ML20083L772
| ML20083L772 | |
| Person / Time | |
|---|---|
| Site: | Neely Research Reactor |
| Issue date: | 05/11/1995 |
| From: | Gunnells E, Nordin R Neely Research Reactor, ATLANTA, GA |
| To: | |
| Shared Package | |
| ML20083L767 | List: |
| References | |
| 95-704-01-REN, 95-704-1-REN, REN, NUDOCS 9505180601 | |
| Download: ML20083L772 (21) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD l
In the Matter of ) Docket No. 50-160-Ren l l
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l GEORGIA INSTITUTE OF )
TECHNOLOGY, )
Atlanta, Georgia ) ASLBP No. 95-704-01-Ren ,
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Georgia Tech Research Reactor )
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(Renewal of Facility License )
No. R 97) ) May 11,1995 GEORGIA INSTITUTE OF TECHNOLOGY'S MEMORANDUM IN SUPPORT OFITS APPEAL PROM THE BOARD'S MEMORANDUM AND ORDER DATED APRIL 26.1995 Summary In this licensing renewal proceedmg for the Georgia Tech Research Reactor (GTRR), the Atomic Safety and Licensing Board (ASLB or Board) determined that Georgians Against Nuclear .
Energy (GANE) has standing to intervene and admitted two of GANE's contentions. That decision should be reversed.
GANE attempts to derive its standing from one individual, Robert Johnson. Mr. Johnson was not a member of GANE at the time GANE's original petition was filed. GANE of5cials testified at the hearing that he did not become a member until the time of the filing of the amended petition, and only then for the purpose of correcting GANE's deficient standing.
GANE cannot derive standing from an individual whose membership was so contrived. In
~a ddition, Mr. Johnson has not demonstrated any plausible scenario in which he would be injured 9505180601 950511 PDR ADOCK 05000160 0 PDR
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'e and that would entitle him to intewene in this proca=*ag Mr. Johnson worka one half-mile from s
the GTRR. It is totally impossible, sven in the worst case scenario, that he would be injured.
The GTRR is a nonpower research reactor that operates at very low pressures and temperatures.
The S AR ahows that even in the worst possible scenario, the GTRR does not have the ability to affect public health and safety beyond 100 meters - a substantial distance from Mr. Johnson's place of work.
Even assuming that GANE has standing, neither Contention 5 nor 9 (the two contentions admitted by the Board) are properly brought in this fonan. GANE's Contention 5 -- that the GTRR lacks an adequate security plan for the 1996 Olympic Games - may not be considered in a licensing proceeding because, as the Commission has stated, security measures are to be left to the appropriate law enforcement authorities. GANE's Contention 9 - that the GTRR management poses safety concerns - likewise is not properly brought before this licensing board.
The Commission has approved the current management, and as long as the GTRR continues to operate within the regulations, the Board has no basis upon which to act.
GANE's assertions regarding security and management are both general and unsubstantiated. They fail to satisfy the standard of specificity required for an intervention in a licensing proceeding, an 10 C.F.R. { 2.714(b)(2), and must be rejected as a matter oflaw.
Procedural Historv GANE fded its initial Petition to Intervene on October 26,1994. On'No'vember 23,1994, the Board antered a Memorandum & Order finding that GANE had failed to show that it had standing to intervene. The Board allowed GANE to file an Amended Petition on December 30, -
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- - 1994. Following a telephone conference on January 10,1995, the Board entered a Memorandum
& Order on January 11,1995, permitting GANE once again to attempt to show that it has standing to intervene. In response, GANE filed a supplemental affidavit ofRobert Johnson.
Georgia Tech fded its objection to GANE's Petition on January 25,1995. The Board held a hearing on January 31-February 2,1995.
Following the hearing, the Board issued a Memorandum & Order, requesting that the parties address the relevance, if any, of 10 C.F.R. { 73.60(f) to GANE's Contention 5, which relates to the possibility of a terrorist attack on the GTRR during the 1996 Atlanta Olympic Games. Georgia Tech filed a Response to that Memorandum & Order on March 20,1995.
On April 26,1995, the Board ruled on the standing issues and the contentions in a Prehearing Conference Order. The Board granted GANE's Petition for leave to intervene and request for a hearing, admitted GANE Contentions 5 and 9, and denied the remain *mg GANE contentions. Judge Jerry R. Kline dissented with respect to Contention 5 on the grounds that GANE's " general concern that the reactor might be specially targeted for attack by terrorists during the Olympics lacks both factual and regulatory bases." ASLB Memorandum and Order, April 26,1995 at $2.
Argument I. GANE Has No Standine To Intervene.
The Board erred in determining that GANE has standing to intervene in this licensing 1
renewal proceeding because GANE has not satisfied the requirements for establishing that it has ;
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an interest that may be affected by this pr~ dia: Amyy, the Board's finding of standing abould be reversed. -
No party may be poimitted to intervene in a Commission proWing unless it
- demonstrates that it has standing.- Section 189a(1) of the Atomic Energy Act,42 U.S.C.
6_2239(a), provides that:
In any proceedmg under this Act, for the granting, suspending, revoking, or amending of any license ..., the ,
Commission shall grant a hearing upon the request of au oerson whose interest mav be affected by the oroceedina.
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and shall admit any such person as a party to such Proceeding. ,
f E (emphasis added).
4 The Commission's regulations in 10 C.F.R. 6 2.714(a)(2) provide that a petition to intervene "shall set forth with particularity the interest of the petitioner in the pre =ading, [and]
how that interest may be affected by the results of the proceedmg, including the reasons why petitioner should be permitted to intervene, with particular reference to the factors in (10 C.F.R' 6 2.714(d)(1)]." Pursuant to 10 C.F.R. I 2.714(d)(1), in a ruling on a petition for leave to intervene or a request for a hearing, the presiding officer or Licensing Board is to consider:
(i) The nature of the petitioner's right under the Act to be made a party to the proceeding.
(ii) The nature and extent of the petitioner's property, financial or other interest in the proceeding.
(iii) The possible effect of any order that may be entered in the proceeding on the petitioner's interest.
See alta, 59 Fed. Reg. 49089 (Sept. 26,1994) (Notice of Application for Renewal of License for i
the GTRR, quoting 10 C.F.R. 6 2.714), j
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To establish standing, a petitioner must show that the proposed action will cause "iqiury in fact" to the petitioner's interest and that the injury is arguably within the " zone ofinterest" protected by the statutes governing the proceeding. Egg, Georgia Power Co. (Vogtle Electric
- Generating Plan, Units 1_ and 2), CLI-93-16,38 NRC 25,32 (1993); Public Service Comnany of New Hampahire (Seabrook Station, Unit 1), CLI-91-14,34 NRC 261,266 (1991) (citing '
Metrooolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327,
- 332 (1983)). Further, it is well settled that in order to establiah standing, the petitioner must establish (a) that he personally has suffered or will suffer a " distinct and palpable" harm that constitutes injury in fact; (b) that the injury can fairly be traced to the challenged action; and (c) that the injury is likely to be redressed by a favorable decision in the proceeding Dellumn v.
NRC. 863 F.2d %8, 971 (D.C. Cir.1988); Vogtle. 38 NRC at 32; Babcock and Wilcox (Apollo, PA Fuel Fabrication Facility), LBP-93-4, 37 NRC 72, 81 (1993).
An organization may meet the injury-in-fact test either (1) by showing an effect upon its organizational interests, or (2) by showing that at least one ofits members woGd suffer injury as a result of the challenged action, sufficient to confer upon it " derivative" or " representational" standing. Houston Lighting and Power Co. (South Texas Project Units 1 and 2), ALAB-549,9 )
NRC 644, 646-47 (1979), aEg LBP-79-10, 9 NRC 439,447-48 (1979). Where the organization i relies upon the interests ofits members to confer standing upon it, the organization must show that at least one member who would possess standing in his individual capacity has authorized the organization to represent him. Id; Houston T iohting and Power Co (Allens Creek Nuclear l Generating Station, Unit 1), ALAB-535,9 NRC 377,393-94,3% (1979); Babcock and Wilcox CA (Pennsylvania Nuclear Services Operations, Parks Township, PA), LBP-94-4, 39 NRC 47, 50 1
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(1994). The alleged injury-in-fact to the member must fall within the purposes of the organization. Curators of the University ofMissouri (TRUMP-S Project), LBP-90-18,31 NRC 559,565 (1990).
GANE asserts its standing solely through Robert P. Johnson, one ofits alleged ==d-srs.
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The affidavits and testimony of Mr. Johnson, however, fall to show that he has standing in this i
proceeding for two reasons: first, GANE has not established that he was a member at the time the original petition was filed; second, GANE has not established that Mr. Johmon has a personal stake in the outcome of the licensing renewal proceeding sufficient to satisfy the injury-in-fact 1
requirement.
Mr. Johnson 's Membershio Was Untimelv. A group seeking to intervene on a representative basis must demonstrate that, at the time its netition is filed. it is authorized to act for a person or persons who demonstrate the requisite standing. Washirtaton Power Supniv System (WPPSS Nuclear Project No. 2), LBP-79-7, 9 NRC 330 (March 6,1979). If the organization only afterwards acquires those members, its petition must be treated as though filed ' f when those members joined. E This is because the organization lacks standing until that later time.1 In this case, it is undisputed that GANE's original petition, filed in October 1994, failed to satisfy the standing requirement. GANE amended its petition on December 30,1994 and with it submitted the affidavit of Mr. Johnson, stating that he authorized GANE to represent his l interests. On January 17,1995, Mr. Johnson submitted a supplemental affidavit stating that be is a member in good standing of OANE and attached his membership card dated December 21, 1994. GANE has offered no evidence that Mr. Johnson was a member before that date. In fact, l
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during the first day of the prehearing conference, Glenn Carroll (representing GANE) explained
, that Mr. Johnson did not become a member until the time GANE was preparing the amended
. petition. She stated that Mr. Johnson did not sign the membership form until"we were getting an affidavit signed and doing all that for our amended petition." Tr. at 28. She than stated: "In fact, I'll interject that Rob [ Johnson] really pushed it. We said, 'Nah, we don't think vou have to really be a member.'" E (emphasis added).8 The direct implication of this remark is that Mr. Johnson was not a member before that time, and it puts to rest the argument raised by GANE that Mr.
Johnson's alleged involvement with GANE long before he signed the membership form" classifies him as a full-f!cdged member. Tr. p. 6.
The Board disregarded Mr. Johnson's untimely membership and the fundamental standing requirement stated in WPPSS. In doing so, the Board relied on Houston Lightine and Power Co_
(South Texas Project, Units 1 and 2 ALAB-549,9 NRC 644,649 (1979). That relianceis misplaced because the ALAB in South Texas Proiect did not disagree with WPPSS Rather,it "assum[ed] the correctness of the rule in WPPSS" in order to reach the real issue in that case -
whether the Board below had abused its discretion in allowing intervention despite the untimeliness of the petition. The rule in WPPSS is fully applicable in this case and bars GANE's petition to intervene.
The Board's decision to permit GANE to derive standing based on Mr. Johnsor/s dubious and after-the-fact membership elevates form over substance. The real purpose of the standing The transcript attributes these statements to Carol Stangler. That error in the record was corrected later in the hearing requirement - to permit a potentially injured party a voice in a particular proceeding - is not j served when these tactics are tolerated.
Mr. Johnson Has Not DemonstrMedHealth or Safety Interests Relemmt to thisIJcensing Proceeding. The only interest Johnson asserts in this proceeding is his health and safety. His regular place of work is 800 meters from the GTRR; his home is much longer distance; and he makes no allegation that the regularly comes closer to the GTRR. Its Johnson Affidavit, December 30,1994.
The SARincludes a detailed analysis of the worst plausible scenario involving the GTRR. I l
Taking into account that the GTRR is moderated by heavy water, operates at low temperature l
I and pressure, and contains a very small nuclear inventory, the SAR concludes that in the worst J
l case all health and safety effects would be confined to a 100 meter radius from the GTRR.
l Neither of GANE's admitted contentions challenge in any way the analysis in the SAR. Thus, l l
Johnson has no interest in this proceeding that would give him standmg.
The Board found that Mr. Johnson had standing because "it appears that Argon-41 would l
be released through the reactor stack during routine operations ... and, even though permitted under applicable reFulations, could extend to at least one-half mile from the site." ASLB Memorandum and Order, April 26,1995, at 6-7. "In addition," the Board noted, "other noble gases could be dispersed under accident scenarios." J.d at 7. Dr. Karam verified, at page 260, that a "small amount of Argon-41 is produced and indeed put out through the stack to the environment." He also verified that there are "no other radioactive substances comina out." Ist i 1
(emphasis added). Earlier in the hearing, Dr. Karam had hypothesized that under an incredible accident scenario, some noble gases may be released. Tr. at 22-23. He clarified that such an
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~ accident is "not credible scenario" because the "three independent redundant systems for safety" would each have to fail in order for this to occur. Id. at 23-24; agg id. at 24 (explaining that two independent safety systems are enough).
A release of Argon-41 during normal operations, however, is well within the Commis: ion's regulations. Indeed, the Board acknowledged that these allegations are insuscient ,
to form a valid contention. Nevertheless, the Board concluded that these allegations are enough for standing purposes. San ASLB Memorandum and Order, April 26,1995, at 7 ("Those effects (of the release of Argon-41 and other noble gues) are enough for standing, even though they might be insumcient to found a vaEd contention."). This reasoning is both illogical and unsupported by the case law cited by the Board.
It is illogical because it would allow any person to intervene based solely on contentions regarding pennissible production ofgases. This is clearly not the intention of the regulations. Esa 10 C.F.R. { 2.714(b)(1) (providing that a petitioner who fails to advance at least one admissible contention will not be permitted to participate as a pany). Even if GANE and its members were permitted to intervene, nothing in this licensing application procedure would allow them to address their alleged harm, for the minuscule release that occurs is permitted by the regulations. i The Board cites Kellv v. Selin. 42 F.3d 1501 (6th Cir.1995), and Consumer Power C_o.
(Palisades Nuclear Plant), LBP-79-20,10 NRC 108,115 (1979), as support for the proposition 1
that a petitioner can satisfy the standing requirements based on allegations that are insuscient to !
form a basis for a valid contention. Neither case stands for such a rule. In fact, both cases 1
indicate that standing can only be found upon allegations that are suscient to form the basis for a l valid contention.
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_. In Kelly, the plaintiffs had petitioned the NRC based on the Commission's alleged failure to comply with the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 g agg. and 10 C.F.R. { 72.214, when it enacted new rules allowing a reactor on Lake Michigan to store its spent fisel in a nearby cask. The court found that the plaintiffs had standing because each asserted harm to their aesthetic interests, physical health, and the value of their property on Lake Michigan, hand ups.n ths alleged vial =' inn of federal law. Kelly, 42 F. 3d at 1509 (Each petitioner " asserts that the value of his or her property will be diminished by the storage of nuclear warte in the'VSC
- 24 casks at Palisades").
In Pali <ades. the Commission recognized that although there is p. presumption of standing where an organization raises safety issues on behalf ofits members who are in close proximity to a facility, a petitioner must also " set forth concerns with respect to heahh-and-safety and l
environmental aspects of the proposal under review." Id. In other words, the presumption is l
applied as long as it is based upon the circumstances of the case as they relate to the specific interests that will allegedly be affected. Nothing in Es))y or Pahsades can be read to permit l standing bued solely on an alleged injury that does not even form the basis of a valid contention.
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In fact, the NRC has stated that in order to establish standing, "there must be some causal
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relationship between the proposed [ licensing activity] and the injury alleged." Northern States Power Co (Pathfinder Atomic Plant) LBP-90-3,31 NRC 40,43 (1990). In this case, GANE has demonstrated no causal relationship between the alleged injury to Mr. Johnson and the renewal of the GTRRlicense The only other possible basis for GANE's standing recognized by the Board was the interest of GANE's director, Glenn Carroll. As an officer, Ms. Carroll must show that she has a I
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N personal stake in the outcome of the licensing piccmdirg. $sg Duke Power Co. (Ocaree-McGuire), ALAB - 528,9 NRC 146,151 (1979). Ms. Carroll states that she " drive [s] by the reactor a couple of times a day." Tr. at 35. Ms. Carroll has not demonstrated that she is within the " zone of danger" for the GTRR, and just as Mr. Johnson's allegations fail to demonstrate that he has standing, so do those ofMs. Carroll.
IL GAME Is Barred From Raisine a Contention Renardine the Secuiity of the GTRR durine the 1996 Olvmnics.
A. Security Durina the Olvmnles Is Not Remdated by the NRC.
t In Contention 5, GANE asserts that because ofspecial circumstances - the 1996 Summer i Olympics - the security plan for the GTRR should be enhanced for a designated period of time, i As the Board correctly recognized, GANE is not asserting that the security plan currently does not comply with the regulations. This is not surprising because the NRC staff has approved the security plan for the GTRR. Accordingly, the only regulation under which GANS could bring ;
this contention is 10 C.F.R. 6 73.60(f), which provides that the Commission may require
" alternate or additional measures deemed necessary to protect against radiological sabotage" at certain nonpower reactors. The regulation was adopted only two years ago; it has produced no case law, and it garnered no comment when it was proposed. Clarification ofPhysical Protection Requirements at Fixed Sites, 58 Fed. Reg. 13,699 (1993).
Nevertheless, the Commission has squarely held that it is not the proper authority to regulate security of the GTRR during the Olympics. In rejecting a comment specifically directed at this issue and recommending that the GTRR be shut down "in light of the upcoming 1996 Olympics," the Commission stated:
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(TW NRChuhreat assessment activities are performed on a cc:.dnuia; bria, in close liaison with the intelligence communhy. Should the level ofdomestic threat change at sayist approj riate action will be taken by the NRC.
- Spcutcally, the Atlanta Field Office of the FBI has
. establianed liaison with all Federal agencies in Georgia,
. including the NRC, relative to the Olympics. The FBI is the lead law enforcement agency in charge of the Olympics, and, to date, has not indicated that there is any -
threat to NRC-licensed filities or materials relative to the Olympics.
Protection Against Malevolent Use of Vehicles at Nuclear Power Plants, 59 Fed. Reg. 38,889, 38,896 (Aug.1,1994).
In its April 26 Memorandum, the Board quoted this passage and stated simply that the Commission disagreed with one of the comments submitted in response to a proposed amendment to 10 C.F.R. { 73. The Commission's position, however, demonstrates more than simple disagreement. It underscores the Commission's decision that the security of the GTRR during the 1996 Summer Olympics is not its responsibility. Rather, it is to be left to the appropriate law enforcement officials. Those of!icials have organized an Olympic Security Support Group (OSSG) consisting of 34 federal, state and local enforcement agencies for the purpose of )
l assessing all Olympic-related threats. Congress recently allotted over $14 million for the Armed ;
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Forces to help provide additional security for the Olympics. H.R. Conf. Rep. No. 747,103d Cong.,2d Sess. 5 (1994). Terrorist threat assessment and response on the Georgia Tech campus clearly fall within thejurisdic' tion of the OSSG and the Armed Forces.
B. Terrorism Is Not an Adminible Contention in Any Lict 3 'roceeding.
10 C.F.R. { 50.13 clarifies that terrorism is not an admissible contention in a licensing proceeding, no matter how unique or special the circumstance The Commission has stated, both 1
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I through rulemaking and a4udication, that a licensing board may not require that an applicant -
consider the possibility of terrorism in its security plan. 10 C.F.R. { 50.13 provides in part that an applicant:
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- is not required to provide for design features or other ~ .
measures for the specific purpose of protection against the effects of(a) attacks and destructive acts, including '
sabotage, directed against the facility by an enemy of the .
United States, whether a foreign government or other .
- person. . . ."
GANE's contention that the GTRR could be a terrorist target is not an admissible contention in this case. Georgia Tech, under the plain terms of f 50.13, is natobligated to prevent terrorism in Atlanta. That is the responsibility of the federal, state, and local law enforcement authorities -
each of which is already planning the security of the Olympic Games in general and especially the i
GTRR.
As a Board e' s 4 in Commanweahh Edison Co. (Braidwood Nuclear Power Station, j Units 1 & 2), LBP-85-27,22 NRC 126,133 (1985):
Section 50.13 was adopted by the . . . AEC in 1967 because there was an obvious, practical need to exempt applicants from being forced to protect against certain types of military or paramilitary attacks which the
- Commission recognized were beyond the sphere of an applicant's responsibility. . . When the Commission i developed the policy of excluding hostile attacks from l litigation, it did so based on its determination that the l
country's national security is intended to be left entirely to l the nation's defense establishment and security agencies.: -
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Section 50.13 speci6cally applies to license applicants for " production or utihzation" facilities, but its logic and its policy rational suggest that it applies a '
fortiori to applicants for small research reactors. It would be strange indeed if ,
the Commission intended to exempt large reactor operators from planning for terrorist attacks while intending to require research reactor operators to provide
, In Sicael v. AEC. 400 F.2d 778 (D.C. Cir.1968), the Court of Appeals affirmed a Conunission decision bued on this reasoning. Egg Florida Power & Limht Co. (Turkey Point Nuclear Generating Units 3 & 4),4 AEC 9 (1967). At the time the Commission issued its Florida Power decision, { 50.13 was only a proposed rule. San 32 Fed. Reg. 2821 (Feb.11,1967). TheEingal Court summarized the bases on whic51 the Commission made its decision as:
(1) the impracticability, particularly in the case of civilian industry, of anticipating accurately the nature of enemy attack and of designing defenses against it, (2) the settled tradition oflooking to the military to deal with this problem and the consequent sharing of its burdens by all citizens, and (3) the unavailability, through security classification and otherwise, of relevant information and the undesirability of ventilating what is available in public proceedings.
400 F.2d at 782. The Court went on to uphold the essence of( 50.13: "[ Congress] did not expect [an applicant] to demonstrate how his plant would be invulnerable to whatever destructive forces a foreign enemy might be able to direct against it in 1984." 11 at 784. Sat alm Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 & 2), LBP-79-6, 9 NRC 291 (1979) (applicants need not provide any measures for the specific purposes of protection against the effects of military attacks directed against a facility); Lone Idmad Lightina ,
CA (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 851 (1973) (finding that Sings [
upheld section 50.13, which " obviates the necessity of consideration [of sabotage) in a licensing proceeding").
s their own protection.
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- As the Executive Director for Operations found in Ohio Citizens for Ranonsible Enernv.
DPRM-84-1,19 NRC 1599,1604 (1984), 'he t Singal decision "is no less valid today than it was (in 1968]." Boards considering this question uniformly have determined that protection from enemy or terrorist attack is not a valid issue under { 50.13. Sea, g,g,, Cleveland Electric Illuminatina Co. (Perry Nuclear Power Plant, Units 1 & 2), LDP-81-42,14 NRC 842, 843 (1981); Boston Edison Co. (Pilgrim Nuclear Power Station, Unit 2), LBP-81-3,13 NRC 103' (1981); Potomac Electric Power Co. (Douglas Point Station, Unita 1 & 2), ALAB-218,2 AEC 79 (1974).
C. GANE's Assertions Are Generic and Unsubstantiated.
GANE's assertions in Contention 5 fail to satisfy the standards set forth in 10 C.F.R.
{ 2.714(b)(2), requiring a " specific statement of the issue oflaw or fact to be raised or controverted." Not only has GANE failed to provide a regulatory basis for its contention, but also GANE has failed to provide a factual basis for its generic opinion that the GTRR might be a
" tempting target" for terrorists during the 1996 Games, and the Board cannot infer one sa aggnig Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1,2, and 3),
CLI-91-12,34 NRC 149,155-56 (1991). As Judge Kline stated, GANE's " general concern that the reactor might be specially targeted for attack by terrorists during the Olympics lacks both factual and regulatory bases." ASLB Memorandum and Order, April 26,1995, at 52 (Kline, J.,
dissenting). With respect to factual basis for Contention 5, Judge Kline found that " Petitioners provided nothing saggesting they have undertaken any effort beyond formulating their personal i
opinion." id. at 56-57. Similarly, Judge Kline found that GANE has failed to suert any 1 regulation upon which to base its contention. Id. at 54. GANE's pleading therefore falls short of providing acceptable bases for Contention 5 as required by 10 C.F.R. 6 2.714(b)(2). Accordingly, Contention 5 must be denied as a matter oflaw.
IH. GANE Has FaHed to Demonstrate That The Current Manarement at the GTRR Raises Public Safety Concerps.
GANE's ninth contention is that safety isjeopardized by current management. This assertion has no merit.
The NRC Staff has determined that Dr. R. A. Karam, who has been the director of the GTRR since 1984, meets allNRC regulations and that his leadership poses no threat to the safety of the GTRR. Safety concerns at the GTRR are the responsibility of twelve inde' pendent safety experts who compose the Nuclear Safeguards Committee (NSC) and who review and approve all safety measures. The NSC is concerned with maintaining the public health and safety through compliance with NRC requirements. San GTRR License, Appendix A, 6 6.2 (providing that the NSC "shall be responsible for maintaining health and safety standards associated with operation of the reactor and its anociated facilities") (emphasis added).
That "GANE has never previously had an opportunity to contest in an adjudicative proceeding the acceptance by the Staff of the current Director," ASLB Memorandum and Order, ;
l April 26,1995 at 27,is irrelevant. As long as the NRC has approved Dr. Karam and the safety l committee, and as long u the GTRR is operating within the con 6nes ofits license, the licensmg 1
1 Board has no basis upon which to act. San 54 Fed. Reg. 33168, 33171 (Aug.11,1989) ("[T]he '
sole focus of the hearing is on whether the application satis 6es the NRC regulatory requirements.").
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The Board ostensibly permitted GANE to proceed on % contention because it did not have access to information " sufficient to buttress this contention in greater detail " ASLB
. Memorandum and Order, April 26,1995 at 27. Just as GANE's prior opportunity to litigate %
. matter is irrelevant, so is whether GANE had access to information sufficient to form the basis for this contention because GANE simply cannot litigate this matter here. Nevertheless,it is worth noting that the Board's reasoning on this po*mt is unfounded. ,.
l The Board supports this position with language from the federal register stating that the
" license application should include sufficient information to form a basis for contentions." 11 at 28 (quoting 54 Fed. Reg. 33168,33170-71 (Aug. I1,1989)). The Commission's comment in no way requires a licensee, applying for a renewal ofits license, to tailor i+s application to the needs 3
i' of potential intervenors, nor to do the leg-work for them. In this case, GANE apparently did not
- make an adequate request for information from the local NRC office. The Board recognized the deficiency on the part of GANE, stating, "[w] hat GANE should have sought were Inspection Reports for the period in question (1988-94)." ASLB Memorandum and Order, April 26,1995 at
- 28. GANE cannot now be permitted to assert this contention solely because it did not adequately research information that was fully available to it.
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'The Commission's statement quoted by the Board must be put in context. The Commission'was responding to a comment that under the specificity requirements of 10 C.F.R. i 2.714, a petitioner not be required to set forth facts in support ofits contentions until the petitioner has access to NRC documents. The Commission responded that the focus of the hearing is whether the application satisfies the NRC regulatory requirements and "[ flor e reason, and because the license application should include sufficient information to form a basis for contentions, we reject commentatsrs' suggestions that intervenors not be required ts set forth
. pertinent facts until the staff has published its FES and SER." 54 Fed. Reg. 33171.
Other comments of the Commission in that same publication must be noted. The Commission clarified that discovery may not be used as a " fishing expedition" and a petitioner must set forth a mucIial issue in its contentions. In the same Federal Register notice quoted by the Board, the Commission stated:
[T]he rule (10 C.F.R. 5 2.714) will require that before a contention is admitted the intervenor have some factual basis for its position and that there exists a genuine dispute between it and the applicant.
It is true that this will preclude a contention from being admitted where an intervenor has not facts to support is Dosition and where the intervenor contemolates using discovery or cross examination as a fishina exoedition which might oroduce relevant suonorting facts. The Commission does not believe this is an appropriate use of discovery or cross-examination. . . . [I)t is a reasonable requirement that an intervenor be able to identify some facts at the time it proposes a contention to indicate that a dispute exists between it and the applicant on a material issue.
11 (emphasis added).
GANE makes one final assertion that must be put to rest. GANE asserts that a safety officer who reported an incident involving cadmium-115 to the NRC in 1987 was harassed and demoted because of his report. GANE is precluded from litigating that issue. That employee fully litigated the circumstances surrounding the 1987 incident in the United States District Court for the Northern District of Georgia, which ruled in favor of Georgia Tech on all issues.
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Conclusion This Appeal Board should deny GANE's petition to intervene for lack of standing, or alternatively deny both Contentions 5 and 9.
Respectfully ted,
/ .
j Rgy MHordin ChiefLegal Advisor GeorgiaInstitute ofTechnology
$a $ nosy E. Gail Gunnells Deputy ChiefLegal Advisor GeorgiaInstitute ofTechnology Dated at Atlanta, Georgia this 1Ith day of May,1995 TOTAL P.015
d 00CKETED UNITED STATES OF AMERICA USHRC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD OFFICE OF SECRETARY ,
'In the Matter of ) Docket No. 50-160-Ren
) DOCKETlHG BRANCH &
GEORGIAINSTITUTE OF )
TECHNOLOGY, f
) ,
Atlanta, Georgia ) ASLBP No. 95-704-01 Ren !
) !
Georgia Tech Research Reactor )
) l (Renewal of F.cility License )
No. R-97) ) May 11,1995 CERTIFICATE OF SERVICE i
I hereby certify that copies of the foregoing Notice of Appeal and Memorandum in Support Thereof have been served upon the following persons by U.S. mail, first class, except as
- otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.
Office of Commission Sherwin E. Turk, Esq.
Appellate Adjudication Susan S. Chidakel, Esq. . ;
U.S. Nuclear Regulatory Commission Of!1ce ofthe General Counsel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555
- _ Administrative Judge Jerry R. Khne Atomic Safety and Licensing Board Glenn Carroll U.S. Nuclear Regulatory Commission Georgians Against Nuclear Energy Washington, D.C.' 20555 P.O. Box 3574 -
Atlanta, Georgia 30306 Administrative Judge Administrative Judge Ps:er S. Lam Charles Bechhoefer, Chairman Atomic Safety and Licensing Board ,
. Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commisalon U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 4
e w --- -r -.,y.y-, -- .- ,e re
a Dated at Atlanta, GA this .
lith day ofMay,1995 Res y mitted, Mn. Nordin VChiefLegal Advisor f
GeorgiaInstitute ofTechnology -
SYYY&b E. Gail Gunnelis j Deputy ChiefLegal Advisor l Georgia Institute ofTechnology
+
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