ML20081K770
| ML20081K770 | |
| Person / Time | |
|---|---|
| Issue date: | 06/30/1991 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V33-N04, NUREG-750, NUREG-750-V33-N4, NUDOCS 9107010138 | |
| Download: ML20081K770 (69) | |
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l NUREG-0750 i
Vol. 33, No. 4 Pages 233-293
- NUCLEAR REGULATORY:
COMMISSION lSSUANCES:
Apri 1991;
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1 U.S. NUCLEAR, REGULATORY COMMISSION P
I 9107010138 910630
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Available from i
Superintentendent of Documents U.S. Government Printing Office Post Odice Box 37082 1
i Washington, D.C. 20013-7082 i
j A year's subscription consists of 12 softbound issues, 4 inderos, and 2-4 hardbound editions for this publication.
1 Single copies of this publication are available from National Technical' Information Sorvice, Springfield, VA 22161 4
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Errors in this publication may be reportod to the Division of Freedom of Information and Publications Sorvices Offico of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925) i l
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Vol. 33, No. 4 l
Pages 233-293 l
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i NUCLEAR REGULATORY l
COVIMISSION ISSUANCES r
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April 1991 i
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This report includes the issuances received dunng the specified period l
from the Commission (CLI), the Atomic Safety and Licensing Appeal Boards (ALAB), the Atornic Safety and Licensing Boards (LBP), the Ad-ministrative Law Judges (ALJ), the Directors' Decisions (DD), and the Denials of Potitions for Rulomaking (DPRM).
The summario9 and headnotes preceding the opinions reported heroin are not to be deemed a part of those opinions or have any independent legal significance.
U.S. NUCLEAR REGULATORY COMMISSION Prepared by the Division of Froodom of information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)
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COMMISSIONERS Kenneth M. Carr, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick J
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F Christine N. Kohl, Chairman, Atomic Safety and Licensing Appeal Panel B Paul Cotter, Chief Administrative Judge, Atomic Safety and Licensing Board Panet 1
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CONTENTS issuances of the Nuclear Regulatory Commission i
110RIDA POWER & LIOllT COMPANY (Turkey Ibint Nuclear Generating Phnt, Units 3 and 4) i Dockets 50-250-OLA 6,50-251-OLA-6
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MEMORANDUM AND ORDER, CLI 915, April 3,1991........, 238 1
GOVERNOR OF IDAllO i
I (Request to Retum to the United States the Idaho IYogram for the Licensing and Regulation of Ilyproduct Material as I
Defined in Section lle(1) of the Atomic Energy Act of 1954, as Amended. Source Material and Special Nuclear Material in Quantities Not Sufficient to Ibrm a Critical Mass)
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ORDER, CL1-91 -6. April 11,1991............................, 2 '2 i
LONO ISLAND LIGliTING COMPANY (Shoreham Nuclear Ibwer Station, Unit 1) i.
DocLet 50-322 OLA MEMORANDUM AND ORDER, CL1-914, April 3,1991......... 233 Issuance of the Atomic Safety and Licensing Appeal lloard l
PUBLIC SERVICE COMPANY OF NEW llAMPSillRE, et al.
(Seabrook Station, Units I and 2)
Dockets 50443 OL-1,50-444-OL-l (Onsite Emergency Plarming)
MEMORANDUM AND ORDER, ALAB-946, April 11,1991,...,,, 245 -
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Issuances of the Atomic Safety and Licensing Boards ARIZONA PUBLIC SERVICE COMPANY, et al.
1 (Palo Verde Nuclear Generating Station, Units 1,2, and 3)
Dockets 50 528-OLA 2,50 529-OLA-2,50-530-OLA-2 (ASLBP No.91-633 05 OLA 2) (Allowable Setpoint Tolerance)
MEMORANDUM AND ORDER, LBP-91-13, April 24,1991......., 259 1
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H ARNETT INDUSTRIAL X RAY I
Docket 30-30691-CivP (ASL11P No. 91-636-03-CivP) (EA 90-102)
(Materials License No. 35-26953-01)
MiiMORANDUM AND ORDER, LI1P 91-16, April 30,1991....... 274 i
CURATORS OF TiiE UNIVERSITY OF MISSOURI Doci~ cts 704X)270,30-02278-MLA (ASL11P No. 90-613-02 MLA)
(RE: TRUMP-S Project) (Byprmiuct License No. 24 00513-32; Special Nuclear Materials License No. SNM 247)
MEMOR ANDUM AND ORDER, LBP-91.ll, April 9,1991........ 251 j
CURATORS OF Tile UNIVERSITY OF MISSOURI Dockets 70-00270,30-02278-MLA (ASLBP No. 90-613-02-MLA)
(RE: TRUMP-S Project) (Byproduct License No. 24 00513-32:
Special Nuclear Materials License No. SNM 247)
MEMORANDUM AND ORDER, LDP-91 12, April 15,1991....... 253 CURATORS OF TIIE UNIVERSITY OF MISSOURI Dockets 70-00270,30-02278-MLA (ASLBP No. 90 613-02 MLA)
(RE: TRUMP-S Project) (Byprmluct License No. 24 00513-32; Special Nuclear Materials License No. SNM 247)
MEMORANDUM AND ORDER, LUP-91 14, April 25,1991....... 265 RilODES SAYRE & ASSOCIATES, INC.
Docket 30-29086-SC (ASLBP No. 91628-01.SC) (Byproduct Material License 2418959-02)
MEMORANDUM AND ORDER, LBP-91-15, April 25,1991....... 268 Issuance of Director's Decislun NIAGARA MOllAWK POWER CORPORATION (Nine Mile Point NucMar Station, Unit 1)
Docket 50-220 i
DIRECTOR'S DECISION UNDER 10 C.F.R. 5 2.206 DD-91-2, April 2,1991.................................. 279 4
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Cite as 33 NRC 233 (1991)
CU-91-4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
l Kenneth M. Carr, Chairman Kenneth C, Rogers James R. Curtiss Forrest J. Remick In the Matter cf Docket No. 50-322-OLA LONG ISLAND UGHTING l
COMPANY (Shoreham Nuclear Power Station, Unit 1)
April 3,1991 i
De Commission reviews Petitioners' appeal of three actions at the Shoreham l
facility. Because the Licensing Board ruling on which the appeal is based wm preliminary and did not deny the petitions in their entirety, the Commission dismisses the appeal as interlocutory, Furthermore, the Commission finds that -
the Petitioners do not meet the standards for discretionary review of their petitions.
I RULES OF PRACTICE: INTERLOCUTORY APPEALS Re ICommission's] Rules do not permit a person to take an interlocutory appeal from an order entered on his intervention petition unless that order has the j,
effect of denying the petition in its entirety. Long Island Lighting Co. (Shoretum Nuclear Power Station, Unit 1), CLI-913,33 NRC 76 (1991).
j RULES OF PRACTICE: INTERLOCUTORY APPEALS'
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A licensing board order that determines that petitioners lack standing, but which provides petitioners with additional time to correct defects in their original
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d petitions, is a preliminary ruling and does not constitute the denial of the petitions in their entirety.
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RULES OF PRACTICE: INTERLOCUTORY APPEALS (DISCRETIONARY REVIEW)
To meet the standards provided for discretionary review of their submissions, i
petitioners must show that the Licensing Board ruling on their petitions wou!J,.
" absent immediate appellate review, threaten [the petitioncts). with serious l
ineparable harm or pervasively affect the basic structure of the proceeding." See Shoreham, CLl 91-3, citing Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-736,18 NRC 165,166 n.1 (1983).
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RULFS OF PRACTICE: INTERLOCUTORY APPEALS i
Where the Licensing Board provides petitioners an opportunity to correct the defects it perceived in their initial filings, petitioners retain the right to appeal l
the denial of those petitions if they should fall to satisfy the Licensing Board in their supplemental submissions.
NEPA: ENVIRONMENTAL IMPACT STATEMENT (SEGMENTATION) 3 As a general proposition, it is within the scope of NEPA and a proceeding on any license amendment to claim that the amendment requires an Environmental
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Impact Statement ("EIS") because it is an inseparable segment of a larger major 4
federal action with a significant environmental impact.
4 NEPA: ENVIRONMENTAL IMPACT STATEMENT i
(SEGMENTATION)
A cociention that alleges the need for an EIS for allegedly segmented actions that are wholly separate from and independent of a larger action, to be properly l
pled, will, at a minimum, need to offer some plausible explanation why an EIS might be required for an NRC decision approving the larger action and how the actions in question could, by foreclosing alternative methods or some other NEPA-based considerations, constitute an illegal segmentation of the EIS process.
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MEMORANDUM AND 011DElt I,
INTRODUCTION J
nis matter is before the Commission on an appeal by the Shon' ham-Wading River Central School District (" School District") and the Scientists and Enginects for Secure Energy ("SE2") (collectively
- Petitioners") from an order entered by the Atomic Safety and Licensing Board (" Licensing Board"). See LBP-91-1,33 NRC 15 (1991). Upon review, we have decided to deny the appeal because it is interlocutory.
II. BACKGROUND On October 17,1990, the Commission forwarded six petitions for interven-tion and requests for hearings (three by each of the Petitioners) to the Licenting Board for proceedings under the Commission's Rules of Practice, See CLi-90-8, 32 NRC 201, 209 (1990) ("CLI 90-8"), aff'd, CLI-91-2, 33 NRC 61 (1991) ("CLI-91-2"). These petitions sought administrative hearings regarding three actions or proposed actions at the Shoreham facility and requested inter-vention status for Petitioners in those hearings, ne three actions were (1) a confirmatory order modifying the Shoreham license, (2) an amendment to the license regarding physical security, and (3) an amendment to the license regard-ing offsite emergency planning. In LBP-91-1, the Licensing Board found that the Petitioners had failed to establish standing under 10 C.F.R. 0 2.714(a)(2).
However, the Licensing Boaid provided the Petitioners with 20 additional days in which to correct the defects identified by the Licensing Board. See LBP-91-1, 1
33 NRC at 40-41.
On January 23,1991, Petitioners filed this appeal with the Commission from the Licensing Board's Order. On February 4,1991, Petitioners filed amended petitions with the Licensing Board.
III. ANALYSIS i
The Licensing Board Order before us is interlocutory. "nc [ Commission's]
Rules do tz.t permit a person to take an interlocutory appeal from an order ente.ed on his intervention petition unless that order has the effect of denying the petition in its entirety." Long I.; land Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-3, 33 hRC 76, 80 (1991) ("CLI-91-3"), and cases cited therein. In this case, while the Licensing Board found that the Petitioners lacked standing, it provided Petitioners with additional time to correct their initial 235
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4 petitions' defects. Accordingly, the Licensing Board's ruling was preliminary and the petitions were not " den [ icd] in their entirety" See Detroit Edison Co. (Greenwood Energy Center, Units 2 and 3), ALAB-472,7 NRC 570 (1978).
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Moreover, Petitioners have not shown that they meet the standards provided for discretionary review, i.e., that the Licensing Board ruling wuld, " absent
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immediate appellate review, threaten a party with serious irreparable harm or j
pervasively affect the basic structure of the proceeding." See Shoreham, CLl-i 91-3, supra, citing Cleveland Electric illuminating Co. (Perry Nuclear Power Plant, Units I and 2), ALAB 736,18 NRC 165,166 n.1 (1983). In this j
case, the Licensing Board provided Petitioners an opportunity to correct the defects it perceived in their initial petitions. Should Petitioners fail to satisfy the Licensing Board in their supplemental submissions, they will still be able to appeal the denial of both petitions. Thus, the Petitioners have not yet suffered any irreparable harm. Moreover, given the preliminary nature of the Licensing Board's ruling, it cannot be said to affect the proceeding in any " basic" or
" pervasive" way.
As a separate matter, we note that the Licensing Board held that the Ittitioners' claims regarding the alleged " illegal segmentation" of the Shoreham decommissioning process were outside the scope of the Notice of Ifearing.
2 based upon our observation in CL1-90-8 that the three actions before inc Licensing Board "have no prejudicial effect on how decommissioning will be a
j accomplished." LDP-91 1,33 NRC at 21, citing 32 NRC at 208 (emphasis in original). Ilowever, the Commission's rules provide that with respect to the license amendment actions "any party to the proceeding may take a position and offer evidence on the aspects of the proposed action within the scope of NEPA and this subpart in accordance with the provisions of Part 2 of this 1
chapter applicable to that proceeding,..." 10 C.F.R. 6 51.104(b). See also 10 C.F.R. 6 51.34(b).' Therefore, as a general proposition, it is within the scope of NEPA and a proceeding on any license amendment to claim that the amendment requires an Environmental Impact Statement ("EIS") because it is an inseparable t
segment of a larger major federal action with a significant environmental impact.
In this case, the Staff has determined in each of the two amendments before the Licensing Board that there was no need to issue an EIS.Thus, a claim that the amendments at issue are an inseparable segment of an NRC action on something 4
else - such as the approval of a decommissioning plan - and that approval j
of such a decommissioning plan requires an EIS,'would normally be within the scope of the proceeding. Our comments in CLI 90-8 were not intended to preclude the Licensing Board, as a matter of law and jurisdiction, from
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catettaining properly supported contentions that such an EIS must be prepared 3Under 10 CFA 5 5110(d), orders issued pursuant to 10 CFA Pan 2. subrert B. such as the Cmfirmatory order Ommedimiety Effcctive) which is the third NRC actwn at issue here, are nts subject to these requirements 1
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at diis time. Instead, our comments were part of our discussion of the narrowness l
of the decision to decommission Shoreham and were intended to emphasize that the focus of any NEPA alternative review that may be required would te on alternative ways to decommission rather than the ahernative of operation, i
As the Licensing Board correctly noted, we view the actions in question as l
being wholly separate from, and independent of, decommissioning, in addition, J
we harbor substantial doubts that the Petitioners can make a credible showing
- hat these actions are a part of the decommissioning process. liowever, we did l
not intend to preclude the Licensing Board, as a matter of law and jurisdiction, from entertaining properly supported contentior.s that allege that an EIS must bc prepared for the license amendment actions.2 Accordingly, if petitioners satisfy j
the NRC's standing requirements in their amended petitions, the Licensing Board is free to consider a properly pled contention on the need fer an EIS for these J
three actions. A properly pied contention will at a minimum need to offer -
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some plausible explanation why an EIS might be required for an NRC decision i
approving a Shoreham decommissioning plan and how these actions here could, by foreclosing alternative decommissioning methods or some other NEpA-tosed
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considerations, constitute an illegal segmentation of the EIS process.
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I V.
CONCLUSION Ibr the foregoing reasons, the Petitioners' appeal is denied as interlocutory, it is so ORDERED, For the Commihsion2 4
SAMUEL J. ClllLK Secretary of the Commission Dated at Rockville, Maryland, this 3d day of April 1991.
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l 2 Momwer, while we have ruled that " resumed operatam" as an alternative to deemunissiming is not an issue l
wuhin the scope or an EIS. see CLJW 8. syra, qf'd. CIJ 91-2, syre, we have not tuled that an EIS discussing mauers csher than resumed operation may amr he requtred ror arproval or a decorrunissiming plan, cuher in i
this case or in any other proceedmg.
3 Chairman Carr was nos present ror *be afr.rmation or this order. It he had been pecnt he wmld have approved it.
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Cite as 33 NRC 238 (1991)
CU 91-5 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
3 COMMISSIONERS:
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i Kenneth M. Carr, Chairman Kenneth C. Rogers James R. Curtiss l
Forrest J. Remick 1
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'n the Matter of Docket Nos. 50-250-OLA 6 50-251 OLA-6 4
FLORIDA POWER & LIGHT F
COMPANY (Turkey Point N'aclear Generating Plant, Units 3 and 4)
Aprli 3,1991 l
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'The Commission considers petitioner 'Ihomas J. Saporito, Jr.'s appeal from a Licensing Board decision denying his petition to intervene in an opemting i
1-license amendmeni proceeding. The Commission dismisses the appeal taause Mr. Saporito has not filed a timely brief supporting his notice of appeal.
RULES OF PRACTICE: APPELLATE REVIEW Under the NRC's Interim Procedures for Agency Appellate Review,55 Fed, j
Reg. 42,944 (Oct. 24,1990), the Commission, rather than an Appeal Board, will i
provide agency appellate review for new appellate matters.10 C.F.R. I 2.785(b).
RULES OF PRACTICE: APPELLATE REVIEW The NRC Appeal Panel lacks jurisdiction to hear appeals on new appellate matters. NRC Interim Procedures for Agency Appellate Review,55 Fed. Reg.
j 42,944. (Oct. 24,1990).
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RUI.ES OF PRAC'IICE: APPEll ATE REVIEW Filings beyond the 10-day period prescribed for appeals in 10 C.F.R. 5 2.714a are justifiable only if there is a showing of good cause for the failure to have filed on time.
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ellLES OF PRACTICE: APPEl, LATE REVIEW That a petitioner is a layman and thus possibly may be unfamiliar with NRC's Rules of Practice is not sufficient excuse for late or incomplete filings, particularly where the order that is tving clullenged expressly advised the petitioner of his appellate right.;, of the time within which those rights have j
to be exerci2cd, and of the mances in which an appeal is to be taken.
l MEMORANDUM AND ORDER On September 26,1990, the NRC published a notice indicating that it had uruler conslocration an application for amendments to the operating licenses for 1
Units 3 and 4 of the Florida Power & Light Company's Turkey Point station.' The i
notice provided an opportunity for interested members of the public to request a hearing. Ser 55 Fed. Rcg. 39,331. The Nuclear Energy Accountability Project (NEAP) and Thomas J. Saporito, Jr., filed a " Request for llearing and Petition for Lcave to Intervene," but NEAP subsequently filed a motion to withdraw from the proceeding, which was granted by the Licensing Board.2 This left Mr. Saporno as the sole petitioner in the proceeding. On January 23, 1991, the Licensing Board denied Mr. Saporito's petition to intervene on the ground tlut he had not satisfactorily demonstrated that he had the requisite standing to intervene. LBP-91-2,33 NRC 42.
'Ihe Licensing Board's decision focused on the standi'.g requirements of NRC's Rules of Practice (10 C.F.R. Part ?). Section 2.T.4 on the regulations provides, in subsection (a)(2), that the " petition shall set ' orth wi;h particularity the interest of the petitioner in the proceedi.g, how that interest may be affected by the results of the proceeding,.. [and] why petitioner should be permitted to intervene...." This means that the Petitioner must demonstrate that he satisfies the requirements of subsection (a)(2).3 I
I'The amendmenu relate to die Emergency Nwer system ror Owse units.
l 2 NIAP wuhdrew on die gruund om it wouhi he dissolved eficctive rkcember 31,1990.
3 3ee Tkm.1: fewr 4 Ught Co. (St. tacie Nalear Power 19 ant. Umts 1 and 2) C1J 89-21,30 NRC 325 (1989);
Soen F4mn Co. (Pdanm Nuclear Nur station), IJIP 85-24. 22 NRC 97. gT'd en eAer ground,r. AI AB-816 22 NRC 461 (1985).
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hir. Saporito attempted to show. hat he met th< stanJing renuirements by i
reciting in his petition for leave to intervene thw N " lives and works" in and
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about thc City of Miami, Florida. Ilowever, othei.ilings he had submitted in i
tie proceeding (as well as statements he made in an unrelated Depanment of j
Labor proceeding) cast doubt on this assenion. To ensure that he had adequate opportunity to axplain his position, the Board invited Mr. Saporita to amplify his statements, but his n sponse was tmclear. As a result, the Doard found that j
it could not conclude that he resides or works at an address that would confer i
standing, and it denied his petition to interv(ne in the proceeding.
At the end of it; order, the Licensing Board stated: " Pursuant to 10 C.F.R. 62.714a(a) within 10 days after its service, hit. Saporito may appeal this l
Memorandum and Order by filing a Notice of Appeal and accompanying brief J
with the Commission. See 10 C.F.R. 6 2.785 as amended Octoter 18, 1990 (55 Fed. Reg. 42,944, Oct. 24,1990)." LDP 91-2, 33 NRC at 47-48. The latter citation is to the NRC Interim Procedures for Agency Appellate Review, which j
provide that (with exceptions not relevant here) the Commission, rather than an appeal board, will henceforth provide agency appellate review for appellate matters. "Ihe Interim Procedures also provide that, until a final appellate review sule is issued, Commission review will follow existing pmcedures.
But, rather than going directly to the Commission, as directed by the I
Licensing Board Order, Mr. Saporito filed an " Appeal Request," dated February 4,1991, with the Appeal Panel. Because it correctly concluded that it did not 1
havejurisdiction to hear the appeal under NRC's Interim Procedures for Agency Appellate Review, the Appeal Board, on February 11, 1991, issued an Order referring the Appeal Request to the Commission, j
'the Commission must, at the outset, determine whether it is appropriate for
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it to consider Mr. Saporito's appeal. Section 2.714a of NRC's Rules of Piactice allows an interlocutory appeal from a licensing board order on a petition for leave to intervene. Subsection (a) of-that section requires a licensing board ruling on a petition for leave to intervene to le appealed by the filing of a notice of appeal and accompanying supporting brief within 10 days after service of the Board's order. Mr. Saporito's two-sentence Appeal Request can in no way be
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considered to be a supporting brief.
It may well be that the appeal period provided in section 2.714a is not i
jurisdictional in the sense that an appeal absolutely may not be entertained if l
it is not filed within 10 days after scryice of the order in question, but filings beyond the prescribed period are only justifiable if there is a showing of good caase for the failure to have filed on time. Moreover, the fact that the Ittitioner is a layman and thus possibly may be unfamiliar with NRC's Rules of Practice is i
not sufficient excuse for late or incomplete filings, particularly where the order l
that is being challenged expressly advised the Pethioner of his appellate rights, of the time within which those rights had to be exercised, and of the manner in I
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i which an appeal is to be taken. See flouston IJghting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB 547,9 NRC 638,639 (1979).
A petitioner's failure to file a supporting brief when filing a timely notice of appeal from the denial of an intervention petition was addressed by the Appeal lloard in Af/ssissippl Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB 140,6 AEC 575 (1973). In that proceeding, the Appeal Board took into account the possibility that the failure to file a brief was occasioned by the petitioner's unfamiliarity with the requirements of section 2,714a, and sua sponte entered an order that extended the time for doing so by 2 working days, When the petitioner still failed to file a brief, the appeal was dismissed.' The Board stated that, while it may make some allowance for the fact that a party before it is proceeding pro se," considerations of fairness to other litigants, as well as of the orderly administration of the adjudicatory process, preclude the granting to any appellant of a waiver of as fundamental a requirement of the Rules as that relating to the submission of a brief detailing the basis for his appeal."5 We are of the same view, Accordingly, Mr. Saporito's appeal from the Licensing Board decision deny-ing his petition to intervene is dismissed.
IT IS SO ORDERED, Ibr the Commission,'
SAMUEL J. C5flLX Secretary of the Commission Dated at Rockville, Maryland, this 3d day of April 1991, 4 similarly, an appeal nn an issue that is not addressed m an appcHate bner is considered to be saived. Pad 4c Service Electic saJ Gen Co. (salem Nuclear oenerstang stauon, Umi 1). ALAB-650,14 NRC 43,49-50 (1981).
8 1n any event, while hit. saponto is a layman netmg pm se,it canna be assumed tlut he is unramiliar with NRC's Rules of Practice since he has been achve in representing himself and other etaside parues in NRC runecedmas in necent years. See.le example. St. Exso, CIL89-21. supra note 3, Flondss Power & ligkt Co. (rurkey l\\nta Nuclear oenereung Plant, Umu 3 and 4), t.BP45,31 NRC 73 (1990), and TwAsy Point,l.DPM16,31 NRC 500 (1990).
" Chairman Carr was atsent ror the formal afrirmatirm or this Order, it he had been present he wnuld tave a;yrmed it.
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l Cite as 33 NRC 242 (1991)
CLI-91-6 I
UNITED STATES OF AMERICA l
NUCLEAR REGULATORY COMMISSION j
COMMISSIONERS:
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Kenneth M. Carr, Chairman I
Kenneth C. Rogers
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James R. Curtiss Forrest J. Remick i
In the Mauer of
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GOVERNOR OF IDAHO (Request to Return to the United States the Idaho Program for the Licensing and Regulation of Byproduct Material as Defined in Section 11o(1)of the Atomic Energy Act of 1954, as Amended, Source Material and Special Nuclear Materialin Quantitles I
Not Sufficient to Form a Critical Mass)
April 11,1991 i
The Commission grants the Governor of Idaho's request to retem to NRC jurisdiction Idaho's entire Agreement State Program governing the licensing and regulation of sectica lle(l) byproduct material, source material, and special nuclear material in quantities not sufficient to form a critical mass. Idaho had i
l returned previously to the NRC its authority to regulate section lle(2) byproduct
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material under its Agreement State Program. The NRC finds that this action is p
required to protect the public health and safety. Therefore, the NRC accepts the l_
return of the Idaho State agreement program, and effective April 26,1991, at l
12:01 a.m., MDST, terminates the Idaho Agreement in its entirety; and orders all
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affectui licenses and/or other documents to remain in effect as currently issued.
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l ORI)ER Pursuant to section 274j(1) of the Atomic Energy Act of 199, as amended, the Commission grants the request of the Governor of Idaho for the Nuclear Regulatory Commission to accept the return of authority over the licensing and regulation in Idaho of byproduct material as defined by section 1te(l) of the At mic Energy Act of 1954, as amended, source material and special nuclear material in quantities not sufficient to form a critical mass. The Commission finds that this action is required to protect the public health and safety.
i Idaho is an Agreement State. Under the provisions of the Agreement, which became effective October 1,1968, Idaho assumed and NRC relinquished authority for the licensing and regulation of byproduct material, source material, 1
and special nuclear material in quantities not sufficient to form a critical i
mass. On November 9,1982, Idaho returned to the NRC authority to regulate byproduct material as defined by section lic(2) of the Atomic Energy Act of 1954, as amended.
11y letter dated March 25,1991, Governor Cecil Andrus advised die Com-mission of his decision to return Idaho's Agreement program to the NRC, in his letter, the Governor indicated that he made this decision following a deci.
sion by the State Legislature not to fund the program for regulating radioactive materials subject to the Agreement at a level sufficient to meet NRC guidelines for adequxy to protect the public health and safety and compatibility with the NRC program. In view of the State of Idaho's decision to return its Agreement l
program to the NRC, the Commission finds it necessary to accept return of the Idaho program, and effective April 26,1991, at 12:01 a.m., Mountain Daylight Savings Time, terminates the section 274b Agreement between the NRC and the State of Idaho in its entirety and reasserts NRC authority over the lice: sing and regulation in Idaho of byproduct material, as defined in section lle(l) of the Atomic Energy Act of 1954, as amended, source material, and special nuclear material in quantities not sufficient to form a critical mass, De Commission staff will review the files of the Idaho Department of Ilealth and Welfare and will identify all relevant licensing documents for transfer to the NRC In order to aid in a smooth transition, the Commission deems it essential to maintain continuity in the licensing and regulatory obligations of the Idaho licensees whose dockets are being transferred to the NRC. This continuity may be ensured by keeping in effect on an interim basis all Idaho licenses as emTently issued, until such time as the licenses may be modified, if necessary, to meet NRC standards, or such time as the licenses are renewed or reissued.
Therefore, the Commission hereby terminates, effective April 26,1991, at 12:01 a.m. Mountain Daylight Savings Time, the Idaho Agreement and orders that, as of that date, all Idaho-issued licenses, license amendments, outstanding 243 i
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orders (if any), or other documents establishing obligations for specific licensees j
shall be deemed licenses issued or actions taken by the Commission, and such licenses or actions shall remain in effect by their existing terms as if initially issued by the Commissior.. %c Commission staff will review all transferred licensing documents and may provide for their revision in accordance with Commission regulations if necessary for such licenses to meet applicable NRC 4
i requirernents, i
for the Commission, 4
4 l
SAMUEL J. CilILK
]
Secretary of the Commission I
2
-Dated at Rockville, Maryland, this lith day of April 1991, i
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Atomic Safety and Licensing Apaeal Boarcs issuances I
ATOMIC SAFETY AND UCENSING APPEAL PANEL Christne N. Kohl, Chasrman han S Rosenthal Dr. W. Reed Johnson Thomas S. Moore
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l Howard A. Wilber l
G. Paul Bollwerk, til l
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j Cite as 33 NRC 245 (1991)
ALAB-946 I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i
f ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:
Alan S. Rosenthal, Chairman l
Thomas S. Moore i
Howard A. Wilber s'
i In the Matter of Docket Nos. 50 443-OL 1
}
50-444-OL 1 (Onsite Emergency Planning).
- PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et af.
(Seabrook Station, Units 1 i
i and 2)
- April 11,1991 1
After remand of ALAB-918,29 NRC 473 (1989), from the Court of Appeals in Afassachusetts v.NRC,924 F.2d 311 (D.C. Cir.1991), the Appeal Board finds that the issue originally appealed in ALAB-918 is now moot. Accordingly, the Board dismisses the intervenors' appeal from the Licensing Board's decision in LBP-89-4,29 NRC 62 (1989), denying the intervenors' motion to admit a d
i late-filed onsite emergency planning contention.
i t
1
-APPEARANCES
(
Leslie Greer, Boston, Massachusetts, Diane Curran, Washington, D.C., and j
Robert Backus, Manchester, New. Itampshire, for the intervenors, Attorney General of Massachusetts, New England Coalition on Nuclear i
Pollution, and Scacoast Anti-Pollution league, respectively.
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Thomas G. Dignan. Jr., George II. Lewald, and Kathryn Selleck Shea, Boston, Massachusetts, for the applicants Public Service Company of New ilampshire, et al.
Mitzi A. 'koung and Lisa B. Clark for the Nuclear Regulatory Commission staff.
I MEMORANDUM AND ORDER in Massachusetts v. NRC, the court of appeals reviewed, inter alia, our affirmance in ALAB-9182 of the Licensing Board's denial of the joint motion to admit a late-filed onsite emergency exercise contention filed by the intervenors, Massachusetts Attorney General, New England Coalition on Nuclear Pollution, Scacoast Anti-lbilution League, and the Town of Ilampton, New Hampshire.
The late-filed contention amse from a then-recently concluded, June 1988 graded emergency preparedness exercise for the Seabrook station. The court granted the intervenors' petition for review of ALAB-918 and remanded our decision "for further consideration of the materiality of petitioners' exercise contention" in the application of the third of the five factors set forth in 10 C.F.R. 5 2.714(a)(1) for the admission of a late-filed contention under the Commission's Rules of Practice 2 in taking that action, the court noted, however, "that Scabrook was scheduled for a second full participation exercise in December 1990" and "[a]
clean record in that exercise will likely moot this issue."'
After the court's remand, we requested the parties to tespond to a number of questions, including the question whether the remanded issue is now moot.81he responses of the applicants, the NRC staff, and the intcrvenors all confirmed that a full participation exercisc was held in December 1990 and all three responses attached a copy of the staff's inspection report covering the exercise. The report states that "[n]o exercise weaknesses or plan deficiencies were identified."'
Further, it concludes that "[t]he licensec[s] demonstrated the ability to implement their emergency plan in a manner which would protect the health and safety of the public."7 in light of the results of the 1990 full participation exercise, we find, as the court presaged, that the intervenors' appeal is now moot.
I 924 F.2d 311 (D C. Cir.1991).
2 29 gge 473 (g9g9),
3 huahuru v. NRC,924 F.2J at 3%
- 11.
I A[ peal Board Onier of Felsvary 22.1991 (unpuhhshed).
'Instatwo Repat Na 54443/90 85 (Jan. 30,1991) at 1.
I ld 2
246 i
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As fully detailed in ALAll-918, the applicants held a full participation emer-gercy exercise to test the emergency plans for the Seabrook station in June l
1988? A staff inspection team observed and graded the onsite portion of the j
exercise and tubsequ'ntly issued an inspection report fmding that, overall, the applict.nts' actions di. ring the exctcise were sufficient to protect the public health and safety! 4hc inspection report also noted, however, the strengths i
and weaknesses of tr e applicants' respon',e. With respect to the latter, the 1988 report stated:
4 lhe Technical Sunxwt Center (TSC) and Emergency Operations Facihty (EOO staff dis-played questionable engineering judgment and/or did not recognise or address technical con.
cerns (5040/884841). For example:
- Neither the EOF nor 15C staff questioned a release of greater than 7(XX) curies l
per second with only clad damage and no core uncovery isic).
- Efforts continued to restore the Emergency Feedwater Pump after a large break l
LDCA:
l A questimable fix for the Containment Huilding Spray sysicm; i
A lack of effort to locate and isolate the relene path; and
. No effort was noted to blowdown Steam Generators to lesien the heat load in containment.u i
These five examples of purported exercise weaknesses formed the bases of the intervenors' late-filed onsite emergency preparedness exercise contention. In essence, the contention alleged that the exedse demonstrated that the applicants' j
l emergency plan did not comply wl;h tne Commission's regulations,10 C.F.R. 50.47(b)(15), requiring that the persons assisting in an emergency be provided radiological emergency response training u To support their contention, the intervenors relied upon the affidavit of Robert D. Fullard, a r.uclear safety engineer with the Union of Concerned Scientists. Mr. Pollard concluded
{
that each of the five examples of purported weaknesses in the applicants' 1988 exercise response evidenced fundamental deficiencies in the applicants' j
emergency plan by showing that the applicants' TSC and EOF staffs were inadequately trained to perform the tasks assigned to them in the exercise."
I
[
s 29 NRC at 4%79.
[
'Inspatton Report No. 54443/88-ol (July 6,1988) at 1.
'O ld at 4-5.
I
'lIl at 5.
U Mom to Adnut lacroso Cor.tenum or,in the Ahernative, to Rapen the Record (sept. 16,1988) (hemnafter.
"Interven<ws' Mouon") Exhibit 1, Joint Intervenors on-soe Eaernse Contentim.
IIInterverm' Maion, Afridavn of Robert D. N1ard at 8-11 247 l
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In contrast to the staff's inspection report of the 1988 exercise, the staff report covering the onsite portion of the Decernber 1990 cmcrgency exercise found no exercise weaknesses conce
I 7echnical Syport Center (15C) l The following exercise strengths were identified:
l.
Excellent wrnmand and cmtrol was demorutrated and frequent staff briefings were conducted.
2.
Data were trended and catrapolated. Pn61 ems wtre anticipated. As a resuh, j
the time to reach conditions justifying a Site Area Emergency declaration were accurately predicted.
l
- 3. 1he need to identify plant vulnerabilides an early as pnsible led to a reqiest to use probabilistic risk assessment.
4.
Support resources from Yankee Nuclear Service Divisim engineers were appnvri.
stely requested and utiliacd.
t i
No esercise weaknesses or areas for improvement were identified.14 q
In addressing the EOF, the 1990 staff inspection report states:
Emergency Operations facitay (eof) 1he folkvwing exercise strengths nre identified.
- 1. 11ere was excellent support of and interactim with representatives of the New
]
llampshire Stat p..rnment and the New llampshire Yankee Massachusetts Off.
Site Respmse Organiutim.
i a
2.
There was prompt and correct respose to a simulated kun of the main ?lectrical l
sugT y to the EOF, i
1 3.
Dose assessment persmnel anticipated pasible release pathways and performed a "what if" calculation based on possible cmtainment breach in anticipation of a possible release.
I 4.
lhere was good command and control, frequent staff briefings and EOF manager's meetings, which included government representanves and the NilY Massachusetts Off Site Response Organization.
5.
Envirmmental mmitoring teana were reposinmed to minimize mission dose.
6.
Feedback was obtained regarding implement.ition of off site pnxective actims.
l 1his information was announced to EOF staff and relayed to other Ernergency Resomse l'acilities and SeabrocA Statim staff.
4 H Inspecunn Rcpat Na 54413/685 (Jan. 30.1991) at 6.
248 4
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d No caercises [ sic) weaknesses were identified.1hc following areas for improvement were identified:
1.
The responsibiluies of the NilY staff member processing inhalation pathway samples should be reviemed to ensure that activities which might impede his performance are assigned to other response persormel.
2, The procedure for processing of inhalation pathway samples could be streamlined l
by restricting ctocerns to iodme and noble gas concentrations.88 As is evident from the staff inspection report of the 1990 full participation eterrise, the staff feund no exercise weaknesses concerning the adequacy of the tmining of the TSC and EOF staffs. Although the staff report notes two areas for improvement in the EOF, these areas were not found to be weaknesses and they do not involve the sufficiency of the training of the EOF staff. Thus, whatever circumstances existed in 1988 with respect to the training of the applicants' TSC and EOF personnel, the 1990 staff inspection report reveals the adequacy of 4
those organizations today. Nor is there any merit to the intervenors' suggestion that the issue of the adequxy of the training of the TSC and EOF staffs may 1
not in moot because the 1990 cr.crcise was not identical to the 1988 test.3*
The adequacy of the training of applicants' TSC and EOF staffs - the focus of the intervenors' exercise contention - is as well tested by one scenario as another, so long as the exercise, as here, provides a fair test of the skills of-the targeted personnel. The 1990 exercise produced the " clean record" that the court of appeals predicted would moot the issue appealed in ALAB-918, and we now find that that issue is moot. Accordingly, we dismiss the intervenors' appeal from the Licensing Board's decision in LBP-89-4,29 NRC 62 (1989),
denying their motion to admit a late-filed onsite emergency planning contention.
{
lt is so ORDERED.
1 FOR Tile AFPEAL BOARD i
Barbara A. Tompkins Secretary to the Appeal Board e
i IS/d at 7, l'Inicrvenars' Reply to Appe4l Iloant order of February 22.1991 Otar.11,1990 at 2.
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i Atomic Safety l
anc Licensing i
Boarc s issuances ATOMIC SAFETY AND UCENSING BOARD PANEL g
B. Paul Cotter,* Chief Administrative Judge 0
l Robert M. Lazo,' Deputy Chief Administrativo Judge (Executive)
Q Frederick J. Shon,* Deputy Chief Adml:'istrative Judge (Technical)
O Members Dr George C. Anderson James R Gleason Dr. Emmeth A Luebke Charles Bochhoefor*
Dr Cadet H. Hand. Jt Dr Kenneth A. McCollom Feter B Bloch*
Ot Jerry Harbour
- Morton B. Margules*
{
Glenn O. Bndt Dr. David L Hetnck Marshalt E. Miller Dr A. Duon Caaihan Emest E. Hill Dr Peter A Morris James H, Carpenter' Dr Frank E Hooper Dr. Richard R. Panzek Dr Rchard F Cole
- Elizabeth B Johnson Dr Hany Rein 2
Dr Thomas E. Elleman Dr. Walter H Jordan Lester S Rubenstein Dr George A. Ferguson Dr. Charles N. Kelber*
Dr. Davio A. Schink O
Dr Harry Foreman Dr Jerry R. Kline*
Ivan W Srvth*
Dr Rchard F Foster Dr Peter S Lam
- Dr. George Tidey John H Frye 11t*
Or James C. Lamb til Sheldon J Wotte d
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- Permanent panel members o
1
1 Cite as 33 NRC 251 (1991)
LBP-91 11 UNITED STATES OF AMERICA 4
NUCLEAR REGULATORY COMMISSION I
l i
ATOMIC SAFETY AND LJCENSING BOARD Before Administrative Judge:
q Peter B. Bloch Peter Lam, Technical Advisor I
In the Matter of Docket Nos. 70-00270 30-02278-MLA (ASLBP No.90-613 02-MLA)
(RE: TRUMP S Project)
(Byproduct License No. 24 00513-32; Special Nuclear Materials License No. SNM-247) 4 CURATORS OF THE UNIVERSITY OF MISSOURI April 9,1991 i
1 The Presiding Officer uses his authority, for the purpose of deciding a motion of Intervenors, to ask questions to ascertain whether the Staff of the Nuclear
~
Regulatory Commission has exercised its authority (in a recent letter to Licensec) to hold the Licensee to a higher standard with respect to emergency planning and decommissioning than might otherwise be required by the regulations.
1 I
h1Eh10RANDUht AND ORDER (Question About Staff Questions) hiemorandum The purpose of this memorandum is to obtain information with which to evaluate the significance for this proceeding of a letter to the Licensec from 251
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John D. Jones, Materials 1.icensing Section of die U.S. Nuclear Regulatory C(unmission, dated March 13,1991.' *that letter states:
We have reviemed ywt apphtatiist fut remet of lype A litund &+e Material (Jtense Na 24-bnSI) 32 dated April 2s, I9ss l)ur to chantt* in !!rulatiort. lut Ating policy. ori vol.smo af material sukutstJ over many yars us are toquesting ik.s! yu resu%ut your arrlaation is its entirety.... I;exkised rind !) raft Regulancey Guide 10.s (Rev. 2) which further descrit es the hftwenation ym need to provide in yter apphtatlan llenghasis alled 1
'the Staff letter, which covers many arcat, including decommissioning and radiological emergency planning, appears to antkijute requiring compliance with regulalbr, revisions that became effective April 7,1990, and Out I have 1
ruled are not t slicable in this case. Memorandum and Order (Pending Motions, Including *I1w Related to Possession of *Pu), LI1P 90-45,32 NRC 449,455-
}
$6 (1990)! Mcmorandum and Order (Admitting Parties and Deferring Action on a Stay)(unpublished, August 28,1990) at $.
1 I request the Staff to tell me as soon as rcasonably Tsucticable, but no later than April 19, 1991, whether it intends to apply the deco amissioning and radiological emergercy planning provisions to the underlying byproduct materials license, if so, I am likely to consider that its request for information i
changes the complexion of this proceeding. If an emergency pt:m must be filed for the troad scope license, then it seems to follow that a subsequent amendment to that license must comply with d~
.ency planning requirement, with respect to the activities covered by the amendment.
Should the Staff confirm that I am correct in interpreting its letter as a determination - pursuant to 10 C P.R, 8 30.34(c) or sorne other authority (and 3
i i request nul Oc Staff provide citadon to yro[riate nudKWily for itS action)-
Own die regulatory revisions are now applich, te to the applicatiot; that will bc resubmitted in its endrety, in that event, I plan t. resolve expeditiously all other issues in the case but to leave these affected areas pen for later resolution,Irior j
to taking final action on the license amendment.
I Respet fully ORDERED, Peter D. Bloch, Presiding Officet ADMINISTRATIVE JUDGE I
I l
Dediesda, Maryland i
3The neuer was transtrutted to nw tus Mardi 27. 1991 by thennes oppaiently pursuani in ha c<s6nuins obligeum to keep ene nnrurmaJ or argushly rdevers evenui subisquently. I mwved *Interven' Meun for Remnsidessue or Wrnarendum and order IJIP 9tH5, Drarnber 19,1990, eu,.* Aprtl 1,1991, and benace's Respens to 'imarvasars' M4an for Rae<standerst.an... Illed rei Arn! 1.1991.*' April 8.1991 i
i 252 4
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Cito as 33 NRC 253 (1991)
LBP 9112
?
i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION I
i I
ATOMIC CAFLTY AND LICENSING BOARD I
4 i
j Before Administrative Judge:
Potor B. Bloch Peter Lem, Technical Advisor l
^
in the Matter of Docket Nos. 70-00270 30-02278 MLA L
4 l
(ASLBP No. 90 813 02 MLA)
.i (RE: TRUMP S Project) t j
(Byproduct License No. 24 00513-32; l
Speciel Nucleer Meterleis 1
License No. SNM 247)
CURATCRS OF THE l
UNIVERSITY OF MISSOURI April 15,1991 ej-t
- Ihc 14csiding Oincer determines that Licensec should install a fire sprinkler system in its Alpha Laboratory during the use of plutonium or americium i
in powdered form. lie asks gestions of Staff's and intervenors' witnesses concerning his tentative conclusion that a fire in the Alpha Laboratory would le i
so limited in size and extent that it would not breach the gypsum wallboard fisc j
barrier, lie also imposes several conditions voluntarily suggested by Licensec.
i TECilNICAL ISSUES DISCUSSED
+
i De following technical issues arc ("scussed:
i National Fire Protection Association (NITA) Recommendations i
Fire Sprinklers Fire IYopagation Physical armngement of futt (fire) 253 j
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Fire hahng Fire barrier.
i A1Eh10RANDUh1 AND ORDER (l'irst Initial Decision)
I hierisorallduitt The purposes of this decision are: (1) to grant relief with respect to Intervenors'8 request (voluntarily agreed to, in part, by Licensec ) for a sprinkler 2
system;(2) to declare a tentative coseclusion that a fire in the Alpha Laboratory j
that involves the wooden joists is not credible and perrnitting Mr. Amarendranath I
Datta of the Staff, and Mr. Donald W. Wallace, intervenors' witness, to answer my questions about this tentative conclusion; and (3) to impose license conditions voluntarily agreed to by Licensee.
1.
USI: OF SPRINKLI:RS "ic Nathmal Fire Protection Association (NF5'*.) recon.*nends automatic sprinkler systems in former section 2 2.2 of NFPA 801 and in.%pendix II, i112.2 of the 1991 version. *!he former section stated:
'the use of fire resistive building exenluvierds arid equipmers is highly desiiable in tiuse areas where radiunctin materials are to be stored or used. knne item of autinnatic pattec-tion, su<.h as suunnatic sprinklers, woulJ be highly advardage<ms wherever unntuitibics are ermanered. *lhe installatumi of auunnatic eatinguishing systems will make it less necessary for perstemel to espose themselves to ptosible danger, will start the fire twocess autanati-cally, will sturut an alarrn and will make efrident use of the wster stipgdy.
Additionally, as Intentnors point out, Licensee's witness, Mr. Robert G.
Purington,' wrote:
8iniervesnes are the Masoun Coahtim for the linvirmment, the Mid Masiam Natear weapers Friere. Inc,
'he 1%ysicians ror saetal Respmaibih:3/%d Maanuti (larner. Jarr stad. Ridard smith. Arny smith, sieve lacds, Marion Mace,'therese lidaam, Deuy Aulahaugh. thana N<snad, Clyde Wdsm, and Kathleen Marnsim.
2 t Acanece is the Curators or the Uruversity at Maseuri. Lievince anks a 94 day grace pennd before installauan or epnnnIer systown is required o
l 3 Mr. Punnston was Mrs Chier for the lawrame tivermtre Natitwal laborswry rar 23 yea,a lie is hight, quhried as e emsuhani sm the subjects an whidi be has tesuried and I rand he issumany to be well orgarused.
tardaUy empressed, and highly persuasave.
254 l
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In trust t.ases, mater - espe sally frten auturnatic spurdicts -is the test u ey to candnd fire,
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indalmg fires envidving radioactwo snatcrials. Neverdieless. Ow use of spratales systmis in l
rodamenwe areas is atten debated, even dough engwrirsnw has shouti that (me et die tient hre petdedhe tethruques fut drie faostdies is staienatic sprinLlers.1he argumesas against sprtralers are usually unfounded.even uten fissile snaterials are prestrL,,. O ywreds ti
!)
agunaler systerns cite de gussitehty of die spread ed <<ntaminatam ty traans of die waitir l
i used to stvarol the fire.1:ven if this is gussilde, the threat of airtnwne t<mtamination resuhirig funn urumtrolled 6te is greater. Camsequently, s(wne c4ritaminated unter is a small pitt 4
j for quid and erfecdve fue aumresske t'y encans ad sui (anatic sprinklers. If the threat <d J
the spread of contaminated mates is serkus, surns, drains, t erms, and uner encans of water f
$4sgeireners should lar prtwided....*
1 i
Purthermore, in his affidavit filed in this case, Mr. Purington wrote:
i Sprinklers are like rmtherhotallo we fue petserd<m rende. We'd like lo see the minde utvid equipped with sprinklers, indudmg all dettlings, Consequendy, even omgh in vicw of the
]4 hmited fire kiaang discussed shove, sprinklers are tus anarulated in the Alpha 1.aturatory,I would recinnmend to the University de installatkm of sgwinklers in the Algea talerstory. I i
have licen informed uist it gians to do 60.8
.I l
l have concluded that Mr. Purington's conclusions should be atkipted as my own, and I shall fequire both the installation of a sprinkler system in the Alpha i
j laiboratory and a report to the Stalf concerning whether any supplernental water l
collection systems may be required because of the risk of spreading contarninated water, either in false activations of the sprinkler system or in actual fires,'
j 1
On the other hand, I have decided to limit the amendment of the license to j
requiring a sprinkler system in the Alpha laboratory itself. I firid that the fire
)
knading in the basement outside the laboratory is very low, tving less than 40%
of the hiading inside the taloratory,' and I accept Mr. Purington's testimony that a fire from the other parts of the basement will not spread to the laboratory.
Omequently, I conclude that sprinkling of other portions of the basement is not related to tic safety of the licerned activity, and I will not require sprinkling in other portions of the basement - even though such sprinkling may be required I
i
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- intervenm' FaNb6i 6. Marth 26.1991 r61ms. *Radmactm Maienata," Rabat U Nnngum,in tsiJ orsit rn i
flasarde lle=0.aot M9 90 n st ed 1979).
8 aasee's I;shdnt 19, Arridsvit or Ruhen o Nrtnstan. hramry 21.1991, at 19-t
- The IWRR teostwnt already has a drain enkting synam.14 et 22.
'lkenee's Eshibli 20, Arrutavis d Waher A. Mcyw, Jr. Respmdmg to Nnma d Intervauns' kehunal."
hauary 28,1991, et 12-15,it 33 35.
'tkeinee's 1:ahibn 19, *Arridava or Roben o. Nnnstem Regentais the tweets et the Alpha tahwauvy,*
hnuary 21,1991, at 1315, %
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by the local hre code or, in fact. within the additional margin of safety that Licensee is planning to implement.'
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I II, CRI:lllillLITY OF A MAJOlt I'liti 4
I have tentatively concluded that the Type 11 fire scenario described by I
Amarendranath Datta* as less likely than 1 x 10-8 facility. year,is not credible
/
1 because the location of the limited burnable materials within the Alpha Lab.
oratory would rnit permit an untended fire to tvexh the 30-minute fire rated wallboards to involve the wcKid structure. This scenario is also sirnilar to that i
on which intervernirs' witness, Donald W. Wallace, has telled.
My grincipal reason for reaching this tentative view is my acceptance of the testimony of Walter A. Meyer, Jr., Rextor Manager for the University of Missouri Researth Reactor, and of Robert O. Purington, former Fire Chief of Lawrence Livermore National Laboratory. I am particulally persuaded by the l
following passage from Mr. Purington's testirnony;"
5 l'!]he fire hiel in the Alpha latuvatory and the MURR Ilesemein is cairemely low, si nonpared for enample to inhal fire hedings regerted in the hTPA fire Prutcoke liarmita=&.13 Materials etwased in metal do nid fully emirilmue their energy to a fire.
Cunsequently these n.aterials are *derated" and the fire kehng is reduced al3vopriately.
kwne tylsal vobes of fire hoding c<wnpared to the Alpha laboratory and the MURR 4
llatemerd are:
1 4
D*cJhng Iledrcam.
4.30 Itat3 i
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.... $.no th/ft3
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Alpha laimusiury
........ 1,39 R4:3 H
J MURR llanernas"
......................... 0.501t4:3 My persmal ideservati<m of the Alpha latuvatury and the MURR liasemera indicated that the individual fucJ sources (e g skwetma windom s. ownputers, paper) are relativeJy far apart.
hfortover the pihysical arrangement of thefuel would result in a generally low kwning rate i
3,e ItoCA Neumal Dmides Code 1987. lIrv115. 3.d4 is in e.rfed in the Cuy of Columbia armt sv41tatt 5
even a nmearardma use in a tissement unicia tr6e tusemaa is fully aprv41ered truervwsus' EthAut 2 (fthng of Manh 26,1990 I do sua ennauler di relevant to rny de'amunsten that the licensee has requnstad stsia fundmg fis e spnnkler syntam for the enure MURR bcuy. laenece's I thitut 23. Afr>dava of Chester D F.t ards. Jr 118 and 9. 5,e
%:ervemm'supplemssual Miam ftw onder impiains Condiuma on (kannes," April 1.1991, et 1, 4
Mstaff of the Nuclear Regulatory C4=nmissim 4
j "Ikemsee's Exhibit 19. "Afridsvit of Rohen O. Punngum Regardmg Fire hoierum at the Alr a lahiwaiory."
e January 28,1991 et is 14.
U lhunne in ongmall hre Pnuar6m llandbtwo. Ifah 14thm. Naumal lire Pnnecuan Assanateun. Qwy, MA. p. 7111 (Atta4 ment 2.)
D[lwurvas in ongmall See rkassee's l'un lead Ceicula.km. Attaemail A to tuenace Lahibu 20.
Hid i
256 l
i 1
-..~.,.~ - - -
.--..-.__-c 1
sr,uld thefwl hectent ignarJ In allawn, the amount af r.u kfuelsource se relatwely lom l
lhrey6aus ad&d I Actendsagly, in my opinwn, yajor mere to start, esen anssunang skroo es no swmnsi<w in ska firm offee supprenna activuses, swk a fare avult not sprrad sigafscantly beyms.t sks inasalfwl it'.mphaus aAled ]
=
Morc<wer, even if a fire tuurred in either the Algha laimiraitty to the MURR lismnerv
]
and spread to mene catern, it mmld rad reath die fladuwer pairs (even ens,smng there l
si ^3 intervernkw in the form of fire su;pression activitics). *lle neitinmty of each fuel i
canoners is audi that fire would me sivead frtun ime itern to die neat. Ibnher, the rse l
<d heat releste wou!J be so low that heat knees to entraired air and surttendmg toindmg turnemerds would prevvis Hic games at the teihng frorn readiing die required lilo-lWF needed for flaihover.
1he umulusion that i reAh would ras he aficoed if the Alpha laturakry arul MURR i
fissemerd were uniikred a single fire area. lhe fire hat cd the tombmed area is iedy 0 61 whhh is very low, the assmuity of fuel startes mould still be low aval the paential lb/ft3 i
for fladuwer wtmid remain negligible.
i llecause of my tentative conclusions, I direct tic following two questions only to Mr. Wallace and Mr. Datta:
1, is it credible that the gypsum wallboard fire barrier (" fire barrier")
7 will be penetrated by a fire starting within the Alpha Laboratory?
l In particular, is the fire loading and continuity of fuel sources that
]
are permitted to be present within the Alpha laborntory sufficient j
to produce a fire of enough intensity and duration to penetrate the fire barrier? (If your answer is yes to either question, please explain whether or not such a fire should be treated as a credible event.)
2.
Would your answers to Question i be affected by the installation of a fire sprinkler system in the Alpha Laboratory? Ilow?
l
'Ihe witresses may need access to data or photographs or to the site itself to
]
answer these questions, I urge the parties to provide inft 'mdly whatever seems necessary for an informed answer, Ill. LICI;NSE CONDITIONS i
i in addition to the one condition that I have decided to impose on Licensee, l
there are several to which it has voluntarily agreed and that I now impose pursuant to its suggestion," "Ihese conditions include: (1) installation of an additional llEPA filter that will be tested in place within 90 days of the effective date of this Order; (2) replacing the window in the Alpha Laboratory with a i
""1Jcenue's Respitse to intervmors' Motion for Order Imputng Candiuorm on IAouca and famiung linues I
in De laugated? 6'ebruary 21,1991.
257 I
a
_. ~ _ _ _
wire glass window; and (3) limitation of die authorized possession and use of i
amerielum.241 to 10 curies
i
)
Ortler Ibr all the foregoing reasons and upon consideration of Oc critire record in j
this matter, it is, this l$th day of April 1991. ORDERED that:
]
1.
Licensec shall install a fire sprinkler system in the Alpha Laboratory as a condition for conducting any experiments with plutoniurn or americium This l
condition shall become effective as of the date of issuance of this Order,
- 2. The Staff and Intervenors may respond to the questions I have posed in j
the accompanying memorandam within thrce calendar weeks of the issuance of 1
this Order, subject to extension for good caute shown.
- 3. Ily no later than 90 days from the date of issuance of this Order, Licensec shall fulfill the following conditions which it has voluntarily suggested:
(1) 11 shall replace the window of the Alpha Laboratory with a wire glass 4
window; and (ii) it shall install an additional llEPA filter. DOP tested in place, in the kication originally suggested by its consultant, Mr. Steppen.
4 4.
Pursuant to its own suggestion, Licensec shall limit its possession of j
americium to 10 curies, effective with the issuance of this Order.
- 5. The Staff shall promptly issnc a license amendment effcctuating $11,3, and 4 of this Order by making the requirements into license conditions.
a 6.
Within 90 days, Licensec shall repon to the Staff concerning whether the sprinkler system in the Alpha Laboratory will require additkmal provisions for drainage or collection.
Respectfully ORDERED, i
i Peter II. Ilkwh, Presiding Officer ADMINISTR ATIVE JUDGE i
liethesda, Maryland 4
b we of thnse cadetems werg lmspeed by Ikenare at gugsp 7sa76 or lkentes's Resjwanse h, tmcrventm' Rehmat January 2s.199 8.
I 258 1
,,.-...m..-
.._.em m.__
..m..
,.<m
Cato as 33 NRC 259 (1991)
LDP 9113 UNITED STATES OF AMERIC'.
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Ivan W. Smith, Chairman Dr. Walter H. Jordan Dr. Jerry R. Kilne in the Matter of Docket Nos. 50-528-OLA 2 50 529 OLA 2 S0-530-OLA 2 (ASLBP No. 91433 05-OLA 2)
(Allowable Setpoint Tolerance)
ARIZONA PUBLIC SERVICE COMPANY, et al.
(Palo Verde Nuclear Generating Station, Units 1,2, and 3)
April 24,1991 MEMORANDUM AND ORDER (Dismissing Scott /Ilush/ CREE Petitions to Intervene) 1.
IIACKGROUND On Maxh 13,1991, the Atomic Safety and Licensing lioard issued a Notice of Prehearing Conference directing Petitioners for leave to intervene or their respective counsel to attend a prehearing conference on April 10,1991, in Phoenix, Arizona. %c purpose of the prehearing confererre, as announced in the notice, was to hear oral arguments on amended and supplemented petitions for leave to intervene and answers thereto, and to conduct any further business appropriate to make a determination as to the parties and key issues 259
I J
1 i
in the proceeding, if any.' None of Oc joint petitioners, Myton L. Scott.
]
liarbara S. Ilush, the Coalition for Responsitile Energy Education (hereinaf ter
]
" Scott /IlusNCREli Petitioners") nor counsel for dem appeared at the prehearing conference. 'lhey have not provided any explanation for their failure to appear, Counsel for Licensecs inoved orally to dismiss the Scott / Bush / CREE peution l
"on Oc grounds that dicy've defaulted and failed to comply with die 11oard's
}
order to attend the prehearing conference " Tr. 5. 'the lloard deems Licensecs' tuotion as one seeking dismissal on the dual grounds of default arxl as a sanction j
for failure to comply with a lloard order. In the order below we grant the motion i
on both grounds, l
- 11. DISCUSSION i
A.
Default In our Memorandum and Order of February 19, 1991,2 we ruled that the Scott /IlusWCREE Petitioners had not established standing to intervene. 33 NRC at 158 59. As the Board explained:
It wuuld seem that the Scott /Ilush Petitionen live alxot 50 e iles inun the Palo Wrde Statim.
1 As nued ateve in the Wastr bar deciskut, the Appeallhard explained tha *sgyronimately 4
50 miles"is ncs so far as to rule out standtng tuned upon proximity - nor do we rule it J
mt, On the other hand we do not find inun the pcthion that residing stenewhere in Ternpe in itself establishes staruling. '!he 50 mile ruling was already very liberal and we are not i
inchned to extend it.
/d.at158, i
We also noted dtat the Petitioners did not explain how the interests of the CREE members are affected by the proceeding as a matter of prosimity to the j
Palo Verde Station. In that we could not discern how close to the station the l
CREE members live or whether any engage in activities near the station. Id.
A final ruling on their status to participate on the basis of proximity to die Palo Verde station was held in abeyance until after the filing of amended and supplemental petitions, if any. Id. at 159.
A supplemental and amended petidon was received from the Scott /IluW l
CREE Petitioners purporting to set forth additional information concerning their j
standing to intervene. Mr. Scott statas simply that his permanent home "is I
8 The notag was served again on Mardi Is.1991, woh a corrocuan to the aJdress or the U.S. Distnct Counhouse j
in phoenis. Anima, and the enriected nouce was pbhahe6 at s6 Fed. Reg.12A45 (Mar. 21.1990 2 1JIP-914,31 NRC 153 (1991).
260 l
l i
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,._..-,,,_,.,_..,.--_,._,__-._.._.,~.._..,_m.,e
I.
J l
approximately 50 miles" hum the Palo Verde Station,5 thus ignoring Licensecs' 1
statement
- that de map measured distance of the Scott /Ilush mailing address is approximately 52 miles from the station. 'Ihe petition also failed to address d.c ikufd's observation diat it is not, in this case, inchned to extend the 50-mile f
proximity-tused limit for standing.
1 Mr. Scott also states that he engages in recreational activities "within close j
proximity to PVGNS" without specifying how close and how frequently he i
engages in those activities. Mr. Scott also alhxtes to members of CREE who i
" live anNor own property well within fifty miles" of hdo Verde and providea j
affidavits of two such members,s Licensees responded to the Scott /Ilus!VCREE supplemental and amended l
petition with well reasoned legal and analytical challenges to the standing claims j
set out in the supplemental and amended petition. Licensecs also questioned i
some of the Scott /Bdsh/ CREE factual assertions relating to their standing-to-i intervene claims.'
It is not our purpose now to evaluate the merits of the Petitioners' claim
]
of standing or to rule on the merits of Licensecs' challenge to those claims.
Clearly the Scott /Dush/ CREE Petitioners failed to address Licensecs' challenge I
when given that opportunity and when the need was very apparent %cy are therefore in default in failing to meet Licensees' challenge to their claims of j
j standing to intervene in this proceeding, in our Order of February 19 we reviewed again the requirements for filing g
a contentions in NRC proceedings.' We recommended that "the Petitioners study the contention requirements of the rule carefully since the rule provkies that a petitioner who fails to satisfy the requirements will not be admitted as a pany" LDP-91-4, supra,33 NRC at 160-61 & n.3s citly 10 C.F.R. I 2.714(b)(1). The l
Scott /DuslVCREE supplemental and amended petition simply moved the Board 4
3 sumlemmtal and Arneded 1%unun to traervene of Myre 1. Scott, Bartura s. Bush, and the Coaliuon for Respanihle IUnergy IJucation, served Mars 11.1991.
4 lxcaneca' Answer in o usinan to Pruthm for 14sys to Intervene and Req met for 11anng, February 6,1991, m
at 6.
l 8on March 25, 1991, the naard received fawn Mr. scott a latier dated March 18, forwardmg the affidavita of
{
Mrs. Dush and Clatrs litts. Accordina to Mr. scott the submittal eas " pursuant to the prwissan of tm d.ys to l
submit supplcmmtal smdavits." he Hused's enter of 1:chruary 19,1991,ISP-91 d 33 NRC at 161, set Mard 11 as the date few ameded and suppl merned petitions and did nd preide for " ten days nn submit suplemental affidavus" sa suggested by Mr scott. De posed ruled trally that it wmld ny the Commission's regulations,10 C.F.R. 5 2.713(c), and is conduct disdained throughout American jurisprudence.
Ill, ORDI:R
'the Ittition for Leave to Intervene and Request for llearing by the Ittitioners Myron L Scott, Barbara S. Bush, and the Coalidon for Responsible Energy Educadon, and their supplemental and amended petitions are dismissed on each of the following in& pendently sufficient grounds in accordance with the foregoing discussion:
1.
Petitioners are in default of '. heir responsibility to meet (hallenges to their claims of standing to intervene in this proceeding, 2.
l'elitioners arr in default of the requirement to show that a genuine dispute exists tttween them and the Licensecs on a material issue of fact or law, and 3.
Petitioners failed to otry the direcdve of the Licensing Board to appear at a prehearing conference on April 10, 1991, at Phoenix, Arizona, thereby severely failing to fulfill their obligations with respect to an essendal step h the proceeding.
IV, APPEAL, RIGilTS
~1his Order wholly denies a petition for leave to intervene and a request for a hearing. Therefore, in accordance with the provision of 10 C.F.R. 6 2.714a(a) 263
l i
and (b), this Order may le appealed to the Commission within 10 days after service of this Order.
Tile ATOh11C SAiliTY AND LICENSING BOARD Jerry R Kline ADh11NISTRATIVII JUDOB Walter 11. Jordan (by 1.W.S.)
ADhilNISTRATIVII JUDGE Ivan W. Smith, Chairman ADhilNISTRATIVE LAW JUDGE Dethesda, hiaryland April 24,1991 l
264
a 1
J Cite as 33 NRC 265 (1991)
LBP 9114 l
3 UNITED STATES OF AMERICA J
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD i
4 i
Before Administrative Judge:
l 4
Peter B. Bloch Peter Lem, Technical Advisor i
in the Metter of Docket Nos. 7040270 3042278-MLA I
(ASLBP No. 9041342-MLA)
(RE: TRUMP 8 Project)
(8yptoduct License No. 2440513 32; i
Speciel Nucleet Meterleis Lloonee No. SNM 247) i CURATORS OF THE i
UNIVERSITY OF MISSOURI April 25,1991 i
The Presiding Officer denics interver. ors' req. t far a right Ic reply to the Staff's filing because lley have not shown with eny specificity how they couM i
contribute to the record by responding. lie also prevides for a m(aion for i
reconsideration, which would include an opportunity to make an offer of proof l
concerning how denial of a right to respond or to cross examine improperly prcJudiced their case.
I RULES OF PROCEDURE: SUllPAllT L; RIGilT TO RESPONU i
A party must show with specificity how it can contribute to the record before it will be permitted to respond, i
~
265 i
1 l
1
ItUI.I'S Or pitOCI:DtJiti:: StJilPAlti' l.1 MOTION l'OR lli:CONSIDI: RATION
'!he Presiding Officer permits a party to make an offer of Ptmf at the conclusion of the case showing how denial of a right to ressed (r to cross-examine improgerly pejudiced its case.
MEMORANDUM AND ORDER (lease to llespt nd to NRC Staff Responw)
"Intervenors' Motion for Leave to File Ressmse to NRC Staff Ressmse to Mesmrandum and Order," Agil 10, 1991, seeks to respond to two affidavits and seven pages of argument filed by the Staff of the Nuclear Regulatory Com.
mission in re.:ponse to questions that I a<ktressed to all de parties. Intervenors believe that they have a right to respond pursuant to demands of due proccas of law. %ey also argue that there may be misunderstandings of fact arxl law which they should have an oplurtunity to corrtrt.
"Licensec's Response to intervenors' Mot on for Leave to Respond to the NRC Staff," A[ril 22,1991, oppnes the Motion. Licent.cc argues that there is no due process right to respmd to facts or arguments presented by the Staff and that the procedural regulathms in 10 C.F.R. 6 2.1233(a) and (d) grant Oc gesiding officer the discretion to determine the sequence and timing for de sutwnission of written evidence. It further argues that there have been opportunities gakre for commenting and presenting evidence and that I am fully capable of reaching my own concluskms and determining whether 1 need any further information. See the Cormnission's expressed intent in Final Rule, $5 Fed. Reg. 8269,8275 (Feb. 28,1989).
I have determined that the intervenor's showing is not specific emiugh to persuade me Out my dxisks will be substandally improved by permitting a further response. While stating that there are " misunderstandings" in de Staff's filing, they have not suggested anythmg about the nature of de misunderstand-ings or shown with any specificity that I could le persuaded that I would agree with their statement of what a mistake is.
I have solicited a furtler response by Intervenors to one area of Staff testimony, dealing with a more.than 30 minute fire. LUP 9112,33 NRC 257 (1991). Another area of some controversy involved in Staff's filing is its estimate of die protability of dilferent fires. His was, however, directly ressmsive to the question I asked all the parties, ard Intervenors therefore also had an opportunity to ressmd. That Ocy did not do so was a matter of choice on their part.
266
l On Oc other hand, I antkipate that any deciWn in Hiis case will be sul$wt to a rnotion for reconsideratiori. In such a enotion, de traditional grtsuid I trowniderathwi requites a party to spell rat wiut inatters of scurd were not propetly considered tiy the picsiding of ficer, Iri addititui, I invite tic parties to include a separate $ccthvi in whkh tiry show precisely what evidence they are prepared to present (in de nature of an offer of grooO to show diat Oey have been prejudiced by the denial of crou exatnitudon or rebuttal.
Except to Oc extent indicated, the Modon of the Interverx>rs is denicd.
Respectfully OllDERED, Peter 11. liksh, Presiding Officer ADMINISTRATIVE JUDGE 1
Iledesda, Maryland i
267 s
t
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- m.y<-g---,,w,ow,g-yre,,,-,.w-r-er y t y m gn - e my, u.
-ewwu we - y we y%,
-,,,_,..,m.-,rwe,.--,eisiir-em-ew-wrv
-m,u.i-w* swr-+
m e
,v -- w* r
- s-tt-e=w-e
-e re-- e-tw=w=
Cite as 33 fJRC 268 (1991)
LDP 9115 UNITED Si ALES OF AMERICA NUCLEAR REGULA10RY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Defore Administratl,e Judges:
Charles Bechhoefer, Chairman Dr. Richard F. Cole Dr. Charles N. Kolber in the Matter of Docket No. 30 29086 SC (ASLBP No. 91628 01 SC)
(Byproduct Material License 24-18959-02)
RHODES SAYRE & ASSOCIATES,INC.
April 25,1991 In a proceeding involving an Order to Show Cause why a license stould not be revoted for nonpayment of a license fee, the Licensing Board grants the NRC Staff's motion for summary disposition and authodies the Staff to invoke the sanctions set forth in the Order to Show Cause.
Rl'LES Ol' PRACTICE: STANDARD l'OR REVIEW OF SliOW CAUSE DETERMINATION In evaluating the actions of the NRC Staff in issuing an Order to Show Cause, as well as in determining whether a requested waiver should be granted, a licensing board should base its review on whether, in exh instance, the Staff abused its discretion. See Northern Indiana Puhtle Servke Co. (Bailly Generating Station, Nuclear-1), CL1-78-7,7 NRC 429,433 (1978); Consolidated Edison Co. <f New York (Indian Point, Units 1, 2, 3), CL175-8, 2 NRC 173, 176 (1975).
s 268
MEMORANDUM AND ORDER (Granting Staff blotion for Summary Disposition) i
%is proceeding involves an Order to Show Cause why the Byproduct 1
hiaterial License of Rhodes Sayre & Associates, Inc. (License 24-18959 412) f should not be revoked, together with related remedies involving disposal of the material and equipment and decontamination of the facility, for nonpayment of an inspection fee. 'Ihc Licensec, kicated in Brookfield, hiissouri, utilizes its license 1
to permit certain byproduct material to be used in gauges for moisture / density measurements of soils and construction materials, at locations throughout the j
i State of hiissouri.
lbr reasons set forth below, we are granting the NRC Staff's hiarch 20,1991 4
J motion for summary disposition and authorizing the NRC Staff to impose the
=
sanctions set forth in the Order to Show Cause. This terminates this proceeding.
l A.
Procedural llackground
)
According to Oc NRC Staff,8 on April 15, 1987, the Staff conducted a routine safety inspection of the Licensec's activities at Brookfield, hiissouri.
On August 14, 1987, the Commission billed the Licensce an inspection fee of $530, as authorized by 10 C.F.R. Il170.12(g) and 170.31(3)(P), requiring payment within 30 days.2 Itaving not received payment, the Staff on September 25, 1987, sent the Licensee a second notice of payment duc and, on October 14,1987, a third (and final) notice.8 Absent receipt of any payment, the Staff on September 19, 1990, issued the Order to Show Cause. The Order provided the Licensec an opportunity to request a hearing and, on October 11, 1990, it filed a timely request This Licensing Board was constituted to consider that request.' In that request, the Licensec admitted nonpayment of the fee in question but requested a waiver of that fee, on the ground that the Licensec's use of the licensed equipment was cxclusively on projects for governmental units. (Under 10 C.F.R. I170.11, in effect both in 1987 and at this time, certain governmental units are exempt from the license fees, were they licensed to use the equipment on their own behalf.8) l 3NRC stafr Resemne in Memaandum and order, dated January 7.1991.
2 gn,,c, 3 7 94, A cq.y of the invows is ettasc4 to the NRC staff Respmse to Mernorandum and order, dated January 7,1991.
3
'l-ashhahmas or Akunic safety and ticmaing Board. dated Dwcrnter 7.1990. poblahed et 55 i ed. Re.6 51.516 f 14,1990).
The Canmissian is curmuly pqwsuis to end una anempian. See NRC lesser w all hensees. daad Apil s, 1991,"Pimmed Revisions to 10 Cllt 170 and 171 on license. Insrown and Annual rees
269 I
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In our Mernorandum and Order (Schedule for Further Filings), dated Ikccm.
ter 13,1990 (unpublished), we granted the Licensec's Request for a hearing
- and also asked the Staff to consider the requested waiver. Along with its re-sp(me to our December 13,1990 Memorandum and Order, the Staff filed the affidavit of Mr. Ronald M. Scroggins, NRC Controller, who has authority to grant exemptions from and waivers of fees where appropriate.'
Mr. Scroggins found insufficient basis to grant the requested waiver. lie stated, in effect, that private commercial firms subject to NRC licensing are expected to pay, to the fullest extent possible, the agency's cost of performing regulatory services, that rnany private firms perform activities for governmental entitles and that, in the past, all of these licensecs have paid fees, some substantial in amount. Mr. Scroggins could find no public interest to be served in waiving the fee, including interest and penalties.
On January 30, 1991, we c(mducted a prehearing conference by telephone confe ence call. Because it appeared that, to some extent, the Licensec might have acquired its particular license based on a misunderstanding of the rules governing payment of fees, we encouraged the parties to seek settlement and to report the results to us. We deferred the proceeding pending the outcome of the settlement negotiations. Sec Memorandum and Order (Telephone Conference Call,1/3(V91), dated January 31,1991 (unpublished). On February 19, 1991, the Staff reported that it had been unable to reach settlement and that further negotiations would not appear to be fruitful.' It indicated that it would shortly file a motion for summary disposition. De Licensec filed no report of its own, 11 Motion for Summary Disposition On March 20,1991, the NRC Staff filed its Motion for Summary Disposition.
The motion reiterated the facts described earlier in this opinion, including the consideration of waiver set forth in the affidavit of Mr. Scroggins referenced above. %c motion also set forth the legal standards used to grant such motions
-in particular, the requirements of 10 C.F.R. 5 2.749.
In a timely response dated April 12,1991, the Licensec did not contest any of the facts relied on by the Staff in its motion but merely reiterated its request for a waiver. The Licensec also stated that ownership of the equipment in question had been transferred to a governmental agency, which has applied for an NRC license.
'Sas Nauce or lleanng, dated occcmber 13,1990, publuhed at s5 I ed. Reg s2.113 (Dec.19,1990).
j
'NRC suff Respinse to Mammandum and order, daint January 7.1991, 8 NRC surr Respme in tkensing Ikurd's Mamnandum and order dated January 31.1991, dated Febmary 19, 1971.
270 i
1
f 4
4 1
i j
i i
i j
C, Divuwlon Under 10 C.F.R. 6 2.749, authorizing motions for sutumary disposition, a moving guny -- here, the NRC Staff - is required to annes to its motion a
" separate, short, and concisc statement of the material facta as to which the j
moving party contends diat there is no genuine issue to te heard." Under the i
motion tiefore us, the Staff has listed the following facts as to which it claims 1
there is no genuine issue to be heard:
4 2
}
- 1. On April 15,1987, Rhodes Sayre & Associates,Inc. was inspected by a represen.
j tative d NRC Region Ill pursuant to 10 C.F.R. I 30.52.
- 2. On August 14, 1987, the NRC Office d the Controller sent to Rindes.Sayre &
)
Associates, Inc., invoice 1719A, for papnern within 30 days of an inspection fee of $530.
j 1
- 3. The inspection fee of 1530 assessed by the Office d the Ocmtroller fcr de April 1
15,1987 inspectim d Rimsfes.Sayre & Assodales,Inc.,is the wrred ice for an ir.spectke d licensees such as Rhtales.5 ayre & Associates, Inc., as set can in 10 j
C F.R. I 170.3I(3XP).
4.
Rhides.Sayre & Associates, Inc. has failed and declined to pay Oc assessed fee of 1530 despite repeated written requests its payment thered made by the NRC Office of the Ctwaroller.
j
$. The sole basis for Rhcules.Sayre & Associates,Inc. refusal to pay the assessed fee 1
of $530 is its request for a waiver d such fee on the gmunds that it has utilired its licensed material solely in performing work <m behalf d varims governmental 1
units.
6.
Rhtales Sayre & Asmciates, Inc. is a private ftv. profit corporatim arul is rat organised ca operated as a governmmtal ermity.
I Section 2.749 further provides that an answer to a motion for summary j
disposition include a " separate, short, and concise statement of the material facts as to which it is contended there exists a genuine issue to te heard."
'Ihe Licensec neither filed such a statement nor set forth any facts that would challenge the facts set forth by the Staff.
In that situation, all" material facts set forth in the statement required to bc served by the moving party will be deemed to be admitted." Moreover, we are required to render the decision sought by the movant if the various filings in the proceeding "show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law." 10 C.F.R. 5 2.749(d). In the situation before us, not only must the facts set forth by the Staff be deemed to be admitted but, in addition, tused on the various filings of
)
the lurties, we are satisfied that they are accurate.
in that connection, we have evaluated the Staff's actions in this pnxecding, toth in its issuance of the Order to Show Cause and in its determination of the l
271 l
3 i
f f
- -~-.-....~..-.- - -.. _ _. -. - - _
1 1
1 waiver request, on the lusis of whether they constitute an abuse of discretion.
See Northern Indiana Public Service Co. (llailly Ocrerating Station Nuclear-
)
1), CL1-78-7,7 NRC 429,433 (1978); Consolidated Edison Co. of New York (Indian point, Units 1,2, and 3), CL1-75 8,2 NRC 173,176 (1975). We are 7
i sausfied that there has been no abuse of discretion by the Staff.
j We have also evaluated the Staff's determinadon to impose the most severe of the available sanedons, rather than some lesser sancdon such as suspension 4
nending receipt of payment. Aldiough a wide range of sanctions is available, j
the Staff has indicated (in response to our inquiry dated March 27,1991) that revocation is consistent both with enforcement acuan taken in similar cases
]j and with the Commission's regulations in 10 C.F.R. l' art 2, Appendit C,
! V.C(3)(d).' See also Mleluct F. Dimun, M.D., LilP-87 9,25 NRC 175 (1987).
in those circumstances, the sancdons sought do not appear to represent an abuse d
l of discretion.
Ilased on all of these considerations, we conclude that there is no guuine issue of material fact to be heard and that the Staff is entitled to a decision as a matter of law. We are therefore granting the Staff's modon for summary disposidon and terminadng the proceeding on the basis thereof.
1 3
j D.
Order llased on the foregoing, and the entire record in this proceeding, it is, this l
25th day of April 1991 ORDERED:
1.
The NRC Staff's Motion for Summary Disposition, dated March 20, 1991, is fereby granted.
- 2. The NRC Staff is hereby authorized to invoke the sanctions set forth in 4
j the Order to Show Cause, dated September 19,1990.
j
- 3. 'Ihis proceeding is hereby terminated.
4.
This Order is effective immediately.
5.
Pursuant to 10 C.F.R. I 2.760 of the Commission's Rules of Praedce, this I
Memorandum and Order will constitute the fmal decision of the Commission j
thirty (30) days from the date of its issuance, unless an appeal is taken in accordance with 10 C.F.R. 6 2.762 or the Commission directs otherwise. See also 10 C.F.R. I2.786.
5.
Any party may take an appeal from this Memorandum and Order to the Commission by filing a Notice of Appeal within ten (10) days after service of i
l this Memorandum and Order. See 10 C.F.R. 6 2.785 as amended October 18, 1990 (55 Fed. Reg. 42,944 (Oct. 24,1990)). Each appellant must file a trief l
supporting its position on appeal within thirty (30) days after filing its Notice
'NRC Staff Response m lied Quesuons, dued Apal is.1991.
272 4
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of Appeal (fony (40) days if the Staff is the a[3)clLint). An apgwllant's tirief rnust le confirrd to isstes that tie aggiellant placed in controversy or sought to place in controversy. Within Osirty (30) days after the period has expired for the filing and service of the tvicfs of all appellants (forty (40) days in die case of the Staff), a gurty who is not an appellant ruay file a brief in support of or in olyxisition to the appeal of any other part), llriefs shall conforrn to de length and format specified in 10 C.F.R. 5 2.762.
Tile ATOh11C SAIIITY A14D 1.lCENSING llOARD Charles llechhoefer, Chairman ADh11NIS'IRATIVE JUDGE Dr. Richard F. Cole ADhilNISTR ATIVE JUDGE Dr. Charles N. Kelber ADh11NISTRATIVE JUDGE l
Iledesda, h1aryland April 25,1991 273
Cite as 33 NRC 274 (1991)
LBP 9116 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Adminletrative Judges:
Charles Bechhoefer, Chairman Dr. George C. Anderson Lester S. Rubenstein in the Matter of Docket No. 30-30691 CivP (ASLBP No. 9143643-CivP)
(EA 90-102)
(Materials License No. 35-26953-01)
BARNETT INDUSTRIAL X RAY April 30,1991 The Licensing Board in a civil penalty proceeding approves a settlement agreement and terminates the proceeding.
MEMORANDUM AND ORDER (Approving Settlement Agreement and Terminating Proceeding)
This proceeding involves a proposed civil penally against Barnett Industrial X Ray (Licensec) in the amount of $7,500. In an issuance dated April 5,1991 (unpublished), we noted that we had received telephone advice from the NRC Staff (later confirmed by letter, also dated April 5,1991) that the Staff had reached agreement in principle with the Licensec for the settlement of this proceeding. As a result, we cancelled ;he prehearing conference scheduled for April 9,1991.
On April 16, 1991, the Licensco and Staff submitted a joint motion for l
approval of a settlement agreement. Under the settlement, the Licensee has 5
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agreed to pay, in semiannual payments extending for a perial of 6 years, the full civil penally of 57.500, plus interest at 7.125% on the unpud prirspal balance.
A payment schedule of essentially equal semiannual payments is included.1he j
payment obligation extends for so kmg as the Licensee or its owner holds an NRC materials license, with the owner resgonsiNe for a pro mia Iuyment if i
de 1.icensec terminates its license prior to a semiannual payment date. ~lhe agreement is to tecorne effective upon approval by this lloard.
j in a civil. penalty proceeding of this sort, where a Notice of llearing has i
been issued (see Notice dated March 8,1991,$6 Fed. Reg.11,297, Mar.15, f
1991), we may approve a setdement agreement that is in the public interest, l
after according "due weight" to the interest of the Staff 10 C.F.R. 5 2.203. We j
have reviewed the proposed setdement agreement under those standards and are satisfied that approval of the agreement ard termination of the proceeding tused j
thereon is in de public interest.
i Accordingly, it is, this 30th day of April 1991 ORDERED:
i 1.
The settlement agreement attached hereto and incorporated by reference l
into this Order is approved.
j 2.
Pursuant to 65 81,161(b),161(c),161(i) and 161(o) of the Atomic Energy Act of 1954, as amended. 42 U.S.C. {l2tl1 and 2201(b), (c), (i), and (o), and 10 C.F.R. 6 2.203 of the Commission's regulations, this proceeding is hereby terminated.
3.
Pursuant to 10 C.F.R. 5 2.760, this Order, and the accompanying settle-
]
ment agreement, shall tecome effective immediately and shall tecome de fitud order of the Commission thirty (30) days after issuance, absent further review by the Commission.
Tile ATOh11C SAFETY AND
{
LICENSING BOARD
}
Charles Bechhoefer Chairman j
ADh11NISTRATIVE JUDGrt.
l Dr. George C. Anderson (by C.B.)
' ADh11NISTRATIVE JUDGE i
i Lester S. Rubenstein (by C.B.)
ADh11NISTRATIVE JUDGE Bethesda, hlaryland i
April 30,1991 275 l
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UNITED STATES OF AMERICA j
NUCLEAR REGULATORY COMMISSION l
I BEFORE1..1 ATOMIC SAFETY AND uCENSING BOARD j
ll 5
in the Matter of -
Docket No. 30-30691.CivP (EA 90102) i s
BARNETT INDUSTRI At. X RAY (unteriele ucense No. 35 26953 01) i i
i SETTLEMENT AGREEMENT i
j On December 31.1990, an Order imposing Civil Monetary Penalty in the amount of $7500.00 was issued to Barnett hdustrial X-Ray (Licensec). On i
January 28,1991, the Licensec requested a hearing on the Order imposing the l
civil penalty, and the matter was referred to the Atomic Safety and Licensing j
Itoard. 'the NRC Staff and Mr. Loyd llarnett, individually and as owner and president of the Licensce, hereby agrec as follows:
L in response to the Order imposing Civil Monetary Itnalty -
$7500.00, the Licensec withdraws its request for a hearing dated Jan-uary 28,1991, and agrees to the payment of the civil penalty in the g
amount of $7500.00 plus interest at 7,125 percent per annum over a period of six (6) years. Twelve semi annual payments in the amount of $756.66 will te made, with the first payment to be made May 8 j
1991. Subsequent payrnents will be made by Mr. leyd liarnett at sixt i
month intervals, with the final payment due on November 8,1996.
{
Mr. Loyd Barnett will remain responsible for making semi annual payments during any period that either Barnett ladustrial X-Ray or Mr. Imyd Barnett holds an NRC materials license, if the Licensee I
ter;ninates its NRC materials lleense prior to a semi annual payment date, Mr. Loyd llarnett will be responsible for pro rata payment..
2.
Mr. Loyd Barnett will notify the Director, Division of Accounting and i
Finance, Office of Administration and Resource Management, U.S.
l Nuclear Regulatory Commission. Washington, D.C,20555 immedi-l ately after the termination or surrender of Barnett industrial X Ray's i
NRC materials license.
[
- 3. The payment terms and procedures are set forth in the attached
(
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Promissory Note, which is incorporated by reference into lhls Set.
tiement Agrecsuctit.
i 4.
The NRC Staff and the Licensee jointly move the Atomic Safety and Licensing Iloard for an onlet approving this settlement agreement and i
terminating this proceeding. *lhe agreement shall become effective upon Board a; proval.
IOR TilB U.S. NUCLEAR R)R llARNE*IT INDUSTRI AL 4
REOULATORY COMMISSION, X-RAY, i
i j
Patricia Jehle Loyd Barnett, President Counsel for NRC Staff Darnett Industrial X Ray 4
j Dated at Rockville, Maryland Dated at Stillwater Oklahorna j
this 25th day of April,1991.
this day of April,1991, i
lThe Promissory Note has been omitted from this publication but can be founst in the NRC Public Document Room,2120 L Street, NW, Washington, IX'.]
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Che as 33 NRC 279 (1991)
DD-91 2 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Thomas E. Murley, Director Doc' et No. 50-220 4
in the Matter of l
HlAGARA MOHAWK POWER CORPORATION (Nine Mlle Point Nuclear Station, Unit 1)
April 2,1991 4
'the Director of the Office of Nuclear Reactor Regulation denics a petition filed by Ms. Rosemary S. Pooler of the Atlantic States Legal Ibundation, Inc.,
on behalf of Retire Nine Mile 1. Petitioner requested the Nuclear Regulatory Commission (NRC or Commission) to institute a proceeding to modify, suspend, or revole Niagara Mohawk Ibwer Corporation's (NMPC) license to operate Nine Mile Point Nuclear Station, Unit 1 (NMP 1), until such time as NMPC demonstrated that it had the requisite management capability to operate a nuclear power plant, until such time as the torus was repaired, and until such time as NMPC implemented every outstanding generic letter and bulletin relating to safety. As bases for this request, Ittitioner alleged that (1) the most recent Systematic Assessment of Licensec Performance (SALP) report showed evidence of managerial incompetence at NMP 1: (2) there is continuing evidence of thinning of the torus walls, and therefore the plant should not te allowed to restart before the torus is repaired; and (3) the history of NMPC's management, together with the specific questions relating to restart, call for a different standard at NMP 1 from that applied to other plants with regard to implementation of all y issues raised by generic letters and bulletins.
s-l sal P: PURPOSE
'Ihc Systematic Assessment of Licensec lYrformance (SALP) program is an integrated agency effoil to collect and evaluate available agency insights, data, 279
and other information on a plant / site basis in a structured manner in order to assess r.nd better understand the reasons for a licensec's performance. %c j
program is intended to be sufficiently diagnostic to provide a rational basis for allocating NRC resources and to provide meaningful feedbxk to the licensec's management regardmg the NRC's assessment of the licensec's performance in each of the assessed areas.
SALP: RF.LATION TO ENI'ORCENIENT De NRC Staff may take enforcement action independent of the SALP program. De Staff does not delay taking such action because of an ongoing S ALP process, TECllNICAL ISSUES DISCUSSED: hlANAGE51ENT CON 1PETENCE ne NRC Staff reviewed Nh!PC's Restart Action Plan (RAP), in which Nh!PC identified the underlying root causes of why its management had not been effective in rxognizing and remedying problems and identified corrective action objectives and specific corrective action to address the underlying root causes. %c Staff agreed with NMPC's identification of the underlying root causes in the RAP as the source of NMPC's management problems. Tte Staff identified no other root causes. The Staff concluded that, as of May 1990, Nh1PC had corrected the underlying root causes identified in the RAP, and that NMPC management was competent to operate NMP-1.
RULFS Ol' PRACTICE: SilOW-CAUSE PROCEEDING Where petitioner supplies no new information and available information shows that the licensec satisfies the Commission's regulations, there is no basis for instituting a proceeding pursuant to 10 C.P.R. Q 2.206.
TECilNICAL ISSUES DISCUSSED: TORUS WALL TillCKNESS Data on torus wall thickness at NMP-1 demonstrate that the torus wall thickness is adequate to meet the ASME Code design &lis allowable stresses, in accordance with the Commission's regulations. Accordingly, the torus meets the required acceptance criteria for continued operation, and NMP-1 can be safely operated for one more fuel cycle.
280
GENI:R'C CON 1NIUNICATION: IN1PLEN1ENTATION Where petitioner has not presented a losis for applying a standard to one licensec to irnplement actions requested in generi: communication different from the standard applied to all other licensees, no different standard will be applied, and the licensec's alleged failure to satisfy the different standard, even if true, would not be a basis to institute a proceeding pursuant to 10 C.F.R. I 2.206.
DillECTOll'S DECISION UNDElt 10 C.F.it. f 2.206 INTRODUCTION On July 26,1990, his. RoscTary S. Pooler (Petitioner) of the Atlantic States Legal Foundation, Inc., on bemdf of Retire Nine hiile 1, filed a Petition in accordance with 10 C.F.R. 62.200 with the Nuclear Regulatory Commission (NRC or Commission). He Ittition was referred to the Director, Office of
=
Nuclear Reactor Regulation (NRR), for consideration.
%e Petition asked the NRC to institute a proceeding to modify, suspend, or revoke Niagara hichawk Power Corporation's (Nh1PC's or Licensec's) license to opera'e Nine hiite Point Nuclear Station, Unit 1 (NhtP-1), until such time as Nh1PC demonstrates that it has the requisite management capability to operate a nuclear power plant, until such time as the torus is repaired, and until such time as NhiPC implements every outstanding generic letter and bulletin relating to safety. As bases for this request, the Ittition alleges (1) the most recent Systematic Assessment of Licensee ltrformtnce (SALP) report shows evidence of managerial incompetence at NNIP 1; (2) there is continuing evidence of thinning of the torus walls, and therefore the plant should not be allowed to restart before the torus is repaired; and (3) the history of NhiPC's management, together with the specilit questions relating to restart, call for a different standard at NhiP-1 from that r_ppMd to other plants with regard to implementation of all safety issues r ised by generic letters and bulletins.
a In letters of hiay 14,1990, and July 26,1990, to the Commissioners, further questioris are specifed relating to the bases stated for the Petition.
Gy letter dated August 31,1990, I acknowledged receipt of the Petition and informed the Petitioner that appropriate action would be taken on the Petition within a reasonable t me.
The Petition was placed in the Public Document Room and a copy of the fttition was sent to Nh1PC which provided the NRC wnh comments by letter dated October 25,1990.
I have now completed my evaluation of the Petition. Ihr the reasons given in the disemion below, the Petitioner's request for action is denied.
281
IIACKGROUND J
NhiP 1 was shut down in December 1987 when a manual scram was init ated i
in response to a feedwater transient. He unit initially remained shut down because of v'risive problems in NhiPC's inservice inspection (ISI) program for NhiP4. Nu!P 1 sas operating at the end of a 417-day run when it was shut down. As a result m a h1 arch 1988 inspection, Confirmatory Action Letter (%) e,813 Was issued to formalize the Licensec's commitments to cor~ ct documeritation fe^ciencies in NhiPC's licensed operator requalification progrart To rj tress a broader spectrum of performance deficiencies that were i
idendfied before awl Sutsequent to the December 1987 shutdown, CAL 88-17 we issued on July 24, l'N8, superseding CAL 88-13 and documendng NMPC's conirr.itrat ic'.a remt the unit until corrective actions for these broader issues a
l we a A ghted and utart was authorized by the NRC Regional Administrator foi Regbn !. In addition to the ISI and requalification program concerns, 4
tb broader spectrum of performance defic!cncies included inoperable fire-4 barr> r nenJ.auons that had been repeatedly inspected by the Licensee without uncuing the deficiencies (Inspection Report Nos. 50-220/88-15 and 50-i i
410/88-1a, v.:d June 7,1988) and significant weaknesses in the implementation of emergency operating procedures (Inspection Report Nos. 50-220/88 22 and 50410/88 23, dated July 8,1988).
i NhiP-l was placed on the NRC's list of plants warranting close monitoring in June 1988. This action was the result of NRC senior managers' evaluation of the plant's performance on the above issues as well as findings contained in the then-most-recent Systematic Assessment of Licensec Performance (SALP)
Final Report (Report Nos. 50-220/86-99 and 50410/87-99, dated July 1,1988) regarding Nh1PC's management weaknesses, NhiPC's failure to seek out prob-lems and correct them before they became regulatory concerns, and the limited 4
success of previous Licensec effons to bring about long-term changes in per-formance at NMP-l. This close monitoring has included a major inen:ase in inspection activity and the establishment of a Restart Assessment Punct to eval-uate (1) the adequacy of the Licensec's Restart Action Plan (RAP) and (2) the j
effectiveness of the Licensec's implementation of the RAP.
l CAL 88-17 documented the Licensec's agreement not to restart NMP 1 until the Licensec had taken certain corrective actions, which were to include (1) an assessment of the root causes of why NMPC's line management had not been effective in recognizing and remedying problems; (2) preparation of a i
RAP identifying all actions to be completed before startup and a schedule for completion of all other actions to be completed after startup that were needed to address the root causes identified in the item (1) effort; and (3) a written report identifying (a) NMPC's basis for concluding that NMP-1 was ready for restart, (b) a self assessment of the ' implementation of the RAP, and
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DISCUSSION I
De Itutioner requested the NRC to institute a proceeding to modify, suspend, or revoke NhtPC's license to operate NhtP.1 until such time as NMPC dernonstrates that it possesses de requisite management capability to operate a nuclear power plant, until such time as the torus is repaired, and until such time as NhtPC implements every outstanding generic letter and bulletin relating to l
safety. I also note that by letter dated hiay 14, 1990, from the Petitioner to the Commission, the Petitioner expressed a number of concerns regarding Nh1P-1, he concerns expressed in the May 14, 1990 letter were similar to those again raised in the July 26,1990 letter, %c NRC Staff's detailed comments addressing specific questions and concerns raised in the May 14, 1990 letter were provided in an enclosure to a letter dated June 21,1990, from Chairman Cart to the Ittitioner, %c following discussion addresses the bases asserted by de Ittitioner as supporting its request for action.
{
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There is continuing evidence of a lack of management technical compe-tence and integrity to operate Nine Mile Point Nuclear Station, Unit 1, Specif-ically, can the Commission be sure that the health and safety of the public can be a'sured glwn the most recent SALP report which continues to accument operatorfailure?
De NRC's SALP prognun is an integrated agency effort to collect and evaluate available agency insights, data, and other information on a plant / site basis in a structured manner in order to assess and better understand die reasons for a licensec's performance, De manner in which a licensec mec:s regulatory t
requirements and the degree to which a licensee seeks to improve pufstmance are both measures of a licensec's commitment to nuclear safety and plant j
reliability, The program is supplemental to normal regulatory processes uwt to casure compliance with NRC rules and regulations, Tic program is intended o be sufficiently diagnostic to provide a rational basis for allocating NRC resources and to provide meaningful feedback to the licensec's management regarding the NRC's assessment of the licensee's performance in each of the assessed areas.
It should be noted that the SALP program assesses a licensec's performance during the entire assessment period and, therefore, poor performance in part of the period may adversely affect the licensec's overall rating.
Independcrit of the SALP program, whenever the NRC Staff detects violations of NRC requirements, the NRC Staff takes enforcement action, as appropriate, in accordance with its "Ocneral Statement of Policy and Procedure for NRC 283 j
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J Enforcement Actions," 10 C.F.R. Part 2, Appcodix C. ne Staff does not delay taking such action because of an ongoing SALP p ocess.
De most recently published Final S ALP Report for NMP-1 assessed Licensee performance for the period March 1,1989-February 28,1990. The final report
{
for this assessment period was issued on August 1,1990, as Report Nos. 50-220/89 99 and 50-410/89 99, At the time the SALP was performed, NMP 1 was shut down and NMPC was taking action to respond to the issues set forth 4
in CAL 88-17 Although this SALP report identified several areas of concern a
regarding management issues that were acknowledged by NMPC in its response dated July 2,1990, to the May 7,1990 SALP Board report, the SALP program i
l and the resulting S ALP report were not, and were not intended to be, used by the NRC Staff te evaluate the readiness of NMP.1 for restart. Rather, the specific actions that NMPC was required to implement before restart, and which were identified in CAL 88-17, were evaluated by an NRC Restart Assessment Panel.
Bis evaluation, in turn, served as the basis for the NRC's restart decision.
CAL 88-17 confirmed that ths I kcasce would:
1, determine and docuunt its assessment of the root causes of why NMPC's management had not been effective in recognizing and terredying problems; 2.
prepare a proposed icstart action plan and submit it to the NRC, Regica I Regiornal Administrator, for review and approval; and
- 3. provide a writ 2ct, report regarding the readiness of NMP 1 tur restart.
in response m itms i and 2 of CAL 8817, the Licensee prepared a RAP which was submitted to the NRC by letter dated December 21,1988. Revision I to i
the RAP was submitted by letter dated March 2,1989, and Revision 2 was submitted by letter dated July 11,1989, to accommodate NMPC initiatives and in response to Staff comments during the NRC Staff's review of the RAP, in brief, the RAP described the process used to develop the RAP, identified five underlying root causes (URCs) responsible for management's ineffectiveness in recognizing and remedying problems, identified corrective action objectives and specific corrective actions to address the URCs, and also identified corrective action plans for eighteen specific issues that are listed in Table 1 of the RAP.
De five URCs identified in the RAP were as follows:
1, The management tasks of planning and goal setting have not kept pace l
with the changing needs of the Nuclear Division and with changes within the nuclear industry, 2.
The process for identifying and resolving issues before they become j
[
regulatory concerns was less than adequate in that no integrated or consistent process was used to identify, analyze, correct, and assess problems in a timely way.
3.
Management's technical focus has created an organizational culture 284 i
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that diverts atten ion away from the needs of employees and effective use of employees 4 Standards of perfo,mance have not been defmed or described suin-ciendy for effectise assessmcat, and self assessments have not been consistent or effcetive.
5.
Lack of effective teamwork within the Nuclear Division and with sup-port organizations is evidenced by lack of coordination, cooperation, and communication in carrying out responsibilities.
In September 1988, the NRC Staff convened a Restart Assessment Panel comprised of senior representatives from NRC licadquarters and Region I for the review of NMP 1 restart-related issues, including the RAP. De Restart Assessment Panel evaluated the adequacy of the RAP. In addition, an NRR Special Team Inspection (STI) was conducted from January 31,1989, to March 3,1989, to independendy determine the root causes of NMPC performance denciencies (Inspection Report Nos, 50-220/89 200 and 50-41G'89-200, dated May 10,1989). De STI agreed with NMPC's identification of the five URCs as the source of NMPC's maragement problems, fbrthermore, the STI identified no new root causes, but noted additional examples of previously identified problems. On the basis of the Staff's review of the RAP, which included consideration of comments on the RAP received from the public at a meeting held in Oswego, New York, on August 23, 1989, and the results of the STI, the Restart Assessment Panel concluded that the Licensee had thoroughly researched, evaluated, and documented in the RAP the root causes of its previous inabi:ity to effectively manage the operation of NMP 1, as well as the eighteen specific issues listed in Table 1 of the RAP. De panel also concluded that the RAP identified the essential corrective actions necessary to effect overall performance improvements at NMP-1. Therefore, by letter dated September 29, 1989, the NRC Staff approved the RAP and considered action items 1 and 2 of CAL 88-17 to be complete.
By leuer dated September 8,1989, the Licensee submitted a Restart Readi-ness Report (RRR) in response to the third action required by CAL 88-17. He RRR provided NMPC's evaluation of the effectiveness of the corrective actions contained in the RAP. The RRR concluded that NMP-1 was physically ready to operate and that NMPC had the management and leadership skills necessary to safely operate NMP-1 subject to the completion of certain items clearly identi-ficd in the RRR.
In October 1989, the NRC Staff conducted a 2 wt. Integrated Assessment Team inspection (IATI) to review the Licensee's implementation of the RAP in resolving the five URCs of past management effectiveness issues (Inspection Report 50-22G'89-81, dated November 8,1989). In summary, the IATI team concluded that the RAP was well disseminated within the Licensee's organi-zation and generally understood, flowever, the degree to which the plan had 285 l
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been effectively implemented varied. De team noted clear improvement in per-formance related to the areas of planning and goal sening, organization culture, and teamwork (URCs 1,3, and 5), nc IATI team findings in these areas are summarized as follows:
3 in regard to URC No.1, the IATI team noted that upper management levels had instituted a management-by-objectives (MilO) system and had implernented it to varying degrees down to the first. lire supervision level (non-union repre-l sentation). Below this first line supervision level, the majority of working-level personnel had been given a pamphlet on vision, mission, goals, and standards of performance, which was developed by the Nuclear Division in 1989. Employees understood that its contents represented the objective for performance that they l
should strive to achieve. Working-level personnel were generally achieving this j'
objective. Overall, the team concluded that NMPC had clearly improved its performance in the area of planning and goal setting.
j With regard to URC No. 3, the IATI team found that most individuals i
in NMPC's staff accepted the bases for and actions associated with the plan to improve performance. llowever, one example to the contrary existed in that management was not properly controlling overtime according to technical i
specification guidelines. Notwithstanding this example, the team concluded that NMPC had clearly improved its overall performance in the area of organizational culture.
With respect to URC No. 5, the IATI team noted good overall cooperation among departments, and especially observed how well the operations and training departments worked together. From interviews, the team learned that the plant staff felt fice to seek clarification regarding supervisory decisions.
Overall, the team concluded that NMpC had c!carly improved its performance in the area of teamwork.
l Although it noted some signs of improvement, overall, the IATI team considered performance in the areas of problem solving and standards of performance and self-assessment to be weak (URCs 2 and 4), llowever, the team identified no fundamental flaws during the inspection to indicate that the RAP was inadequate.
ibilowing the IAT1, the Licensee continued with its implementation of the RAP. During the period April 30-May 11,1990, the NRC Staff conducted a Readiness Assessment Team inspection (RATI) (Inspection Report No. 50-220/90-80, dated Juno I,1990). This inspection made performance-based as-sessments of NMpC r;tivities to determine whether sufficient progress had been 4
made in resolving the previously identified URCs of management deficiencies -
to support the restart of the unit. De RATI team assessed the effectiveness of NMPC's performance in five functional areas: (1) plant operations, (2) radio-i logical controls, (3) maintenance and surveillance, (4) engineering and technical support, and (5) safety assessment and qualuy verification. The team also eval-286 I
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uated the material condition of the plant and overall management readiness to support restart and operation of the unit.
The RATI team determined that the Licensee had made adequate gwogress in resolving the two URC areas that the IATI formerly Judged to be weak.
1 Specifically, these URC areas were URC No. 2," Problem Solving," and URC 4
No. 4, " Standards of Performance and Self. Assessment." The RATI team findings in these areas are summarized as follows: With regard to URC No.
2, effective use of engineering support for problem solving was noted by the team. A notable area of improvement had been the integration of the system j
engineering function into daily plant activities, ne use of contract engineering support was noted to be effective. Root cause analyses developed by both i
NMPC and contract engineering personnel were generally good. With regard to URC No. 4, the team noted an overall attitude change in line with the standards of performance that had been developed by NMPC. Positive acceptance of these 4
standards of performance was noted in all the functional areas evaluated by the I
team. Specifically, improvement in the standards of performance was noted in the areas of piocedural adherence, procedure quality, work control package quality, plant housekeeping, attention to industrial and radiation safety practices, communications and teamwork. De readiness assessment team also determined that NMPC had sustained its level of performance in the other three URC areas, namely, " Planning and Goal Setting" (URC No.1), " Organizational Culture" (URC No. 3), and " Teamwork" (URC No. 5). The RATI team also concluded that NMPC had continued to improve its performance in each of the functional 4
areas evaluated in the inspection and particularly in the functional areas that were rated Category 3 (Plant Operations, Maintenance / Surveillance, and Safety Assessment /Quahty Verification) in the most recent SALP period, which ended February 28,1990.
Overall, the RATI team found the material condition of the plant to be acceptable and the plant organization capable of managing activities associated with plant startup and operation. %c RATI team concluded that corrective actions taken by NMPC had effected appropriate changes in the control and performance of plant activities and in the analysis and assessment of plant events to resolve the URCs. The team also concluded from the observation of plant activities performed by NMPC during the inspection that the implementation of these changes had been sufficiently effective to support the restart of the unit. Subject to the completion of then-scheduled testing and startup preparation activities, the RATI team found no impediments to the restart of NMP-1.
Commission status briefings on the readiness for restart of NMP-1 were conducted on August 2,1989, and May 14, 1990.
By leuer dated July 13,1990, in accordance with CAL 88-17, the Licensee requested approval to restart NMP-1. In this letter, the Licensee reviewed its progress in meeting the conditions of CAL 88-17 and its progress in 287 k
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including the completion of the remaining open items it ideaufied in the Licensec concluded that it was ready to resume operation of N,il q.
j receipt of approval from the NRC's Regional Administrator for Regior,..
The NRC Staff reviewed the Licensec's justit< v for resumpuu of operation of NMP-l. By letter dated July 27,19% he NRC Regienal Ad.ninistrator for Region 1 issued Supplement No I to CAL 88-17 authorizii.2 i
the restart of NMP-1. The detailed supporting bases for authorizing restart were included as an attachment to CAL 88-17, Supplement No.1. In summary, I
the Staff concluded that the Licensee had satisfactorily comp!cted the three j
actions described in CAL 88-17. In addition, the Staff's evaluation of the following areas was fotmd acceptable for plant restart: (1) NMFCs roo;-
cause identification and corrective act;on process, (2) NMPC's managcment j
organization and oversight, (3) NMPC's plant and corporate staff readiness for j
restart, and (4) the physical readiness of NMP-1 for restart.
The NRC Staff's approval of the restan of NMP-1 was subject to NMPC's (1) self-assessment of its operations throughout the power ascension program and specific conduct of a detailed assessment at each of the designated plateaus (i.e.,
25,75, and 100% power); (2) discussion of the results of each self-assessment with the NRC Restart Assessment Panel at cach of the designated plateaus and before commencing routine full power operation; and (3) documentation of the reruits of the Licensec's overall self assessment of the power ascension program after its completion and discussion of those results in a management meeting with the NRC Restart Assessment Panel. NMPC complied with the first two of these conditions by performing the self-assessments and discussing the results with the NRC Restart Assessment Panel before moving beyond each of the plateaus. NMPC complied with the third condition by documentiag the results i
of its overall self assessment of the power ascension program in a letter to the NRC, dated December 11,1990, and by discussing those results with the NRC Restart Assessment Panel in a management meeting held at the Licensec's training facility on December 18,1990.
7 The NRC Staff has concluded that NMPC successfully completed the NMP-1 power ascension test program in accordance with its program plan and in accordance with Supplement I to CAL 88-17. Therefore, by letter dated February 11,1991, the NRC Regional Administrator for Region I agreed that NMPC had satisfied the provisions of CAL 88-17, Supplement 1. A summary j
of the Staff's basis for concluding that NMPC had satisfied the commitments specified in Supplement I to CAL 88-17 was included as an attachment to the February 11,1991 letter.
NMPC's performance during the power ascension program and NMPC.
self assessment of the power ascension program were assessed as follows 8.sy the NRC Staff, in the attachment to the February 11, 1991 letter. The Staff 288 i
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found that Nh1PC's overall performance during the power ascension program was satisfactory. Problems encountered by the plant staff w~re appmpriately handled and their self-assessment process and abilities clearly improved during the power ascension program. Ilowever, because performance problems were noted during power ascension with respect to new standards of performance and procedural compliance, particular emphasis was subsequently placed by NhiPC in these areas. As discussed below, NhiPC adequately improved its performance in these areas. Licensed-operator response to events during t'.c power ascension program had been good. NhiP-1 licensed-operator requalification program evaluations had been performed in July 1990 and December 1990. All licensed j
operators successfully passed both the written and operating portions of the examinations. De Staff concluded that the general performance trend in the previous months was one of improvement and the problems identified had been promptly addressul with thorough corrective actions. De Staff found that NMPC's self. assessment of the power ascension program was comprehensive i
and critical. NMPC had performed its self-assessment of the power ascension j
program through an integration of assessments done by four separate groups, j
nese four gmups agreed on a common set of criteria for evaluating the performance of the physical plant and personnel during the power ascension program, with particular focus on the effectiveness of Licensec programs and personnel conformance with established standards of performance. Management was not driven by schedule or capacity factor in ensuring that the standards of
~
performance were being adhered to, ne Staff concluded that NMPC appeared to have become more effective in the implementation of the self. assessment process as the power ascension program progressed and made appropriate modifications to improve the process. The Staff reached the final conclusion that the results of NRC inspections and assessments since the restart of NMP-I had been favorable and that NMPC had demorbtrated sufficient capability to safely operate and to prevent or to detect and correct problems. This conclusion, 1
coupled with NMPC's satisfactory completion of tim commitments specified in Supplement 1 of CAL 8817, supported continuation of routine full power operation and the closing of CAL 88-17, Supplement 1.
I note that the stated objective of the Petitioner's request, to ensure that the Licensee " demonstrates that it h:a the requisite management capability to
[ safely) operate a nuclear power plant," is consistent with the performance that the NRC Staff expected from the Licensee in satisfying the conditions of CAL 88-17, Supplement 1, and as discussed above, this has been satisfactorily demonstrated by the Licensee.
he Petition does not raise any new issues regarding the technical competence d
i and integrity of the Licensce's management to safely operate NMP-1. De j
information contained in the Petition was already known to and considered by the NRC Staff during its evaluation of NMPC's capability to restart and operate 2
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Nh1P-l. Accordingly, with respect to the Licensec's management, I find that the Ittition contains no basis to institute such a proceeding as requested by the 4
Ittitioner, 2.
There is continuing evidence of thinning of the tor ~ wils, and therefore, the plant should not be allowed to restart before the torus is repaired.
=
During power operation, the primary containment for Nh1P 1 is a pressure suppression containment system consisting of a drywell, suppression chamber (torus), and interconnecting vent piping. The torus contains a reserve of water, the primary purpose of which is to serve as a heat sink during loss-of-coolant accidents, ne torus walls are fabricated from carbon stect plates. He inner surfaces of the torus walls are not protected from corrosion. The wall thinning results from corrosion of the inner surfaces of the wall material. NRC regulations (10 C.F.R. 6 50.55a) require that the torus be designed in accordance with 4
l the requirements of the American Society of hiechanical Engineers Boiler and Pressure Vessel (AShiE) Code. The design requirements of the AShtE Code ensure an adequate margin of safety, provided the minimum design requirements (e.g., minimum wall thickness) are maintained, ninning of the torus walls has been evident to the Licensec since the beginning of the Licensec's measurement of wall thickness in 1975 and to the NRC Staff at least since its inspection in March-April 1988 (Inspection Report Nos. 50-22CV88-09 and 50-410/88-08, dated June 10, 1988). ne Licensec has been monitoring the wall thickness. The Licensec's practice is to measure tie thickness every 6 months for trending purposes and for comparison to the minimum allowable values required by the ASME Code. The NRC Staff has reviewed the Licensec's data measurement program and the associated analyses and has concluded, on the basis set forth below, that the Licensec may operate NMP-1 in its current condition for thu remainder of the current fuel cycle, provided surveillance of the torus continues at 6-month intervals (Inspection Repor'. Nos. 50-220/89-28 and 50-410/89-24, dated January 29, 1990),
One of the specific technical issues included in the RAP was the issue of the uns wall thinning. As noted in the RAP, the NRC conducted an inspection in March-April 1988 wherein it performed independent measurements of the torus wall thickness (Inspection Report Nos, 50-220/88-09 and 50410/88-03, dated June 10, 1988). The inspection identified deficiencies in trending of the torus wall thickness data taken by the Licensee up to that time and also identified a concern regarding prowdures for identifying grid patterns for l
thickness measurements. Dese concerns were also discussed in a meeting held in the NRC Region I offices with the Licensee on April 26,1988. During this meeting, the Licensec was requested to provide a justification for a return to j
operation, considering the condition of the torus. %c Licensee responded to these concerns by letter dated May 27,1988. By letter dated January 12,1989, l
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the Licensec revised previous commiunents and indicated that it would perform torus shell thickness measurements every 6 months.
By letter dated Novemter 22,1989, the Licensec submitted a report prepared by MPR Associates, Inc., r.ssessing the sufficiency of the torus wall thickness for the next operating cycle. Given the measurements of torus wall thickness at NMP-1 (available in Table 1 of Enclosure 3 to the Staff's letter to Ittitioner dated April 2,1991) and because the minimum code-allowable torus wall thickness is 0.447 inch, the uncertainty in the wall thickness rncasurement is 10.003 inch, and the maximum corrosion rate is 0.002 inch per year, MPR Associates, Inc., and NMPC concluded that the NMP-1 torus wall thickness satisfies the ASME Code and 10 C.F.R. 6 50.55a for the current fuel cycle of operation. %c NRC Staff issued Inspection Report Nos. 50-220/89-28 and 50-410Ai9 24, dated January 29, 1990, covering its reant inspections on this issue and its review of the Licensec's November 22,1989 submittal. On the basis of its inspections and review, the Staff concluded that NMP-1 could be safely operated for one more fuel cycle, provided that surveillance of the torus continues at intervals of every 6 months as previously committed to by the Licensec in its letter dated November 22,1989, and that the torus wall thickness is not reduced to less than 0.447 inch.
Rc NRC Staff's conclusion that the NMP-1 plant is acceptable for operation in this regard continues to be based on a demonstration of adequate torus wall thickness to meet the ASME Code design-basis allowable stresses. As noted above, the torus has been evaluated by the Licensee and the NRC Staff and found to meet the required acceptance criteria for continued operation. Nrthermore, the Licensee has committed to measure the torus wall thickness every 6 months ael is performing engineering evaluations to determine what repairs, if any, may be required during the next refueling outage. De status of the torus wall thickness is well known to the NRC Staff. De thickness of the torus wall material still meets its acceptance requirements for continued operation. De Petitioner has submitted no new information relating to this concern nor given any reason for imposing on NMP-1 requirements stricter than those set forth in 10 C.F.R. % 50.55a. Derefore, the Ittitioner has not presented the NRC with any new facts on which to reevaluate this concern. Accordingly, I fmd that torus wall thinning does not provide a basis for instituting a proceeding as requested by the Petitioner.
3.
Nine Afile Point Nuclear Station Unit 1, should be held to a diferent standard than other plants and should not be allowed to restart without implementing all applicable NRC generic letters ar'd bulletins relating to safety.
Generic letters and bulletins are written notifications to groups of licensees identifying specilic problems and which may recommend specific actions.
Generic letters and bulletins cach provide tim: for implementation of proposed actions, if any. These gencric letters and bullclins normally are directed to 291
all commercial nuclear power plants, including NhlP-1, as appropriate to the circumstances indicated by the informauon communicated in each generic letter or bulletin.
%c management and technical issues relating to the recent 2 W-year shutdown of NMP-1 have been extensively set forth, documented, and evaluated, as previously indicated. He status of implementation of acuons requested by generic letters and bulletins was not a factor that led to the shutdown. In addition, the adequacy of NMPC's corrective actions for the issues that led to the plant's shutdown does not depend on whether NMPC's actions associated with each of the NRC generic letters and bulletins have been fully implemented.
In the Licensce's development of the five URCs responsible for management ineffectiveness or during the development of corrective actions required to address the eighteen spt:ilic issues listed in Table 1 of the RAP, the Licensee did not find that the lack of effective implementation of generic letters and bulletins was a factor related to these issues. Nor, during its review, did the NRC make any such discoveries. On the ci ?rary, since the generic letters and bulletins were not directly linked to the RAP and its implementation, a requirement to fully implement all generic letters and bulletins before startup would add very little to ensure that the Licensee had sufficiently resolved the root cause of past performance problems to be able to safely operate the plant, ne Petitioner has not presented a basis for a standard for NMP-1 implementing actions requested in generic communications diff; rent from other licensees. As described above, the Petitioner does not set forth any valid rationale for why a different standard in this regard should apply. Accordingly, I fmd that this issue does not form a basis on which to institute a proceeding as requested by the Petitioner.
CONCLUSION Our review of these three concerns contained in the Petition has identified no information that was not at:cady available to the NRC Staff. He bases provided for the first two concerns reiterate previously known information. De third concern constitutes a generalized assertion without a supporting basis.
Considering that the Petition does not offer any new information or new insights into these issues,1 find no basis for instituting a proceeding as requested by the Petitioner.
The institution of proceedings pursuant to 10 C.F.R. Q 2.202 is appropriate only where substantial health and safety issues have been raised (see Consol-idated Edison Co. of New York (Indian Point, Units 1,2, and 3), CLI-75-8,2 NRC 173,175 (1975); Washington Public Power Supply System (WPPSS Nu-clear Project No. 2), DD-84-7,19 NRC 899,924 (19M)). His is the standard 292
that I have applied to the uncerns raised by the Ittitioner in this decision to determine whether enforcement action is warranted, f
Ibr the reasons discussed above, I conclude that the Ittilioner has not raised j
any substantial health and safety issues. Accordingly, the Petitioner's request for j
action pursuant to 10 C.F.R. 6 2.206 is denied as described in this Decision. As provided by 10 C.F.R. 6 2.206(e), a copy of this Decision will le filed with the Secretary of the Commission for the Commission's review, The Decision will i
become the final action of the Commission twenty-five (25) days after issuance unless the Commission on its own motion institutes review of the Decision 4
j within that time.
FOR Tile NUCLEAR REGULATORY COMMISSION I
Thomas E. Murley, Director Office of Nuclear Reactor Regulation Dated at Rockville, Maryland, this 2d day of Apnl 1991, i
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