ML20085A115
| ML20085A115 | |
| Person / Time | |
|---|---|
| Issue date: | 05/31/1995 |
| From: | NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | |
| References | |
| NUREG-0750, NUREG-0750-V41-N03, NUREG-750, NUREG-750-V41-N3, NUDOCS 9506140062 | |
| Download: ML20085A115 (72) | |
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Available from Superintendent of Documents
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U.S. Government Printing Office P.O. Box 37082 Washington, DC 20402-9328
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A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication.
Single copies of this publicstion are available from National Technical information Service Springfield, VA 22161 i
1 Errors in this publication may be reported to the Division of Freedom of information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301/415-6844)
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Vol. 41, No. 3 Pages 179-243 l
NUCLEAR REGULATORY COMMISSION ISSUANCES March 1995 l
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This report includes the issuances received during the specified period l
from the Commission (CU), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judges (ALJ), the Directors' Decisions (DD), and the Decisions on Petitions for Rulemaking (DPRM).
)
The summaries and headnotes preceding the opinions reported herein are not to bo deemed a part of those opinions or have any independent legal significance.
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U.S. NUCLEAR REGULATORY COMMISSION'
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Prepared by the Division of Freedom of Information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (301/415-6844)
COMMISSIONERS tvan Selin, Chairman Kenneth C. Rogers E. Gail de Planque B. Paul Cotter, Jr., Chief Administrative Judge, Atomic Safety and Licensing Board Panel a
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-sa CONTENTS
' lasuance of the Nuclear Regulatory Commission.
j l SEQUOYAH FUELS CORPORATION i
Docket 40-08027-MLA (Source Material License No. SUB-1010) i
\\
MEMORANDUM AND ORDER, CLI-95 2, March 9,1995........ ' 179
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u Issuances of the Atomic Safety and Licensing Boards ADVANCED MEDICAL SYSTEMS, INC.
(Cleveland, Ohio)
Docket 30-16055-ML-Ren (ASLBP No. 95-707-02-ML-Ren)
(Source Material License No. 34-19089-01)
MEMORANDUM AND ORDER, LBP-95-3, March 13,1995....... 195 KENNETH G. PIERCE j
(Shorewood, Illinois) i Docket 55-30662-EA, IA-94-007 (ASLDP No. 94-694-05-EA) i (Re: Prohibition of Participation in Licensed Activities) 1 INITIAL DECISION, LBP-95-4, March 27,1995.
203
-l Issuance of Director's Decision NATIONAL INSTITUTES OF HEALTH f
Docket 030-01786 (License No. 19-00296-10)
DIRECTOR'S DECISION UNDER 10 C.F.R. 6 2.206, DD-95-5, March 5,1995........
227 Issuance of Decision on Petition for Rulemaking i
i U.S. DEPARTMENT OF ENERGY Docket PRM-60-3 PARTIAL GRANT AND PARTIAL DENIAL OF PETITION FOR RULEMAKING, DPRM 95-1, March 15,1995 241 I
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Commission Issuances Z
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- i Cite as 41 NRC 179 (1995)'
CLI-95-2 UNITED STATES OF AMERICA i
NUCLEAR REGULATORY COMMISSION i
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' COMMISSIONERS:
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Ivan Selin, Chairman Kenneth C. Rogers i
E. Gail de Planque l
In'the Matter of Docket No; 4NH1027-MLA i
(Source Material License)
No. S081010)
- SEQUOYAH FUELS CORPORATION March 9,1995 j
The Commission considers the appeal of a licensing board decision, LBP 1 25,38 NRC 3N (1993), which permitted the Sequoyah Fuels Corporation (SFC) to withdraw its license renewal application, and terminated the administrative proceeding in progress on that application. The Commission concludes that SFC did not require a license renewal to continue limited and previously authorized decommissioning-oriented activities. Accordingly, the Commission denies the I
appeal and affirms the licensing board's order.
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i RULES OF PRACTICE: RENEWAL OF LICENSES.
The Presiding Officer's function in a license renewal proceeding is to decide whether renewal is appropriate and, if so. to determine what activities can i
continue in the renewal term.
REGULATIONS: INTERPRETATION (10 C.F.R. t 40.42(e))
Pursuant to the former 10 C.F.R. I 40.42(e) (1994), a source material license may remain automatically in effect beyond its expiration date to allow a licensee l
to continue decommissioning and security activities authorized under the license.
Section 40.42(c) has been superseded by a new automatic license extension provision,10 C.F.R.140.42(c), which became effective in August 1994.
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REGULATIONS: INTERPRETATION (10 C.F.R. i 40.42(e)).
The automatic license extension provision under 10 C.F.R. 5 40.42(c) may
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- extend a license regardless of the nature of the source material remaining on i
site..
REGULATIONS: INTERPRETATION (10 C.F.R. I40.42(e))
The "necessary" provision (which appears in both the former section 40.42(e) and the new section 40.42(c)) simply means that the limited regulatory license extension comes into play only when decommissioning cannot be completed prior to the license's expiration date.
I REGULATIONS: INTERPRETATION (10 C.F.R. 5 40.42(e))
I The automatic license extension provision grants the licensee no sweeping powers, but permits only limited activities related to decommissioning and to control of entry to restricted areas. Such activities also must have been approved under the licensee's license. To implement an activity not previously authorized by license and thus not previously subject to challenge, the licensee must first obtain a license amendment.
REGULATIONS: DECO >tN11SSIONING Licensees need only submit the final radiological survey showing that the site or area is suitable for release in accordance with NRC regulations after i
decommissioning has been completed.
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RULES OF PRACTICE: CONDITIONS To make a serious case for conditions. intervenors reasonably can be held to an obligation to offer some indication of their objective. The proponent of litigation bears the burden of explaining which direction the litigation will take.
MEMORANDUM AND ORDER 1.
INTRODUCTION Pursuant to 10 C.F.R. 9 2.786(b). the Native Americans for a Clean Envi-1 ronment and the Cherokee Nation (the Intervenors) filed a petition for review 180 I
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q of the Presiding Officer's Memorandum and Order, LBP-93-25,38 NRC 304 (1993), which (1) allowed the Sequoyah Fuels Corporation (SFC) to withdraw its application to renew its facility license and (2) terminated the administrative proceeding then in progress on that application. The Commission granted review in CLI-94-4,39 NRC 187 (1994). SFC and the Nuclear Regulatory Commission Staff (Staff) support the Presiding Officer's decision. The Commission affirms LBP-93-25.
II. BACKGROUND SFC's nuclear fuel processing facility, located 2.5 miles southeast of Gore, Oklahoma, was originally licensed in 1970. The initial license authorized the conversion of uranium oxide (U 0,) into uranium hexafluoride UF,. A license 3
amendment in 1987 authorized SFC also to reduce depleted UF, to uranium j
tetrafluoride (UF,). The most recent license renewal, for an additional 5 years, occurred in 1985, after which the license was due to expire in September of
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1990. On August 29,1990, SFC applied for a 10-year license renewal. Under
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NRC rules, the license remained in effect pending an agency determination on I
the renewal application. See 10 C.F.R. 6 40.43(b) (1994).
j The Native Americans for a Clean Environment (NACE), an organization 1
with several members residing within 10 miles of the SFC facility, petitioned the NRC for a hearing on the license renewal application and asked for leave to intervene. A Presiding Officer was designated in October 1990.' He ultimately i
admitted NACE, the State of Oklahoma (Department of Wildlife Conservation).
and the Cherokee Nation as parties to the proceeding. The parties agreed to postpone the hearing until the NRC Staff completed safety and environmental reviews.
In a letter dated February 16, 1993, SFC notified the NRC of its intent to terminate all production activities authorized under its license, and requested termination of the license.2 Along with the letter, SFC submitted a Preliminary Plan for the Completion of Decommissioning (PPCD). SFC indicated that all production operations involving UF, had ceased, and that production operations involving DUF, would cease by July 31,1993.
By early July 1993, SFC advised the NRC that production activities at its facility had stopped altogether, and that continuing activities would be limited to decommissioning the site and to controlling entry into restricted areas 3 Having I See M i ed Reg 46,744 (Nov. 6.1990) 2,, g,tter from Janrs 1 steppard. President. sic. to Robert Bernero. NRC 0 ch 16.199h 3
3 5cc txtrer from John H Ilbs, Preudent. si C. to Rotert Bernero, NRC Ouly 7,199n Ongomg acnvines related to decomnusuonmg pwfude ite decontanunanon of structures, components. and sne areas. the offute shipnent r Comtmurd) 181 l
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-i provided that notification, SFC on July 12,1993, moved to withdraw its license renewal application and to terminate the license renewal proceeding as moot.
In response, NACE and the Cherokee Nation agreed that production-related issues were moot, and therefore did not oppose SFC's motion to the extent that SFC sought to dismiss such issues from the renewal proceeding. However, the Intervenors opposed dismissal of the proceeding with respect to issues involving j
continuing nonproduction activities that SFC intended to conduct under the i
authority ofits license. See supra note 3. The State of Oklahoma did not object I
to SFC's motion to withdraw its license renewal application, but requested the j
imposition of particular conditions on the withdrawal.
i In LBP-93-25, the Presiding Officer allowed SFC to withdraw its renewal application without conditions, and terminated the proceeding. Central to the Presiding Officer's opinion was his conclusion that there was no jurisdiction in the license renewal proceeding to address the issues the Intervenors wished 4
I to litigate: the adequacy of SFC's decommissioning funding, groundwater l
monitoring, and emergency planning; the safety of SFC's program of spreading raffinate on its agricultural lands; and the ability of SFC's management and operations programs to prevent additional contamination. The Presiding Officer characterized these issues as decommissioning-related and therefore beyond his jurisdiction in a license renewal proceeding. In the Presiding Officer's view, to continue the proceeding would improperly compel SFC to litigate the acceptability of decommissioning activitics already permitted by its existing license. 38 NRC at 321. The Presiding Officer also reasoned that a license l
renewal proceeding that included consideration of all decommissioning-related l
activities would " minimize and perhaps negate" the NRC Staff's regulatory role in approving and overseeing decommissioning activities. Id. at 319.
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Pursuant to 10 C.F.R. 5 2.786(b), NACE and the Cherokee Nation jointly filed a petition for review of LBP-93-25. The State of Oklahoma did not request review. Both SFC and the NRC Staff opposed review. In CLI-94-4,39 NRC 187 (1994), the Commission granted review and outlined issues for the parties to address.
l Ill. TIIE INTERVENORS' ARGU51ENTS BEFORE TIIE COA 1511SSION De Intervenors claim that termination of the license renewal proceeding violated section 189a of the Atomic Energy Act, 42 U.S.C. 6 2239(a), under which they allege entitlement to a hearing on SFC's ongoing nonproduction or l
of yelkrwcake and of "raffmate" sludge (a hquid waste productL and the "dispositiomng" of fertihzer, calcium Auoride sludge, low-quality yellowcake. and fluorinated materials. See Prehnunary Plan for the Compk tson of th:comrrussiumng,13 st.tl to.t2 (Feb 16.1993).
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1 decommissioning-related activities.* They offer several arguments. First, they
. challenge the Presiding Officer's conclusion that he did not have jurisdiction to address the issues NACE and the Cherokee Nation seek to litigate. ney stress that "lw] hen they were admitted to the license renewal proceeding as
.Intervenors, Petitioners became entitled to a hearing on all issues relevant to the renewal of SFC's license, including the adequacy of license conditions related to nonproduction or decommissioning activities...
"5 Because SFC continues to conduct nonproduction or decommissioning activities that were authorized under SFC's last license renewal, and were to have been addressed in this renewal proceeding, the Intervenors argue that the Presiding Officer l
should have continued the license renewal proceeding to permit litigation of these nonproduction matters.' According to the Intervenors, only those planned decommissioning activities not already authorized by SFC's license, and thus
. requiring a license amendment prior to implementation, lie outside the Presiding Officer's jurisdiction in the license renewal proceedingJ The Intervenors also argue that once the license renewal application was withdrawn, SFC lacked the regulatory authorization to continue any activities i
at its facility.' They conclude that SFC now " conduct [s] non-production-related operations at the facility, under color of [a] license which expired in 1990."'
The intervenors acknowledge that pursuant to the former 10 C.F.R. 5 40.42(e)
(1994), a license may remain automatically in effect beyond its expiration date to l
allow a licensee to continue decommissioning and security activities authorized under the license." They argue, however, that this automatic license extension provision did not apply to SFC, primarily for three reasons." First, they claim
'See generallr Nauve Americans for a Clean Environment s and Cherokee Nation's Initial Bnef on Review of j
LBP-93 25 (Intervenors' Imtial Dnef) at 15.19 20 (May 6.1994).
i I Nauve Anencans for a Clean Envimnnrni s and Cherokee Nanon's Reply Bnef on Review of LBP-93 25 (Intervenors' Reply Bnef) at 9.
'Intervenors' Initial Bnef at 15, 7 14 at 16: Intervenors' Reply Bnct at 9 a 3,, g,y4. g,,y
. Initial Bnef al 4-10.
'id at10.
- A new provision. to be codified as 10 C F R I 40 42(c), became effective in August 1994. and supersedes the former sectmn 4042(e). Sec Fmal Rule. Timehness in Decomnussioning of Materials Facihues. 59 Fed. Reg I
36.026 Ouly 15.1994)(" Final Rule") Secuan 40 42(e), m effect at the une of the Presidmg officer's decismn.
provided as follows:
(c) Each specific beense contmues in effect. beyond the expiration date if necessary, with respect to possession of res dual source matenal present as contaminanon until the Commissen noufies the hcensee in wntmg that the beense is terminated. During this time. the hcensee shall-
- 0) Linut actions involving source matenal to those related to decommissmning; and l
s2) Conunue to contml entry to restncted areas uniil they are suitable for release for unrestricted use l
and the Comnussmn ho'ities the hcensee m wnnny that the beense is ternunated Tiw superseding proviuon. the new 10 C F R. 5 40 42(c). is very smular to the former sectmn 40 42(e). but with some lariguage changes The new rule. for example, does not refer to "rendual source matenal present as contanunanon." but simply to "murce matenal? Final Rule. 59 red Reg at 36.035 H Intersenors' iniual Dnef at 19-20. Intervenors' Reply Brief at 6-8.
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' that SFC did not meet the former section 40.42(e)'s "necessary" requirement, because the pending license renewal could accomplish the same end as automatic L
extension, and therefore it was not "necessary" for section 40.42(c) to come into play to extend the effect of the license? Second, they contend that SFC's leftover source material, or yellowcake, was not the sort of " residual
... contamination" contemplated by the former section 40.42(e)? Third, they D
argue that for the former section 40.42(c) to apply, SFC needed to have satisfied agency notification and reporting requirements under two other regulations, the former 10 C.F.R.140.42(b), and the former 10 C.F.R. 640.42(c)." In sum, NACE and the Cherokee Nation submit that "[c]ontrary to the Licensing Board's strained interpretation of the regulations, SFC does not fit within 540.42(e),
... and has not satisfied 5 40.42(b) or (c)," and therefore should not have been i
permitted to withdraw its license renewal application?
The Intervenors add that the Presiding Officer mistakenly assumed that he altogether lacked the authority to deny a request for withdrawal of a license application? The Intervenors claim that the Presiding Officer misinterpreted the scope of his authority pursuant to 10 C.F.R. 5 2.107, the NRC regulation governing withdrawal of applications, and incorrectly read thi regulation to preclude him from denying a request for withdrawal of an application, and to allow him only the discretion to impose conditions on withaawal of an application?
Lastly, the Intervenors submit that the Presiding Officer failed to address their request. hat conditions be placed on a withdrawal of SFC's license renew.l application? They had requested that the Presiding Officer, ifinclined to pes.,2 SFC to withdraw its renewal application, first hold a hearing to allow litigation on what conditions needed to be imposed on SFC's withdrawal of the application?
IV. DISCUSSION At the time of the Presiding Officer's decision, the agency's regulations for materials licensees contained no specific provisions dealing with a licensee in SFCs position; one that prematurely and unexpectedly ceases operations, without sufficient time to prepare final decommissioning reports and surveys in i
12 1mervenors' Imhal Bnef ai 20 21.
I Uld at 21.
"See id at 19. 21.
UU as 20.
"M. at 11;Imervenors' Rerty Bnef at 3 4 Ulmervenors' Imual Bnef at 11.
88 M. at 18. Iniervenurs' Reply Bnef at 1213
.l "See Imervenors* Inical Bnef as 16.
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advance. That is no longer the case. With the intent to clarify the applicable regulations and thereby expedite decommissioning, the NRC in early 1992 initiated a revision of its decommissioning regulations for materials licensees, particularly of those provisions regarding the licensee's (1) obligation to provide notification of its intent to cease operations, and (2) authority and obligation to initiate decommissioning. The new final rule on Timeliness in Decommissioning of Materials Facilities became effective on August 15,1994, and will be codified under 10 C.F.R. I40.42 of the 1995 edition of the Code ofFederalRegulations.
Because the regulations in elfect at the time of the Presiding Officer's decision did not explicitly address SFC's situation, the Presiding Officer was forced to apply the existing regulations to SFC in the manner he found most practicable given his understanding of the Commission's intent and practice. We find that he did so reasonably. Like hime, we conclude that once SFC halted production activities and withdrew its license renewal request, its license was automatically extended under the former section 40.42(c) to permit limited cleanup activities.
However, even if we were persuaded otherwise, there is no practical reason now to restart this proceeding. A provision of our new decommissioning sules, the new section 40.42(c), supersedes the former section 40.42(c) and unambiguously would extend SFC's license for decommissioning purposes without a license renewal. Thus, it would be futile to order reinstatement of the license renewal proceeding under our former regulations.
. In declining to disturb the Presiding Officer's decision, we find no reason to decide as a general matter when (if ever) a Presiding Officer (or Licensing Board) may refuse to permit withdrawal of an applicatirn. We also see no reason here to second-guess the Presiding Officer's refusal to impose conditions on SFC's withdrawal of its license renewal application.
i In sum, we decline to reinstate the SFC license renewsl proceeding. The full rationale for our decision follows below.
A.
The License Renewal Proceeding At issue; before the Commission is whether the Presiding Officer erred in terminating the license renewal proceeding. This question hinges mainly upon whether SFC required a license renewal to continue !be decommissioning-oriented activities it now conducts at its facility. Althougr. a resolution of this matter centers upon an analysis of e ;; commissioning egulations, it may be helpful to begin by outlining ger.d.y the purpose of the license renewal proceeding.
The Intervenors were admitted as parties to a proceeding for renewal of an NRC license allowing production operations as the Licensee's principal activity.
The renewed license would have permitted SFC to conduct 10 more years of production. The Presiding Officer's function in the renewal proceeding was to 185 l
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t-decide whether renewal was appropriate and, if so, to determine what activities could continue in the renewal term. Although the license renewal proceeding, r
had it continued, likely would have addressed nonproduction issues peripheral to SFC's principal operations, these issues would have been ancillary to the central j
question -i.e., the propriety of continuing production for 10 more years.
Decommissioning and cleanup (and continued monitoring during cleanup) reflect a new and distinct phase for a facility, separate from the operational phase. Production-oriented operations, on the one hand, and decommissioning activities, on the other, generally pose different risks and call for different public safety standards.20 Because SFC had abandoned production at its facility and had dropped its request for license renewal, the Presiding Officer concluded that continuation of the license renewal proceeding would improperly " construct an artificial forum" compelling SFC to litigate an entirely different matter -
decommissioning activities rather than production activities.2' For the reasons j
. outlined below, we agree that SFC does not need a license renewal to continue the limited decontamination and decommissioning activities now under way.
B.
SFC's Authority for Ongoing Activities At the heart of the Intervenors' claims is the argument that "nothing in the NRC's regulations" acts to extend the effect of SFC's license, a license they j
submit expired in 1990.22 SFC, they conclude, currently lacks the authority to continue any manner of activity at the Sequoyah Fuels site.
The Intervenors would like us to keep the license renewal proceeding alive because, although production-related issues are now moot, "it is clear that SFC will continue to have responsibilities under the existing license,"23 and
" dismissal of a license renewal proceeding must be denied where the licensee continues to have responsibilities under the existing license."24 At bottom, the Intervenors argue that, before SFC can undertake any decontamination activities, the Licensee must renew its license.25 In their view, in permitting SFC to proceed without a license renewal, the Presiding Officer granted SFC an unlawful defacto license renewal.26 J
20 We twie, for esample. that the Imervenors have highhghted concerns raned t y a November 17.1992 accidem that resulted an a release of nitrogen dioude Thss madent related to productmn acimues. which STC no longer conducts 2t Lgp.93-25. 38 NRC at 321.
22 gm,,,,,g,,. Inmal Bnef at 1 23 /d ati4 2*Id at i2.
25 See id at 23. Imervennrs' Reply Bnef at 9-10 26 Sec Imervenors* Imoal Dnef a 24 186 i
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ne Presiding Officer rejected the Intervenors' position largely on the author-ity of the " automatic extension" provisions in the former 10 C.F.R. I 40.42(e).27 That rule kept a license in effect past its expiration date, so long as the licensee.
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"[ljimitled) actions involving source material to those related to decommission-ing.* As it read at the time of the Presiding Officer's decision, section 40.42(c) i provided as follows:
Each spectfsc license contsnues in efect, beyond the expiranon date tf necessary, with respect to po.tsession of residual source material present as contaminarion until the Commission notifies the hcensee in wnting that the license is terminated. Dunng this time. the heensee shall -
l (1) Limit actions involving source material to timse related to decommissioning; and (2) Continue to control entry to restricted areas unul they are suitable for release for j
unrestricted use and the Commission notifies the hcensee in writing that the license is terminated.
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(emphasis added).
On appeal, the Intervenors argue that the former section 40.42(e) did not apply to SFC.2: They offer three arguments. Hey first submit that section i
40,42(e), by its own terms, would only extend a license where license extension is "necessary."2' In their view, "[w]here there is a renewal application pending, it will never be 'necessary* to extend a license,"30 for the Presiding Officer can simply continue the license renewal proceeding They next claim that "the jurisdictional basis of section 40.42(e) is limited by its own terms to very specific i
circumstances, in which cleanup has been completed to a degree that only residual contamination remains."32 SFC's facility, the Intervenors submit, has more than merely " residual source material present as contamination" because of the presence of commercially salable source material, such as yellowcake.32 Lastly, the Intervenors argue that the former sectio.. 1.42(e) only applied to licensees meeting various planning, survey, and notification requirements in the former 10 C.F.R. 5 40.42(b).5' We find these arguments unpersuasive.
Our regulations' "necessary" provision (which appears in both the former j
27 Although sics beense was scheduled to expire in 1990, it did ruit do so. Under our regulatums. SICS hcense j
remained in effect m its enurety once SI-C tendered a umely renewal apphcanon. pending a nnal decision on the apphcatmn See 10 C.r R. I 40 4)(b) (1994). Under the Conumssmn's newly revised regulations, stus "umely renewal" provmon is found m section 40 42(a) See rmal Rule. 59 ied Reg as 36.035 Once SI-C withdrew 6:s beense renewal apphcotion. of course et could conunue acuvity under its hcense only if the " automatic extenamn" p8rimou m the forner sectmn 40 42 e) cane into play
- Inierveno s' hunal Bnef at 20 21;intervenues' Reply Bnef at 6 "Intervenors' imual Bnef at 20
'* ld II 14 at 20L21.1nierveners' Reply Bnef at 6 32 g,,,,,,,g,,. Reply linef si 6.
i 33 tniervenors' lauual linef at 21.
I* lJ. Tte forprr sectmn 4042(b) directed bcensees to inclu.4e with their noufnation to cease activines a completed form NRC.3!4 certifymg informatmn on ttw dispossue of matenals, a radiarmn survey; and, when l
L Camtmurd) 187 I
l 1
i j
l l
l i
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i
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s j
' J
, o section'40.42(e) and the' new section 40.42(c)) simply means that the limited -
. regulatory license extension comes into play only when decommissioning cannot.
be completed prior to the license's expiration date. Nothing in the regulations -
suggests that the provision is inapplicable to licensees who previously have applied for renewal of their license. As the Presiding Officer stated, "[n]o reasonable explanation has been forthcoming from Intervenors on why that provision would cover cases where licenses have expired without a renewal application being filed, but not those where a renewal application has been applied for and subsequently withdrawn with a termination notice..."35 Nor do we agree with the Intervenors that the former section 40.42(e) applied only to licensees that already substantially had decontaminated their sites and disposed of all source material. The term " residual" contamination reflected not -
.what remained at the end of decommissioning, but what was present at the end of
~
operations and at the beginning of decommissioning. To " decommission" means
-to begin reducing " residual" radioactivity to a level that permits release of the
- property for unrestricted use and permits the termination of the license.3' The NRC will terminate a license when " residual.,. contamination" reasonably -
has been removed."
- The Intervenors point out that the former section 40.42(e) allowed automatic license extension only for " residual source material present as contamination,"
and argue that some of the source material remaini ig at the SFC facility - bulk,
'q unused yellowcake - cannot be characterized as " contamination." (Emphasis i
added.) 'Ihe Intervenors' reading of the former section 40.42(e) is not without force, in a strictly linguistic sense. Ore could say that unused raw material, even if radioactive, is not " contamination." But we cannot embrace that view,
. as there is no history or policy to commend it.
Nothing in our Statements of Consideration on materials decommissioning, either for the former section 40.42(c) or for the new section 40.42(c), suggests that leftover (but radioactive) raw material falls outside our automatic license extension rule. Nor do the Intervenors offer an explanation of why the Commission would impose such a limitation. More reasonable, in our view, is the Presiding Officer's (and the NRC Staff's) understanding of the former -
section 40.42(e) - i.e.. " residual source material present as contamination" means any radioactive material left over after plant shutdown and requiring removal, whether unused or not.
- called for, a deconviussioning plan. The intervenors clairn that SFC subnutted a pretinunary but not a nnat decornnussierung plan; provided ordy *svailable" radiation survey data instead of a Anal report. and failed to subnut a cornpleted Form NRC.314 1d
, ' ~
M L3P-93 23. 38 NRC at 31s 19.
36 5cc 10 C.F lt i 40 4 (19941 U5ee the fariner 10 C1 R. I 40 42(fM2). to be codified under the new regulations as secuon 40.42(jM2).
188 4
I g
m
~,
+,
.r r
['
l In any event, our new decommissioning regulations for materials licensees
- which revise and recodify section 40.42 in a number of ways - contain a clarified version of the former section 40.42(e) that clearly leads to the same result that the Presiding Officer reached. 'Ihe revised provision (the new 10 C.F.R. 6 40.42(c)) states simply that licenses remain in effect with respect to the possession of " source material." See note 10 supra. This indisputably would cover SFC's yellowcake material. Thus, even if the Commission were to agree with the Intervenors' reading of the former section 40.42(e), the new provision takes away any practical reason to remand this case. Were the Presiding Officer ordered to resume the license renewal proceeding, SFC could again simply seek withdrawal of its license renewal application, and this time could incontrovertibly rely upon section 40.42(c)- which because of clarified phrasing very explicitly would extend SFC's license to permit limited, previously approved decommissionhig activities, regardless of the nature of the source material remaining on site We also find that SRTs failure to submit various final decommissioning reports did not compel entinuation of the license renewal proceeding. The applicability of the forrgr section 40.42(e) was not linked to and did not rely upon the submissios or contents of decommissioning reports. Neither the language of the former e,ection 40.42(c) nor the Statements of Consideration for the rule intimate any relationship between submission of the decommissioning documents and the autematic license extension granted under section 40.42(e).
Moreover, the Presiding Officer properly concluded that it was unreasonaMe to expect SFC already to have completed final decommissioning surveys and reports at the time that it made a commercial decision to shut down operat.ons.
Our newly revised regulations for decommissioning of materials facilities c'arify the Commission's position on this point.38 Accordingly, the Presiding Officer reasonably found that these final reports are expected only at the completion of decommissioning."
Finally, the Presiding Officer violated nothing in our case law in dismissing this license renewal proceeding. The cases cited by the Intervenors do not establish any obligation on the part of the Presiding Officer to reject the I""The haal rule... clannes requirements for radiological surveys performed as part of the hcense termination process. Ttus rule clan 6cs that hcensees need only suberui the hnal surwy showing that the site er area es suitable for release in acewdance with NRC requnements after decomrmssioning has been completed." Fmal Rule. 59 fed Reg at 36.027, see she ad. 59 red Reg at 36.036 (140 420N1) and (2)). To ehmmate any confusion over how beensees should noufy the aFency of the intent to ternunate acuvmes, the revised regulauon on nou6cauoc drops all reference to surveys, reports, and plans See id. 59 Fed Reg. at 36.035-36 (t 40 42(d)).
" Sac t.BP-93-25. 38 NRC at 318 The Imervenoss also argue that. for forner section 40 42(e) to apply. SFC needed to have comphed wuh the terms of the fwnrr 10 C F R. I 40 42(ck which covered hermees not seeksng license renewal That provismo daccted such heensees to subnut the Anal surveys and reports hsted m the former secuan 4042(to But the furnwr sectmn 4042de) was intended for hcensees that would not need an entenm permd in wtuch to conduct decontanunation acuvmes. and astead could accomphsh cleanup efforts relauvelv expeditiously, as in the case of matenals hcensees with only scaled sources 189 l
)
e 3
m-t 4
L ig
?
i
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l withdrawal request,' and 'do not otherwise support the Intervenors' claims.-
Moreover, the Intervenors rely primarily upon Licensing Board decisions, which l
^ have no precedential effect beyond the immediate proceeding in which they were t
u l'
issued.
I
. For example, the Intervenors cite Nuclear Engineering Co. (Sheffield, Illinois '
]
,7
- Low-Level Radioactive _ Waste Disposal Site), Docket No. 27-39,' Memorandum
[
and Order Ruling on Motions to Withdraw Application and Dismiss Proceeding -
l (May 3,1979) (unpublished), aff'd on other grounds, ALAB-606,12 NRC-
~,156 (1980), and claim that it shows that,' where any responsibilities remain l
under a license, a licensing board must deny withdrawal of a license renewal application." In Shefield, however, the licensee sought to walk away entirely from any existing responsibilities for the control, maintenance, and cleanup of a -
j 20-acre byproduct material burial site. Here, by contrast, SFC has not attempted l
to reject its remaining license obligations, but has proceeded, pursuant to our l
" automatic license extension" rule, to control entry to restricted areas and to.
l carry out authorized cleanup-stage activities..
J The Intervenors also cite racr]ic Gas and Electric Co. (Humboldt' Bay Power Plant, Unit 3), LBP-86-1,.23 NRC 25.(1986), where the Licensing l
Board terminated a proceeding only after the submission of a decommissioning
]
plan. Based upon Humboldt Bay, the Intervenors argue that a license renewal _
j proceeding becomes moot only upon submission of a final decommissioning plan." The Humboldt Bay opinion, however, must be read within the context of an earlier decision in the same proceeding. He Licensing Board in the -
earlier decision deferred ruling on the licensee's request to withdraw a license amendment application and to terminate the proceeding because of uncertainty over the licensee's future intentions. See Paci)fc Gas and Electric Co. (Humboldt Bay Power Plant, Unit 3), LBP-81-20,14 NRC 101 (1981). He Board sought confirmation that the licensee planned either to comply with previously ordered plant remediations or to dispose of materials, and therefore ordered the licensee to submit under oath or affirmation a statement of its intentions. Although the -
submission of a decommissioning plan satisfied the Board's concerns, in no sense was the submission of a decommissioning plan necessary to render the proceeding moot. As the NRC Staff's brief notes, in terminating the proceeding the Board "made no findings regarding the adequacy of the decommissioning plan, or whether it, in fact, subsumed the irsues raised in the amendment proceeding."42 l
"See Imervenm' initial Bnef at 12.
- OSee id at 13.
42 NRC Staff Response in opposinon to Nanve Amencans for a Clean Environrnent and Cherokee Nanon's
- htmon for Review of1.BP-9.L25 (NRC Staff Responne) at 13 Oune 17.1994L lj 190 i
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We hold, in sum, that the Presiding Officer reached the correct result in declining to adjudicate issues surrounding the SFC facility's decommissioning in the context of a now-moot license renewal proceeding. He did not grant SFC a defacto license renewal. There remains no practical reason,- in any event, to continue litigation on this issue because the NRC's new " automatic extension rule," section 40.42(c), leaves no possible doubt that the rule covers SFC and eliminates any need for license renewal.
Our ruling grants SFC no sweeping powers. The automatic extension
. provision, now section 40.42(c), permits SFC to conduct only limited activities related to decommissioning and to the control of entry to restricted areas.*2 The Licensee retains neither expansive nor indefinite license authority. Having withdrawn its license nnewal application, SFC may no longer conduct the principal activities authorized by its license.** Moreover, SFC is not free to perform all kinds of decommissioning activity, only those previously approved under its license. To implement an activity not previously authorized by its license, and thus not previously subject to challenge, SFC would first have to obtain a license amendment, an action that would trigger opportunities for hearing.45 C.
The Presiding Officer's Discretion under 10 C.F.R. 5 2.107(a)
As an additional argument, NACE and the Cherokee Nation submit that the Presiding Officer misinterpreted the scope of his authority pursuant to 10 C.F.R. 6 2.107(at and erroneously concluded that he lacked altoFether the discretion to deny a request to withdraw an application.*6 The regu ation reads as follows:
The Conunission tnay perrnit an applicant to withdraw an application prinr to the issuance of a notice of hearing on such tertns and conditions as it inay prescribe. or rnay, on receiving a request for withdrawal of an application, deny the application or distniss it with prejudice.
Withdrawal of an application after the issuance of a notice of hearing shall be on such tertns as the pretidmg officer rnay presenbc.
Sec 10 C F R.140 421e)(1) and (2) (1994) See alw the newly anended 10 C F R. 64042(c) in the nest issuance of the Ode of federal Argulations (1995) See f mal Rule. 59 Fed Reg at 36.035 Uuly 15.1994).
- The agency defines *pnncipal actmues" as those that are "essennal to achieving the purpose (s) for which the beenw was issued or anended" Decomrmssmrung and decontanunanon achvices are not deened pnncipal actmues. See IFinal Rule. 59 Fed Reg at 36.035 (l 40 4).
"'Indeed. sFC recently has sought a hcense anendnrnt and the Interrenors have been adnutted to the anendnent proceedmg See Seymo.wh furLr Corp (source Matenal Ucense No. sUB.1010). Docket No 448027.MLA.3, Memorandum and order (Requesi for Heanng)(oct-14.1994)(adnutung NACE and the Clerokee Nation to a heanng on proposed amendment re: organizational changes). SFC plans several decomnussiomng activines that are not authonzed under its license, including construccon of an onsite isolanon cell, demohuon of structures.
systems, and components and disposal of rubble en the cell, and cell closure. See Prehnunary Plan for Completion of Decommissiomng 14 at 41 (f eb 16.199h These acovit es would require a hcense amendnrnt and are subject to the secuon 189a hearmg requirenrnt
- lnrervenors' Imtial Bnef at 11. tniervenors' Reply Bnef at I.
191
7, 10 C.F.R. 6 2.107(a)(1994). Both the NRC Staff and the Licensee argue that a presiding officer does not have the authority to deny a request to withdraw an application, and at most can impose conditions on a withdrawal.d' The Licensee adds that the presiding officer may deny or dismiss the underlying applicafion, but not the request to withdraw the application.d8
.We need not decide today under what circumstances a presiding office; may deny a request to withdraw an application. The Presiding Officer's decision in this case does not rely upon an interpretation of section 2.107(a), but rather upon the conclusion that the license renewal proceeding was an inappropriate forum in which to litigate decommissioning matters. However, we do not foreclose the possibility that in limited instances denial may be appropriate, as, for example, where a licensee seeks to withdraw a license renewal application but in fact continues to conduct some production activity.
D.
Request for Conditions As a final argument, the Intervenors claim that, although their principal request before the Presiding Officer was for a license renewal hearing, they also had requested, in the alternative, that the Presiding Officer impose conditions on SFC's withdrawal of its license renewal application. This alternative request, Intervenors say, the Presiding Officer did not address."
It is not clear to us whether the presiding Officer understood that the Intervenors were asking for such alternative relief. However, unlike the State of Oklahoma, which sought specific conditions, NACE and the Cherokee Nation did not provide the Presiding Officer with any - even Feneral - suggested conditions to consider. Instead, they requested that the Presiding Officer hold a prehearing conference to determine what issues "must be litigated for the purpose of imposing conditions."" The only guidance provided on possible conditions to impose are the Intervenors' broadly stated categories of concern:
the adequacy of decommissioning funding; the adequacy of emergency planning; the safety of raffinate waste distribution; and the adequacy of management organization.
Although having had numerous opportunities, both before the Presidmg i
Officer and on review before the Commission, to identify any possible deficiency that could be remedied through conditions, the Intervenors instead complain that it was impossible to "present an evidentiary case on the conditions that d'Str sequoyah Fuels Corpormtma Bnef in Response to NACE and Cherokee Nanon initual Bnef en Renew of I DP 9b25 (sics Bnef s at 15 Oune 10 IW41. NRC staff Response as 69-d'sFC's Bncf at 4
"$re intervenurf inmal Bnef at 17-18 M NACE and Chrrokee Neuon's oppouuan to sirs Monon for withdrawal of Apphratwn and Terrrananon of Heanng. and Request fur Prehranng Confererwe at 24 Ouly 26. lW3).
192
l should be imposed...."$3 But the Presiding Officer did not insist upon an
" evidentiary case." Nor do we. To make a serious case. for conditions, however, the Intervenors reasonably can be held to an obligation to offer some indication of their objective. He proponent of litigation always bears the burden of
. explaining which direction the litigation will take. We cannot fault the Presiding Officer for not ordering the parties to engage in protracted, ill-defined litigation, based solely upon vague and general areas of concern.
- Moreover, for two of the Intervenors' broad categories of concern - de-commissioning funding and SFC's management - the Intervenors have been admitted as parties to separate adjudicatory proceedings that will focus on these issues 2 We also note that no activity SFC now conducts has been conducted s
without a prior opportunity for hearing. For example, SFC's raffinate fertilizer program was approved in a prior license renewal. The Intervenors have not indicated - as the NRC Staf f has stated - any "new or altered procedures or circumstances which call that approval into question."55 We are left simply with a request for conditions based on conclusory statements and generalized concerns. This is not enough to justify continuation of an otherwise defunct license renewal proceeding.54 V.
CONCLUSION For the reasons stated in this decision, the Presiding Officer's decision in LDP-93-25 is affirmed.
88 1mervemws' Reply Bnef as 13.
52Sre Sequmah fuels Corp.. Docket No 4n-80274r.A-3 Menorandum and order (Request for Heanng)(oct 14.1994)(grannng NACE and Clerokee Nation peti ion for heanng on proposed orgamzanonal change 6); see aho Sequoiah furts Corp. (Gore, oklahoma sne Decontanunauon and runding). CL1-9412. 40 NRC 64 0994)
(affirnung NACE imervennon), CLI-94-13,40 NRC 78 (1994)(affitnung Cherokee Nation interversion).
S' NRC staff linef at 2 n.2 Id We rune that, in support of their request for a heanng on condibons. rhe Inarrvenors cite SheBield. supre p-190. a casa where the ticensmg Board had been provided with a proposed "hst of condsuons" to be imposed in any order granung the licensee a monon to withdraw its apphcanon or &snuss the procee&ng Intervenors*
Reply Bnef at 3 o 4. Sheftrid, shp op at 4 Here. the Imervenors han not even himed at posuble opnons for condshons thns could redress their concerns.
193 l
It is so ORDERED.
Rv the Commission I
JOHN C. HOYLE Secretary of the Commission Dated at Rockville, Maryland, this 9th day of March 1995.
194
't,
'f Atomic Safety and Licensing i
Boards issuances ATOMIC SAFETY AND UCENSING BOARD PANEL B. Paul Cotter, Jr.,* Chief Administrative Judge James P. Gleason,
- Deputy Chief Administrailve Judge (Executive)
Frederick J. Shon
- Deputy Chief Administrative Judge (Technical)
Members Dr. George C. Anderson Dr. David L Hetrick Marshall E. Miller Charles Bechhoefer*
Ernest E. Hill Thomas S. Moore
- j Peter B. Bioch*
Dr. Frank F. Hooper Dt Peter A. Morrie G. Poul Bolhwork lit
- Etzabeth B. Johnson Thornas D. Murphy
- Dr. A. Dixon Celkhan Dr. Charles N. Kolber*
Dr. Rchard R. Partzek i
Dr. James H. Carpenter Dt Jerry R. Kline*
Dr. Harry Rein Dr. Rohard F. Cole
- Dr. Peter S. Lam
- tmier S. Rubenstein Dr. Thomas E. Elleman Dr. James C. Lamb Ill Dr. David R. Schink Dr. George A. Ferguson Dr. Emmoth A. Luebke Ivan W. Smith
- Dr. Harry Foreman Dr. Kenneth A. McCollom Dr. George F. Tbey Dr. Rchard F. Foster 4
l 1
l
'Permww rt paneltrombers i
i i
i
I Cite as 41 NRC 195 (1995)
LBP-95-3 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION t
ATOMIC SAFETY AND LICENSING BOARD PANEL -
Before Administrative Judges:
Marshall E. Miller, Presiding Officer Dr. Harry Foreman Special Assistant i
in the Matter of Docket No. 30-16055-ML-Ren I
(ASLBP No. 95-737-02-ML-Ren)
(Source Material License No. 34-19089-01)
ADVANCED MEDICAL SYSTEMS, INC.
. (Cleveland, Ohio)
March 13,1995 MEMORANDUM AND ORI)ER L BACKGROUND In this proceeding, Advanced Medical Systems, Inc., seeks timely renewal of i-Material License No. 34-19089-01 for its facility located at 1020 London Road, Cleveland, Ohio. The Licensee seeks continued permission from the NRC to possess various quantities of radioactive materials for me in i:s manufacture of medically related devices.
As a result of the NRC's pending licensing action, four parties have petitioned for hearings on the renewal request.' On January 27,1995, a single presiding officer was appointed to rule on the hearing petitions and to preside over a hearing if one is to be held. Under the Commission's regulations, any heaing j
would be conducted under 10 C.F.R. Part 2, Subpart L, informal hearing j
procedures.
l 3 Under the proviwons of 10 C F R t 21205(0, the staff has elected to pamcipate as a party to ttus pocee&ng 1
195 i
4 II.. REGULATORY STANDARDS Under the provisions of 10 C.F.R. 52.1205(a), any person whose interest may be affected by a proceeding for the renewal of a license may file a request for a hearing. A request for a hearing filed by a person other than an applicant must describe in detail (1) the interest of the requestor in the proceeding; (2)'
how that interest may be affected by the results of the proceeding, including the reasons why the requestor should be permitted a hearing; (3) the requestor's areas of concern about the licensing activity that is the subject matter of the l
proceeding; and (4) the circumstances establishing that the request for a hearing is timely.
In ruling on a request for a hearing, the presiding officer must determine that the specified areas of concern are germane to the subject matter of the proceeding.2 The issues the requestor wants to raise regarding the licensing action must fall within the range of matters properly subject to challenge in the proceeding,' and the statements of concern must be pleaded with enough specificity to allow a presiding officer the ability to ascertain whether what the requestor seeks to litigate is truly relevant to the subject matter of the proceeding.'
The presiding officer also must determine that the requestor meets thejudicial standards for standing and consider, among other factors, the nature of the requestor's right to be made a party to the proceeding; the nature and extent of the requestor's property, financial or other interests in the proceeding; and the possible effect of any order that may be entered in the proceeding upon the requestor's interest.8 To be admitted as a party in an NRC proceeding, a petitioner must allege "a concrete and particularized injury that is fairly traceable to the challenged action."* A prospective party must show that it could suffer an " injury in fact" because of the proposed licensing action and that its interest is within the " zone of interests" to be protected by statutes under which the requestor seeks to challenge the licensing action.' In this case, a requestor must allege an injury in fact within the zone of interests protected by the Atomic Energy Act of 1954, l
2 10 C.f.R.121205(g).
l 3 statemem of Consideratmns. Informal Hearmg Procedures for ILlatenals Licensmg Adjudicatens. s4 Fed. Reg i
8269. 8273 (Feb. 25.1989).
'Sequoyuh furts Corp., t.BP-94 39,40 NRC 314. 315-16 (1994) 8 10 C F R. I 21205(a).
- Babcort and Wikov Co. (Pennsyhania Nuclear Services operanons. Parks Tow nihip, Pennsylvama). LBP-94-4 39 NRC 47, 49 (1994),cning Transnuclear, lac. (Export of 9315% Lunched Uramum). Ct.l-94-1,39 NRC l. 5
]
(1994) 7 5acramento Meninpal Unhrr Dr:rna (Rancho seen Nuclear Generaung stauoni. CLI.92-2, 35 NRC 47, 56 (1992); Rabrot A and Wdcas ( A ollo, Pennsylvama Nel Iabncanon rmhty). LBP-93.4. 37 NRC 72. 80. uppeal P
desmused CLI 93-9. 37 NRC 140 (1993).
l l
196 j
V k
i as amended ("AEA"),' or the National Environmental Policy Act of 1969, as amended ("NEPA").'
Here are three components to the " injury in fact" requirement - injury, cause, and remedial benefit. The asserted injury must be " distinct and palpable"
- and "particular and concrete" as opposed to being " conjectural, hypothetical or abstract." The injury need not already have occurred, but when future harm is asserted, it must be " threatened or certainly impending" and "real and immediate." Here must also be a causal nexus between the asserted injury and the challenged action. To establish injury in fact in this case, the requestor bears the burden of establishing that the injuries it alleges will occur to its interests protected by the AEA or the NEPA.
III. ANALYSIS Four requestors have petitioned for a hearing on the AMS license renewal application: the Earth Day Coalition Cleveland, Ohio (" Coalition");" the Northeast Ohio Regional Sewer District, Cleveland, Ohio (" District");u the City of Cleveland, Ohio (" City");" and the Cuyahoga Emergency Management Assistance Center, County of Cuyahoga, Ohio ("CEMAC"). AMS has filed answers to each petition."
i A.
Northeast Ohio Regional Sewer District Requestor District states that the AMS facility is within the service area of
)
the District's wastewater collection and treatment system. Citing past discharges of radioactive wastes from the facility into the District's sewer lines, the District states that it has significant financial interest in the future regulation and control s 2 U s C. ll 2011-2284.
4
'42 U.s C. Il4321-4347.
- Apollo, LBP-93 4. 37 NRC at 81, crimg Clewfand Electric lifummaring Ca (Perry Nuclear Power Plant.
Umt 11. LDP.92-4. 35 NRC i14.120 (1992)
" Eartn Day Coahtion. Request for Heanns (Dec. 28. 1994).
" Northeast otuo Regional Sewer Distnet. Request for Heanng (Dec.29. 1994).
O City of Cleveland, oivo, Request for Heanns (Jan. 13.1995)
"Cuyahoga County tocal Energency Planmng Comnuttee. Request for a Heanng; Pension to Intervene (Jan. 27, 1995).
" Answer of Advanced Meecal systems. Inc. to Request of the Northeast Ohio Regional Sewer District (Jan.
12, 1995); to Request of the City of Cleveland (Jan. 12. 1995). to Request of the Earth Day Coahoon (Jan 27 1995E to Request of the Cuyahoga Emergency Management Assistance Center deb. 27, 1995) for reasons not fully explained. Counwl for AMS d d not have a complete service list for this proceeding unn!
j he was informed of this fact by the setuor Anorney for the Atomic Safety and Licensing Board Panel on February 22.1999. Becauw of this shortconung, the Presseng of6cer mas unable to deternune of all entines involved with this procec&ng had received the AMs 6hngs AMS re-served its four answers and by motion asked the Presi&ng of6cer to have its answers considered timely Monon of Advanced Me& cal systems. Inc. as to Time for Service i
(ieb, 27,1995) 197
I
- of radioactive material at the AMS facility. He District also cites a potential for its own facilities to discharge radioactive wastes into the general environment of Lake Eric if its facilities become contaminated from accidental releases from the AMS facility.
De District alleges that, because of the configuration of its sewer system, any radioactive releases from the AMS facility would affect a great portion of its system and its wastewater treatment plants. He District states that its financial interest in this proceeding is at least as great as its property interests.
It alleges that it has incurred costs of well over one million dollars as a result of prior AMS discha ges and that a sudden large release could be devastating to its operations. Moreover, the District is concerned for the health and safety of the employees who maintain its system.-
he District states that its primary concern is the ability of AMS to maintain proper control over its radioactive material in light of the record of past problems at the AMS facility. A second concern involves the lack of an emergency plan for the AMS facility. He District alleges that since radioactive material that may be released in a fire or other disaster would ultimately be washed into the sewer system, there should be a realistic assessment of the potential for releases under various accident scenarios. A third concern involves the adequacy of the amount of financial assurance AMS has posted for decommissioning of the facility. A fourth concern involves the ability of AMS to provide for remediation of offsite releases if such releases occur.
He District's petition for hearing was filed within 30 days of the submis-sion of the AMS license renewal application and is therefore timely under.he provisions of 10 C.F.R. (2.1205. All of the four concerns enumerated by the District appear germane to the subject matter of this proceeding - the renewal of the AMS license to possess radioactive materials at its Geneva, Ohio facil-ity. The District has properly alleged that its sewer system, which services the AMS facility, could be directly impacted by accidental radioactive discharges or during efforts to control accidents at the site. It has also properly alleged that its interests would be threatened by deficiencies in emergency planning and the lack of financial assurance for the site if the license were renewed with deficiencies in those areas. It has standing to become a party to this proceeding.
i i
"By may of badground, the Distnct has nled three petmons for enforcenent actions agamst AMs pursuant to 10 C F R. I 2.206. two of which are suit pendmg See 59 Fed Reg 47.959 (sept 19.1994) and 58 Fed. Reg.
19.282 (Apr 13,199n Even though these two petmans are pendmg and raise sonw of the sane issues raised in its heanns petmon, the Distnct is not precluded from requesung a heanng with respect to the AMS renewal apphcanon Src Gwrgia Power Co. (Vogtle tiertnc Generatmg Plant. Units I and 2). LBP-93-5. 37 NRC 96. 98 n 2. afd CLI 93 26. 38 NRC 25 0993) 198 i
+ s Tae Northeast Ohio Regional Sewer District's request for a hearing is therefore granted.'7 B.
The City of Cleveland' Requestor City states that the AMS facility is located within the jurisdiction of the City, and is located adjacent to both residential housing and commercial businesses. The City's primary interest in the proceeding is to ensure the health and safety of the citizens within its jurisdiction. An accidental release of radioactive material could pose a major threat to the health and well-being of those citizens. The City also states that it has an interest in protecting the health and safety of fire, police, emergency medical, and other city personnel who would be called upon to act if there were an accident at the AMS facility.
The City is also interested in the economic well-being of the areas surrounding the AMS facility due to alleged past releases of radioactive materials and the condition of the AMS facility itself.
He City asserts that its interests will be affected by the license renewal be-cause, it alleges, the AMS facility is already contaminated and its decontamina-tion or decommissioning will potentially affect Cleveland residents, businesses, and city employees. Any potential releases of radioactivity would affect these groups more than others since they live and work in proximity to the AMS facility. He City also claims both present and future financial interests in the licensing of AMS because the financial burden of planning for an emergency at the facility and providing training for emerFency personnel has fallen on the City, it states that it has been forced to form a Task Force of governmental agencies to come up with an adequate emergency response plan for the AMS site. In summation, the City claims that the effect of granting a renewal license without including sufficient terms and conditions to safeguard the City's citizens would leave the City with the " lion's share" of the responsibility for dealing with existing and future problems at AMS.
De City adopts as its areas of concern the nine issues outlined by the NRC Staff *r letter to AMS, dated December 22, 1994, which details deficiencies 37 The AMs answer to the Distncrs pennon, as with us answers to the other three peutions, generany presents arguments that address the ments of the areas of concern ramed by the Requestors. However, the areas of concern are not contennons. as contenuom are unJetstood m a constructwn or operarmg beense proceeding, and need not be argued on the nrnts liy an opposmg party at the incept on of the proceedang. but rather, at the tme of its unnen presensatmn See 10 C F R.121233tc) and (dt subpart L pracuce requires a pentioner to allege areas of concera rnevely to denmnstrate to the Preu&ng officer that the issues it seeks to raise are sonrhow hnked to the beensing acuoa The threshold for plea &ng an area of concern is very low ~ whether it is germane to the subject matter of the pmcee&ng See statement of Consideranons. Informal Heanng Procedures for Materials licensmg Adjuscauons. 54 Fed Reg, IL269 (reb. 28.1989h Srprnah Furt.r Corp,40 NRC 314, 315 46 (IW41 None of the AMS answers address whether the areas of concern raned by the Requestors are germane m #4e creert of the Irrest renemst uppleenvin. Moreover. the AMs amwers fad to address whether each Requestor has esubbsheti the requisne standmg to request a heanng 199 l
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' the Staff found in the AMS renewal application; The City, h'owever, fails to enumerate what these concerns are, with the exception of two.
It states that. these two.- Item Number Seven_ in the Staff's letter rega ding the emergency plan for th'e AM'1 facility, and. Item Number Eight in the same letter regarding decommissioning funding and fmancial assurance - are of -
the. most immediate concern. ;He concerns allege inadequacies involving onsite emergency preparedness and insufficiencies in funding for accidental contamination both on and off site.
The City has included with its petition for hearing the affidavits of two City attorneys attesting to the dates upon which the City received actual notice of l
- the AMS renewal application. He City's request was filed within 30 days
' of its having received actual notice 'of the application. Under the provisions'
.j of 10 C.F.R. 52.1205(c), the request is timely.: The two concerns enumerated ~
by the City,'regarding the inadequacy of the AMS emergency response plan and the insufficiencies in decommissioning funding and financial assurance,' are germane to the proceeding. The City has standing to request a hearing because its interest could be directly affected if the license were renewed and there were
.j deficiencies in those areas. The City of Cleveland's request for a' hearing is granted.
'I' C.
Cuyahoga Emergency Management Assistance Center
~
The third of the requestors, Cuyahoga County Local Emergency Planning i
. Committee, presents an unusual question. The timely petition was forwarded I
to the NRC on "Cuyahoga Emergency Management Assistance Center" letter-head, but the text of the petition describes the concerns of the Cuyahoga County Local Emergency Planning Committee ("LEPC"). While the letter states that 1.EPC is the agency with primary responsibility for emergency planning within Cuyahoga county, it goes on to state thr.t LEPC will be seeking a variance from the Ohio State Emergency Planning Commission to formally add the AMS fa-cility to the list of facilities subject to LEPC jurisdiction. Moreover, the letter '
states that it is not certain that LEPC can obtain jurisdiction over the AMS facil-ity. Without some link to the AMS facility that serves as a basis for a potential concrete or particularized injury to LEPC, LEPC has failed to establish that it -
has standing to request a hearing.
is The NRC staff has elected to be a party lo this proceedmg under the provisions of 10 C.F.R I 21205(f). While the staff did not expressly hst its areas of concern in its Notice of Participation it imphcitly stated its concerns by attachmg the December 22.1994 lener from John A. Grobe. Chief. Nuclear Matenals Inspection. Section 2.
to Advanced Medical Systems, which detailed mne specinc deficiencies in the AMs hcense renewal apphcation.
"The petition states that it was filed within 30 days of t.IPC's recemng actual notice of the AMS license renewal request.
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t Ilowever, even if LEPC has failed to demonstrate that it has met the judicial concepts of standing, it can participate in the hearing under the provisions of 10 C.F.R. 9 2.1211(b). That provision permits a representative of an interested state, county, municipality, or an agency thereof to participate in a Subpart L proceeding and to make written and oral presentations in accordance with 10 C.F.R. 56 2.1233 and 2.1235. Therefore, LEPC will be allowed to participate as a representative of an interested county under and to the extent allowed by the provisions of 10 C.F.R. % 2.121l(b) upon submission to the Presiding Oficer (and service upon the parties) of an affidavit of a Cuyahoga County official I
attesting that LEPC is representing the County's interests in this matter. Such affidavit shall be served on the Presiding Officer within 30 days of the date of this Order.
D.
Earth Day Coalition Requestor Earth Day Coalition submitted a one-page letter as its request for hearing listing several concerns related to the pending renewal application.
Among those concerns are the present contamination of the AMS facility, the possible contamination of the sewer system servicing the AMS facility, the lack of emergency planning, and the potential for a major accident at the AMS facility. While the concerns listed by the Coalition appear germane to the subject matter of this proceeding, it has failed to set forth the necessary facts to establish that it has standing to intervene as required by the Commission's regulations.
The Coalition merely states that it is a "non-profit environmental education and advocacy organization located in Cleveland..
[whose) interest in this hearing is not commercial or financial
[but] strictly in public education i
and information and environmental issues."
)
The Coalition fails to allege any injury, concrete, particularized, or otherwise, that may accrue to it as an organization as a result of the license renewal.
The Commission has long held that a mere institutional interest in providing information to the public is insufficient to establish standing in its proceedings.20 The Coalition could have alleged injury to at least one of its members in order to derive standing in its own right. However, the Coalition failed to describe any injury accruing to one of its members, and further failed to provide an affidavit from a member authorizing the organization to represent him or her in the proceeding, which are the two elements necessary for organizational standing on behalf of a member.28 i
1 The Earth Day Coalition has not established standing to participate as a party j
to this proceeding. Its hearing request is therefore denied.
20 Tmamwicar. Jac. (Ex;mrt of 93154 Ennehed Uraruumt CtJ41. 39 NRC !. 5 (1994L 2I See Nurthem states hwcr Co. (Pathfinder Atonut Plano.1.BP-89-30. 30 NRC 311. 314 (19tt9t 201 l
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i IV. ORDER i
Ibr all the foregoing reasons and upon consideration of the entire record in this proceeding, it is, this 13th day of March 1995 ORDERED 1.
The petition for hearing of the Northeast Ohio Regional Sewer District is granted:
- 2. He petition for hearing of the City of Cleveland is granted;
- 3. He petition for hearing of the Cuyahoga County Local Emergency Planning Committee is denied in pan. Upon submission to the Presiding Officer (and service upon the parties) of an affidavit of a Cuyahoga County official attesting that LEPC is representing the County's interests in this matter, LEPC will be allowed to participate in the hearing as the representative of an interested county under and to the extent allowed by the provisions of 10 C.F.R. 12.1211(b). The affidavit must be served on the Presiding Officer within 30 days of the date of this Order; 4.
The petition for hearing of Earth Day Coalition is denied.
In accordance with the provisions of 10 C.F.R. 6 2.1205(n), the denial of the hearing request of Earth Day Coalition and the partial denial of the hearing request of the Cuyahoga County Local Emergency Planning Committee may be I
appealed to the Commission within 10 days after this Order is served.
Marshall E. Miller, Presiding Officer ADMINISTRATIVE JUDGE i
I Daytona Ileach, Florida March 13.1995 I
1 1
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. Cite as 41 NRC 203 (1995)
LBP-95-4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Peter B. Bloch, Chair Dr. Richard F. Cole Frederick J. Shon l
In the Matter of Docket Nos. 55-30662-EA IA-94-007 (ASLBP No. 94-694-05-EA)
(Re: Prohibition of Participation in Licensed Activities)
KENNETH G. PIERCE (Shorewood, Illinois)
March 27,1995 "Ihe Licensing Board vacated a Staff order that had barred the defendant from working as a reactor operator. It held that plant procedures were ambiguous and that a defendant who had made a reasonable interpretation of those procedures should not be found in violation of those procedures. It also held, after reexamining factual evidence in light of its view of procedural ambiguity, that l
there had been no lying to or concealment of facts from the NRC.
PLANT PROCEDURES: ENFORCEMENT; AMBIGUITY When a violation of ambiguous plant procedures is alleged, it is appropriate to receive evidence from plant operators in order to determine how those l
procedures were interpreted by them. Likewise, it is appropriate to interpret the procedures in light of company actions in cases of alleged violations of I
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- the same procedures, as reflected in official records. It also is appropriate to L
examine training given to plant operators in the meaning of the procedures.
It is not appropriate to sustain an enforcement action in which the operator did not act willfully because he reasonably believed he had complied with plant '
procedures.
i ENFORCEMENT: MISREPRESENTATION; FAILURE TO REMEMBER When a person is charged with improperly stating under oath that he had failed to remember facts about a meeting or conversation, it is important to examine precisely what that person was doing at the time and how strong others'
'l memories are before concluding that he had lied.
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ENFORCEMENT: CONSPIRACY TO CONCEAL FACTS A person may not be convicted of a conspiracy to conceal facts from the NRC unless he had a duty to reveal those facts or that he entered into an agreement to conceal facts from the NRC. When a station operator reassures trainees that they may keep a certain matter within the control room, it is not appropriate to hold a reactor operator responsible for having agreed to a continuing conspiracy i
to conceal information just because he remained silent while the reassurance was taking place.
ENFORCEMENT: CONSPIRACY; ILLEGAL ACT I:
Civil conspiracy requires an agreement to perform an illegal act.
APPEARANCES Colleen Woodhead, Esq., Rockville, Maryland, for the Staff of the United States Nuclear Regulatory Commission, complainant.
1 Kenneth G. Pierce, pro se, defendant.
INITIAL DECISION
(
(Vacating Staff Order)
This case imelves the validity of an April 21.1994 Order prohibiting Mr.
i.
Kenneth G. Pierc: (Mr. Pierce) from involvement in NRC-licensed activities for i
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3 years, with an additional 2-year reporting period (Order).8 In support of the Order, the Staff of the United States Nuclear Regulatory Commission (Staff)
' alleges that Mr. Pierce mispositioned a reactor control rod and then:
(1) failed to follow the correct abnormal operating procedure by failing to move the rod to position 00 (fully inserted), failing to measure offgas levels, and failing to document this event in the control room log; and (2) agreed "to not discuss the incident with anyone else" and lied to an investigator about the event.2
(
Based on these allegationc, the Staff prohibited Mr. Pierce from serving as a reactor operator for 3 years and imposed some ancillary provisions.
Mr. Pierce denies the allegations. He states that the Staff incorrectly relies on Dresden Operating Procedure (DOA) 300-12, "Mispositioned Control Rod,"
Revision 2 (DOA). Mr. Pierce and three other Dresden reactor operators testified that other plant procedures were applicable and that he had not violated those in any way. Indeed, he claims he was complying with plant practice and that he had never been trained in DOA 300-12, which the Staff considers applicable.
He also denies having lied about this event or having entered into any agreement concerning keeping this event secret.
1.
POSITIONS CONCERNING TIIE MISPOSITIONED CONTROL ROD A.
Staff Argument The Staff relies on Dresden Operating Abnormal Procedure (DOA) 300-12 ("the DOA"), "Mispositioned Control Rod," Revision 2 (November 1991).
The Staff states that the DOA was adopted pursuant to Dresden Technical Specification 6.2.A.I and Appendix A of Regulatory Guide 1.33, Revision 2 (February 1978).)
The DOA says, in section C, "Immediate Operator Actions," step 2:
if a control rod is found or mosed more than one even notch from its in-sequence position.
then all control rod movernent rnust be discontinued.
I A pubhc evidentiary lwanng was held November 29-30.1994.in Johet. Ilhnois. on January 23.1995, the NRC Staff filed " Proposed rindings of rses and Conclusions of L.aw Concerrung the order Dared Apnl 21.1994. Issued to Kenneth G Pierce"(staff Proposed Findingo Mr Perce filed a letter contaimns a summary of the Evidence on December 30.1994 (Pierce sunwnaryL on February 21.1994. Mr Pierce also fded " Proposed L.irruted Findings
]
of Fact and Conclu> ions of L.aw Concermng the order Daied April 21.1994 Issued to Kenneth G Pierce"(Pierce Proposed Findmgs) 5taff then filed its
- Rebuttal to the Proposed rindings of f1act and Conclunons of law Filed b Kenneth G. Pierce"(staff RebuttaD.
59 red Reg 22.693 (May 2.1994)
I ld at 22.693
)
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In section D,." Subsequent Operator Actions," steps 2.a(1) and 5, require,
- respectively:
if a single control rod is inserted more than one even notch from its in-sequence position and reactor power was greater than 20%, and if the mispositioning was within the last 10 minutes, then the mispositioned control rod must be continuously inserted to position 00.
[the licensed operator must].
compare the cunent off gas radiation level to the off
?
gas radiation level prior to the suspected time of the mispositioning, and to record data in the Unit log book including the location of the mispositioned rod, time of discovery of the mispositioning, actions taken, and any other observation determined to be relevant.d j
'Ihe significance of the reporting requirements may be appreciated by examining Step 6 of the DOA, which requires, " prior to the resumption of routine control rod movements," that:
an upper managenent representative will conduct an evaluation into the cause of the 8
mispositioning and implenent immediate corrective actions >
Staff witness flironori Peterson also testified, at Tr,64, that a plant proce.
i dure, " Unit 2(3), DGP 0344, Revision 17, ' Control Rod Movements'" (the DGP) does not apply to mispositioned control rods.* lie looks to DGP $ E,
" Precautions," at 4 of 14 of the DGP, which states:
1.
, in the event of a mispositioned control rod, time is usually of the essence. In order to recover from a mispositioned control rod, refer to DOA 300-12 Mispositioned Control Rod.
lie testified, at Tr. 63:
And also in this procedure under the precautions it gives a warning, precautions, to the people following these procedure, if you deviate from your planned aspect. go to DOA 300-l 2.
lie also testified, at Tr. 54, that there is a distinct difference between a general operating procedure, such as the DGP, and a procedure governing an abnormal event, such as DOA 30012. lie stated:
Okay, first of all. This, you have to understand. this is [a].. general procedure. In this context this talks about, agam. the QNE is supposed to be their expert associate at any tine there is a sequence, a rod sequence that has to be followed, and that's been approved by hcensed individuals and such. If at the point when they are moving those control rods, 4 14 or 22.69.1-94 8 1d at22.vM
'The DGP is "Fahitat 9." tmund in following Tr. 52.
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r there is something that is unplanned or maybe they have to change st, then you have, the QNE must have the time to review it and approve those changes. But that's in a sense of a l:
general operating procedure not in an abnormal situation. And that clearly states in the rest of the procedural precaution is that gf you have an abnormal situation, le. mispositioned control rod. refer to DOA 300-12. IEmphasis added.)
Staff also relies on DGP 03-04 5 E.3, which states:
- 3.
Control rod movernent has a direct and dramatic effect on core reactivity. LAe all core reactivity changes, it must be perfortred in a conservative manner in strict compliance with written procedures. [ Emphasis added by the Stafff The Staff investigation in this case was extensive. As the Staff Proposed Findings state:
By letter dated November 25,1992. Commonwealth Edison Company (CECO) noti 6ed NRC Region til that it had discovered information about a September 18,1992, mispo-sitioned rod at the Dresden Station, which was not logged or reponed to senior station management, and which suggested that five individuals had knowledge of the event, but -
did not report it. Region Ill appointed an inspection team, who, along with investigators from the Region Ill Office of Invepigations, composed a Task Ibree which conducted an investigation of this matter beginning November 30,1992. The Andings and forty-six doc-i umentary exhibits of the Of6ce of Investigations were compiled in Of Report 3-92-055R issued May 11,1993, (hereinafter termed "OI Report"). The 6ndings of the technical staff were reponed in inspection Report 50-237-249/92033 issued September 9,1993, (hereinafter termed " Inspection Report"). The Inspection Report was sent to the 6ve individuals, and an enforcement conference with transenbed interviews (hereinafter termed "E.C. Interviews")
of each person was held by Region Ill with four of the nye individuals involved.: During the conference with Mr. Pierce, he submitted a written statement with attachments of parts of Dresden procedures. This statement asserted that after he mispositmned a control rod, he followed the directions of the Quah6ed Nuclear Engineer (QNE), who, according to Mr.
j Pierce, had authority to approve mispositioned rods by parts of Dresden procedures DOA I
300-12, DGP 03-04, DAP 07-02 and 07 29.
Subsequently, the Region Ill enforcement board reviewed Mr. Pierce's oral and written explanations, and found that his assenions were not supported by the procedures and his denial of wrongdoing was contradicted by the other statements of the four other persons present dunng the mispositioned rod event Accordingly, after consideranon of the evidence in the aforementioned Inspection Report, O! Report, the E.C. Interviews, and Mr. Pierce's written submittal, the Staff issued orders dated April 21,1994, to three of the Eve individuals involved in the September 1992 event, which restricted their employment in the nuclear industry for three years, with an additional i
two year repot1:ng period, and a Notice of Violation to CECO?
l 7 NRC Staff Proposed Findmgs of Fact and Concluuone of t.aw Concerning the Order Dated Apnl 21,1994, Issued to Kenneth G Pierce, January 23.1995, at 21122.
8 0ne indmdual, Mr. Mdler, ahhough invued to appear, chose not to attend.
'The footnote numbers in the cited text have been changed to be consecuuve with our own numbers.
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)
H.
Mr. Pierce's Argument Mr. Pierce argues that the DOA did not even come into play. He relies on the testimony of four licensed operators - all of whom confirm that it was
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their practice as licensed operators to permit the QNE to approve unplanned deviations from a cor?.rol rod sequence, pursuant to the DGP. The purpose of this procedure, set forth on page 2 of 14, is to provide " general instructions for movement of control rods on Units 2 and 3." This procedure has a section directed toward a licensed operator such as Mr. Pierce. The section is Section G, on page 5 of 14. Following the beginning of the procedure is a large " NOTE" that says, in 2:
A QNE [ Qualified Nuclear EngineerJ may be present at times during control rod movement to act as an advisor to the NSO and Operations Shift Supersisor, to provide technical guidance, j
and approve any unplanned deviationsfront the sequence.
(Emphasis added.) Mr. Pierce argues that this note is unambiguous. It does not contain any limitations on the authority of the QNE to approve unplanned deviations. He further argues that the words of the DGP appear to conflict with the Staff's interpretation of the meaning of a mispositioned rod. In addition, he argues that step 3 in the DOA is to contact a QNE. In Mr. Pierce's opinion this implies that the QNE was not present when the mispositioned rod occurred."
Mr. Pierce also supports his interpretation with two other portions of the DGP. Section E.4 provides:
i Control rod movement without approval from a QNE (Qualified Nuclear Engineer) or explicit procedural guidance may lead to fuel over powering, Technical Specincation violation or core damage. (W-8)[ Emphasis added.)
He argues the procedure is predicated on the assumption that a nuclear operator could rely either on the QNE or on explicit procedural guidance. He advances further support for the controlling role of the QNE in (F.2.:
When performing control rod movements per Control Rod Sequence (DAP 14-14), steps i
may NOT be skipped without approval of a QNE. (W-4).
30 We note that. in addition to the four reactor operators. Mr. Pierce's argunrne is comhorated by Mr. Miller's swors tetunway that the Apnl 10 event discussed below, involved a " fast rod" and not a "rnispositioned rod?
ol Report. Exhibit 40 at 43. He is funher corroborated by a statenwnt of Mr. Tang Wee that "it was aus a nusposinoned rod since QNE suihonzed new instruccons to include this rod. Special instructions authonard it?
of Report, Estubst 20 at 5
" staff f.shibit 12. Pierce Interview, at 59. hnes 17-22.
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r II. EVIDENCE CONCERNING PROCEDURE VIOLATION A.
Staff Inspection Report On September 9,1993, the Staff issued a Special Inspection Team Report, "Dresden Contlol Rod Mispositioning Event, September 18,1992" (SIT Re-port).'2 That report is very important to a full understanding of this case. It describes an important similar incident that occurred on April 10,1992, and it describes the action taken by Commonwealth Edison Company following the alleged mispositioned control rod event. These two sections of the SIT Report helped to persuade us that there was substantial ambiguity in plant procedures concerning mispositioned control rods at the time that Mr. Pierce is accused of having violated them.
. We note that the SIT Report is a competent professional document. Nev-ertheless, we reach a different conclusion than it did concerning whether plant procedures were followed and whether the NSO, Mr. "ierce, exhibited a lack of integrity. Our record contains evidence that the SIT :<eport did not examine.
Because this is a legal proceeding we have heard mors in-depth evidence than was obtained during the Staff investigation. In particular, we have heard live testimony from four reactor operators and we have considered, in detail, Mr.
)
Pierce's defense - that he was following the procedures as he knew them.13 i
1.
The April 10, 1992 incident When Commonweahh Edison investigated an April 10,1992 mispositioned control rod event, it concluded that insufficient corrective action was taken." The failure to take corrective action is consistent with Mr. Pierce's allegation that the custom at the plant was not violated in that event. In particular, Commonwealth Edison showed no concern that DOA 300-12 had not been followed, giving rise to the inference that it was satisfied that the DOA was not called into play in that event.
This point is sufficiently important to cite the entire portion of the SIT Report on this subject:
12 Following Tr. 243. Inspecuon Report Nos. 54237/92033 (DRP), so-249/92033 (DRP)(srf ReporO.
13 Stafr Proposed findmgs si 20118. takes Mr herce's rernarks in Exhibit 12 out of content. Mr. Pierce very clearly stated. at page 39, "I'm sure I did whatever die Nuk.e told me imrnedsately, wtuch I still would do today? He aho has consisternly maintained that if a QNE approves a rod nmement it is no longer considered a nuspoutioned control rod. See staff Exhibit 12 at 40,55.
"Ivnowin,; Tr 43. SIT Report at 9 209
The April 10,1992 event occurred on Unit 2 during a control rod sequence adjustment to increase the FCt. [now controlime)." Control Rod M 4 was being inserted from position 16 to position 14, when the rod " triple-notched" and inserted to position 10. Under the QNE's
[ Qualified Nuclear Engineer's) direction, the NSO [ Nuclear Station Operator) contmued to insert control rods (rod M-12) and then withdrew Control Rod M-4 from position 10 to position 14. Subsequently, the rod sequence configuration was corrected.
The licensee identified that Control Rod M-4 was mispositioned; however, corrective actions descnbed in Deviation Report (DVR) 12-2-92-64 concentrated on the mechanical problem associated with the root cause of the control rod triple-notch. Ahhough the control rod drive hydrauhc (CRDif) dnve water pressure was normal (280 psi over reactor pressure), there was a mechanical problem in the insert speed control valve (valve 123) causir.g drive speed to be too fast. The inspectors concluded the licensee took corrective actions for the mechanical problem; however, the immediate actions and operator response to the mispositioned control rod were not in accordance with approved plant procedures.
7he operators did not take the mitigating actions in accordance with DOA 300-12, " Mis-positioned Control Rod." Control Rod-4 was mispositioned greater than one even notch, and the procedure required subsequent action to insert the affected rod to position 03. The NSO failed to perform the required action and withdrew the rod to position 14. This was an example of an apparent violation of approved procedure (92033-02a/50-237,249 (DRP)).
In addition, the QNE directed the NSO to withdraw the mispositioned rod without SRO
[ Senior Reactor Operatori approval. The SE (Shift Engineer) and/or SCRE [ Station Control Room Engineer) were designated to direct licensed activities as required by DAP 07-01,
" Operations Department Organization." Directing control rod movement without a senior operating hcense was an example of an apparent violation of approval procedures (92033-02h/50-237 tDRP)).
From the Apnl 10 event, the licensee identified the abnormal plant condition (mispositioned control rod), but dud not identsfy the failwe to implement required procedural corrective acrirms. The licensee concentrated on the mechanical problem with the CRD system, and failed to implement corrective actions to assure response to future mispositioned control rods was in accordance with plant procedures. This was an apparent violation of 10 CI'R 50 Appendix B, Cnterion XVI," Corrective Action,"192033-01/50-237,249 tDRP)). [ Emphasis added]
We are particularly concerned about the implications for this proceeding of the last-cited paragraph of the SIT Report. This paragraph appears to us to corroborate Mr. Pierce's argument. The paragraph raises the following question:
Why did Commonwealth Edison overlook the plant procedure problem?
A possibility is that they were grossly negligent or had some other improper motive, More likely, in our opinion, Licensee did not fault its personnel U T10w control hne"(TCl)is shorthand for the funcuon that relates the rate of coolant fW in a reactor core to the power level FCL refers to a hoe on a graph that shoe s this relanonship, which differs when there are changes in the reacovity of the core. Generally, the FCL is decreased by inscrung control rods funher However, a sequence of rod movements imended to increase the FCL could mclude some inscruons of rods at the same une that other rods are besng wnhdrawn.
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because it considered that they were operating pursuant to the DGP and were following procedures. Hence, we infer that they did not see any inconsistency between the DOA and the DGP. Otherwise, they would have felt duty-bound to correct the inconsistency. We conclude, for purposes of this proceeding,'6 that Commonwealth Edison officials did not understand in April 1992, that it was procedurally necessary to implement the DOA under circumstances when a QNE wrote orders concerning "mispositioning" of rods. In the words of Mr.
Ciuffini, Mr. Mosey, and Mr. Pierce, Commonwealth Edison did not think that it entered the DOA when the QNE had approved an unplanned rod movement sequence pursuant to the DGP. Tr. 121, 249, 258, 259-60 (Ciuffini), 274-75 (Mosey) and 314, 352 (Pierce).
2.
Investigation of September 18,1992 Event When Commonwealth Edison concluded its investigation of the September l
]
18, 1992 event, it found that the individuals' actions were " inappropriate."
i However, it did not find that the actions were failures to follow existing plant i
procedures, nor did it find a deliberate failure to follow station procedures or that there was deliberate misconduct of operators in concealing their error."
{
A subsequent event explains further why Commonwealth Edison did not find 1
deliberate misconduct. On December 10.1992, corrective actions promised by Commonwealth Edison were to " develop a clear interface between the qualified nuclear engineers and licensed operators" and to " evaluate the nuclear engineer
)
training program." SIT Report at 13 13.13. Apparently, until December 10, 1992, Commonwealth Edison did not feel that a clear interface existed or that t
its training program for nuclear engineers had been adequately evaluated.
One test of the clarity of procedures is whether there has been formal training j
that spells out their meaning. The Staff gave no testimony about how Mr. Pierce was trained. Here is how Mr. Pierce describes the training he received about the April event:
Yes. I received traming on the Apnl event prior to Septernber 18th. The trainmg cons'sted i
of Mr. Mosey had a bad rod. The training contamed no nention of CECO's dissatisfaction with this failure to follow DOA 300-12 while a QNE was present.88 3'We mne that Cumnwnweakh f.dison is not a party to this proceedmg and has not presented arguments. Ttus fimhng is wnh respect to Mr Pierce and mz to Commonweshh f4ison
" Sir Report at I! 13 to H' Tr II. We note that Mr Pierce is mn a lawyer. WS statenent was made m opemng remarks and was l
not techmeally sworn. It mas. however, made to a governnrns agency and is subject to penahies for lying to governitent agencies There is no contrary evidence in the record j
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- De record corroborates Mr. Pierce's point of view that he was following existing q
procedures as best he knew how.
B. ITestimony of Witnesses f..
1.
Relemnce '
De interpretation of ambiguous texts is a common legal problem. Providing that a text, such as an agency rule, is ambiguous, then it is proper to determine how those using the rule were interpreting it. Er example, in contract law, it -
is said that The rule that the surrounding circumstances should be considered in the construct.no t' a -
contract applies with particular force where the language considered alone is suscen th to more than one meaning.8' t
.It also is said that in the determination of the neaning of an indefinite or ambiguous contract, the construction' placed upon the contract by the panies themselves is to be considered by the court.20 The' general principle that a court is interested in how people have acted in response to partictilar language also is found in administrative law. In
' interpreting rules, it is said:
Courts J ve extra authoritative weight to interpretative rules and practices which embody i
g.
interpretations made contemporaneously with the enactrnent of the statute, or which have been consistently followed over a long period,26 In this case, we have found that' the relationship between the' DGP and the DOA is ambiguous. In addition, practice at the Dresden plant'seems to have.
been inconsistent, as judged by the SIT Report's conclusions about two different i
mispositioned control rod events. Under these circumstances, it is appropriate i
to hear how licensed operators have interpreted the overall scheme of local plant l
procedures. Especially when procedures are complex, it is helpful to hear how j
- they are interpreted by the very people who use the procedures day to day. ney
^
are the ones to whom the procedures are directed and whose work is affected.
What they say about the meaning of those procedures, particularly when several
- 17A Am. Jur. 2d 374 6 356.
- 14 at 375 9 357.
21 Kenneth Culp Davis, Administrariw low Treatise at f,5 5 7.14 (2d ed 1979):
As early as 1827, interprenng a North Camhna statute of 1782 the Suptene Court declared "In the construcnon of a doubtful and arnbiguous law, the cotwempuraneous construcuan of those who were called upon to act under the law, and were appointed to carry us proviuons into effect. is enutled to very grem respect '* lawardr* lessee r Darby, 25 U.S. (12 Wheat.) 206, 210 (1827).
$re alw Kenneth Culp Davis, Admintstrutrve law Treatise at 324 I 5.06 212
.i
[
of them have no direct stake in the outcome of this case, is entitled to very great weight.
2.
The Testimony
?
Testimony in support of Mr. Pierce was given by Mr. Barry Jaicomo (Jaicomo t
Test.),22 Mr. Lou Ciuffmi (Ciuffini Test.),33 and Mr. Tom Mosey (Mosey Test.).24 All thr. e are Licensed Reactor Operators (NSOs): Mr. Jaicomo since May 23, 1974.25 Mr. Ciuffini since July 25,1983,26 and Mr. Mosey since 1990.27 All three stated that Mr. Pierce did nothing wrong and that they would have done the same as he did.28 They said that it was customary at the plant for a QNE to routinely direct control rod movements? The QNE would get " carte 1
blanche on rod movements" from the SRO? They also stated that prior to the
[
September incident they could not recall any training or guidance to follow DOA i
300-12 while a QNE is directing rod control movements.38 They each stated t
that Mr. Pierce knew procedures verbatim and was a stickler for procedures.32 Mr. Jaicomo said that Mr. Pierce is an outstanding operator? All three are so supportive of Mr. Pierce that they look to ulterior motives to explain his dismissal?
These reactor operators also testified that important changes were made con-cerning procedures and training in mispositioned control rod events subsequent to September 1992? When training on DOA 300-12 was integrated into plant simulator training, many months after the September incident, the initial simu-lator run showed that three operators followed DOA 300-12 correctly and that four others made a variety of errors. See also Tr. 70-72.
Subsequently they decided that training in DOA 300-12 would be given every 2 years? Mr. Ciuffini testified that the development of training on DOA 300-12 i
22 Following Tr 2)l6.
24cilowing Tr 115 24 following Tr. 268.
25 Jancone Test at I T12-3, i
2*Oufbru Test at i 192 3.
{
27 Musey Test. at i 112 3.
2s faicono Test at 3117. 8, Oufhn Test at 2117, R; and Mosey Test, at 2117. 8.
l 8 Jascone Test. at i 14h. Gufhm Test ai 114h; and Moscy Test. at i 145.
{
- Jaicone Test. at i 14d, Ouf6m Test. at i 14d, and Mosey Test. at i 14d Jaisons Test at i 14a: Qufhm Test. ai i 14a; and Mowy Test, at I % -Thus:muyis emT2xs:ad tv ---
" ~ *
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{
31 our analysis, l>elow at p. 214. of deviation repuns on nuspositioned control rod incidents.
32 Jacone Test at 3 t19.10.14. Gufhni Test at 2 tt9. ICL13. and Money Test. at311912.14.
U Jaiccme Test at 4115 M Qufhm Test. as41111 13. and at 5115; Jacune Test. ai 3 tt 11 14 ar.d Money Test. at 3115.
U Akhough it is standard legal doctnne that changes made Iy a defendant calmot he introduced into evulence to prove habihty pnar to the changes. the evidence here is not hemg mtraduced to show wrongdomg by comnkmotalth 14ison hs use as to esculpate an mdavidual from disciphne for what he is supposed to have known pnor to the changes "Jaicomo Tesi. at 215a 213 l
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m went through "several iterations" because of its complexity.27 11 is now clear to everyone that individual control rod movements are documented.38 It also is now clear that the SRO approves all rod movements."
C.
Previous Deviation Reports
)
Staff Exhibit 14 contains eight reports on previous mispositioned control rod events. First, we find that the existence of eight reported events does not provide
]
any evidence concerning the frequency with which unreported mispositioned
{
control rod events may also have occurred.* There is no basis in our record for estimating the percentage of reporting. We accept the testimony of Mr. Ciuffini that there was no perceived need to report Mr. Pierce's alleged mispositioned j
control rod because it had been approved by the QNE and because there was little safety significance of this particular rod movement in a coast-down situation.d' 1
Second, we have reviewed these events, which we summarize by their DVR number (last two digits only), in the same sequence provided in the Staff Exhibit:
Was QNE Present Was DOA 300-12 DVR No.
at first?
Entered?
39 Yes No 97 Immediately No notified 29 No (QNE notified)
Not mentioned by name. No rod was moved to 00. NSO i
moves rod before notifying QNE. Off Gas indications checked.
33 No (QNE notified)
Yes, but it may have been misapplied since no rod was moved to 00 and no Off Gas test results are mentioned.
i 179 No (QNE notified)
No
-l 23 No Yes 64 Don't Know No 71 No Yes. but rod inserted to 00 only after disctissions with QNE 37 Cmffim Test. at i 15a.
"Jaicomo lent at 215e.
- Jaicomo ten as 215c: Ciuffim Test at 215h. d. and Mosey Test. at 215c.
"We reject Staff Pmpowd I'mdmgs at 25 1135, 36.
j d'Tr 258 214 i
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Since DOA 300-12 was not entered in four of the eight "rnispositioned control rod" events, we conclude that the practice at Dresden concerning DOA 300-12 was that it was as often breached as honored. Even when the procedure was I
" entered," it appears that its provisior.s were not well understood.
I D.
Training j'
On November 14, 1994, we ordered the Staff to file a Special Brief setting forth its view'of:
i the effect of the "special instruction for rod rnovement," issued by a Qualified Nuclear Engineer (QNE), on the obhgations of Mr. Pierce" The Special Brief shall discuss the I
facts of this case in relationship to the appheable regulations, technical specifications and procedures. It aise shalldiscuss the training given to Mr. Pierce and the StafI's evaluation of the efficacy of that traming in the situation in which Mr. Pierce found himself. See 01 l
Report. Exhthit 7, page 4 (last sentence of 16).
]
(Emphasis added.) The Staff filed a " Response to Licensing Board's Memoran-i dum and Order of November 14, 1994." In that document the Staff stated, at 2, that its witnesses' written testimony, in fmal preparation now, will address these two [ Board] questions. The questions are addressed by the two Staff witnesses who are presently and forrrrrly in tie operator licensing section in Region Ill(Mr. Jordan and Mr. Peterson, respectively). These witnesses are sharoughly knowledgeable about the Commsssion's regularwns governmg operator licensing and training. They will be able to ansner the Bwd's questions on these maners at the hearing. scheduled to begin on November 29,1994, if the written testimony us not already answered the questions to the Board's satisfaction. [ Emphasis added.]
When the time for the hearing arrived, we asked Mr. Peterson about what relevant training Mr. Pierce had received. Surprisingly, Mr, Peterson did not know whether Mr. Pierce had received any relevant training. He testified:
i ADMINISTRATIVE JUDGE BLOCil; Do you know whether there was any training in the relationship between the reactor operator and the quahfied nuclear engineer?
WITNESS PETERSON: Personally, no. But there's certain areas where they would have to review the procedures.
l ADMINISTRATIVE JUDGE BLOCil: I'm sorry.
I want to know if yor know that there was training in the relationship between the QNE and the operator of the t.ec WITNESS PETERSON: No. I can't say.
U We ame that the "Repon of Invemgarna Dresden Nuclear Power Plant." No.v92 055R (May 1,1993) states.
at 21, evidence ucm 08 "PII.RCE umknstood that the Mispoutioned Control Rod Procedure only apphes when a nuclear enpneer h smi present Exhibit 41 at $8. (A61.)
215 1
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' ADMtNISTRATIVE JUDGE BLOCil. And do you know what the procedures provided about the relationship between the QNE and the OR?
. WITNESS PETERSON: Excuse me? What was that agam?
ADMINISTRATIVE JUDGE BLOCH: Was there anything in the procedures of the plant that covered the appropriate relationship between the QNE and the operator?
WITNESS PETERSON: I believe there are set procedures.
ADMINISTRATIVE JUDGE BLOCH: Okay.
WITNESS PETERSON: I can't remenber exactly what details they were.
ADMINISTRATIVE JUDGE BLOCH: But could you show us now what the relation-ship is between those procedures and the matter that we're being asked to consider?
WITNESS PETERSON: I can't do it personally, specifically you know, but I can do it more generally.
ADMINISTRATIVE JUDGE BLOCH: But that's what we need. We need it specifi-cally. We need to know what the relationship is in the procedures between the QNE and the operator, because that's the principal defense before us.
WITNESS PETERSON: Well. particularly the QNE is a person who would have the knowledge aspect of the rod prograrn. They're the individuals who will set up the rod i
sequencing for starting up the reactor, and also controllmg the rod configuration as the plant i
is operating. They are supposed to be the experts associated with the flux distnbuuon and 1
where the rods should be positioned. And they have specific procedures on that.
Personally, in an aspect of regulations, we do not examine QNE because they are not hcensed by the NRC.O i
Based on this testimony, we conclude that Mr. Pierce never received any i
relevant training concerning how he should relate to a QNE when a control rod
)
is found or moved more than one even notch from its in-sequence position.
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E.
Custom Is Not an Excuse for a Violation We want to be very clear about our conclusion in this case, We are examining i
a case in which the application of two plant procedures, viewed side by side, is ambiguous. We have called those procedures the DGP and the DOA. In particular, there is a note in the DGP that suppotts a reasonable belief that the QNE - if present during an unintended rod movement - may " approve any unplanned deviationsfrom the sequence." (Emphasis added.) This supports Mr.
Pierce's view that an unplanned deviation that is approved by a QNE is not a mispositioned control rod.
We note the Staff's argument that the Note does not apply when there is a i
"Tr 30 32.
l 216 i
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mispositioned control rod. However, that reading would narrow the italicized language, which apparently would never apply. That narrow interpretation of the DGP does not persuade us. We conclude that the terms of the DOA and the
' DGP are in conflict.
Viewed as a whole, plant procedures concerning mispositioned control rods were ambiguous at the time of the September event. Under that circumstance, we consider it appropriate to examine the practice, at the time, of plant operators to see how they understood and executed those procedures. In this case, testimony by plant operators persuades us that Mr. Pierce's interpretation of the procedures is a reasonable one and that it would be unfair to discipline him for adopting a reasonab!c view of the procedures We are not persuaded that Mr. Pierce's nervousness after this event was any indication that he failed to comply with procedures." His nervousness may have occurred because the Assistant Superintendent of Operations at Dresden had informed Mr. Pierce that disciplinary action would be taken for any mispositioned rod.45 He may also have been upset because of the work
" atmosphere"d* or because he felt that if he didn't do "everything just right" Dresden might be shut down. He also may have been concerned because his movement of control rod H1 was the only one he had ever unintentionally moved.48 We note that the evidence about operator practice is corroborated by two
+
other persuasive pieces of evidence. First, we have discussed the SIT Report's conclusions that Commonwealth Edison investigated both the April precursor event and the September event and that in neither case did it find a violation of procedures. Second, we analyzed deviation reports for mispositioned control.
rod events, and we found that it was common for operators not to follow the DOA, which is the basis for the Staff's enforcement action.
We are convinced that, in light of ambiguous procedures and a lack of relevant training, Mr. Pierce should not be penalized for his failure to follow the DOA during the September event. Additionally, he is not to be faulted for a failure to document the alleged mispositioned control rod incident because Staff has not provided any persuasive authority that he was unreasonable in his belief that the DOA never was entered and that,' therefore, he was not required to report the event that had occurred. In Mr. Pierce's opinion, this event was " cured" by the action of the QNE and did not require a report.
l We note that the ambiguous plant procedures were corrected subsequently.
i
" Staff Proposed Fmdmgs at 44-411121 45 Jordan Test se 7. following Tr 26 See alw Scaff Exhiba 12, herce interview, as 53 hne 4 to 54 kne 14.
" staff Exhibit 12. herce Imerwew. at 62 bnes 120.
'714 at 63, hnes 13 23 48 1d at 70, hnes 2-10.
l 217 l
It is helpful that all control rod movements be documented so that a reviewable record is created. However, we do not consider Mr. Pierce's nonreporting to be a breach of unambiguous procedures at the time it occurred. We do not find him culpable for failure to follow unclear rules.
III. EVIDENCE CONCERNING CONCEALMENT OR LYING i
i Even though we already have concluded that Mr. Pierce did not commit a violation by failing to follow the DOA, we still must analyze the charge that he lied during the investigation. We do not, however, need to consider further whether he " agreed" to keep the alleged mispositioned control rod event secret.
Since we already have ruled that there was no clear and unambiguous procedural requirement to report the "mispositioned control rod" that was approved by the QNE, it was not a violation to agree with others not to report it." So we need not determine whether or not such an agreement actually took place. It is settled law that a person cannot be responsible for a conspiracy to commit an act that is leFal."
We do not decide whether the Nuclear Regulatory Commission could disci-pline a reactor operator for agreeing to conceal information under the mistaken
)
belief that he was procedurally required to report that information. That propo-i sition is not relevant to this case because we have not been persuaded that Mr.
Pierce had an obligation to make such a report or believed that he was required to make such a report. Likewise, we do not have to decide whether it is ille-i "our review of the evidence does not persuade us that Mr. Pierce agreed with others to do anythsay amproper.
Tir preponderance of tir endence suppvis our conclusion that Mr. Tang Wee stated that the event did not have to be discussed further. At that pomt. Mr. Pierce may or may not have focused on what was said, as he was attending to the matrumems He remained silent. ensher because he had noi heard or because he agreed with what Mr Tang Wee and.
"Smne v Willmms. 970 F 2d IN3. cert demed.113 5. Ct. 2331.124 L Ed. 2d 243 (2d Cir.1992) (Under Alabane law, a cause of actwn for conspamc3 arsses not from conspiracy stwlf butfrom wrong alleged to be the r,hject of the consperao. The alleganon of fraudulcat suppression of a matenal face requires that there be a duty 10 disclose that fact because of special circumstances found in the facts of a case); Rohbmt v Clarke. 946 F.2d 1331 (Itth Car.1991)(pnson officials Jed not commit illegal act by dechning to reveal idenunes of pnsuners tesimg posmve for human immunodeficiency strus (HIV). cause of AIDS ( Acquired Immune Deficiency Syndrome) and.
thus, officials did not comnui an actmnable conspracy); Colorado Tarpairrs (1aion. lac. v Romer. 750 F. Supp.
IMl. appeal dumused %3 F 2d 1394, cert demed I13 S. Ct.1360.122 L LJ 2d 739 (D. Colo.1990)(Cmzens chas had sponsored cauwn mmated anendnrnt to State Consututmn could not nuuntain common-law conspiracy claim agamst goverms who had spoken out agamst nuuanve as gmenur's rforts to defear amendment were not unlanful and as atizens failed to present any endence that governor had used unlawful means to accomplish that goalh Khu Conuructum and Enemerrmg. Inc v Imernatumal Fndeltts insurance Co.149 T. sugg 753, af'd.
961 F.2d 213 (w D I a.19%)6 fnr actmnable element an a civil conspiracy claim under touniana law is not the conspracy itself, but rasher the tort that the consprators agreed to perpetrate and wluch they actua!!y comnutted, nn whole or a put. however, io recover. plamrug must be able to prove that an agreement entsted bernen the accused defendants to commit the ellegal or tanmus act that resuhed in plamuff *s mjury); and Amencan Computer l
Trust leasma v Jack FarrellImplement Co, 763 F. supp. I47L order afd and remanded. 967 Y.2d 1208 cert.
1 demed. Barrboom internarumal. Inc v Amerwan Computer Trust iraung. Ii3 5 C14I4.12i L LA 338 (113 sC 414.1211. Ed. 2d 338)(Mere custence of combmation of persons acung m concert is insufficient to estabksh civil conspracy if there is no underlymg wrong. there can be no civil conspracy).
l 218 l
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. gal to agree to hide information from the Nuclear Regulatory Commission, as we interpret Mr. Tang Wee to have suggested that it was not necessary to file a report about the alleged mispositioned rod, and we do not conclude that he was suggesting - in the broken and imperfect English that he uses - that the trainees and others agree to an oath of silence."
The remaining issue is whether Mr. Pierce lied to investigators concerning the mispositioned control rod event or its aftermath.
A.
Discussion of Allegations Staff proposed findings at pp. 53-55 are the bases for its allegation that Mr.
Pierce did not provide accurate information to the NRC. In this section of our opinion, we set forth each proposed finding, discuss that finding in light of Mr.
Pierce's re:ponse, and then re:th conclusions with respect to those findings.
1.
Staff Find ng 136: When asked ten times by the NRC Task Ibrce about the discus-sion/ meet.ng/ agreement of Messrs. Miller, Marotto. Piccard. Tang Wee and Pierce. Mr.
Pierce denied all knowledge of the discussion, even when informed that the other four persons all stated he was present at the discussion. Staff Ex.12. pp. 42. 45-49. 81-82.
His Staff finding relates to a closed investigative interview conducted with Mr. Kenneth G. Pierce, Jr., at the LaSalle County Courthouse on December 30, beginning at 10:20 a.m. He Staff was represented by Richard T. Anderson and Joseph M. Ulie, investigators, and Hironori Peterson, Reactor Engineering Operator Licensing Examiner.
Mr. Pierce denied any memory that Mr. Tang Wee had told him that "anything that had to do with H-1, was not to leave the control room." On page 42 of the transcript of that interview, the following questions and answers are found:
Q Do you remember Mr. Tang Wee conung down and having a discussion with the two tnunees at all?
A No.
Q Okay. There was no discussion with them that you can remcmber?
)
A Not that I remember.
1 Q Was there any discussion by Mr. Tang Wee at she fac-pcmel board. where you would have been stationed, about "Mr. Miller calming down. Mr. Miller getting yourse'..'
under control. Mr. Miller. let's follow and continue on with the rod movement. We can get this under control."
l H See p. 223. below 219 i
i Nd i
k Do you remember anything ide that being said in your presence within the first few minutes at thepvepanellunard?
A No.
?
Q Do you temember Mr. Tang Wee commg down to the five-panel board at all?
i A No.
Q Okay.
-A Like I say. it's three a a half months ago, now. He may have; I don't know, i
We have studied this section of the transcript and we have reviewed related transcript sections. In those pages,' Mr. Pierce was repeatedly confronted by Mr. Anderson with statements indicating that there was testimony from four individuals that there was a meeting (Tr. 48) and Mr. Pierce kept denying any memory of that meeting.
l It is important to note that while Mr. Pierce denied attending a meeting behind the five panel board, he did not deny that there was any meeting. He stated there had been a discussion with the other individuals about the mispositioned rod at Tang Wee's desk. Anderson Testimony at 5. following Tr.135.
The Staff finding needs modification in one respect. Mr. Pierce did not " deny
.)
all knowledge." He said he did not remember.
l 2.
Staff Fmding 137; At heanng. Staff witness. Mr. Richard Anderson, chiefinvestigator
(
for the Region til Ofhce of Investigations (01) which participated m the investigation of the nuspositioned rod event, stated that he and a colleague on the inveuigation team collected the exhibits attached to 01 Report No. 3-92-055R, and that he wrote the summary report. Testimony of Richard T. Anderson concerning the Order dated L
Apnl 21,1994 issued to Kenneth G. Pierce, ff. Tr.135. pp. l.452
'Ihis finding is correct. We note that in the cited statement of Mr. Anderson, i
he stated that the interview of Mr. Pierce on December 30,1992, occurred about 27 days after the other interviews were completed. We conclude that there is an inadequate basis for us to determine that Mr. Pierce lied when he said he did not remember. We note, as we discuss below, that others remembered either a discussion or a meeting and were not completely consistent about the contents of i
these events. The additional time that passed before Mr. Pierce was questioned lends added difficulty to a determination that he may have willfully tied when he said he did not remember.
3.
Mr. Anderson explained that the reasons for his conclusion that Mr. Pierce deliberately i
provided inaccurate informahon to the NRC Task Ibrce were: the tesumony of Messrs.
f 52 Mr Richard T. Aniterson, an invesugaior a the Repon Ill office of Invest 3gations. holds a B.S m Accounung and has 25 years expenence m invesngatory posmons. 4 of which have been with the Comnussion-1 220 1
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nccard, Miller. Marotto, and Tang Wee that there was a meeting or discussion about the j-mispositioned rod which took place behind the control panel and that Mr. Pierce ws:
present; Mr. Mdler's testimony that Mr. Pierce rephed affirmatively to a statement by Mr.
Tang Wee that information about the mispositioned rod was not to leave the control room; Mr. Pierce's statement to Ceco that he might have heard someone give advice about l
Leep'ng the incident within the control room; Mr. Pierce's statement that he remembered saying that the day's rod movements were a nightmare, a comment that Mr. Piccard heard Mr. Pierce say behind the panel; Mr. Pierce's repeated denial of any memory of the agreement of the hve persons when repeatedly questioned by the investigation team; and Mr. Pkrce's evasion of a direct answer to the intervi-wers' questions, attempting to focus attention on denial of a formal " meeting." Id.. pp '
We have reviewed this finding and have decided that we must examine the issue for ourselves. First, we are aware that Mr. Anderson's judgment about l
misrepresentation was formed in relationship to what we now conclude was an l
enoneous belief that Mr. Pierce had violated procedures, including failure to i
file a required report. Second, we give little credence to unsigned statements l
. and to investigatory notes prepared by people who have not appeared before us for cross-examination. We place greater weight on signed or sworn statements.
Third, we examined the testimony of the different witnesses to see whether they agreed or disagreed with one another and with Mr. Pierce concerning particular j
events that occurred after the alleged mispositioned rod incident. We conclude that there is substantial corroboration for Mr. Pierce's testimony and that his failure to temember a meeting or conversation is credible.
Ihr us to find that there has been a misrepresentation, we have to look at precisely what questions were asked and what answers were given by each witness. It is important to examine any inconsistencies that may exist among the stories and to attempt to understand the perspective that each witness brought to the investigative interviews.
We did, in fact, attempt to have the Staff prepare just this kind of analysis i
for us. However, Staff apparently did not fully understand what we wanted, so it presented a Table of Statements Regarding the Agreement to Keep the Mispositioned Rod Secret from Dresden Management. Staff Findings at 4-16.
We note that Staff did not present any live testimony concerning the al-leged meeting or discussion. Instead, Staff sets forth a variety of statements, including unsigned statements and interview notes. We disregard these unsigned statements and notes as insufficiently reliable to support a conclusion that a mis-representation had occurred. (The notes are, however, Fenerally consistent with the sworn or signed e.tements in our record.)
Relying, then, on sworn or signed statements, we find that there are substantial differences among witnesses. We also find that the witnesses often were responding to leading questions rather than to general questions that elicited their unaided memories.
221 i
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How, then, did the witnesses say that the alleged meeting occurred? Mr.
Piccard stated, at Tr. 50-51 of his NRC Task Force Interview, that before the meeting started, Mr. Pierce was way back in a back corner of the control room.
He began to state what Mr. Pierce was doing back there, but his answer was cut off by a further question.
John Marotto, on the other hand, signed a statement that indicated that he had no recollection of Mr. Pierce being "way back there" before the meeting started. Staff Findings at 6-7. He stated that " George, Sean, and myself (and-
/ lhink Ken /Mr. Piercel also) [ emphasis added] found a spot somewhat away from everyone else in the control room (we were behind the panels)...."
So, Mr. Marotto, who stated that Mr. Tang Wee later told everyone to calm down, did not unequivocally state that Mr. Pierce was present when that event occurred.
Later, Mr. Marotto was questioned by the NRC Task Ibrce. Staff Findings at 8. The Task Force apparently assumed that Mr. Pierce was at the meeting
- and did not initially ask Mr. Marotto whether or not Mr. Pierce was at the meeting, even though he had hedged about that earlier. The Task Force asked Mr. Marotto if Mr. Pierce made any comments about agreeing with a statement Mr. Tang Wee allegedly made. Mr. Marotto said:
i nm sure Ken probab$ r did agree with him. I don't knen exactly nhat Ken said. Idon't recall Ken saymg a uh >le lot at that conversanon.
(Emphasis added.) Even though Mr. Marotto later said that Mr. Pierce was present in the meeting, the vagueness of his memories does not lead us to conclude that Mr. Pierce lied when he stated he had no memory of this event.
He may well have been nearby and not listening intently.
Subsequently, at his enforcement conference interview, Mr. Marotto stated:
I remember going back into the panels, to the back panels. We went back there to look at the instrumentation and some of the controls back there to check some things and while we were back there, it was all five of us were back there. I behevc, and he.
[ Emphasis added1 Staff Findings at 8. We note that, in this testimony, Mr. Marotto finally explained how the " meeting" occuried. This version is entirely consistent with Mr. Pierce's statement that he did not remember a meeting but that all of them may have been back behind the panels doing something. Investigative Interview of Kenneth G.
Pierce, Jr., December 30,199', at 49.
i Mr. Sean Miller signed a handwtinan statement that Mr. Pierce met with him behind tre back panels on Unit 2. Staft Findings at 9. However, at his NRC Task Ibrce interview, he stated that at first he did not think that Mr. Pierce was present "back there." Staff Findings at 11. Then Mr. Tang Wee and Mr. Pierce 222
came back. (Note that this is different from Mr. Piccard's statement that Mr.
Pierce was back there first.) Id.
Mr. David Tang Wee's testimony also casts doubt on whether there was "a l
meeting." He said, at his NRC Task Ibree Interview, Staff Findings at 12:
I walked in on them..
. I so happened to walk into Shawn bricl[,1 and his two tramees I
and Ken were back there.
1 We note that they were "back there" but Mr. Tang Wee says nothing about Mr.
Pierce being at "a meeting" or "a discussion." Indeed, Mr. Tang Wee discusses j
this incident as if his principal discussion was with the QNE and his assistants and his principal purpose was to calm them down and reassure them. Mr. Tang Wee states that " Ken was doing something on the panel themselves. I am not sure." Staff Findings at 13. Later, in his Enforcement Conference Interview, Mr. Tang Wee said:
the NSD [Mr. Pierce] was doing his work as far as I remember. I remember him down on j
his knees stamping the chart. This is in the back panel.
Staff Findings at 13. This testimony helps to explain why Mr. Pierce would not remember a meeting 83 We conclude that: (1) he was back there doing his job; (2) he did not place his full attention on what was going on with the others; and (3) 3 months later he honestly did not remember any meeting or discussion behind the panels, 1
4.
Staff Fmdmg 139: Mr. Pierce stated that if words concerning keeping the trusposi-tioned rod in the control room had been said in his presence, he would remember it and immediately question it and alert higher authorities; he operated by the rules as j
he knew them to the best of his abihty; he has no recollection of any such statement ano doesn't beheve it was made in his presence; he rewmbered Mr. Tang Wee said they were lucky to have special instructions and ; nuclear engineer; Mr. Tang Wee meant they were lucky not to go through DOA 30J-12 because it would require a lot of meetings which would have been fruitless. because it wasn't something that could be prevented from happening agam, whereas they knew the current atmosphere regarding l
83 We note that Mr. Tang Wee did not iesufy and that we did not have an opponutury to observe him or assess his denranor. Nevertheless, we have weighed his tesnmony. If, instead. we considered tus tesumony to oc inadnussable. then we would have to reach the sane result because his tesumony is part of tir basis offered for the cane agamst Mr. hence.
We hase not reached the quesuon of whether or not Mr. herce entered into an agreement about whether to keep things quiet. That quesnon seems remote since we are not even sure wirttier Mr. herce participated in "tle nreung " h seems most hkely that he overheard Mr. Tang Wee assemng that an operator could follow the directions of a QNE. Whatever he said, he may have concurred with Mr. Tang Wee that it was unnecessary to i
go any Grthea with an incident in which a QNE was present. issuing directions. Most hkely he overheard Mr.
Tang Wee snakmg these remarks and - being busy with the instruirents - enter said nothmg or mumbled some kmd of verbal agreement smcc his attention was ehewhere, we hehe e that he did not remember making an agreenwn:
223
control rod mispositionings; he thougtw he was going to get a day off without pay; he renembers saying " Damn right" but thinks it referred to cornpletion of lengthy control rod movement. Tr. 315-19.
We accept all of this testimony as truthful. Mr. Pierce is an even-minded, thoughtful witness and has represented himself well in these proceedings. We believe him. If he had perceived that Mr. Tang Wee was suggesting something improper, we believe that he would have remembered that and have testified to it. However, all Mr. Tang Wee was doing was reassuring some trainees about the proper interpretation of an event. ' At the time, Mr. Pierce agreed with the explanation, so he had little reason to remember this discussion. We note that after reflecting on Mr. Pierce's reasons for agreeing with Mr. Tang Wee's reassurances, we have concluded that the procedural interpretation shared by Mr. Tang Wee and Mr. Pierce was reasonable.
We find that Mr. Pierce reasons well, showing an understanding of complex regulatory matters and responding with patience even under highly trying circumstances. In our proceeding, he has asserted what he believed to be the truth, even when NRC Staff witnesses were strongly disagreeing with him.
B.
Conclusion We find the Staff's case unconvincing. By a preponderance of the evidence, I
we find that Mr. Pierce was telling the truth in his testimony and in his statements to NRC officials. We believe that he did not remember being part of a " meeting" or " discussion" behind the panel. Those who claimed to remember a meeting disagree about many of its details. It seems likely that Mr. Pierce was in the vicinity of a discussion that took place behind the control panels. Most likely he was attending to the instruments and noticed what was happening only at the periphery of his consciousness.
We are not sure how it was that the Staff reached a contrary conclusion in this case it appears that they began with the assumption that the mispositioned rod had to be reported and that it was illegal to agree not to report it. From -
that premise, they reached a conclusion that Mr. Pierce could not possibly have failed to remember such a " striking" event as a meeting where such an agreement occurred. Then they overlooked the need to examine cach piece of testimony in detail. They never seem to have analyzed precisely what each person said about what happened at the conference or to have considered the significance of different people having different memories of the events. They also seem to have overlooked the possibility that Mr. Pierce did not give full attention to what was happening around him when he was behind the control panel looking at insttaments.
J 224
IV. OVERALL CONCLUSION We conclude, for reasons stated above, that Mr. Kenneth Pierce did not knowingly violate any plant procedures. The procedures were complex and contained ambiguities. His interpretation of plant procedures at the time of this event was a reasonable interpretation of the words of the procedures and was consistent with plant practice.
By a preponderance of the evidence, we also conclude that Mr. Pierce answered honestly and completely in the enforcement process. The charge of misrepresentation was unfounded.
V.
ORDER For all the foregoing reasons and upon consideration of the entire record in this matter, it is, this 27th day of March 1995, ORDERED, that:
1.
Mr. Kenneth Pierce is exonerated of all charges against him and the enforcement order issued to him on April 21,1994, is vacated.
2.
This is a final initial decision and shall become the final action of the Commission forty (40) days after its issuance unless any party petitions for Commission review in accordance with 10 C.F.R. 5 2.786 or the Commission takes review sua sponte.
THE ATOMIC SAFETY AND LICENSING BOARD Dr. Richard F. Cole ADMINISTRATIVE JUDGE j
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Frederick J. Shon ADMINISTRATIVE JUDGE j
Peter B. Bloch, Chair ADMINISTRATIVE JUDGE Rockville, Maryland l
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1 Directors' Decisions Under 10 CFR 2.206 l
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.___.-,-,-1--..,
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Cite as 41 NRC 227 (1995).
DD-95-5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR MATERIAL SAFETY AND SAFEGUARDS Robert M. Bernero, Director in the Matter of Docket No. 030-01786 (License No.19-0029610)
NATIONAL INSTITUTES OF HEALTH March 5,1995 The Director of the Office of Nuclear Material Safety and Safeguards granted in part, was unable to grant in part, and determined that a petition dated De-cember 2,' 1993, and submitted by the North Bethesda Congress of Citizen's Associations (Petitioner), was mooted in part. The petition requested that the Nuclear Regulatory Commission (NRC) take action with regard to the National Institutes of Health (NIH), specifically that the NRC: (1) suspend License Con-dition 27 (formerly License Condition 24) of the NIH Materials License No.
19-00296-10 (License), which authorizes NIH to dispose of licensed materials by incineration, pending resolution of two regulatory issues -(a) no environ-mental report or environmental assessment has been completed regarding the incineration of radioactive waste on NIH's Bethesda campus, and (b) there may be less than adequate monitoring to ensure that radioactive effluents are within regulatory limits; (2) provide copies of the NRC environmental assessments and/or safety evaluations that provide the bases for (a) an exception from 10 C.F.R.120.303(d) limits'regarding radioactive materials discharges into sani-tary sewer systems (License Condition 21); and (b) approval of the construction and operation of a low-level waste storage facility at NIH's Poolesville cam-pus (License Condition 28); and (3) forward a copy of future correspondence between NRC and NIH regarding these matters to the Petitioner. The Director determined that because NIH permanently ceased operation of the three incin-erators and amended the license to delete License Condition 27 the request to suspend License Condition 27 was moot. Because the NRC was not required to conduct environmental assessments in connection with the NIH applications for authority to incinerate radioactive waste and for authority to discharge radioac-227
r tive materials into sanitmy sewer systems, and because NIH was not required to submit environmental reports in connection with those applications, Petitioner's request for copies of such environmental assessments and reports cannot be granted. The information submitted by NIH in support of its application for authority to construct and operate the Poolesville low-level waste storage facil-ity, however, is the functional equivalent of an environmental repon and safety evaluation. The Director supplied the Petitioner with copies of documents sub-mitted by NIH in support of License Conditions 21,27, and 28. The Director placed Petitioner on the distribution list for all correspondence regarding op-eration of the NIH incinerators, sewer disposal limits, and interim radioactive waste storage license amendments at the Poolesville facility.
DIRECTOR'S DECISION UNDER 10 C F.R. 6 2.206 1.
INTRODUCTION By letter addressed to the Executive Director for Operations, dated December 2,1993, Arlene S. Allen, on behalf of the North Bethesda Congress of Citizen's Associations, Inc. (North Bethesda Congress, or Petitioner), requested that NRC take action with respect to the National Institutes of IIcalth (NIH. or the Licensee)in Bethesda, Maryland.
Petitioner requests that the NRC: (1) suspend License Condition 24 of the NIH Materials License No. 19-00296-10 (License), which authorizes NIH to dispose of licensed materials by incineration, pending resolution of two regulatory issues - (a) no environmental report or environmental assessment has been completed regarding the incineration of radioactive waste on NIH's Bethesda campus, and (b) there may be less than adequate monitoring to ensure that radioactive effluents are within regulatory limits; (2) provide copics of the NRC environmental assessments and/or safety evaluations that provide the bases i
for (a) an exception from 10 C.F.R. 6 20.303(d) limits regarding radioactive materials discharges into sanitary sewer systems (License Condition 21); and (b) approval of the construction and operation of a low level waste storage facility at NIH's Poolesville campus (License Condition 28); and (3) forward a copy of future correspondence between NRC and NIH regarding these matters to the North Bethesda Congress.
The Petitioner asserts the following as bases for these requests: (1) NIH has not completed or submitted to the NRC an environmental report regarding j
radiological releases from incinerators at the Bethesda campus, and the NRC i
has not issued an environmental assessment or impact statement regarding NIH radiological emissions, as required by the National Environmental Policy Act and 228 l
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n,e l 10 C.F.R. Ii 51.21,51.45, and $1.60(b); (2) licensing the disposal of radioactive waste by incineration is a federal action rubject to the NEPA process; (3) because
- releases from the NIH incinerators are capable of exceeding regulatory limits and will increase over the next few years, and because total radiological emissions
' from NIH are sufficient to warrant environmental analysis, the continued burning
' of radioactive waste by NIH without an environmental report and environmental assessment are in noncompliance with NRC environmental regulations: (4) although NRC cited NIH for its' failure to adequately monitor radioactive effluents and NIH committed to install instrumentation for continuous monitoring as a corrective action for having exceeded its yearly radioactive effluent release limit to unrestricted areas for 1987, no continuous monitoring for radioactive airborne effluents exists for the NIH incinerator stacks; (5) it is not clear that the -
box monitoring system installed by NIH adequately detects radioactive waste, and small amounts of iodine continue to be identified in the incinerator ash, indicating that medical waste still gets into the incinerators; and (6) it is unclear that NIH methods to assess radioactive effluent releases at the incinerators satisfy regulatory requirements and provide assurance that Part 20 limits are being met.
He NRC Staff provided a partial response to North Bethesda Congress by letter dated February 24, 1994. He Staff acknowledged receipt of the petition, and denied Petitioner's request to suspend License Condition 24 pending resolution of the petition. De denial of the request to suspend License Condition 24 was based on findings of the then-mostsecent NRC Inspection Report, inspection Report No. 030-01786/92-001, which concluded that emissions from the incinerators at the NIH Bethesda campus were within regulatory limits and that, despite some deficiencies, the incineration operation was under adequate control. He NRC Staff, therefore, determined that there was no immediate risk to public health and safety from continued operation of the incinerators. The February 24,1994, letter granted Petitioner's request for copies of environmental assessments and/or safety evaluations insofar as such documents exist and could be retrieved. A later search of the active and archived NRC files disclosed no such documents. De February 24, 1994 letter also -
granted Petitioner's request for copies of all correspondence with the Licensee concerning the matters raised by Petitioner.
. As of May 1994, all three incinerators were taken out of service by NIH.
In a letter dated August 10, 1994, NIH committed to permanently stop all incineration of low-level radioactive waste at its Bethesda campus, and requested a license amendment to delete License Condition 27 (formerly License Condition '
- 24) from License No. 19-00296-10. This application was granted by NRC on November 3,1994.
I have completed my evaluation of the matters raised by Petitioner, and have determined that, for the reasons stated below. Petitioner's request to suspend authority to incinerate pursuant to License Condition 24, pending 229
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performance of an environmental assessment and an environmental report with 4
iregard to incineration operations, and pending review of incinerator operating
_ rocedures, is moot. Petitioner's request for environmental _ assessments and/or j
p safety evaluations in connection with License Conditions 21 and 28 ennot be granted because the NRC was not required to perform environmental asse sments 2
or formal safety' evaluations in connection with the low-level radic activity associated with NIH discharges to the sanitary sewer system and with tn
- low-level waste storage facility at NIH's Poolesville campus, as explained b. low.
~
Documents constituting the informal equivalent of an environmental review or safety evaluation in connection with License Conditions 21,24, and 28, will be supplied to Petitioner. Petitioner's request for a copy of all correspondence c
between NRC and NIH regarding these matters was granted by the NRC Staff j
letter dated February 24,1994.
j r
l IL BACKGROUND
'q he NIH specific license of broad scope, No. 19-00296-10, was issued in '.
j December 1956 by the Atomic Energy Commission (AEC). He license is due i
to expire in May 1995. De license replaced a set of nine licenses that had been i
issued to different institutes or laboratories of NIH. At the time of issuance i
of this broad-scope license, short-lived radioactive waste (half-life under 100 days) was allowed to decay in storage and was then disposed of as ordinary i
waste. Long-lived s< !id and liquid wastes were incorporated into concrete and shipped for disposal. Dere was no license condition permitting incineration of
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licensed material, and sewer disposal oflicensed material was limited to 1 Ci/yr,.
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.provided other conditions, such as average concentration limits, were met.
l Soon after the License was issued NIH requested authorization to incinerate
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dead animals used in experiments, and other combustible waste containing tritium (H-3), carbon-14 (C-14), and sulfur-35 (S-35) in the two general-purpose l
incinerators then in use on campus. His request was granted as License Condition 12 in February 1959. In April 1968, License Condition 21 was approved to extend the incineration authorization to include incineration of any byproduct material, provided the effluent concentration limits specified in the i
regulations were met for the air effluents from the incinerators, as well_ as for.
disposal of the ash resulting from incineration. Byproduct material is defined in -
NRC regulations as "any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to radiation incident to the process of producing or utilizing special nuclear material." 10 C.F.R. 5 20.1003, his, in effect, means any radioactive material produced in a nuclear reactor, other than plutonium, which is considered special nuclear material. H-3, C-14, and S-35 are all byproduct materials. Special nuclear material is any material that has the
,,e,,
potential for use as fuel in a nuclear reactor, including plutonium, uranium-233, and uranium enriched in the isotope 233 or in the isotope 235.
In 1961. NIH requested raising the sewer disposal limit from 1 to 20 Ci/yr.
In response to this request, NRC authorized an increase in the sewer disposal limit from i Ci/yr to 3 Ci/yr in October 1961, as reflected in License Condition
- 21. In April 1%8, following another request, the sewer disposal limit was raised to 5 Ci/yr, and in April 1969, the License Condition was amended to raise the sewer disposal limit from 5 Ci/yr to its current level of 8 Ci/yr.
[
License Condition 24, authorizing incineration of byproduct material, and the License Condition 21, authorizing disposal of up to 8 Ci/yr of radioactive material to the sewer, have not changed materially since they were first issued.
De NRC regulations pertaining to incineration and sewage disposal appear in 10 C.F.R. Part 20, " Standards for Protection Against Radiation," first im-plemented in 1957. The initial 1957 version of 10 C.F.R. Part 20 limited the quantity of licensed and other radioactive material released into the sewerage system to 1 Ci/yr. Limits were also imposed on the average concentrations of radioactive materials in the sewer releases. The regulations in 10 C.FR. Part 20 were revised in 1982 to raise the disposal limit for discharges to nnitary sewerage systems from 1 Ci/yr to a total of 7 Ci/yr, of which up to 5 Ci/yr may be H-3, up to I Ci/yr C-14, and up to 1 Ci/yr all other isotopes combined.
I Permission to incinerate radioactive waste in the form disposed of at NIH was sought through the mechanism then applicable to permit licensees to apply for approval of a waste disposal method provided in 10 C.F.R. 6 20.302, " Method of obtaining approval of proposed disposal procedures."
i An application for a license amendment to permit interim storage of low-(
level radioactive waste at the NIH Animal Center in Poolesville, Maryland, was submitted to the NRC in October 1992. In the same submittal NIH also requested an increase in its possession limits for carbon-14 from 2 to 3 curies, and for phosphorus-32 from 2 to 4 curies. The increases in possession limits were requested to provide flexibility in waste storage. Tne stated reason for the request to store waste was partly to allow decay of short-lived activity before i
disposal, and partly in anticipation of a reduction or climination of options for permanent dispo<.al of low-level radioactive waste, such as the anticipated closure of the Barnwell, South Carolina waste disposal facility. In January 1993,-
the NRC authorized use of the Poolcsville facility for interim storage of low-level radioactive waste, as reflected in License Condition 28.
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IIL DISCUSSION
- A.
Petitioner's Request for Suspension of incineration Operations Was Mooted by Amendment of the NIH License
- As explained above, NIH's authority to incinerate radioactive waste was terminated by the NRC Staff's November 3,1994 grant of NIH's application for a license _ amendment to remove License Condition 27, Consequently. -
Petitioner's request for suspension of NIH incineration operations is moot.
Similarly, any past deficienices in NIH's incineration monitoring program' need l
not be addressed, other than to emphasize that if, in the future, NIH were to request authorization to resume incineration operations, the NRC Staff, as part of its evaluation of such a request, would review the incineration program and operating procedures and require correction of any deficiencies in the monitoring l
program 2 before granting such a request.
II.
Request for Environmental Assessments and Environmental Reports 1.
Incineration of Radioactive Waste Petitioner contends that incineration of radioactive wastes and potentially I
contammated medical wastes by NIH, without complete environmental reports and environmental assessments, is in violation of NRC regulations and the National Environmental Policy Act (NEPA). Petitioner further states that, in the Statement of Consideration accompanying the newly revised 10 CF.R. Part 20, NRC retained the requirement for prior approval of incineration on a site-specific basis and that NRC rejected the notion that disposal of radioactive t
I NIH henneratur efHuents were wittun the 10 CER. Part 20 regularory hnuts specs 6ed by the beense. and the incineiston operanon was under adequate control. See NIH Inspection Report No.03001786/924101 (sept,14
'992) and NRC Inspecnon Report No. 030017W)4 001 (July 8,1994). Nonetheless, there were some weak area in the progrant as in&cated by the the possibihty that the anmunt of iodme that was released an effluents may h we exceeded ALARA goals. See NRC Inspection Report No 030 Ol71W94 01. The Ucemee's As I.ow As Reas<mably Achsevable (ALARA) comnutment. ancorporated into Ucense Conditma 27 by tie July 1986 appbcanon for authority to incinerate radioachve matennis, obbgates the Licensee to have a program with the objecove of huuhng the average annual concentration of ra&oacuve natenal in the incinerator stack efauents i
to 10% of the Appendia B, Table 11 values. The in&catmns that the inemeration efnuems may have exceeded i
th*a 10% hnut in 1993 were inferential, and could not be venhed on the baus of available data. The NRC staff deternuned that the ash residue data collected by the Ucensee was not specs 6c enough to pernut a deternunation wirther noene-125 releases ed in fact violaie de Ucense Constmn 27 requirement to have an ALARA program with the ch cctive of hmiting the average annual concentration of ra&oacave matenal in the inemmatur stack i
efnuent to 10% of the Appenen B, Table 11 values. The available data, however, indicate that the annual average concentratmns of ra&oachve marenals in the inemeratur effluents were probably substantially below the Appendix l
IL lable 11 hnuts for the 1990 through 1993 tme permd reviewed in the May 1994 NRC inspecten.
1 2 Pentmner aho comends that tricases from sources other than the incinerators, such as Buildmg 21 did not appear to be routmely considered in conjuncuan with meinerator ra&onuchde releases when compunng overall facihty release totals to unrestncted areas Ucense Con &uon 27 emposed knuts only upon meinerator ra&onuchde telcanes. LfHuents from Buildmg 21. and from other builangs on the NIH campus, are hnured separately by other hcense conanons and by the hmus imposed by 10 CT R. Part 20 on efnurms to unrestnered arens.
l 232 i
waste by incineration is simply just another form of general effluent release, and thus approval ofincineration is subject to the NEPA process. Petitioner also claims that because radiological releases from the NIH incinerators are capable of exceeding regulatory limits, as discussed in the 1988 NRC Inspection Report No. 030-01786/88-001, NIH total radiological emissions warrant environmental analyses.
The initial authorization to incinerate H-3, C-14, and S-35, as well as the 1968 license amendment extending this authorization to all byproduct materials, predated both the National Environmental Policy Act (NEPA) of 1969, and NRC regulations implementing NEPA (10 C.F.R. Part 51), which became effective in 1974. There was, therefore, no requirement at the time of these amendments to conduct an environmental assessment. A review of NRC records pertaining to the NIH licenses failed to identify any formal environmental assessments j
or safety evaluations in connection with these license amendments. However, related correspondence between NRC and NIH indicate that authorization to incinerate radioactive wastes was granted on the condition that operations be conducted within the effluent limits imposed by 10 C.F.R. Part 20. The total i
activity incinerated in any given period was limited indirectly by limiting the l
maximum allowable concentrations of radioactive materials in the effluents from the incinerator stacks to the levels specified by Appendix B. Table II.
He original authorization to incinerate licensed material was reevaluated in connection with NIH's 1988 license amendment application to add a third incinerator of larFer capacity to the two existing smaller incinerators previously authorized for operation. He license amendment application was accompanied by detailed descriptions of the incineration facility and proposed modes of operation and control. The record also shows correspondence from NRC requesting clarifications and additional information, as well as responses from NIH providing the requested information. These documents were incorporated into the License as tie-down conditions, which means that the Licensee must conduct operations as described in its application documents. However, a formal environmental assessment was not prepared. The amendment request was granted on the same condition as the original 1959 amendment authorizing incineration of wastes, which was that effluents from the incinerators must remain within the concentration limits specified by Appendix B. Tables 11.
Incineration at NIH was authorized only after performance of NRC Staff reviews of the incinerator design and proposed methods of operation and control of effluents, including disposal of the ash resulting from incineration, and consideration of the public doses expected from the operation.
The NRC practice in 1988 was, and still is, to determine on a case-by-case basis whether to perform an environmental assessment in connection with applications for incineration of waste containing radioactive material, provided that the concentration of radioactive materials in the incinerator effluents at the 1
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point of release, and in the ash residues, do not exceed the limits specified by Appendix B. Table II, and also provided that the dose to the highest exposed member of the public that results from the authorized activity is no more than j
a small fraction of the dose limit for individual members of the public (100 millirem per year) specified by 10 C.F.R. 5 20.1301(a)(1). The radiation dose to a member of the public resulting from air effluents depends on the concentration of radioactive materials in the air at the location of that person. Limiting the concentrations of radioactive materials emitted from the stack at the release I
point to those specified in Appendix B, Table II, ensures that any dose to i
l members of the public will be a small fraction of the applicable public dose limit. This is due to the fact that dispersion of the effluent air from the stack will reduce the average concentration of radioactive materials in the air at the location of an exposed individual to a small fraction of the limits for emissions t
at the release point, causing the delivered dose to that individual in turn to be a small fraction of the public dose limit. Review of an application to incinerate licensed materials involves, in part, verification that dispersion of the released material during transit, from the stack to the closest exposed individual, will reduce the concentrations sufficiently to ensure a very small dose to members of the public, even under the most conservative assumptions. Since the NIH application proposed limiting airborne incinerator effluents at the release point to Appendix B, Table 11 limits, the dose to the highest exposed member of the public would be limited to a small fraction of the dose limit for individual members of the public specified by section 20.1301(a)(1).
'Ihe NEPA and the Commission's implementing regulations in 10 C.F.R. Part 51 do not require the performance of an environmental assessment in connection with authorization of incineration of radiological wastes at NIH. Under NEPA i 102(2)(c), 42 U.S.C. 9 4332(2)(c), and 10 C.F.R. 6 51.21, an environmental assessment must be undertaken by the NRC for all licensing and regulatory actions except where the Commission's regulations, see 10 C.F.R.151.20(b),
require the preparation of an environmental impact statement, or the licensing actions are eligible for categorical exclusion from these requirements because the actions do not individually or cumulatively have a significant effect on the human environment. 10 C.F.R. 66 51.21 and $1.22(a). Any use of source, byproduct, or special nuclear material that involves quantities anct forms of these materials similar to those involved in activities eligible for categorical exclusion in 10 C.F.R. 651.22(c)(14)(i)-(xv), is also eligible for categorical exclusion.10 C.F.R. 651.22(c)(14)(xvi). The Commission anticipated that the quantities of radioactive material associated with the fifteen types of activities eligible for categorical exclusion under 10 C.F.R. 9 51.22(c)(14)(i)-(xv) would involve effluent releases of between zero and 12% of the limits of 10 C.F.R. Part 20. Statement of Consideration " Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions and Related Conforming 234
g Amendments," 49 Fed. Reg. 9352, 9376-79 (Mar.12,1984). Applicants who propose to limit the concentration of radioactive material in the incinerator stack effluents to less than 12% of the applicable Part 20 limits, therefore, would be eligible for the categorical exclusion pursuant to section 51.22(c)(14)(xvi). Since l
NIH committed, in its application for authority to incinerate radioactive waste, to have a program with the objective of limiting average annual concentrations of radioactive material in the incinerator stack effluents to 10% of the Appendix B, Table 11 limits, the NIH application for authority to incinerate was eligible for categorical exclusion pursuant to section 51.22(c)(14)(xvi).
NIH's authority to dispose of contaminated ash residue from incinerator op.
erations was also granted without performance of an environmental assessment, pursuant to the categorical exclusion of section St.22(c)(14)(xvi), for the same reasons as discussed above. The concentrations of radioactive materials in the ash residue were required by License Condition 24, in the case of NIH, to be below those specified by Appendix B, Table II. Smce Part 20 does not specify concentrations limits for ash, the limits specified for water were applied to the incinerator ash.
When the categorical exclusion provisions of 10 C.F.R. Part 51 exempt a license application to incinerate licensed materials from the requirements to prepare an environmental assessment or an environmental impact statement, such as the NIH incineration operations, the Licensee is not required to submit an environmental report for such proposed activity. Although NIH was not required to submit a formal environmental report in connection with its application for authorization of its incineration facility, NIH was required to submit, and did submit, detailed descriptions of the facility and the proposed mode of operation and control to ensure safe operation and compliance with NRC requirements.
In view of the above, the NRC was not required to and did not perform environmental assessments, and the Licensee was not required to and did not submit environmental reports, in connection with authorization of NIH incineration operations or disposal of incinerator ash residue. Petitioner has been provided, however, with copics of documents submitted by the Licensee in support of License Condition 27 and documents associated with the grant of License Condition 27.
2.
Radioactive Material Discharges into the Sanitary Sewer Systems (license Condition 21)
Petitioner requests copies of the NRC environmental assessments and/or safety evaluations that provide the basis for the NRC's grant of an exception from 10 C.F.R. f 20.303(d) limits regarding radioactive material discharges into sanitary sewer systems. License Condition 21 exempts NIH from section 20.303(d), now superseded by 10 C.F.R. 6 20.2003(a)(4), which limits the 235
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i quantity of licensed and other radioactive material released into the sewerage system to 5 Ci/yr H.3, I Ci/yr C 14, and 1 Ci/yr all other isotopes combined.
License Condition 21, however, authorizes disposal of up to 8 Ci/yr of all
-)
licensed and other radioactive material, with no separate limits on the activities of individual isotopes, provided the provisions in 10 C F.R.' f 20.303(a)-(c),
. superseded by 10 C.F.R. (20.2003(a)(1)-(3), are met. These regulations place limits on the monthly average concentrations of radioactive matenals in sewer releases.
He license amendment that initially authorized a sewer release limit of 8 1
Ci/yr was granted in 1969, and predates NRC's Part $1, which implements i
the National Environmental Policy Act (NEPA) of 1969. Here was, therefore, no requirement at the time the license amendment was granted to conduct an i
environmental assessment in connection with this License Condition 21. No environmental assessments or safety evaluations to support the grant of this amendment were found in a search of NRC records, nor were any references to l
such documents foun1.
A review of NRC records pertaining to the NIH license indicates that the grant to NIH of the exemption from section 20.303(d), by raising the annual release limit from the Part 20 limit of I Ci/yr to 8 Ci/yr in 1969, and from the Part 20 total activity limit of 7 Ci/yr to 8 Ci/yr after 1982, without separate limits on H-3 and C-14, was based on concentrations of radioactive material
)
in the sewer releases from the facility. He dose to a member of the public, l
obtaining drinking water from the sewer discharge point for the facility, depends on the concentration of activity in the sewer water, and not on the total amount released during the year.
Section St.22(c)(14)(xvi) provides that any use of source, byproduct, or i
special nuclear material that involves quantities and forms of these materials similar to those involved in actions eligible for categorical exclusion from I
environmental assessments is also eligible for exclusion, pursuant to 10 C.F.R. 151.22(c)(14)(i)-(xv) NIH releases daily to the sewers a very large amount of water from its various buildings and the Clinical Center. His volume of water, which substantially exceeds one million gallons per day, provides very large dilution factors for radioactive wastes released to the sewers. At the level of j
8 Ci/ year, the resulting average concentrations of radioactivity in water leaving the NIH campus are a small fraction of the allowable concentrations specified in the 10 C.F.R. Part 20, Appendix B. Table 3, and thus NIH sewer disposal activity is eligible for categorical exclusion pursuant to section 51.22(c)(14)(xvi).
See Section III.B.1, supra. The corresponding doses are, therefore, also small fractions of the public dose limits, and are of the same order of magnitude, or smaller, than those involved in activities that are eligible for categorical exclusion. It was, therefore, concluded that grant of the NIH application for an 8-Ci/yr sewer disposal limit was eligib!c for the categorical exclusion, i
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i NRC's review of the NIH amendment application for License Condition 21 also considered the fact that radioactive material in the sewer water released from NIH is further diluted at the Blue Plains Sewage Treatment Plant, to which NIH discharges its sewer water. Enher dilution is provided by the Potomac River, to which the effluent from Blue Plains is discharged.
He Part 20 limit on total activity released to the sewers per year from a licensee's facility was imposed to guard against the possibility that more than one licensee may discharge radioactive material to the same sewer lines, thus raising the overall concentrations of radioactive materials in the sewer lines.
His was not an important consideration in the case of NIH in view of the high water discharge volume from the facility, which ensures very low concentrations of radioactive materials, even in the presence of possible sewer discharges from other licensees discharging to the same sewer system. A review of the NIH records for sewer discharges in recent years showed that the annual quantities discharged have been less than the 7 Ci/yr limit in Part 20. License condition 21 did not impose separate limits on H-3 and C-14 discharges.
In view of the above, Petitioner's request for environmental assessments and/or safety evaluations providing the basis for authorization of License Con-dition 21 cannot be granted. Petitioner, however, has been provided with doc-uments submitted by NIH to the NRC in support of the amendment requests to raise the sewer discharge limits.
3.
Construction and Operation of the Low Level Waste Storage Facility at Nill's Poolesville Campus (License Condition 28)
Petitioner requests copies of the NRC envimnmental assessments and/or safety evaluations that provide the bases for the NRC grant of the Licensee's license amendment application for construction and operation of a low-level waste storage facility at NIH's Poolesville campus. License Condition 28 of the License currently states that " Radioactive waste generated under this License shall be stored in accordance with the statements, representations, and procedures included with the Licensee's waste storage plan described in the Licensee's application dated October 13, 1992." The conditions under which radioactive waste is stored at the Foolesville facility are described in the l,icensee's 1992 application for an amendment to permit such storage, and were incorporated into License Condition 28 as tie-down conditions. They were evaluated by the NRC Staff and found to be adequate to ensure public health and safety and to minimize adverse environmental effects. The Poolesville facility is inspected routinely by NRC's Region I to ensure that the conditions described in the bases for the license amendment are being observed,in addition to observance of good radiological safety practices.
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The application documents for the License Condition 28 provide detailed descriptions of the Licensee's Poolesville facility and surrounding environment and demography, storage building construction details, methods of waste storage, waste form and inventory control, and other relevant details. 'Ihis information was provided in accordance with the instructions in NRC Information Notice IN 90-09, " Extended Interim Storage of Low-Level Waste by Fuel Cycle and Materials Licensees," which describes the information required by the NRC for its review of license amendment requests to authorize extended interim storage of low-level radioactive waste. This review is functionally equivalent to an environmental assessment for such facilities.
In view of the above, Petitioner's request for environmental assessments and/or safety evaluations in connection with authorization of License Condition 28 cannot be granted. Petitioner, however, has been provided with a copy of IN 90-09 and the information submitted by the Licensee in support ofits application for authority to construct and operate the Poolesville low-level waste storage facility, which is the functional equivalent of a an environmental report and safety evaluation.
C.
Request to Forward a Copy of Future Correspondence Between NRC and Nill to Petitioner As requested by Petitioner, North Bethesda Congress of Citizen's Associ-ations will be placed on the distribution list for all correspondence regarding operation of the NIH incinerators, sewer disposal limits, and interim radioactive j
waste storage license amendments at the Poolesville facility.
IV. CONCLUSION i
ihr the reasons discussed above, Petitioner's request to suspend authority for incineration operations by NIH pursuant to Condition 24 of the NIH License, pending a review and improvement of operating procedures for the incinerators, and pending preparation of an environmental assessment and an environmental report, was mooted by removal of that authority from NIH License No.19-00296-10 in November 1994. Petitioner's request for copics of any NRC environmental assessments and/or safety evaluations that provide the bases for authorization of License Conditions 21 and 28 cannot be granted, as explained in Section III, supra. Certain information submitted by the Licensee in connection with its request for authorization of License Conditions 21,24, and 28, and NRC correspondence in response, however, was provided to Petitioner. Petitioner's request for a copy of all future correspondence between NRC and NIH regarding these matters is granted.
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- A copy of this Decision will be filed with the Secretary of the Commission for the Commission to review in accordance with 10 C.F.R. 5 2.206(c). As provided by this regulation, this Decision will constitute the fnal action of the Commission 25 days after issuance, unless the Commission. on its own motion, institutes a review of the decision within that time.
FOR THE NUCLEAR REGULATORY COMMISSION j
Roben M. Bernero, Director Office of Nuclear Materials Safety and Safeguards Dated at Rockville, Maryland, this 5th day of March 1995.
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Cite as 41 NRC 241 (1995)
DPRM-95-1 UNITED STATES OF AMERICA -
NUCLEAR REGULATORY COMMISSION COMMISSIONERS:
Ivan Selin, Chairman Kenneth C. Rogers E. Gail de Planque in the Matter of Docket No. PRM-60-3 U.S. DEPARTMENT OF ENERGY March 15,1995 The Nuclear Regulatory Commission (NRC)is granting in part and denying in part a petition for rulemaking (PRM-60-3) from the U.S. Department of Energy.
The Petitioner requested that the NRC amend its regulations governing the preclosure operations at a geologic repository operations area so as to establish numerical dose criteria for use in identifying the need for engir. cered safety features and for determining their adequacy. In granting the petition in part, NRC is proposing certain numerical dose criteria that would be applicable to two different categories of design-basis events, namely (1) eveats reasonably likely to occur regularly, moderately frequently, or one or more times before permanent closure; and (2) events that are considered unlikely, but that are sufficiently credible to warrant consideration. The petition is denied in part insofar as it proposed other numerical dose criteria.-
PARTIAL GRANT AND PARTIAL DENIAL OF PETITION FOR RULEMAKING The U.S. Department of Energy (DOE) submitted a petition for rulemaking on April 19,1990. On July 13, 1990 (55 Fed. Reg. 28,771) NRC published a notice of receipt of the petition for rulemaking. The comment period expired on October 11, 1990. The petition requested that the Commission amend 241
l' 10 C.F.R. Part 60 to prescribe certain numerical accident-dose criteria to be applied at the boundary of a "preclosure control area."
Under DOE's proposal, the definition of "important to safety," in 10 C.F.R. 660.2, would be changed to apply a reference dose limit at the preclosure-control-area boundary,instead of the present unrestricted-area boundary; further, the definition would be amended to add a statement "All engineered safety
' features shall be included within the meaning of the term *important to safety."'
He petition also proposed that performance objectives of 10 C.F.R. 6 60.111 would be revised to incorporate an explicit accident dose limit, at the preclosure control area boundary, of 0.05 Sv (5-rem) effective dose equivalent, or 0.5-Sv (50-rem) committed dose equivalent. DOE indicated its intention that this limit would apply to direct irradiation and inhalation pathways, alone, and not to ingestion of contaminated foodstuffs. The phrase "at the times" would be deleted from 10 C.F.R. I 60.111(a), to clarify that the performance objective for the period of operations does not apply to exposure from accidents. Finally, the petition proposed adding new definitions, to 10 C.F.R. 6 60.2, for the terms "preclosure control area," " committed dose equivalent," " committed effective dose equivalent," and " effective dose equivalent," to support the application of the accident dose criteria described above.
For a fuller statement of the petition for rulemaking, see the FederalRegister notice cited above.
In response to NRC's publication of notice of receipt of the petition, com-ments were received from: DOE; Edison Electric Institute and the Utility Nu-clear Waste and Transportation Program (EEI/UWASTE); Intertech Consultants, on behalf of Lincoln County, Nevada, and the City of Caliente, Nevada; and an anonymous " Concerned U.S. Citizen." The Commission, having now con-sidered the petition and comments, grants the petition in part and denies the petition in part, and to that end, the Commission is publishing, concurrently with this notice, a notice of proposed rulemaking.
Under the proposed rule, accident-dose criteria would be applied at the boundary of a newly defined "preclosure controlled area," as recommended by DOE. Further, in response to the petition, the term "important to safety" would be redefmed, though not in the form suggested by DOE. The Commission is also proposing to adopt the Petitioner's request that the phrase "at all times" be deleted from the performance objective that applies to preclosure operations. In all other respects, the petition is denied.
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The reasons for the action, insofar as it both grants and denies part of the petition, are set out at length in the statement of considerations accompanying the proposed rule.
For the Nuclear Regulatory Commission
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JOHN C. HOYLE Secretary of the Commission Dated in Rockville, Maryland, this 15th day of March 1995.
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