ML20091A422

Nuclear Regulatory Commission Issuances for December 1991. Pages 297-376

ML20091A422
Person / Time
Issue date:	02/29/1992
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V34-N06, NUREG-750, NUREG-750-V34-N6, NUDOCS 9203270098
Download: ML20091A422 (87)

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{{#Wiki_filter:_._..___... _. _ _.. _. _ _. _ I NUREG-0750 Vol. 34, No. 6 Pages 297-376 NUCLEAR REGULATORY

COMMISSION ISSUANCES Decernaer 1991 l

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i i Available from i Superintentendent of Documents U.S. Government Printing Office Post Office Box 37082 . Washington, D.C. 20013-7082 . A year's subscription consists of 12 softbound issues, 4 indexes, and 2-4 hardbound editions for this publication. Singie copies of this publication are available from National Technical i Information Service, Springfield, VA 22161' 4 f 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- -(301/492-8925)-- v.-e I -~ . J

I l NUREG-07LO l Vol. 34. No. 6 i Pages 297-376 l l [ NUCLEAR REGULATORY COMMISSON SSUANCES l l December 1991 I l' l This report includes the issuancos rocoived during tho specified period from the Commission (CLI), the Atomic Safety and Liconsing Boards (LBP), the Administrativo Law Judgos (ALJ), the Directors' Docisions (DD), and the Donials of Potations for Rulomaking (DPRM). The sumniarios and headnotes proceding the opinions reported herein are not to be doomed a part of those opinions or have any indopondont legal significanco, U.S. NUCLEAR REGULATORY COMMISSION f i Prepared by the i Otvision of Froodom of Information and Publications Services Offico of Administration j U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925) I ... - ~ ~

-. -.. -.. =. l COMMISSIONERS ivan Sofitt Chairman Kenneth C Rogers James R. Curtiss Forrest J. Romick E. Gall de Planque B. Paul Cotter, Chief Administrative Judge, Atomic Safety and Licensing Doard Panel i

b - CONI l'.NI'S Issuances of the Atomic Safety and 1.lcensing floards LOUISIANA ENiiRGY S!!RVICES. L.P. - (Claitorne Enrichment Center) Dockel 70-3370 ML (A$t.BP No. 91-(A102-ML) (Special Nucicar Materials License) MEMORANDUM AND ORDER, LDP 9141, Decemler 19,1991,. 332 'ITJLS A GAMMA RAY, INC, Dockel 30-12319CivP (ASLBP No. 90-618-03-CivP) (EA 89 223) (Materials License No. 3517178-01) INITIAL DECISION, LitP-9140, Decemter 10,1991........... 297-Issuances of Directors' Decisions ALL NUCI EAR POWER REACTORS ' DtREC'IOR'S DECISION UNDER 10 C.F.R. 6 2.206, DD-918, December 31,1991....... 367 PUBLIC SERVICE COMPANY OF NEW !! AMPSillRE. ci al. (Scabrook Station, Unit 1) Docket 50443 (License No. NPF-86) DIRECTOR'S DECISION UNDER 10 C.F.R. 92.206 DD-917, December 27,1991........................,.... . 361 iii

l D Atomic Sa"ety ~. anc Licensing Boarcs issuances l ATOMIC SAFET( AND UCENS:NG BOARD PANEL ~ & B. Paul Cotter,* Chief Administrative Judge .Q l Robert M. Lazo,* Deputy Chief Admin}strative Judge (Executive) \\ l Frederick J. Shon,* Doputy Chict Administrative Judge (Technical) t Members i i Or George C. Arxprson James P Gea xvt Dr Emmeth A Luobke h Charles Dechhoefor* Dr Cadet H Hand. Jr Dr Kenneth A. McColiom l Peter B Bloch* 2 Jerry Harbour

• Morton B Marguies*

l G6enn O Dnght Dr. Davx1 L Hetnck Marshall E MJior i Dr A. Dixon Calhnan Emest E. Hal tw W + P'~'* -.h James H. Carpenter

• Dr. F ank F. Hoopw De r%nhrd H. Parunk Dr Rehard F. Cole
• Ekzabeth B. Ars x;n Dr Harry Rein Dr. Thortuns E. E:eman Dr Waltor H. Jordan Lestar S Ruberstein Dr George A. Ferguson Dr. Charios N Kolber*

Dr Davw1 R Schink W Q Dr Harry Foreman Dr. Jeny R Khne* Ivan W Gmrth* Dr Rohard F. Foster Dr Peter S Lam

• Dr GeorgeTidoy j

John H Frye lit

• Dr James C. Lamb Ill Sheldon J Wolfe j

h e

• Formaturit panel members

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Cato as 34 flitC N/ (1V)1) LDP 9140 ' Jill.D ST All S Of AMI HIC A tJllCl C AR ltl' gut A1014Y COMMihSIOfJ ATOMIC SAI ETY /J4D LICLtiSit4G DOAllD Defore Administrativo.ludges: Charles Dochhooter, Ct. airman Dr. A. Olson Callihan Dr, Jerry Ft. Kline in the Matte, ut Docket No. 3012319 CivP ( ASLDP llo. 90-61043 CivP) (E A 09427) (Materials Licente 140, 35 17176 01) TULSA GAMM A H AY,1910. December 10,1991 'ihe 1.kensing Itnard, in an initial Itciskus, determines that a civil penalty sought to be impose.1 by the NRC Staff against a hecmec thoukt be reduced froin 56,750 to $4,275, lhe Ikurd in ltutkular based its roung on what it conskiered to be es tessive escalation applied by the Statf. ItUllS OF PitACllCI'.: PitOPOSI:D l'INDINGS Ol' l'ACI (l'OltMAT) Ahhough various hccming decisiom aucrt that a gurty, even though nul " p-resented by coumel, is not excused from the forinal requiretnents for pmgwd findmgs of f act (10 C,l.it. t 2.754), even where limited remunes are a las a, these decisions selate to liceming pnuccedings where un latersenor elects to IK'come a [urty. *lhey are not controlling in a sittolion where no local pubhc document roorn is scamnably available und where a licensee (which is f acing a loss of resourtes through a civil penalty pioceediny) alleges that it cannot alford to purchase transct; pts. 'the liceming inurd in that situation thouhl use 297

m t i 1 its liest ellorts to undmtand and rule on the ments tui tie claims prewuted l'y 3 the licemee. i ItUl.l:S Ol' l'ItACTICl:t ClVit. PI:N Al;Ill.S 4 I

• ae Commission's program fv cateponiing violations for the purpose of anesting and determining the arnount of civil penalties is set forth in 10 C.FA Part 2, Appendit C. In general, !!r " nature ark! cxtent of the enforcement nethm is interxled to reflect the 6eriouurss of the violation," und civil penahies are to te tailored to partjeular facts and circumstances of the violation.

1101.l:S OF Pit ACTICl?: civil, Pl:N Alli'll:S ( AGUlti:G ATION) Prescrito) hme civil tenalties are sot' Ject to tuijuurnent for the severity Ict el of the partimt violation. In some ca'ics, violations inhy be evaluated in the aggregate and a single severity level malgned for a group of violations. 'ihis authority has been construed to perrnit the severity lesel of the aggree,ated group j to be equal to or greater than the severity level of the mdividual violations comprising the group. Wher, aggregating violations, generally loth the riumber of violatkos arvt their seriousness should I e taken into account. i RUllS OF PRACTICI:t civil, PF.NAl.TilW Af ter the severity level of a violation has licen ascertained, the resultant civil penalty may also be escalated or initigated, uruler dermed circumstances. civil PF.NAlltII:St ASSI:SSMI:NT A total of nine violations, considered collectively, including Some that in ticmselves demonstrate a degree of safety significance, may te deemed to constitute a management deficiency sufficient to warrant assessment of a civil penalty. Tl:CilNICAl,ISSUlsS DISCUSSI:D frxtustrial radiography. ? 298 ._ _ ~ -. - - - -,. _. - _ -.. -.. - -. -

Al'l'EA R ANCES I Meurs. Jarnes C. Alms and l'rter Jarnes Mou.1bisa, Oklahorna, for 1bisa Oanana Ray, inw., l.kenwe. Suuin Uttal, Lg and jowph Rutberg, Eug., for the United States Nuclear ? Regulatory Corninission Staff. TAltl.E Ol' CONTENIS l' age l Ol' INION OF,10DOliS llECilllOElliR AND CA!LillAN (INCLUDING 11N DINGS Ol' 12ACT)........................... 300 i

1.

SUMMARY

OF VIOLATIONS.......................... 301

11. l'ROCEDUR AL ills 10R t'

.............................. 301 111. REGULATORY STANDARDS........................ 3D1 IV. tilSCUSSION OF EVIDENCf1.......................... 306 1. Nature of the Regulatc<l indstry.................. 306 2. Discovery of Violations........................... 307 - 3. Staff Calculation of Civil lYnally.................... 308 4. Evaluation of Severity level of Civil IYnalty........... 310 5. Evaluation of Severity level of Violations............. 311 (a) Violation i n................................ 31 1 (b) Violation I b................................. 312 (c) Violat ior 4b................................. 314 (d) 'the Six less Significant Violations.............. 316 2a......................................... 316 2b........................................ 316 2c......................................... 316 4a......................................... 316 de......................................... 316 4d........................................316 (c) Al'gregation of Violations...................... 317 6. Escalation .......................................318 7. M i tiga t ion..................................... 3 20 N. A rnount of Civil Itnalty............................ 321 V. CONCLUSIONS OF LAW ...................,,.......,.321-O R D ER................................................, 3 2 2 299 u.,_._.__,-;._.._._.;_._._.._....._... ., _,... _ _ _. - _ _ - ~, _

I CONCllRRING OPINION OF JUDGH Call lilAN 323 DISSI.NTING OPINION 0" JUDO!! Kl.lN!!.................. 324 l APPLNDICliS APPL!NDlX A: VIOLATIONS ALLI.Ol!.D................ U8 APPENDIX 11: TRANSCRIPT CORRIUl10NS (unpublis'n'd) INITI Al, I)ECISION (Order imposing a Ci il Monetar) l'enalt)) Opin.'on of Judges lleclilinefer and Callifwn (including Findings of Fact) nis proeceding involves an Order imposing Civil Monetary Penalty, dated June 6,1990, in the amount of 56,750, against hisa Gamma Ray. Inc., h!sa. Oklahoma (hereinafter, hisa ot I.icensee).' hlsa is the holder of NRC Materials 1.lecuse No. 3517178 01, dated January 26,1977, authorizing the pnsesskm of scaled radiographic sourtes for use in various esposure devices in the conduct of industrial radiography and for the calibration of radiation surycy instruments.8 The license includes a number of technical conditions gosetning the conduct of itulusuial radiography, including those required by the regulatioru in 10 C.F.R. l' art 34. %c J'ivil IYnat' Ordet was preceded by a written Notlec of Violation and 1*ro[xm t 'inposition of Civil Penalty, dated December 29,1989, w hlch proposed a civil puailty of $1,500.5 !!ased on the Licensce's response, the StafI reduced tic proposed civil penalty to $6,750, L'a amount sought by the Civil Penalty Order. Ihr reasons set forth lelow, the majority of the Board has concluded that a sigriificant civil g~nalty should be im[osed but that the ammmt sought by the Staff r,hould be reduced to $4,275. 8The orda was publut J at M F4 Peg 24.H9 (lune 19,1W0) Sn ele NRC statt limiimony of Cha 1ee Cam, lAnda Kannw, ad J, melt ikJMmlwo (heternaftew, staff Tesunwv). ff Tr.123. Ansa 12 kaferwwis la the propered dirwt tesunmy or perucular start wdmates (miated in hRC Sta'f lesum<rH wt!1 he nienned as nae name er witneas). fr Tt 123, et (page d gwpand testurmny) 8 start Twtammy,if Tr,123. Ause. 4 and 12 (et A12 3) Ill Ansa 11. l 300 t 1 l

t 9 1. SUhthl Al(Y Ol' VIOL.NilONS 7 1he violatams intladed in die Notice of Violation are set loith in full in Appeixht A to diis lwhlort lo die c Atent perdnerit, diey are also described later in this twision, in summary, however, they include three that a[ pear to the ikurd to be quite serious: the failure of a radiographer to conduct a survey after any of four separate radiographic esixuures (Violation la); the failure of rmliographers prtperly to [wt an area where radiographic cAlxnures were being corxtucted (Violation Ib); nod the failure to bhrk and brace radioactive material packages durins tramportathm (Violatkm 4b). Iteyond that, they include three involving dw failure to maintain adequate records of radioactive exposures of radiog-raphers (Violath>ns 2a, 2b. 2c); one involving the failure to maintain proper inventory control of scaled sources (Violation 3); two involving de failure to maintain certain tram (xntathm records (Violations da ard 4c); afd one involv-ing the incorrect placarding of a vehicle during transinrtation of radioacuse material (Violation 4d).1ho Notice of Violation prescriled a total civ l pcm.ity i of $7,840 for these violattom.' in its reslxmse dated Febmary 22, 1990, to the Notice of Violadon, the Licemec admitted nine out of the ten alles;ed violaikms but challenged the Staff's assessment of deir severity or significarx e 5. In particular,'Ibisa pointed to what it deemed to be extermating circumstances concerning many of the violations. The 1.icemec denied one violation (number 3 " inventory control") and the Staff accepted the Licemec's explanation, thereby withdrawing one of de ten alleged violadons and trducing the civil penalty by 10%-to $6,750 (i e.,11 treated each violation as equal in amount of penalty (5750) and reduced the proposed penalty for ten violathms by 10% II. l'ItOCEDUltAL lilSTOltY lbliowing inaance of the Civil Penalty Ordu, the Licchsee filed a timely response dated July 3,199(L 11 cialmed in essence that the violadons are not significant enough ta urvint_ imposhion of a civil penalty, it sought reconsideration (by the Staff of the civil penalty and in the alternative (as set forth in the Civil Penalty Orjer) requested a hearing. l By letter dated Jtdy 31,1990, the Director of NRC's Office of Enforcement (OH) refu*cd to widairaw the Civil Penalty Order.' As a result, a Licensing

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i...... lhurd was established to preside over the heatmg.' On August 29,1990, the ikurd htued a Notice of llearing.' As set forth in that Notke, die issue to tie heard (prescritrd by the Civil l'enalty Order) h "whedier, ori the tush of the violations admiued by the licensee, comisting of the violations act f arth in the Notice of Violatiori as imxtified by the withdrawal of Violation 3, thn Order should it su.tained (in the amount of $6,'l50)," In issuing the Notice of llearing, the lhurd urged the parties to attempt to reath agreement on the scope of the prescnbed issue nnd schedules for the emuing litigadon, as well as $cttlernent of the procecling. After advice froin de Staff that the parties had been unable to $cttle the proceeding or to reach egreement on the scope of the issue to be litigated,' the !!oard scheduled a pre-hearing conference, to be conducted by telepinirie," *Ihe confettence comtneticed on October 16, 1990," and continued on Novemter 8,1990.n At the conference, the lloard reiterated the limited scope of the h5ues permitted by the Civil pertally rkter to be consklered at the hearing Specifi-cally, the Ikurd defined the l' oc to i **wV2:~ lhe amount of the p<nally im-posed was correct under the (, mSinn, erce il Policy,10 Colf.It l' art 2, Appendin C, i.e., whether, e,ss mm Mrr

• y classify the Severity Level IV and V violations as a. %)c t e u) 61ayen and impose a mon.

etary penalty /and whether the aminu.,, ,,a penalty was correctly arrived at, taking into accotml the factors in the linfluement Niley, it luding initigating clreumstances,"U liased on a collogdy at the conference,I awever, the lloard directed the Stalf to pruvkle a further discushion of the matters of fact and law relied on by the Staff to conskler the Severity LevelIV and V violations collecuvely as a Severity Level 111 va,tation." 'Ihe lloard also established a schedule for discovesy, for filing direct testimony, and for commencement of the hearing.U The Stalf filed direct testimony, but we later ruled that the Licensee could prerent its testimony orally if it wished to do 60. d I.stablu)uewst at Anamic Saresy and LAwinnng lbard, dated August 16,1990, $3 led! Reg MA3l (Aug 21, 1 1990). he ll ovd sas later secoussututed to sdeutune e use nairman les ause d sdwdule e,r$ftsta sapenented by de runter Gairman. Nauce d konvisutuum er theid, dead has 3,1991,56 ied Reg 26,70) (kne 10 1991). 'tJIP 90 31, sacre 't.euer rnsa Stafr cowseal to Ikerming Ihard, deted Segenhse fl. IM Su else tauer rawn th themse to the I Acensing Ibani naarman, dated $epanher 11.19WL H$av Notas er Prahoanna Caircrease, dsied (kueer 4.1990, edieduhne de ciatranne tar orue.ar 16,19WL HPnihennes Conreimwe MenmrenAnn end order,IJtP 9042, $? NRC M109W). UMeinwandum and o< der (Merivmabama Pivheanna Cinesnorm<).tJtP e41,32 NRC 390 (19W4 UM,32 NRC et 191, Jee she tJtP 9442, sees. 32 NRC at 38Ms HtJiP 904), syca,32 NkC at 39192. De htoft did on tiy lette dated Ntwombar 1t, IM ' ~U$n llearing Niam, deied May 72,1991, $6 Ied Res 24,420 (May 30,19911- "sJIP-9143,33 NkC 535 pune 13,1991) 302

1he Itoard conducted two diys (d lwarings m hit a Oklatnuna, on June 3 at d 26, IWI. (At the outset of tie first hearing day, the lhurd condtried a prehearing wnfelence in older to review hearing lvocedures with the twtic-igunts,") '!he Stati pretental a panel of three witneues: hir, Charles C.un, Chief, Nuclear hiatetials Safeguards and Inspection Section, NRC Region IY; his. Limb K:nner, Senior Rthhation Specialist, Nuclear hitterials mal Safe-gturds inspection Section, N1(C iterion IV; and hit. Joseph Delhiedico, Senior linfortement Specialist at NRC lleatk aarters."'the Licensee presented two wit-l nenes: hiessrs. Jarnes C, hioss, President mwl owner of Tuha," and Peter J, hioss, Viec. President of Tulsa anni die soit of Ja"ics hioss." We first canh of these witnesses technically qualified u present his or her respective testimony,h During the hearing, the ikurd estabbshed s.chedules for the bling of proposed findings of fact and cottlusions of Lw,"In conformance with the schedules (as later moshticd), the Staf f filed its proposed findings on August 16,1991, the Lkensee filed its resporne on September 9,1991, and the Staf f (ded its reply on September 27, 1991," 1he Staff, in its Reply IOF, at 2 n3, points out that the Licensee, in hs IOF, has made no cifort to comply with 10 C.F.R. 6 2,754(c), which presctdies the format for proposed findings, including the use of numbered paragraphs and references to tsarneript citations. *lhe Stalf points to various licensing decisiom that assert that a party, even thovh not represented tiy coun:,el, is not excused from these requirements, even v here limited resources are a f actor, lhe Staf f utges that we not "excusc" the Licenw: fer failbg to attempt to comply with the requirements, lhe Licensee explams (Licensec IOF at 1) that its findings were presented without the benefit of transcripts "[b}ccue of the high cost of these dot uments we were unabic to acquire them," In tlut connection, as we pointed out in our hiemorandum (1% posed Fmdings/ Conclusions arkt 'Danscripts) dated July 16, 1991 (unpublished), there is no local pubhc dacument roorn (where transcripts would be available in microfici.e form) in 11Isa (where the 1.icensec is kicated) Uh 93-lM See aire Mammandusti and order 0%hc4rvig Camrerne and I ntusiary tiranng) daied Jee 10, IWl, s6 i ed Ng. 77,s41 (Jane 14,1991) " stafr Testimmy. r' Tr ID, ai 1. "h 9)(i Mises N 7r. 94 (1. Mrms) 33 we espiruly termt de ti,anarc's claim uut the sLrt witnues SwlJ be Nyd irewr.pc.ent fue a lad nr piscust esperunwe"(lirenace EaArgs or lat at 3) All or the stafr witnence have had tisuung diet indudeJ ratiasi et a nadograpbc erciute de se (kart lirdu>gs or fut at 1,1r 174 2s (Kwies, Osm, tkNeh cD <pi. 410 f,1, an she Merrmandum dated July 16,1991 (unpubbstmu 1kreahre, enwr o,anges in de dava Ti wwe aushraired. Ass hfarr> renami etid onter daied July 31,1991 (unpuhhshd) hersons t.t sorwe d6traulure (naulung rr un the 1jt.aue,,'s isdwe to tern a copy M na ruuhnas oc de befr), et heJeby (mrtrm mr ergmal by telephace or the stafr's request rie an este%vi imitJ l relay, squrcher 2't,1%), tu fae its ev3.ty redmas NDw e fangs WJ heruha te ieleeuwd es ' Maff lof,""I a,enwe 1013" and "staft lleyty 104." 3h3

or, indeed, in llw State of Oklahoma 'the n'catest (in Atlanm atul Kansas, respitively) are mrt 20l) iniles away. Contrary to die (laim of the Staf f, the decatom uted an: not conuoliing: they rtlate to intervenors who rlut on dwir owti to tuttiti]ute in a htumng plot ecdtng - not the situation w here, a4 here, the StJII is attelnplibg to inspinge tilon a Ircasee's propesty interests. 'the 1.itensec mitst partit tpate to be able to defend its gesttd popesty interests, and if it makes a univincing showing that it canrot cotnply with all of the lahnical pleading requireinents, we should me our best cllotts to utukistan1 and rule on the merits of the claims prescoted We are doing so here, In teai hing our IAxision, we hase reviewed rath of the proposed findings submitted by dic guttien any not esphcitly inungsated duntly or inferentially in this ikwhhvi are rejeded as being unsupputable in law or in f act or as being unnecenary to our IAshlon. 111. Ill:Gt!!.ATOl(Y SI ANIMill)N

• the Commission *a program for categoriring siolations for the pmlue of assening and deterrnining the atnomit of civil penalties is set fotth in 10 C.iti.

l' art 2, Apperkhs C Ncncial Staitemerit of policy atal Pr(Kedtire for NHC I1nforcement Actions." In general, the " nature and estent of the enforcement swuon is intctuled to reflect the seriousness of the violation involved.* Further, civil penalties zue to be taikned to the particular facts and cin;umstances of the violation involved, llase civil penaltics are set forth in "Ihble l A of those terulatiom, categ<wed in accordance with the type of activity authnrited by the liceme and the gurticular mpect of that activity giving rise to die violation in question." llere, the 1 icensec falls within the activity generally desc ribed at the time of the purported 5 iolations as " Industries Dic] users of inaterial"3' (sprifically designated as includilig " industrial radiogniphers"). Table l A prescribes different base civil penaltics for operations and health physics violations or, alternatively, trans[ortadon violations. The tuse civil penalty for the IKlivity in which Tulsa is engaged is 510,U10 for operations and health physics violations (sis of which are involved here, including two of those we find are tuote significant) and $5,Orid for trans[ortation violations involving the type of packaging requir(d to be used by Tuha (represented by four of the violations here). "181 C I Jt 1%n 2, Aptml a C,4 V. D10 Cl' R,1%fi 1 Arpendia C,iV a leMs 1 A 26la e mere revmm to es istorremeen IWy the Cwvnmeiimmal the ivpor plaat ems, sie 4 a gm now ends "Indasuul IWm or htetenal. " % l'ea Reg 40#a. 40 f46 (Ave.. )W i, sfimwe Sept. l o. lWl) 104

liase civil penalties are subject to mljusunent foi the severity lesel of the p.uticular siolatiori or violations. 1he adjustment percentages of de ime amounts listed in hble iA are 10&L for Severity level 1, Mr4 for Scierity level 11,50't for Severity 1.cret 111, IS% lor Severity level IV, and M for Severity level V violations," 1he regulations furthes provkle that, in each case, the sevesity of a sioladon is to lie t haracterated "at the level best suited to the significance of the puticular violation." In some cases, vkilations "snay be evaluated in die aggregate and a single severity level assigned for a group of violations."8 Ahhough not spwilically defmed liy de regulations, this authority lias liceri cotistrued to permit the severity level of Die aggregated group to Ic equal to of greates Own die severity level of irklividual violations compthing the group. Adainced i Mrdkal Sy.uemt, /nc. (One Ibchty Row, Ocoeva, Ohio 44(st1), Lilp 919. 33 NRC 212,223 28 (199l), appealperahng liefore Commlulon.1hc StalI utilized this auttunity in this case, 1he applicable critetia also provkic for the escalation or initigalkni of civil penalties. 'lhe Staff takes the position dult escalation or mitigatkui is considered only after the severity level of a violatkal or vlotathna has been itscertained," but the factors that influence escalation or mitigathat may aho be 19 ten into account in determining the severity level of a violatkm or series of stolations? 1hus, " enforcement sanctkwa will normally escalate for recurring similar violations."" 1he sanctio,1 itself (l.c., the severity level), however, is also likely to be more severe wlen violations are recurring n Appendix C adso authorites mitigation of penalties, for such factors as klentification arx! reporting of a violation by a licensee, cortective action to pgvent recurrence, and prior good performance by the licensee." According to the StafI, a chil penalty is normally assessed for a violathm or group of violations categorized at Severity Levels I,11, or lit, unless application of the mitigatkm factors reduces the amount to a rcru penaltyH The criteria provide that a civillenalty may also le imposed for Severity Level IV violadons that are similar to " previous violations ht which tho [Llicensee did not take cffective corrective actkm.""1he Staff applies this to loth Seferity level IV and V viClations? "10 Cil l%n 2, Anada C,iV1l.leMe lit I810 Cl.R. Ign 2, Appenda C,3 In. U h.14I (1MModern)

1. r s111s(twMecol 1

8310 Cl R.1%n 2 Arr*aA4 C. IVM "Tt sM (Cam) H l0 CI' R.14n 2, An=nda C, t Y D 14. " tW M 4,m,rf.1: 121,at24- "10 Cl R.1%n 2. Appenas C, i VS. IMMe.fwa, tr. Ta 121. si N 8'b m Ow %te) 305 s -.,,,..,+ ,....~m ..r. ...-_._..,_,,_._.,..._......,,.-_,m____,m_.~. .4. . ~.....

i i 1% tilSCUSSION Ol' IWilll;NCl: t la evaluating the appropriateness of the :ivil pen.ilty sought to be imphed by the Stalf, we observe fitt,t that the burden of prtuf is on the Stalf, as popvient i of tie Civil Itnally Order,10 C.F.it 92.7.12. We have evaluated the rec (ud evhlence with that in mind. 1. Nature of the llegulatatiindustry '1he centerpiece of the Staff's Civil penalty Order is the significant health and safety hazard that may be losed by radiographic operatimis and the r concomitant obligation of a licemec to adhere strictly to the regulatory standards established to avoid adverse consequences. As set forth by the Staff," and not ~ disputed by the Licemcc, radiography is the examination of the structure of matetials by nomkstructive methods utiliting gamtna radiatiori emitted by an encapsulated quantity of a by product inaterial, an operation that usually requires methanically moving a highly stwhoactive source ** from a well shichied losition - in an etynure device, through a region of little or no shielding, into another compwient of the equi unent which provides partial Shielding "'lhe first of these l positions is within a bot, made of a heavy rnetal such as lead or uranium, in which the $ource is hicated when not serving its intended function," The second part of the overall exiosure devlee, often called the collimator," is also of heavy metal, mually tungsten, located poximate to the object to be ' radiographed, it has two apertures - one for the entrance of the source arul r the other for the directed, or collimated, emission of radiation from the source toward the area to be inspected. i These two heavy metal objects, in practice, are cormected by a tube, called a guide tube, whic.4 is cornmonly on the order of 10 feet long 48 "Ihe guide tutt i provides a path for C,o murce between its storage position and its location in the collimator during an exposure. 'the guide tube provkles little shic!Ung of the source as it traverses the tube, Motion of the source is provided by a still i 3' start R)F se 11 18,23 23 TW sanmary <4 the equieners and encovid Angy commun to industnet indesrir y e is em lluard's undesstandmg and is gleared and camsihdated trum teaunnuiy in as ataqd us clanry the pipe and the suwnedsture by, rar steml s. redacing de bee ed the jarg<ei sd die trads 4 salhe sistseial at the swne is usus'Jy c46sh N) or indmm 197 in strengde tar the seder nr 1(R) Q Sn staft Tesumimy AnaA 4, " An 10 CLR.130 4. Kamar, rr 'tr.123, at 3 ~ "The skueseAransput c4wames is sinneumes utled e % men" Tt. Ils (Com) Addiuntuuy. as cunfwod rusnendatuve, %pmuro devW dmnue the shieldirig kw tras wiuch 04 reduqvai iac smarre is g4emt rie d travupst and stcrage. Tr.182 (Kianerk Tr.185 (Cain). Danns an capmure, die smat* is sawl to te seemed.. rima the *espwwe device" Tr, lit (Keenst)- "le.113,192 (Kanner). 01a.143 (Kaeneti ' 306 i i "-"Tv-- + ' qi gyyyT--+-gy-W?mgay,pm-q y-499939q -p.9.9,yg -pM - $ M -gu gw. g g-gig.-a--veeg pge-g q-g+

• v ig 4 m ry.w-ur epm ersw p --* e M-T Emi*'N11prvr a q-p 4 Mw e' g+t't.8 e q tasteryesae e-_-rt-irw eeeererw w + ww-W cre y e--iweisw_-up et,,

cable to the eski of wliich the source is attin hed ~lle cable, in tuin, is led into and throur,h tic guide tube by a inechanista incorporating a crank and rect." 'this nuchanhtn is located at or near the source storage containct. 'lhe dimenskms of the source the guide tube and the caHe are such that the hLchivut of de source tot being advariced is small, 'lhe converse situathvi, however, can le more severe, "lhe Staft' regotted dhcomectkms of sources inun control cables whereby the $ource was rat retrxled into its sideld by the reverse cranking operation"'the cranequential sevesity of such rnlupesatkm in relatkui to personnel exlusures, to be discussed laier, is a; parent when, he example, the source renudns, after the disconnect, in the lightweight guide tube, 'ihe Staff 1 esented a descriptian of the potential for inalvertent amt ex. cessive tallotkm exp(nures to the pubbe and to persons autikvited to conduct radiological examinations aluent adherence to catablished pnicedurcs such.u dnne set forth in the segulations," ~lhe intensity of the gamma radiation field adjacent to a typical source used in induruial radiography is sufhcient to cause biological damage to tissuo within a few seconds and to be gutentially lethal after a few rninutes of direct esposure," lInarnples of such consequences are tellingly portrayed in an NHC publication titled " Working Safely in Gamma Radiography" (NURI!G/111NK124, September 1982), referenced by Staff wit-nesses" arnt introduced into the record." 2. Dhcovery of Violations The violations that gave rise to the Civil XYnalty Order emanated from a routine unannounced inspectkui of the Licensec's operathms on Octoter 2 4,1989, conducted by Ms. Linda Kasner. At diat time, Ms. Kasner was an inspector with experience as a Medical llealth Phyriicist; subsequendy she became a Senior Radiation Specialist Ms. Kasner had previously assisted another inspector during a routiric frapretion of Tblsa in Novemtwr 1988, and she sulnequendy perf ormed rautine inspections in Octoter 1989 (the one under consklenttion here), and March 1991 " She hat had exIrrience in performing "The pnusas einereby dm <sWe and Sune erv armd dwS'55 dw tule is saDed "trunhing

• Ts.185 (Cam)
  • Tr. iR8 st (C4,n)

"trs 199 (Cam) "Je# 10 CLM. hn 34 " Cam, fr, Ts.123, at s 9. "Tr.182 (Keened i /,"<susnent) and dw lbs,d Cqnes em 0,creafter sh.arNed in des D,wed and o e dmses rJe by letter rmrn Left x.aff rah. l. several sque sta amleMe at dw branna rar 4+ una d ra'bes (*ha lud rius en** to dw P emnnd dated My 23, 1991.- "Keews, er Tr.123, et I,2, L karr testanmy. tr Tr. U3, Audi 2. 307 ._._..~-_,.._---.m,._._,,.-

_. ~. _. _,. _..___________-_._m. radiographic field cirrations, including cranking out ohhographie sources, as desciibed above," -During the Ottoler 1989 inspecthat, she identified ten ap;urent siolations, r,et forth in Appendix A to this IVeiskm? (As mentioned cather, the Staff subsequently deterruined that (me violation did not occur, leaving mne out. statuling.) 1hc 1.lcensec was provkied a copy of the impection report by letter dated Novemter 13,1989? Previously, however, at the exit interview of the in. spectkm, his. Kasner reviewed the apparent siolations with three representatives from the Licensee (two of whom appeared as witnesses in this hearing)? Ily letter dated Novernber 17. 1989, to NRC, the Licensee sesponded to 1 the apgurent violations set f(sth in the inslution report, with explanations and proposal or elfectuated corrective actions? Three days later, on November 20, 1989, N RC's lindings were discussed with Mr. James C. hioss,1btsa's Presklent, at an !?tiforcement Conference beht at the NRC of fice in Arlington, Texas '* - 3. Staff Cakulation of Cisi! Penalty 1hc specific aspects of tie industrial radiogrnphy activity giving rise to r the violations here are denominated by the Notice of Violation as faibng in the aggregate within Severity Level lit, Supplernents IV ("ilcalth Physics"), V ("Itansportatito"), and VI ("Ibel Cycle and Materials Operations"). 'Ihe operative lanFuage in each of these Supplements is said by the Staff to be .Ilreakdows: in the radiatkwi sarcty program invtJvitig a number d vwlatierts that are related that collecovely represcia a i ll i if l d d sticinam to tavelcairwin twsed ticesued respinsitshties? gxscen a y s gn icaru a 1he nine admitted violations here fallinto three general categories. Violations la and Ib - two of the more serious, in the ikurd's opinkm - involve the active conduct of radiographic operadons. Violations 24,7b, and 2e concern failures to determine and record occulutional exposure hta concerning several radiographers, Two of these (2b and 2c) were designatal as repeat violations. Nh 124 (Kasnerl $2NRC Ir.speiten Re;ws 3412319M02,dawd Ihnenbar 9.10s9,5ta'r Tswmmmy, Artad. 5.at A%3 thrmgh A%11 "siaft Test 6m,s.y. rr. Tr.171. at Att and AS 2 $'/4 et AS-5, Mid, Astai 9-. S'rd, AnaA 10, st AinI and Ala2, Tr. 323 (IkiMe. tug 87rkJMvdica, fi.Tr.123 et 25,29. s1ung smular language to 10 Cf R. Pen 2, Appent.a C, supp IV c1teaiot I styses*'), severtiy Imyd IR. horn Cl2, Eg. Y C*rrampiutatum"). Severity Irvd IU, lam C3.'and Supp VI c*lWJ Cyds and statmals (hwrstiima"). Seventy Iswl tir, han C s 308-i- l i r { l m

Violatiom.14,4h,4c, and 4d invohe laihue. relaung to tie tramportatmn of s radmyraphic espmnre desices to radiortaphic anatesiah - wuh 4b, concerning a failure to l* rate or bhxL paikapes contaming sadioatthe materials during trangertation being the anost scoout As noted above, under Appenda C, transpittation nolatiom entail a tesser base civil penalty dun iki operatum os health physics violations. Neither in the Chil petulty Onk's not the carher Notice of Wolation dul the Staff auign severity categories to any of the moividual siolatiom. they wese only comidered in the aggregate as Severity level 111.$8 'the Stall detived the 56,750 civil peruity in the following manner." As set forth in Tubles I A and lit of the linforcement policy, referenced above, the base chd penahy for a Severity lxvel 111 oleratiom or heahh-physics violation against a hermee in the category in whkh 1 bha f alh h 55.Oto (501 of the snaximum penalty of $10,(x0 for that category of licemec). The Stall initigated this p'nahy on the basis of promp and comprehemlve correcthe nction on the specific violaihm, but it faulted the Licemcc for not having ad.bessed to the Stall's satisf action (at the time of the enforternent conferencel de asserted lack of management atterition to licemed activities." Out of a smible 501 mitigation for conective action, thereflue, the Staff allowed 25% (bringmg the perialty at ttut stage of the cidculation to 53,750). 1hc StafI then determined that escalation shoukt be applied, bawd on prior radice to the 1.kemx of similar events or problems and its por prior regulatory perf(xmance. 'the Staff in particular (iicd its prior notke concerning latt of management uttention to licensed activitics und prior notice (oncerning at least sis of the tjecific violations. 'the Staff testificd ttut snen violathms had been noted during a pevious ins;rction in 1988.*' (lly the tinie of the 1989 impcction, six of Ome had been" closed," apparently to the kathfaction of the StafI, und the Licemec had propmed a solutkm to the other that was awaiting Stalf review ") 1he Staf f pilnted out that up to 1(O% escalathm wm permitted for pior rmtice of similar events and up to an militional lOfr4 for poor prior regulatoty performance. 'the Staf f applied a 75% escalation to the base penalty of 55,000, out of a total possible 200% cscalation, adding 53,750 to the above-calculated penalty of $3,750, reaching a total of $7,500." (As stated earlier, this penally was based on ten violanons; wh n the Staff was sathhe<1 that one ti;ml ruit btrii committed, the penalty was reduced by 101, bringing it to $5,750) u n m (tutaa "lkuladim ft le 1D. at Mil "J4; h 117 fam), h 128 (tk.i%te4 "I staff I A 2. Nihe of vmletwn estr.J january 10,1959,lesM on inspa.tue u,rui,md m Nmembre 29 M. 19kl Ustaff 1=um..w. if h 121, et M s em! M 6 "lM%Wi. rr h 121, ei 31 .t09

j 4. I:saluation of Sescrity I.cstl of Clill l'enally j

• the StafI's rationale for auigning die aggrgated violations to a Severity lesel lli category appears to deperL1 on its view that a significant nurnber of violations per se trarnlates into a maiugement denciency,1his b so irrespectin e of the scrimaness (in the Staff's view) of any of the particular violations or whether management could. In fact, have averted those violatiom by adopdng I

any systemic program. prior to lespondmg to inquky by the lloard at the hearing H the Staff did not evcn esaluate pirdcular violations: it snerely set a severity level for all of the violathwis collectively, determired the penahy for that seventy level, and divkled the penalty proportionately for each of the violations (resulting in a i penalty of $750 for each violation), Althougt, she Staff esplains that the 5750 represents only "an administrative incans for allocaling de civil penalty'* for a more seriods problem, the effect is the ap1urent impor.idon of the same civil penalty for activides to which widely variant severity levels are attributable. As pointed out previou ly,in die proceeding before us, the Stalf aggregated a group of nine inised. severity violatkuu, w hich individeally ranged Inun Seventy level IV to I.evel V, into a single Severity L.evel 111 violation. It set the fmal severity level on tic basis of its inference that the group of violations colkttively demomtrated lack of man:.gement control or carelessness toward ikynsed responsibility and that the violations show a pattern that is attributable to the same root cause. Tte inference was made and the severity level assigned - without first specifically evaluadng and classifymg each imlividual violatkut." According to the Staff, the tool cause for the violations is a breakdown in management control of licensed programs, manifest by: (1) the number and nature of violations; (2) the fact that the violations were identified by NRC raller trutn tic Licensce; (3) the fact that the Licensee had been previously warned by NRC in correspondence to impmve management tittendon toward compliance; (4) the fact diat some violations were recurving; and, (5) the lack of management attendon to compilance issues tahed in information notices," *the Staff adds that it assessed the civil penrJty "specifically because the Licensee relied on the NRC to identify its violations rather than having its own management program to self idendfy and cortcet de violadons "" The Licensee strungly th}ects to the aggirgation of violations with concoml. tant increase in the severity level that resulted in the assessment of a civil penalty, it believes that most of the violations were individually of minor safety signif-r "$se Tr. 330sl (DcStadwn Cau4 '8Etaff R9 y 100 si 6 l "IhtWAg tr. Tr. W, et %,29 so 084 et 50. -

1. staff IOP, 'Oswbouvi er I m" ha.10 t

310 l 1 t l l l .. ~

l r i icance alul tlut no cisil petully vco warranted. In refening to de inIsastions involving recordkeeping oversights or omissitwa, it queries "Slouki cah war, tant a 5750 penally?* It (omludes det diese NitC penalties are "cwsbitant and att itrary.'"' 5, ihaluation of Sestrity 1.csel of Violations i Under the linf ort ement l'olicy, the "sevesity of a violathvi lis) charac terited at the level test suited to the significarKe of the particular violatio%" ltcyond diat, in some casca, the Staff is permitted l') cvaluate violations "in the aggregate" and assign "a single severity level... for a group of violations,"1' 'Ihat is the process the Staff followed in L ds case, aggregating a nutnber of violations to t . remh a single Severity level 111 violation. 1b determhe whether the StafI was justif ed in following that practice in this case, we must determine wheder the Itulividtui violations here, w hen considered collectively, wanant that degree of severity. We tute at tie out'.et, however, that the sever 1d vlotatkms are clearly not of eqtut severity arul, as a matter of fiound discretion, should not be treated alike, We turn first to the three admitted violations timt we deem most serious: Violations la, Ib, and 4b. *lhers we will analyre the other less serious violatiom. (a) Ylolation la l Violation la involved a failure to conduct a radiation survey of an esposure device following its use at a temixirary jobsite. 'the Sudf inspector observed two radiographers engaged in activities on the rooftop of a refinery insilding!8 She first olocrsed two exposures from the ground Ian saw no post-exgxnure surveys being performed. While going up to the roof, she abserved a thltd cxlwisure for which no survey was perforrned. Once on the nur, she observed the radiographers leaving the survey imtttunent at die location of the crank, [ appnuching de collimator to reposition the source guide tube foi die next exposure, arul (despite their awareness of het presenec) falling to conduct a i survey?8 She testified that, when she later quesdoned the radiographers, they admitted not having performed the surveys despite their knowledge of the requirement to do so. I taemes104 p2

• Id 73 10 C 11 ha & Anmha C,6!!!-

78Koner,if, T<,12) m 4;le 1W (Ks.ncri 73 w a runher dsuum ne lt. 201 (r.in) t 31I . ( ll t l. a,,. .w.-- ..,--_-._,_.__m -.~._~.,....m. ., _,,., _,, ~ _.,.,..

i J F As set fo Oi loth in its letter of Noscinber 17,19hv, arkt in its retvuary 22, 1990 respotine to the Notice of Ykilatuui, the Lkensee clainied that the leal radiographer in question was well trained and well qualified to perforrn rm!!ography but was under some stress - taused, in lurt, by de prese:Ke of t e NRC Impector," 'lhat is no cAcuse, however, for the violation in quei, tion. i Raliographers are expected to be able to operate in accordance with tegulatory requirenients under all tiftumstances, irgluding stressful conditions." Surveys a:V roluired to le pe fortned aftet each wc of the source, to ernure that it le retracted into its $hichling coi.tainer.10 CP.R. 6 34.43(b) i Perfotinance of a survey after each use of the source, to ensure that it is letracted into its shield, is cascrittal to the health and safely of individuals who may be ricarliy such operations: failure to C(Widuct the survey properly is the I most common contributing factor in radiography incklents of overexposures of personnel." Indeed, as the Staff testified, failure to conduct a suncy would currently be tornidired a Sevetity 1.csel 111 violatiui in itself," and suth f allute also could lunc Wn comiderni as Sevetity level 111 at the time of the 19H9 l s ykilation,' The Staff rated Oils violation as the rnost serious of the nine under review." We agrec.. j i f ib) Y M atton Ib l Violation Ib invoimi the failure to post a "Iligh Radiation Area" sign denot+ ing an area where the radiographers were ronducting sadiographic operations, indeed, the site, the job, the thne frame, tie radiographen, and the NRC in-spo; tor who observed the activitics (Ms, Kasnet) were the same as in Violation la, describal above " Ms, Kasner testified, without contradic00n, that die top of the refinery was not properly postal, as requircd by 10 C.1.R. il 34 A2,20.203(b), and 20.203(c)(l). "tA IA 1 e 2 ne es,e surt 1 ,n Anma o (mi.nN n..m. w N. mnh It, ivo i==1 + Aldagh the starr,in prommag tia sua,Iwa noned Ow rate sa emus matemt rawn 4Wumma em snunds s4 tainsney. og spesu,e wtweef 6: na argwogeista bare to earme sity pruim ad dw 1Ammae'4 esplansu m sd 1 wha hs;3.sved. mswnhmarutmg the hurt's view gi de perunerne er wahddy or the redsue=1 pewum %, have + dw 44,bgetum to judge the preemine ed the thanses's menines to Ow uwes in tius pn mhtig sad,armai do so wohois tems athsdod the #4We sospese tw that sonstm, we era re. lying an tarware 1:4honi I f,e dw p"neanuuim or ibe themwe's tospw.ne. l Tr 174 75,180 (Kseus),1t 380 (1MMaimo).1s. 382 53 (com) "8se else It 2u54 (KeanwX swrf l sh,1 M lis "Cebb ff.1s.123, at ll-lf. "Tr. In (Kainw). suhepent u, da vwlau.cs at inue here. de Ciermuasum ama dad tis enfmanamaem spessfailly to versione, se a seventy Ievol til vu, latum, de le% e no siedort a swvey 1. IM<75 (DulModu) Jee !$ I ed. Reg 54) (la410, IMO).. "Tr l'n (Kunar),1s 31).34,3#,8 (rwWh.c) - "'is.177 (Kunn). H: M (Kannett ! 1 ? 312 .1 1 1 l l ___.__..._u__,.___..-_.,__..~_

t r i One of two outside stairways leinhng to die roof - die ofic u*ed by Ms. Kasner ) - was not sei.trkled or pnted at all, 'the other was only irstricted at the top. Access to the roof could realily le gained by persoris not emplo)cd by Tuha, and in une had even chesLed to see if the budding was occupied. Nor was the area under constant surveillance, as aho required by the regulations? In its response dated Novernher 17.19N9, to the inyation reput, the Licensec stated only that each of its employees was ante of the requirement." In its ressmse dated February 22,1970, to the Notice of Violation, however, die L6censee observed that the building was urunupied, the only acceu to Oc roof was by uttee staircases (one of which pesumably was inside), that Oc staircases were barricated with sopes and radiation area sigra,'that ropes around the rmitation area were errcled, and that the exposure Ome was Ivl 45 setorx!L lt concluded dmt "(alithough our operating procedures require pnting l - of the 'lligh Radiation Arra' signs there was no danget of anyone entering the area and receiving any radiation because of not posting a 'lligh Hadkuim Area' . sign.***

• Ihe Licensec's claims recited above are tot supported by the evidence of secord supplied by the Staff, which was untebutted, We therefore ados the facts as advanced by die Staff with regard to the posting violation, in particular, we note that Oc Staff inquior did indeed reath the rooftop area through an unposted and unharricaded stairway?
• Ihe StafIaho establishc d de signifkance of the violation, lusting is required due to the radiation levels potentially present (where a major pution af the taly could *rceive in any I hour e dose in excess of 100 millirems) and the sud to make individuals in the area aware of the hatards present, Posting is important in maintaining a safe envirorunent for performing radiography, to prevent utmecessary cAposure of nonradiographic workers and vac general public, Radiographers may not te capable of maintaining 360" surveillance to prevent unauthorired entry. The majority of overexpmures and unneceuary exposures of members of de public are associated with failures to propenly put

- and restrict tie area? Indeed, failure to post pivperly could today be regarded as serious enough, m it'eff, to constitute a Severity level til violation, 'lle Staff indicated that, at die Ome of the violathni, it would have been classed as Segerity 1.evel IV, although in some circumstances it could have leen higher " "Ka.nn,it 1v 12.5, et $; Tr 1N, M10 (Kunwh ad she Sieft 'tutumn, rf.1r IM, et A4 in "st rf Taum s y tr le 1U et A9 2 Diam f4-a

• • theses I.sh I at 2 sisfr liceme, tr, Tt IU, as All 2.

"1r. 20W) (Kameth Kawn, ft 1t. ID, m 4

• • ceia, fr. Te iD, et it*l7.

"Tr 3 o (!Mhtweh m ahn 10 CI.R het 2, AgymW G sgls. VI, O l. 313 vv-, y--+,. o,g,,-v,,,=-.-- y-_,,,,-,-Y,,,,,-,.- ,w,-,,+,..... .,.r ,y-,----,m.---.-._nwy,,,. y- -,, 4 -g.~w .. ~ -- p

i t (c) YMation # Violation 4b, the diird of the more serious violations, involved the failure to brace (r bk>ck pacLages containing ralicactive snatcrials dur!ng tramportalkirt During a visit to the Licensee's facility, the NRC inspector (Ms. Kasner) observed two radiographers departing for a temprary jobsite with an ove 1ud (contalning an egiosure device) within the rear compartment of a truck." *the 1' truck doors were open." Ohc lead radiogral er was the same a the lead b radiographer in the hregoing roollop incidents?) llecause the radiographers had failed to secure the rear doors of the trmL, l and they had opened, the overpxk was otserved to le not bkicked or braced at the time, leaving nothing, to prevent the device from sliding across the ther or, in fact, out of the trwL" Hat it did not do so was fortuitous, in the view of Ms. Kasner," Dunng two field impcetions, Ms, Kasner also obseived that two rmliographic devices had been transpos1ed to the field sites without bkicking or bracing, as required by a Departinent of Transportation regulation, thus permitting the devices to change position within the vehicle, During subsequent interviews of Licensee personnel cach radiographer interviewed admitted that overpxLs used to transgut radiographic devices were not normally braced or bkicked during routine transpcrtation. He Licensec carlier had acknowledged to the Staff that it had received an NRC Information Notice (IN-87-47, dated October $,1987) reminding licensees of the requirements to use an overpack and to bk$ck und brace the packages during transportation. Acctrding to the Staff, the irquiresucnt for bhicking and trating is designed to grevent the transportation of packages containing harardous material in a manner thv would permit inovement of the package and possible vic!ation of the shleiding it [rovides, lleyond that, failure to block or brace may permit the device to fall out of the vehicle and be retrieved by a member of the public, Icading to a potentially hazardous exposure Pailure to observe the requirement thus may have significant safety implicathms," __ %c Licensee provided a number of seemingly contradictory explanations f(x the acknowledged violation, in its letter of November 17, 1989, responding to the inrpection report, it indicated that, as of a 1988 inspection, it was liot awtire of the requirement but that," Effective November 17,1989 all trucks used 8' An merped is a sien! drum enstairung styrcinam inserts into shi,A the esiwaure device is camera as placed a tar vana;wtauce. Tr. 219 (Caink Tr. 231 (Kannerk "Tr. 426 (P, East " Ka.ner, fr. Tr.123 si 6, su al,e Tr. 231 (Kauwei Tr 239 40 GWloduel " Kenner, fr. Tec l23, si 6 "Cain, tr. 'tr.123. at 21. 314 i i ,,a- ,_t._.

lor radiography tue now equipped wah sc>uaining unds to picstat unneinent within the schitle." in its Ftbruar) 22, l'rM respinse to the Notne of Violation, the I hensee tiled dilhcultics in bloding aret bracing an userpatk mntainer in se uate requirenient), nod at the laanng the 1icensec repeated this clalin?' 'lhe 1icenue asknowledged its awartness of the requircinent for blotking and litacing, it aho indicated that tertain conunnu.aniers <lui not bhs t or bsa.c <s otheralse secure ove pxL uint;lness. And it tk scribed an alternative incthod that it had been ming to ashicsc the sarne result as bhitting and tiracing. A licemcc 4 riot lice to subshtute ils own inctlnl of achieving a result for ont picscribed by regulation. We do not have an adequate rewrd to deterinine whether the inethod used by tic 1icensee satisfact<vily tubicscs the purposes sought by the acquircinent for blocking and bracing. Inut egen if we did, we are not free (m the 1.itemee is runt Irec) to igruve regulatory requircinents, it is clear to m that the requirement hr blocking nnd bracing has salcty significance, indeed, it appears that a f ailure to adhere to such requircinent wouhl f all within either of two criteria, both of which are currently evahuted as Severity inct Ill: vna the er tac u n pc.non styuirnnenti inwhmg f, ei.mpic. 3. Any u.euunpham e e nh. loa.f mg, _ inpntrmeens th.: md.f er.um.idy erauti in the folhiwirig-Substanual parntial f or pnusuwl enraure of wanan.ium. t bal s nee.sa.wn m ibe tuenue, proer.m kr ibe u.ner.n.u.m a hsemed m.ico.1. lit., the triieria rehed im 13 the %!! in tie t'tvil l'en.Iry Oract) As indicated earlier, the Staff wouhl have evel'tated thh violation nione (at the time it occurred) as either 3cterity Level 111 or IV and, because of the even truck door, considered it to be a Severity I evel lli violation," liased on these criteria aral the admissions of the Licemcc to the Stall, we have no doubt that the routine failure to brace arxl block in itself could be categoriicd its Severity 1. cycl 111 or IV, irrespective of the efficacy of the alternate inethod utiliird. " Tr 41719 O Maar, T: 479 N Ot M n) "To 3170s (ik%tur) 315

(d) The Sit 1.ns Significant Ylolations 'Ihcre are sis teniaining violations that the Staf f (in angunse to lloard hwiuiries at the hearing) slutaclesited as Severity 1.evel IV or V, 'lhey inay be suturnarited as follows; 2a. Itadiation eximure records for sis radiographers covering the period froin May IH9 through July 1989 indicated that personnelinonitoring devites had been dane'ged and could not be analyred. As of October 2,1989, the Licensee had not pesfornied evahlations to deterniine the rmhation extuure recched by the sia individuals. This was classified by the Staff at the hearing as a Severity Levelly violation." 2b. Tie Licensec failed to obtain radiation exposure infor niation corn etning the current quarterly occupational dose received by two radiographers prior to l assigning thern wo L in restricted areas. 'lhis was alleged to be a repeat violation. 1he Staff classified this as a Severity level IV violation at t% hearing? ic. "Ihe Licensee allowed an individual to acceive un occupalianal rmliation dose in execri of certain specified regulatory standaids without having Ibitu NitC 4 signed by the individual to certify the cornpleteness of the record of accurnulated dose.1his was said to le a repeat violatiori that, at A../aring, the Staff classified (when standing alone) as Severity Level V." 4a. On Octoter 2,1989, a 1.icensee representative translur1ed two exposure devices containing tridiuni 192 in packages bearing "itadioactive Yellow II" labels that did riot specify the identity and activity of the ra:clide. "Ihis was classified as a Severity level IV violation at the hearing," l 4e, On 0; tater 2,1989, a Licensec sepresentative transported a source and carried shipping papers showing: (1) an incorrect transportation index for a package labelrd "Itadioactive Yellow 11," and (2) inconect luckage identification descriptions. 'lhls was classdied at the hearing as a Severity Level IV violation)"

44. On Octoter 2,1989, a Liternec representative translorted a padange op-pnpriately labeled "ltr.dioactive Yellow 11" in a vehicle tearing a "itadioactive" placard. Such vehicle labeling is reserved for guckages bearing the "itadioactive Yellow 111"! alvi, At the hearing, the Staff classified this violation as Severity Level IV,*

The Staff presented evidence on the safety significance of each of these less.slynificant violations. - Most persuasive was its connection of sorne of "Te 335 (rMMeda4 "Tt 315 tesin). ~ "M N Sielt added that, tecsans d nyaarn. ibe wasuon km mig *s be argued as im!IV, "Tr. 337 GMMedwo)-, '"Ts. 338 0wMadwo).

1. Id 316 t

-a ...n.-,.-. ,--c. -. - -,,,, - -.~.. -. -,

die guperwtvl violations to die assurance that exposures to radiographers do rot escced regulatory limits."4 On the other hami, the itngettance of dic overplasarding violatiot. '1) - 4.c.,(10 (onveying of accurate informatiori in the event of a truck acci uppears rio more than snarginal. t it) Aggregation of Violations As indicated previously, the Staff determined that all of the forecoing violations, considered collectively, represent a "signibcant regulatory concern" resulting from a " lack of maragement control of the prograrn" that equates to a breakdown that, in the aggregate, meets Oc criteria for a Severity level til violation. 'the Staff reahed this conctution without hrst determining the - severity level of each violation trutividually.1" *lhe Staff based this action on its determination that Oey all stem from the same not cause, the lack of attention to compliance with NRC requirements. The StafI made no broader hquiry into the overall operation of tie Licensec's prognun,"" We reiterate that, in this case, the Sitif did take into account both the number and the_ significance of the violations. We stress that the significance of the i individual violations - considered alone - is imiottant, because a number of violations th.it are extremely minor in nature might le insafficient to establish a programmatic breakdown Hot rises to a Severity Level 111 violation llowever, die relatively large number of violations in this case, together with the significant safety aspects of some of thern and their similarity in certain instances to earlier violations, clearly constitutes a sulficient programmatic Iveakdown to fall within the scope of a Severity level 111 violation as denominated by the F.nforcement lblicy. 'Ihe circumstance that some of the individual violations, in themselves, could be evaluated as Severity Level !!! lends even more credence to this determination. Two additional observations are in order. First, one of the Licensce's most forceful assertkos is that the NRC Inspector (Ms. Kasner) at the exit interview indicated in substance that "It]he infractions are of Oc level IV and V category" and did not comtitute fineable offenses.8* The record does rmt clearly support that assertion. Rather, it appears diut Ms. Kasner may have advised the Licensec that many of Oc violations were of that nature but that some were more significant and that collectively they represented a marmgement oversight pntlem."" Ms Kasner clearly indicated that she also advised die 1.icensei. t%t W Cale, K h.123. at 18

• M st 272s.

3"h 31s,316, M54 (IMMak e); iMM=bm, fr. Ts.123, si 25,26 -

• Tt 304 03 (Cav4 1.kensee IDr' at 4, ud abe Tt, 45s (P, shma)

1. it. Idi44 (Kamast 317 c

_a, _. - _....%,m ,_,,,,m_ _ _ _.... ~,.. -

she did sud haic firul auttunity to assign sescrity levels to siolathun"* and that there was a possibibly that NRC nurugenient anyht accord significance to the number arul de corntiton nature" of the siolations." Secorst, in transnutting the Civil l'enalty Oider to the Licensee, the Stiff (through llugh L,'Ihompson, Jr., Deputy thecutive Director hv Nuticar Ma-terials Safety, Safeguards, and Operations Supicrt) observed Liut " individually dese violateons da sug ruvmally rise alove Severity Level IV....""* Tbts cominunication was unfortunate, gurtleularly insofar as it created the irnpreukui dat de Staff was attempting to "pite on" unimgvutant deviathva to c!cate a violation for which it could aness a civil penally. As we love seen, this we rug the case, given the individual significance of some of the violadora.

• lhe elements of a roourxl radiation safety program guesented by 'Ibisa - to le discuued later, in conjunction with escalation - 40 hot detract from the fact that a number of serious violations were in fact committed, lined on these t'onsidesations, we find no abuse of discretion by the Staff in dete4minit:g that, in the nggregate, a Scterity level 111 violation occurred. Ibr that reason, we are ugdnilding Om fialf's determinathat in this scspect. A civil penalty is warranted unless nunc inityating facts exist.

As prevk>usly discuned, the tuse civil penalty for a Severity level 111 violation (imotving operadons, as in the caw of five of the remaining alleged violations here) amounts to $$,(XX).8" In scviewing the Staf f's nuenment of the civil penalty here, we begin with that figure. 6. licalation As set forth earlier, the Staff escalatc<1 its base civil penalty of 55,(XK) by 7f %. 'Ihc t calation wm lusd on the I.lcensec's prior notice of similar events or problems and its po(r prior regulatory perkrrnance, The prior notice and poor prior performance cited by the Staff related largely to the violatiora that were not the most serious - die paperwork discrepancies, and to general notices concerning management's attention to details, in contrast, the three most-serious violations described above were first-of-a kind and not specifically the subject of prior notice; lleyond that, as pointed out previously, those serious violations stemmed from the improper performance i 3"Tr 14s rKasner); Tr. 41s-39 o 4*s) See miso lr.151 (Cam). 3"Tr.150,3Ss (Kasner). oo siaff Tesdmiry at Al2-l. I" As ein torth earber, uw bene level ill civu girnaby far transportatum violaues (of which there weve four, including one c( Gw move 6:gmrwaru)is 52.5M A 3*d organeers amid be made that the bene of an aggregatal veedatum should sepsesceu a wnghted svarage or the eggergsted stolatuva - here, s4.OR llowever. b%euss the ma ongmal and 6ve nrnemmg rgwrstuwe violauore (sluds g two or b rnnre seniaw)in thensdne amours to a e severtiy level 111 vadarm. *. are vidinns the ti.thn base civd pmahy far h Ievel !!! wwdan<no hers-31st . i n,

3 i of a sinyle radiographer, w hose credenth clearly quahfied him for his lusiti m and whose pe formance on the job had previously been monitored and foutui [ acceptable.8" In contrast to this one radiographer, 'Ibisa routinely employed twenty radiographers,8" with no serious a[ parent violations attnbuted to any tiut i this one."'l'inally, there were no escessive radiation ex[usures attributible to any of these violations."' 'the Staff's reliance on poor prior regulatory performance as a ground for escalatum was imed in large part on paperwork tyiv violations identified in an inspection conducted in Novemter 1988."'1b ressed to this position, the Licensec demonstrated that it has had a functioning radiation safety program that ircludes measures, some m excess of regulatory rn!uirements, to strengden the safety of radiographic operations. Specifically: i (1) The Lkensec regularly assigns two rediographers to each job for safety reasons, even though not obligated by NltC to do so."' (2) *Ibisa utallies an Assistant Itadiation Safety Officer in addition to the requisite Itaduation Safety Officer, even though not required to do so."' (3) 'the Licensec exercises management oversight to personally ensure that complete radiation trport records are kept."' (4) The Licensee conducts quarterly field inspections of its radiographers to ensure that safe practices are being used."' (5) Tic Licensco conducts regular radiation safet; inectings with em-ployees where specific radiological safety practices are discussed. it orders torrection in the behavior of nonconforming employees.m (6) Licensec has in place and communicates to employees a company policy for employees to work safely, in conformance with NitC requireinents, limployees are tot to work undet unsafe conditions even if a client is lost as a result.m Additionally, ahhough not an excuse for the violations, the Licensee had made affirmative prior elforts to obtain the information on employee radiation V na Ts.179 (Kaaner11r. 416 (L Wes). "8Statt Tiatanmy, if,1r.123. n AS 6 (nan 3).

• thrmg the insparthm that gave rise to the wwlatwns ir. this case, the su!T tnaposed the utwines d arusher radmgregher and was unshed wuh tus reformann. Tr. 26445 (Kasnevi
• Tr.153 (Cain).%. 397 (1. M<aa)..

"' staff tah. 2 "ITr.408 0 Mass -"8 Tr. l'a (Com). 8"Tr. 412 0. Wes) nelt. 41516,45739 (f. Mas). m Tr. 425-29, oo44 (1 Mas, P. M.mst - mTr. 454 9. Moesk Tr. 455-56 (P. Mess). 319 r-l I l l. i --. m .. ~ _ - . - ~. .~

i t i doses cited in Violations 2a,2h, and 2c,liut the records wrie incornplete at the time of tie inspecthm,"' l lbrthermore, with respnt to the two repeat violations, the 1,1censee em-i plustml their relatiW imL of safety significance, in lurticular, Violation 2c (a Severity level V violatkin)"d rmerted that hisa ulkmed an iruhvhhul to toccive an occupathmal tallation dose in excess of cretain standards without having a form signed by the individual to certify the record of accumulated dose.1he form hat been comp!rted by the 1.icemec, and the inspertte verified I tlut the accumulated dose was not in excess of regulakity statulards. Nonethe. i less, the individtui had tot sigreed the form and, thus, hisa could riot confirtri Hot the rturd was correct in its entirely, hisa was therefore charged with a ) violation.* Although not specifically tied to this one violation, the Licemec indicated that radiographers occashmally wmL late night shills and, when they do, nmy not be contacted ori a daily basis.u* lbsther, the Staff indicated timt diere is no regulatory requirement for ongoing sigimtures after cali caixisure,'" he other repeat violation (2b) involved the failure to obtain previous occupathmal exposure information for two individuals lwiw to assigning them to certahi activitics, a Severity 1.evel IV violathm "* Ahhough more serkms than de former, it runictheless is runt a significant violathni. Ikrause of the relatively insignificant nature of the two repeat violations, we conclude that escalation of 75% in large part on the basis of these violations is excessive, hking into account the many effective measures that hisa has adopted, tie opinion of the Stalf Liot hlsa's radiation safety program is currently in basic compliance with regulatory requireer.cnts,* and the circumstance that the violatkos did not result in any excessive radiation exposure, we find es.calatkun of no snore than 20% ($1,(XKl) to be appropriate,

7. - Mitigation As noted earlier, the StaM mitigated the civil petully by 25% based on pnunpt correct.lve action for trutividual violations achieved by the time of the ca orecment conference. De Staff dechned to mitigate an addithmal 25%

i r 'D 1 4(* 10 (t Mme) -

• W staianess in start it gi y 101' at 40 n 6, est Lie e.e sqwt violeums are "gmerally" dand.ed as sewruy t

leal IV, is male 4 des at best A start wiuwme chawtansed Vedatum 2c ets wrmall( sewniy teel V, a ahhausti he added Owt. tosoc tt was e impeat n,tateart, a trught hers t=ust regardul as acwany inal IV,1: 1M (CamL it. 351 s4 (Kasrwr) It,4101i (P. bsises

• 1. 1t.184 85 (Kannes, Cam)

U8 1r 35.1 (Cam). ~ @Ts.141,279 (IMWlud it 270 (Cam) 320 r l i l l' I I, ..a 4, -~-x..._,,

inause 'luisa had tailed to ad,hess propcily the managernent issues uted by de Staf f. We find no basis for anothlying the Statt's determinanon on nutigatum. We are therefore approving initigation in the amount of 25 % (51,250) H. Amount of Chil Penalty in deriving the amount of Oc civil penalty we Imd appropriate, we reiterate our view Out there shouhl be a l<tter system for denominating the sahie of individual violations than by treating each of the ten initial ark! nine outstarnlitig vk31ations as worth 5750 each, irrespective of their scverity. Pniper evaluation rtyuires cornideration not only of numbers of violations but, more impoitant, their sev. f.25 lhe record here, however, suggests no better way, arkt dius we are following that method in deleting an arnount for the withdrawn violation "5 Other.han the number arul nature of the siolations alissue here, we have seen no additional evidence of a general progrtumnatie breakdow n. More appropriate management practices would not hkely have prevented the three most scruius violations imm occurring, although they might have prevented the occurrence of certtin of the uss-actious paperwork violations. We note, with resped to several violations, the Licensec expressed some confusiort as to the scope of specific regulatory requircinents "2 Although not an excuse for the violationi,it is na appropriate factor to consider in assessing the amount of a civil penalty. Taking these conthleradons into account, we conclude that the base chil penalty should be 55,0(K) (Severity level 111), that escalation of 51,(KC (20%) is appropnate, and Liut $1,250 (25'1) should be subtracted fo; mitigation. The civil penalty that should be imposed for all the ten imtial alleged violations is dierefom 54,750 Reducing dat by 10% (5475) for the withdrawn violation, the nct ci il penalty that should be inyosed is 54,275. V. CONCLUSIONS Ol' LAW l. 'Ihe Staff was correct in its conclusion that the violations under consid-eration here in the aggregate amount to a Severity Level 111 violation. 2. A base civil penalty of 55,Oto, as sought by the Stalf, is appropriate for such a violatkin or series of violations. 4 h"1hc sm" mano.wgal iMt. te sint.e smca inmivmg rns.tuge unteu o, h dmarm <d the ual geby ammg swubtwet pens has run tan equal, whee a udet,m was unvudomt earmany egn hcuu le W O k!Mahenk

• The kaft naheie,I ins violatum as sevsoty la vd !Y, Tr s44 (IMModwti) in ;wnwular, the th,gdsy nn whnica or inteaum ute,mf ywg then sorgo (Natum 4 n 0: 449 s0 (1 W

he)) and the ruimrmem tot bbn b mg and braung (%)atum 4b)(h 422 O'. Wm. J h 0-321

3. Contrary to the Stati conclusion, escalation of this penalty in the amount of no more than 51,000(2091) is warranted.

4. Mitigatian in tie amount of $1,2$0 (2.W) is warmnted, as concluded by the Stalf.

5. The calculated (ivil penally should LA reduced by 10% ($475) represent-ing the proportionate amount of the widkira'vn violation (Violation 3).

s I fi. A civil penalty of $4,275 should be substituted for the $b,750 sought by tiie Staff. 7, A civil penalty of 54,275 Siculd accordingly le msessed. Order 11ased on the foregoing opinion, including hndings of fact. (onclusions of law, and the entire reconi, it is, this 10th day of December 1991 ORDF.RhD:

1. The Order Imposing Civil Monetary Peruhy, dated June 6,1990, is modifwd by substituting a civil monetary penalty of 54,27$ for the $6,7$0 sought by the Order. A civil monetary penalty of 54,775 is hereby at.tessed against the 1.icensee,1bisa Gamma Ray, Inc.

2. *lhis initial Decision is effective irnmediately and, in accordance with 10 C.P.R.12.760 of the Commission's Rules of Itactice, shall become the fmal action of the Commission forty (40) days from the date of issuance, unless any party petitions for Commission review in accordance with 10 C.F R. 6 2.786 or the Commission takes review sua sponte. Sec 10 C.F.R. 62.786, as amended cffective July 29,1991 (56 Fed. Reg. 29,403 (June 27,1991)).

3. Within fincen (15) days after service of this Decision, any party may seck review of this Decision by filing a petition for review by the Commission on the grounds specified in 10 C.F.R. 6 2,786(b)(4). The filing of a petition for review is marutatory for a party to exhaust its administrative remedies before seeking judicial review.10 C.F.R. 6 2,786(b)(1). 4i A petition for review shall te no longer than ten (10) pages and shall contain the information specified by 10 C.F.R. 6 2.786(h)(2). Any other party i may, within ten (10) days af ter service of a petition for review, file an answer supporting or opposing Commission review. "the answer must be no longer - than ten (10) pages and should concisely address the matters in 10 C.F.R. P T 322 l. 1 .[ x ~. _.. - - -. - -, .--.m..- _.---,.-__._,,.----,._-,--.,..,_-.--.,--,-.,.,-.-,.m-

6 2.786(bX2) to the c Atent appropriate. De petitioning Karty shall hase no right to reply, except as permitted by the Commission. ' tile A10MIC SAlliTY AND 1.lCENSING ltOAlt!) Charles Incthhoefer, Chairrnan ADMINIS111ATIVE JUlXiB Dr. A. Disort Callihan ADMINISTI(ATIVE JUDGE 11cthesda, Maryland Decemlet 10,1991 CONCUltRING OPINION Ol' JUDGE CALLillAN I agree with the conclusion of die lloard's Decision wheteby a civil penalty less than that sought by the Staff is imposed upon the Licensee. %c principal allegation with which the Staff charged the Licensec is a breakdown of the management control of a licensed program. In my judgment, honver, the Staff's demonstration of this breakdown, with which I reluctantly agree and the 11oard has accepted, is marginal at best. He history of Wisa's activities as an trulustrial radiographer - for example, the assessment of no previous monetary penalty, no recon! of excess radiation exposure to an employee or to a member of the public, no previous identification of a violation of regulations or license conditions more severe than level IV - dernonstrates a significant level of management control, In contrast, the Octoter 1989 inspecdon of hisa, the subject of this proceeding, disclosed a -numbc of alleged violadons of which three had potential safety significance. De remaining six mair.ly concerned recordkeeping and " paperwork" deemed here to be of considerably lesser importance. %c result of this October 1989 impecdon, whil: perhaps atypical, is not unprecedented, in that earlier inspections also cited a number of violations similar in both number afKl severity. %c Staff advised that two of the 1989 violations were repetitious of earlier citations. In retrospect, I would have preferred that the Staff clurge the Licensee with one or more clearly delineated Level lli violations, rather than lumping a number of irregularities of varying severity and importance in its arrival at the imposition of a civil penalty, 323 t. i-I i ,r >+ = mo erm e- .-.a .wt

h Notwithstanding the reovded f act Otat the three nmm serious of the cunent viotallom can be attritiuted to a single ertant rmliogrtipher no kwiger fri the employ of the Licensee and that two-thirds of the recent accusations are of little consequenec,1 beliege an employet must assume tie respmsibility for the behavior of its Stalf. IW these reasons, I cotxtude that 'Ibha Gamma Ray's control of licensed activities c.tn le strengthened find that the potenthd for improvement esists, Consequently, I do not join tuy dissenting colleague in effecthcly unidoning the Liecasce's management program and the manner in which it has met its responsibilities. 1 DISSl;NTING OplNION Ol' JtIDGl?. XLINI: I respectfully disagree with my colleagues' dedston to assess a civil penalty against the Licensee tecause 1 conclude that the Staff did not meet its burden of proof on the factual question of whether the admitted violatiom collectively constituted a programmatic tweakdown in (ae Licensec's safety programJ Suc-ceeding on that burden was a vital clement of the Staff's case and, with timi - failure, the Staff's enkrcement theory supporting imposition of a civil perialty l falls. 'the lloard may not comider an alternr.tive thwry for which prior retice to the Liccasec has rol been given. Accordingly,I would dismiss the case against the Licemec without impning a civil penalty.us My analysis legins with the Staff's leuer to the Licensee imposing a civil penalty. 'ihe letter, dated June 6,1990,"' was signed by llugh Thompson. Deputy thecutive Director for Nuclear Materials Safety, Safeguards, and Oger, i ational Support, and was captioned

• ORDER IMPOSING CIVIL MONETARY l'ENALTY - $6,750." tri the letter, the Deputy Director specifically agreat with the Licensee that the " violations do not normally rise above Severity Level IV,,,." The letter nevertheless c(wieluded that the vhilathwis in the aggregate were significant atul it referred to the Staff's general concern for the risks of overesposure, Ihc letter dkl not identify specific violations as cause for the Staff's roncern.

' Die issues specified for hearing after a prehearing c(wiference were as follows: whedier tie arnmed of tie genalty impacJ *ns ptges under the Counmiseksi's lawcerneed Pidity.1 e whether it was tween to calledively clsnify Severity livet IV and V wkdatkwis s i as a Seventy Irvd !!! whilation and impme a vnovtary gashy, and stether the amtaus of U31 lind da analysis set runh in II, play Afearalcouer (ons Haitry Ptera,ihnt. MAgen). At) s12. 2s NRC 719,224 (19A7) an.lnable to dus,ise. D'$mfr Teatmusiy,tr 'h 7% Anach 12 124

the p-nahy was mnte t!y armed at taking into ausuun the f eaors in the enfincement psho, indudmg mitign'mg mvurnstantes. 'this statement was developed after consultation with the parties, and na one objected to it? Additiortal notice of the Stat!'s enforcement theory in this case was gisen in a Ik>ard ordered Staff letter of notice to lblsa Gaiama llay, dated November 19,1990. The Staff's letter stated in reb :nt part: 'lhe vwlatama,in the aggrtgae, have ten dassified as Severity level 111 unaler Supplement IV,5cctxe Cl2 (%lathms is 2 c), Supplenent V, Sectkm C1 (%tatant 4aAJ), and Surplement VI, Section C8 (Vsdat eu 1.s 1.b). 1hese three pnwisions cintain nearly identical language. Itach refers to *a numtwr of violatisms that are tclared. ( ihat cc41cctively repesent a potentiat'y signifwant lad of auenthm or tarclesurin toward bcensed respmsihibties" In this case th NRC Staff bcheves that all ni the volati ms are rrtated t.ecause they stem frtwn the same rtst cause, namely, a pauctn of tad of sitenthm to c(enplix"e wdh NRC regulaiury requirements and carelessnesi taard Ikensed responshilities by the RSO and managenent stant the RSo 1his pattern evidences a tweakdun in the harnecd pregram and tuntrol of the hcensed activiucs cd Tuha Gamma Ray.,, The Staff restated these views in its prefiled testimony? All of the fon: going notices bind the Staff in the contestcd hearing and, absent a request for change, no alternative enforcement theory should be considered by the Ikurd "Ihe notices confirmed to the Licensee that the Staff regaroed all of the olations as severity Level IV or less and tiet the Staff intended to prove in the hearing that it was justilled in aggiegating, the violations to a single Severity Level 111 violation on the tuuis of an alleged breakdown in licensed progntms, In each of the Supplements in the Enfortement Policy referred to by the Stalf, the Severily Level 111 violation is specified as a breakdown in the licensed program, whether it be radiation safety, inmsportation, or fuel cycle and materials operations.ui lt is clear that, when the Staff invokes these sections, the essential fact that must be proved is that a programmatic bn'akdown occurred within one or more of the referenced activity areas, in context, multiple related violations or significant lack of attention to licensed responsibilities are given in Appendix C, Supplemerits IV, V, and VI, as factors that are involved in a programmatic breakdown, but the word " involved"

• Prshunng Cmfensre Manoranaux arwi order, tJtP 00 42, 32 NRC 387 (1990); Memmandum and onier Manicrialkmg PrehearQ Outismweh ll)PW4L 32 NRC 390 (19%

l' l'DelMedu.o, fr.Tr,12L at 25 26,29 30 W sopplemmt VI. satum C 8 eefers to *breddown a the casam4 or bcaued ocuviues" rather than *krahdown in the radh safay progam" Olealth ?tysu:s) tw '%eakdown m the brensee's pngtem" (transestauan). No sigmrit w enunesem ammg these Jmnpu.sts a sude sans entsts in the reened end I see ome. All nors &mcnptima are irnluded m rny argumerns and, rur convunence, I refer to the ndautu collet 1avely an e *ynigrammatic beradown" or a *%udereas i's beanscJ programs" 315 l l

_ _-~ . _. _. _ _ _ ~ _ _ _ _ _ -. - _ is guidance, nese factors are not defining criteria that are sufficient per se to establish such a breakdown, %ere must also be some basis established showing that h violations are more significant than marginal flaws in a functioning program The violations collectively shouhl support an inference that there has been a tweekdown in the licensed progmm, I conclude that, if the Staff chooses to take enforcement action nnder k authority cited to k Licensee, it incurs an obiigation t Wow not only tiu multiple violations occurred, but also that collectively the violations impeac~ k licensed program, Where the Staff has inadequate evidence to meet this cbligation, it may always choose to act on violations individually, with proper notice to the Licenscc, Herefore, there was no essential regulatory goal in this case that could only be achieved by h appmach adopted lere, Some of the violations were sufficiently serious to warrant a civil pena'ty itxlividually, llowever, the Staff did not assign individual severity leve.ls to each violation until requested to do so at the hearing This was riot timely notice to N Licensee, herefore, the Board may not now uphold a civil penalty tused - on individual severity of some of the violations. We record does not contain eikt an objective or an operational definition of what constitutes a programmatic breakdown. I take "prograrn" to refer simply to the sum of actions required to coni.rol the licensed safety-related netivitica of the corporate Licensee, in this case, the scope of the licensed program encominssed the safety-related activities of twenty radiographers, Webster's Third International Dictionary defines " breakdown" (verb) in relevant part as . follows: -- to bring about loss of force or effectiveness; make incifective; to become inapplicable or ineffective," And as a noun: " failure of operation; a 4 condition marked by futile ineffectiveness; collapse, disintegration,""' I conclude c..n those definitions that the Staff's burden under the enforce-ment policy and the theory it chose to pursue was to prove that the Licensec's corporate safety program was in a state of breakdown, i.e., that the program enccmpassed within one or more Supplements was substantially ineffective or that it was dysfunctional in w hole or substantial part._ Ibr reasons stated, it was not sufficient to show only that some elements of the Licensee's program were flawed and in need of improvement under the enforcement theory chosen by the - Staff,' Wres of the violations, la, Ib, and 4b, were committed by one ycrson and two were sufficiently significant to have been classified as Severity Level 111 in the first instance, he Staff, however, elected not ta act on these violations individually but instead chose to pursue the enfortement theory discussed here, Ilowever, I agree with the majority that in this case the Licensee was not U'w,wannm unuout omar. tww ut, m omt s 326 o v-

.m - - - __ _ _ _ ~ _ _. _. _.._ _ _. _ _ imprudent in hiring the offending radiographer and that prior inspections of his perhrmance did rut reveal erroneous behavior on his part. The evidence brought by the Staff shows only that a single radiographer performed poorly -during a particular NRC inspection. No additional evidence suggests that (Dere . was a flawed corporate safety program which, if corrected, might have prevented this behavior. These violations, while individually serious, do not prove ti.at there was a tweakdown ir. the Licensee programs. -I do not propose that the Licensec in other circumstances could escape a civil penalty by arguing that it was not responsible for the acts of its employees. It clearly could not, but thoso circumstances are not prescrited under the Staff's enforcement notice. It is immaterial to my conclusion that some other enforcement theory based on individually severe violations arguably might have been upheld in a contcJ. d pucceding. The stA remaining less severe violations have no collective characteristics - suggesting that a breakdown in the licensed,togram occurred. I reject the Staff's assertion that the violations are collectively signi6 cant because they are related to management inattention or carelessness. Even if they are so related, and even if significant, they do not establish per se tiet a programmatic breakdown having Severity Level 111 safety significance occurred. Management carelessness could be a generic reason that accounts for any set of multiple violations, regardless of their safety significance. Lacking in this case is evhlet cc linking violations that might af flict any program to a programmatic breakdown. I conclude that the Staff presented sufficient evidence to establish only the existence of varying degrecs of Ilawed regulatory performance by the Licensee. Under questioning, the Staff did not express serious reservations about the Licensee's overall safety program. The Licensee confessed on the record to llawed regulatory performance, but il presented testimony showing that it had a reasonably workable safety program in place. 'the Staff did not controvert the Licensec's assertions, Ort balance, I cannot conclude that something so severe as a breakdown in the Licensec's safety program occurred, even though there is demonstrated need for improved regulatory performance by the Licenser, for the foregoing reasons, I conclude that the Staff failed to prove an essential element in its case against the Licensee under the enfon;cment theory it chose to pursue. We are without authority to adopt a uifierent enforcement theory. The action called for, therefore, is to dismiss the case without assessing a civil penalty. Dr. Jerry R, Khne ADMINISTRATIVE JUDGE 327

_ _ _ _ _ _ _ _ _ -~ Al'I'ENDIX A 110LATIONS AllEGEI) As set forth in the Appendk to the Order im[using Chil Monetary Itnahy,"' the alleged violations for which a civil penalty is sought are as follows: 1 Cestact of therred Aaivities at Temporary Job. rues 10 CIR 34.4)(b) requires that a surwy wi*h a caldwated and operabic rad 2aikm a. survey imtrumerd be made after each radicgra;hy esposure to deternune that the scaled suurte has been returned to its shichial posidon. If ste radiographic esposure device has a source guide tube, the survey must in lude the geide tube. Ccvkrary to the abtwe, m (Ather 2,1%9, a Ikensee radk grapher inded to cmduct a survey of the caposure device and source guide tube aber any of four cagosures observed by an NRC ingwche. b. 10 CJK 34.42 requises that sicas in whid radiogra@y is tring performed shall t= espicuously posted as etquired by 10 ClK 20,203(b) and (cXI). (20203(c)(1) requires that cadt high radistkm area shall be cmipicuously pmted with a sign bearing the radiation cautkm synibtd and the words: 'CAU'110N 1LIGlI RADIA110N A 4GA? As defined in 10 CIR 20.202(bX3), "h'gh radiatim area" means any aru, accrssible to personnel, in whid there exists radiatim originanng in whole or in part within hcensed material at sua levels that a major pwtion of tie body cuidd receive in any 1 hesir a <bse in cacess of 100 anillirem. Contrary to the above, oc m+er 2,1%9, the hcensee's representatives failed, while cmducting radiograt y, to post a high radiatim area with a h sign bearing the radiatim caution sy:nhol and the words. *CAtJTION 111G11 RADIA110N AREA." 2, R,sharkm Exposure baluatims. Recordr and Reports 10 CfR 20 201(b) requires that each Lcensee make or cause to be made such n. surveys as (1) may be necessary for the licensee to comply with the regulathms in 10 ClR Part 20, and (2) are reasonable under the circurnstances to evaluate the eatet d rMiadun huards that may be present. As def ned in 10 CfR 2a201(a),

• survey" meam an evaluation of the radiatim hanards incident to the productim, use, release, disposal, or presence of radioactive materials or other sources of radiatkm under a specific set of cmhtims.

10 CIR 20.101(a) generally Itmits the termissible cwcupatka.at capuure to - the wkle ledy to 1 % rems per calendar quarter. Contrary to the ahtwe, the adiatim espnure records for sia radiographers, covering the period from hiay 1989 through July 1989, irkhcated that persmal 3"suff Testunany. It Tr.123, at A12 6 through A13 9 p' Restatement td VicJanas") 328 L 1

l 1 i nuwpusing devices had twen damaged and owld tus be analped, and, as of (ukt 2,1989, the larmee had run performed evaluasm to determine the radiaike capnure received by these sin indaktuals. I I b. 10 Clk 20.llI2(a) spenfies that exh lnerisce shall require any in&vidual, peke to first entry into the Inensee's sentricted area dunng end cenphyrnent or work assigransra under sua circumstarwes that the individual will re<eive in is hkely to receive in any priod ut one calendar quaner an utupathnal dose in carcss of 25 perters of the opplicabb starulards spec-ihed in (20.10l(a) arul i 201M(a), to dischee in a wntten, signed catemeru, either: (I) that the individual had no prior tvupstkoal d(me during the currera talendar quarter, or (2) the nature and anwasnt of any acupaskraal dose ubich the inevidual may have recciwd during that spcifically klentified curicut calerular quaner inun smrces d radiatkwi pusessed or cinarolla vy other persims. Osurary to llw stawe, as of Octotier 2,1989, the beensee had failed to ottsin the requited infonnatkm concerning de curwru quarterly otruptkwal done recrived by two radiographers prior to assigning them woek in reurtened meas. 'lhis is a wpcat violatkn e, 10 CIR 20.102(b) requucs that before a bcensee permits, pursuant to $ 20.101(b), any irvlividual in a restricted area to rewive an omirs%1 + radiathm Jose in racess of the standards specified in $ 20131(aK the hcr m shall tuain a certifkate on lurm NRC4, or un a clear and legible reuel nsitaining all the information required in that form, signed by the indmdual showing end prkx! d time after trie indivalual attained the age of 18 in which the i khvidual received an occupathmal dose of radiasm, and perfurtn the ihne calculstkms required by 10 ClK 20.102(bX2), Contrary to alw above, the licensee allowed an individual to receive an occupaikmal radiatkm dose in excess of the standards specified in 10 Cik 20.101(a), without having Nem NRC4 w csher auttwniud record signed by the individual to wrtify the cianpleieness of the record of accumulated d<me (lhe licensee had otherv ise csunpleted the form, and tlw irupcow venfied that the individuals' accianu',ated dose was not in enress of regulatory standards.) 'this is a repat violation-

3. Inventory Control 10 Cl% 3(26 requires that cas licensee caratuu quarterly I+ysical inwntiwies to a:cuunt foe all scaled sources received and possessed urukt the hcense.

Ctratory to the abiwe, ahl.ough the liwnsee had curutated quarterly physical J inveruwies, sudt inventories failed to include iridium-192 scaled sourtes removed inun radiogmgty exposure devices and placed into source changers for storagem These scaled sources were still in the licensee's possesriesi when the quanctly mver. tory was cunducted. Er example, the licensee did run actuan Iw two iridiurre192 scaled sources, Serial Nos. 3031 and 30r4 during quanctly inventories conducted on Jui,e 30,1989 and September 30,1989, respectively, - -329

l 4. Travpruiwn elth emed Mawsal res that end hiemcc w ho tranywwts lwerised incenal outuk 10 ClK 713(a) rew of the confines of iir, plant in other place of use, tw who dehvers luensesi snaterial to a carrier for tramport, c<vnply with the applwahle requnements of the segulatum apgmyriate to die vrexic of trans; ort ut the ikivrunent of 1 amiw.utat6m (IM)l) in 49 CIR Pans 170 Ih9 49 ClK 172.403 ;equucs that eash pdage of radioactive snatenallateled er s.

• RADIGACllVE Yl:1IDW IP' indade the followng informatim entered m the label: (1) the name of the raJnnuchde,(2)the untens actisicy cspessed m egynysin(e cune umts, and (1) the transpiet inden of the package Cmtrary to the aNwe, m Octder 2,1989, die twensee's representatives transpnud wo esposure devices containing iridium.192 sealed sources in packages that had "RADIOACllVE Yl:1.lDW 11" !alets withian having the required information im the labels.

k 49 Cl R 177342(d) requires that radioactive material padages le so Shded and braced that they caruu change posinen danna crnditinen normally incident to transportatim. Contrary to the above, m Octokt 2,1989, the beensee's representatives transponed Amenham Model 683 exposure devices,(ornining indium-192 scaled smrces, in the required overpad wnhoat having bkxked or twaced the package within the vehicle's darkroorn where it is ruuturly placed for transport 49 CIR 172.200 requirts that endi perum who offers a haardous mate rial c. for transportation shall descnbe the haurams enaterial m the shinying paler in the inanner required by Subpart C of 49 ClR 172. Sulpart C,i172.203(d) descobes the required entries for radioactive material,incIudmg thC transpM1 indra assigned to cae package beanns RADIOACllVE YE110W41 or RADIOACllVE YEl.thW.lll lahc14 and, fin a pedage air uved by the U.S. Nuclear Regulatory Cmuninion (USNRC), a rmaation of the pckage identificatim marking, Cmtrary to the above: (1) On October 2,191l9, the hctnsee's representative carried shipping papers inconectly showing a transport indca (T.I.) of 1.5 for a package Naring a RADIOACITVE YEljDW 11 label slut the NRC inspector detennined to have a T1 of 01 (2) On October 2,1989, the Linnsee's representative canied shiptsng papers with package identification descriptions that did not c<rresped with the markings on the pacinge, and the package was appetwed by the USNRC. Funher, the package desenptims m the licensn's standard shipping papert did not correspaul with any padtges possessed tvy the twensee. d. 49 CI'R 172.502(a) states, with exceptions not apphcable here, that no perum may affla or dupt.sy on a trarugert vehicle any placard unless the placard represents a haurd of tre matenal being transported. 33()

49 ClK 172J504 presenbes the requirements for placardmg vehicles used to transport hazardws materials Specifically, Table 1 speedies that the *RA. -~ DIOAC11VI'," vehisle plaard apphes tudy to uansport vehides unsaining padages of :adioactive material bearing the ' RAD 10ACilVE YI:ll OW !!!" lat< L Contrey to the atmwe, m October 2,1989, the lictrnee's representadve trans. ported a padage apprtynately categonad and lateled es " RADIOACTIVE YEt,1DW It'in a vehide bearing a "RADIGACTIVE" placard. No padages labeled as *RADIOAC11VE YEI.tDW 111" wer presera in the whicle. liese violations have bem caiegarind in the aggregate as a Severity level 111 problem. (Supplements IV, V, and \\1) Cunvaladw Civil 1%ahy - $1,500 (assessed equally arnung the 10 violades). E m 0 -331 1

CP.o as 34 NRC 332 (1991) LDP 9141 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Morton D. Margulles, Chairman Richard F. Cole Frederick J. Shon in the Matter of Docke'Aso. 70-3070-ML (y'XfNo. 91 641-02-M L) A9 (Speel*>1 Nuclear Materials License) / LOUISIAN A ENERGY SEP'. ICES, L.P.7 December 19,1991 (Claiborne Enrichmen' denter) RULES OF tr.<AC" :, 'F.; ADN11SSION OF CONI ENTIONS The Cr, 4hw looks to the petitioner to fulfill the requirements of 10 C.F.R. 52.714(b)(2)(i), (ii), and (iii). Should any of the requirements not be met, the contention must be rejected. RUI,ES OF PRACTICE: ADMISSION OF CONTENTIONS Section 2.714(b)(2) of 10 C.F.R. is satisfied where a petitioner has reviewed the pertinent portions of the application and specifically points out where petitioner differs with the applicant on the adequacy of the information provided, explains why the application is deficient, and identities the factual information upou which it intends to rely. RUES OF PRACTICE: ADMISSION OF CONTENTIONS A regulatory guide can be relied upon to support a contention alleging that an application is deficient. Ilowever, this is not accomplished by the mere reliance 332

on a Staff letter to an upplicant which requests additiona: information based on a regulatory guido citation. An adequate explanation is required from the petitioner. RUI.ES OF l'RACTICE: ADMISSiltil,lTY OF CONTENTIONS 'There is no agency requirement that tuses for a contention must be originat with the petitioner. RULES OF l'RACTICE: ADMISSilllLITY OF CON FENTIONS It is improper to support a contention based upon a Staff letter seeking information on thirty six numbered requests, when neither the Staff nor the petitioner has provided an explanation as to how the requests are relevant to the contention. Such a proffer is wholly unacceptable. MEMORANDUM AND ORDER (Ruling on Contentions) I, INTRODUCTION The matter for decision before the Board is the admissibility of contentiom - filed by Citizens Against Nueicar Trash (CANT) on October 3,1991, pursuant to 10 C.P.R. 5 2.714(b). The ndmission of a single contention would permit Petitioner to panicipate as a party to the application proceeding.10 C.F.R. 6 2.714(b)(1). The application, if granted, would permit Louisiana Energy Set-vices, L.P. (LES), to construct and operate a plant near llomer, Loo na, for the enrichment of natural uranium to a maximum of 5% U 235 by the gas cen-trifuge process. The facility would be called the Claiborne Enrichment Center (CEC). In a Memorandum and Order, dated July 16,1991 (unpublished), the Board found that CANT had established standing umler 10 C.F.R. 0 2.714(a)(2), and permitted it to file contentions.- On October 25, 1991, LES filed an answer o; posing all of the subject contentions. NRC Staff (Staff), in a response of November 4,1991, op;x> sed a majority of the contentions but did not oppose others. ~lhe lloard heard arguments on the contentions at a prehearing conference on November 14,1991. in this Memorandum and Order wt rule on the adnussibility of the contentions and CANT's status as a party. 333

11. - STANDAl(DS 11)R CONTl?.NIIONS An ailmissible tuntention must meet the requirements of 10 C.li.R.

51714(bX2), amended by the Commission on August II,1989, which pro-vides: (?) !"ach cuecnti n nost consist of a specific statemerv of the inue (Ilaw ur fact to te raised er uerme ted, in addiska, de petithmer shall prwide the following informatkm with respect to ea(t utnentkm: _(i) A hef espl. nation d the bases of the tourndm. (n) A concise statement of the alleged facts or espert opinkm which sunwvt tie cuensbn and on whkh the petithmer intends to rely in praing tir ctuentkm as the heanng. e.gether whh references to those specific sourtes and documerds of whidi the petinoner is awars and sm which the petithmer intends to re y to estahhsh those f acts or espert tgankm. Oii) $nificiers infamatkm (whnh rnay indude informathm pursuant to paragraphs (b)(2)(i) and (ii) of trais secthm) to show that a genuine disputo caists with the agdicant ta s materist issue of law or fut his showmg rnust include references to the spedfic rottams d the opplicadon (including the applicant's envinumental nport and safety report) that the petitioner disputes and the sunwrting reasons for cadi dispute, or, if the pethkeer beheves that the apphcanim fails to eudain infonnaticet m a televara mauer as required by law, the identificathe d each failure and the supponing ressms for the petakmcr's behef, On issues arini.ig under the Nathmal linvironmental Puhey Act, the petitimer shall (!!c unentums based on the appbcant's envirunmental repost. he pentioner can amend thcae contendms or file new contentions if there are data or condusions in the NRC draft w final envirtsunental impact statement. envinumental assessment. or any supplements relatmg the.rero, that differ significandy from the data or cxmdusions in the apg licara's dixument. Wrther,10 C.RR 52,714(d)(2) provides that contentions shall not 14 admitted (i) if the contention and supporting material fall to meet the requirements of section 2.714(b) or (ii) if, should the contention be proven, it would be of no consequence in the proceeding because it would not entitle petitioner to relief. . In its comments on the amendments to 10 C.F.R. 5 2.714 the Commission stated: , In addithm to providing a stateme:W d fact and soun:es,the new rule will also require ~ intervenors to sutsnit with their hat of cornerditos rufGciert information (whidiinay inchule the known significant facts described ahme) to show that a genuine dispute caists between. . the peti 6mer and the applicant or ticensee cm a materialisme oflaw or fact. His will require the innervenor to read the per6nent pu6uons of the license application,induding the Safety - Arulysis Report arid the linvironmental Report, and to state the asyticant's positum and the pentimer's opposing vicw.' When the intervenor bebves the airlicanon and supporting material do not address a relevant matter, it will be suificient to esplain why the applicadm is deficient, 54 Fed. Reg. 33,170 (1989).. The Coinmission noted the amended version's consistency with Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAll-687,16 NRC 460,468 334

_~ (1982), rev' din parf on other grounds, CL18319,17 NRC IDII (1983), where the Appeal ikiard stated: [A]n interventum ;wndmer has an ironclad chhgathm to cammine the publaly avadable doctanentary matenal pertaining to the facilay m questkn with sufficierd (are to enable bhe petinmer] to unuwer any informatwn that cadd serve as the foundaikn for a speufic cmtentim. . Neuber Section 189a d the I Atmiic l'.ncig>l Act nor Seahm 1714 of the Rdes of Practice pennits the fihng of a vague, unparucularised ctraention, folkmed by an endcaws to flesh it cut thetiugh discovery against the apphcant or staff

• lhe amended regulations are piso consistent with the Commission's long-standing practice that requires that a contention le rejected if:

(1) it cmstitutes an attad on atylicable statutory reginrements; (2).it challeng;s the leie structure of the C(snmisskm's regulatory prmess er is an anack on the segulatkns; (3) it is mihing m;x than a generaliianm regardmg the retukmer's view of what applicable poheies ougin to bea (4) it sccks to raise an issue which is not peoper kw adjudicahon in the pincedmg an does smt apply k) the facihty in quesdon; tv (5) it seeks to raise an issue which is twx camcrete nr hdgable. Philadc/phia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB 216,8 AEC 13,20-21 (1974). 'The Commission looks for the Petitioner to fulfill the requireenents of 10 ' C.F.R. 0 2.714(b)(2)(i), (ii), and (iii). In Arimna Pubhe Service Co. (Palo Verde Nuclear Generating Station, Units I,2, and 3), CLI-91 12,34 NRC 149,155 (1991), the Commission stated: Wlule the floard may appvopeistely view Pendmers'supturt foi its cmtentun in a hgla that is fewzabic to the Pendmer, it cannue do no by igncaing the requirernents act forth in 10 C.F.R.12,7:4(b)(2)(i), (ii), and (iii). %ese sections demand that s!! petiikmers pemide an esplanation of the bases for the contendon a state rmit of fact or espert trinkm upon which they intend to rely, a,nd sufficient informadm to show a dispute with the agplicant un a materialissue oflaw or fact, if any me of these requirements is not met, a etauentim must te rejected. Rules d Pradice for Domestic ticensing Pmceedmgs - Procedural Ownges - in the 11 earing Process 54 Fed. Reg. 33,168,33.171 (Aug. I1,1989). ~111. DISCUSSION 'Ihe Board has fully reviewed and considered " Citizens Against Nuclear Trash's Contentions on the Construction Permit / Operating Licensing Applica-tions for the Claiborne Enrichment Center," filed October 3,1991, LES'a answer 335

dated October 25,1991, and Statl's ressmse of Novemtv'r 4,1991, along with the prehearing conference record of November 14,1991, and the pior secoid in the proceeding. Based upm all of the foregoing we make the following findmgs. The Contentions Contention A. No ll'aste Disposal l'lors 1.13 does mt have a phn for the dapwal of the arproomately 3nn 14 t m olinders of radmactive arkt tosic dyleted manium the facaty will generate per Star CANT withdrew Contention A at the November 14,1991 prehearmg confer, ence. The Board, with the agreement of LES and Statf, permitted die mklition of the loses of Contention A to Contention IL Contention B. Decommissioning Plan Deficiencies he 1.13 dcwmmbshming plan dwa not provide reanmabte aswrance that the GC ute can be cleaned up and adequately restored upm cessathm of operatams- 'The contention is supported by sit,cpamtely stated bases in addition to others mided from withdrawn Contention A. The focus of the original six bases is l'iat LES does not currently have a plan for disposal of depleted uranium tails and there is no rational tusis provided for the decommissioning costs in LES's decommissioning cost estimate. For its first basis, CANT asserts that LES in its Safety Analysis Report (SAR) (Table 11.8.2) states that UF, tails disposal costs are estimated at 59.5 million per year of tails pnxiuction, but, because Applicant does not have a plan for the offsite disposal of tails, there is no realistic basis for the estimate. CANT asserts that these figur a conflict with those in the "LES CEC Depicted UF, Disposition Study" of September 1990, which is cited in support of the license application. CANT takes issue with Applicant's consideration of depleted uranium as a marketable resource rather than as a waste product. CANT claims that as a waste product it will increase the cost estimates of decommissioning. Petitioner relics on a newspaper article that states that the Department of Energy sometimes gives away UF,. Also, it cites a Departmci.t of Energy draft study that characterizes depleted uranium as a " mixed waste," which raises disposal problems because of the nnavailability of disposal sites. CANT also alleges that there will be h lxk of low-level waste sites, which will impact negatively on decommissioning costs. In its second basis, CANT contends that the application should be rejected lecause it does not provide reasonable assurance that LES knows haw the uranium tails will uhimatdy be disposed of or how mich it will cost. 336 l

lhr its third basis, CANT claims that the decomminionir.g plan contains no concrete information about die amount of payments LES is expected to make into the external trust that LES claims it is setting up. Cited in support of the requirement is 10 C.F.R. 6 70.25. In basis four, CANT alleges dat LES provides no details on how the &com-letter from the missioning costs were determined. It relies on a June 25,1991 Chief, Fuel Cycle Safety Branch, in which he seeks additional information per-taining to the application. lic relics on requirements in Regulatory Guide 3.66, " Standard fumat and Control of Financial Assurance Mechanisms Required for Decommissioning Under 10 C.F.R. parts 30,40,70, and 72." Additionally, CANT discusses an alleged lack of information in several specific areas. Itti-lioner requests that Applicant be made to explain the derivation of its estimated costs in order to assure that there is a rational basis for the decommissioning costs. CANT incorporates the June 25,1991 letter into the bases by reference. Basis 5 is an allegation that LES decommissioning costs do not indicate what facilities will be & contaminated and to what extent. In Basis 6, CANT assens that in the June 25,1991 letter, Staff identified a number of deficiencies in LES's decommissioning cost estimates, and, to the best of Petitioner's knowledge, LES has not responded to the question. Again, CANT incorporates the letter by reference but more specifically the pages dealing with the decommissioning funding plan. He bases submitted under withdrawn Contention A allege that: LES has submitted no plan for the disposal of the uranium tails to be generated annually; the tails are mixed waste and must be disposed of under the Resource Conser-vation and Recovery Act; LES has not submitted a dispm! tion plan that is either concrete or realistic; that before a license can be obtained, LES must submit a plan for disposal of the uranium tails which fully complies with all applicable environmental laws. He Board fmds that CANT has satisfied the requirements of section 2.714(b) for the admission of Contention B to the extent indicated below. De contention, which states that the LES decommissioning plan does not provide reasonable assurance that the CEC site can be cleaned up and adequately restored upcm cessation of operations, is admitted insofar as it challenges the reasonableness of LES's decommissioning funding plan. CANT has provided adequate bases to support such a contention. The NRC has no regulatory requirement that there must be a concrete plan for the disposal of the depleted uranium that the facility would generate cach year and that, before a license may issue, such disposal plan must comply with all applicable environmental laws. De Commission in noticing the application for hearing indicated that the applicable regulations only require that an applicant have a plausible strategy for the disposition of depleted umnium hexa!!uoride tails. Such strategies were c; 337

~ ~. - -... - - I identified as inchiding: storing, as a possible resource, unutium hexalluoride tails at the plant site; continuamly converting uranium hexafluoride tails to uranium oxide (or tetralluoride) at a potential resource or for disposal; and a combination of lxxh - onsite storage with conversion of uranium hexafluoride at the end of plant life. 56 Fed. Reg. 23,313 (May 21,1991), in licensing matters the hea:ing notice published by the Commission for the proceeding defines the scope of the proceeding arut thus biruls this licensing board. Northern /ndiana ruhlle Service Co. (flailly Generating Station. Nuclear-1), ALAll 619,12 NRC $58,565 (1980); Commorwahh Edison Co. (Carroll County Site). ALAll 601,12 NRC 18,24 (1980). The regulations do require that an applicant submit a decommissioning funding plan which must contain a cost estimate for decommissioning 10 C.F.R. E 70.25(a) and (c). Cost estimates may be adjusted periodically over the life of the facility. For the regulation to have meaning, the cost estimate should contain reasonable estimates for an adequately described decommissioning strategy. CANT has satisfied the requirements of 10 C.F.R. 6 2.714(b)(2)(i), (ii), and (iii) in its allegation'that the decommissioning funding plan does not contain reasonable estimates for decommissioning nor does it adequately describe the underlying decommissioning strategy. As required, CANT reviewed the pertinent portions of the application and specifically pointed out where it differed with LES on the adequacy of the inforraation provided. Explanations were offered why the application was deficient. Petitioner identified the factual information on which it intends to rely. Ilases 1,4, and 5 adequately support the contention. Sufficient information was provided to show that a genuine dispute exists with the Applicant on material facts. Regulatory Guide 3.66, like all regulatory guides, describes methods accept, able to the Staff for implementing regulations. Equivalent methods are also acceptable to Staff Although regulatory guides are not binding as regulations, they reflect the considered judgment of Staff and offer insight on what is needed i o satisfy a regulation. Regulatory guides have been recognize <1 as evidence of t legitimate meaas for complying with n'gulatory requirements. Carolina Power and Light Co. (Sheamn liarris Nuclear Power Plant), ALAll 852,24 NRC 532, 544 45 (1986). l A regulatory guide can be relied on to i..rpport a contention alleging that an application is defident. Ilowever, this is not accomplished by the mere reliance on a Staff letter to an applicant which re4:ests additional information based-on a regulatory guide citation,- An adequate explanation is required from the ' petitioner. The Commission in its comments on the amendments to 10 C.F.R. - 6 2.714, stated. "When the intervemt believes the application and supporting material do not address a relevant matter it will te sufficient to explain why c the application is deficient." 54 Fed. kes. 33,170 (1989). 328

.--. _ ~. ~ - ~ -- CANT has satisfactorily met this rcquirement. The information in the letter provided CANT with a starting point. Ittitioner went on to explain how the alleged inadequacies supoort its contention and provided additional information in suppwt (llases 1,4, and $). Contrary to an argument made at the prehearing conference, there is no agersy requirement that tuses must be original wah the petitioner, in admitting the contention, we placed no reliance on tic CANT notion tiot tic uraniurn hexalluoride tails produced in operating the CEC constitute " mixed waste" under the Resource Conservation and Recovery Act (RCRA) and hence - constitute a type of waste for which there are presendy no disposal sites. To support this notion, CANT offers a draft of a Department of Delense (DOD) document, Managing DOD's Growing Enviroamental Responsibility," Mar. 29, 1991 (Draft %rsion 13), in which DOD, noting that some of the department's equipment uses depleted uranium, says that "[tlhe depleted uranium will cause serious disposal problems for the Deptrtment because ' mixed waste' sites for this doubly hantdous material do not exist in the United Statea." At the prehearing conference, CANT also offered a letter from the Environ- - mental Protection Agency (EPA) on tie subject of " Guidance on the Definition and identification of Commetrial Mixed Low-Level Radioactive and llazardous Waste and Answers to Anticipated Questions" with attached guidance (EPA Guidance), Pf. Th 63.- Both the Staff and Applicant argue that depleted uranium hexafluoride is not " mixed waste" under RCRA. Applicant asserts (as does the Staf0 that depleted unmium is

• source material" under the definition of " source material" in 10 C.F.R. 9 40A, and that " source material" includes compounds of manium in any chemical or physical form. Both further argue that source material is expressly excluded from regulation as hantrdous waste by RCRA and by EPA regulations.

We observe that the very guidance that CANT introduced into the transcript arrm with the position of the Staff and Applicant. 'the EPA Ouldance says " RCRA also excludes source, special nuclear, and byproduct rnaterhls from the definition of haurkus waste and, therefore, from regulation under EPA's RCRA Subtitle C program." Ff, Tr. 63 at 8. It thus appears that NRC regulations, EPA regulations, the statutory founda-tions of those regulations, and the guidan;c jointly devchiped by NRC and EPA (indeed, one of the two' documents relied upon and introduced by CANT itself) . all agree that depleted uranium hexafluoride is not " mixed waste "_ The only opinion arguing in favor of that classification for the material is an unsignedi undocumented, unauthoritative intermediate draft by someone in an agency not charged with enforcement of either of the statutes that the definition would in. volve. The DOD opinion seems to us to be a voice crying in the wikierness. Recognizing that great deference is due to an agency's interpretation of its own regulations and its organic statutes, we see no reason to believe that the de-339 ~

.. _ -. - - - - - ~. .. ~.- Y I - pleted uranlurn hesalluoride tails would be classified as mixed waste and woukt therefore be a material for which no disposal site is available, llaving found that Bases 1,4, and 5 support the contention, we further find that Dases 2,3, and 6 do not, nor do the bases transfened Imm Contention A. Basis 2 is premised on the ermneous conclusion that 1.I!S must have a concrete plan for the disposal of the tails. Basis 3 is too vague and indefinite to support a contention. Basis 6 provides no explanation as to why the application is inxicquate It merely relies on the Staff letter of June 25,1991, ne tuses transferred from withdrawn Contention A are premised on the - crroneous conclusion that Applicant must have at this time a concrete disposal plan for the tails that meets all envimnmental laws and that the tails are a mixed waste disposable under RCRA. Contention B is admitted to the extent described Contention C. lack of Protection Against Worst Cast Accidents - he licenic applicatuut for the ClO violates NRC regulatkus and the Natkmal thivb ronmensal Pulicy Act in that it treats a ruantes of reasissably foreseeable accidents as

• mt credible," and fads to fully evaluate their potential impacts an heahh and the envirotunent.

to gwsect against them in an adequate mannet, or to provide adequaic emergency respinne sneasurts. As base:s for Contention C, CANT asserts that the Applicant improperly failed to consider seven specific accidents timt it claims are " credible" and should have been considered under NEPA and/or the requirements _ imposed by the - Commission's emergency planning regulations or tte proposed general design criteria for uranium carichment plants. The seven accidents (iden'.itled here as C,1 through C.7) that CANT asserts require turther considerat'on are: (1)a cylinder rupture, (2) a worst case critieahty accident, (3) an a'doctave rupture, (4) a storage-yard fire, (5) a transportation accidenti.(6T an t,ttplane crash, arul (7) a gas well explosion. _ Applicant opposes the contention and all_its parts, . maintaining that it fails to meet the requirements of 10 C.F.R.-92,714(bX2). Staff opposes admission of all parts of this contention except the criticahty accident (C.2) and would restrict that tu an assertion that Applicant has failed to evaluate credible criticality accidents arxt to provide criticality monitors at - the facility as required by 10 C.F.R, 670.24. Ibr the reasons stated below, the ' Board denics the contention. Bases C.3 and C,7 were withdrawn by CANT at the prehearing conference. %c Board considers Basis C.2 to Ic premature sinec - the essence of that issue is currently under consideration by the Commission. 340

I i C.I. Cylinder Rupwe CANT's main argument appears to be that cylinder rupture accidents hase (veurred at two plants (Sequoyah and l'ortsmouth) and tehance on administrative controls to prevent such an accident is not adequate. CANT does not make any comparison of the design and operating procedures of those facihties with CEC and appears not to have considered the specific measures taken by Applicant to minimize or climitute the possibility of the type of accidents that occurred at the Sequoyah Fuels uranium processing plant and the Portsmouth gaseous ddfusion enrichment plant. CANT fails to demonstrate that the measures taken by Applicant are not adequate to avoid cylinder rupture accidents. Petitioner has not provided sufficient information to suggest Our the accident stould be treated as credible. %us the pnposed tusis lads to meet the pleading requirements of section 2.714(b)(2). C.2. Criticality Accident his tusis was originally captioned " worst-case criticality accident." At the prehearing conference, CANT modified this basis by removing reference to " worst case," acknowledging Applicant and Staff's position that NEPA does not require such worst-case analysis, ne basis was further modified by merging it with Contention F which concerns the lack of criticality monitors. As modified, this basis would read "LES has failed to evaluate the health and envi.onmental impact of criticality accidents because it believes they cannot occur. And on this gmund, they have tot provided criticality monitors at the CEC." Tr. 70. Dere was no objection to the modification, but Applicant maintained its opposition to admission. The Staff would have the B(urd admit the tosis but limit it to the issue that Applicant is not in compliance with the requirement to provide criticality monitors. Apparendy unknown at the time to CANT, Applicant applied for an exemp-31, 1991, tion from the requirement to install criticality monitors on January under 10 C.F.R. 670.24(d). This preceded the May 21, 1991 publication of the Notice of llearing und the assignment of this proceeding to the Board on May 23,1991. De installation of criticality monitoring facilities is at the very heart of this contention and that issue is currently umlet consideration by the Commission. Depending upon Commission action on the exemption, there may or may not be an issue for litigation, it would be inappropriate for the Board to litigate an issue that is dirvetly tx fore the Commission. The Board considers Basis C.2 as prem%c ed therefore it is denied, without prejudice. 341 ^ -h

y C3. Autoclave Rapture Withdrawn. *lt. 77. C.J. Storage Yard Fire At the prehearing conference, CANT withdrew offsite transport.uion accident aspects frtun Contentions C,4 and C.5, acknowledging that offsite aspects tue covered under the generic aspects of 10 C.F.R. 9 51.51(b), Table S 3. '11. 80. As to the onsite aspects, CANT argues that LES is in error wl en it says that a storage-yard fire is not credible, he principal basis for the allegation is that LES proposes to avert such fires by the use of procedures that are vulnerable to human ctror. CANT further states that a single failure, i.e., fuel spill from a delivery truck, coupled with opetutor error (failure to follow procedures) and the lack of guaranteed prompt fire brigade action could result in a 30-minute (or longer) fite, which could rupture one or rnare uranium hexalluoride cylinders. Draft General Design Criteria, Advanced Notice of Proposed Rulemaking,"Regubtion of Uranium Enrichment Reilitics"(GDC),53 Fed. Reg. 13,276 4 9 (1988). Both Appihant and Staff would have the Board deny this basis, arguing that CANT is merely challenging the philosophy of relying on procedures to avert such a fire without stating any specific clullenge to the Applicant's proposed methods of avoiding this type of accident. The basis fails to meet the section .2,714(b)(2) requirements for specificity becau;c CANT has not indicated how LES fails to comply with the proposed GDC (jutticularly the prohibited 30-minute or longer fire), how the LES storage-yard fire analysis fails to meet the requirernents, or how the various protection systems provided by LES, including several backup systems such as adtninistrative controls, limited fuel tank sizes, yard drains, and redundant water supply tanks and pumps are inadequate. The floard agrecs,11 asis C,4 is denied. C.5.. Transportation Accident. As discussed under Basis C.4, CANT withdrew any offsite aspects of this ~ contention. What remains is nn onsite truck accident that would "necessarily . involve a 30-minute lire." Applicant und Staff oppose thc basis for the same reasons stated under Contention C.4..We fmd that CANT has failed to idendfy - any deficiencies in Applicant's submittal concerning onsite transportation acci- = dents and has provided no reason to believe that the Applicant's SAR h lawed i . in its conclusion that a transportation accident involving a 30-minute fire is not 3 ' credible. Applicant's SAR analysis is oased in pa.t on _NRC and Department i' of 'IYansportation (DOT) analyses. The basis lacks the necessary specificity l required under section 2.714(b)(2) and accordingly must be denied. l 342 i p 1

CA Airplane Crash CANT argues that the current evaluation of the prolubility of an airplane using the llomer airport and crashing into the CEC site fails to take into account the expected increase in the use of the airport resulting from the construction and operatian of the CEC enrichment plan

• Applicant and Staff oppose the contention, arguing that CANT has not provided any factual basis in support of its view that increased use and additional risk is likely.

We find that CANT fails to provide any facts or expert opinion to support its basis, and fails to provide references to specific sources on which CANT intends to rely to establish any facts or expert opinion, as required by 10 C.FR, 6 2.714(b)(2)(ii). CANT has further not identified any omission of information required by law, simply stating that its basis for the need of additional analyses concerning airplane crash protubilities is cornmon sense. Tr. 81. The basis lacks the necessary specificity and is denied. C.7. Gas Well E.tplosion Withdrawn.1r. 81. Contention D, Lu Attitude Toward Criticality Sqfety he application for the GC demomtrates a dangeruusly smug attitude toward seneus accidents which raisc.: the cmccrn that ILS' maissenance and operating procedures, training programs, and generat corporate suaude may na cmtsin a senous conunitment to manuain-ing preturedness for a critwahty accident. The principal basis is an accidental criticality accident at a fuel fabrication facility operated by an unrelated company. (General Electric's Wilmington, North Camlina, fuel fabrication facility). CANT merely alleges that the lax attitude toward nuclear criticality apparently exhibited by GE is also the attitude of Applicant 1..ES, and the entire management program should be reviewed and revised to incoriorate a more realistic view toward criticality safety at the CEC. Applicant and Staff oppose admission of this contention. We find that no nexus has been provided between the fuel fabrication facility and the proposed fuct enrichment plant or with LES and no basis has been provided to support the view that LES will exhibit a tax attitude toward criticality safety. The contention rnust be rejected pursuant to section 2.714(b)(2). Contention E. Cylinder Rupture The applicant fads to meet the requirements of to CF.R. 6 20.105 or Apre wha li to Part 50 in the event of an accident involving the rupture of uranium henstluoride cytmder. 343

-~, - - ~. -... 7. Wi. the smlians also fails to pmde traunaNe suusance of adequate pnaenim et puNic heakh and safety, as requiral by tu Cl4R. (( 4032 and 7n31(d). His contention was withdraw at the pichearing conference. *R 82. Contention il Lack of Criticality Monitors . lhe applant violates 10 CF.R. 6 70.24 twcause it has failed to parvide for miscabiy mmitors at the CEC. His contention was merged with Basis C.2 and denied, without prejudice, as . being premature because an exemption to the requirement of providing criticality monitors is currently pending before the Commission. Ser discussion of Basis C.2, above, . Cantention G, inadequate l'rotectionfrom Toxic FJfects of UF, W plant tiwndary caposure lanits for the Clic do not provid adequate protection of the patic from toxic effects of uranium hexafluoride, in this contention, CANT challenges the adequacy of the CEC's proposed limits for the protection of offsite per.ons against the toxic effects of unmium hexafluoride. He Notice of IIcaring and Commission Order for the CEC spec-iiies that, for the purpose of siting and design of the plant against accidental releases of uranium bexafluoride, the criteria in NUREG 1391, " Chemical Toxi.

city of Uranium flexafluoride Compared to Acute Effects of Radiation," on lim-iting individual exposure to the chemical toxic effects of uranium hexalluoride, should be applied at the boundary of the CEC site under control of the Appil-cant. Applicant and Staff oppose the contention, both stating that it challenges

the Commission's application of NUREG 1391 in establishing plant boundary exposure limits. CANT has already petitioned the Commission directly on this point in its comments to the Commission regarding the proposed standards for the CEC.

At the prehearing conference, CANT argued that the proposed standards are just that, they are proposed. It further argued that it was necessary to raise the matter before the Board and invoke the Board's general authority to protect the public's health and safety because there simply are no standards in effect. R 83. CANT's basic argument is that it belleg es that the exposure limits pro;msed in the LES license application arxl NUREO.1391 (which it agrees are comparable). are lax and do not adequately protect the public health and safety. De Board believes that CANT's attention is misplaced.. Its argument is with the Commission. ne Commission has directed what exposure limits should be applied and is currently considering the adoption of final standards in its 344 a - - .r.

I rulemaking proceeding, a proceeding in which CANT has already [urticiguted. Until final _ rules are published, the stam!ards aniculated in the Notice of llearing and Commission Order are the_ alpropriate standards. 'the_ hearing notice defines the scope of de issues in the proceeding. Bailly, Al.All 619, supra; Carr 'll County, At. Alt.601, supra. CANT has not demonstrated that Applicant's proposal is not in conformance with NURiiG 1391, the applicable requirement. The contention is denied treauw it is contrary to the Commission order instituting the proceeding. Contention 11, I:mergency I'lanning Deficiencies ~ 'lhe inrnie an&atan for De ClC does not provide a teammatde aucance that the pbhc heahh and safety wiH be adequate 4 (vutested in the evers of an renergency at th; plant. As bass for this contention, CANT argues that LES has mx complied with the Commission's GDC or the emergency planning regulation requirements of .10 C.F.R. 670.22(i), as implemented by Draft Regulatory Guide DG 3005, " Standard Format and Content for Emergency Plans for lhel Cycle and Materials Facilities" (September 1990). CANT then sets out twenty three separately alleged deficiencies with many specifically referencing DG.3005. Applicant opposes the contention and all of its tuses, Staf f (k>cs not oppose tic contention but would limit it to llases 210,16-20, and 23, stating that dicsc bases generally cite and/or rely upon DO.300$, and assert that the Applicant has failed to comply with this mterim regulatory guid.mcc. In its statement of opposition to this contention, Applicant points out that emergency planning requirements of-10 C.F.R. Part 70 for special nuclear materials facilitics (e.g., CEC), are not the same as 10 C.F.R. l' art 50 planning requirements for power reacton. Referencing the Statement of Considerations supporting the emergency planning regulations for materials licensecs, Applicant states that because exposure levels would be low as compared to protective - acdon guide exposures used for nuclear power plants and becmise of the nature of the types of accidents of concern, there is no requirement for formal evacuation planning. 54 Fed. Reg. 14,052 (1989). . LES also argued that a request for information fmm Staff or reliance on a draft repubtory guide does not satisfy the pleading requirements of scetion -- 2.714(b). At the prehearing conference, Applicant also pointed out that while it is going forward with an emergency plan, Commission regulations would not require it to do so. Tr,9(r92. Section 70.22(i)(1) of 10 C.F.R. states that an emergency plan is not necessary if an evaluation shows (1) the maximum dose does not exceed 1 rem effective dose equivalent and (2) does not involve an intake of more than 2 milligrams of soluble uranium. We will rule on the contentum as it 345

was filed and rtsponded to by IES on October 25,1991. Applicant's claim d.2 it qualities for an exception under the regulation is a new mauer not previously raised. Ihrther, it apparently does not want to rely on the exception. At the prehearing conference, CANT withdrew Bases 8,18, and 19. Tr. 94 Cormnission regulation 10 C.F.R. 5 70.22(i)(3) sets forth the required emer. gency plan information that is to be contained in a materials license application. . The areas it covers arc.- (1) facility description; (2) types of accident for which protective actions may be needed; (3) classification of accidents; (4) means of detection of accidents in a timely manner; (5) rnitigation of consequences; (6) assessment of releases;(7) responsittilities of licensee if an accident occurs; (8) notification and coordination of offsite response organizations and the NRC; (9) information to be communicated to offsite resporue organizations and the NRC; (10) training to be provided to wcrkers, and special insuuctions and tours to be given to offsite emergency personnel; (11) means for safe shutdown after an accident; (12) provisions for emergency exercis.:s and ccmmunications checks with of fsite response organizations; and (13) certification by the_ npplicant that it has met its obligations under the timergency Planning and Community Right-to-Know Act of 1986. IX3 3005, which CANT relics upon, states that it was being devchyed to psovide guidance to Stati on the information to be includent ir, emergency plans and was being issued in a draft form to involve the public 19 the early stages of the development of a regulnary position in t'~ 1 red, h had m3 received complete Stsff review and does not represent an affida! NRC Sa'. position. DG-3005 at cover and 1. The Bosn!, in considering the admissibility d the cometsion, rejects liases I,11 through 15,21, and 22 for the reasons stated lxlire Ilasis I merely incorpolated by refereoce Sinff's leuer of June 25, 1991, to Applicant which contains questiotu edatit.t so EF'o review The letter is offered without explanation. 'Ihc bv.is is rejet ed becaose it does not identify t any specific deficiency in the appliestion. Bases 11 through 15 allege offtit-emerge tcy planning inadequacies (i.e., no _ specific guidelines for offske pmiceve ec00.u, to offsite emergency planning zone, no plan for notifying peoph "I a nstional forest or at a lake site, no plan to evacuate the elderly, und no rian tu provide people within the emergency planning zone whh.informatiot. y appropr*,e procedures).'The bases contain no reference to any reguisory requirements or DO-3005 and appear to be based on planning f ankds for nuclear reactors, which are conshlerably more stringent. Additionally. 's need for an emerger.cy planning zone and the preparation of in!wmationa trochures for distribution to offsite popula:lons was rejected

by the Commission in its rulemaking proceeding. 54 Fed. Reg. 14,051, 14,057 346

--(1989). 'lhese bases constitute an impermisuble challenge to the Commission % ~ regulations. Ibr the foregoing reasons, Bases 11 through l$ are denied. Basis 21 is denied for lack of specificity. It alleges that Applicant has not provided emergency plans for postulated accidents but does not say which necidents must be consideral or what deficiencies exist in Applicant's submittal. which discusses a variety of postulated accidents and abnormal operational events. See section 2, CEC Emergency plan. 11 asis 22, which alleges that LES has failed to indicate how it plans to cosuply with sections 303(d) and 326(2)(B) of the Emergency plaiming arwl Community Right to-Know Act of 1986, with reference to a designated local emergency planning committee, is denied. All Applicant is required to do is cerdfy compliance with tte cited Act. Statements of Considerations,51 Fed. Reg.14,051 (1989). As to liases 2 through 7, o,10,16,17, 20, and 23, which IES opposes

9 they offer to support the U

and Staff does not, we find Liut except contention in accordance with the pleading requirements of section 2.714(b)(2), albeit minimally. The. bases cite IG3005, except for liasis 23 which also relics upon it. Although'a draft regulatory guide does not represent an official NRC Staff position, we view it as containing preliminary suggestions as to wlut is required by the regulation, and it is entitled to be afforded some weight, considering its source, in supporting a contention alleging inadequacies in tic application. Imoking at these bases as a whole, we conchnic that CANT had adopted ' tic requirements of 163005 as its own. After examining the LES application, CANT contends that the application does not address specific televant areas, or, in those instanct4 where they were addressed, states why they were inadequate. We view tids as a sufficient explanation as to why the application is deficient. l CANT had adequately apprised LES, in acconlance with the pleading require- = ments, of its differences with the Applicant on the adequacy of the application on emesgency planning. Peutioner has shown that a genuine dispute or material ~ dispute exists that shouki be adjudicated.' Of the eleven bases that we find meet the pleading requirements, the following allege a failure of the Applicant to a(kiress emergency planning needs: Basis - 2, identification of the location and emerEency support organizations; Basis 3, listing of hai.ardous chemicals at the site and identifying communication centers; Basis 4, identifying types of radioactive materials accidents for _which actiam may be needed to prevent or minimize exposures; and Basis 10, describing government agencies' authority and responsibility in un emergency.- .. The following allege irnicquacies in the information that was provided.

Basis 5, inadequate details on notification of state authorities and NRC; Basis 6, unclear as to emergency response authority of crew and what fxilities will

'.be made availab!c; flasis 7, failure to list some possible emergency response 347. i r 4 -n. ,--r

._.--. ~.. -- -.. 4 orgarurations; liasis 16 failure to include a pnwision for projection of onsite radiation ex[usures; hasis 17, vague description of prolesed mesures for mitigating onsite consequences of accidents at the CEC: Itasis 20, failure to plan for ensur.ng.that equipment arv,1 instrumentation are in good working i condition and that an adequate smck of su[ylies is maintained; and liasis 23, the emergency plan appendix lacks showing capability of emergency organizations to respond and that there are no agreement letters for organizations discussed in Basis 7. - Basis 9 is rejen i because, contrary to CANT's assertion, the emergency plan does specify where the public and media can obtain reliable information during an emergency. Contention 11 is litigable to the extent described above. Contention I. Incomplete Licenar Application 'ihe hcense apptkatim int tie CliC is incanptne in many major respect The basis for ilus contention is a March 21,1991 Staff letter to Applicant which lists areas where the NRC secks additional information as ptrt of its -review of the application. On the basis of this letter, CANT alleSes that the application is incomplete in several sespects. Applicant argues that the Staff . letter does not constitute legal requirements and CANT has not pointed out any legal requirements. Applicant states that the mere reference to alleged omissions, without more, does not comport with the requirements of section 2.714(b)(2). Staff, while agrecing that the application is incomplete, nonetheless opposes - admission of the contention for essentially the same reasons as Applicant. CANT contends that the application is ddicient and before the facility can be licensed the deficiencies must be corrected. - Re Board disagrees with Applicant and Staff. There sppears to be nc question that the application is deficient in at least some of the axas listed in CANT's contention. De main source of CANT's belief that the application - is deficient (Staff's letter of March 21,-1991) is a reasonably reliable one as to a demonstration of relevant subject matter. CANT's review of Staff's letter coupled with its review of Applicant's filings, Staff's guidance documents, and z Commission regulations constitutes more than just a mere listing of incomplete -

portions of the application. It is the Board's view that CANT has satisfactorily pointed out certain relevant deficiencies in the application and-supporting -

materfu and has explained why it considers the material to be deficient. %e contention is admitted but is limited to eleven (11) specific areas listed in CANT's contention as follows; s + l 348 4 m w w ---a

== in the Emironmental Report: 1. Envirotunental impacts of site preparauon and construction; 2. munitoring data to suppon source-term determinations for gaseous effluents; 3. evaluation of means of reducmg liquid efiltient conemtratior.s 4, assessment of radiological impacts of plant operation; 5. environmental effects of accidents; 6. baseline data for preopciational effluent :'nd environmental inonnor. ing program; and 7. program to maintain releases as low as reasonably achievable (A1. ARA). In the Safety Analysh Report: 8. Finalization of design features *or carthquakes, tornadoes, and mis-sites;

9. quality assurance program for Class I equi;wnent; 10, program for surveillance aint maintenance of cylinders containing tails in interim storage; and

11. management and control program.

A twelfth area listed in CANT's filing involves nuclear criticality safety analyses and is related to matters pending before the Commission. This item I is rejected as being piemature, See discussion of Basis C.2 of Contention C, l supra. Contention J. Inadequate Assessment of Costs Under NEl% 'the Femumernal Report does not adequately descritat or weigh the envir<wunental, social, and ecnnmiic impacts and cimas of oprating the Ct.C. Momwcr. the benefa cmt analysis f ails to demmstrate that there is a need for the racihty. Sea. e g., l'ablic Serme t Co. s(New fl.smpsAira (Seabex A Station, Units 1 aimi 2). Al.A!!422,6 NRC 31,9u (1977) (m a power poduction plant ticensing case. *need foi pvwer" n "a shorthand capressitn for the ' benefit

• side of the cost-benetii e4hc whkh NEPA mandates"). On the whole, the trots of the poject far otaweigh the beneftis of the proposed action.

Stating that the National Environmental Policy Act (NEPA) requires the NRC to fully assess the impacts of the proposed licensing action, and to weigh its costs and benefits CANT alleges that LES's Environmental Repon (ER) contains a brief " Benefit-Cost Analysis" that is slanted in favor of the benefits of the 1 project and contains little discussiots of the potentially significant impacts and their environmental and social costs. CANT identities nine (9) issues that it alleges are inadequately assessed in the ER as follows: 349 I

_~ -- ~,. _. - . ~ ..---,.n 1 JJ. Afined Waste - CANT alleges that the ER fails to discuss the envirrnmental impacts caused by the generation of tons of mised radioactive waste, for which. it argues, no disposal options exist. CANT incorp> rates Contentions A mid 11 by reference. . As discussed in this Memorandum and Onler (sce Contentions A and 11), CANT is not correct in its classification of the depleted uranium as a " mixed waste." -- Pursuant to 10 C.F,R. 6 40A. depleted uranium is a source material regulated by NRC. The premise of this issue is therefore flawed and the basis cannot be accepted. ~J.2. I'lant 11]luents - CANT alleges that IIS's environmental and safety analyses are inadequate in Omt they fail to accotml for severe low probability accidents tinal may tesult in discharges that exceed legal limits. Apphcant opposes admission. arguing that they have addressed low probability accidents as tequired by Commission regulations and CANT has shown sto requirement for additional analyses. Staff opposes admission, describing it as an improper attempt to litigate " worst <ase" accidents, which even CANT agreed was not required. See Contention C, Basis C.2, supra, it is not clear what " legal limits" CANT is referencing. Part 70 standards foi normal operation are not applied to accident situations where appropriate design and slung criteria are used to limit exposure level and dose to individuals or the public. CANT has not oemonstated any consideration of the different standards for normal versus accident situations and has not pointed out any examples where Applicant has not complied with appnpriate standards. The basis is denied. J.3 - Decommissioning Costs CANT asserts that LES has not provMed sufficient basis for its estiniates - of decommissioning costs. Staff does not oppose admissioit Applicant would - have us deny this basis, pointing out that it rests squarely on Bases 4,5, and 6 of Contention B. Bases 4 and 5 of Contendon B were accepted by this Board as issues in this case. Accordingly, J3 is accepted.-. J.4.. Needfor Facility ' CANT argues that there is:ro need Nr the facility since United States enriclunent capacity is more than adequate to meet do' estic needs through 2010. m At the prehearing conference, CANT introduced two newspaper articles. One 350 i l0

~.. .m._ d pertained to an allegation of Soviet " dumping" of unmium on the U.S. nuclear fuel market, while the second article related to operations at a l(partment of Encryy (DOE) feel enrichment facility where DOS was shutting down duit gustion of the plant producing highly enriched uranium. Appileant argues that the economics of the proposed facility are not within the scope of the ER and need not be addressed under NEPA. Ibr a commercial undertaking such as the proposed enrichment facility, the potential market success is not relevant to the NEPA cost tenent analysis, Applicant furthen argues that while it has demonstrated the existence of a market for enrichment services. the economic wisdoin of its proposed venture is simply not an environmental issue germane to the NEPA analysis. Staff does not oppose admission. The Board believes dat CANT raises a litigable issue. *lhe twie issue involves the following legal question: What, if any, consideration must be given to the need for the facility in fulfillinF NEPA responsibilities?. l5. Impact cf Materials Dhrrsion . CANT merely states that the ER does not discuss the potential environmental and social impacts of improper use of the CEC for pmduction of highly enriched uranium for nuelcar weapons and incorporates Contentions L, M, N, and O as additional luses. Applicant and Staff oppose this lusis, both stating that the assertion is totally unsupported. "Fie requested license, which would be enforced by NRC, woukt limit product ent.chment to SE Additionally, the Commisskm has recently adopted fmal rules that provide safeguards that will apply to CEC. No basis has teen provided to suggest that LES will not comply with the terms of the requested license and the safeguard requirements of the Commission. ~1he basis is desded. J.6. Water Contamination ' CANT alleges that the ER does not contain a complete or adequate assessment of the potential environmental impacts of the proposed project on ground and . surface water, in support of this basis, CANT states that gmundwater is the sole . source of drinking water for all of Claiborne Parish; that the grotmdwater lies as close as 2.5 feet below the surface; that contaminated effluent from CEC will be carried to Lake Claiborne; that louisiana State law allows the Claiborne Parish ' Watershed District to manage Lake Claiborne for potential municipal use; tttat ~ he NRC has noted in a letter to LES that contamination of the CEC site during t its operating life is virtually inevitable; and that effluent discharges could result in infiltration of groundwater during periods of extended low precipitation. Staff does not oppose this basis. Applicant argues that CANT has not produced any 351

facts in sup[ ort of its proposition that Clic operations would have any adverse effect on surface or groundwater rer.ources. CANT has identitled several present and possible future water supply uses that may be impxted by the pro [used fxility and appear not tof i re been considered in the !!R. De Ikurd accepts this lusis re>tncting it to poential impxts on present and gossihte future surface and groundwateidrinking water supply. J.7. Wetlands CANT asserts that LES fu.s not evaluated the impxts of the propmed project on wetlands located on the alte or demonstrated that it either has or does not need a permit to build on the wetlands.- Applicant opposes admission of this basis, stating that LES recognites and has demonstrated its commitment and obilgation to consult not only with the U.S. Corps of Engineers but also with cther federal, state, and kical agerries regarding applicable requirements for the construction and operation of the CEC project. LES has requested the U.S. - Corps of Engineers to review the site as is noted in ER 69.1. Table 9.41. Staff, while not stating its reasons, does not oppose admission of this issue. The Tkurd does no: see an issue here, LES has clearly agreed to work with the Coips of Engineers and the review is currently taking place. %c basis is rejected for falling to show that a genuine dispute exists on a material issue of law' or fact, ai required by section 2.714(b)(2). 1.8. Property Values CANT disputes Applicant's claim that property values "may be enhanced due to the presence of the LES fxility" arguing that because scme contarnination from CEC is virtually a given and that CEC has the potential to become a . storage facility for enormous quantities of hazardous wastes, it is more likely that property vahms in the area would decline due to the perception of pollution

and danger from the plant, floth Applicant and Staff oppose this basis. Each argues that CANT has provided no facts or expert opinion to support its view

.that property values might fall, and its position constitutes pu.c speculation. - De tsoard agrecs. %c basis fails to mect_the threshold requirements of section 2.714(b)(2) and n denied. J.9. Impact on Communkies CANT ' lleges that the proposed plant will have negative economic and a j-sociological impxts'on the minority _ communities of Forest Grove and Cedar Springs and the ER does not adequately reflect consideration of these impacts, I: i 352 L i-i i-l l

1 1he closlag of livest Grov fload, which joins the two communities, and the fa t Oint the plant is to be pi, cd "in Oc dead centes of a rural black comniunity consisung of user ISO famille" are cited as sources of the imgucts. Applicant ogposes the issue stating that CAN1's allegathwis are promised on specutadon and it provides no supptwt for tic prognition that closing oil ibrest Grote Road and bulkling the plant will have Ligati/c impacts on the two communities. Stall does not oppose admisskm of this issue.1hc Board twilieves that CANT im identified an issue with sufficient basis and specificity to ineet the regnirements of section 2.714(b)(2), i Contention K. No Dhrunion of No Action Altrrnative lhe l.R violates N1;PA becam 6: does nin main m. edryonie distuiske id stiernaiives to dw prqueed artkm i CANT states that NEPA sequWs that environmental repwts include, inter al4. a discusskm of " alternatives avaliable for reducing or avoklirg environ-mental effects," and LES fails to sa0sfy this requirement in the c 6tical respect that it does inst discuss the no acthm alternative. CANT argues that given the significant environmemal costs of this projtxt and the fact that LES has not demonstrated a need for the ladlity, this alternative should have tren analy/cd in detail. Applicant o[ poses this contendon, arguing that there is no esplicit regulatory requirement that the ER address the no action afternadve, and Regulatory Guide 4.9, " Preparation of Erivinxuacntal Reports tor Commercial Uranium Enrichment Facilities," Revision 1. October 1975, contains no mentkin of the need to provide an assessment of the in-action alternative in an Envinomental Report. The Staff does not ogpose the admission of this contentkwl in the context of sklering Agylicant's cost tenefit analysis under NEpA.1hc Board finds that NT has rulequately demonstrated that a genuine dispute exists with LES on L. need to discuss the no-actkwt alternative. The contendon is accepted. Contention L Unlint Enrichment Monitoring la order to prmide scannable assurance that gas centrifugs equipnent at the Clf is run unlawfully diverted to the pnshwtices of higFJy enridied urannati (lli!U), dia applu ant's fundaneral nuclear matenal contml (thMC) plan should stquire cuntimame or freqirni enhne mrithment monnoring fut all casudes. To ensure the effectiveness of sw.h rmmlue. ing, the phn dnmid sti uhte minimum prxess pre inner diameters of 110 millineters tw t greater at all poimtial meastuemera pmes.1he ourmd design of the CI;C skes tad meet these a;4pficatlans. [Rxencnes tuninc4.l 353 l l t i -.-.w, m.v,. ,n-,--nn-, ~ ~,w m. m r ,-w-, ny r- , - - - - - s ,e- - y

5t De tusin ollerrd for this contentnui speciheelly celes the poposed rule pubbshed on 1)ecemlet 17, lWO (55 l'ed. Reg. $1.7?6) (w his h w'as sutwtantully urultered when iepublidwd in Imal form on October 31, lWl) and l>rait Regulatory Guide IG5Wz, "htaterial Control and Ae(ountmg for Uraniuut linikhment Ikilitics Authorited to Produce Special Niwicar htaterial of law Strategie Sigruficance." CANT States that 10 C.F.lt, 6 7433(c)(5%i) requires a dJc4 tion program dut provides high auurance of deintion of any production of uranium enrished to more dun 101 in U 235. Arkt to it does, even in the 1 mal senion. 56 Fed skg. 55,W) (lWl). C ANT also notes that IXMlH2 says that an estensive program for the tentrifuge technology would be a[propriate and that such a program can use hxed delators, portable detecton, or uranium hexafimnide sampling. CANT then alleges that, in order to have "high assurance" Out no produedon or diversion of highly enskhed uranium (lil:U) will occur, it is ne(enary to employ frequent or contmuous use of fixed detectors rather than interraittent use of Mutable delntors, giving several reaums for dils position. CANT further allegs 06at even on line imedioring is not ef fective if (citain precautmns regarding pipe site are not taken, citing an article by its expert,11. Ilunt, which suggests errors as high as 200 percent in r,txh monitoring if great case is not taken. He Appheant says that, since Die draft regulatory guide ollers several methods, CAMT4 admcacy of one of thern is inadminible. We think not. As Applicant is fond of icminding us, a regulatory guide it at a regulation. Still less of a regulation is a drn't retplatory guide. Where such a document ollers several means of comphance w@ the regulations and an applicant has (hosen coc of thv we think it entirely appropriate for an intervemn to charnpion another, o'ftring reasons why this oder method will be necessary to achieve the "high assurance" required by the regulation and reasons why the medal chosen will not achieve compliance. We note that it is established law that intervenors a e not " precluded from demonstraing that (a) prescribcd method is inadequate in the particular circumstances of die case." l'ublic Srrvice Co. of New //ampahlrr (Scabnok Station, Units I and 2), ALAll 875,26 NRC 251, 261(1987), citing Gulf Starre Utilities Co. (River llend Station, Umis 1 and 2), ALAll-444,6 NRC 760,772 73 (1977). In this case the argument offered nppears supswted by expert opinion. Staff expesses a blanket opposition to the adminion of all four related contentions, L, M N, and O. Staf f's position is that the recently published fmal rule means the contentions have been " superseded" and that dicy now consutute a challenge to the reguladon. We cannot agree. Contention L appears to be a challenge only to the way in w hkh the Applicant plar,s to satisfy the regulatim. Contenthms of dut nature are clearly adminible. He content is adequately supported as required by section 2.714(b). We will admL Contention L. 354

t Contention M. Alonlloting of.%rnpling l'ortt, l'rorrss \\'olits, and Flanges in indet to i niuar iv Aint i.oAun. of lit,U 69 a t,ai.h uhane mn6ms nu.uir d samphng Im.ns, prm ns ut,ti wal A.s rianges, de epi u wit's IMt(' plan stumid requot d efintive trunutontig 19 ithaWe in brotal #t. twin whah utuvately Lerp timL of unplovte au rse to these practs owmertum 1 s atuos As a lusts for this contention. CANT again cites the sv:w 10 C.F.it. 6 74.33(c)($)(i), whkh rWaires high auutance of detecting unauthori/cd pro-dwtion of IIEU, and IX1 $002, w hkh requires that the applicant discun the use of t 'ruper indicating seals on process valves arid flanges. CANT then of feni tea-room why the simple use of seals is ineffe(tive and offers communicatiorn frem personnel at Sandia National Lnborato ies f ar the fact that tamper-puuhng de-sices more effective than seals will shor j be available. CANT wishes to make a case for requiring siuch devices. LES ob}ccts to this contention as a challenge to the regulatkm and to the draf t segulatory guide, as it did to Contention L atxne, llere die objection is even wider of die mark. CANT clearly urges compliance with the regulation and of fers an alternative to the draf t guide that is in development and may will not have tvicn consi& red by the draf t guide's frarners. Stalf, as noted alove, lumps this contention with the otki three itt Ous telated group, offering no s[ccific objecthm to it turt viewing them all as " superseded" by the adoption of the new regulallon. We do not See it that way. The new regulation clearly requires something (means of preventing unauthorized 1100 production) that the contention would supgxst. CANT wuuld olier a novel means of complying with the regulation, a rncans that the draft regulaury guide does not mention, but does not clearly preclude. wb will admit Contention M, having met the pleading requirements. We note that CANT believes that it can litigate these contentiora without Oc use of tlassified information. Tr.113. Whether it can be accomplished is yet to be deterrnined. Contention N. Centrguge Cell \\t' alls in ordre to snme tY; aa rgutje tuiles huptmented stictuvely, opaque malls animd r amati nile or temnfeges should tu: c lvenly pedutuicJ siunos the CICs entue lutnne LetTf). At die prehearing conference, CANT agreed to withdraw Contenuon N u[on assurance that ce'tain language concerning the design of the plant would be included in the Salt. Tr. 09. MS

l 1 Contention 0, thsign for 1:ffectiw IAl:A Insprctions \\ l 1%rivare to the lletapartite Agewstwed. the NHC iWuld requite that gJane heideere drsign in every Cl.C tatt ade ter umiladve to effeoise imhne get entidontud enssutotit a by the lancent-J.hwine thergy Agency (tAliA) l Inello's W' p>hlication of Dic new rule tus precluded the skimiuksi of this contentiev M luppleinentary Information concerning public comtnents that was pubrk, with the rule, dw Ce3nmlulori stated: 1 One individual eterancener... also suggested temsuh ns wnh t A!!A em the ptera harJesev l design trior to omstewake.... IAla a is de NRC's resptmalbiiny to license the l entidoncrd facihty, its trquireent'ese for the prettbn 44 heahh asui safety of the pubhc j and the etvientai &fense avut setvrhy tale petsedence (m lAILA inspenten idwsnes and prt*uda.1 N<nctheless. these linatenal come sent acominabilityl requerennesas were - detekred cogninud 44 the IAi!A gutgrarns luause the 11.$. is a mesnber tourary is the IAl:A and cienches u kh IAt:A sequiresner.ts. Cornequeinly. the sugseniket <d de tunneneseer r it refuerd $6 red Reg.4$.995, has it appears that the Commission deliberately relmed to irrorporate a requirement that the Internadonal Atomic Energy Agency (IAEA)le consulted on die design of enrichment plants to facilitate later IAEA inspecti(nts, it is clearly the Commission's Imsition that compthx.c with hs peifortnance criteria. i m they are expressed in the new rule, is all that is needed; that furthet specific provision in the plant design for projected I AEA inspection is superfluous. l CANT itself asserted at the prehuaring conference that "the NRC's final tulo diat was published (ni October 31,1991: now says that the Commission t has dechied not to require plants to le designed in accordance with IAllA specifications," Tr.109. That is not quite correct. De Commisskm evidently telieves that it has accommodated anything the IAEA would need with the provisions of the present rule. De actual hardware needed to comply with those provisions is Oc subject of Contentions L and M, alove. De notion that Oc designers of the plant need consuh with the IAEA to facilitate inspcetions has been rejected by the Comminion. We see nothing else in die contention. It is rejected. We note heie that LES lias raised a general objection to the admissiott of diese four c(witentkins,' alleging Out their content is "a matter tefore the Commission rather dian the floard." Tr.110 %c Commission in its Notice of llenring and Comminion Order of May 21,1991, provided the opportunity to move the C(unminion to reconsider any ourtion of part til of the notice,"lil. Commission Ordec: Criteria for the issuance of a Lic(nse," $6 Fed. Reg. 23,310, 23,313 (1991). .-The document that engenders this objection, "Citliens Against Nuclear

• lrash's Objecdon to Commission Order Dated May 21,1991, and Comments on Proposed Liecnsing Standards for Uranium Enrichment Plants" of October 7, r

356-4 :, 's r.,,. - -., n 7-c m- ,m.,,-,n,n,,-w,,.-_..-, ._,.-,.,,+-.n._ -n.,,_-.n-.v.,.a-, . - ~ ~ ~

- __ _. = _. - _ - - __-.~___ 1991, does inderd peikt before die Cornmissioni for whateser actiori det lody nny take, it is al.to true Out dicsc fout 6ontentiorn comtitute an attrinnent to the document, llowever, a glance at the co1 tent of the thicurnent itself reveals t!ut the attachment is meant to supgxst CANT's nunment on the proposed general design criteria for enrichment f acahtles CANT evidently lwheses diat i the Commission should include amcog those critetia a criterion spedlying that die design of the facility should be "corducive to irnplementation of cifective, advanced.,, safegturds te(bniques arkt procedures." l CANT simply asks the Commission to "give consideradon to the issues talsed" in the contentions and to the material upon which the contentions are based.1he only relief rought bekire Oc Commisskut is the inclusion of certalri phrawology in its plant design criteria. Whether or not the Commission uhimately inchides such a criterke in its regulathms, the presence of the estant 10 C.F.R. 5 7433(c)($)(i), taken with the material CANT has submitted, offers sulficient basis for the miminion of Contentions L and M, and Vic Supplementary Information cited ateve offers suf ficient grourids for rejecting Contenthm O. 'lhe netion that the Commission snay take in response to CANT's pendmg request for relief is $1mply inclevant to de admission of these contentkins. . Contention l'. llaldlity Insurance 1.Ls t'an=** to :=we $12u nimn in tinhaity iniurina. m anum in insurnoan to twet 114' pnential listeihty, and le eat suggoned l'y adnquaw justificatinet Ibr its basis, CANT relics on a Staff request for information whkh is contained in the letter dated June 2$,1991. Without explanation, the letter states diat the amount of liability insurance should te " justified in terms of a reasonable evaluatkm of the riska requ' red to be covered." CANT incorporates this by reference into the contention. Itutionet adds that the assessed value of pnperty la Claitxwne l'arish is 5540 million, which is far more than the $120 million 11S 1roposes to ottain. 1he contention fails to meet the requirements of 10 C.F.R. 52.714(b)(2)(i), (ii), and (iii). No rational explanation is offered to show duit the amount of insurance is inadequate. Because the amount of insurance is less than the assessed value of the property in Clailerne Parish (kes not show that the insurance is inadequate. *Ihc issue is whether gotential liability for d.smages that can be caused by tle plant will execed um amount of insurance. This wm never discussed in the contention. 1hc claim diat the amount of insurance is not supported by adequate justi-fication is a twe assertion not supported by alleged facts, espert opinion, or explanation, as required by Oc regulathos. The mere request for informatkm 357- -*b r ' r vr 'r ir v-w vc v -e- - - w ww-w ww =, v v e - vtr -rwe v + -< 'ver mwn v wm .s - w w + - r -a m=r -t-mww

• v= w= m-r e-p e-- re = e n ' = " ww wrerrrm-we-----=

by Staff, witlout lordier esplanation by St.itt and the Petitioner, does not rncel the regulatory requircinents.1hc contenthwi is rejested, Conkntion Q. Iina.nlal ym,1@ cations 1,13 he eve denuvateaud u at it is Imam tally qualified to innlJ aml op toie aic Cl C. Again, for its basis, CANT relics on a StafI request foi information whith a contamed in the letter of June 25 There are t.ht categotics of questions secking hnancial information. No esplanation is olleted by Staf f or Petitioner a2 to why the information is requested or what the consequentes are of f alling to include t!w inforrnation in the application. he incorporation of the bare questions into the tmis of the contention f alls to sup[nrt the contention as is required by the regulations. Addidonally, CANT auerts that Ll!S's hnancial qualifications are uruler-mined by the fact that two of tie four partners in the venture, Duke Power Company and Northern States Power Com1un), are financially committed only to fund activides during the " venture pl.w.e" up to specific ceilings and intend to leave the LliS lurtnership once a construction permit is granted. Petitioner relies on a dacurnent titled "lauisiana linergy Services, L.P., a Report to the North Carolina Utilitic. Commhslon from Duke Powcr Company," dated June 20,1990. The report confirms timt the LliS luttners are financially committed only to fund LliS activitics during the venture phase and only up to s]wilic ceilings, it is also the intention of Duke Power Cornpany to sell or redeem the large majority of its shares in Li!S to outside investon and perhaps to retain a sinall interest in order to meet NRC licensing requirements. '!he ventu.c phase was defined as the period during which lliS will undertale the securing Of an NRC liceme, marketing the product, and seeking major investors to huance construction of the plan'. l\\titioner's contention that Ll!S has not demonstrated that it is financially qu:dihed to build and operate Clic because partners are not committed to fund the building and operation of the facility is admissible. It provides sufficient facts to show a dispute with the Applicant on a material issue of fact. CANT relics on information that has been prep;ued by one of the principal's affihales. Should the contention be proven it could le of consequence and entitle Petitioner to relief. ~lhe regulaury requirements for the admission of the contention have been satisfied. .W

i I Contention R, Managtttsent Competence and integrity therwe, uw prunary ingraus twhmd t.13, has ptwen wahir w smtst4 u c spread <d its l crunivi.esd tedundgy, uhkh can be vieJ to penhue emukar weapon The.re is iten ru, scuonable assuratire that theniv postcasts the requmte wrpeate diarktrf to greetc the CI A' in a safe aid tswf ul mannrr. Ibr its tw.is, CANT relics on newspa;<t and trade publicadon articles reporting that: design blueprints for a Urenco centrifuge were seen in Iraq in 1988; in August 1990, ualdentified customs officials confiscated equipment for Urenco designed centrifuges that was desthned for fram and that, throt.J. covert activity, Pakistan obtained its enrichment technology from Urenco. Objections have been raised because tic contendon is premised on hearsay.

• lhat is no bar to the admission of a centendon. Contentions based on newspaper articles have been admitted in the past. Carohna l'ower and Light Co. (Shearon llatris Nuclear Ibwer Plant), t. IIP 8611,23 NRC 294,301 (1986); ALAll 852, 24 NRC 532,536 (1986).-

"Ihe issue is whether the contention is supported as required by section 2.714(b)(2). We find that it is not. "Ihe articles are too vague to support the - contention; 'They allege that Urenco technology was found in the possession of Iraq and Pakistan. Ilowever, they lack sufficient specificity to claim that this was caused by Urenco. Absent any such I,howing, ti e contention is a vague, unparticubrized charge which is inadmissible. Catawba ALAll487, spra. Contention S. Quauty Assurance IJ3 has nas suteniuc41 an adequate quahiy assurarne plan riv ni situcikwi and qwisihm of the Cl C. 'Ihe tutsis for the contention is the request for information contained in the June 25,1991 Staff letteri CANT ir corporates the questions raised about quality assurance by reference. No esplanadon it offered as to how tic requests are relevant to the contention. 'lhe request for information has thirty sis numbered requests. They ask LF.S to describe, consider, clarify, eliminate, on address various matters. No reliance is placed on any regulatcry guides for the requested information nor are there . explanations overall as to why the information is needed. What CANT has donc in effect is to ask the Iloard to root through Staff's - inquiry and to find something that would support the contention. "Ihe proffer is wholly unacceptable, it fails to conform to the twoc. css that requires lYtithiner to provide an explanation of the basis for the contention with statement of facts upon which it intends to rely that will show a dispute with the Applicant on a material issue of law or fact. 'Ihe contention is rejected. 359

l'arly Sta'.Js Section 2.714(b)(1) auttavires the admission of a petithvier as a party, if it h submits at least one admbsitile conterition, CANT has satisfied thh requirernent and siniuld be admitted as a party, l'urther Actions 1he lloard will arrange for a prehearing coaferenic for the purpose of setting a schedule for further actions in the proceeding, narrowing the issues, ath! conshlering similarly appropriate measures for moving the case forward. l Y, ORDI:R liased uixm all of the foregoirig, it is heseby ORDEltED:

1. Contentions 11,11, I, J, K,1, M, and Q are admitted, in the manner describe 1. All others at: rejected; and

2. CANT _is admitted as a pany.

Tile ATOMIC SAIETY AND LICENSING DOARD Frederick J. Shon ADMINISTRATIVE JUIX]E Richard 17 Cole ADMINIS*I11ATIVE JUDGli Morum H. Margulies, Chairman ADMINISTRATIVE LAW JUDGE - Bethesda, Maryland Decernber 19,-1991, J 360 t o L.. .--..i..,,.., --.,.,c -,,,n....--.

Directors' Decisions Under 10 CFR 2.206 / i 1 4 i M h

Citu a5 34 iJnC 36) (1991) D0 917 UNilED ST ATES Of AMERICA iJUCLE AR HEGULATORY COMMlbSION OF FICE OF NUCLEAR REACTOR REGULATIOf4 Thoman E. Murley, Director in the Matter of Dockst tio. 50-443 (License No. f4PF 86) PUDUC SERVICE COMPANY OF NEW HAMPSHIRE, et al. (Seabrook Station, Unit 1) December 27,1991 1ho Director, Of fice of Nuclear Reactor Hegulation, denies a petition bled li> hir, hilcluel C. Sinclair of Graystone Emergency hianagement Associates re-que: ting that the U.S. Nuclear Regulatory Commission withhold a determination on whether the directive in ALAll 941, 32 NRC 337 (19W), was satisfied in tic Seabrook Station 1990 ITiM A/NRC graded exersisc. Mr. Sinclair contended that the directive would not be hatisfied until there is documented evidence that the vast majority of the [urticipating schools have adequately demonstrated the ability to cilect their knplementing procedures for the New llampshire Emer. gency Plan. As insis for the request, Petitioner asserts that the Federal Emer-gency h1arugement Agency's conclustom repudmg the etescise, set forth in a March 1,1991 letter, did not adaluately address the Appeal lhura's directive in ALAll 941. RULES OF PRACTICI'a SilOW CAUSE PROCEl: DINGS lhe institution af proceedings porwant to 10 C.F.R. 5 2.202 is appropriate only if substantial heMth and safety issues have tren raised. 361 i

1 I)lRECTOR'S I)l' CISION UNI)ER 10 C.F.R. 5 2.106 INTRODtCI'lON Dy letter of Alvil 12, lWl, Michael C. Sinclair, of Graystone Emergency Management Associates, submitted to the Atornic Safety arxl1.icerning ikxird (ASt.ll) a request t at the U.S. Nucl(ar Regulatory Commission (NRC) withhold a determination on whether the dire 4;tive in ALAll 941,32 NRC 337 (1990), was satisfied in the Seabniok Station IWO 111MA/NRC graded exercise. ALAll.941 concerns, imcr alla, a deficiency in the scope of the June 1988 full particigution exercise at Seabrook regardmg the failure to elicit sufficient school gurticipation to have enabled the verification of thc 14hools' integrated capability to respond to the xcident scenario. In ALAll 941, the Appeal Ikiard directed that the deficiency le cured in a subsequent exercise. Mr. Sinclair contended that the directive would not be satisfied until there is documented evidence that the vast mabrity of the 3.articipating schools have adequately dernonstrated the ability to effect llelt implernenting procedures for the New llampshire Emergency Plan. Although Mr. Sinclair was not a party to the Ivoceedir g that is the subject of ALAll 941, he had previously tvought his concern to the Licensing Ikurd in a letter of Manh 25, 1991, in which he asserted that the I:cdcral Emergency Management Agency's (111MA's) conclusions regarding tic 1990 Seabrook exercise, which were summarized in a March 1,1991 letter from a IEM A official to the NRC Stalf, G;d not adequately address the Appeal lloard's directive. lly Memorandum arul Onter of May 24,1991 (unpublished), the Appeal 11oard stand that it was treating Mr. Sinclair's letter as a request for action pursuant to 10 C.F.R. 62.206, and, accordmgly, referwd the letter (hereinafter 'Ittition) to the Executive Directot for Operations (EDO) for disposition under that xgulation. 11y letter of June 27,1991, I informed Mr. Sinclair (hescinalter Ittitioner) that his request hai been referred to me for action pursuant to section 2.206. A notice was putJished in the federal Reghter on July 5,1991, indicating that the NRC was considering thc Ittition (56 li d. Reg. 30.777), in a letter of October 10, e 1991, Mr. Sinclair requested a status report on the NRC's review of his Petition. In a letter of Octobei 24, 1991, the Staff indicated that IEMA's assistance had been tajuested in responding to the Ittition. *lhe Staff made this request to FEMA in accordance with the April 1985 Memorandum of Understanding between FiiMA and NRC, i

• lhe NRC Staff reviewed IEMA's response of October 10, 1991, and has concluded its evaluation of the Ittilion. For the reasons dhetased below, the 362

s NitC lus concluded Dial lie concerm raised in the Petition do runt provide a Itasis for the acthat sequested by the Ibition, and denies die Pettlion. lilSCUSSION 'lhe lusts for the Pctitiorer's request, a', tiet forth in the letters of March 25,1991, and April 12,1991, is dial IEMA's conclusions regwding the 1990 Seabrook exercise set forth in a March 1,1991 letter frorn a ITMA ollicial to NitC Staff did not adequately address the Appeal 11(urd's Direcdve in ALAll. 941. Specifically, the l'etithmer believes Out un IEMA conclusions should not be interimeted as fully sw' dressing Oc intent of the Appeal 11oard's directive l to correct the failure to et wt sufficient $(hool participatkm in the June 1988 exercise, not as following IEMA's own Exercise Evaluation Methodology, in his April 12,1991 letter, Mr. Sinclair asserts that there is a contradiction letween the pre-exercise agreement, the FEMA exercise review inethodology (Objective

1. 19),* And what Fl!M A observed during the exercise, 'the basis for this asserthm appears to be provided in Mr. Sinclair's March 25,1991 letter in which he claims -

that (1) all sclumls wcre to be called, but Iri fact all were not contacted (because some were missing from the list arul sorne did not answer the telephone); (2) dere should invc tren more pardelpation by the facilides Owmselves, e.g, participation by teachess in addidon to kctml administratorst and (3) ITMA - l stated that it had

• reached no concluskms about the adequacy of the performance of LM exercise participants," and therefore could not conclude that the pre.

. exenise condidons were satisfied. In the Ittitioner's opinkm, Oc issue to bc decided is not whether more special f acilities gurtic!pateo h: 1990, as ITMA concluded in its March 1,1991 letter, but wheur,t the participatbg Initatics understotal their roles and sesponsibilities and wicther they fully implemented the procedures written for them as gurt of the e nergency plan. According to the Peti.kmer, the answer to this question is t'ot evklent from De FEMA letter . of March 1,1991. .In its letter of March 1,1991. IEMA summheiecd the scults of the 1990 cxercise and stated that - 4 diis serves to tenfirm intA's judp.nre that die sunple used in tie 1990 Seahtote eaertise wu miequate to peuviJe a reliable tai ti the tvovisitsis of the New Ilasnpihire Radeological 1 mergency Respese 1%n (NitRIRP) relating to sutifaauto of public and private adaAs and day-care tentess.-IUt A's evidaitris shot die adequary of die lttformance of die - atertite gurticigunta wit! be (o, warded at a tater tsine, in out enerdse etatuatirm tcport. Iolyecties 19 eddruiere implanantali.m rir puntive octwns sulated us wuusuun ur namila its innes,e to donorwuene the ability aad resourtes nacesary la irnplement olymqmete pr.netuvo utoms rev mhnolduldren i wahin the piwne 1 r7. ~ -363

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On Septerutier 9,1991, I'l!M A forwarded the exercise evahution sciurt dated August 23,1991 (Rel ort) to Die NRC. 'the Reixut provided additional in-formation on the esahution of On se f acihtics, con $ntent w idi the extent +bplay agreements (agrecroenn made before the exettise aunong esercise furticipants as to the extent certain areas wdl be toscred in an exercise). On 0,tober 10,1991, I' lim A tcyonded to dic NRC's request for assistance in respondmg to the petition. the reyxme punided infornation extra:ted horn die Relurt at pages 80 RN. 'Ihis information contained IEMA's corklusions regardmg the ktowledge of the exercise lurticipants of their roics and responsibilities durmg a radiotopcal emergency, including eyewitness otuers adons by 111M A personnel of the awarJncss of responsibihty and the extent of preparedness of resjonsible personnel at a variety of Mhools, Itased on this information, ITM A concluded in its (ktober 10,1991 lettet to the NRC Otat it contmued "to beheve dat the whcols evaluated in the 1990 Seabnok exercise adequately demonstrated their l know!cdge of the punisions of NilRiiRP reladng to the notification of public and private uhools a xt day-care centers," 'lhe NRC Staff (oncluded, after reviewing this information, that IT.MA's evah2ation included a determination of the school officials' knowledge of their roles and responsibilities during a radiological emergency and, following IEMA's own fixercise livahtation Methodology identified only two Areas Requiring Corrective Actions (ARCA) associated with the exercise activities.

• !hese ARCA, and the ashedule for cornstive action provided by the State of New liarnpshire, are identified in Attachment 11 to 111MA's (Atober 10,1991 letter to NRC.

'thus, the March I,1991 letter provided 111M A judgments about the adequacy of the rmmber of whools that participated, and the Re; ort followed up with anore detallal and extensive information and conclusions conbrming the adequacy of Oc irnplementatirst of protective actions and die performance of the exercise participants. 'this confirms that the directhe of A1.AD 941, mpra, 32 NRC at 355, that "the failure to clicit sul6cient sciml participation in the June 1988 exercise should be corrected in a subsequent exercise," has, in fact, been implemented. Contrary to Mr, Sinclair's assertion that more panicipation was needed, futi imp!cmentation of the plan does not require mandatory 1(XY1 gurticipation. h is not "obbgatory that the administration of escry New llamjwhite 1117. school partici ute in the exercise." (/d.). Also, the Al.AB 941 dcasion does not mean t "that the 19M) exercae Tyuised the direct involvement of classroom teachers, as distinguished from Khooi administrators" (ld. at 354). 'lherefore, IT1M A's evahiation was properly limited to the capacity of school officia'.s to arrive at Out stage of the enuftpency plan that is short of marklatory 1(KYL participation, in a March 25,1991 letter from die Petitioner to Judge Ivan Smith, Chairman of the ASI.B. the Petidoner questioned the fact that the lists of schools and 364

i day care centert, to le teleptavied by 11!MA werc ivovided by New liwphire ' Yantec, rather than by de State of New llampshire. I: lim A's resporne statal that the utility provided die lists in a format suitable for the telephone retificadon process, solely as a convenience to 111M A and the state.1hc hsts were imed entirely on existing state documents and State plovided informathei. 1hc Ittitioner also cridelred the inadycrtent orniulon of a few scinois and day care centers from the lists uwd by 11:MA to make the verification calls. ITMA does not view this as a significant omission, since the ominion constitutes a small percentage of calls inmle in IEMA's vesincation effort on December 14, 1990. Iloth Al. Alt 941, 32 NRC at 342, 355, and FEM A's Ouldance Memorandum 11W2 permit less than 1(M verification during an

exercise, Armther concern of the lttitioner felates to the pre exercise agreement diat all five schmt administrative officci in New llampshire were to participate

- fully by calling all public and pri> ate schools in the New llampshirc pordon of the emergency planning rone (EPZ).1hc five New llamp5 hire School Adtninistrative Units (SAUs) Identified in the NilRERP (SAUs 16, 17, 21, 50, am! $2) participated in the December 1990 exercise in accordance with lie extent +f play agrecsnenu, the five SAUs participated until the close of the schml day. Cornequendy, Die sc!ools did nm receive notification of the Ocneral Emergency because it occurred at 16:02, after die end of the school day, text not all schools and special facilities could be noufied. liowever, all S AUs have been grovide41 with tone alert radios which can he und to nodfy dem.1hc tone alent radios, aaording to the extent-of play agreements, were not acuvated during the exercise. As set forth more fully in FEMA's Report, the Seabrook Station 1990 graded exercise was conducted in accordance with die exerclie scenario and catent. of play agreements. As also stated in its Repcst, in its evaluation, IIMA - applied the criteria used in the FEMA evaluadon process, including TEMA's own Exercise Evaluation Methodology (EEM).1he EEM provides an objective. based mettux! for FEMA to use in evaluating exercises pursuant to 44 C.F.R. part 350 and 10 C.p.R, Part 50 (NRC).1he exercise evaluadons presented in FEMA's Regort are based tai the applicable objective, the etsfrit of play, and evaluadon cri'eria set furth in t'e Exercise Evaluadori ibrms. CONCI.USION 1hc peddoner has not raised any concerns' that have not already been addressed by FEMA.- thr the reasons discussed above, I have concluded that the Appeal Ikiard's directive in ALAll 941 conceining the deficiency in the i 4' June 1088 Seabrook exercise has been satisfied. Therefore, the Ittidoner has '365 m-u, s .%gm. ,,_,u ,m ,y

I not provided a lusis that woukt warrant the relief requested 'Ihe institt. tion I of procedlings pursuant to 10 C.I'.R. 6 2.202 is appropriate only if substanti.41 health and safety issnes have been raised (3rr Corisolidated Edison Co, c/ New York (Indian Point. Units I, 2, and 3), C1.1754, 2 NRC 173,175 (1975); l I Washirugton Public Poner Supply System (WPYSS Nuclear troiect No. 2), DD-I 84 7,19 NRC 899,924 (1984). This is the statulard that I have applied to the concerns ralted by the petitioner in this Dechion to deterinine if enkteement action is warranted. Consequently, I have denied the Petitioner's request. A topy of Ods Decision will be filed with the Secretary for the Coinrnission + to review as provided in 10 C.F.R. I 2.?tK,(c). IOR Tilli NliCLIAR Rl!OULATORY COhthilSS10N 9 Thornas !!. hiusley, Director Office of Nuclear Reactor Regulation Dated at Rockville, hiaryland, th!s 27th day of Decemter 1991, 2 I ?l 366 j i '*-map Gr@ Oe#P- ,49 v'w t rsa gi -y'g'n*-Fgw=$~ztat-7+'P1rt m'F- ? r CWr* WFP FW'-7v<PTNP-9EFTM**T T1SfF-M ,,,4 g W 1PYg'Er'4 fh q'r $+ W Y-W YT v*r $ w w-Y Wi eypW T Yyr'-PF $ NMf*F*My *W { gTN t f

_ -. - _ - -. ~. _ ~ _ - .-~ -. i Cite as 34 NBC 367 (1991) 00918 UNilED STATES OF AMChlCA NUCLEAR HLGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Thornas E. Murley, Director I in the Matter of ALL NUCLEAR POWER REACTORS December 31,1991

• the Director, Olhce of Nuclear Reactor Regulatiott, denies a Ittition hied by the Nuclear Control Institute and the Committee to liridge tic Gap requesting the Nuclear Regulatory Cornmission to institute an individual plant cumination

-(IPE) pregram that would request licensees to evaluate the rnargin of nuclear power plants to withstand an uttack by explosive laden surface vehicles and by a larger number of attackens using rnore sophisticated weapons than specified in the current design basis threat As bases for the sequest, the Itutionces assert that there is a risk from terrorht activities beyond the desijn basis threat, that the level of protection vanes from plant to plant, that the ongoing IPl! program would be a vtry uwful and cost-eficctive point of departure for a similar evaluation ol' tenorist threats, and that vulnerabilities that are identified can be eliminated or their effects reduced. PIIYSICAL PROTECTION PROTECTION AGAINST Tile - DESIGN.IIASIS TilREAT Ol' RADIOi,0GICAL SAllOTAGE Section 73.55 of 10 C.F.R. requires licen%es to establish and maintain an onsite physical protection siystem and security organization designed to prolm against the design-twls threat of radiological sabotage as defined in 10 C.F.R. 573.l(aXI). '!his is accomp"shed by n combination of detection, interceptuni, and physical protection. 367 L l l V l

PilYSICAl, PitO'll:C ilON: PRO'14'.C110N AG AINNI 'I'llE DESIGN il ASIN litid:AT Ol' H ADIGl.OGICAl, S Allo l AGl: 1he &sipa twis threat punitks a standart8 fin judging the a&qury of phyrilcal protection systems, analogous to using design basis accidents in judging the adequacy of safety systems.1his design tmis threat of Part 73 is not an twhhtkmal standard for judging the ada acy of safety systems pursuant to Part $0 requirements. RUl,ES Ol' l'H ACTICI' SilOW.CAUSE PHOCEl: DINGS 1hc NRC will not institute a luoceeding pursuant to 10 C.l'.it. $ 2.206 m hefe the petition fails to raise any substantial health or safety issue. l S AIlOTAGEt itEl.ATION 'l O iti:UUl.ATORY Hl:QUlHl:MI:NIS 1he Comrnistiton's regulatkins do not require licensecs to design safety systems to be resistant to various acts of sabotage, although the diverse arx1 redundant sarcty systems and structures at nuclear power plant.< provide mne inherent protection againn such acts. I)IRECTOR"S I)ECISION UNI)ER 10 C.F.R. % 2,206 IN'l HODUCTION On September 4,1991, the Nuclear Coatrol Institute and the Committee to Itridge the Gap (Ittitkmers), ided a Ittilkm in acconttnce with 10 C.F.it. 5 2.206 with the U.S. Nuclear Regulatory Commission (NRC or Commission). On Septesnber 20,1991, the Ittitioners submitted an Annen to the Ittition. The Itt, don was referreo to the Director, Office of Nuclear Reactor Regulation, for consideration. 1he Itution asked the Commhslon to institute an individual plant exam-laatinn (IPE) program requesting licensecs to evaluate the margin of nuclear power plants to withstand an attack by explosive-laden surf ace vehicles and by a larger number of attackers using more sophisticated weapons than specified in the current design basis threat. The Itfition asserts as grounds for this le<tuest the following: (1) there is a risk frctn terrorist activities "beyond the design Insis;" (2) the actual level of protection inherent in the structures and safety systems varies frorn plant to plant armi the Icvel of physical protection in sceu. tity systenis is likewie variable; (3) the ongoing IPE program wtmld te a very 3611 I

i useful afkl cost effeedve point of delurture for a siitiilar cialuat' ni.if terrorist threats, specifically to demonstrate whether the compromise of mtain collo-cated safety equipment from a terrorist atixk still leases adequate capability to shut down the plant and maintain it in a secure state; and (4) vulnerabilities that I are identified can be climinated or their cifects reduced. On October 7,1991, I acknowledged roccipt of the Petition. I infortned Itduoners that (1) the Itdtion would Ic ucated pursuant to 10 C.F.R. 6 2.206 in the Commission's regulations and (2) appropriate action would be taken in a reasonable time. Ibr reasons discussed below, the lttition is denied, i ilACKGROllND The Itution asked the Commission to institute an ipE prognun acquesdng licensees to evaluate the margin of nuclear power plants to withstand safeguards events tcyor d the current design-basis threat. An IPE is a systernatic exam. ination of plant design and operation that looks for vulnerabilities to severe accidents and cost effecdve safety improvements that reduce or climinate the irnport:mt vulnerabilities. The ongoing IPE program has been a key part of implementing die Commission's Policy Statement on Severe Rextor Accidents Hegardirig lbture Designs and Esisting Plants (50 Fed. Reg. 32,138 (Aug. 8, 1985)). 'Ihis statement describes the polley die Commisskm has established to resolve safety issues related to textor accidents more severe than design-basis accidents, Tie Commission considered the issue of sabotage in developing die severe-accident policy statement and did not include sabotage as a potential ini-tiadng event to be addressed in evaluating exisung plants. Both the proposed (48 Fed. Reg.16,014 (Apr.13,1983)) and final Policy Statement include the following language: De imes cif lxdh insides and <astsider satutas errats vill le carchdly analysal and, to the esient practkaNe, will be emphasized as spedal considerations in the design and in the gerating procedures developed fw new pl.m.s. lunphasis added). The NRC received no public comments regarding this staternent. To help implement the policy statement, Generic Letter 88-20, " Individual Plant Examinatkm fc Severe AcciderA Vulnerabilitics - 10 C.F.R. 50.54(f)," dated November 23, 1988, requested that each licensee conduct an IPE for internally initiated accidental events only. On June 28, 1991, the NRC issued Supplement 4 to Generic Letter 88 20, to request that each licensee conduct a systematic IPE for severe accidents initiated by accidental external events - (IPEEE). Tie NRC issued the request for an IPEEE after issuing the request for an IPE to allow the Staff to perform addiaonal work to (1) identify which external haards need to be evaluated. (?) identify acceptable examinadon 369 l

d medgeds and devchy procedural guidance, (3) coordinate with other ongoing external-event pograms, arkt'(4) coriduct a workshop to esplain the IPl!Ei! process and to obtain cornments and questkms on the draft generie letter supplement and associated guhlance document. in the workshop, and as later documented in the IPEEE guklance document (NURl:01407), unc Statf specifically stated that sabotage was not to be addressed as part of the IPEEE.

• lhe general purpose o de IPEEli is similar to that of the internal-event r

IPE - that is, that each licensee (1) deveky an appreciation of severe-accident lehavhtt (2) understand the most likely r,creic accident sequences that could occur at its plant under full power operating conditionst (3) gain a qualitative understanding of the overall likelihood of core damage atxt indioactive matesial releaset and (4) if necessary, reduce pic overall likeliluxxl of core damage and tadkucuve material release by modifying hardware and procedures that wookt help prevent or mitigate severe accidents Consistent with Oc Cornmission's severe accident policy statement, neither the IpE nor die IPEEH addressed intentkmal acts of radiological sabotage, The Commission's regulations do not require licensecs to design safety systems to be resistant to various nets of sabotage, although the diverse arul redundant safety systems and structures at nuclear power plants provide some inherent protection against such acts, Instead,10 C.P.R. I 73.55 requires licensecs to establish and maintain an onsite physical pruttriion system and security organiradon designed to protect against the design basis direat of radiological saix)tage as defined in 10 C.P.R. 673,1(a){l). This is accomplished by a combination of detection, interception, and physical protection. The design. basis threat is defined in section 73.l(a)(1) at (i) A determined violent esternal assault, anack try siealdi, or decessve attumis, of several persims with the following suritotes, assistance and equipnent: (A)Well unined (induding l mihtary trairaing and skills) and de41icated individuals, (11) inside assistance whidi may indude a knostedgeable irkhvidunt who muernpa to participate in a pasive role (e s., ponde information), an active role (e g., facihtete ent,ance and exit, daable alarms armi cunmunicatices, panicipate in violent attuk), or both, (C) sunable weapins, up to and induding hand-held auunnatic weapons, equimed with silerwers and having hmg range accuracy,(D) harwi<arried equipt.ern, inchuling incapacitating agents and esplosives for use as pm,Is or entry or otherwise destroying reacsar,inihty, uansporter, or setniner iniegrity sw features d the s.sfguards system, and (ii) An Internal threat d e insular, induang an employee (in any posuhm). This design basis threat provides a standard for judging the adequacy of physical protection systems, analogous to using design basis accidents in judging the adequacy of safety systems. This design-basis threat of Part 73 is not an additional standard for judging the adequacy of safety systems pursuant to Part - 50 requirements, Rather, Part 73 establishes additional independent requirements . to protect against the design. basis threat. 370

i Tu nssine itself t!ut this Part 73 design tush Oucat remains adeqiute, prudent, and leasolLdtle, tlie Stall colitillually resic%s One dileat llolli tfrlorist acuvities in the wtuld envitorunent (die " ducat envirotunent"). Staf f analpis and reconunendatiorn are provided to the Comminion seiniannually. Ibliow mg itwidents in the Middle East in Hic mid 198u,in whkh terrosists used expimbe-laden vehkin al twunbs, die Comminion (onsidited if the design luus threat should be dunged to include vehkle bombs. *lhe Conuniuion decided dial it would not be necessary to change the design tunis ducat or to requite hcensers to provide pesmanent protective tocasurea agairnt land vehkle bornbs. llowever, as a natter of psu&nce, the Conunksion luued Generic latter 89 07, " Power Reactor Safeguards Contingency Planning for Surface Vehicle llombs " on April 28, 1989. In Generie Letter 8940, the Comminion requested hcemees to prepare f.Dra and make advarrce arrangements to implement, within 12 hours, short rarr - contingency measures in the event that the threal envimnment af fecting reactors in the llS. danges in a way that prompts the Commission to determine that protection against a land-vchide bomb threat is apluolulate. '1he Ittitioners previously requested, ori January 11,1991, that the Conunis-tion revbe its regulations to increase the design tunts threat for nudcar power reactors to include emplosive laden vehicles and a larger number of attackers us-ing more sophisticated weapons. On June 11,1991, the Conunlulon demed the Petidon for Hulemaking based on a determination that there has been no change in die threat environment bifecting reactors in the U.S.1,hice the design basis ducat was adopted, that would justify a (hange in the design-basis threat (56 Ped. Reg. 26,7H2). l)lSCUSSION 'lho current Petiuon does not parsent any information or identify any inues Oct the Comraission has not already considered and addressed in its rulernating acdvities conectning s(clioia 73.55 and 73.l(a); pohey decisions on severe accidents and the implementing IPE and IPlilin pmgrams; and the denial of the Peutioners' previous rtqunt la increase da design-basis ducat for radiological salutage. In describinl; their perception of the need for an IPl! for safeguards events, die Petitioners state that there is a risk frun terrorist activities beyond the design leis. 'the NRC recognires that any design basis threat has ugne related residual risk. One of the purposes of establishing a dnign Anis threat is to define a policy position on the level of safeguards that is prudent. *lhis issue was previously addrened in the Petition for Rulemaking to revise the design-luuss threat. In denying Oct Itduon, the Commission stated that it continues to believe that there a no cre4hble threat targeting power reactors in this country (56 Fed. Reg. 26,782,26,785 (June 11,1991)). 'Ihe current design basis threat is a 371 l l

hygudietical threat used to develop tegulatory requirements, proside a stand.ud against which changes in use real threat envirtmment can be evaluated, and provide a standard that the Commisshe comiders reasonable for evaluating the iruplementation of safeguards (/d. at 26,785 and 26,788h 'lhe lttitioners furdier state that although the Comminion has denied their previous Petition for Rulemaking, action short of a change in the design-bash threat for radiological sabotage semains appropriate.1he Staff notes that, by issuing Generic letter 89 07, the Commlulon has already taken prtkient action shost of a change in Oc design basis threat regarding smiace vehicles bden with explosives, The Pel100n states that the actual level of protedion inhercnt in the structures and safety systems varies from plant to plant, that the level of physical protection inheretit in $ccurity systeins is likewise variable, and that the ongoing IPE Program would be a useful and cost effective point of depsture for similar evaluation of terrorht threats, in describing the proposal for a satotage IpB, the ltlition states the following: Speofaally, using Se P)(Atp malcis devekged in the IPE fte pland systems, their intetdegeralerwies arni relathmshi;=, and tie way the plara equgwntud end permemel resped elen wie to another system or fundkri is usopetenned, and using Or spadal wtimathm informanto devekged fit the flood-IPE and fite-IPE esaminathms, an analysis can read.ly be aorwenphshed to demunstrate whether the ccanimenise of cestam collocated equipmera irmn a tertwist sund stdl leaves adequate capelsitty ks shut skiwn the plard ared maintain h in a ar4uie stale. The Petition further states the following: Of stanee, PRA type rnethtah can tedy be used in assess umfigurathm tme vulnera-Ishties, and rud to quarady in an abzulute smse, the hkehhaxi of a scitorist attad (the. " initiating ivete"in de PRAyp analysis). Nidawly tan tnow what the hkehhmal d suth an anad might be. llente h is twa punible to analyre for *ceve damage frequmey" in analogy un how PR As 44kulate this same frequency for inadveness accidents.

• lhe NRC has already gerformed or caused to te performed the PRA type analyses requested in the Petition. In May 1991, the NRC completed its Regula-tory Effectiveness Review (RER) Program which included performing a qualita-tive fault trec analysis of every operating nixicar power plant.1hese fault tree analyses use PRA type models for plant systems, their inlerdependencies and relationships, and the way the plant equipment and personnel respond when one or another system or function is comprumised. These fault tree analyses also use spatial <ollocation information to determine areas that, if successfully protected against adversaries, would prty-ide adequate capability to shut down the plant.

and maintain it in a r,ccure state. Since it began the RER program in 1981, 372 l l.

the NRC has used tic results of these analyscs in validating each licensee's identificadon of vital equipment and areas. Since early 1987, the Staff has also used tiese analyses to identify s;ecific sets of safety equipment which, if lost, would create tic most significant chat-lenge to maintaining the plant in a safe condition. We NRC has used the spadal location of these sets of equipment in table top exercises and licensee contin-gency response drills to evaluate licensec capability to respond to an external threat with characteristics attributed to the design-basis tiucat. "lle Staff will continue to use the fault tree analyses in new operational safeguards response evaluations of contingency reslxmse capabilities at sites where contingency drills were rot observed by RER leams. %c Staff will review available IPEs and IPEEEs, as appropriate, to update the results of fault tree analyses from the previous RER program. Some licensees have also used PRA type analyses in responding to Generic Letter 894TL At a sufficient distance, a vchicle tornb would present no safety challenge to a nuclear power reactos, regardless of the spatial relationships and interdependencies of the safety systems. Some licensees have chosen to implement their contingency plans at such distances. Oiler licensees have conducted analyses of spatial relationships and interdependencies of salcty equipment to establish closer distances for implemenung contingency plans. NUREO/CR 5246, "A Methodology to Assist in Contingency Planning hir Protection of Nuclear power Plants Against Land Vehicle Bombs," April 1989, describes a PRA type methodology similar to that proposed by the Ittitioners. which could te used by licensees to develop contingency plans. 'De Annex to the Petition submitted on September 20, 1991, describes examples of plant designs and events that the Petitioners consider represent - "possible types of vulnerabilities to beyond the-design basis safeguards events." he Petitioners assumed the success of satotage on certain equipment before interdiction by the security force. Although the NRC Staff does not agree with all of the details and conclusions of the Amiex, the exampics are sirnilar to those developed by Staff using site rpecific fault tree analyses (where it is assumed that the saboteurs have successfully damagtvl some equipmem before interdiction) as part of the RER and follow-on programs, which evaluate the effectiveness of licensee safeguards programs to protect against various satotage scenarios. %cse effectiveness evaluatioris conducted by ite Staff differ from those - - proposed in the Ittition in one respect. De Staff does not address adversary capabilities beyond those specified in the' design-basis threat. Conducting evaluations using more extensive threat characteristics would not provide useful information on the design of safety systems since one of the purposes of : tic design basis threat is to provkle a standard far evaluating implemented safeguards measures. His design basis threat is well beyond the actual current 373

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threat environment. Tic PRA type fault tree arulyses are not affated by assumpions regarding adversary characterie, tics. Rather, assumpions regarding talversary characteristics influence the evaluations of the ellectiveness of the physical security systems and mecures in place to protect against external attacks. Although some licemees have thosen to matify safety systems to increase tie difficulty of radiological salotage, weaknesses identified from the results of the effectiveness evaluadons are normally corrated by changes in the physical protection measures. l What the Ittidon intends in requesting an analysis of each plant's abdity to withstand marginal increases in the p>stulated threal is not cicar. *lhe Ittidon contends that "an overall assessment will le feasible as to lusw ruuch 'Inargiri' exists beyond the design basis for each plant." 'lhe Itution also recogni/cs that PRA type inethods cannot to used to analyic for " core damage frequency" since one cannot quantify die likelihood of a terrorist attack. On one hand, tie Petition could Ic interpreted as a request for an analysis of the impact of margital increases in the postulated threat on the effectiveness of safeguards measures. Itaving over 15 years of experience in evahiating the overall effectiveness of physical security systems, the Staff lelieves that such evaluations do not lemi themselves to quantitadve analysis or qualitative PRA type analyses. *lhe Staff has successfully used other types of qualitative techniques in evaluating the effectiveress of safeguards measures against general adversary capabilities. Ilowever, these techniques are insensitive to marginal changes in the postulated threat.' On the other hand, based on the Petition's description of the spxific type of analysis prop > sed and de examples in the Annex, the Petition could be interpreted as directly connecung increases in the design-basis threat with die compromise of collocated safety equipment. 'lho Staff has teen conducting the PRA type analyses poposed in the Petition for about 10 years and has foum1 that such a direct connection cannot be made. PRA type ana';ses help identify various combinations of safety equipment which, if at least one combination is prmcted, would allow a licensec to maintain a plant in a safe condition, PRAs cannot assess the probability that a saboteur would choose to danutge one set of equipment over another. 'Ihere is no practictd way to directly connect threats marginally greater than the design leis threat with sabotage of any amount of safety related equipment. l i l a saample d a paatalaical aange in general adwrsary earactenstas invntwd the use 4 a vehkle tot entry l inio a pmaected seca, lhe NRC evaluated whether dus oculd signirwantis impscs de effemveness or saa spenfic l physnal sowruy ensuns la evaluatmg h pnstulated change, de s. art Mcnursed e4 ans se d cismnuterv.es in which a vahine tvuld han sigmficarstly impacted the abihty ti a pp**r teactre twertses to protect the gubl4c heshh arid sarety.1he tJeawee suham,umtly revwed he sewnty nwasuns in sud a way that the use d a nhmle im4ms insigfuricans. Howevet. Ow erleroveneas of safeguards nusures as naasured by dous sud eternia u generaDy macnsiuw to maigmal sucmace in the pmtulated raamtwa d sitadars. = 374 --.-v- ,,v-ay -. -~ ,.w.- .-r-r v~-- e- ---,-m - ge y

i lhe IV0thws states that " vulnerabilities" that are identified can be climinated, it also notes Ovit the proposed program would produce an assessment of the adequacy of the NRC's own safeguards regulations against terrorist Ducats. 'lhese were essentially the goals of die RER program. Itaving conducted comprehensive evaluations for 10 years. 0.c Stall concluded that die NRC's safeguards regulations were sound (SECY 91052, Feb. 26,1991). RER reviews of safepards effectiveness at each power reactor site led to more than Sto safeguards improvements. Although the RER program has been completed, the NRC has rnalntained the tmique inspection capabilities devchiped during the RER: and is continuing to use these capabilities to evaluate the effectiveness of implernented safeguards. In summary, the Ittition is denied for the following reasons: 1. The Petition sk>cs not present any informadon or idenfHy any issues that the Commission has not already considered and addressed in previous policy decisions and rulemaking.

2. 11e Part 73 design-basis threat for radiological sabotage provides a

. standard for judging the adequacy of physical protecdon measures. [ analogous to using design losis accidents in judging the adequacy of safety systems. The design basis ducat is not an additional standard for judging the adequacy of safety systems.

3. The Commisshin considered the issue of sabotage in developing the Severe accident policy statement and did tot include sabotage as a potential initiating event to be addressed in evaluating existing plants.

Consistent with Oc severe accident policy statement, neither the IPE - not the IPEEE addressed intentional acts of sabotage. 4. On June 11,1991. the Commission denkd an earlier Ittidon for Rule. making from the same Ittitioners requesting revisk>n of de NRC's reguladons to increase the design-basis threat for nuclear pour re-actors to include explosive laden vehicles and a larger number of attackers using more sophisticated weapons. 5.11e Staff has performed a qualitative fault trec analysis of every operating nuclear power plant to ensure that sufficient equipment is protected to provkle adequate capability to shut down the plant - and maintain it in a secure state. The Staff used these analyses in its RER and continuing prograrns to evaluate the effectiveness of - NRC's safeguards reguladons and licensee iniplemented a 'eguards to protect this equipment against the Commission's design 4nsis threat. 6. To implement Ocnetic Letter li9-07, some licensees have chosen to develop uicir vehicle bomb contingency plans for distances that would present no safety challenge to a nuclear power reactor. Other licensecs have conducted PRA type enalyses such as Diose requested in the Petition as a basis on which to develop their contingency plans. 375 ._.m ,......,',,.4_._ , m.:., _.,.. =., ,_,i.....,,, .__,...,4,_,

7. Techniques for enaluating die clhttiveness of gdiysical security enca-sures are generally insensitive to marginal increases in postulated threats, and there is no practical way to directly c(rmcci threats marginally greater 0 an the daign basis threat with salutage of any amount of safety related equipment. CONCI.USION 'the NRC Staff has reviewed the XYlitioners' request that the Commission in titute an IPE program requesting licensees to evaluate the margm of nuclear s power plants to withsttmd an attack by explashe laden surface vehicles and by a larger number of attackers using more sophisticated weapons than specified in the curient design-basis threat. Insutution of proceedings in response to a request made pursuant to 10 C.F.R. 6 2.206 is appropriate only when substantial health and safety issues have been raised. See Consolldated Edison Co. ofNew rorA (Indian Point, Units I,2, and 3), CLl 75-H,2 NRC 173,176 (1975), and Washington Public Power Supply System (WPPSS Nuclear Project No. 2) DD M 7,19 NRC 899,923 (19M). 'lhe NRC has applied this standard to detesmine if the actions requested in the Ittition are warranted. Ibr the reasons discussed alove, the NRC has no basis for taking the actitos requested in the ittiden, since no substantial health and safety issues have been rahed by the Ittition. Accordingly, the ittithocrs' request for nedon pursua^t to 10 C.F.R. 6 2.2((> ls denied. A copy of this Decision will be fled with the Secretary for the Commission's review in acmrdance with 10 C.F.R. 6 2.206(c). FOR Tile NUCLliAR RiiGULA*IORY COMMISSION Thomas E. Murley, Director Office of Nuclear Reactor Regulathm - Dated at Rockville, Maryland, this 31st day of December 1991. J 376-r I +e y-- v. e r =,-}}