. In sum, all we decide today is that Cajun has met the minimum threshold for the admission ofits contention. Cajun has explained the bases, and identified facts and other matters supporting its contention. When Cajun's position is viewed in a light favorable to the petitioner,'* we are unable to conclude that the contention and its bases are wholly immaterial or fail to show a genuine dispute on a material matter. Without engaging in a greater inquiry, more appropriate for a later stage of this proceeding, we cannot resolve the significance of Cajun's allegations about the potential combined effect of EOl's thin capitalization, GSU's financial exposure, and a new corporate structure under Entergy.

IV.

CONCLUSION For the reasons stated in this decision. GSU's appeal is denied and the Licensing Board's order in LBP-94-3 is affirmed.

"GSU clans that the deFree of nnancial exposure f aced by Gs0 is too speculauve to serve as a basis for Cajun's contenuon Yet the hei auon pending agasnst GSU has been conudered of signahcance by the NRC staff F

When ttr staff apposed the two apphcanons at issue on December 16.196 Staff mcluded a hcense condinon requinng GSU to inform the Director of Nuclear Reactor Regulation within 30 days of any award of damages in the htigation between Cajun and Gsli See. e r. Arnendneni No. 69 to laahty Operaung tjcense Na NPF-47 l

(Dec.16.199h at 2 In adinon. Cajun notes that i ntergy m as planned nerger specihcally sacluded condmons that would allow at to withdraw from the merger if the Caiun langarmn results in a decision agamst GSU before the merger is consumnwed Cajun's Anrndment & supplenwnt to Pennon to 1mervene at 10 Thus, suthenem mterest in GsU's peneng huganon has been raised by both the NRC staff and Eniergy that we sannot asmiss Capun's concern as overly speculatne "GsU maintams that although under the new operaung agreenwnt. Lo! will look only to GSU for the funds to operate River Bend. ulumately the funding for River Bend will nos be changed GSU esplains that the aruttal l

operatmg agreement between GSU and Cajun will remam m effeci This agreernem has required and will commue to require Caiun to provide 30% of the funds necewary for River Hend's operanons Gs0 Appeal Bnef at 32.

The potennal effects of the trw operatmg aFreement's direct fundmg relanonshsp between Gs0 and Lol renuuns ursicar to us at this stage We cantwx corristably conclude from the hmised record before us that die new operstmg agreemem's 6nanaal arrangenrm will not afleet River Benes fundmg "See Anwna hhler Senre Co iPalo Verde Nuclear Generatmg sianon. L'niis 1. 2. and 31. CL19 8 12, 34 NRC 149.155 U991L 53

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l it is so ORDERED.

l 1

For the Commission JOHN C. HOYLE Acting Secretary of the Commission i

Dated at Rockville, Maryland, j

this 23d day of August 1994.

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Cite as 40 NRC 55 (1994)

CLl-94-11 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Ivan Selin, Chairman Kenneth C. Rogers E. Gail de Planque in the Matter of Docket No. 40-8027 EA (Decontamination and i

Decommissioning Funding)

SEQUOYAH FUELS CORPORATION I

and GENERAL ATOMICS (Gore, Oklahoma Site)

August 23,1994 j

.l General Atomics ("GA") filed with the Commission 'a pleading styled "Pe-l tition for Review and/or Motion for Directed Certification" of an interlocutory.

order (LBP-94-17, 39 NRC 359 (1994)) issued by the Licensing Board. In that i

pleading, GA challenged the Licensing Board's denial of GA's motion seeking either an order granting summary disposition in its favor regarding all issues in this proceeding or an order of dismissal. The issue on appeal is whether, pursuant to 10 C.F.R. 5 2.786(g), the Commission should exercise its discretion i

l.

to review the Licensing Board's interlocutory order The Commission denies l

GA's Petition on the ground that it fails to satisfy either of the two conditions I

for interlocutory review set forth in 10 C.F.R. 5 2.786(g).

RULES OF PRACTICE: INTERLOCUTORY APPEALS.

(DISCRETIONARY REVIEW; DIRECTED CERTIFICATION);

INTERLOCUTORY REVIEW (DIRECTED CERTIFICATION) 7he Commission in this proceeding treats a challenge to an interlocutory order as a Petition for Review under 10 C.F.R. 6 2.786 rather than as a Motion for Directed Certification under 10 C.F.R. Ii 2.718(i) and 2.730(f).

l 55 l

RULES OF PRACTICE: INTERLOCUTORY APPEALS The Commission has a longstanding policy disfavoring interlocutory review (other than appeals pursuant to 10 C.F.R. 6 2.714a), and will undertake such review only in the most compelling circumstances.

RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REilEW).

A licensing board decision refusing to dismiss a party from a proceeding does not, without more, constitute a compelling circumstance justifying interlocutory review.

I RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REVIEW; DIRECTED CERTIFICATION);

INTERLOCUTORY REVIEW (DIRECTED CERTIFICATION)

The Commission, under its present appellate system, has entertained petitions for review of an otherwise interlocutory order - akin to a motion for directed -

certification - if the petitioner can satisfy one of the criteria under section 2.786(g).

RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REVIEW)

Section 2.786(g) of the Commission's regulations allows interlocutory review only where the question presented either: "(1) Threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officer's final decisian; or (2) Affects the basic structure of the proceeding in a pervasive or unusual manner."

i APPEAL BOARD (S): PRECEDENTIAL WEIGIIT ACCORDED DECISIONS The Commission abolished the Atomic Safety and Licensing Appeal Board l

Panel in 1991, but its decisions still carry precedential weight.

RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REVIEW; IRREPARABLE ISIPACT)

)

It is well established in Commission jurisprudence that the mere commitment of resources to a hearing that may later prove to have been unnecessary does 56

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not constitute sufficient grounds for an interlocutory review of a licensing board order.

RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REVIEW; IRREPARABLE IhlPACT)

A party may not obtain interlocutory review merely by asserting potential j

delay and increased expense attributable to an allegedly erroneous ruling by the j

licensing board.

RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REVIEW; IRREPARABLE ISIPACT);

BURDEN OF PROOF l

Mere generalized representations by counsel or unsubstantiated assertions l.

regarding "immediate and serious irreparable impact" are insufficient to satisfy l

movant's burden of proof.

i RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REVIEW; IRREPARABLE INIPACT)

The Comaission sees no " substantial harm" arising from a party's continued involvement in a proceeding until the licensing board can resche factual questions pertinent to the Commission's jurisdiction.

RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REVIEW; BASIC STRUCTURE)

Although a definitive ruling by the licensing board that the Commission actually has jurisdiction might rise to the level of a pervasive or unusual effect upon the nature of the proceeding, a preliminary ruling that mere factual

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development is necessary does not rise to that level.

I RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REVIEW; BASIC STRUCTURE)

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The fact that an appealed ruling touches on a jurisdictional issue does not, in and of itself, mandate interlocutory review.

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RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REVIEW; BASIC STRUCTURE)

'Ihe mere issuance of a ruling that is imponant or novel does not, without more, change the basic structure of a proceeding, and thereby justify interlocu-tory review.

ORDER DENYING PETITION FOR INTERLOCUTORY REVIEW AND/OR SIOTION FOR DIRECTED CERTIFICATION On June 24, 1994, General Atomics ("GA") filed with the Commission a

" Petition for Review of LBP-94-17 and/or Motion for Directed Certification"

(" Petition")) In that filing, GA challenged the Licensing Board's denial of GA's February 17,1994 motion seeking either an order granting summary disposition in its favor regarding all issues in this proceeding or an order of dismissal. We deny GA's Petition.

BACKGROUND NRC Staff initiated this proceeding on October 15, 1993, by issuing an order (" Staff Order") holding Sequoyah Fuels Corporation ("SFC") and its parent company, GA, jointly and severally liable for providing (1) the..ecessary

" funding to continue remediation" of the contamination at SFC's facility in Gore, Oklahoma; (2) " financial assurance for decommissioni'ig" of that facility; and (3)"an updated detailed cost estimate for decommissioning and a plan fer assuring the availability of adequate funds for completion of decommissioning."

Staff Order,58 Fed. Reg. 55,087, 55,092 (Oct. 25,1993). Staff concluded that GA was liable because it had constructive or " defacto control" over SFC's daily activities. Id. at 55,091.

On February 17, 1994, GA filed with the Licensing Board a motion for summary disposition or, in the alternative, for dismissal. In that motion, GA asserted that the statutes relied upon in the Staff Order do not authorize the Staff to assert jurisdiction over GA in this proceeding or to impose upon it the non-civil-penalty financial liability set forth in the Staff Order.

On April 28,1994, the Licensing Board denied GA's February 17th Motion, and set forth its reasons in a Memorandum issued June 8,1994. LBP-94-17,

' The Comnusen treais GNs rihng as a Peutma for Renew under 10 C F R I 2.7% See Unpubhshed order in this docket. dared June 29. WM (expanihng the hhng penod and the page hnut set fords in secuan 2 786) 58 i

39 NRC 359. The Licensing Board explained that the jurisdictional issue was fact-based, that factual issues underlying the jurisdictional question remained in controversy and that, consequently, the resolution of the jurisdictional question "must await the development of litigative factual issues before [the BoardJ." Id.

at 363. See also id. at 364-65.

On June 24, 1994, GA filed the instant Petition pursuant to 10 C.F.R.

il2.718(i) and 2.786(g)(1), (2). The NRC Staff and the two intervenors in this proceeding oppose GA's Petition.

APPLICABLE LEGAL STANDARDS The Commission has a longstanding policy disfavoring interlocutory review (other than appeals pursuant to 10 C.F.R. 6 2.714a), and will undertake such review only in the most compelling circumstances. See, e.g., Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), CL1 )

2, 39 NRC 91, 93 (1994). See also Ari:ona Public Service Co. (Palo Verde Nuclear Generating Station Units 2 and 3), ALAB-742,18 NRC 380, 383 (1983); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504,8 NRC 406,410 (1978).2 A licensing board decision refusing to dismiss a party from a proceeding does not, without more, constitute such a compelling circumstance. See Cleveland Electric lliuminating Co. (Perry Nuclear Power Plant, Units I and 2), ALAB-736,18 NRC 165,166 (1983).

"Under our present appellate system, we have entertained petitions for review of an otherwise interlocutory order - akin to a motion for directed certification

-if the petitioner can satisfy one of the criteria under section 2.786(g)." Rancho Seco, 39 NRC at 93. That section allows interlocutory review only where the question presented either:

(1) Threatens the party adsersely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officer's final decision; or (2) Affects the baste structure of the proceeding in a pervasive or unusual manner.

10 C.F.R. 9 2.786(g)(!), (2).

2 We refer throughout this opinien to Appeal Board decmons. The Cummisuon abohshed the Atomic Safety and Licenang Appeal Board Panel n 1991, but its deemons sull carry precedenual weight See f inal Rule. Procedures for threct Comnusuon Reuem of Prending otheers 56 Fed Reg 29.403 done 27.1991); hnal Rule. Innenm Procedures for Agency Appellate Reuew, 55 Fed Reg 42.944 (Oct. 24.19O. Propowd Rule, opuons and Procedures for Direct Comrmmon Review of Lscenung Board Decmuns. 55 Fed Reg 42.947 Rkt 24.199th 59

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l TIIE PETITION f

j GA in its Petition asserts that the Licensing Board erred in ruling that the " resolution of the jurisdictional matter must await the development of the litigative factual issues before [the BoardJ." Petition at 2, quoting LBP-94-17, 39 NRC at 363. GA offers the following three arguments why this error requires immediate Commission attention.

GA's first argument is that the challenged ruling, if allowed to stand, would impose upon GA the following four immediate and serious irreparable impacts i

l (the test set forth in section 2.786(g)(1)): substantial litigation costs, and substantial risks to GA's credit rating, ability to obtain financing, and ability to carry on its work. Petition at 10.

Second, GA asserts that the ruling affects the basic structure of this proceed-ing in a pervasive or unusual manner (me test set forth in section 2.786(g)(2));

is based upon a legal conclusion without governing precedent; and raises a sub-stantial and important question of law and policy. Petition at 2,11. In support, j

GA cites Safety Light Corp. (Bloomsburg Site Decontamination), ALAB-931, l

31 NRC 350, 361 (1990) (" Safety Light"), for the proposition that a licensing board's view of its own jurisdictional boundaries affects the basic structure of a proceeding and has a significant and pervasive effect upon the proceeding.

GA also argues that the question is one of first impression, and that it affects j

the jurisdiction of not only the Licensing Board but also the Commission itself.

l Petition at 11, Finally, GA points out that the Commissi.n routinely grants interlocutory review where a party satisfies either of the criteria set forth in section 2.786(g).

Id.. citing Oncology Services Corp., CL1-93-13, 37 NRC 419, 420-21 (1993)

(" Oncology"); Georgia Power Co. (Vogtle Electric Generating Plant, Units I and 2). CLI-94-5, 39 NRC 190 (1994) ("Vogtle"); and Statement of Policy on Conduct of Licensing Proceedings, CLl-81-8.13 NRC 452,456-57 (l981)

(" Policy Statement").'

1 DISCUSSION l

'Ihe issue now pending before the Commission is whether, pursuant to 10 l

C.F.R. f 2.786(g), the Commission should exercise its discretion to review the l

Licensing Board's interlocutory order denying GA's February 17th motion for l

summary disposition or dismissal. For the reasons set forth below, we conclude 3 GA aho comends that three recent deemons by the t.'nited staics Suprerne Court support ns poution that the Commimon lacks authonty to impose retroactnely on GA any hahnhty for decommissiorung costs. Pettnen at 11 15. However, because we are denymg the Peutwn. *e do n s viced to reach the usue whether the three cases support GA's substanove argunctws.

60 l

that GA's Petition satisfies neither of the two conditions for interlocutory review set forth in section 2.786(g).

1.

Immediate and Serious irreparable impact GA, in asserting that its expected litigation costs constitute an immediate and serious irreparable impact, fails to distinguish its situation from those of numerous other parties whose similar arguments have been rejected in other proceedings.* It is well established in Commission jurisprudence that the mere commitment of resources to a hearing that may later prove to have been unnecessary does not constitute sufficient grounds for an interlocutory review of a Licensing Board order. See, e.g., Ismg IslandI,ighting Co. (Shoreham Nuclear Power Station Unit 1), ALAB-861,25 NRC 129,138-39 (1987)("Shoreham");

Public Service Co. ofNew flampshire (Seabrook Station, Units I and 2), ALAB-858, 25 NRC 17, 21-22 (1987); Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-116,6 AEC 258,259 (1973). Nor may a party obtain interlocutory review merely by asserting potential delay and increased expense attributable to an allegedly e.roneous ruling by the Licensing Board. See, e.g.,

Virginia Electric and Power Co. (North Anna Power Station, Units I and 2),

ALAB 741,18 NRC 371,378 n.11 (1983), and authority cited therein.

Regarding GA's remaining three assertions of " irreparable impact," GA l

provides no substantiation that it will suffer "immediate and serious" risks to its credit rating, ability to obtain financing, and ability to carry on its work. Nor does it cite any legal authority to support its claim t'iat such risks constitute the kind of "immediate and serious irreparable impact" contemplated in section 2.786(g)(1). Mere generalized representations by counsel are not enough. See l

Commomsealth Edison Co. (Byron Nuclear Power Station, Units I and 2),

ALAB-735,18 NRC 19,23-24 (1983), and authority cited therein; Shoreham, supra, 25 NRC at 138-39. GA's unsubstantiated assertions, in short, do not persuade us that interlocutory review is necessary to prevent an " irreparable impact." Cf Consolidated Edison Co. of New York (Indian Point, Units I, 2, I

and 3), CLI-77-2,5 NRC 13,14 (1977)(burden of persuasion with the movant);

10 C.F.R. l 2.732.

GA also relies on two Commission decisions, Vogtle and Oncology, supra.

l and a policy statement to support the proposition that the Commission grants l

interlocutory review where a party satisfies either criterion set forth in section 2.786(g). Petition at 11. But that proposition was already obvious from the l

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1. GA nself recently raised a sirrular argunrnt in requestmg a stay of discovery until we ruled on the instant Petinon. GA asserted. mrer a!a, that its incurrence of potennally unnecessary huganon coMs dunng the pendency of the Peuuon would consuivic an irreparable injury" jusufymg the requessed stay We denied GCs request.

largely because we did not conuder the incurrence of such cosas to consutute un 'trreparable snJury " CLIM9.

40 NRC 1. 6 7 0994) 61 l

i

plain terms of section 2.786(g). Nothing in Vogtle or Oncology helps GA here because, unlike this case, they involved clear instances of immediate and tangible risks of irreparable impact. See Vogtle, 39 NRC at 193; Oncology, 37 NRC at 421. The Policy Statement is similarly unhelpful, as it refers to interlocutory l

appeals only generally and nowhere suggests that such appeals are permissible in situations like GA's. See CLI-818,13 NRC at 456-57.

We instead find persuasive a decision in which the Appeal Board declined to grant interlocutory review regarding an issue somewhat similar to the one in this j

proceeding. In Public Service Co. ofIndiana (Marble Hill Nuclear Generating Station, Units I and 2), ALAB-405,5 NRC 1190 (1977), the Appeal Board was faced with a Licensing Board's referred ruling that all proposed co-owners of a nuclear generating facility should be treated as " defacto co-applicants" with the j

" lead" applicant (LBP-77-4,5 NRC 433,434 (1977)). In declining review, the j

Appeal Board concluded that "the ruling below.. does not appear to threaten the co-owners with any substantial harm to their interests which could not bc j

alleviated by an appeal to us at the conclusion of the proceeding." /d. at i192 (footnote omitted). A fortiori. we see no " substantial harm" arising from GA's continued involvement in this proceeding until the Licensing Board can compile a record and conduct a factual inquiry on whether GA has "de facto control" over SFC's daily activities (58 Fed. Reg. at 55,091) and is thereby subject to the Commission's jurisdiction.5 2.

Pervasive or Unusual Effect on the Basic Structure of the Proceeding GA cites Safety Light for the proposition that a licensing board's view of its own jurisdictional boundaries affects the basic structure of a proceeding and has a significant and pervasive effect upon the proceeding. Safely Light is distinguishable. The Licensing Board decision which the Appeal Board reviewed in that case confirmed the Commission's jurisdiction over parties that were denying the existence of such jurisdiction. By contrast, the Licensing Board decision as. issue in the instant proceeding never reached the question whether

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the Commission has jurisdiction over such a party. Instead, the Licensing Board I

here ruled merely that the jurisdictional issue cannot be resolved without further factual inquiry. See supra note 3.

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5 Cf Data Dur. Inc. 6 Sisicm; Techewiny Auooares. 557 F.2d 1280.12Es (9ih Cw 1977)(if questionn of fact j

i are raised on a Rule 12ibx2p rnouon challengmg penonal jurndsction. she court has discretwn to take enden(c j

at a prehnunary heanng). ohto Narmnal Lfc /mraarc Co i Cmted Stairs. 922 r 2d 320. 325 (6th Cir.1990)

("(wlhen facts presented to the disinct court gne nse to f actual coreroversy. He dutrwt court rnu>t therekte weigh the confhetmg endence to arnve as a factual perdicate that subject rnatter Junsdienon cants or does not etnt")'.

2A Janes W. Moore er ut. Altmre 's frJeral Practue 112 07[2 11 at p 12-54. and 112 0712. 21 at pp 12 69 to 12-70 Cd ed 1994p. $A sd 152 08 at pp 52-156 to 52.I57 (2d ed 199h 62 1

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l Although a definitive mling by the Licensing Board that the Comnussion actually has jurisdiction over GA in this proceeding might rise to the level of a pervasive or unusual effect upon the nature of the proceeding, the prelitninary ruling on appeal here does not. The fact that an appealed ruling touches on a jurisdictional issue does not, in and of itself, mandate interlocutory review.

See Safety Light Corp. (Bloomsburg Site Decontamination), CLI-92-9,35 NRC 156 (1992). Similarly, the mere issuance of a ruling that is important or novel does not, without more, change the basic structure of a proceeding. See Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units I and 2).

ALAB-817,22 NRC 470,474 & nn.16-17 (1985), and authority cited therein.

CONCLUSION For the reasons set forth above, we consider it premature to undertake a review of the jerisdictional issue at this early a stage of the proceeding. See Safety i

Light CL1-92-9. 35 NRC at 160. Consequently, General Atomics' Petition for Review and/or Motion for Directed Certification is denied.

It is so ORDERED.

For the Commission JOHN C. HOYLE Acting Secretary of the Commission i

l Dated at Rockville, Maryland, I

this 23d day of August 1994.

j 63 i

i k

Cite as 40 NRC 64 (1994)

CLI-94-12 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION s

COMMISSIONERS:

Ivan Selin, Chairman Kenneth C. Rogers E. Gail de Planque in the Matter of Docket No. 40-8027-EA -

(Decontamination and Decommissioning Funding).

SEGOOYAH FUELS CORPORATION i

and GENERAL ATOMICS (Gore, Oklahoma Site)

August 23,1994 In an enforcement proceeding involving funding for decontamination and decommissioning of the Sequoyah Fuels Facil.ty near Gore, Oklahoma, the Commission denies appeals of the Atomic Safety and Licensing Board's orders LBP-94-5, 39 NRC 54 (1994), and LBP-94-8, 39 NRC 116 (1994), which granted intervention to a petitioner who favors the enforcement action. he l

Commission affirms LBP-94-5 which Franted standing and affirms LBP-94-8 l

only to the extent that it relied upon this finding of standing.

1%TORCEA1ENT ACTION:. SCOPE OF PUBLIC PARTICIPATION I

De Commission has authority to define the scope of public participation in its proceedings beyond that which is required by statute Consistent with this i

authority the Commission permits participation by those who can show that l

they have a cognizable interest that may be adversely affected if the proceeding i

has one outcome rather than another, including those who favor an enforcement l

action.

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ENFORCEN1ENT ACTIONS: AGENCY DISCRETION l

Intervention by interested persons who support an enforcement action does not diminish the agency's discretion in initiating enforcement proceedings because the Commission need not hold a hearing on whether another path should have been taken. The Commission may lawfully limit a hearing to consideration of the remedy or sanction proposed in the order.

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ENFORCEMENT ACTIONS: SETTLDIENT AGREENIENTS In enforcement proceedings, settlements between the Staff and the licensee, once a matter has been noticed for hearing, are subject to review by the presiding officer. 10 C.F.R. 9 2.203. Thus, once an enforcement order has been set for hearing at a licensee's request, the NRC Staff no longer has untrammeled l

discretion to offer or accept a compromise or settlement.

RULES OF PRACTICE: STANDING TO INTERVENE At the heart of the standing inquiry is whether the petitioner has alleged such a personal stake in the outcome of the controversy as to demonstrate that

- a concrete adverseness exists which will sharpen the presentation of issues. To -

demonstrate such a " personal stake," the Commission applies contemporaneous :

judicial concepts of standing. Accordingly, a petitioner must (1) allege an " injury in fact" that is (2) fairly traceable to the challenged action and (3) is likely to be redressed by a favorable decision.

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

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The alleged injury, which may be either actual or threatened, must be both concrete and particularized, not " conjectural" or " hypothetical." As a result, standing has been denied when the threat of injury is too speculative.

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

An organization seeking representational standing on behalf of its members may meet the " injury-in-fact" requirement by demonstrating that at least one of its members, w ho has authorized the organization to represent his or her interest, will be injured by the possible outcome of the proceeding.

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l RULES OF PRACTICE: STANDING TO INTERVENE (INJURY l

IN FACT)

To meet the " injury in fact" requirement the petitioner need only show a realistic threat of sustaining a direct injury to the petitioner as a result of the challenged action.

RULES OF PRACTICE: STANDING TO INTERVENE (CAUSATION)

It must be demonstrated that the injury is fairly traceable to the proposed action. Such a determination is not dependent on whether the cause of the injury r

flows directly from the challenged action, but whether the chain of causation is plausible.

RULES OF PRACTICE: STANDING TO INTERVENE

.J (REDRESSABILITV)

It must be likely as opposed to merely speculative that the injury will be redressed by a favorable decision.

1 MEMORANDUM AND ORDER The Commission has before it appeals of the Atomic Safety and Licensing Board's orders LBP-94-5, 39 NRC 54 (1994) and LBP-94-8, 39 NRC 116 (1994), which granted intervention in this proceeding to Native Americans for a Clean Environment (NACE). The prc:ecding stems from a Nuclear Regulatory Commission (NRC) Suff enforce nent order holding the Licensee Sequoyah Fuels Corporation (SFC) and General Atomics (GA), SFC's parent i

company, jointly and severally liable 'for providing financial assurance for the decommissioning of SFC'< facility ntar Gore, Oklahoma. Su 58 Fed.

Reg. 55,087 (Oct. 25,1993) NACE peti.ioned for intervention to protect its members' interest in havi.g the order sustained.. Both SFC and GA appeal pursuant to 10 C.F.R. 7 2.714a the Licens ng Board's grant of intervention to a party that favors the enicreement action, ai d they argue that NACE has not met the traditional standards for intervention. We deny the appeals.

I, BACKGROUND In LBP-94-5, the Licensing Board found that NACE had established standing, but the Board left unresolved the ultimate determination on intervention pending 66

its ruling on NACE's proffered contentions. The Licensing Board concluded that (1)in a proceeding on a Staff enforcement order issued under 10 C.F.R. 6 2.202, there is no prohibition against an otherwise qualified petitioner intervening as of right in support of the order; and (2) petitioner NACE had demonstrated that it possesses the requisite interest to entitle it to standing in this instance.

'Ihe Licensing Board referred the first ruling noted above to the Commission j

pursuant to section 2.730(f) rather than awaiting a final ruling on NACE's inter-vention, because it believed that this ruling affected significantly the structure of both this proceeding and the Commission's adjudicatory process generally.

LBP-94-5,39 NRC at 75-76. Pursuant to a March 3,1994 Commission order (unptiblished), the parties briefed the questions of whether review of the referred ruling would be appropriate in accordance with 10 C.F.R. 6 2.786(g) and, as-(

suming that review would be appropriate, whether the Licensing Board's ruling l

should be sustained.

l Prior to the Commission deciding whether to take review of the referred ruling, the Licensing Board, in LBP-95-8, admitted NACE's contentions and, accordingly, granted NACE intervention. This decision had the effect of making both LBP-94-8 and the earlier ruling in LBP-94-5 appealable to the Commission j

as of right, pursuant to 10 C.F.R.12.714a.8 Because both SFC and GA have l

appealed the decisions pursuant to 2.714a, the question of whether to review as I

a matter of discretion the referred ruling in LBP-94-5 is moot. In our review of the Licensing Board's rulings in LBP-94-5, we have fully considered arguments presented in both the parties' briefs on the referred ruling and the parties subsequent briefs on appeal.

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II. ANALYSIS In their appeals, SFC and GA challenge the conclusion that NACE is entitled to standing. SFC and GA do not challenge the admissibility of NACE's contentions. but appeal LBP-94-8 only to the extent that its ultimate conclusion r

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is to grant NACE intervention.2 With respect to standing, SFC's and GA's l

arguments are two-fold. First, they argue that a petitioner who supports an enforcement order cannot establish the requisite interest for standing as of right in a proceedmg to determine whether an enforcement order should be sustained.

Second, they argue that, even if such intervention is permitted, NACE has failed to demonstrate that its members' interest will be harmed if the order is not sustained or that any such harm is likely to be redressed by a favorable decision l

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I 5cc rkrnnr Elswn C# (Greenwood Energy Center. Units 2 and R At.AB.472. 7 NRC 570. 571 n 1097n I GA did nos hie a separate brwf on appeal. but hied a nonce of appeal and admed the grounds and argunents l

set forth in sf C~n brief on appeal General Atornics' Nonce of Ag3 val (Apr 7.19941 67 l

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in this proceeding. We turn first to the issue of intervention as of right in proceedings on Staff enforcement orders.

A.

Availability of Intervention as of Right to Support a Staff Enforcement Order ne Licensing Board concluded that the Commission's statutory and regu-latory framework sanctions intervention as of right even for one who supports I

rather than challenges an enforcement order. In reaching this determination, the Licensing Board relied on the analysis contained in Nuclear Engineering Co.

(Sheffield, Illinois, Low-Level Radioactive Waste Disposal Site), ALAB-473,7 NRC 737 (1978). In Sheffield, an Atomic Safety and Licensing Appeal Board l

discussed the question of whether a petitioner who supports a license amend-ment could intervene as of right in the poceeding. In determining that such a petitioner, if otherwise qualified, could intervene, the Appeal Board stated:

Standing to intervene hinges neither upon the litigating posture the petitioner would assurne if aHowed to participate nor on the rnerits of its case.

Rather, the test is whether a j

cognizable interest of the petstioner might be adversely affected if the proceedmg has one outcome rather than another.

7 NRC at 743 (citation omitted). The Licensing Board found that this analysis is equally applicable to an enforcement proceeding. LBP-94-5, 39 NRC at l

65-66. Thus, once a hearing is requested by the target of the enforcement order, a petitioner who supports the order may be " adversely affected" by the l

proceeding, because a possible outcome of the proceeding is that the order will not be sustained. Id.

l On appeal SFC and GA argue that admitting a private party to a proceeding j

would be appointing in essence a " private prosecutor" to aid in the enforcement j

of the order. A " private prosecutor," they warn, would severely limit the l

Commission's enforcement discretion because such an intervenor could object to compromises reached between the target of the enforcement action and the NRC Staff and thereby unnecessarily prolong the hearing. Thus, SFC and GA argue that such intervention would severely hamper enforcement action which is within the sole discretion of the Commission. Sequoyah Fuels Initial Brief in Opposition to the Ruling in Section II.A of LBP-94-5, at 10-14 (Mar. I1,1994) l (hereinafter SFC Initial Brief).

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SFC and GA also maintain that only those who oppose an NRC enforcement order are persons "whose interest may be affected by the proceeding" so as to qualify for a hearing under section 189a(1) of the Atomic lit ergy Act of 1954 (AEA),42 U.S.C. 6 2239(a)(1)(1988), and 10 C.F.R. 0 2J14(a), the regulation I

governing intervention in all formal adjudications conducted pursuant to 10 68 l

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l C.F.R. Part 2, Subpart G. According to SFC and UA, the right to intervene in j

an enforcement proceeding must be " coextensive" with the right to a hearing i

under the section 189a of the AEA, and section 189a hearing rights extend only to those persons adversely affected by the order, not by the proceeding.

i SFC Initial Brief at 15-26. If the Commission's rules otherwise provided for intervention in a circumstance where the petitioner was not adversely affected l

by the enforcement order, SFC and GA contend that "the Commission's rules j

would violate section 189a of the Act." /d. at 24-25.

We do not find SFC's and GA's arguments compelling. Irrespective of whether this proceeding falls within the scope of those hearings mandated by section 189a of the AEA, the Commission has broad authority to hold hearings as it."may deem necessary or proper to assist it in exercising any l

authority provided in [the AEA],"5 or to define the scope of public participation l

in its proceedings beyond that which is required by statute.' In exercising l

this authority, the Commission has permitted participation in its adjudicatory j

proceedings by those who can show that they have a cognizable interest that may l

be adversely affected if the proceeding has one outcome rather than another 5 Intervention in a proceeding under 10 C.F.R. Part 2, Subpart G, is permitted by regulation in 10 C.F.R. $ 2.714, which provides that "any person whose interest

-I may be affected by the proceeding" may petition to intervene. Although the particular circumstances of this proceeding may be somewhat novel, the grant of intervention to a petitioner who supports an enforcement order is not. We have identified a number of instances over the years in which petitioners who support an enforcement order have been permitted to intervene

• l Centrary to SFC's and GA's arguments,7 the court in Bellotti v. NRC neither directly nor indirectly prohibited this practice. 725 F.2d 1380 (D.C. Cir.1983).

The question before the court in Bellotti was whether the Commission had the authority under section 189a of the AEA to define the scope of an enforcement proceeding and deny a petitioner a hearing on whether to impose more extensive 3 AEA i 16tc. 42 U S C. I 2201(c)(1984) j

1. Portland General Decrrr Co (Pebble spnngs Neicar Plant. Units I and 2t CLi 7b 27. 4 NRC 610. 614 (1976)(and cases cited therein). Pubir Sertwe Cu of Indiana (Marble Hdi Nuclear Generat!ng Station. Units 1 and 2). CLJ-f610. II NRC 43& 440-41 (1980)(hereinafier Marble #df)(and c:nes cited themn).

8 5re 5Arpeld. 7 NRC at 743. The SheprIJ outcome test was cried as the ses: f0r injury in Marble #dt CLI-8010.11 NRC at 419 the first case in which the Comnussion artwulaico its pohey on the scope of enforcement proceedings that was subsequently approved by the court in Bellatri v. ARC. 725 F.2J 1380 (DC Cir.1983) l

• See generally Kerr McGrr Chemical Corp Wress Creek Decontartunation). LBP-8418. 23 NRC 799, 802 (1986). Consumers Prmer Co tMidland Plant. Units I and 2 A LBP-85-2. 21 NRC 24. 32-33. I18 (1985). wuured

m. moor. ALAB-842. 24 NRC 197 (1956n l)airiland Power Coorrrative (La Crone Boihng Water Reactort LBP-fG26.12 NRC 367. 374-75 (1980A reWrw of cert,fied quesirem. ALAB-618. l2 NRC 551 (1980x Unsm Electric Co (Callaway Plant. Unsts i and 2L LBP 78-31. 8 NRC 366. 368 (1978h att'd. ALAB-527,9 NRC 126 (1979); Conxamers Power Ca (Midland Plant. Units 1 and 21. CLI 74-3. 7 ALC 7.12 (1974).

7 Sequoyah fuels Corporation's initial Bnef in oppositmn to the Ruhng in Sectmn 11 A of LBPM5 at 1617 (Mar 11.1994). GA did not hie a separate bnef on these quesnons but adopted SFC's arguments General Atonuce Response to the Ruling in Secuon II A of LBP-94-5 (Mar i1.1994) i i

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requirements than the Staff imposed in its original enforcement order. The Bellotti majority did not address the issue that we face here.8 In Bellotti, the majority of the court expressed the concern that if a petitioner, rather than the Commission, was permitted to define the scope of the enforce-ment proceeding the Commission would be deluged by petitioners every time the Commission issued an enforcement order, and the scope of many proceed-ings would be " virtually interminable" and " free ranging." 725 F.2d at 1381, in contrast, NACE recognizes in this instance that it may only intervene with respect to matters found to be within the scope of the Staff's enforcement order and may not expand the breadth of the order or proceeding.' Thus, the policy benind the ruling in Bellotti is not relevant here. To the extent that SFC and GA rely on BcIlotti to support the notion that a petitioner who favors an order may not 'ntervene as of right, we agree with the Licensing Board that they read i

Bellotti too broadly.

Moreover, SFC and GA have not raised any argument that would convince us that permitting intervention by a petitioner who supports an enforcement order is detrimental to the Commission's enforcement discretion. Whether and when to initiate enforcement proceedings remains a matter of agency discretion. See Afoog Industries, Inc. v. FTC, 355 U.S. 411,413 (1958); HecAler v. Chaney,470 U.S. 821, 831 (1985); Advanced Medical Systems, Inc., CLI-94-6,39 NRC 285, 313 (1994). Permitting intervention in enforcement proceedings by interested persons does not diminish the agency's discretion in initiating proceedings because, as the Bellotti court held, the Commission need not hold a hearing on whether another path should have been taken. The Commission may lawfully limit a hearing to consideration of the remedy or sanction proposed in the order.

See Bellotti,725 F.2d at 1381-82; Marble Hill,1I NRC at 440-41, SFC argues that the agency's discretion will be hampered because a third-party intervenor could object to compromises reached between the NRC Start and l

the Licensee and thereby thwart settlement and unnecessarily prolong a hearing.

l Once proceedings have been initiated, however, the Staff's discretion is never absolute, While the agency's enforcement discretion may be at its zenith as the agency decides whether to initiate enforcement action, that discretion does not negate the participatory rights in agency proceedings under statute or regulation once a proceeding has been initiated or a inatter set for hearing, "However the d ssent recognised the availabihty of standing for a peutioner who supports an enforcernent orderc in restermung the Comnusnon's pimtion. and hence the posuon accepted t*y the mapnty of it.e court in Be#vfri.

the dissent stated that' If there mere a chance that the proceeding would evenurn the amrrdprnt, the pubhd would have standmg. since the plant could return to or remaan in its pre-amendmetW unwie condinon But this k sms a pombibry unless the heensee seeks a heanng 725 F 2d at IM6 (Wnghi, J. dissenungL

'Narbe Ameneans for a Clean Enuronnrnt's Reply Bnef Regardmg Appmpnaieness of Comnunion Reuew of L. BPM 5 and Whether Ruhng m section II A Should He Sust.uned at 7-8 iMar 17.174) 70

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i Even in the absence of a third-party intervention in a proceeding, settlements between the Staff and the Licensee, once a matter has been noticed for hearing, are subject to the review of the presiding officer.10 C.F.R. # 2.203. Thus, once an enforcement order has been set for hearing at a licensee's request, the NRC Staff no longer has untrammeled discretion to offer or accept a compromise or settlement. In any pending proceeding, the presiding officer's approval of settlement is a matter that must give due consideration to the public interest.8" As we noted. the admission of an intervenor like NACE to an enforcement proceeding is not new. The Commission has permitted such intervention for approximately two decades, and the alleged detrimental effects on the Commis-sion's enforcement discretion warned by SFC and GA have not materialized.

In this instance, a hearing will be held in any event at the request of SFC and GA, so considerable NRC resources will be devoted to a hearing itTespective of NACE's intervention. We see no harm to either the Commission's enforce-ment discretion or the public interest in permitting third-party participation in a hearing on contested matters that are within the scope of the enforcement action originally brought by the NRC Staff.

We conclude that the Licensing Board correctly applied the Sheffield "out-come" test to the circumstances here and correctly determined that an otherwise qualified petitioner may intervene as of right to support a Staff enforcement order issued pursuant to section 2.202. We turn next to the question of whether NACE has demonstrated the requisite interest to be granted intervention in this proceeding.

II.

NACE's Standing in order for NACE to be admitted as a party in this enforcement proceeding it must first demonstrate that it has an interest that may be affected by the proceeding; i.e., it has standing to participate. At the heart of the standing j

inquiry is whether the petitioner has " alleged such a personal stake in the outcome of the controversy" as to demonstrate that a concrete adverseness exists which will sharpen the presentation of issues. Duke Power Co. v.

l Carolina Environmental Study Group. Inc., 438 U.S. 59, 72 (1978) (quoting Baker v. Carr, 369 U.S.186, 204 (1962)). To demonstrate such a " personal stake," the Commission applies contemporaneous judicial concepts of standing.

Accordingly, a petitioner must (1) allege r " injury in fact" that is (2) " fairly taceable to the challenged action" and (3) is "likely" to be " redressed by a I" Howe er. parties may not umply object to settlemem in wder to block it but must.how some substantial basu for dnapproving the settlement or the custence of wmc material issue that requnes resolution. See generally Pennelvanna Gu & Waire Co y EPC. 463 F 2d 1242,1246-47.1249 52 (D C, Cn.1972) 71

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favorable decision."" 'Ihe Licensing Board found that NACE satisfied the threshold elements for standing. Absent a gross misapplication of the facts or applicable law, we are not inclined to disturb the Licensing Board's judgment on standing. See Gul/ States Utilities Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43,47-48 (1994). We address each of the standing elements in turn.

1.

Injury in Fact The alleged injury, which may be either actual or threatened,U must be both concrete and particularized," not " conjectural," or "bypothetical." O'Shea n Littleton. 414 U.S. 488,494 (1974). As a result, standing has been denied when the threas of injury is too speculative. See, e.g., Mritmore n Arkansas, 495 U.S.149,158-59 (1990); Los Angeles n Lyons, 461 U.S. 95,105 (1983). An organization seeking representational studing on behalf of its members may meet the " injury-in-fact" requirement by demonstrating that at least one of its members, who has authorized the organization to represent his or her interest, will be injured by the possible outcome of the proceeding. Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377. 389-400 (1979).

NACE provided an affidavit from one its members, Mr. Ed Henshaw, who authorized NACE to represent his interest. Mr. Henshaw asserted that, if the Sequoyah Fuels facility is not decommissioned properly, his and his family's health will be adversely affected because contaminated ground and surface water will migrate from the SFC site and contaminate the nearby Henshaw property.

He believes that if G A and SFC succeed in their challenge to Staff's enforcement order adequate funds will not be available to properly decommission the site. To support Mr. Henshaw's assertions, NACE provided affidavits from Mr. Timothy P. Brown, a professional hydrogeologist. Mr. Brown examined data regarding i

the flow paths of groundwater in the area and concluded from the available data that one could not rule out the possibility that contaminated groundwater could migrate from beneath the SFC site and contaminate groundwater and eventually the well water on the Henshaw property. Mr. Brown provided examples of flow paths that lead to the Henshaw property and asserted that migration of contamination into these paths could not be ruled out without further testing."

"leian s. Defenders of Wddhfe. I12 S Ct 2130, 21% 09927 (atmmns and internal quotatwns ommedp Arc alm Cloctand flertnc tilummarmy Ca (Perry Nuclear Power Plant. Unn a Ot l-9L21. 38 NRC 87,92 0993).

U Natwnal Wddhfe Federatwn v Hodel. 839 V2d 644.104 (D C Car 1984 squnung Valley Forge Chruruan I

College v Amencans UnitedInr Separutwn el Church and State. 454 U S 464. 472 09K2)).

D AI!en v linght 468 U s 737. 7% 0954)

M NACUs Reply to sFC's Answer in oppmmon to NACEs Wemn to Intenene theremafter NACE Reply).

Attrhrnent C (Dec 30, 1993) l i

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i Although the NRC Staff concedes that NACE has standing," SFC, joined by GA, oppose the sufficiency of NACE's showing of standing. Answer in 3

Opposition to NACE's Motion to Intervene (Dec. 6,1993) (hereinafter SFC j

Answer). According to SFC data gathered from extensive testing at the SFC site indicate that no groundwater flow path exists that would allow flow of groundwater from beneath the site to reach Mr. Henshaw's property. To support this conclusion, SFC provided affidavits from Mr. John S. Dietrich, its Technical Services Vice President,'* Mr. Bert J. Smith, Director of Hydrogeology for a consulting firm that provided groundwater characterization studies for the SFC facility, and Mr. Kenneth Schlag, a hydrogeologist with SFC." SFC also submitted a June 28,1993 order issued by a Hearing Examiner for the Oklahoma Water Resources Board, which denied NACE intervention in a proceeding involving SFC's application for revision of a waste disposal permit. SFC Answer, Enclosure 3. The order is a brief, one-pagc document in which, without explanation, the Hearing Examiner concluded that NACE's members who live within I h to 4 miles away from the flow of groundwater do not have standing.

The Licensing Board found that NACE had established the requisite injury to intervene in this proceedag. The Board found that there is uranium contamination of the soil and groundwater beneath the SFC main processing facility and nearby pond areas. Further, after reviewing various data submitted by NACE and SFC, including analysis in the Brown, Dietrich, Schlag, and Smith affidavits, the Licensing Board found that groundwater flow charts "at a minimum" support Mr. Brown's assertion that the groundwater flow patterns are " variable and complex." LBP-94-5,39 NRC at 70. Essentially, the Board concluded that there is a possibility that contaminated groundwater could find its way to Mr, Henshaw's property by either a fault zone running from the SFC site to the Henshaw property or by way of deeper flow patterns undetected by SFC.

The Licensing Board found particularly compelling the fact that SFC itself had stated that deeper flow patterns are " expected" and that the direction of these deeper flow patterns had not been measured. Id. (citing SFC Reply to NACE's Reply, Encl.1, Attach. A-2, at HYD 5-2).

On appeal, SFC and GA argue that the Licensing Board improperly concluded -

that there is any possibility that contaminated groundwater could flow from SFC's site to Mr. Henshaw's property." Both NACE and the NRC Staff filed responses in opposition to these arguments.

"NRC Staff's Response to NACE's Monon for trave to intervene. as 5 fliec 13.1993),

" sic Answer. End 2 U sics Reply to NACE's Supplemental Factual Alleganons. New Arguments and Request for Discreteonary intervennon. Endosure I and 2 danuary I1.1994) mercinafter sf C Peply) 3" SIC Bnef on Appeal of LHP-945 ath! LBP4&H lhereinafter SIC Appeay. at 2&26 ( Apr 7.1994t 73

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SIC asserts that the injury is speculative. liowever, SFC does not challenge two important findings that formed in part the basis for the Board's conclusion that NACE had demonstrated injury in fact: (1) that there is a fault running

)

from the SFC site to Mr. Henshaw's property and (2) that deeper groundwater

'i flow patterns are " expected" and unmeasured.1.BP-94-5, 39 NRC at 69-70.

Although NACE has not established the existence of these flow patterns with certainty, such certainty is not required at this threshold stage.

l SFC argues that, even if it were possible for contaminated groundwater to l

be carried onto Mr. Henshaw's property, NACE has failed to show whether Mr.

Henshaw has ever used or can use the groundwater under his property. Such proof would entail still more technical studies, which at this threshold stage are unnecessary. Mr. Henshaw has alleged a reasonable threat of contamination of i

his well water. In addition, Mr. Brown, a professional hydrogeologist, stated that if the groundwater on Mr. Henshaw's property becomes contaminated it may j

adversely affect the quality of well water on the property, thereby impacting the i

heahh of the Henshaw family. Although SFC's hydrogeologists challenged many of the matters raised in Mr. Brown's first affidavit, these hydrogeologists did not challenge the conclusion that groundwater contamination on Mr. Henshaw's property could affect the well water on that property.

He determination by the Oklahoma Hearing Examiner is neither binding on the Commission nor compelling. It does not address many of the specific issues raised in this proceeding. Indeed, it is devoid of any explanation for its conclusion that NACE had failed to show injury.

J Thus, we conclude that NACE is not required to go further at this threshold stage to establish. injury in fact. It is enough that NACE has demonstrated a realistic threat to Mr. Henshaw of sustaining a direct injury as resuh of contaminated groundwater flowing from the SFC site to his property 2o Finally, we note that the Board and parties have spent considerable time discussing whether the Commission's recent Perry decision provided new 3

l standards for determining standing. It did not. Notwithstanding that we have l

' hee pncruits Iss Anples v Narkmal linksos Traffw Salen Admmistrarrem. 912 V 2d 418. 495 (D C. Cnt.

1990t fladef. 839 F 2d at 713 (sundmg granted to an orgaruzation represenung pennoner claiminF injury from sud disturban e from numng. despue mdustry's argunents that the alleged injury could only occur "upon the l

chance occurrenue of eight ewnts." one of which only had "a 0 8% chance of occurnng")

20 l

NACE also argued that msuthcient funds for decomnusammng cou!J lead to madequate sceunty and survey checkpoint measures. mereasmg the nsk that contanunated triatenals could he transpmted off sne. In suppen of I

this argument. NACE cued a December 1993 meident where contarrunated radan were found ofhite, a November l

1992 meident of leakage of rmhoacaw matenal found on a vefucle transportmg malenal from SIC sue and I

leakage of inamum courarrunated slurry from an SIC tank truck dunng shipment to New Mexwo. NACE Reply l

at 22-2L The Licensmg Board did not address NACE s arguments that madequate funds could lead to improger l

surveymg and securny leadmg to offsue contaminanon Hecause we deternune that NACE has denenstrated l

mjury in fact inwn potennal contanunarmn of roundwater for the purposes of this case we need not reach this F

separate assue.

U Prrn. CLI 93-21. supra mge 1I l

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already determined that NACE has demonstrated a particularized injury, we briefly discuss our holding in Perry to avoid any further confusion.

In Perry the petitioner challenged an amendment authorizing a procedural change to remove the reactor vessel specimen withdrawal schedule from the -

licensee's Technical Specifications, Although the licensee's continued adherence to the withdrawal schedule is required by Commission regulations, this change eliminated the opportunity for a hearing in the event of future changes to the withdrawal schedule. The Commission determined that the petitioner

(

had alleged a particularized procedural injury that was fairly traceable to the challenged amendment and was likely to be redressed by a favorable decision.

38 NRC at 93. Then, in finding that this procedural injury was linked to a concrete injury, the Commission employed a commonly applied presumption 1

in Commission case law; i.e., persons who have frequent contacts in the area i

near a nuclear power plant are presumed to meet the requirements for standing by demonstrating that the proposed action involves an " obvious potential for of(site consequences." Id. at 95 (quoting Florida Power and Light Co. (St.

i Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329-30 1

(1989)). The Commission determined that the presumption applied in Perry because the " material condition of the plant's reactor vessel obviously bears on 1

the health and safety of those members of the public who reside in the plant's vicinity." Perry, 38 NRC at 96.n I

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2.

Causation i

I he second element of standing is causation. It must be demonstrated that the injury is fairly traceable to the proposed action. See Hodel, 839 F.2d at 705. Such a determination is not dependent on whether the cause of the injury flows directly from the challenged action, but whether the chain of causation is plausible. Id. The question at issue here with respect to causation is whether NACE has demonstrated that the threat of injury to Mr. lienshaw is fairly traceable to improper decontamination and decommissioning of the SFC site U Comrary to SFC s arguments, such a presumpnon bawd on geographic proumsty is not connned solely to Part 50 reactor hcenses, but is aho apphcat>le to masenab cases where the potennal for offute consequences is obvious Armed Forces RaAdulogi lastsrute (Cobalt-60 storage Facihrn ALAB-682.16 NRC 150,153-54 (1982) The deternunarma of how proumate a petinoner -

.f hve or have frequent contacts to a source of radioactmty depends on the danger posed by the source at issue The rule of thumb generally apphed in reactor heensing proceedmgs (a presumptwn of standmg for persons who reside or frequent the area within a 50-male radsus of the facihry) as tmt apphed m matenal cases, Sir imal Rule. Informal Heanng Procedures for Wienals Licetising Adjuicatmns. 54 Fed Reg 8269. K272 (I e-b. 28.1989t Proposed Rule. Informal llearmg Procedures for Maienals Lacensmg Adpadicatwns. 52 Fed Reg 20 089. 20.090 (May 29.19871 However. a presumpnen based on geograptucal proxmury talben at distances much closer than 50 miles) may be apphed where there is a deterrrunauon that the propmed acten mvohes a sigmhcant source of radioactmry proJucing an obvious potenhal far offsHe consequences, Scr. r p. Armed forces.16 NRC at 15A54. Nurthern Stain Amrr Co (Pathhnder Atorruc Plantj. LBP43, 31 NRC 40. 45 t 1990) 75 l

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._x and whether improper decontamination and decommissioning of the facility is fairly traceable to insufficient decommissioning funding.

l The Commission has already recognized that adequate funds are necessary to ensure timely and proper decommissioning to protect public health and safety, In adopting the final rule involving general requirements for decommissioning, the Commission indicated that its intent was to ensure that all facilities are l

decommissioned in a safe and timely manner and that " adequate licensee funds j

will be available for this purpose." General Requirements for Decommissioning i

Nuclear Facilities, Final Rule,53 Fed. Reg. 24,018 (June 27,1988), The NRC Staff asserts here that the reason behind issuance of the order is that Stafflacked adequate assurance that the funds would be available to properly decontaminate and decommission the SFC site. NRC Staff Response in Opposition to SFC's l

Appeal of LBP-94-5 and LBP-94-8, at 9 (Apr. 29,1994). Therefore, as in the general case, the threat of inadequate de ommissioning here is fairly traceable to insufficient funds. However, the question remains whether the threat of injury to Mr. Henshaw is fairly traceable to improper decommissioning.

i SFC did not contest the Board's finding here that the Staff's October 1993 1

enforcement order made it " clear" that there is uranium contamination of the soil i

and groundwater on the SFC main processing facility and the nearby pond areas with sufficient safety significance to warrant remediation before the property can be released for unrestricted use. LBP 94-5,39 NRC at 68-69. In our discussion I

above regarding " injury in fact," we have already determined that there is a threat that this contaminated groundwater, if not remedied, may find its way to i

flow paths leading to Mr. Henshaw's property. Since the decontamination and decommissioning activities are intended to prevent or remediate the groundwater J

i and other contamination on the SFC site, we find that NACE has demonstrated l

that the threat of injury to Mr. Henshaw is fairly traceable 'to inadequate j

l decontamination and decommissioning.

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3.

Redressability l

'Ihe third element of standing requires that "it must be 'likely,' as opposed to merely ' speculative' that the injury will be ' redressed by a favorable decision.'"

Lujan, supra.112 S. Ct. at 2136 (quoting Simon v. Eastern Kentucky Welfare Rights Organization 426 U.S. 26,38,43 (1976)). On appeal, SFC argues that I

the threat of injury to Mr. Henshaw is not redressable. It notes that, pursuant to Staff's October 1993 order, the Director of Nuclear Materials Safety and Safeguards retained the authority to relax or rescind the order. SFC maintains j

that, even if the Licensing Board sustains the order, the Director could still subsequently relax it. Herefore, according to SFC, the alleged threat to Mr, Henshaw will remain irrespective of the outcome of this proceeding. SFC l

Appeal at 27-28.

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Clearly one possible outcome of the proceeding is that the order will be l

st stained, without subsequent modification or rescission, and SFC and GA will b held responsible for providing the full financial assurance required by the order. SFC does not challenge that this outcome would redress Mr. Henshaw's threatened injury. Full responsibility for the entire amount required by the order is the most likely result, if the order is sustained. SFC's suggestion that the Staff, after receiving a favorable decision sustaining the order, would then modify or rescind the order, is the more speculative outcome, Moreover, even if the order is modified, such modification could not be accomplished without the Staff's determination that good cause warranted such relief, consistent with the public j

health and safety, and adjudicatory findings by the Board relating to necessary funding to ensure public heahh and safety could not be ignored. 'Iherefore, it is likely, as opposed to merely speculative, that if the order is sustained it will assure proper funding for decontamination and decommissioning and thereby redress the threat of injury to Mr. Henshaw.

l Having found an injury in fact that is redressable by a favorable decision, we conclude that the Licensing Board properly found that NACE demonstrated standing as of right to participate in this proceeding?

III. CONCLUSION l

l liur the reasons stated in this decision, SFC and GA's appeals are denied The Licensing Board's order in LBP-94-5 granting standing to NACE is affirmed To the extent that LBP-94-8 relies upon a finding of standing, LBP-94-8 is affirmed ;*

l It is so ORDERED.

For the Commission l

JOHN C. HOYLE Acting Secretary of the Commission Dated at Rockville, Maryland, I

this 23d day of August 1994.

23 HaunF ound that NACE has sianding as of nght to pamcipate m this proceeding, we need rmt reach the f

cguestmn of whether NACL should be granted discretmnasy imersenton The Lu.cnsmg Board's deasmn m LBP-948 addresses NACE's subnutted conseinmns SFC and GA &d not appeal the Board's fmhngs with respect to the cunientmns. but only the Board s rehance upon an earher hndmg of standmg for N ACE. Accor&ngly, the Cominussion reactes rm conclusmn on LBP-9&rs discumon of the contentens 77 l

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l Cite as 40 NRC 78 (1994)

CL1-94-13 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l

COMMISSIONERS:

tvan Selin, Chairman Kenneth C. Rogers E. Gail de Planque in the Matter of Docket No. 40-8027-EA (Decontamination and Decommissioning Funding)

SEQUOYAH FUELS CORPORATION and GENER.AL ATOMICS (Gore, Oklahoma Site)

August 23,1994 j

1 In an enforcement proceeding involving funding for decontamination and decommissioning of the Sequoyah Fuels Facility near Gore, Oklahoma, the Commission denies appeals of LBP-94-19, 40 NRC 9 (1994), in which the Atomic Safety and Licensing Board granted intervention to the Cherokee Nation.

Relying on the analysis contained in a companion decision, CLI-94-12,40 NRC (4 (1994), the Commission fmds that otherwise qualified petitioners are not i

barred from participation in hearings simply because they seek to support an enforcement order.

MEMORANDUM AND ORDER l

Pursuant to 10 C.F.R. 6 2.714a. the Sequoyah Fuels Corporation (SFC) has appealed the Atomic Safety and Licensing Board Memorandum and Order LBP-94-19 (40 NRC 9 (1994)). The Board granted the Cherokee Nation standing and admitted the Cherokee Nation to this proceeding. The NRC Staff opposes the SFC appeal. The Commission denies the appeal and affirms LBP-94-19.

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l This proceeding involv;s a challenge to an NRC enforcement order issued to SFC and its parent corprration, General Atomics (GA), on October 15, 1993.5 i

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The Staff order holds SFC and GA jointly and severally responsible for ensuring the availability of adequate funds for the decommissioning of SFC's facility near Gore Oklahoma. SFC and GA sought this hearing to challenge the Staff's order.

l Re order permitted "any other person adversely affected" by the order l

to request a hearing. In November 1993, the Native Americans for a Clean Environment (NACE) filed a motion for leave to intervene in this proceeding.

The Cherokee Nation - subject of this appeal-filed its request for intervention on April 20,1994. Both parties requested intervention for the purpose of arguing that the Staff order should be fully sustained.

j De NACE motion for intervention first placed into question whether a petitioner may intervene as of right in support of a Staff enforcement order.

SFC and GA argued that a petitioner who supports an enforcement order cannot i

establish the requisite interest for standing. The Licensing Board deterrnined in section II.A of LBP-94-5. 39 NRC 54,63-66 (1993), that an otherwise qualified petitioner may intervene to support an enforcement order in an adjudicatory hearing convened under 10 C.F.R. I 2.202. The Board also found that NACE had demonstrated " injury in fact" sufficient for standing to intervene. In a subsequent decision, the Licensing Board found NACE's two contentions admissible and admitted NACE as a party to this proceeding. LBP-94-8,39 NRC 116 (1994).

SFC and GA appealed LBP-94-5 in its entirety and appealed LBP-94-8 to the extent that the decision relied on a finding of standing for NACE. We decide the appeal of those decisions in a companion order issned today.

Before us now is SFC's appeal of LBP-94-19, which admitted the Cherokee Nation as a party to this proceeding, after finding that the Cherokee Nation demonstrated standing to intervene. SFC does not challenge any of the fac-tual predicate with respect to the Cherokee Nation's standing. The Licensee questions only whether the Cherokee Nation may intervene at all. SFC bases t

its appeal of LBP-94-!9 on only one argument - that "the Cherokee Nation favors the enforcement action at issue in this proceeding and therefore can-l not be adversely affected by this proceeding."2 SFC thus appeals the Licensing Board's admission of the Cherokee Nation on the same ground that SFC and GA challenge the Licensing Board's ruling in Section II.A of LBP-94-5 regarding l

NACE's ability to intervene.5 l

l 3 See in the Mauer of Sequeyah fuels Ce paranon General Aumucs (Gore. oualmma, site Decontanunction and l

Deconumssioning Iunding1. 58 Fed Reg 55.087 (oct. 25.1994 sFC's Notice of Appeal of LBP-9419. Incorporaied suppornng Bnef. and Request That Appeals Be Consoh-dated duly 18.19% at 2.

3 5FC requested that as appeal of LDP45 and Lf1PN R. regarding the adnussion of N ACE. be conschdated l

wub the appeal of LBPM19 The Conumnion denies the request as irmt we address the appeals involvsng

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N ACr. su a separate - alben related - dension issued today r

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In a companion decision issued today, we affirm Section ll.A of LBP 5. Otherwise qualified petitioners are not barred from participation in heerings simply because they seek to support an enforcement order. See CLI-94-12,40 NRC M,68-71 (1994). Thus, the Cherokee Nation's interest in supporting the Staff enforcement order does not preclude the Cherokee Nation from intervening in this proceeding. Accordingly, and because SFC submits no other basis for its appeal of the admission of the Cherokee Nation, we deny SFC's appeal of LB P 19.'

CONCLUSION in summary, the request that appeals be consolidated is denied as moot, the

[

Sequoyah Fuels Corporation appeal of LBP-94-19 is denied, and the Atomic Safety and Licensing Board order LDP-94-19 is affirmed.

It is so ORDERED.

For the Commission i

JOHN C. HOYLE Acting Secretary of the Commission Dated at Rockville, Maryland, this 23d day of August 1994.

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i

1. We take the occasion of this decmon involving the Clerokee Nanon to call the attennon of the Licensing Board and the partws to a recent Presidenual duecuve on relanons wah Nauve Anwncan inbul governments in l

a Menswwturn for the Heads of Execupwe tkpartnena and Agences, dated Apn! 29, IW4. President Chmon i

directed federal departnrnts and agences to operate within a governnent-to-gosernrnent relanomhip with federally recOFmied tnbal goverrrnrats. to ensure that tnhal nghts and concerns are consniered See Governnent-to.

Government Relanons wah Nauve Anrncan inbal Gosernments. 59 Ied Reg 22.951 (Wy 4.1994L 80 1'

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l Atomic Safety l

and Licensing l

Boards issuances i

ATOMIC SAFETY AND UCENSING BOARD PANEL I

B. Paul Cotter, Jr.,* Chief Adm/nistraf/ve Judge Robern M. Lazo,* Deputy Chief Administrative Judge (Executive)

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

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i Members i

Dr. George C, Arderson James R Gleason*

Dr. Kenneth A. McCollom Charles Bechhoefer*

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

Ernest E. HWI Thomas S. Moore

• l G. Paul Bottwerk lil*

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

• I Dr. A. Dixon Callihan Dr. Walter H. Jordan Dr. RrAard R. Parizek Dr. James H. Carpenter Dr. Charles N. Kelber*

Dr. Hany Rein

)

Dr. Richard F. Cole

• Dr Jerry R. Kline*

Lester S. Rubenstein Dr. Thomas E. Elternan Dr. Peter S. Larn*

Dr. David R. Schink Dr George A. Ferguson Dr. James C Larnb lil Ivan W. Smrth*

Dr. Hany Foreman Dr. Emmeth A. Luebke Dr. George F. Tdey Dr. Achard F. Foster Morton B. Margules*

"Jeldon J. Wolfe

• Permanent panelmembers I

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l Cite as 40 NRC 81 (1994)

LBP-94-23 '

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD l

Before Administrative Judges:

Charles Bechhoefer, Chairman Dr. Richard F. Cole Thomas D. Murphy in the Matter of Docket No. 50-312-DCOM-R (ASLBP No. 93-677-01-DCOM-R)

(Decommissioning Plan)

(Facility Operating License -

No. DPR-54) -

SACRAMENTO MUNICIPAL UTILITY DISTRICT -

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' (Rancho Seco Nuclear Generating Station)

August 11,1994 i

l De Licensing Board, in response to a notice of withdrawal with prejudice

'of the only intervenor in the proceeding, grants the withdrawal and terminates

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the proceeding.

I MEMORANDUM AND ORDER l

(Terminating Proceeding) l This proceeding was remanded to this Atomic Safety and Licensing Board by the Commission's Memorandum and Order dated March 3,1993. CLI-93-3, 37 NRC 135, reconsideration denied, CLI-93-12,37 NRC 355 (1993),fierther clarified in CLI-93-19,38 NRC 81 (1993). The Commission determined that I

the Environmental and Resources Conservation Organization (ECO) possessed standing (as a matter of discretion), that it had submitted t.ne valid contention, l

and that it should be permitted to submit additional contentions in three designated areas.

81

In our Second Prehearing Conference Order, dated November 30, 1993, LBP-93-23, 38 NRC 200, discretionary review denied. CLI-94-2, 39 NRC 91 (1994), we admitted several portions of ECO's contention on decommissioning l

funding but granted the Licensee's motion for summary disposition of the single contention admitted by the Commission. We subsequently established discovery schedules that were scheduled to end on August 1,1994. Memorandum and i

Order (Telephone Conference Call re: Discovery Schedules), dated April 19, 1994 (unpublished).

On August I,1994, ECO filed a " Notice of Withdrawal with Prejudice j

and Suggestion of Termination of Proceeding." In that document, ECO gave

" notice" of its withdrawal from the proceeding, together with the withdrawal of its contentions. its petition for leave to intervene, and its request for a hearing, l

all with prejudice. ECO also expressed the opinion that its withdrawal " brings i

the proceeding to a close" and suggests that we issue an order terminating the l

proceeding.

Treating ECO's " Notice" as a motion to withdraw, we hereby grant it. The proceeding is thus terminated.

In CL1-93-3, the Commission specifically provided that "[pjending further order of the Commission following action by the Licensing Board on remand, the Staff is directed to withhold issuance et the Decommissioning Order," 37

'NRC at 155. Because this Memorandum and Order constitutes our final action i

in this proceeding, we are advising the Commission so that it may issue any necessary order concerning effectiveness of the Decommissioning Order.

IT IS SO ORDERED.

l THE ATOMIC SAFETY AND LICENSING BOARD l

Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE l

l Dr. Richard F. Cole ADMINISTRATIVE JUDGE Thomas D. Murphy ADMINISTRATIVE JUDGE Rockville, Maryland August 11,1994 82

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k Cite as 40 NRC 83 (1994) _

LBP-94-24 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

l ATOMIC SAFETY AND LICENSING BOARD i

i Before Administrative Judges:

i i

Peter B. Bloch, Chair j

Dr. James H. Carpenter j

Thomas D. Murphy 1

j in the Matter of Docket Nos. 50-424-OLA 3 j

50-425-OLA-3 j

(ASLBP No. 93-671-01-OLA-3) j (Re: License Amendment; j

Transfer to Southern Nuclear)

GEORGIA POWER COMPANY, et al.

j (Vogtle Electric Generating Plant, j

Units 1 and 2)

August 18,1994 i

J nis Memorandum and Order weighs whether or not to order the deposition 1

of a person who is seriously ill. He Board declined to order the deposition.

It determined that Intervenor had failed to demonstrate that the benefit of the proposed discovery outwrighs the burden, given the importance of the issues at stake in the litigation and the importance of the proposed discovery in resolving the issues.

However, the Board also noticed that the proposed deponent was willing to be deposed. It therefore established conditions under which a voluntary deposition might be taken.

RULES OF PRACTICE: DEPOSITION OF ILL PERSON; MOTION TO CONIPEL DENIED Intervenor has the burden of demonstrating that the benefit of a deposition of a seriously ill person outweighs the burden, given the importance of the issues at 83 i

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stake in the litigation and the importance of the proposed discovery in resolving the issues.

RULES OF PRACTICE: DEPOSITION OF SICK PERSON; PERSON WILLING TO BE DEPOSED l

The lawyer of an ill individual sought as subject of a deposition may not assert that the deposition would impose an undue burden unless the proposed l

subject seeks to be protected or there is some reason to question the rationality behind the person's willingness to be deposed.

I RULES OF PRACTICE: ALTERNATIVE DISPUTE RESOLUTION The Licensing Board establishes conditions under which a voluntary agree-ment may be reached concerning the deposition of a seriously ill individual.

MEMORANDUM AND ORDER (Deposition of Mr. Bill Shipman)

We have decided to deny conditionally the motion of Mr. Allen Mosbaugh l

(Interrenor) to depose Mr. Bill Shipman, who is seriously ill and who has been deposed previously for 4.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br />. The denial shall be subject to further explanation by Georgia Power. It is without prejudice to a future request for a deposition, particularly if Mr. Shipman's health improves or if there is further.

explanation of the reasons why a deposition is so important that it should be held despite hardships for Mr. Shipman.

At the Board's suggestion, Intervenor filed a " Motion to Compel GPC' to Produce Bill Shipman" on August 15,1994 (Motion). Georgia Power filed a

" Response to Intervenor's Motion to Compel GPC to Produce Bill Shipman," on i

August 16,1994 (Response). The Staff of the Nuclear Regulatory Commission declined to submit a filing on this issue.2 I.

TIIE LAW Section 2.740(c) of 10 C.F.R. provides:

' Georgia Power Company, er ut, also referred to as Georgia Power 2 in response to an e mailinquiry about whether the staff would file a response concernsng the shipnun Deposioon.

Staff dechned to rnake a hhng and ser ed its responw on the parues to this proceeding.

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Protective order. Upon motion by a party or the person from whom discovery is sought, and for good cauw shown, the presidmg officer may make any order which ustice requires J

to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.

The provision of the Federal Rules of Procedure that parallels the Nuclear Regulatory Commission's procedural rule, and which may be used as a helpful interpretive suggestion is:

The frequency or extent of use of the discovery nethods otherwise permitted under these rules and by any local rule shall be hmited by the court if it determines that.. the burden or expense of the proposed ducovery ourneighs six iskely benept, taking into account the needs of the case. the amount in controversy, the panies' resources. A ivortance of the issues at stake in the Istsgatwn, and the smportam e of the proposed ascovery in resolving the sssues. [ Emphasis added ]3 IL PRIOR ACTION OF TIIE LICENSING llOARD At the August 12 Prehearing Conference in this case, Georgia Power raised the question of whether or not Mr. Shipman should be required to complete j

a deposition on August 22 two days before scheduled major surgery for liver and stomach cancer. Georgia Power offered to make Mr. Shipman available on August 18 - a date unacceptable to Intervenor because its lead counsel on this issue is on vacation.*

During the Prehearing Conference the Board required written filings of the concerned parties. It also described the required tihngs, at Tr. 653, in this way:

[W) hat [the Licensmg Board would).

raced is a motion that would show why it's sufficiently urgent to require this deposition two days before the surgery. If you showed a cross <xanunation plan that was important enough. {ihe Board),

might be able to.

uphold it IL ANALYSIS OF TIIE FILINGS l

We find that Intervenor's Motion is woefully incompicte. In particular, the Motion failed to discuss the benefits it is seeking to obtain during the continued deposition of Mr. Shipman. There was no " cross-examination" plan, as was suggested by the Board, and there was no discussion demonstrating that the previous deposition of this witness was conducted in a manner consistent with his fragile health or that the questions left to be asked are truly important.

3 red Ch Judwal P & R, 2fxtm2). at 106 07 (West 1944 ed )

d Tr. 651-56 l

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i Although Intervenor did say why Mr. Shipman is an important witness, m his motion at 5 n.4, he did not discuss what had been accomplished in the already-completed deposition session and what is left to be accomplished. In short, Intervenor ignored the suggestion of the Board that he demonstrate, with respect to the requested second deposition session with Mr. Shipman, what the Federal Rules of Procedure describes as, "the importance of the proposed discovery in j

j resolving the issues."

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1 One aspect of the filings before us gives us pause about reaching our

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conclusions. We applaud Georgia Power's truthfulness in disclosing that, "Mr.

Shipman has personally stated that he will attend a deposition on August 22, 1

if that is what the Company deems to be in its best interest."5 Under the 3

circumstances, we are somewhat puzzled that Georgia Power's lawyers and Mr.

Shipman's lawyers felt that they were authorized to oppose the deposition on grounds of hardship. A ground that Georgia Power asserted for its motion is J

i "Intervenor's apparent insensitivity to Mr. Shipman's situation."*

l This Board is prepared to establish conditions that would be responsive to Mr.

j Shipman's needs, including conducting the deposition in a convenient location or by telephone and limiting the total time available for the deposition. In i

addition, the Board's Chair could attend or be available by phone, pursuant to l

Mr. Shipman's wishes, to ensure that unnecessary hardship does not occur. Prior j

to the deposition, a transcript of the previous deposition and a cross-examination plan could be made available to the Board, so that it could ensure that needless duplication or irrelevant questioning is avoided.

We infer from the motion that Mr. Shipman's counsel and Georgia Power's j

counsel feel that Mr. Shipman's willingness to be deposed should not bc

}

fully respected, perhaps because the lawyers perceive a hardship related to the advanced stages of his illness. However, we will require Georgia Power to do j

one of the following: (1) file with the Board an affidavit discussing why Mr.

J Shipman's willingness to attend a deposition should not be honored by this Board, or (2) state that a deposition can be conducted under conditions that

)

meet the criteria described by this Board. We note that, despite Mr. Shipman's expressed wishes, whether or not this deposition occurs does not depend on "what the Company deems to be in its best interest."7 I Response at 6

• 1d at 1

'Id at 6, 86

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III. ORDER i

For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 18th day of August 1994, ORDERED that:

1.

Intervenor's Motion to Compel GPC to Produce Bill Shipman, filed August 15,1994, is denied, subject to the conditions that follow.

2.

Georgia Power Company, et al., shall: (1) file with the Board an affidavit discussing why Mr. Shipman's willingness to attend a deposition should not be honored by this Board, or (2) state that Mr. Shipman will attend a deposition subject to specific conditions that are consistent with the Board's decision and are acceptable to Mr. Shipman.

FOR THE ATOMIC SAFETY l

AND LICENSING BOARD i

Peter B. Bloch, Chair ADMINISTRATIVE JUDGE j

l Rockville, Maryland t

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Cite as 40 NRC 88 (1994)

LBP-94-25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

.l Charles Bechhoefer, Chairman I

Dr. Richard F. Cole Dr. Jerry R. Kline in the Matter of Docket No. EA 93-236 1

. (ASLBP No. 94-692-05-EA)

NUCLEAR SUPPORT SERVICES, INC.

)

(Order Requiring the Removal of an j

Individual from NRC-Licensed or Regulated Activities and Order

]

Directing Review of Personnel j

Security Files (Effective immediately)).

ROBERT C. DAILEY Docket No. lA 94-003 (Order Prohibiting involvement in (ASLBP No. 94-691-04-EA) l Certain NRC-Licensed or Regulated l

Activities (Effective immediately))

August 18,1994 l'

he Licensing Board grants a joint motion of the parties to approve a settlement agreement, approves the agreement, and terminates the proceeding.

MEMORANDUM AND ORDER (Approving Settlement Agreement and Terminating Proceeding) nese proceedings involve two enforcement actions brought by the NRC Staff. The first would have directed Nuclear Support Services, Inc. (NSSI) to remove an individual from NRC-licensed or regulated activities for 5 years. The 88 i

second would have prohibited that same indivi&ial from participating in NRC.

licensed or regulated activities for the same period. Certain near-term corrective actions were also sought.

By Memorandum and Order (Consolidating Proceedings and Granting Ex-tension of Time), dated May 4,1994 (unpublished), we granted the requests for a hearing and consolidated the two proceedings. On June 27. 1994, we issued a Notice of Hearing and Prehearing Conference,59 lid. Reg. 34,454 (July 5, 1994). Following a July 12,1994 prehearing conference, we issued our First Prehearing Conference Order (Establishing Initial Discovery Schedules), dated July 15,1994 (unpublished). In that Order, we noted that at the conference we had urged the parties seriously to consider settlement of these proceedings. (On June 21,1994, prior to the conference, NSSI/Dailey advised us that they had reached a settlement agreement with regard to the short-term relief sought by the Staff and were withdrawing their requests for a hearing with respect to those j

aspects of the Staff's NSSI enforcement order.)

On August i1,1994, the parties filed a Joint Motion to Approve Settlement l

Agreement and Terminate Proceeding. A copy of the agreement was attached, and is appended to this Order. According to the Motion, NSSI and Mr.

Dailey have entered a compromise because they desire to avoid the expense l

and hardship of litigation. The Staff believes that the settlement agreement is l

in the public interest.

.We have carefully reviewed the compromise agreement and note that it provides a significant degree of the relief sought by the Staff. We agree with the parties that it is consistent with the public interest and, consequently, we grant the Joint Motion, approve the settlement agreement, and, accordingly, terminate the proceeding.

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IT IS SO ORDERED.

THE ATOMIC SAIEIY AND LICENSING BOARD Charles Bechhoefer, Chairman ADMINISTRATIVE JUDGE Dr. Richard F. Cole ADMINISTRATIVE JUDGE Dr. Jerry R. Kline ADMINISTRATIVE JUDGE Rockville, Maryland August 18,1994 ATTACHMENT SETTLE 51ENT AGREEMENT WHEREAS, on March 22, 1994 the Nuclear Regulatory Commission

("NRC") issued an order to Nuclear Support Services, Inc. ("NSSI") captioned "EA 93-236"(59 Ibd. Reg.14429 (March 28,1994)) (hereafter "NSSI Order"),

and issued an order to Robert C. Dailey captioned "IA 94-003" (59 Fed. Reg. 14688 (March 29,1994)) (hereafter "Dailey Order"); and l

WHEREAS, NSSI and Mr. Dailey have answered the NRC's orders and have requested a hearing on the orders, and NSSI and the NRC Staff later entered into a Settlement Agreement with regard to Part IV.B of the NSSI Order on June 21,1994; and WHEREAS, NSSI and Mr. Dailey have engaged in negotiation and compro-mise because they desire to avoid the expense and hardship of litigation; and WHEREAS, the remaining issue before the NRC's Atomic Safety and Licensing Board (" Board"), whether the Dailey Order and Part IV.A of the NSSI Order should be sustained, need not be adjudicated because the NRC Staff, Mr. Dailey and NSSI b:.: reach:d a compromise by which NSSI and Mr.

Dailey have agreed to accept certain restrictions on Mr. Dailey's activities, as described below; and l

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i WHEREAS, the NRC Staff believes that this Settlement Agreement is in the public interest; NOW, THEREFORE, in consideration of the mutual promises made herein, i

NSSI, Mr. Dailey, and the NRC Staff agree as follows:

1.

NSSI agrees to restrict Mr. Dailey from conducting security screening or fitness-for-duty activities (10 CFR Parts 26,50, & 73) until March 22,1996.

2, NSSI agrees that, if contacted by another person or company consid-cring employing Mr. Dailey to conduct security screening or fitness-for-duty activities (10 CFR Parts 26. 50, & 73) prior to March 22,1996, NSSI will ad-vise that person of the existence of this Settlement Agreement and will provide them a copy of this Settlement Agreement 3.

Mr. Dailey agrees that he will not conduct security screening or fitness-for-duty activities (10 CFR Parts 26,50, & 73) while employed by NSSI or any other person or company prior to March 22,1996.

4.

Mr. Dailey agrees that, during the one year period from March 22, 1996 until March 22, 1997, he will provide notice to the Director, Office i

of Enforcement within thirty days after commencing employment with any organization other than NSSI, where his duties include responsibilities for conducting security screening or fitness-for-duty activities (10 CIM Parts 26, 50, & 73).

5.

The NRC Staff hereby rescinds and vacates the Dailey Order and Part' i

IV.A of the NSSI Order.

6.

The NRC Staff agrees that Mr. Dailey's role as NSSI's Vice President Corporate Safety is consistent with this Settlement Agreement, in that his duties do not include responsibilities for conducting security screening or fitness-for-duty activities (10 CFR Parts 26, 50, & 73).

7.

Nothing in this agreement shall be construed so as to restrict Mr.

Dailey from being subject to security screening or fitness-for-duty requirements.

8.

NSSI and Mr. Dailey and the NRC Staff agree to file a joint motion requesting the Board to approve this Settlement Agreement and terminate the proceeding, pursuant to the Commission's regulations in 10 CFR 6 2.203. If the Settlement Agreement is not approved or is changed in any substantive manner by the Board, it may be voided by any party by giving written notice to the parties and the Board. The parties agree that under these circumstances and upon request they will negotiate in good faith to resolve differences.

9.

The parties understand and acknowledge that there has not been any adjudication of any wrongdoing by Mr. Dailey and that this Settlement Agreement is the result of a compromise and shall not for any purpose be construed: (a) as an admission by NSSI or Mr. Dailey of any wrongdoing or regulatory siolation; (b) as an admission that the NRC has jurisdiction to issue orders to NSSI or Mr. Dailey; or (c) as a concession by the NRC Staff that i

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no violation or wrongdoing occurred or that the NRC lacks jurisdiction to issue orders to NSSI or Mr. Dailey.

10. The parties agree that no inference adverse to either party shall be drawn based upon the parties having entered into this agreement.

IN WITNESS WHEREOF, Mr. Dailey, NSSI and the NRC. Staff have caused this Settlement Agreement to be executed by their duly authorized i

representatives on this 10th day of August,1994.

1 James Lieberman Director, Office of Enforcement U.S. Nuclear Regulatory Commission Washington, DC 20555 Robert C. Dailey i

Vice President Corporate Safety Nuclear Support Services, Inc.

West Market Street Campbelltown, PA 17010 Joe C. Quick Chairman and President Nuclear Support Services, Inc.

West Market Street -

Campbelltown. PA 17010 4

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l Cite as 40 NRC 93 (1994)

LB P-94-26 i

UNITED STATES OF AMERICA l

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

Peter B. Bloch, Chair i

Dr. James H. Carpenter Thomas D. Murphy -

In the Matter of Docket Nos. 50-424-OLA-3 l

50-425-OLA-3 I

(ASLBP No. 93-671-01-OLA-3)

(Re: Lice.se Amendment; Transfer to Southern Nuclear)

GEORGIA POWER COMPANY, et al.

l (Vogtle Electric Generating Plant,

]

(

Units 1 and 2)

August 22,1994 I

1 The Board held that the Staff stands on the same footing as any party with respect to requests for admissions. Neither 10 C.FR. 6 2.742 nor any other section of the regulations provides for any different treatment of the Staff. The Board also found that Rule 36 of the Federal Rules of Civil Procedure is helpful in interpreting the Commission's rules concerning admissions. The Board said that the Staff would not be held to its admissions if new information causes it to change its view of the public interest.

With respect to interrogatories asked of the Staff, the Board held that the Staff is not required to answer interrogatories unless this Licensing Board finds: (1) answers to the interrogatories are necessary to the determination of this case, and (2) answers to the interrogatories are not reasonably attainable from any other source.10 C.F.R. 6 2.720(h)(2)(ii); compare 10 C.F.R. 6 2.740b(a).

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l RULES OF PRACTICE: REQUEST FOR ADA11SSIONS TO STAFF

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With respect to requests for admissions addressed to the Staff, the Board held that the Staff stands on the same footing as any party. Neither 10 C.F.R. 6 2.742 nor any other section of the regulations provides for any different treatment of the Staff. He Board also found that Rule 36 of the Federal Rules of Civil Procedure j

is helpful in interpreting the Commission's rules concerning admissions. The Board also said that the Staff would not be held to its admissions if new information causes it to change its view of the public interest.

RULES OF PRACTICE: REQUESTS FOR ADallSSIONS BY THE STAFF With respect to interrogatories asked of the Staff, the Board held that the Staff is not required to answer interrogatories unless this Licensing Board finds: (1) answers to the interrogatories are necessary to the determination of this case, and (2) answers to the interrogatories are not reasonably attainable from any other source.10 C.F.R. 9 2.720(h)(2)(ii); compare 10 C.F.R. 5 2.740b(a).

MEMORANDUM AND ORDER (Staff Responses to Intervenor's First Request for i

Admissions, Second Set of Interrogatories)

On August 1,1994, Mr. Allen Mosbaugh (Intervenor) filed two motions to compel responses from the Staff of the Nuclear Regulatory Commission (Staff).'

Staff responded on August 16,2 relying in part on its July 15 response to the discovery motions.'

I.

APPLICABLE LAW Re Staffis not required to answer interrogatories unless this Licensing Board finds: (1) answers to the interrogatories are necessary to the determination of this case, and (2) answers to the interrogatories are not reasonably attain.

I'Intervenor's Motion to Compel Response from NRC staff to Intervenor's second set of intermgatones and Request for Docunents from Staff of the U.S Nuclear Regulatory Comnussmn." August 1.1994 (Interrogatory MononA and "tmervenor's Motwn to Compel Response from NRC Staff to intervenor's Fint Request for Admissum from the NRC staff." Augusi 1.1994 (Adnumons Monont 2"NPC staff Respone to Imervenor's Morions to Compel the staff to Respond to Second Set of interrogatories and Fust Request for Adnussions and staff Monon to sinke a Part of intervenor's Monon "

'NRC staff Response to intervenor's second set of interrogatories and Requeu for Produchon of Documents."

iuly l$.1994 (Reply to Interrogatunest 94 i

l able from any other source. 10 C.F.R. Q 2.720(h)(2)(ii); compare 10 C.F.R.

Q 2.740b(a). Similarly, the Staff is not required to produce a document in re-sponse to a discovery request unless the Licensing Board finds: (1) that the record or document is relevant to the proceeding; and(2) that the record or doc-ument is not exempt from disclosure or that, if exempt from disclosure, that its disclosure is necessary to a proper decision in the proceeding; and (3) that the document or the information therein is not reasonably attainable from another source.10 C.F.R. Q 2.744(d).

We note that the Staff advised Intervenor that these provisions were applica-ble. Reply to Interrogatories at 2.

With respect to requests for admissions, the Staff stands on the same footing as any party. Neither 10 C.F.R. Q 2.742 nor any other section of the regulations provides for any different treatment of the Staff. On the other hand, the Staff is not applying for a license and its admissions cannot, therefore, be held against i

it. Furthermore, as a protector of the public interest. Staff will remain free to change its position in light of new information that may be produced in the course of a trial.4 l

IL REQUEST FOR ADMISSIONS l

l This section of our Memorandum and Order addresses a matter of first impression concerning the obhgations of the Staff to amend its response to a Request for Admissions.'

We conclude that the section relied on by Intervenor to authorize its motion l

to compel is applicable to interrogatories and does not provide authority with respect to a request for admissions. The nonapplicability of this section, how-ever, makes it easier for Intervenor to prevail because he need not demonstrate that a response to a Request for Admissions is "necessary to a proper decision in the proceeding! There is no analogous restriction in the rules pertaining to l

requests for admissions.

We interpret Intervenor's motion as a request for us to require that an amended answer be served? This we shall do. We consider a 30-day period, ending on 4 Note that Rule 3&hl of the federal Rules of Cnd Pmcedure, which as helpful in interpreung the Comnussion's rule on request for attnussions. states that the court may pernut withdrawal or arnendment of an adnussion wirn the presentaunn of the ments of the acnon will be sened thereby This gnes the hoard adequate llenshihty to preserve the staff's freedom to shift n3 posstmn m order to protect the pubhc internt 8 on May 17.1994 Inlenenor hied its first Request for Adriussions to NRC Sidf. pursuant to 10 C F R I 2 740b The stan filed its Resportse to Intenenor a May 17. 1994 rint Request bor Adnussions to NRC Staff on luly li 1994 Then. Intervenor hied a Mormn to Compel Respamse from NRC staff to Intervenor's rirst Reque<* for Adnussions from the NRC staff on August 1.1994 Intenenor clamied to f le su Mormn to Compel pursuant to 10 C f R 9 2 720f hW2Wu t whwh deah with niotions to compel respenses to miemigatones. not to adnunmns.

The NRC sinf 68ed as Response to Intervenor's Motwns to Compel she staff. etc.. on August 16,1994

" AlthouFh the rule also would pernut us to rule that tequests not answeted by the Staff are aihmeted. we shall not do this at (tus time 95

September 22, to be an adequate time for Staff to prepare its amended response.

In the alternative, since a response provided at a later date may be more helpful I

to Intervenor, Intervenor and Staff may reach an agreement about a mutually agreed-upon date.

We have examined 10 C.F.R. 6 2.742, as well as Rule 36 of the Federal Rules of Civil Procedure. It is our conclusion that the two rules are consistent with one another and that Rule 36, which is more complete, is an excellent guide to the proper interpretation and use of section 2.742. Here are some of the most important portions of the Federal Rule:

If objection is made, the reasons therefor shall be stated. The answer shall I,pecifically deny the matter or set forth in detail the reasons why the answenng party cannot truthfully admit or deny the matter.

An answenng party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the informanon known or readily obtainable by the party is insufficient to enable the party to admit or deny.

j If the Court determines that an answer does not comply with the requirements of this rule, it may order either that the nuttter is admitted or that an amended answer be served.

We consider a request for admissions to be an important way to narrow issues in a proceeding. To the extent that the Staff can carefully respond to these requests, it may find a way to make admissions that will narrow the matters in contention in this case. We urge the Staff to make that kind of careful review.

In particular, we urge the Staff to review the findings in the 01 Investigation l

Report, which is a major document in this proceeding, and to respond to j

the request to determine whether each nunibered sentence or statement in the i

document is true and correct. Likewise, it should respond to the request to examine the numbered factual findings and the numbered evidentiary findings l

in the 01 Report and to state whether they are true or accurate.' It is our ruling, l

as suggested by Federal Rule 37, that "any admission made by a party., is l

for the purpose of the pending action only and is not an admission for any other l

l purpose nor may it be used against the party in any other proceeding." The l

parties may rely on this assurance of the Board.

He 01 Report is a major Staff effort. It differs somewhat in its conclusions from the conclusions of the Vogtle Coordinating Group Analysis, which Staff 7 The gecshcary requested t y Intervenor m sis Request for Adousuons appears to be generally correct and to fall within.he pnnciples of the Federal Rules of Cml Procedure

%e also note that er evidenu.iry fmdmgs do not make concluuons as to ulumate truth They are 6ndmgs about what has been said, stated, or advned. As such. they merely require a companson of the statenrnis to the estubits This is a legiunuse request that is bems nuule by Intervenue.

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l says is the basis for its case. Tr. 523. Consequently, it is helpful in narrowing the issues in this case for Staff to review the OI Report and determine which statements in that report are true and which are not. In this way, the Licensing Board may be greatly assisted in comparing the relative value of the two different Staff views. It also will make it unnecessary for Intervenor to attempt question.

1 by-question cross-examination of Staff witnesses, which could produce a very long trial. While the rerponse to the Request for Admissions will indeed be time-consuming, the difficulty is produced by the nature of this case and not by l

any fault of Intervenor

• Any stipulations or agreements between the parties that reduce the dimensions of this task would be welcomed and likely would be approved by the Board.

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III. INTERROGATORIES i

l A.

Interrogatory 1: About Ken McCoy j

In Interrogatory 1. Intervenor sought information relating to an investigation that the Staffis said to have conducted concerning Mr. Ken McCoy, We consider this request to be within the scope of permissible discovery, since it relates to the character of a person who is likely to be a witness in the case. Ilowever, Staff also stated that the information is publicly available and Intervenor has not refuted that alleged fact. Staff Response at 5: Interrogatory Motion at 6-7. This j

l Staff answer is adequate.

i B.

Interrogatory 2: Vogtle Coordinating Group In Interrogatory 2, Intervenor seeks detailed information about the Vogtle Coordinating Group, which is the author of "Vogtle Coordinating Group Anal-ysis of Evidence and Conclusions," February 9,1994. The report followed "a detailed review of evidence associated with allegations that senior officials of l

Georgia Power Company (GPC) made material false statements regarding the reliability of diesel generators at the Vogtle facility."' Hence,it is clear that the work of the Vogtle Coordinating Group is relevant to this proceeding.

l This interrogatory seeks a variety of information about the Vogtle Coordinat-ing Group, whose report is a basis for the Staff's position in this proceeding.

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"We are hopeful that, smce the mvesnganon in this case began alnust 5 years ago, the staff will utshre enough resources to permit it to fulfillits discovery obbganons wnhin its target deadhnes m this case We note that many of the issues raned by the request for adnussmns also are raised by Georgia Power's response to the NoV and that latersena may further crystable thw issues in the contens of the NoV through his pronused reply to Georgia Power

' Memorandum frem Dand B Matthews. Chairman vogile Coordinaung Gnmp, to Thomas f.. Murley. Director.

Ofhce of Nudear Reactor Regulacon

• rebruary 9.1994. at l-i 97 1

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4 Tr. 523. Consequently, we are troubled that Staff also is claiming that the in-formation about the work of the Vogtle Coordinating Group is not necessary i

for a proper decision in this proceeding. Apparently, the Staff takes the position 4

that it will present its case concerning the findings of the Vogtle Coordinating Group and Intervenor will not be permitted to obtain discovery concerning how i

that position was developed. It is our conclusion, to the contrary, that the Staff's answers to questions concerning the credibility of its case are necessary to the proper determination of this case. See General Electric Co. (Vallecitos Nuclear Center, General Electric Test Reactor), LBP-78-33,8 NRC 461464-68 (1978)

(information about people relied on by intervenors to review, analyze, and study l

contentions is discoverable).

l Consequently, we shall order answers to this interrogatory, other than with respect to exceptions stated in this Memorandum and Order. Staff need not produce any document that is part of this request and that is already publicly available, providing that the Staff informs Intervenor about the location of the j

document.10 C.F.R. 5 2.740(b)(1).

Some of the documents requested in Interrogatory 2(e)(v) and (vi)'o are pre-decisional documents that may contain opinions that are protected from disclo-sure in order to protect frank, open discussion within the federal government.

We will permit the 3 aff to withhold these opinion portions, providing they promptly file a justification" for the withholding of the opinion portion of each such document or related class of documents 82 Consumers Power Co. (Palisades Nuclear Power Facility). ALJ-80-1,12 NRC 117,119-28 (1980)(especially page 125, which cites one case where the Appeal Board upheld a claim of privilege and another case in which the Commission held that certain information found necessary to a proper decision would be revealed).

The Staff shall segregate out all factual information contained in these documents and shall produce those factual portions in discovery. Portions j

that contain predecisional Staff opinions, including those that are inextricably intertwined with factual information. All remain privileged at this time and Staff may delete those portions, subject to the justification we required above.

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• We do not mterpret 2(eW and fu) to indude drafts of documems that were prepared by the Staff prmt to these meetmgs Fmal drafts used by the statr at the meetmg should not be considered predecismnal and shoulJ be

{3oduced in discovery The burden is upon the claimant of the esecuuve pnvilege to demonstrate a proper enuttement to exempnon from chsclosure, mcludmg a demonstratwo of precne and cenam reasons for preserving the con 6dentnahty of gmernmental commumcuuons Lma bland Lehrma Co (Shoreham Nuclear Power Station. Umi l), l.BP4242.

16 NRC 1144.1165 0982L c trmg Smith v FTC 403 F. Supp f ort), 1016 (D Del.1975x hmx 6fand Lghtmx Ca (Shoreham Nuclear Power Statwn. Umt 11. ALAB-773,19 NRC 1333.1141 (1984) 12 intervenor irmy then file an ryposing bnef. but he will need to be more specific th.. the general staiement cont.uned m latervenor's Monon at 7. specific transcnpi citauons are hkely to be necessary in order to persuade us to abrogate Staff's speci6c clasms of pnvilege 98

However, we have concluded that Staff may be required to disclose relevant dissenting professional opinions, if any. Dissenting professional opinions may have special value in testing the uedibility of the majority's opinions. If these dissenting opinions develop important subjects that are relevant to the validity of the findings of the Vogtle Coordinating Group, they shall be produced in discovery. Long Island Lighring Co. (Shoreham Nuclear Power Station, Unit 1),

LBP-82-82,16 NRC 1144,1164 (1982)(citing EPA v. Mink,410 U.S. 73,87-88 (1973). If there are dissenting professional opinions that are not important, the Staff may withhold them and file a justification for its claim of privilege.

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Interrogatory 4: Ollice of Investigation (01) Report Staff responds that the first page of the O! report lists all people involved in the f. reparation of the report other than secretarial personnel. We have de.

termined that this is an adequate response to the first portion of the interrogatory.

However, Interrenor requests "all documents used in the creation of the 01 Report or which resulted from its creation." Staff responds that " documents used to complete the 01 report are cited in the document.". This is not fully responsive since it does not exclude the possibility that there are documents used in the preparation of the 01 Report but not cited in the final product. We interpret Intervenor's interrogatory to request all documents used in creating the j

Report, regardless of whether they were cited in that report. The request should be interpreted to include all transcripts of interviews and all significant notes of interviews or communications. A note shall be considered significant if it contains information of sufficient gravity to have been considered important and -

relevant at some point in the decision process. We do not interpret the request to include predecisional nonfactual material reflecting the decision process used by 01 in preparing its report. Our interpretation is that the only document that "resulted from its [the O! Report's] creation" is the final O! report.

D.

Interrogatory 5: Notice of Violation (NOV)

We have determined that the Staff should disclose the names of people involved in creating and issuing the NOV and a brief statement of the nature of the expertise they contributed. (Staff need not disclose how they participated in the process, thus exposing the process itself, which is privileged.) If Staff introduces the NOV into this proceeding, Intervenor is entitled to know who participated in issuing the document. Even if Staff does not introduce the NOV, it is relevant to this proceeding and Intervenor should be permitted to conduct discovery in order to determine whether to introduce the document itself or to l

choose to attack its credibility.

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l We grant another aspect of this request. Intervenor should be provided with j

any document or portion of a document that has not already been disclosed and '

that contains segregable factual information that was considered by any person (including Commissioners and their staffs) in deciding whether or not to issue the NOV.'

l E.

Interrogatory 6: Regulatory Authority to Form the Vogtle Coordinating Group We agree that the authority to form the Vogtle Coordinating Group is not an issue in this proceeding because it does not affect the credibility of that Group's findings. In addition, this is a legal issue not a factual one. If Intervenor suspects that there is some illegality, it should brief us on that illegality, not request that the Staff provide a legal argument to support its wild legal hypotheses.

F.

Interrogatory 8: Similar to Interrogatory 6 His interrogatory is denied for the same reason that we have denied Inter-rogatory 6.

G.

Interrogatory 9: Timing of Creating Vogtle Coordinating Group i

Dis interrogatory requests information about whether the NRC Staff had ~

been advised of 01 fmdings when it created the Vogtle Coordinating Group.

Because this relatively straightforward information should not be difficult to obtain and because it may help to understand the purpose and credibility of the work of the Vogtle Coordinating Group, this interrogatory should be answered.

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11. Interrogatory 10: Regulatory Authority of the Vogtle Coordinating Group This interrogatory is based on an invalid premise. We take administrative l

notice of the fact that 01 Reports are not binding on the agency. They are recommendations.

.u is, if another Staff group considers the same facts, it would be free to agree or disagree with the 01 Findings. It would not " negate" an 01 Findin;;. it would just disagree with it.

This question is primarily legal and not factual. We will not require the Staff to do Intervenor's legal research.

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IV. ORDER l

For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 22d day of August 1994, ORDERED that:

1.

The Staff of the Nuclear Regulatory Commission (Staff) shall file an j

amended response to Intervenor's First Request for Admissions to NRC Staff, filed May 17, 1994. The amended response shal! include all matters discussed in this Memorandum and Order.

2.

Any admission is for the purpose of the pending action only and is not an admission for any other purpose nor may it be used against the party in any other proceeding.

3.

Staff shall respond to Interrogatory 2, except for matters that they need not disclose pursuant to this Memorandum and Order.

4.

Staff shall provide to Intervenor a" documents used in creating the Office of Investigation *s Report in Docket No. 50-424/50-425, regardless of whether they were cited in that report. The request should be interpreted to include all significant factual information.. including transcripts of interviews and notes of significant interviews or communications. A note shall be considered significant if it contains information of sufficient gravity to have been considered important and relevant at some point in the decision process. Staff need not include predecisional, nonfactual material redecling the decision process of the Office of Investigations in preparing its report.

5.

Staff shall provide to Intervenor any document or portion of a document that has not already been disclosed and that contains factual information that was considered by any person (including Commissioners and their staffs) in deciding whether or not to issue the Notice of Violation issued to Georgia Power Company, et al, on May 9,1994. Staff shall also disclose the names of I

the people involved in preparing and issuing the NOV and a brief statement of the nature of the expertise they contributed (Staff need not disclose how they participated in the process, thus exposing the process itself, which is privileged.)

6.

Staff shall respond to Interrogatory 9.

7.

All responses required by this Order shall be filed so that they are received by 5 p.m. on September 22,1994.

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8.

In all other respects, Intervenor's Motion to Compel Response from NRC Staff to Intervenor's First Request for Admissions from the NRC Staff, filed j

August 1,1994, is denied.

FOR THE ATOMIC SAFETY I

AND LICENSING BOARD James H. Carpenter (by PBB)

ADMINISTRATIVE JUDGE Thomas D. Murphy ADMINISTRATIVE JUDGE

'l Peter B. Bloch, Chair ADMINISTRATIVE JUDGE i

Rockville, Maryland l

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Cite as 40 NRC 103 (1994)

LDP-94-27 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Peter B. Bloch, Chair j

Dr. James H. Carpenter Thomas D. Murphy in the Matter of Docket Nos. 50-424-OLA-3 50-425-OLA-3 (ASLBP No. 93-671-01-OLA-3)

(Re: License Amendment; j

Transfer to Southern Nuclear) i GEORGIA POWER COMPANY, et al.

(Vogtle Electric Generating Plant, Units 1 and 2)

August 26,1994 RULES OF PRACTICE: LATE-FILED llASIS FOR CONTENTION; STANDARD FOR CONSIDERATION j

The test to be applied to determine whether to admit for litigation a new basis for an admitted contention is "whether the motion [to admit the contention) was timely and whether it presents important information regarding a significant j

issue." Consumers Power Co. (Midland Plant, Units I and 2), LBP-84-20,19 NRC 1285,1296 (1984). Applying this test, Intervenor's motion to admit a new basis for an admitted contention is denied.

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ALLEGED VIOLATION OF TECHNICAL SPECIFICATIONS:

INTERPRETATION

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To determine whether technical specifications have been violated, the wording l

of the specifications must be carefully examined to determine the precise meaning of those specifications.

ALLEGED CO31511TMENT TO NRC: CONTAIN51ENT HATCH The Board rejected an allegation that Licensee had breached a commitment to j

l the NRC that went beyond its technical specifications. The alleged commitment related to keeping the containment hatch closed. Yet opening of the hatch was

)

an open and obvious action and the Board does not accept the argument that

'j the action reflected adversely on the character and competence of the Licensee.

TECHNICAL ISSUES DISCUSSED Action statements: technical specifications; Containment equipment hatch; Emergency mode: diesel operation; Emergency power;

)

Limiting conditions of operation: technical specifications; Loss of all electrical power; Operable: definition in technical specifications; Residual heat removal system: operability; Site area emergency.

MEMORANDUM AND ORDER i

(Denying Motion to Accept Additional Factual liasis)

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1.

MEMORANDUA1 l

Mr. Allen Mosbaugh (Intervenor) moved to admit into this proceeding a new basis for his admitted contention. The new basis he advances is an allegation that Georgia Power misled the Nuclear ":gulatory Ccmmission concerning an allegedly improper opening of the containment equipment hatch, breaching l

containment integrity, during the March 20,1990 site area emergency.' Georgia Power has responded to this motion in an extensive factual filing. Georgia Power -

I Intenenor's Motion to Accept Addiuonal Factual Baus in support of the AJnuned Content.en. July 6.1994 Untervenor's Mormo).

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i and the Staff argue that Intervenor's Motion is seeking to raise a new " issue" in an untimely fashion.:

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'Ihe question before us is whether or not to admit the new basis into this proceeding.

II. STANDARD FOR ADMITTING A NEW HASIS FOR A CONTENTION Our prior Memorandum and Order, LBP-94-22,40 NRC 37,39 (1994), has established the standard we shall use to determine v hether or not to admit a new basis for the admitted contention. As we said in that Memorandum and Order:

3 We have adnutted into this proceeding Interve:.ar's following contention:

j The heense to operate the Vogtle Electric Generating Plant. Units I and 2, should not be i

transferred to Southern Nuclear Operating Company, Inc., because it lacks the requisite character, competence, and integnty, as well as the necessary candor, truthfulness and withngness to abide by regulatory requirenrnts.

1 This contention was based on specific allegations about: (D false or misleadmg state.

ments about Vogtle's diesel generators, and (2) illegal transfer of the authority to operate l

the Vogtle Plant.

A Licensing Board has the authonty to riuke an appropnare decision about whether the new basis shall be admitted. It has the authonty to conduct a fair and impartial hearing and to take appropnate action to avoid delay.' We note that a Licensing Board, in an analogous context. held that an issue that fell with.n an adnutted contention could be htigated. The test that was deseloped and apphed. to determine whether to admit the new issue, was "whether the motion was tmwly and whether it presents imponant information regarding a signihcant issue." C<msumers Amer Co. tMidland Plant. Units I and 2),

LilP44-20,19 NRC 1285.1296 (1984L We accept this test.

Thus, the test for whether or not to admit the new basis for Intervenor's contention has two prongs: (1) is it timely, and (2) does it present important information regarding a significant issue.

A.

Timeliness Deciding whether or not this contention ic timely could entail the resolution of a difficult factualissue. Mr. Allen Mosbaugh made Tape 25. He was present 2 Georgia Pouer Company's " Answer to inicrvenors' Medion to Accept Addinonal Iactual Bass in Support of Ae Adnutted Contennon? July 21.1994 (Georpa Power's Answert Staff of the Nuclear Regulatory Comnusson,

" Response to intervenor Mouon for Adnusuon of Late-riled Contenuon Haus." July 26.1994 (Staff's Response)-

3 LBP-93-5. 37 NRC 96. I10 t1993).

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i when Mr. Frederick made a statement that Mr. Mosbaugh relies on as a basis for this new contention. Mr. Mosbaugh now places great safety significance on these events. Yet he apparently lived through these events himself without realizing their safety significance. His attorney now states that he "had no independent recollection of events contained on Tape 25."5 He provided that tape to the NRC in 1990. Mr. Mosbaugh claims '. hat his memory was refreshed when the NRC returned the tape to him, believing it did not contain relevant evidence. At that time, Mr. Mosbaugh qui,ckly sent a complete tape back to the NRC.* Since j

Mr. Mosbaugh has not informed us of the precise date on which this occurred, we lack knowledge with which to determine whether he acted with reasonable promptness in filing a new basis before the Board, based on the date on which he states that he first became aware of the basis for this contention.

1 Mr. Mosbaugh has some responsibility for his tailure of memory, prior to the time he replaced the NRC's tape. Were we to coasider the additional basis in l

this proceeding, discovery would need to start now and there would be otherwise avoidable delay because of this tardy filing. If the allegation were sufficiently important, then its significance would outweigh this delay. However, as we shall state in the next portion of this Memorandum and Order, we have concluded that there is not sufficient significance in the allegations to permit us to overlook Mr. Mosbaugh's tardiness in raising them.

B.

Significance of Proposed New Basis Nr reasons set forth in Section II of this Memorandum and Order, we conclude that there is no basis for the belief that Georgia Power violated its technical specifications or misled the Nuclear Regulatory Commission (NRC) when it opened the containment hatch while Diesel I A was inoperable. Hence we have determined that there is no significance to the new basis that Intervenor has offered. Accordingly, we conclude that the new basis should not be further litigated and the motion to admit the new basis shall, therefore, be dismissed.

III. POSITIONS OF THE PARTIES A.

Interrenor's Position Concerning Technical Specification Violations Intervenor proposes the following scenario as its new basis. After the declaration of a site area emergency on March 20, 1990, at Plant Vogtle, containment integrity was restored by closing the containment equipment hatch S intenenWs Reply to etw Boant s Memorandum and order of July 28.1994 Concermng intenends Motion so Accept Addmonal ractual Baus. AuFust 12.1994 Oniervenor's Reply to the Board) at 12.

'Intenenor's Reply to tie Board al 13.

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at 9:42 a.m. as required by Technical Specification 3.9.8.2. By that evening both Unit I ernergency diesel generators were declared inoperable. As a consequence i

of both dicscis being declared inoperable, Intervenor alleges that both trains of the Residual Heat Removal (RilR) system were inoperable and thus placed Plant Vogtle in violation of its Technical Specifications, specifically Technical Specification 3.8.1.2 and Technical Specification 3.9.8.2. Intervenor also alleges that GPC made prior commitments to the NRC not to open the containment hatch until the diesel and the Reserve Auxiliary Transformer (RAT) were operable. In violation of that commitment Plant Vogtle managers opened the containment equipment hatch at 1020 p.m.

Intervenor states that the motivation for this action was improper, consisting of a need to remove an impediment to maintaining the critical path on the Plant Vogtle outage schedule. By its action, Plant Vogtle was intentionally placed in a less safe condition. Intervenor alleges that although Plant Vogtle recognized that it needed a waiver from the NRC to enter into Mode 5 (Cold Shutdown) from Mode 6 (Refueling), which it verbally received on March 21,1990, by opening the containment equipment hatch, it was in violation of Technical Specification-3.9.8.2. Intervenor alleges that the waiver was sought to cover up violations of Technical Specification and to speed up the outage.7 Intervenor supplemented his motion at the request of the Licensing Board."

Intervenor states that Technical Specification 3.8.1.2 requires an absolute min-imum of one source of offsite power feeding both safety buses with at least one emergency diesel generator fully operable when the plant is in Mode 6 with Reactor Coolant System water level less than 23 feet above the top of the reactor l

vessel flange (i.e., during refueling). In addition. Technical Specification 3.9.8.2 l

requires that there must be two independent RHR clectrical trains operable with j

no less than one train operating. Again Intervenor reiterates that one fully op-l crable emergency diesel generator must be available for the RHR systems to be j

declared operable? To do otherwise, according to the Intervenor would represent a " continuing disregard to conservatively interpret Technical Specifications when significant safety issues are directly implicated.""' Intervenor cites support for this position in an NRC Staff memo." Again Intervenor stresses that with both emergency diesel generators inoperable, opening the containment (equipment) hatch constitutes a violation of Technical Specification 3.8.1.2 and Technical Specification 3.9.8.2 and as such places the plant in its last echelon of defense before core damage. Intervenor argues that logic and reason demand that 7 1ntervethw's Motwn at I 4 a intenemw s Reply l

• ld at I-4

• 1menends Reply at 4.

U ld as 4.13.

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plant operators not engage in nonconservative activity that further degrades safety by removing the last barrier of defense to a radiation release to the public. Intervenor argues that taking nonconsenative action that absolutely and knowingly degrades existing safety barriers after entering a Technical Specification immediate action statement constitutes a violation of the intent, meaning, and purpose of that Technical Specification.'2 B,

Georgia Power's Position Concerning Technical Specification Violation Georgia Power claims that Interrenor inaccurately characterized Plant Vogtle Technical Specification; failed to discuss the NRC's interpretation of the Tech-nical Specifications; and provided no meaningful support for his assertions."

Georgia Power contends that Intervenor does not cite any evidence supporting the allegation that opening the containment equipment hatch violated Technical Specifications.

Georgia Power states that Technical Specification 3.8.1.2 established A.C.

electric power limiting conditions for operation applicable to refueling and cold shutdown modes. It requires one offsite power source and one emergency diesel generator to be operable in both modes. With less than these minimum require-ments, cenain operations were prohibited. Significantly, no action was required regarding the equipment hatch." Technical Specification 3.9.8.2 established a limiting condition for operation applicable to the refueling mode when water level was less than 23 feet above the top of the reactor flange. It requires two independent RiiR trains to be operable, at least one operating. If this require-ment was not met, the Technical Specification requires action to restore RilR as soon as possible, or bring reactor vessel water level at least 23 feet above the reactor vessel flange. With no RiiR in operation, all containment penetrations providing direct access from the containment to the outside atmosphere were to he closed within 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br />.

Georgia Power states that Intervenor claims that the inoperability of the two emergency diesel generators on the evening of March 20, 1990, made both RiiR trains inoperable is inaccurate and unsupported. Georgia Power cites an NRC Staff memo in support of this position." The NRC Staff position at the time considered both trains of an RiiR system operable if they were powered from their respective safety electrical buser Emergency onsite power sources

'I ld al 1.

U Georpa Power Company's Answer to intervenor's Motmn to Accept Addnional Factual Bases in Support of the Adnuited Contentwn. July 21.1994 (GPC's Answer).

"tniervenor's Reply at 5 "GPC Answer lah. A j

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l were not required to consider a system operable. Georgia Power states that both trains of the RHR system were operable when the containment equipment hatch was open. Both RATS were supplying offsite power to each RHR system j

l independently. Therefore Georgi'i Power claims that there was no violation of j

l Technical Specification.

C.

StafT Position Concerning Alleged Technical Specification Violation At a prehearing conference held on July 29,1994, the Licensing Board invited the Staff's views on the merits of Intervenor's allegations. Tr. 496-97. The Staff responded in an Affidavit filed August 18, 1994 ? The Staff disagreed with the Intervenor's position that RHR systems were not operable since emergency

)

power is not available. Therefore containment penetrations were not required to i

be closed? The Staff avers that the cha..ge from Mode 6 to Mode 5 was made following verbal approval by the NRC to GPC. Since there was no indication that either RHR system was inoperable at this time, GPC did not need a waiver of TS 3.9.8.2. Since RHR was not inoperable, when the containment was open, this did not violate Technical Specifications and did not require a 10 C.F.R. 5 50.59 safety evaluation. The Staff also considers the actions taken by GPC to provide a secondary reactor coolant method to be conservative?

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IV.

COARD ANALYSIS The parties have argued many specific issues in order to support or oppose the admission of the new contention. However, we have decided that it is important for the Board to understand the sequence of events in the site area emergency l

and the relationship of these events to the technical specifications for Vogtle?

Through this review, we have concluded that the core issues that need to be understood, as of the time of the site arca emergency, are relatively simple. The following sections of this Memorandum and Order contain our discussion of these issues.

NRC Staff Response to t.icensing Beard Inquiry. August 18.1994 (Statt Supplemental Response) and Anached AffiJ.ivit of Pierce R. skinner. August 17.1994 (Pierce Afhdavit).

'7 Pierce Afhdant at 3. 4.

'8 id. ai 4. $

l'Sec NUREG-1410. " loss of Vita! AC Power and the Residual Heat Remosal system Dunng khd-tmp operations at Vofile Un i l on ktsch 20,1990" Oune 1990) 109

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l A.

What Technical Specification Required the Closing of the Containment llatch at the Vogtle Plant?

On March 20,1990, a site area emergency was declared at Vogtle. The act that intiated the incident was the backing of a truck into an electrical support pole, causing the power line to fall to the ground and the transformer breakers 2o to trip Diesel Generator I A, which was the only diesel generator available, started automatically but stopped after 80 seconds.28 Eighteen minutes later, there was a second attempt to start I A, which operated about 70 seconds this time 22 About 36 minutes after the power was disrupted (at 9:56 a.m.), an emergency start of Generator I A (accomplished after disabling all but the four most crucial trips) was undertaken, resulting in a successful, continuous run of about 4.5 hours5.787037e-5 days <br />0.00139 hours <br />8.267196e-6 weeks <br />1.9025e-6 months <br />.23 Approximately 15 minutes into the incident, the Unit I shift superintendent directed that the containment building be closed. This was required by a limiting i

condition of operation in Technical Specification'3.9.8.2:24 I

3 9 82 Two independent residual heat removal tRilR) trains shall be OPERABLE, and at least one RIIR train shall be in o : ration.

b. With no RHR train in operanon.

Close all containment penetrations providing direct access from the containment atmosphere to the outside atmosphere within 4 hours4.62963e-5 days <br />0.00111 hours <br />6.613757e-6 weeks <br />1.522e-6 months <br />.

[ Emphasis added.]

The applicable definition of OPERABLE is found in technical specification 1.20:25 120 A system, subsystem, tram, component or device shall be OPERABLE or have OPERABILITY when it is capable of performing its specified function (s), and when all necessary.. electncal power.. that (isi.. reamred for the system.. to perform its function (s) are also capable of perfornung their related support functions.

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t At the time the containment haten was ordered closed, there was no electrical power - external or emergency - available for either train of the residual heat i

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{M at 2-4 7M 2'M at 2 5 24 See End I at 3/4 9-9 Thn erwknure is an attachmem to a Nuclear Regulatory Comnussion memorandum from Charles E Rossa. Director of the Divisma of Operanonal Events Aucssment of fice of Nuclear Reactor Regulanon to Wilham T Ruwell. Associate Director for inspectmn and Technical Assessnrnt. Othee of Nuclear Reactor Regulauon ( August 16,1991)(Rosu Memo) The memorandum was anaded. as Exhibit A, to Georgaa l

Power Company's Answer to intervenor's Monon to Accept Additmnal Iactual Hases m Support of the Adnuned Contentmn. July 21.1994 (Cworgia Power's Answer) 25 Rossi Menn End I at 1-4 i

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removal system and neither train was in operation. Hence, the Action Statement 3.9.8.2(b) was cal!ed into operation and the containment hatch was required to be closed.

B.

What Conditions Required That the liatch Be Closed? At What Point Did Those Conditions No Longer Exist?

As we have just stated, it was:

(1) the non-operability of the residual heat removal systems, because of the absence of all electrical power, and (2) that the residual heat removal systems were not in operation, that required the containment hatch to be closed. The technical specifications require closing the containment hatch only when both of these conditions are met.

Under the technical specifications in effect at Vogtle, as soon as one train of the residual heat removal system was in operafion there was no requirement that the containment hatch be closed. In addition, as soon as both trains of the RHR system were " operable" because they were receiving the electrical power necessary to perform their functions, then Vogtle was in compliance with 3.8.9.2

)

and no action statement would have been applicable.2.

By 9:56 a.m., Diesel Generator I A had been successfully started in emer-gency mode. At 10 a.m., the A train of the residual heat removal system was started for decay heat removal. At 11:40 a.m., power was restored to the IB Reserve auxiliary transformer, which was connected in parallel to the l A safety j

bus.27 At this point, both RHR trains had electrical power and were OPERABLE l

because:

all necessary.

electrical power.

that lis].

required for the system.

to perform its function (s) are also capable of performing his!.. related support funcuons.

It is important to note that the criterion for operability is met because it had the electrical power that is necessary to perform the system's functions. The definition of operability does not extend to emergency electrical power. Only to necessary power? In addition to these sources of electrical power, at 6:41 2*This was conustent with the remed techmeal specificatmns t%ued by the NRC m 1981. Ser Rossa Memo at 2.

27 NURE G.1410 at 2-5 2 Note that Intervenor, in his Reply to the Itoard's Menorandum and Order of July 28. 1994. Concerrung Intervenor's Motmo to Accept Additmnal Fadual Baus." August 12.1994 Untervenor's Reply to the livardL at 3.

c hanged the mramng of Dehnmon 1.20 by deletmg the word "necessary." whnh is encntian to a full understanding of this dehnmon 111 l

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p.m., the l A Reserve Auxiliary Transformer was energized from offsite power, providing still another source of electrical supply?

C.

Did the NRC Have an Official Position About What Was Needed for a System to Be Operable?

'Ihe NRC's official position on power supply has been the interpretation at Vogtle since it was licensed? Under this position, a system does not have to be declared inoperable solely because its emergency power source (usually the associated diesel generator) is not available. Under this position, a plant could meet its technical specification requirements with one operable offsite power source and one operable diesel generator as long as power was supplied to both j

safety buses.88 D.

What. If Anything, Is the Significance of a Dissenting View Among.

the Staff of the NRC That Would Have Resulted in Tightening the l-Definition of an Operable System?

There is.a differing professional view in the Staff of the Commission concerning the interpretation of the Vogtle technical specifications. Under this view. a system is not considered operable unless all its electrical power, including emergency sources of power, is available. In addition, the Staff recognizes that the technica! specifications in this area need to be clarified and apparently will be as a result of an ongoing shutdown risk study?

At the time of the Site Area Emergency, the NRC accepted an interpretation of the Technical Specifications that is different from the just-discussed differing professional view and recommendation. The existence of these other points of view does not in any way indicate that Georgia Power acted improperly 5

or that the Nuclear Regulatory Commission was deceived about a technical-I specification violation.

Pierce H. Skinner, an NRC Inspector responsible for both the Hatch and Vogtle inspection programs, has determined that Georgia Power's actions with respect to the containment hatch were conservative. He filed an affidavit on August 17,1994, in which he stated:

Since RHR was not inoperable when the contain-mt equiprnent hatch and possibly other penetrations were open, this did not violate [ technical specifications].

29 NUREG-1410 at 2 22.

30 Rossi Menn at 2.

33 l

1J Note that if tmch power buses have elecincal power. then both tra6ns of the RHR system have the electrical supply necessary for them to run Thus, under the defimuon or cperable. they are operable

' IJ. at 3 112 1

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I determined the actions taken by GPC were conservative at the time the waiver of compliance was granted I consider that ahgmng the systems such that a secondary cochng method would be more readily available by tensioning the reactor vessel head was a conservathe condition.

If water had been added to the rextor coolant system with the head detensioned. there wild have been some probabihty that leakage at the flange could have occurred. Tensiomng the.

head bolts ensures that any added water would have been contamed withm the reactor coolant system.33 We conclude that Intervenor has provided no basis for the belief that Georgia Power (or some of its officers) demonstrated a lack of character and competence in the way it treated the technical specifications.

E.

Did Vogtle Violate Its Technical Specifications When it Issued a Limiting Condition of Operability ("LCO") Against Diesel IA? If

)

So, What Are the Consequences of That Violation with Respect to Opening the Containment liatch?

Yes. Vogtle was in violation of the following limiting condition of operation, only;"

3.8.12 As a minimum, the following A.C. electrical power sources shall be operable:

a.

One circuit between the offsite transmission network and the Onsite Class IE Dntnbution System, and b.

One diesel generator,

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What is the consequence of this violation? To determine that, you must look at the remainder of 3.8.1.2. First, you discover that the LCO was applicable at the l

l time, to Vogtle, because it is applicable to Modes 5 and 6. Then, you examine i

the action statement to determine the effect:

l ACTION: With less than the above minimum required A C. electrical power sources OPERABLE immediately suspend all operations involving CORE Al ERATIONS. positive reactivity changes, movement of irradiated fuel, or crane operation wit's loads over the fuel storage pool, and provide rehef capabihty for the Reactor Coolant System in accordance with Specification 3 4 9 3. In addition. when in MODE 5 with the reactor coolant loops not filled, or in MODE 6 with the water level less than 23 feet above the reactor vessel flange, immediately initiate corrective action to restore the mquired sources to OPERABLE status i

as soon as possible.

I 33 NRC staff Respense to LJeensing Board Inquiry. August lit.1994. in the attached Anidavit of Pierce H Skinner at 45 M We have discussed above, beginnmg at pp.11011. that Ifo 3 9.8 2 was nor apphcable, pnmarily because an emergency diesel generator is not necessary for the operstmn of the residual heat removal system.

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This was the entire action statement that came into effect for violation of LCO 3.8.1.2. There is no indication that Georgia Power failed to adhere to this action statement. More important, in light of the alleged new basis, there was no requirement to keep the containment hatch closed under this limiting condition for operation. It could be opened for any legitimate reason, such as conducting outage-related activities. Motive is simply irrelevant.33 F.

lias Intervenor Demonstrated a Basis for flis Belief That Georgia Power Breached a Promise it Made with the NRC to Keep the Containment llatch Closed, Regardless of Whether or Not That Was Required by the Vogtle Plant's Technical Specifications?

Intervenor alleges, based on a tape-recorded statement by Mr. Frederick and on an entry in the Vogtle War Room Log, that Georgia Power made a commitment to the NRC that it would not open the containment hatch until it had a fully operable A Diesel. The quotations on which Intervenor relies are:

1

[From transcript of Tape #25. Side 83. as recorded by Allen Mosbaugh without the knowledge of Mr. Frederick:]"

-l Frederick:

And basically, at the meeting [between Georgia ibwer and the NRC] I thought that the l

fmal discussion that I got from George [Bochhold) and Skip IKitchensj. because they said it 4 tmies for clanfication. I remernber it had to be said 4 times before everybody i

understood that we wouldn't reopen the hatch until we had the diesel and the RAT. And we never got the die >el. That night they wrote an LCO on it.

37 War Room Log. March 20.1990 day entry, at p. 51:

Outage work is slowly gettmg back to normal after emerg termination. Before mid.

loop work can continue or equip. hatch be opened. AA02 and BA03 must be in normal alignment Imm respective RATS [ Reserve Auxiliary Transformers] and A diesel be fully operable with question about low jacket (water} pressure trips having been answered

)

i We are persuaded by the bases that Intervenor has filed that Georgia Power

{

personnel at one time decided, first orally and then recorded in the War Log, j

that the equipment hatch would not be opened until after the A diesel was fully operable. The oral statements were made at a meeting in which the NRC was i

present. While the words apparently were not accompanied by a handshake or l

l l

33 Compare Intervenor's argument, Intersenor's Reply to the Board at 6.

4 l

Intervenor's Moton to Acceps Additional Factual Basas in Support of the Adnuned Contentmn." July 6.1994 l

Attach. l. at I of 2 37 Interveror's Reply to the Board. Exh 2.

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,,-w-.,.

4

by statements that "it's a deal," it is quite likely that NRC personnel who were present were aware of Georgia Power's plans,"

Whatever was said at tW meting, however, Georgia Power subsequently changed its mind and decided t ^ pen the equipment hatch. The hatch is not a small, covert plant component. h is about four to five times the height of a man. It is opened using motors and a polar crane." It is an open and visible condition that would have been immediately obvious to any member of the NRC who was within the containment or who chose to look up at the containment from an appropriate position on the outside.

We conclude that Intervenor has failed to establish a rational basis for i

believing that Georgia Power deceived the NRC or otherwise failed to live up to standards of candor and honesty, There is no basis for believing that Georgia Power misled the NRC by breaching an " agreement" with it. We, therefore, also conclude that Intervenor's allegation about breaching a promise to the NRC does not demonstrate any lack of character and competence on the part of Georgia Power or its officials.

1 V.

BOARD ANALYSIS AND CONCLUSION We conclude, based on the analysis presented above, that Intervenor's Motion for a New Basis is untimely and does not present important information regarding a significant issue. The Motion shall be denied.

VI. ORDER Ihr all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 26th day of August 1994, ORDERED that:

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l 38 we note that the NRC Staff Respome to tarenung Baard Irkpury did not address at all whether a comnuinrnt had bern made to the NRC Since NRC perwnnel present durmg the dneussions with Vogile would be nest i

knowledgeable as to whether a "conmutment" was made to the NRC. this sdence of the Staff as punhng to the l

Board "See NURICel410 at.L70. 2 8.

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Interrenor's Motion to' Accept Additional Factual Basis in Support of the Admitted Contention, July 6,1994, is denied.

THE ATOMIC SAFETY AND LICENSING BOARL)

James H. Carpenter ADMINISTRATIVE JUDGE Thomas D. Murphy ADMINISTRATIVE JUDGE i

Peter B. Bloch, Chair ADMINISTRATIVE JUDGE l

J Rockville, Maryland l

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Cite as 40 NRC 117 (1994)

LBP 94-28 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION j

ATOMIC SAFETY AND LICENSING BOARD

- l Before Administrative Judges:

James P. Gleason, Chairman Dr. Peter S. Lam Thomas D. Murphy

. i in the Matter of Docket No. 030-09792-CivP l

(ASLBP No. 94-689-02-CivP)

(EA 93-111)

(Byproduct Material License No.13-02752-08)

INDIANA UNIVERSITY SCHOOL OF MEDICINE -

)

(Indianapolis, Indiana)

August 29,1994 i

i I

J MEMORANDUM AND ORDER (Approving Settlement Agreement and Terminating Proceeding)

)

I By joint motion dated August 24, 1994, the parties to this proceedmg, j

l Indiana University School of Medicine (Licensee) and the Staff of the Nuclear

]

Regulatory Commission (Staff) request that we approve a Settlement Agreement (Agreement) and terminate this proceeding.

Pursuant to section 234 of the Atomic Energy Act of 1954, as amended (AEA), 42 U.S.C. 5 2282, and 10 C.F.R. 6 2.203, we have reviewed the l

Settlement Agreement to determine whether approval and termination is in the public interest. On the basis of that review, we have concluded that the parties' Agreement and the termination of this proceeding are consistent with the public mterest.

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Accordingly, pursuant to sections 81,161b,161i,1610,191, and 234 of the AEA, 42 U.S.C. 66 2111, 2201(b), 2201(i), 2201(o). 2241, and 2282, and 10 C.F.R. 6 2.203, the joint motion of the parties is granted and we apprme the

" Settlement Agreement," which is attached to and incorporated by reference in this Order. Further, pursuant to 10 C.F.R. il 2.203,2.718, and 2.721, the Board terminates this proceeding.

IT IS SO ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD j

James P. Gleason, Chairman ADMINISTRATIVE JUDGE Dr. Peter S. Ian ADMINISTRATIVE JUDGE Thomas D. Murphy l

ADMINISTRATIVE JUDGE Rockville, Maryland August 29,1994 SE1TLEMENT AGREEMENT THIS AGREEMENT is made by and between the Indiana University School of Medicine (University) and the Staff of the United States Nuclear Regulatory Commission (NRC Staff or Staff), to wit:

WHEREAS the University is the named licensee on Byproduct Material Li-cense No. 13-02752-08 (License), issued by the NRC, which License authorizes the possession 'ad use of byproduct material at the University's facility located at the Indiana University Radiation Oncology Center,535 Barnhill Drive Indi-anapolis, Indiana (facility); and WHEREAS the License, as amended on October 6,1989, authorizes, inter alia. the possession and use of 7000 curies of cobalt-60 in a Picker Corporation Model 6296 teletherapy unit and 6670 curies of cobalt-60 in a Thomson CGR Medical Corporation Model Alcyon 11 unit: and 118 1

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WHEREAS on November 13-14, 1992, the University used the Alcyon II

]

unit to treat a patient, and the treatment resulted in a misadministration in which the patient received twice the dose intended to be administered; and WHEREAS on October 7,1993, the NRC Staff issued to the University a Notice of Violation and Proposed Imposition of Civil Penalty (NOV), in which i

the Staff asserted a violation of the NRC's requirements in 10 C.F.R. 6 35.32, identified as a result of the November 13-14, 1992, misadministration, and, 4

pursuant to 10 C.F.R. I 2.202, proposed a civil penalty of $5000 for the violation j

asserted in the NOV; and WHEREAS on January 18,1994, the Staff issued an Order Imposing Civil Monetary Penalty (Order) to the University, requiring it to pay a civil penalty 3

in the amount of $5,000 within 30 days of the date of the Order for the reasons i

described in the Order and the Appendix to the Order; and WHEREAS the University has requested a hearing on the Staff's Order, in response to which proceedings have been convened and remain pending before

]

an Atomic Safety and Licensing Board (Board) at this time; and WHEREAS the University denies and continues to deny that it violated the NRC's requirements as stated in the Order, and the Staff maintains that the j

violation occurred as stated in the Order, and the parties consider this issue unresolved, but the undersigned parties recognize that certain advantages and i

benefits may be obtained by each of them through settlement and compromise i

of all of the matters now pending in litigation between them, which the parties

]

recognize and believe to be in the public interest; j

IT IS NOW, THEREFORE, AGREED AS FOLLOWS:

1.

The University hereby agrees to pay, and the Staff agrees to accept, the amount of $2,500 within 15 days of the date of the Board's approval of this Agreement, by check, draft, money order, or electronic transfer, payable 3

to the Treasurer of the United States and mailed to the Director, Office I

of Enforcement, U.S. Nuclear Regulatory Commission, ATfN: Document Control Desk, Washington, DC 20555.

2.

The Staf f will transmit to the University a list of deficiencies in the 4

4 -

University's written Quahty Management Program (QMP), including, without i

limitation, deficiencies identified by the Staff in its review of the November 1992 misadministration and deficiencies identified by the Staff's contractor's j

routine review of the University's written QMP.

(

3.

As further described in Paragraph 5, below, the University agrees to resolve to the Staff's satisfaction each item on the list of deficiencies identified in Paragraph 2, above, by submitting proposed revisions to the QMP to the 4

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NRC' within sixty (60) days of the date of the Staff's transmittal of the list to the University.

4.

The Staff agrees to review and comment on the University's proposed revisions to the QMP within 120 days of the date of the Staff's transmittal of the list of deficiencies to the University, and the University agrees to resolve the Staff's comments to the Staff's satisfaction within the same time.

5.

Upon written notice from the NRC Staff that the University has resolved to the Staff's satisfaction each item on the list of deficiencies identified in Paragraph 2, above, and each of the Staff's comments on the University's proposed revisions to the QMP, provided for in Paragraph 4, above, the University agrees to retain an independent contractor, approved by the Staff in writing, to audit the University's implementation of its QMP. 'Ihe University will ensure that the audit is completed within ninety (90) days of the date of the i

Staff's notice, or the date of written Staff approval of the independent contractor, whichever is later. The University agrees further that it will obtain a report of the results of the audit from the independent contractor within thirty (30) days of completion of the audit.

6.

The University agrees to submit to the Staff a copy of the report of the independent contractor identified in Paragraph 5, above, within thirty days' of the date of the report.

7.

The parties agree that, as an integral part of this Agreement, upon execution of this Agreement, the parties will file a joint request for approval of this Agreement and termination of the proceeding on the Staff's Order of January 18, 1994, with prejudice, it being understood and agreed that this Agreement resolves all outstanding issues with respect to the Staff's Order of January 18, 1994.

8.

The University agrees that if:

(a) the University fails to pay $2,500 in accordance with Paragraph 1; or (b) the University fails to submit proposed revisions to the QMP as specified in Paragraph 3, above; or i

(c) the University fails to resolve to the Staff's satisfaction each item

(

on the list of deficiencies identified in Paragraph 2, above, or to l

resolve to the Staff's satisfaction the Staff's comments identified in Paragraph 4, above, within 120 days of the date of the Staff's transmittal of the list of defiebncies to the University; or (d) the University fails to retain an independent contractor as specified in Paragraph 5, above; or i

I The Unhersuy shall subrmt us proposed revisions to the QMP to Dr. John E. Glenn, Mail stop T845. U S.

Nuclear Regulatory Commission. Wm.hmgton. DC 20555 120 i

l (e) the University fails to submit the independent contractor's report to the NRC as specified in Paragraph 6. above; the Staff may, by letter signed by the Director of the Office of Enforcement, NRC, declare the University in default of the Agreement.

9.

In the event of a default under Paragraph 8, above:

(a) the provisions of this Agreement, with the exceptions of Paragraphs 8,9,10,11,12,13, and 14, are null and void; and (b) the University agrees to pay $5.000, less the amount paid under Paragraph I, if any, by check, draft, money order, or electronic j

transfer, payable to the Treasurer of the United States and mailed to the Director, Office of Enforcement,' U.S. Nuclear Regulatory Commission, ATTN: Document Control Desk, Washington, DC 20555.

The payment under this Paragraph shall be made within thirty (30) days of the date of the Staff's letter notifying the University of the default.

10. It is expressly understood and agreed that, in the event of a default by the University declared by the Staff under Paragraph 8, above, the Staff may take such legal actions against the University as the Staff may then deem to be appropriate including, without limitation, the right to resort immediately to a court of law in a collection action, by referral of the civil penalty to the United States Department of Justice for collection or otherwise, and the University hereby waives any right it may have to seek an administrative remedy in connection therewith, in accordance with Paragraph 11, below.

11. The Unisersity hereby waives any nd all rights or opportunity it j

may have to request a hearing or otherwise contest the Order imposing Civil l

blonetary Penalty dated January 18,1994, in the event that the Staff declares a l

s..ault under Paragraph 8. above.

12. In the event the University makes payments totalling $5,000 under i

Paragraphs I and 9, above, the University shall have no further obligations under this Agreement and the Order.

13. For good cause shown, the Staff may, in writing, extend the time to l

complete any action set forth in any provision of this Agreement. It is coressly l

understood that if the University shows that it has fewer than 30 days fi.m the date of a Staff comment, provided under this Agreement, in which to respond to

(

the comment, the University will have demonstrated good cause for an extension l

allowing the Unisersity to respond within 3n days of the date of any such Staff comment. Extensions shall be signed by the Director, Office of Enforcement, or the Director's designee.

14. It is expressly understood and agreed that 'nothing contained in this Agreement shall relieve the University from complying with all applicable NRC regulations and the terms and conditions of the License, and, further, that nothing i

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contained in this Agreement shall be binding on, or preclude lawful action by,

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any other Government agency or department.

15. It is expressly understood and agreed that nothing contained in this Agreement shall preclude the NRC Staff from taking further action as it deems appropriate to resolve any issue regarding the completeness and accuracy of information submitted to the NRC Staff by the University or involving the adequacy of the investigation of the November 1992 misadministration performed by the University's Radiation Safety Officer.

For the Indiana University School of Medicine:

Thomas P. Gannon Attorney for Indiana University Tbr the NRC Staff:

(

l Robert M. Weisman Counsel for NRC Staff l

Dated this 24th day of August 1994.

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Cite as 40 NRC 123 (1994)

LBP-94-29 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

t G. Paul Bollwerk, lit, Chairman i

Dr. Charles N. Kelber Dr. Peter S. Lam in the Matter of Docket No. 030-31765-EA (ASLBP No. 93-674-03-EA)

(EA 93-006)

' (Order Suspending Byproduct Material License No. 37-28540-01)

ONCOLOGY SERVICES CORPORATION August 31,1994 MEMORANDUM AND ORDEP.

(Dismissing Proceeding)

By joint motion filed August 26, 1994, Licensee Oncology Services Cor-poration (OSC) and the NRC Staff ask that we terminate this cause. In their motion, OSC and the Staff assert that such action is warranted because recent events have rendered this case moot. Because we agree, we grant the parties' joint motion and disiniss this proceeding.

This adjudication was instituted in February 1993 in response to OSC's request for a hearing to challenge a January 20,1993 Staff enforcement order.

That immediately effective order suspended OSC's byproduct materials license '

authorizing the use of sealed-source iridium-192 for high dose rate (HDR) l brachytherapy treatments at six OSC facilities in Pennsylvania. See 58 Fed. Reg.

l 6825 (1993). In theirjoint motion, the parties advise us that, in response to OSC l

requests, the Staff recently (1) issued individual byproduct materials licenses l~

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for five of these facilities that authorize HDR brachytherapy treatments at each l

facility, and (2) terminated the single OSC license that was suspended pursuant to j

the order at issue in this case.' See Joint Motion to Terminate Proceeding (Aug.

26,1994) at 2. The parties contend that these events render this adjudication moot so that it should be discontinued.

Thus far in this proceeding, the Board has issued rulings dealing with a variety of prehearing matters such as the timing and scope of discovery and the scope of the substantive issues to be considered.2 The Board, however, has not j

rendered any findings of fact or conclusions of law about the propriety of the j

Staff's January 1993 suspension order in this proceeding. Nor will we. With the Staff's actions issuing the individual facility licenses requested by OSC and terminating the single OSC license that is the subject of the contested suspension order, it is clear that this case is moot. We will, therefore, dismiss it.5 1

For the foregoing reasons, it is, this thirty-first day of August 1994 OR-DERED that 1.

He parties' August 26, 1994 joint motion to terminate proceeding is granfed and this proceeding is dismissed as moot.

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If this determination becomes final agency action because the Commis.

sion declines review, see 10 C.F.R. 6 2.786(a), within seven days of the date I

the Commission declines review, Staff counsel should advise the Board and the Office of the Secretary, in writing, whether the Staff prefers that the Board and the Commission record copies of the June 9,1994 "NRC Staff's in Camera Ex 1

f 3 Three of the sis facihties included in the suspended osC umbrella heense - the Lxton Cancer Center, Inc.,

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LAton. Pennsylvama, the Insana ReFional Cancer Cemer. Inc.. In&ana. Pennsylvania; and Stoneborn Oncology l

Associates. P C., Stoneboro. Penn9 vania - were issued inaudval hcenses af ter the Starf conducted prelicensmg 1

inspecuans Ser Joint status Report on outstan&ng lacensmg issues (Aug 17.1994) at i Two other covered facihues - the Greater Harnsburg Cancer Center. inc.. Harnsburg. Pennsylvama, and the Grenser Pittsburgh Cancer Center. Inc., Pmsburgh. Pennsylvania - were issued inevidual hcenses without prelicensmg inspections because they have been operatmg since June 1993 pursuam to a Staff-apprmed relaxauon of the suspension nrder.

Sec ad See alw LBP-93-10. 37 NRC 455. 464. aff'd. CLI 4317. 38 NRC 44 (1993). oSC withdrew its request for an mdmdval hcense for the Mahomng valley Cancer Center tehighton Pennsylvarna. which was the other facihty tr<luded in the suspemled license See Memorandum 4Refernng Document for Dockenng) (Aug. 31, 1994L attach.1 (unpubbshed I Ser. e s.. LBP-94-2. 39 NRC 11 (1994) (scope of procee&ngt LBP-93 20, 38 NRC 130 (1993) (disemery j

tmungh LBP-93-to, 37 NRC 455 (sarrrL LHP-93-6. 37 NRL 207 (same) sacared m parr m moor. CLI-9317.

38 NRC 44 (1993), Order (Rulmg on Disemery Matters)(May 6.1994)(scope of discovery)(unpuhhshed) 3 Although we are dismissing this proceeding. we retain junsdiction mer two other pending adju& canons that may invobe some of the same issues impheated m this case Ser Indrana Rerkmal Cuncer C<nrer (order Mmhfying and Suspeneng Byprmluct Matenals License No. 37 28179 01L tbcket No. 030-34185-LA; Dr James E Bauer (Order Prohibinng imobement in NRC Licensed Acuunest tkcLet No. IA-94-011. We expect Sraff counsel arol l

oSC corporate counsel, who also represents the Indiana Regional Cancer Cemer (IRCC) and Dr. James Bauer.

IRCC's ra&auon safety officer, to retain all matenals obtamed through discovery in this procee&ng that would avosJ duphcitous diseosery m the other adjudications i

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i Parte Response to Board Order Dated May 26,1994" be returned to the Staff or destroyed.'

TiiE ATOMIC SAFETY AND LICENSING BOARD G. Paul Bollwerk, III, Chairman l

ADMINISTRATIVE JUDGE Charles N. Kelber ADMINISTRATIVE JUDGE Peter S. Lam ADMINISTRATIVE JUDGE Rockville, Maryland August 31,1994 I

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' Opes of itns Menuwandum and Order are being sent tius date 1o OSC counsel by Inesinule transmission and to Staff counsel by electronic mail transmission through the agency's wide area netwo k system.

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I Directors' i

Decisions Under 10 CFR 2.206 i

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Cite as 40 NRC 127 (1994)

DD-94-8 UNITED STATES OF AMERICA j

NUCLEAR REGULATORY COMMISSION.

OFFICE OF ENFORCEMENT James Lieberman, Director in the Matter of Docket Nos. 50-528 50-529 50-530 ARIZONA PUBLIC SERVICE COMPANY (Palo Verde Nuclear Generating Station, Units 1,2, and 3)

August 12,1994 The Director of the Office of Enforcement denies a Petition dated February 1,1994, filed with the Nuclear Regulatory Commission (NRC) by Thomas J.

Saporito, Jr., and supplemented on May 18,199-, requesting enforcement action pursuant to 10 C.F.R. 6 2.206 (Petition). The Petition requested that the NRC:

(1) require a show-cause proceeding pursuant to 10 C.F.R. 6 2.202 to modify, suspend, or revoke the Licensee's operating licenses for Palo Verde Generating Station; (2) initiate " appropriate actions" to require the Licensee to recognize the Buckeye, Arizona Regional Office of the National Whistleblower Center (Buckeye) as an agency to which Licensee employees may raise safety concerns about operations at Palo Verde without fear of retaliation by the Licensee; (3) request the Licensee to encourage employees at Palo Verde to contact Buckeye.

l to identify safety concerns about operations at Palo Verde to ensure a working environment that is free of hostility and promotes the raising of safety concerns i

by employees without fear of retaliation; and (4) cause the Licensee to encourage employees at Palo Verde to contact the NRC in the same way as it would Buckeye.

On May 18,1994, Petitioner supplemented his Petition and requested that the NRC require Licensee contractors to: (1) provide information regarding filing complaints with the Department of Labor to their employees "as part of their 127

I normal employment package"; and (2) properly post the NRC Form 3 in and j

around the contractor's place of business and site business trailers and offices.

After an evaluation of the Petition, the Director concluded that Petitioner did l

not raise any issues that would warrant granting the requested actions.

DIRECTOR'S DECISION UNDER 10 C.F.R. f 2.206 L INTRODUCTION On February 1,1994, 'Ihomas J. Saporito, Jr., (Petitioner) filed a request for enforcement action pursuant to 10 C.F.R. i 2.206 (Petition). The Petition requested that the NRC: (1) institute a show-cause proceeding pursuant to 10 C.F.R. 6 2.202 to modify, suspend, or revoke the Licensee's operating licenses for Palo Verde Generating Station (Palo Verde); (2) initiate " appropriate actious" j

to cause the Licensee to recognize the Buckeye, Arizona Regional Office of the National Whistleblower Center as an agency to which Licensee employees may raise safety concerns about ; erations at Palo Verde without fear of retaliation by the Licensee; (3) initiate " appropriate actions" to cause the Licensee to l

encourage employees at Palo Verde to contact the Buckeye, Arizona Regional l

Office of the National Whistleblower Center to identify safety concerns about

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operations at the facility as part of its procedural requirements to ensure a working environment that is free of hostility and promotes the raising of safety l

concerns by employees without fear of retaliation; and (4) initiate " appropriate actions" to cause the Licensee to encourage employees at Palo Verde to contact i

the NRC to identify safety concerns about operations at the facility as part of its procedural requirements to ensure a working environment that is free of hostility and promotes the raising of safety concerns by employees without fear of retaliation.

l On May 18,1994, Petitioner supplemented his Petition by requesting that the i

NRC require Licensee contractors: (1) to provide information regarding filing complaints with the Department of Labor (DOL) to their employees "as part of their normal employment package", and (2) to properly post the NRC Form 3 in and around the contractor's place of business and site business trailers and offices.

As grounds for his request, Petitioner asserts that: (1) the NRC has identified Palo Verde as the second highest source of whistleblower complaints in the nation; (2) the Licensee's spokesman for Palo Verde, Mark Fallon, made public comments to the West Valley View newspaper that increase the " chilling effect" at the facility by discouraging employees from raising safety concerns to the Buckeye, Arizona Regional Office of the National Whistleblower Center; and 128 l

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j (3) Mr. Fallon's comments to the West Valley View newspaper increased the existing " chilling effect" at Palo Verde by clearly discouraging employees from raising safety concerns to the NRC. On May 5,1994, the Licensee provided a j

response to NRC questions on these matters.

IL DISCUSSION 1

With respect to his request for a show-cause proceeding to modify, suspend, j

or revoke the Licensee's operating licenses for Palo Verde, the Petitioner asserts that the NRC has identified Palo Verde as the second highest source on whistleblower complaints in the nation. This, in itself, is insufficient to support an action to modify, suspend, or revoke a license, unless it is also shown that a significant threat to the public health and safety exists. The Petitioner has not shown, nor is there independent evidence from the NRC inspection program that would establish, that the conditions and practices at Palo Verde warrant i

an order to modify, suspend, or revoke the license. In fact, Petitioner has i

provided nothing more than the bare a! legation that the number of whistleblower complaints indicates that there is a problem.

The number of whistleblower complaints in itself is not evidence of discrim-l ination; many such complaints are found to be without merit. For Palo Verde, some complaints of discrimination have been confirmed and others have been found to be without merit. While discrimination is never acceptable, the find-ings of discrimination at Palo Verde thus far do not warrant an order enodifyirp

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I suspending, or revoking the Palo Verde license. Where discrimination is suffi-ciently widespread that it substantially undermines NRC's confidence that the facility will be operated in compliance with NRC requirements, the action re-i quested by Petitioner - an order suspending or revoking the license - might be appropriate.' Such a conclusion cannot be drawn from the facts submitted with the Petition, and Petitioner's allegation in this regard does not justify the l

initiation of a show-cause proceeding against the Palo Verde Licensee. There-fore, this portion of the request is denied.

The next two requests relate to: (1) recognition of the Buckeye, Arizona Regional Office of the National Whistleblower Center as an agency to which Licensee employees may raise safety concerns; and (2) the Licensee encouraging I The NRC has a range of regulatory acuens available to it in these circumstances. As the Conunission has stated "It goes without saymg that a violanon posing an undue nsk to pubhc health and safety will. of conne. resuh in prompt renwdial acimn. includmg shutdown if necenary in other mstances, however.

the Comnussion has a wide spectrum of renrdies for dealing with vmlanons of regulations. These include show cause proceedmgs and proceedmFs for civil nmnetary penalues. The choice of appropnate mechamsm for correct on of an assumed violation rests withm the wund dneretwn of tius agency "

(Pentwn for Emrrxencs and Remraal Acnan. CL.1-75 6. 7 NRC 400. 405-06 0978),quormg Pertoirm for hrd=n of Canarn Reactort CLI-73-31. 6 ALC 1069,10710973))

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l employees to contact the Buckeye Center and identify concerns. Currently, employees may report their safety concerns directly to the Licensee or to the NRC. In fact, the Licensee has an " employee concerns program" that provides one avenue for employees to raise their concerns within the Licensee's organization. Reporting directly to the licensee in situations where the employee does not fear retaliation is especially beneficial because it brings the concern directly to the party responsible for taking corrective action and it should result in a timely and effective resolution of such' concerns.

The Licensee has recently taken several steps to impmve the effectiveness of the employee concerns program at Palo Verde. Specifically, the program has:

(1) been divided into two parts, one to follow technical issues and one to address I

personnel issues using human resource personnel; (2) been changed to allow an appeal to a group of technical managers or to senior Licensee management, as i

appropriate: (3) included training for all managers to improve their ability to j

discuss issues in an objective and fair manner and training for site personnel to l

explain the goals of the employee concerns program; and (4) decreased by more l

l than 50% the backlog of unresolved employee-concerns-program complaints.

On the other hand, the Licensee is required to, and does, post NRC Form 3 which makes it clear that employees may take their safety concerns directly i

to the NRC. Reporting to the NRC in situations where the employee does l

fear retLtion is appropriate in that the NRC has regulatory authority over l

the licensee. In such circumstances, the NRC: (1) can and, where necessary for prompt attention to a potentially significant safety problem, will forward the j

technical safety issue to the licensee to address without identifying the person i

raising the concern; and (2) if the safety concern is not appropriately corrected, will take additional enforcement action, as necessary.

The NRC has no authority to require that a private contact for raising safety 1

concerns, independent of the NRC or the licensee, be established, Likewise, lacking this authority, the NRC cannot require a licensee to encourage its employees to utilize such a third par More importantly, even if reports were made to the Duckeye Center, that organization has no responsibility to protect public health and safety nor any authority to require the Licensee to address safety problems. Therefore, this portion of the request is denied.

The Petition also requested that the NRC require the Licensee to encourage employees at Palo Verde to contact the NRC to identify safety concerns about operations at the facility as part of its pmeedural requirements to ensure a working environment that is free of hostility and promotes the raising of safety concerns by employees without fear of retaliation. As stated above, reports made directly to the Licensee in situations where the employee does not fear retaliation are preferable in that the report is made directly to the entity that is primarily responsible for safe operation and maintenance of the facility and the report can, therefore, result in more timely and effective corrective actions.

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l it would be counterproductive to require the Licensee to encourage employees who are not intimidated or do not fear discrimination or retaliation to contact the NRC instead of the Licensee with their safety concerns. In any event, the required posting of NRC Form 3 explains to employees that they may take their safety concerns to the NRC and, as stated abose, the Licensee does post this form.

With respect to Petitioner's claim that statements made to a newspaper by an official at Palo Verde undermined employees' going to NRC, we have examined those statements and requested an explanation from the Licensee. Based on our review of the Licensee's response and the statement apparently quoted in the article, I have concluded that the official's remarks cannot rearonably be read as discouraging employees from going to the NRC. Rather, those remarks touted the Licensee's claimed improvement in its employee concerns program and simply expressed a view that, with such improvement, employees likely will not find a need to go to NRC. In summary, I find that there is no basis at this time to require the Licensee to further encourage its employees to take their l

concerns to the NRC. Accordingly, this portion of the request is denied.

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l The supplement to the Petition requested that the NRC require Licensee j

contractors to provide information concerning filing complaints with the DOL to their contract employees as part of their normal employment package and to

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l require that contractors post NRC Form 3 in and around the contractor's place i

of business. Section 211, formarly section 210, of the Energy Reorganization l

Act has always included contractors in the requirements of that section and the National Environmental Policy Act of 1992 a nended section 211 to require posting of the provisions of section 211 "in any place of employment to which

[section 211] applies." The NRC has had a requirement for many years that licensees post NRC Form 3 to provide this notice to employees. While the NRC requirements for posting do not extend to contractors, section 211 now requires contractors to post the provisions of that section. At bottom, these provisions already require that licensee contractors provide notice to their employees of the provisions of section 211 and that NRC licensees post NRC Form 3 at their facilities wherever there are employees working 2 Therefore, there is no need for the actions requested in this portion of the Petition.

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2 it should be noted that the Commission is in the process or developng a Pohey Statenrnt that will address the responsihihues of contractors. as a result or a recomnendatmn from the Review Team on Protecting Allegers A amst Relahation F

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t III. CONCLUSION As explained above, the Petitioner has not raised any issues that would

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warrant the requested actions. Therefore, for the reasons given above, the Petition is denied.

l A copy of this decision will be filed with the Secretary of the Commission for the Commission to review in accordance with 10 C.F.R. 6 2.206(c). As provided by that regulation, the decision will constitute final action of the Commission 25 days after issuance, unless the Commission, on its own motion, institutes a review of the decision within that time.

i James Lieberman, Director l

Office of Enforcement

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Dated at Rockville, Maryland, l

this 12th day of August 1994.

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