ML20097E693

Nuclear Regulatory Commission Issuances for March 1992.Pages83-144

ML20097E693
Person / Time
Issue date:	05/31/1992
From:	NRC OFFICE OF ADMINISTRATION (ADM)
To:
References
NUREG-0750, NUREG-0750-V35-N03, NUREG-750, NUREG-750-V35-N3, NUDOCS 9206120312
Download: ML20097E693 (70)

Text

,...-..

l-l l

I NUREG-0750 L

Vol. 35. No. 3 l

Pages83-144 l

1-l i NUCLEARhREGULATORY) c ' tOMMIS_ S. ION.ilSS. UA..NCES i

s

-: p

> XMarchM992i j

i l

}

1 m

h b' 4

,.[ f -

=k f

(f -_ i T

1'..

.y

~

Af 3

w: ;J:. g; >

. f.(.

s (f~

j+.:g, - ~

sqg[R$j 5

c-i-g s._.-

s

% l, '

id x

f J~

]O n.<c

7

,;E; W

u 59 v t.W.. m

' ur -

m.

g-m r.

g.

g:.

.g c:..:

.s s

D I

' " N

[l l

l 4

<.-3 s

r

g

(.

s

.w.

r s.

+.

i U.S. NUCLEAR REGULATORY COMMISSION a

i 9206120312 920531 PDR NUREG I

0750 R PDR L

9 i-

+

.,__.,_,-_o-,.,-.,----,_

..,,,.,~,.,---...m,.,.

.-_.,___,._._,_._m.-_._.-..

,--4

4;;,

^~"

~~"

'~

~

4 w

.:y

+

t Available from

. Superintentendent of Documents

~

U.S. Government Printing Office Post Office Box 37082 '

Washington, D.C. 20013-7082 G

A year's subscription consists of 12 softbound issues.

4 indexes, and 2-4 hardbound editions for this publication.

opies of'this publication

-are _

1e from Natioriel Technical informatiu service, Springfield, VA 22161-h

\\

[

f

,s,

~

Errors in this publication may be reported to the DNision of Freedom of Inteirection and Publications Services Office of Administration U.S. Nuclear Regulatory Commission-Washington, DC 20555 (301/.492-8925) g i.

f l

E

NUREG-0750 Vol. 35 No. 3 Pages83-144 l

L NUCLEAR REGULATORY COMMISSION ISSU.ANCES March 1992 This report includes the issuances received during the specified period

. from the Commission (CU), the Atomic Safety and Licensing Boards (LBP), the Administrative Law Judge (ALJ), the Directors' Decisions (DD), and the Denials of Petitions for Rulemaking (DPRM).

The summaries and headnotes preceding the opinions reponed herein are not to be deemed a part of those opinions or have any independent legal significance.

U.S. NUCLEAR REGULATORY COMMI.SSION Prepared by the

. Division of Freedom of information and Publications Services Office of Administration U.S. Nuclear Regulatory Commission Washington, DC 20555 (301/492-8925)

r-'

r COMMISSIONERS fvan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick E. Gail de Planque m

B. Paul Cotter, Chief Administrative Judge, Atomic Safety and Licensirg Board Panel

o I

L i

' CONfENTS

Issuances of the Nuclear Regulatory Commission CLEVELAND ELECTRIC ILLUMINATING COMPANY and TOLEDO EDISON COMPANY (Perry Nuclear Power Plant, Unit 1; Davis-Besse Nuclear Ibwer Station. Unit 1).

Dockets 50-440 A,50-346-A) (Suspension of Antitrust Conditions)

ORDER, CLI.92-6, March 5.1992.............................

86 FEWELL GEOTECHNICAL ENGINEERING, LTD.

(Thomas E. Murray, Radiographer)

Docket 30-30870-OM (Byproduct Material License)

ORDER. CL192-5, March 5,1992........................... 83 LOUISIANA ENEROY SERVICES, LJ'.

(Claiborne Enrichment Center)

Docket 70-3070-ML -

MEMORANDUM AND ORDER, CL192 7, March 5,1992........ 93

' OHIO EDISON COMPANY (Perry Nuclear Power Mant, Unit 1)

Docket 50-440-A (Suspension of Antitrust Conditions)

ORDER,~ CLI-92-6, March 5,1992............................ 86 Issuances of the Atomic Safety and I ~ msing Iloards -

ARIZONA PUBLIC SERVICE COMPANY, et al.

(Palo Verde Nuclear Generating Station, Units 1,2, '

-)

Dockets 50-528-OLA-3,- 50-529-OLA-3. 50-530-OLA.

_-(ASLBP No. 92-654-01-OLA 3) (Automatic Closure Interlock for Shutdown Cooling Valves)

MEMORANDUM AND ORDER FINDING MITCHELL PETITIONERS IN DEFAULT, LDP-92 3, March 4,1992........ 107 CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al.

- (Perry Nuclear Power Plant, Unit 1)

Docket 50-440-OLA-3 (ASLDP No. 91650-13-OLA-3)

MEMORANDUM AND ORDER, LBP-92-4, March 18,1992....... 114

i

+

'I l

DAVID M. MANNINO.

1 (Sc.iior Reactor Operator).

- Docket 55 8615-SC (ASLDP No. 91-646-02-SC)

- (Senior Reactor Operator License No. SOP 10561 1) (EA 91054)

MEMORANDUM AND ORDER, LBP-92-6. March 31,1992....,. 130 j

l JOSE A. RUIZ CARLO.

i Docket No. 030-20541-OM (ASLBP No, 92 658-04-OM)

(Byproduct Material License No. 52-21350-01) (EA 91 171)

MEMORANDUM AND ORDER, LBP-92-5, March 24,1992...

.. 128 SAFETY LIGHT CORPORATIOff, et al.

_ (Bloornsburg Site Decontamination)

Dockets 030-05980,030-05981,030415982,030M3?S,030-08444 (ASLBP Nos.89-590 01-OM, 90-598-01-OM-2)

ORDER, LBP.92-3A, Marth 16,1992...,................... 110 Issuance of Director's Decision b

~

ARIZONA PUBLIC SERVICE COMPANY, et af.

.'(Palo. Verde Nuclear Generating Station, Units 1,2, and 3)

Dockets 50-528, 50-529, 50-530

. DIRECTOR'S DEC15FON UNDER 10 C.F.R. 9 2.206, DD-92-1, March 16, 1992.................................. 133 t

iv l.

p r,.

a e-44-h*m.me4-4-.wm me.- 4m ham m ese m em-de mas mm

-MM'M--

- MM&M

^^ "

l es.sr (-e as w wa-l l

l l

1 l

i l

e e

Commission lssuances l

l i

I i

1 l

t 2

i l

j 1

l i

l f

i 1

i

~re-,

e-N wwm-en, w.

,. -,, - ~e.,n,,v-----v~--~~s

--n.~--,.-

a n

~n-

-.A- -

~.-----c.--.c----.

Cite as 35 NRC 83 (1992)

CU 925 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Ivan Selln, Chairman Kenneth C. Rogers James R. Curtiss Fortast J. Remick E. Gall de Planque in the Matter of Docket No. 30-39870-OM (Byproduct Material License)

FEWELL GEOTECHNICAL ENGINEERnNG, LTD.

(Thomas E. Murray, Radiographer)

March 5,1992 The Commission vacates on the grounds of mootness the Atomic Safety and Licensing Board's initial Decision (LDP-9129) which modified an order issued by the NRC Staff to Fewell Ocotechnical Engineering, Ltd. Staff's original order modified Fewell Ocotechnical Engineerir,g, Ltd.'s license by tmtring Mr.

Thomas E. Murray from working as a radiographer under the license for a period of 3 years.

RULES OF PRACTICE: MOOTNESS Decisions below will normally be vacated when prior ; he outcome of the appellate process, through happenstance, the proceeding becornes moot See Unhed States v. Afunsingwear, Inc., 340 U.S. 36, 39 40 (1950); Consumers Power Co. (Palisades Nuclear Power Ihcility), CLI-8218,16 NRC 50, $1 (1982).

83

t OltDElt his proceeding concerns an immediately clicctive ord:r issued by the Nu-clear Regulatory Commission (NRC) Staff to Fewell Ocotechnical Engineering, Ltd. (Fewell). The order modiGed Fewell's byproduct materials license by tor-ring Mr. %omas E. hiurray from wuling as a radiogrupler under that license for 3 years. See $5 Fed. Reg. 47,409 (Nov.13,1990). Mr. hlurray requested a hearing on the order. After a hearing was conducted, the Atomic Safety and Licensing Board issued an Initial Decision that modified the NRC Staff's order by, inter alia, reducing the terrn of hit. Murray's suspension from 3 years to 9 i

months. LilP-9129,33 NRC $M (1991).

%e NFC Staff filed an appeal tefore the Commission requesting reversal d the Licensing Board's initial Decision, llowever, while the appeal was pending, the Executive Director for Operations notiGed the Commission that Fewell had requested termination of its bypmduct materials license.

In view of Fewell's request, the NRC Staff was directed in an order dated Septernber 12, 1991, to notify the Commission of the Staff's action on the termination reqtiest and then to advise the Commission as to whether the Staff wished to proceed with its appeal or wiether the appeal should te dismissed in the event the license was terminated. On October 15,1991, the NRC Staff filed its " Motion to Vacate the Licensing Board's truttal Decision, LDP-91-29,"

on the grounds of mootness and provided a copy of its letter informing Fewell that the license had been terminated. By order d-*cd October 22,1991, Mr.

to..'c a reply if he so desired.

Murray was permitted until October 31,1991, Mr. Murray has not replied to Staff's motion.

We agree with Staff that the termination of Fewell's materials license has rendered this proceeding moot. De proceedings tefore the Licent'.ng Board concerned Mr. Murray's challenge to the original order baning him from perforrning radiography under the Fewell license for 3 years. When Fewell's license was terminated, the original order ceased to have any operative effect or purpose. Rus, the proceeding is moot, in cases such as this, when prior to the outcome of the appellate pro-cess, through happenstance, the proceeding becomes moot, the decision below normally sill be vacated. See United States v. Munsingwear, Inc., 340 U.S.

36, 39-40 (1950); Con.mmers Pcwr Co. (Palisades Nuclear Power Facility),

CLI 82-18,16 NRC 50, 51 (1982). Vacating the Licensing Board's decision climinates it as precedent.8 Ihe Statt suagens that we may under an edvssory senmn m the metwa ramed in ha arpent We datins de suggestuut Vaceung On tJrmams Bosid's dacsanon obvistas the emed to smew the Board's haciprematum or the governmg law and pohry sv. because it can have nurse, to consider ha patentialimpact a ruture canet R4

Accordingly, the NRC Staff' motkin is granted and its appeal is dismined.

The Licensing Board's initial Decision. LitP 91-29. 33 NRC 561 (1991), is wacated as moot. The proceeding is hereby terminated.

IT IS SO ORDERED.

[

For the Commission' F

SAMUEL J. CillLK Secretary of the Ctantnission Dated at Rockville, Maryland,

' this 5th day of March 1992.

P P

f 1

+

ICame'amn Red was rios pm..a for the affirmatum of b Order,if he had tAun prescrd he would have t

slynuve4 k.

85

,e.

4 gg

,+-,-l weww--,,

n

.r,.

c

.,,n

,, -N,an+,e,,-

y

--m.m y

e-

.ym--l,--w-,m.

a,.

--y

r Cite as 35 NRC 86 (1992)

CU 92 S

..'s UNITED STATES OF AMERICA

.Y 3:

NUCLEAR REGULA'ORY COMMISSION COMMISSIONERS:

Ivan Selin, Chairman Kenneth C. Rogers James R. Curtiss Forrest J. Remick E. Gall de Planque in the Matter of Docket Nos. 50-440-A 50 346-A (Suspension of Antitrust Conditions)

OHIO EDISON COMPANY (Perry Nuclear Power Plant, Unit 1)

CLEVELAND ELECTRIC ILLUMINATING COMPANY and Tot.EDO EDISON COMPANY (Perry Nuclear Power Plant, Unit 1; DavivDesse Nuclear Power Station, Unit 1)

March 5,1992 The Commission denies Applicants' motion for reconsideration of CL1-91 l!,

34 NRC 269 (1991), in which the Commission sua sponte exercised its inherem supervisory power over an adjudicatory proceeding initiated by Applicants' request for amendments that would remove certain antitrust license conditions pertaining to the Perry and Davis Besse nuclear plar's. CL1-91 15 directed the Atomic Safety and Licensing Board to suspend corsideratic.n of all matters, except for two issues referred to as the bedrock" legal issues.

86

i.

i 1'

((%

l

c.,o q !m 6.i q.7

,g l

<> (

'6 1.lCFNSING !!OARD: CONSIDERATION Ol' NitC STAFF

,i EVIDENCE in general, the NRC Staff is only one party to a Commission adjudicatory proceeding. ~lhe Staff does not occupy a favored position and its presentations are subject to the same scrutiny as those of other parties. See Consolidated Edison Co. of New York (Indian Ibint, Units 1, 2, and 3), ALAB-3G8, 3 NRC 1, 6 (1976); Southern Cal (ornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-268,1 NRC 383,399 (1975). On some questions, such as interpretatjon of statutes or judicial decisions, the Staff's submissions have tio more weight than those of any other party. Public ScrWec Co. of New llampshire (Seabrook Station, Units 1 and 2), CLI 7617, 4 NRC 451, 462 (1976).

DECISIONAL BIAS: NRC STAFF When a case tums on a question of law, the Licensing Board and the Commission, on review, are capable of correcting party bias by providing independst decisions. In addition, a party dissatisfied with the outcome of a final Commission decision can seek review from an appropriate court, which is fully capable of correcting bias when a case turns on a question of law Gulf oil Corp. v. FPC, 563 F.2d 5S8, 612 (3d Cir.1977), cert, denied 434 U.S.

1062 (1978).

ORDER-

[

In CL1-9115, 3d NkC 269 (1991), the Commission din:cted the Atomic Safety and IJcensing Board to suspend consideration of all matters, except the so4:alled bedrock I: gal issue (or issues), in this proceeding involving applica.

Lions for amendments to the operating licenses for the l'erry and Davis-Besse nuclear plants. Ohio Edison Company (OE), Cleveland Electric illuminating Company, at.d Toledo Edison Company (Applicants) have sought amendments to suspend certain actitrust conditions from the operating licenses. OF has filed a motion for reconsideration of CLI-91 15, requesting that the Commission va-l cate its order and allow the proceedings to conti'me as they were prior to the suspension, The NRC Staff opposes the motion 8 For the trasons stated in this Order, OE's motion is denied.

I No ether answess were secoved, ahhough the r.dy of Clewland amed its ewasine to of"o ano6an in no espania Maion ris Commissian Revocaum er the Rererral no AstJl and tar Adguan el the Agw0 '.1991 d

- Daciman as the Cornmiss,an Decanon, at 44 (Dec. 27,1991) 87

11 '

r

. ' =

In its ordet rnemorializing its rulings during a gehearing conference, the -

Licensing Board ruled that it had jurisdiction to coriduct the poceeding,8 admitted OE's comention regarding decisional bias, and provided an opportunity for the parties' joint subrnission of a " bedrock" legal issue (or issues) that would be the subject of potentially dispositive motions for summary disposition.

LBP 9138, 34 NRC 229 (1991). In light of the potential for the bedrock

. legal issue to be dispositive of this proceeding, a point emphasiicd by OE, the Commission exercised its inherent supervisory power over adjudicatory proceedings and issued CL191sl5, which directed the Licensing Ikiard to suspend its consideration of all matters in the proceeding with the exception of the " bedrock" issue. By its terms, the suspension included OE's decisional bds issue.

OB objects to the suspension and asks that we reconsider our earlier order tuause, OE argues, this proceeding cannot te resolved fairly without reaching

- the decisional bias issue, even as to the bedruck legal issue. OE also objects to the suspension of other issues that may require consideration in the proceeding, sd as the actual cost of perry and Davis Besse power. Additionally, OE suggests that we have misundentood the _" bedrock issue."3 -

As its primary basis for reconsideration. OE argues that the decisional bias issue must be decided in conjunction with or prior to the bedrock legal issue.

His is so, OE maintains, beent. e the decision on bias will affect the night to be given the NRC Staff's position throughout the proceedings and will th,as bc relevant to the decision ca the bairock issue. We do not agree.

In general, the NRC Staff is only one party to a Commission adjudicatory proceeding. He Staff does not occupy a favored position and its presentations are subject to the same scrutiny as those of other parties, See Consolidated Edison Co. of New York (Indian fbint, Units 1,2, and 3), ALAB-304,3 NRC

.1. 6 (1976); Southern Cahfornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB 268,1 NRC 383, 399 (1975). We think it significant here that, as all parties agree, the bedrock issue is a Icgal question.

In this context, we have specifically obsesved that "[oln some questions, such as interpretation of statutes or judicial decisions, the staff submissions have no more welght than those of any other party." Public Service Co. of New Hampshire 81te Chy of Oeveland's spraal of the !Amsma llaard's junsdat. anal suling is peruimg before the cormmasun om sulms sadsy is wishaut pejudxe to our cmsiderum ur the" ageal sad develand's esparsw m,maan (reformoed in the precodmg rootnras) to permw the conduct or 49 paceedags rnre the tjcesuig Smed to the Commissica.

3oE nsaas that om earmted order, Q19115, sa, NRC at 271 a.s, lumped the two issue that the parues agmed would be subjets to medans far suranary depositaan undet the goiaral rubric *%edemt kaust" bhaint te Recanedwatim at d n.d. Our buentian was to ensure sht the partwa underscad that they cuuid pmcmd, es th, y had agreed, wkh the htigation of hath those paassially dapinaive issues berare the IJcensmit Bc d. our charnelasiaanica or the issues solely for the pwyese si the order did nas change the mnsrung or the te mers a

being grven to these two issues for any oths purpme.

88-Vl?

,n

(Seatrook Station, Units I and 2), CLI 7617,4 NRC 451,462 (1976).* OE has not explained why either Oc Licensing Board, or the Commission, on review, is incapabla of rendering an independent decision legarding a question of law, even accepdng arguenh some bias on the part of the StaII due to the alleged congressional interfelmce.' Importantly, OE can seek review from an appropriate United States Court of Appeals,if it should be dissatisfied with the outcome of the proceeding. When a case turns on a question of law, " judicial review in fully capable of correcting bias...." Guy Od Corp. v. TPC,563

' F.2d 588,612 (3d Cir,1977), cert. denied,434 U.S.1662 (1978). "Ihus, at least with respect to the legal issues tcing addressed by Oc parties at this time, we do not see t< compe!!ing reason to proceed with consideration of the decisional bias issue.'

Contrary to OE's suggesdon, our order in CLI-91 15 is not inconsistent with representations made by the NRC in prior judicial proceedings.. Ahhough the NRC represented in prior judicial prtxcedings that the claim of decisional bias must be raised at the agency level, the NRC did not promise a decision on the merits of that issue. At most, the representations indicate that the issue must te raised before the Commission and that a final Commission decision on OE's

- amendment request, subject to judicial review, will be provided? Suspending the bias issue from consideration while the parties address the bedrock legal issue is not contrary to these representations. Even lf the issue of decisional bias were to be dismissed altogether, without a review of its merits, a final Commission decision on the amendment application would provide OE, if it were dissatisfied

. 'In unusual situations (not the case here) when staff is esected by the Canmassion to sond.us e audy and are supeet to engang Canunussen review during on study, the staff's views may be affonted nuwe weight, sesbreeA QJ-417, evas, d NRC at 462. In this ca,e, the Ikonseg Doord has ass.md oE that k sawiden au lanyers to be en equal fe: Sng. Prehranng Conference Tianaripi et 7s 79J 81a fact.enunsel for oE assured the 1.icensing Board the oE mes not "suggesang that this inbunal was adversely affected at is now somehmr advernaly Artflue, red by threme fran membess of Ccagress" Prehea mg Conference Transanpa at 74. Moseaver, oE has met aDeged the ow Comrnusunwse we incapW of rendenna a fair deciswn because they wiD be adversely afrened by supposed threats frain Caegress.

• We recoyase that We er predssposation may bear en the coeddiihiy d a pany's wur.asons er eviden.4, sidiough k 6s far fran clear that be in opprmeisw as a principal issue far htigstum in NRC precander, lloe'ever, as we decided in CtJH C em was not szedt that questkm er pwids guidance an the funhar htigstum d auch guestions paidag usamluucs, af tha potenhaDy depaauve legal laaues pngesed by the yenies.

ohie ID e Canpeny's hkaian $w Recensidersuan d CI191 Is at 5 9. spectrically, oE ela.ms agpet for ha posiQa in the foDowing NRC stamenents before the distact coun (see M at 6):

If the NRC suff datarmmes inkially to deny the requested smandmars. plainhff wat have ao appartursty

= for en adjudicetwy haanns before an Akunic safety and tharuuss Board. That Beard's en the recad drcision walin t.are be sevwwsble by the Aanmic safmy ane 1.icensing Agyeal Based and the Commusion.

k is through this agery pocess that Ohio IJmon namt fust pesers iu clauns of improper congnemanal interference in the adminstrative process.

'NRCi'

-" of Poiras and Auemnties in suppet of Mahon no Dianiss at d (Aug. 22,1944), and s%ect maaer jutisJactmn over this claim rests wuh the NRC in the stat insunce. end, en appeal.

- eachasively in the Coun d Appeals. Plainulf will have anyle apponuruiy to rame a charge of impuper influenos er bias in that favnt Transcs44 of llearing en Defendarua* M<nics to thamiss et s-7 (Dec.13,19st).

89 H

I t

,n l

i with the outcome, the opportunity for judicial review. In its order damissing OE's petition for writ of mandamus, the District g e olumbia Circuit Court of Appeals noted that OE did not show that it would be prevented from raising the issue of decisional bias on judicial review grier the administrative process had been concluded. In rc Ohio Edison Co., No. 89-1014, slip op, at 4 (D.C.

Cir. Apr. 27,1989) (unpublished per curiam order). The Court did not state that an opportunity to litigate the issue of decisional bias would be provided by the NRC.*lherefore, neither prior judicial proceedings nor NRC representations before the comts require us to allow OE to proceed with its decisional bias claims at this time.

Although OE focuses mainly on the Commission's suspension of the deci-sional bias issue, OE also complains of the suspension of consideration of other matters that might be gennane if the Applicants were to prevail on the bedrock issue. OE suggests that the suspension implies that the Commission believes the only outcome will be that OE will kne the tedrock issue. As stated in CLl-91 15, by suspending consideration of these matters, the Commission intimates no opinion on the tedrock legal issue or any other matter. 'Ihe Commission's orde* has suspended, but not precluded, consideration of other relevant mat.

ters as wananted upon resolution of the bedrock legal issue. If an evidentiary hearing is appropriate, in t14 event that Applicants win the bedrock i"ue, the Commission will provide appropriate instructions end guidance for the conduct et further proceedings.

For the reasons stated in this order, OE's motion for reconsideration is denied.

Commissioner Curtiss disapproved this order; his dissenting views are at-tached. Commissioner de Planque did not participate in this matter.

IT IS SO ORDERED.

Ihr the Commission

• SAMUEL J. CillLK Secretary of the Commission Dated at Rockville, Maryland, this 5th day of March 1992.

'comm.emn ama n

p=.s to o..momon a ou o,

. wa w., p

, w mw wo e;yrmed it i

DISSENTING WEWS OF COhth11SSIONER CURTISS 1 respectfully disagru with the Cfwnmission's decision to deny Ohio Edison's motion for reconsideration of CL19115 and to continue oc sustension at j

the consideratioc of the Staff " bias /predisposi' ion" contention in this formal adjudicatcry proceeding.

Innead, I bcPcve ' hat tic Commission should take up the question of the admissibill.y of the bias 5tedisposition isso t now, ratter than defer consideration of that question until the Licensing Board decides the so-called "bcdrock issues" in this proceeding.

The fact of the matter is that the Applicaf;ts' bias / predisposition contention rairca a cuestion about whether **the Liccasing Board and the Nuclear Regu-latory Commissioners (thou'd) give no weight to the recommendations of the NRC st1(J" on the substantive usues in this case, LDP-9138, 34 NRC 229s 257 n.92 (emphasis added), '!he NRC Staff has made, and will be making, reiommendations to the Licensing Board on t!c "tMock issues"8 an1 to the Commicion on the City of Cleveland's appeal on jurisdictional issues, in such a cine it seems evident that the challenge to the Staff's impartiality must be s

resolved prior to, not at We conclusion of, any proceedings on the substantive merits of the antitrust issue, Ibr that reason, I belicyc the Commission should resolve the question of whether such a contention is admissible now,8 To ignore the concerns that have been raised at this stage of the prtscoding will, unfor.

8Ahhoush the 'teaua lasms are penarita legal ha nature,' h ne met clear the the pensas' puntuans win be eennnevi scrisdy to legal argwnsmis (e here Wa/pvedageaition a the paa of as indwidual grwy ersy be ed asnaar rente*ni le this neard, the IJoarsing Based haalf adtnowledged that -

!sh this )snctave,,., we ass smable to parse tha various saanwersies between the panees irae the meat ceingenes t's analysas empdres smh a degree d cretamty suffwders to sawinte us that threshold darn;asti af these allegances labout staff biaal is a;peute:ais, pP-9138, syre,34 NRC et 2%

. on.e, e.um.f.h.i., s an..a tan i a,pr.% s, mu i. edmi d es. ht.gae is..e, s

I have suhtarsial debts abms allowirig such contentaare in our prueedega. While the reedatuhty of a wunana who pensras evidsrwe is always a senaWersdm, I en not swass of any NRC pmceedsna in which a pany's W4predaspusition prf as was made e pmopa? issue fw hdgauan en the enemia. Nr does the staff's sule in Gw agarry's pmcordess suggest a dJeerent conclusion. Indeed,in a formal edpadicatory proceedes. Om staff does act occupy a favored pasnon; k is vast anaher pany to the peotendeg Wham o board cannas to decide coisassed issues, k smat evaluate the stafTs evidence and argeneras in hght at the sans garmriples that apply to de pasentations of the einer parnes. 'fhe su!Ts views cannot be accepted wishnut pawing under de same scrutiny as shoes of the other panies ConseMswd he Co. af Sw Yort Ondan Plant, Urdu I,2, and 3L AIAB-304,3 NRC 1,6 0976); SouAara Cal (ernie Ed aos Co. (san ondre Nalear oenerstad statam, Unita 2 and 3h AtAS 268,1 NAC 313,399 n975X Yersmar ranAss %ciner re==== Corp, (Verarna Yankee Nunear Power sinne 0, ALAB-It8.6 AEC $20,532 0973) in paneral,in thine proceedess, the opphcation is in tsaus, acs dw adopsey of the Sta'f's soview of the apphcatice. A party saf tous ennuranons challengmg the particular

- action that is the asbject of the proceedag, but k spay sat psucerd on ess baan of the allega Ama that On Staff has samchow failevt in its performance. To the casent that a pany aceks he liaisais ce adepacy of es stafr's work in a panicular pomedag, k pnpoeas a consenGan that is am Ltigable. Jea Doride fewer and Ushi Ca.

' (so tacio Nwhr Power Plan,, Unst ik AIAB-921,30 Nru 177, lie 0989); tensione Pe er and Ught Co.

(Wstared Steein Doctnc stairm, thut 3h AIAB-812,22 NRC 5,55 56 09tfy, fac@c Gas anJ Elusric Co.

~

Ohahlo Canyan Nuclear Power Plant Umts I and ) AIAB.722,17 NRC Tf7,809 0913). In my vsew, Gwas heldags reise sencus questions aban the adnussitstrty cf the bias /predis usitaan issue in the instant pareedms..

91

. - - - - ~

t-tunately, leave in place de cloud that los been cast on the Staff's impartiahty and, as a conseques.cc, on the arguments, evidence, and recommendations that the Staff willle advancing on the tusic substaraive issues that suust be decided in Otis proceeding.

Rr the foregoing reascais, I restvxtfully dissent l

h

)

4 i

92 l:

L' I

i l

l'

Cite as 35 NRC 93 (1992)

CU-92 7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION COMMISSIONERS:

Ivan Solin, Chairman Kenneth C. Rogers James R. Curtiss Fortest J. Remick E. Gall de Planque in the Mattet of Docket No. 70-3070-ML LOUISIANA ENERGY SERVICES, LP.

(Claiborne Enrichment Center)

March 5,1992*

The Commission decides issues before it relating to its learing order that set forth standards by which this application for a license to construct and operate a uranium enrichment facility would be judged. Iloth the Applicant and the sole Intervenor in the proceeding sought reconsideration of various portions of the hearing onier. "Ihe Commission clarifies that the existing 10 C.F.R. Part 140 be applied to the liccuse application solely as guidance. The Commissa;.c orders that thefmal Commission rule on material control and accounting for enrichment facilities, instead of the proposed rule, shall be applied to this proceeding; that the hearing shall pro;ced as directed in the order, and that all other requests for reconsideration are denied.

ATOMIC ENERGY ACT: SECTION 193(e)

Congress dictated that the Price-Anderson Act liability insurance require-ments will not be applied to uranium enrichment facilities. See Atomic Errgy Act, i 193(c).

• Re served Mash 9 1992.

93

j

'EGULATIONS: INTERPitETAYiON AND APPL.lCATION (10 C.F.R. PART 140)

Of the existing NRC regulations under 10 C.F.R. lWt 140, only sections 140.15140.17 and Pa,1140, Appendix A are applicable to this proceeding, and then only as guidance or models as to proof of liability in:urance.

NRC: IIEAltlNG STAMDARDS (NATUltE OF CONSIDERATION)

An intervenor's objection to the use of the word " reconsideration" in a hearing order that relates to Commission consideration of the hearing standards raises solely a semantic problem, as long as t!'c nature of the reconsideration offered by the Commission is sufficient to meet the intervenor's objections and the Commission's obligations.

NRC: CilOICE OF RULFMAKING OR ADJUDICATION When standards set forth in a hearing order to govern an adjudicatkin have not been established by rulemaking, the Commission may provide an opportunity for parties to challenge the standards by secking reconsideration.

RULES OF PRACTICE: IIEARING STANDARDS (CIIALLENGE; LACK OF ESTABLISilED RULE)

The status of an unchallenged hearir.g standard would not be simply that of a proposed standard; an unchallenged standard would be, without more, fully applicable to the matter being heard.

NRw': IIEARING STANDARDS (NATURE OF CONSIDERATION)

It should be evident from the terms of a hearing order that requires among other things that petitlens for reconsideration "must contain all technical or other arguments to support the petition," that the Commission intends to initiate a process in which each objection would be fully considered de novo and the panics provided with the Commission's reasoned decision.

' RANIUM ENRICilMENT FACILITY: SITING CRITERIA (PLANT BOUNDARY LIMITS)

Ibr purposes of siting and design of a uranium enrichment facility aga. inst accidental atmospheric teleases of uranium hexafluoride, the Commission estat>

94 s

m-___

m_..-_.,

lished plant t'oundary limits that were intended to be generally equivalent to the Commission's reactor siting criteria found in 10 C.F.R. I'.ut 100.

URANIUM ENRICIIMENT FACILITY: SITING CRITERI A (PART 100 EQUIVALENCY)

De Commission's objective in applying the Ibrt 100 siting criteria to a uranium enrichment facility, is equivalency to Part IfD, it was never the intent to set levels below which no adverse effects would occur from hydrogen 11uoride.

URANIUM ENRICllMENT FACILITY: DESIGN CRITERIA (PERFORMANCE. BASED SAFEGUARDS STANDARDS) ne Commission chose the approach of performance-based design standards for the contemplsted enrichment facility. Those standards established "princi[ul design criteria which are commensurate with their safety function." 53 Fed.

Reg. at 13.278.

URAN!UM ENRICilMENT FACILITYt DESIGN CRITEltlA (PERFORMANCE BASED SAFEGUARDS STANDARDS)

The Commission's design criteria for the contemplated enriclunent facility did not include a performance.tased safeguards standard directed at cornmon defense and security.

URANIUM T,NRICIIMENT FACILITYt SAFEGUARDS (10 C.F.R. 3 74.33)

The need for safeguards againtt unauthorized activities at uranium enrichment facilities was addressed primarily through creation of a new section 74.33 in NRC's existing material centrol and accounting regulations.

URANIUM ENRICl! MENT FACILITb MC&A SYSTEM (10 C.F.R. I 74.33).

- The new section 74.33 of 10 C.F.R. Includes as a performance-based re.

quirement that each uranium enrichment licensec must establish, implement, and maintain an NRC appmved material control and accounting system.

95

URANIUM ENRICl! MENT FACILITY: MC&A OluECTIVES (PilYSICAL SECURITY REQUlitEMENTS)

Specific requirements for the use of physical security measures in acideving material control and accounting ot$xtives is unnecessary; physical 6ecurity

[

measures may be included in nn applicant's program, but k applicant is free to develop its program in any munner as long as it meets the general performance objectives.

MEMORANDUM AND ORDER Before us are issues rdated to the criteria that will govern the decision by the Nuclear Regulatory Commission ("NRC" or Commission") whether to license toutstana Enetgy Services LP. ("LES" or " Applicant")1 to construct and operate the Claiborne Enrichment Center in Claiborne Parish, near llomer, Louisiana. ne contemplated operation would involve the possession or use or both of byproduct, source, and special nuclear material for the purpose of enriching natural uranium to a maximum of 5% U-235 by k gas centrifuge

. process. De LES application for an enrichment facility license is the first since the NRC was required to consider such an application in a sirigle, on the-record adjud.. tory hearing. De requirement appears in new section 193 of the Atomic Energy Act ("Act"), enacted as an amendment to the Act by section 5 of the Solar, Wind, Waste and Geothermal Power Production incentives Act of 1990 (Pub. L. No. 101 575)?

I, ilACKGROUND De Commission published a notice of hearing on the LES liceme application (IIcaring Order) on May 21,1991. Sec 56 Fed. Reg. 23,310. In the IIcaring Order the Commission referenced relevant, codified NRC regulations that would be applicable to the licensing decision and, in the abscrre of a fmal rule specifically addressed to licensing enrichment facilities.5 set forth as part III IIlis is a bmited partnerstup wlume genmal panners am Umnoo investmaus, Inc. (a subsaary or Umwg teth -

Ostbarne IWs LP. (a edwidiary of ihr De..iel, lac,), Claiharne targy somcas luo. (a subedas y of Duka

- Power Canpsnyk and oreymane Carparmian (a subseary of Northern staa Pu.et Campanys la adda,an.-

these am seven limited panruss.

2 3es 42 U.s C. l 2241(b).

8In 199c, the Cernmusiosi a,myds summens on a swarmed rule that was to esublish new puformbased material sontnd and accenung (bEA A) requirmnertis that would be amizable to branium enrkhmera ruihty Jacenness wha enubare eigniricais g.4ntauen d special nue.sar maurial (sNht) er low strategic sigrdricants and to applicarsa in ennstrua and operate enrkhmera racilaaet 3,e 55 Fed. Res. 51,726 (1990). Adveme nuice of papewd rulanaking en ngulauen d uranium etmhmet had born gwun la cartt 1988 (ave 53 Foi. Reg.

13.2% but the rulemaking was never butisied. 55 Fed. Reg si 51.726, cet 2.

96 s

~

-w

II

-L i

x t

of Ihe llearing Order special standards by Ehich LES's application would le f

judged and instructions for the hearing. An opportunity was offered for admitted j

hearing participants to petition directly to the Commission for reconsideration 1

. of any of Part Ill's provisions.

17:. and the NRC Staff are parties to the hearing. He Atcmic Safety and Li-censing Board (Llecasing Board) established to conduct the LES hearing admit-i ted a sole intervenor to the proceeding Citizens Against Nuclear Trash (CANT).

CANT is an environmental organization w hose membership is comprised mostly of residents of Claiborne Parish.' he State of I ouisiana, Department of En.

l

~.

vironmental Quality, participates as an interested state agency. See 10 C.F.R' 6 2.715(c).

De Commission's unusual involvement at this early stage of a proceeding responds to both LES and CANT who each sought reconsideration of the Hearing

[

Order. LES specifies one objection to the Part 111 provisions and seeks leave to

{

object late to a provision of 1%rt IV. CANT asks for changes in three separate respects.,We address Applicant's and CANTS objections in turn. along with Staff's responses to those objections. Neither LES nor CANT comment.d on each other's objections.

11. LES'S REQUEST FOR RECONSIDERATION l

1

- A.

Provision (fiera Part Ill) at Issue: Paragraph 6, establishing term.t

.l for compuance with requirrmentfor liaNiity insuraner

[

Section '193 of the-Act requires that "as-a condition of the issuance"

~{

of a uranium enrichment facility license, the licensee '.have and maintain liability insurance of such type and in such amounts as the Commission judges appropriate to cover liability claims..,." Section 193(d)(1), in Part 111,16 of the Hearing Order, the Commission acknowledged this liability insurance

requirement as a licensing standard for LES De Commission declined then to

-determine the precise terms or amount of the policy but noted that *10 CFR 140.15,140.16, and 340.17 provide adequate guidance as to proof of fmancial protection (insu-anec);..." ' 56 Fed. Reg. 23,312 (emphasis added). The Commission'also referenced Appendix.A of Part 140 for the availability _ of _

~

"models" for form, content, and coverage of such lialniity insurance. De burden

. of establishing the amount heeded was left to LES "in the first instance," the

-. amount to be justified t'in terms of a reasonable evaluation of the risks required to be covered" by Pub. L. No. 101575, but in any case the amount need be no greater than the maximum amount availabic from commercial in:,urers.

• sw Osa dodas. IEP-91 41, s4 NRC ss2, sss, s60 0991).

l

.r 97 i

m 6

, & w-. &..

.a-m m

e m

m.

w s -

.. ~.

Objection and Requested Relief LES asks that we reconsider our use of the term " financial protection" and that tie terrn should be replaced in the cited sections of Part 140 by the term

" liability insurance." LES maintains that this should be done tecause de term "fmancial protection" is used in the context of the Price-Anderson Act and Pub.

j L No.101575 precluded the application of section 170 (Price-Anderson) to uranium enrichment facilities. As a final paragraph, LES states:

Ibrther, the aspects of Part 140 dealins =ith the Price.Ar.deraan Act, spearically, scuridary i

rmancial pestenian and wavver of defernes. sho ld run be art sed Staff's Responst h NRC Staff opposed the reconsideration, arguing that NRC's codiced regulation

• implementing Price-Anderson requirements were " cited only as

. providirig ' guidance' as to proof of insurance and 'rnodels' for the form, content and coverage of such insurance...." "Ihe Staff concluded tiuit the Commission's framework for evaluating LES's compliance with tie liability insprance requirements was a reasonable one, fully consistelu with recent enactments. Staff's Response, dated August 12,1900.

Commission Decision

'Ihe Staff's response is squarely on target, and we need not repeat it. No reading of 16 - no matter how contrived - can raise a serious question of applying a requirement for financial protection from 9ublic liability different 4

from or beyond the liability insurance required by Congress in Pub. L No.

101575.8 Moreover, we are unable to discern the shghtest reason why further assurarce is sought er reeded that Price Anderson requirements will not be applied to LES's enrichment facility: Congress has so dletated. See Act, i193(c). W Commission carmot ignore such a congressional commarxl and has evidenced no inclination or intent to do so, We find no need to amend our

' hearing notice.

Reconsideration on this basis is denied.'

S vm.no.1 proi.:uan-is d.rined in ren 140 m oir se, w = pond in dem.s. far pw 1.aw, sad w mest the ansa or investigating and defendmg clawns and settling suaw for sah damages" 10 Cf.R. $ 140.3(4 section 140.14(sX1) hans e policy er habilny insurance rnen pnvets sounes as a sneans er pwahng pnmary Anancial pnxectim. Relassui sections cited m Part D1 docues the adequacy d proar d sah liahahay 6nswance.

see ametion 140.1s. af sao

.98

11 Providan (from Part IV) at issue: Applying rari14(/ of the NitC rules (codified in Title 10) to the hearing by including Part 140 in a list of regulations to be applied "according to their terms" lES's Ob}ection and Requested Relief rollowing shortly upon Staff's August 12 response LES moved for leave to file to replace an incorrect caption and to supplement its motion for rcumsider-ation. 'Ihis time, LES challenged Part IV of the Federal Register notice where Part 140 was included among NRC regulations that would be applied "according to their tums."

' Sittff's Responst

' Staff noted that LES failed to explain why this additional objection could not have been raised in LES's original motion, but on the substance found that the supolement sl argument did not change the Staff's posluon "i.e., there is ru dispute that Congress specifically excluded uranium enrichment facilities from Price Anderson Act applicability" Staff's Response, datei September 6,1991, at 2 3.

Commission Decision The Commission acrepts LES's additional filing. We believe that the hearing notice erred in a minor respect in including existing Part 1406 among the regulations that applied by their terms. Only the $cctions of existing htrt 140 designated in Part 111 of the llearing Order are applicable and then only by the terms of the llearing Order, i.e., as guidance or models. 'lhus, the reconsideration is granted, and the Commission clarifies that cristing Part 140 is not applicable by its terms.

r

'Ese pan the camemasam cumr.uy is enassed in naamakms encanir g om twensing of uraaiwa avutumn facihnes to seAsca changes oude to em Atomic Imergy Act by the salaf. Wmd. Wasu and Geoshermal Power Produrnan Inoenuves Act of 1990. see Stre ad Prtynned Rimmakms - Urannan Lnnchmans Regulanarss. 56 Fed, Res. 46,739 (sept 16,1991). That rulernsking includes pg==ed mahncanma to 10 CJ.R. Pan 140 se -

addresa em "fmanesal pnmectium mguired <d uranian ravuhment recany luensees pasuars to sac 6rm 193 if om Atarnic r.nergy Act of 1954... ? $6i ed. Reg ei 46,745. The Commissian has n<a yes mads any determmste en

' on the Anal rules in tus eroa.

99 e

%%,w=

y W

N

,-e--

.n--

-m*-w e

I-111. CANT'S Ollji:CTIONS TO OUlt PAltT 111 PitOYlSIONS A.

Provision at issue: Unnumbered paragraph, authoriting motions for reconsideration cf the standards for this hearing set forth by the llearing Order CANT's Objection and Requested Relief CANT objects to the use of the term " reconsideration" and maintains that tic standards set forth for the hearing mmt receive impartial and thorough consideration nr.d that the Commission must resporxl to all comments with reasoned justification for its positien.

Stqff's Response "the Staff asserts that no reconsideration of the use of the term " reconsider-ation"is warranted.

Comunission Decision As the Staff noted, CANT's objection raises solely a semantic problem; the nature of the reconsideration offered by the Commission is sufficient to meet CAN'I*s objetion and the Commission's obligations.' It has long leen established that the Commission may proceed by rulemaking or adjudication.

See SEC v. Chencry Corp., 318 U.S. 80 (1942). See also Pub. L No.101 575, 4 5(b). Because the standards set forth in Part 111 to govern the instant adjudication had not been established by rulemaking, the Commission provided opportunity for parties to challenge them by seeking sxonsideration; however, the status of an unchallenged standard would not be simply that of a proposc4 standard, as CANT's formulation wodd suggest. An unchallenged standard would, without more, be fully applicable to the matter being heard. As to the standards challenged, it should have been evident from tle terms of the ilcaring Order, which required among other things that petitions for reconsideration "must contain all technical or other alguments to support the petition" and allowed response by the partiu, that the Commission ittended to initiate a process in which each objection would be fully considered de novo and the parties povided with tha Commission's reasoned decisk>n. In any event, m dernonstrated by this Order, that is the process being followed, and CANT is 7 on naa en.Io. rwial esmacance w da wm **=md==*=" wed in Snaid==a c/. u, c.rA 6 2mt treaems for m.mudamm or a rmai 4.c iant 100

.m

l i.

rocching the pocess it perceives as its due regardless of tie nomenclature.

X.

Hus, we conchn*,a f. hat w modification of vur llearing Ords is wananted.

y, 15 Provl. doc. at Issue: Paragraph 3, adopting criteriafrom 7

NURPG 1391 (entitled Chemical Tusicity of Uranium liesaf!uoride 4-Coopared to Acute Effects of Radiation")for purposes of siting and design of thefacility against accidental atmospheric releasts of urenlum hexq)topride*

v CANT's Oldettien and Regarsted Nellef

.l CANT oojects so if.e Commission's proposed siting criteria as too tax to protect public health adequately, in sup3crt of that objection, CANT itx: tsp rates by reference itt Contention (0) and the affidavit supporting Contention

' (0) wNeh la turn r4 on statements in EPA's ccmments on the Commission's Advatne Notiec crPreposed Rulernaking which was published at $3 Fed lieg.

13,726 (1988). EPA commented that the NRCt specified lineo may rot ad-equately protect the public from exposure to bydrogen ih>oride (liF)." 1.rtter from Robert E Sandenon. EPA to NRC, July 22, 1988. CANT affirmatively sccks imposition of a boundary limit of 2.5 mg/m$ for 15 minutes or its effectivc

_ equivalent.

(

Position of the Stef Reconsideration'was opposed by the Staff based on its demonstration by affidavit that CANT's reliance on the EPA letter is misplaced. Staff's thesit was tiet EPA's conclusion was faulty because EPA had relied on an incorrectly publishco formula stated in the work of cnother organization (corrected in later publication) and on only part of a definition included in a different work.

Commission Declslon The (kunmission established plant boundary limits that were intended to be generally equivtlent to the Conunission's reactor siting criteria published at 10 C.F.R. Part 100, i.e., the limits were intended to be quantities or concentration values that produced a level of adverse health effects generally equivalent to the adverse health effects that are associated with.the dose guidelipe values

' 'N criannan arpties the rotlowing limitations to de basulary of de we maler control of the appbcert-A tanks intake er 10 milhgranns d arisiiurn in saluble farin, and a tur.hmg capteure to hydingan F.umide at a concentratkoi d 25 mI:hgrens per cubes menar d air fcr 30 munnes, Ibr emppuun tunes (i) agar than 30 ming the turageuncearstion (C) d hydrogen fluoride in air than be cahulaiad unmg the equatum C = 25 snghn (50 mm/0.

101

+" *

• In Part 100. We believe that Dr. hiaguire's affidavit, submitted by the Staff, considered in conjunction with the rationale for NRC's spaified limits in NUREO 1391 amply rebuts CANT s arguments. It t<ars emphasis that the objective is equivalency to 1%rt 100; it was never the intent to set levels be'ow which no adverse effects would occur froni !!F.

'Ihe Commission's standard is appr@riate in that it approximates or is stricter than the standard adopted by the Commission in its previous Ibrt 100 rulemaking: as discussed in NUREO 1391, the significant lealth effects from exposure at the Part 100 guideline valuu are in excess of those that might be expected from exposures at the chosen liF values. Rt the foregobg reasons, we decline to consider the issue further.

C.

Provision at Issue: Paragraph 2, applying the draft " General Design Criteria"for urantum enrichment published in the Advanced b5tice of Proposed Rulemaking noticed on April 22,1988 (set 53 M Wg.13,276)

CAhT's ObJtedon c:A krquested Relief CANT complains of the lack of performance objectives addressed to safe-guarding nuclear materials in the design objxtives made applicable by 12.

CANT proposes that we incorporate the following design criterion:

T e design of a uraniern enrichmerd facilay, inchahng hardeare, tha!! be avulucive 80 impkmernada d effective advanced nadmal and internanonal safeguards tecinsques er,d grocedures. -

CANT also tsks that we consider in establishing nocicar safeguard performance criteria the issues raised in four CANT contentions, (L) through (O). We read that as a request to establish licensing standards to ensure effective monitoring by the International Atomic Energy A gcacy (I AEA) that would require (1) online f

enrichment monitoring for all cascades at the plant and iria.er diameters of all process pipes measuring at least 110 nun; (2) effective motitormg of sampling poru, process valves, and flange::1 and (3) transparent walls around small cells of centrifuges.

Stqff's Position IIere as well, the Staff opposes reconsideration. Staff's first reason is that any lack of material control and accounting (MC&A) requirements has been addressed by issuance of the Commission's final rule, published 0;tober 31, 1991 (56 Fed. Reg. 55,991) which established MC&A requirements for 102

enrichment facilides.' in addidon, Staff argues, the Commission's statement of considerations on de fmal rule resolved Hut NRC requirements need not encompass as a design criterion de assurance that ready access is available to IAEA inspectors. Statf also argued that an aspect cJ the detailed criterion proposed that would establish a prohibition against opaque cell walls for centrifuges would te technically irrelevant tecause the LES design does not appear to contemplate such walls. Staff's Response at 910.

Commission Decision 7he General Design Criteria from our 1988 Advance Notice of Propos,d Rulemaking were made appbcable to this proceeding by lle Commission in de llearing Order. In so doing, we chose the approach of performance based standards. Those standards established " principal design ciitetta which are commensarate with their safety function." 53 Fed. Reg. at 13,278. Since the rules were linked to " safety" consideratio a as distinct frorn " common defense and security" considerations," the critt-did not include a performance-based safeguards standard directed ut comm'.tefense and security goals such as those to be achieved by the I AEA safeguards regime. This possible gap was acktressed by the Commission's Notice of Proposed Rulernaking on MCAA requirements for uranium enrichment facilities. 55 Fed. Reg. at 51,726. Part IV of the llearing Order (56 Fed. Reg. at 23,313) made the proposed rules for 10 C.F.R. Part 74 relating to MC&A (see $5 Fed. Reg. 51,730, et seq.) applicable to this proceeding and anticipated conformance to the final rules when issued, noting that if there were not final rules at the conclusion of this proceeding, any license granted LES would be appropriately conformed to final rules on their issuance.

• lhe Commission also noted the spplicability of already codified regulations on physical security and information control.

in issiting its final rule on MC&A requirements for uranium enrichment facilities (see 56 Fed. R(g. 55,991 (Oct. 31,1991)), the Commission explained that the need for safeguards against unauthorized activities was addressed "primarily through creation of a new 07 *.33 in NRC's existing meterial control and accoanting regulations." Id. The final rule replaced the proposed rule and became applicable to this proceeding, and lest there be any doubt, ty this Order

'CANr's recesssaderstwn egen nflected that CANT was well own that the cmunisam had pubhshed a nmposed mis regnedmg MCAA. ses 55 rea. 'teg 51.726 0 990). Indeed, ans of the indwidual,.. --- s

(

apparundy has eks. ties to CANT and essenually made CANTS pous wah sespect to LAE.A sans in the slamahng.

safay" in our partance urers to preaction of public health and safay rmm the deman, smarucuan, and operation of the plam. the prmactaan or se canman derene and secushy of the Umted stases mlanes to such maures as prametxe of clamfied i.irormatac4 up 1 against imernatmal diversion of mesmats frum peaceful and non espleve uses.

103 l

1

we amend our llearing Order acwrdingly. Tte final tule resolves CANT's issue; the Commission explained its choice of gerformance based rather than prescriptive standards in establishing safeguards-direct (d performance standards in the rew section 74.33.

'lhe new section 74.33 includes as a gerftsmance based requirement that each uranium enrichment licensec must estaNish, implement, and maintain an NRC-approved MCAA system. That system must, among other things,;>mtect against troduction of uranium enriched to 10% or more of U 235 and any unauthorized production of uranium of low strategic significance, and in the unlikely event that protection is thwarted, must be able to detect the consequent unauthorized production. 10 C.F.R. 674.33(2) and (3). The Commission concluded that specifie requirements Ics the use of physical security measures in achieving MC& A objecuves were unnecessary. Physical security measures may be included by an applicant in its MC&A program, but the applicant is free to develop its program in any manner as long as it meets the general performance objectives and has the system features and capabilities specihed.

CANT's remr'ning suggested standards appear to be prescriptive and oriented toward the physical construction of the facility, whereas the Commission has rnade a reasoced policy c.hoice in the rulemaking to regulate by performance-Insed standardt for MC&A programs. Licensees may, of course, choose or need to employ the CANT. suggested means to achieve an appropriate level of safeguards; however, those means are not necessarily the exclusive solutions to meeting the Commission's performance requirements. Indeed, in some cases Onse means may be irrelevant because of the design chosen for the facility. Finally, we note that CANT has withdrawn its objection to the lack cf a requirement that centrifuge cell walls be transparent. Presumably 011s was because no provision was apparent that opaque walls were intended. See, c,g.,

Staff's Response at 10.

104

i i

Q in light of the foregoing the hearing should proceed as directed, substituting the final rule on MC&A for the proposed rule and applying existing Part 140 solely as guidance. All other requests for reconsideration are denied.

It is so ORDERED.

l i

Ibr the Commission" i

SAMUEL L Cil!LK l

?

Secretary of the Commission Dated at Rockville, Maryland this 5th day of March 1992-I h

?

?

U p -f-:- Renick wes a peners for de af6nnstion of & Ocler;if he had been puent, be ma4J have

, approved tL '

105 el s

9 M

+,r

8. -m e -vae,-seo V

y e

=- cw w -

=.,v-w-w n -, v i 7-

-- - ~ - =*

Su-

'->er-e-+,

y ww7' v

i l

i l

l l

\\

l l

Atomic Sa"ety l

and Licensing Boarcs issuances l

l ATOMIC SAFr3 AND UCENSING BOARD PANEL l

W.

j B. Paul Cotter,* Chief Administrative Judge Q'

Robert M. Lazo,* Deputy Chief Administrative Judge (Executive) 1 Frederick J. Shon.* Deputy Chief Administraave Judge (Technical) k,t l

Q I

l Members t

l l

Dr George C. Arderson James P Gioason Dr Errrreth A Luette Charles Dechhoctor*

Dr. Cadet H Hand..tr.

Dr Kenruth A McCoikam h

i t

j Peter B. Bloch*

Dr. Jerry Harbour

• Morton B. Margules*

l Glenn O. Drght Dr. Davd L. Hetrick Marshan E. Mitier Dr A. Dixon Cathan Emest E. H Il Dr. Peter A Moms l

James H. Carpenter

• Dr. Frank F. Hooper Dr. Achard 3 Partzek h

l Dr. Rchard F. Coe*

Ertzabeth B Johnson Dr. Harry Retn l

Dr Thomas E. Elleman Dr. Walter H Jordan Letter S. Rtdxestein l

Dr George A.Ferguson Dr. Charles N. Katbor*

Dr. David R Schenk l

Dr Harry Foreman Dr. Jerry R. VJoe*

t<an W Smith

• Q*

l Dr Rchard F. Foster Dr. Peter S Lun Dr. GeorDe Twy a

l John H Fryo til' Dr. James C. Lamb ll1 Sheldon J. Wotfe

' j

}

1 l

0 h

I l-i

(

l r

/'

• Permanent panel rnambers l

1 g

L l

l l

Cae as 35 NRC 107 (1992)

LBP 92-3 UNITED STATES OF AMERICA NUCLEAR REG'JLATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD B2 fore Administrative Judges:

Robert M. Lazo, Chairman Jerry R. Kline Peter S. Lam In the Matter of Docket Nos. 50-528-OLA 3 50 529 OLA.:

$0-530-OLA 3 (ASLBP No.92-654 010LA 3)

(Automatic Closure interlock for Shutdown Cooling Valves)

ARIZONA PUBLIC SERVICE COMPANY, et al (Palo Verde Nuclear Generating Station Units 1,2, and 3)

March 4,1992 RULES OF PRACTICE: INTERVENTION

'Ihe Atomic Energy Act does not confer the automatic right of intervention upon anyone. The Commirsion may condition the exercise of that right upon.

the meeting of reasonable procedura: requirements.

RULES OF PRACTICE: INTERVENTION Prior to the first prehearing conference, the petitioner must file a supplement to his or her petition to intervene which sets forth the contentions the petit 6ner seeks to have litigated and the basis for each contention.10 C.F.R. I 2.714.

107

RULES OF PRACTICEt DISMISSAL Of PAllTIES tiCENSING llOARDS: AUTilORITY TO ltEGULATE PROCEEDINGS Pursuant to 10 C.F.R. $2.707, the Licensing Board is empowered, on tie failure of a pa,1y to comply with any prehearing conference order to make such orders in regard to the failure as are just.

RULES OF PRACTICE: DISMISSAL OF PARTIES (DEFAULT)

LICENSING llOARDS: AUTIIORITY TO REGULATE PROCEEDINGS Dismissal of a party is the ultimate sanction applicable to an intervenor.

Win,te a party fails to carry out the responsibilities imposed by the fact of its participation in the proceeding, such a party may le found to be in default and the Licensing Board may make such orders ir, regard to the failure as are just.

10 C.F.R. Ii 2.707, 2.718.

MEMORANDUM AND ORDER FINDING MITCilELL PETITIONERS IN DEFAUl!!'

(Dismissal of Proceeding)

On Octoler 30,1991, the NRC publisted in the federal Register a notice of applicadon by the Arizona Public Service Co. et al. ("Licensecs") for license amendments to the licenses for Palo Verde Nuclear Generating Station, Units 1,2, and 3, to permit the 'Jcensees to remove the automatic closure interlocks for shutdown cooling valves on these units, and of an opportunity for hearing on that application. 56 Fed. Reg. 55,940, 55,942 (Octi 30,1991).' De nonce provided that petitions for leave to intervene with respect to the application could be filed by November 29,1991, in accordance with 10 C.F.R. 6 2.714; that the petition should specifically explain why intervention should t>c permined, with particular reference to, inter alia, the nature of petitioner's right to intervene under the Atomic Energy Act, as amended; and that the pention should identify

. the specific aspects of the subject matter of the proceeding as to which petitioner wishes to intervene, 56 Fed. Reg, at 55,941, Allan L. Mitchell and Linda E. Mitchell (" Petitioners") filed a petition

(" Petition") to intervene on November 25,1991. L!censees and the NRC Staff have opposed the Mitchell's petition.

De Atomic Safety and Licensing Board (" Board") issued a " Notice of Pre-hearing Conference and Order Scheduling Filing of Pleadings" on January 2, 108

~

l I

i 1992 (" Order"). 57 Fed. Reg. 038 (Jan. 9,1992). In this Order, the Board -

i required that " petitioners.,.

file no later than January 27.1992 a Sup-plernental Ittition which must include a list of the contentions u hich petitioners seek to have litigated in the learing and which saJsfy the requirements of para-graph (bX2) of $ 2.714 of the Commission's Rules of Piactice." Orde. at 2.

Additionally, the pleadings were "to te i t!.c lands of the Licensing Board and other parties on the duc date." /d at 3.

On January 27, 1992, the Mitchell Ittitioners filed a Notice with the Licensing Board and the other parties stating that they do et intend to comply

+

with the Board's order to submit proposed contentions ard moved "to voluntarily

' dismiss these proceedings." Licensecs and NRC Staff do not object to dismissal of this proceeding.

• Ihe deliberate decision by the Mitchell Ittitioners not to comply with the Licensing Board's Prehearing Order of January 2,1992, places them in default in this proceeding. Accordingly, pursuant to the provisions cf 10 C.F.R. 62.707, the Petition for leave to intervene and Request for lierring, b.at by Allan L.

Mitet and Linda E, Mitchell on November 25, 1991, is hereby denied and i

the Mitchell Petitioners are dismissed from this proceeding, with prejudice.

There being no other matters outstanding, this licensing proceeding is hereby ter.ninated.

l' is so ORDERED.

FOR TILE ATOMIC SAFE *IT AND LICENSING BOARD Robert M. Lazo, Chairman -

ADMINISTRATIVE JUDGE J

lssued at Bethesda, Maryland, this 4th day of March 1992.

s 109 i

+

=

t Cite as 35 NRC 110 (19921

- LBP-92-3 A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND UCENSLNG BOARD Before Administrative Judges:

.I f,,

Marshall E. Miller, Chairman

. Frederlek J. Shon Dr. James H. Carpenter in the Matter of Docket No'. c30-05980 030 4 5981 030-05982 030-08335 030 4 0444 (i!LBP Nos. 89 590-01-OM 90-59841 OM 2)

SAFETY UGHT CORPORATION, et al

. (Bloomsburg Site Decontamination)

Match 16,1992 ORDER (Ruling on Licensees' Motion to Compel Deposition Discovery from the NRC Staff)

On January 31, 1992, USR Industries, Inc., and Safety Light Corporation filed a Motion to Compel Deposition Discove4y from the NRC Staff. The NEC Staff on February 18,1992, filed its Answer in Opposition to Licensees' Motion to Compel Deposition Discovesy. At the end of its Answer, the N_RC Staff included a request for the entry of a protective order recluding the taking of the requested depositions (Staff Artswer at 12).

.. On February 24, 1992, the Licensees (USR Ir.dustries) and Safety Light Corporation filed a Motion for Leave to File a Reply in Support of Motion to 110 v

m.

Compel Deposition Discovery. That motion and the proposed reply at' ached to it were specifically directed only to the NRC Staff's Motion for a Protective Order contained in its filing dated Febrwy 18,1992. The Licensecs' Motion for leave to File a Reply is heretry granted, and the tendereo Reply in Support of Motion to Compel Deposition Discovery is received and filed instanter insofar '

- as it pertains to the Staff's request for a piotective order,_

At a conference between counse; and the Licensing Board on January 7, 1992, the parties agreed to the following issues for the evidentiary hearing to be held in these proceedings:

~

1. Does the NRC have jarisdictim over USR Indastries and USR subsidiarica (rec.

ognizing that the Staff has pending before the Nuclear Regulatory Cunmission an appeal at this preserv time with :56sid to this issue)?

2.

Was there adequata basis in 1989 iw making either a Mh of the 1989 orders inanediately effective?

3. Should the Staff's orders of March and August 1989 be sustained, denied or modined as appropriate?

- January 9,1992 Licensing Board Order (unpublished) at 1-2.

The Licensecs have requested the discovery depositions of three individuals,

one identified by name (Kevin Null, an employee of NRC Region III) and two others identified under the following categories:

oe

, An NRC Staff caTicial who prepared or I.as specinc knowledge of the iblicy and Processing for Material Ucensing Appbcations involvirm Change of Owncrship, dated February 11, 198&8

~

- An NRC Staff of6cial who prepared or has specinc knowledge of the basis for the matcrnenta in SECY.91096 and SECY-91J34 sclased to *the tack of clear standards for unrestricted release of residual radioactivity"(SECY.91096 at 4) a. " existing NRC regulaticos do not contain gexrally apphcable and dc6aitive decontaminatwn criteria" (SECY 91134 at 8).

Under the provisions of 10 C.F.R. 62.720(h)(2)(i), where discovery is sought from the_ NRC Staff, it is recnired to "make available one or more witnesses

- designated by the Executive Director for Operations for oral examinations at the hearing or on deposition regarding any matter, not privileged, which is relevant -

' to the' issues in the pmceeding." The Staff correctly points out the relevancy wquirement of this provision,' but then cites the Federal Rules of Evidence (Rule 401) as the sole criterion for determining what is relevant in the pending motion to compel discovery, We have always held that a more liberal de mition of r

relevance may be used in the context of discovery. Such information need not

~ Ins Stafr sta'ted in im Answer, at pass 8. footnote 10. that the " correct title d dus accumes is ' Policy and

. Guidance Directive it 86*t. Proccasing Maienal ticense Applications in,olving f.hange of ownership.'"

111

-.a be admissible per se, as would be the case at trial. It '.s sufficient if the requested

- discovery could reasonably lead to obtaining evidence that would be admissible at the future evidentiary hearing on this proceeding.

I.

DEPOSITION OF KEVIN IIULL The Staff has not objected to the depositions of John D. Kinneman or Francis Costello. Until they have been deposed, the Licensees can make no real showing whether or not the deposhion of Kevin Null 6 needed upon a showing of "ex-ceptional circumstances" as required by 10 C.F.R. $ 2.720(fX2)(i). Accordingly,

, the Licensees should first depose Jotm D. Kinneman and Francis Costello.-If thereafter the Licensees still wish to make a case for compelling the deposition

.of Kevin Null, they may do so.

II. DEPOSITION OF A STAFF WITNESS REGARDING S TAFF GUIDANCE OF FEBRUARY 11, 1986 liere the Licensees have not asked for the deposition of a named individual and hence need not make the difficult thresh.,ld showing required by section 2.720(hX2Xi). As we have noted supra, the standard for compelling discovery

- is much less stringent than that for the admissibility of evklence, and need only involve informatk a that might lead to admissible evidence. Accordingly, we direct the Staff to supply for deposition discovery some individual familiar with the issuance of the guide.'

III. DEPOSTTION OF A STAFF WITNESS FAMILIAR WITIl EXISTENCE OR LACK OF DECONTAMINATION CRITERIA liere also there is no request for named witnesses. The Staff has offered other witnesses who may be questioned upon this matter. We note that the Staff in issuing its recent orders denying renewal of licenses has now set forth -

. specific decontamination criteria for this specific site, liowever, the Licensees -

' have always contended that there is a significant difference between the required decontamination of a man'ufacturing site utilizing licensed nuclear materials, and the cleanup required after the termination of licensed ogerations. We express no view on this situation.110 wever, if the deposition of some witnesses on this 112

c k

-s point shows a ' clear need for additional depositions, the Licensees may renew-

"'.g

~ the request. The NRC Staff's Motion for a Protective Order is denied.

p.

IT IS SO ORDERED.

FOR TIIE ATOMIC SAFETY

--AND LICENSING BOARD -

Marshall E. Miller, Chairman

- ADMINISTRATIVE JUDGE Bethesda, Maryland March 16,1992 ~

t-s

' i l

-l

.:[

= jo V

A 113 r

w

-e

fa Cite as 35 NRC 114 (1992)

LDP-92 4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENS'NG BOARD Before Administrative Judges:

Thomas S. Moore, Chairman Dr. Richard F. Cole Dr. Che,rlas N. Kelber In the Matter of Docket No. 50-440-OLA-3 (ASLBP No. 91650-13 OLA 3) j CLEVELAND ELECTRIC ILLUMlHATING COMPANY, et al (Perry Nuclear Power Plant, Unit 1)

-- karch 18,1992 In this Memorandum and Order, the Licensing Board fmds that t!e petitionen lacit standing to intervenc 'm this operating license amendment proceeding and, therefcm, it denies the petitioners' interventbn petition.

RULES OF PRACTICE: STANDING TO INTERVENE The Commission long ago held that " contemporaneous judicial concepts of

' standing" are to be used in determining whether a petitioner has alleged a suf6cient " interest" within the meaning of section 189(a) of the Atomic Energy Act and the agency's regulations to intervene as a matter of right in an NRC

' licensing proceeding. Portland General Electric Co (Pebble Springs Nucicar Plant, Units 1 and 2), CLI 76-27,4 NRC 610,613-14 (1976).

114

RULES OF PRACTICE: STANDING TO lhTERVENE Tb establish standing, a petitioner must demonstrate an injury in fxt from the --

- xtion involved and an interest arguably within the zone of interests protected by the statutory provisions governing the proceeding. See Florida Power & Light

- Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989);)ferropolitan Edison Co. (nree Mile Island Nuclear Station, Unit 1), CLI-83-25,18 NRC 327,332 (1983).

RULES OF PRACTICE: STANDING TO INTERVENE

'Ihe same in injury in fxt and zone of interest requirements must be net regardless of whether the petitioner is an individue.1 or nn organization seeking to intervene in its own right. Florida Poner & Light Co. (Thrkey Point Nuclear Generating Plant, Units 3 and 4), ALAB 952,33 NRC 521,529 (1991).

RULES OF PRACTICE: ~ STANDING TO INTERVENE When an organization seeks to intervene as the authorized representative of one of its members, the standing of the organizational petitioner is, inter

, alia, dependent upon that individual member having standing in his own right.

~

Turi.cy Point,33 NRC at 530 31. See also llunt v. Washington Apple Adurrtising -

Comm'n,432 U.S. 333,342-43 (1977).

RULES OF PRACTICE: STANDING TO INTERVENE Current judicial' standing doctrine holds that the injury in fact requirement has three components: injury, cause, and remedial benefit. See Valley Forge Christian College v. Americans Unitedfor Separation of Church and State 454 U.S. 464,472 (1982).

RULES OF PR ACTICE: STANDING TO INTERVENE To incet the injury in fxt test in proceedings other than those for construe-ion permits and operating licenses, injury to individuals living in reasonable proximity to a plant must be based upon a shawing of "a clear potential for offshe consequences" resulting from the challen.f d action. St. Lucie 30 NRC at 329.

I15

RULES OF PRACTICEt STANDING TO INTERVENE Standing cannot be properly predicated upon the denial of a purported procedural right that is unmupled from any injury caused by the substance of the challenged license amendmenL See United Transp. Union v. ICC. 891 F.2d 908, 918 (D.C. Cir.1989), cert. denled,110 S. Ct. 3271 (1990).

MEMORANDUM AND ORDER (Ruling on Intervention Petition)

His matter is before us to determine whether the petitioners, Ohio Citizens for Resgntible Energy, Inc. (OCRE) and Susan L, Hiatt, have standing to challenge an operating license amendment sought by the applicants, Cleveland Electric Illuminating Company, et al., for their Perry Nuclear Power Plant located on the shores of Lake Erie in Lake County, Ohio. The amendment removes the reactor vessel material surveillance program withdrawal schedule from the plant's technical specifications and relocates it in the updated safety analysis report for the facility. Ihr the reasons that follow, we find that the petitioners '

lack standing to intervene. Accorw$y their petition to intervene is denied.

I.

A.

Tb put the petitioners' standing claims in the proper context, it is helpful initially to sketch the regulatory background underlying this license amendment

.' proceeding.

Pursuant to section 182(a) of the Atomic Energy Act,' the operating license for a commercial nuclear power plant must include the " technical specifications" for the facility, nat section further provides that the technical specifications include, inter alia, information on "the specific characteristics of the facility, and such other information as the Comm3sion... deem (s) necessary.,, to find that the [ plant],. will provide adequate protection to the heahh and safety of the public "3 He Commission has implemented this statutory directive through 10 C.F.R 05036. Dal provision states that each operating license "will include technical specifications.. (to] be derived from the analyses and evaluation

' included in the safety analysis report, and amendments thereto,... {and] such additional technical specifications as the Commission finds appropriate."3 ne 42 usc im$( )(19:s>-

3s.u 3 10 C.FA f $036(b).

I16

~

.i regulation then generally describes, under six category headings, the types of items that must be included in the technical specifications, such as safety limits,

limiting safety system settings, limiting control settings, limiting conditions for operations, surveillance requirements, and facility design features that, if altered, vould have an effect on safety,'

The Commission has recognized,- however, that the lack of well defined

- criteria in the reguladons for determining precisely what should be included y

in a plant's technical specifications has led licensees to be over inclusive in developing there As the Commission stated in its interim policy statement on technical specification improvements, it]he (wrpose d Technical Specifications is to impose those camdaions or hmitations-upon scac1cr ryeration necessary to obviate the possihihty of an abnormal situation or event giving rise to an immediate threat to the public heahh and safety by establishing those crnditions of geradon which camot he danged without prior Oxnmission amroval and by ideralfying those featmes whid are d controtling importance to safety.8 -

The Commission went on to observe that, "since [the technical specification rule was promulgated), there has been a trend towards including in Technical Spec-

' ifications not only those requirements derived from the analyses and evaluation included in the safety analysis report but also essentially all other Commission -

requirements governing the operation of nuclear power reactors. According to the Commission, this trend has had the deleterious effect of increasing the volume of technical specifications to the pois.: where they have become unneces-sarily burdenso'ne, diver'ing the attention oflicensees and plant operators from the plant corALions most important to safety, and substantially increasing the number of license amendment applications to make minor changes in the techni-cal specifications - all of which "has resulted in an adverse but unquantifiable impact on safety"'

In an effort to eliminate these negative impacts, the Commission initiated, with the issuance of its interim policy statement, a voluntary program designed to encourage licensees to improve their technical specifications. As a small part of this ongoing program, the staff issued Generic I,etter 91-01, providing

= guidance on the preparation of a license amendment application to remove

- from the technical specifications the schedule for the withdraw-al of reactor vessel material surveillance specimens.' In addition to explainli.r, the ministeria'

'14 55&36(c1 8s2 Fed. Reg. 3738,s790 0987) su gemardly mmc semce Co. ofIdsas (Marble Itin Eclear Gmerating -

p sterian, Units I and 21 AIAB 530,9 NRC 261,273 (1979).

' ':f2 Fed.ites at 3789.

'la sornmic Imer 9101 (Jan.4,1991).

I17 4

-m_

wm>

~ ~

^ ~ ~ ~

3

/

l g;

(G pg g

.y s

function of the surveillance capsule _ withdiawal sbhedule and_its relationship M,'

.tofother[ surveillance requirements' designed to protect-against teactor vessel; embrittlement, the staff guidance letter states that the Commission's regulauons -

i already require that a licensee obtain NRC approval:for' any changes to thef

. withdrawal schedule.' *Ihis..the staff maintains, mahes it duplicative to retain '

regulatory control over tha schedule through the license amendment processc-Finally, the staff guidance letter directs that an application to cFectuate this

~~

~

change should include the licensce's commitmel to place the NRC approved actsion of the specimen withdrawal schedule in the next revision of the lic nsee's Eupdated safety analysis report.1 B.1 After the staff issued the generic leuct, the applicants filed a suppienent '

J to a pending license amendment application sccking to remo"e the reactor vessel

= material surveillance program' withdrawal schedule from the Perry techidcal'

!specificationsc Jihereafter, the agency published a notice of opportunity for

hearing and'.a' proposed no'significant hazards consideration determinatica concernhg the applicant _'s' request.";In support of the staff's no significant n

7 hazards considention determination," the notice stMed that the relocation '

of the surveillance capsule withdrawal schedule was purely an 'administratise change and hence did not (1) involve a significant increase in the probability or x

consequences of a previously evaluated accident; (2) affcct any previous accident,

analyses; or (3) change any existing margin of safety."

r Responding to the Commission's notice, the petitioncrr filed a' timely r$6aon

= to.ituervene and request for a hearmg.on the _ capsule _ withdrswal schedule portic1 of the _ operating license amendment.u "te. applicants'and the staff -

"a opposed the intervennion petition en the grot.w that thipetitioners. lacked standmg to intervene.8' ' We thenLissued an order that fixed a r4hedule for

~

filing any =nanded petition, provided he petitioners with the opportunity to address the arguments of the applicants and the staff, and reqssted H

at the petitioners explain why several standing cases'we cited were not'pessuasis in i the circumstances presented.(5.1he petitioners filed an " amended" intervention 3

petition in which they addressed the arguments of the applicants and the staff and r

y a 'See 10 CIA Pan 50. Appeda II. l'I.B1" "s6 Fed Reg. 33.950,33.961 (1991). See a enerary 42 Us.c. I 2239(a)(2)(A)qB) (1988); 10 CSA I 5a91.

' 333ee generoit) 10 CJ R. I sa92(c)..-

, 12 s2 Fed. Reg. m 33,961 -.

?

131%:itian for tmve to Inter==ralmi Regra for a llearing (Aug. 23. lHI) (lmremafar PennW "14

• Answer te i aition for lasve to intmerie and Roguest fa Hearing (sent. 6,199.1); NRC Staff

' Answr m Petition for leave to traervens (scpt. Il 1991).

f3 order (oci. 28/1991)(unpuntw4 :

M-118 m

f '.

1 j.; p.

_.' QA,,,=

LKg i

s

' the cases we cited, but'made no substantive changes in their standing claims."

Finally, the applicants and the staff filed replies to the petitioners

• filing."

The. intervention petition asserts that petitioner OCRE is a nonprofit Ohioz corporation _ whose purpose is to engage in reactor safety research and advocacy

~ with the goal of advancing the use of the highest standards of safety for nuclear plants. The petition recites that some of OCRE's members live and own property within fifteen miles of the Perry plant and that one member, Susan L Hian, has -

authorized OCRE to represent her interests in the proceeding. Attached to the

. etition is the affidavit of Ms, Hiatt stating that she is a member and officer of p

OCRE who resides about thirteen miles from the Perry facility. The affidavit states that, in addiuori to appearing pro se, Ms. Hiatt has authorized OCRE to represent her interests in this amendment proceeding and, in tum, OCRE has empowered her. as an officer of the ors;anization, to represent it before the

agency, With respect to petitioner Hiatt, the petition reiterates that she lives and owns property within fifteen miles of the Perry plant. The petition then states that Petitimers have a defmite interest in the preservatim of their lives, their physical heahh, their livelihoods, the value of thCr ppeny, a safe and heshhy natural environrnent, and

.the cultural, historical, and ecmonue resourt:es of Northeast Ohio. Petitioners also have an interest in preserving their legal rights to meaningful participation in inauers affecting the cperation of the Perry Nuclear Power Plant which snay irnpact these above. - mtimed interests.ts After setting forth the petitioners' purported interests, the petition states that de " Petitioners agree with the Licensee and NRC Staff that this portion of the proposed amendment is purely an administrative matter which involves no -

- significant hazards considerations."" The petition then claims that the petitioners wish only to raise a single legal issue, i.e., the challenged amendment violates section 189(a) of the Atomic Energy Act" by depriving the public of the right to notice and an opportunity for a hearing on any changes o the withdrawal -

schedule. According to the petition, the withdrawal schedule tradition.dly has been part of the applicants' technical specifications and hence the Perry operating license so that, pursuant to section 189(a), changes to the schedule can be made only after public notice and an opportunity for a hearir.g. 'Ihc petitioners next argue that under the challenged amendment the licensees henceforth will be sble

' 2%cnea% ended Paitim ror tem to laterves (Nov. 22,1990 "Lxensecs' Response to Amended Ptution far 14 ave to Imcivene (Dec. 17,1991); !atC staff Re ruse to Amended Petition (Dec. 17,1991).

is Petit m at 2 4.

N 14 at s.

20 42 U,s.C. I 2239(a) 0958).

I19

to make de facto license amendments to the withdrawal schedule,' without any notice or hearing, in violation of their rights under section 189(a)?

II.

J AJ ' Parroting the language of section 189(a) of the Atomic Energy Act, the Commission's regulations povide that "[alny peison whose interest may be alTecte:! by c, proceeding" may seek to intervene by filinF a petition.22 The regu,

ations funher [.nsvide that the petition shall" set forth with particularity the in-tesest of the peutioner in the precceding (and] how that interest may be a'fect-4 by the results of the proceeding, including the reasons why petitioner should

' be permitted to intervene,*" The Commission long ago held that "coatempo-ranants judicial concepts of standing" are to be used in determining whether a petitioner had alleged a sufficient " interest" within the meaning of section

- 189(a) and the agency's regulations to intervene as a matter of right in an NRC licensing proceeding.2* According to the Commission,'those familiar standing-principles require that a petitioner demonstrat: an injury in fact from the action bvolved and an interest arguably within the zone of interests protected by the statutory provisions governing the proceeding? "Ihe same showing is required

= regardless of whether the petitioner is an individual or an organization seeking -

to intervene in its own right.2s Additiottily, when an organization seeks to inter.

_vene as the authorized representative of one of its members, the standing of the organizational petitioner is, fr,ter alla, dependere upon that individual menioer having standing in his own right 27-As the Supreme Court has recognized,"'gleneralizations about standing to

- sue are largely worthless as such."2s It nevertheless is current jtv!icial standing

' doctrine that :he injury in fact requirement has three components: injury, cause, and remedial benefit. As aniculated by the Snptcme Court, ti n:Liiku at G-10.

"1G Cf.R. I2.714('s)(1).

' i 2314 62.714(aX2K 8'Penland Genarst EArcaic Ce, (I%btde springs Natear Plans, h 1 and 21 CUM 27,4 NRC 610,61314

' g976).

14;ane Florias Pe=se & ligk Co. (st. Imcis Nalcar Power Plant, h I sad 2), C1189-21,30 NRC 325, 329 (1989X Mairepolissa E4,os Co. (Ihres Mile Island Nuclear saadan, Umt 1), CU-83-25, t E NRC 327,332 (1983).

24g;. ids Pe.wr a figAt Co. (hiey % Nuctest Generating Plant, Unita 3 and 4), AIAB-952,33 h1C 521, 529 (1991); see Tarl.18 NRC at 332.

L "Nisy Poiar,33 NRC at 530 31. See sine Haar v. hAiagsaa Apple Advernmng Ceam'a,4;. U.s. 333, 342 43 (1977). -

2sAssociadem of Dese Procesring Sm. Orgs. v. Camp,397 UA 150,151 (1970).

120 l'

r 1 a

.g t i' the pany who invokes the court's authority imust] "show that he persmally has suffered some actual or threatened injury a. a result of the putatively illesil conluet (4 tic ddendant,"

' Gladrrone. Realiors v. WItage of Bellwood, 411 U.S. 91, 99 (1979), and thu the injury

" fairly can be traced to the challeriged action" and "is lacly to be redressed by a favoraNe decision " Simon v. Eastern Ken:wky Welfare Righis org.,426 U.S. 26,3s (1916)."

Although variout!y described, the asserted injury must be " distinct and palpable"" and "particular land] concrete,*2' as opposed to being "' conjectural

... [,] hypothetical,'"38 or " abstract"33 The injury need not already have occorred but when future harm is asserted, it must be " threatened,")* " *certainly impending,'"25 and "*real and immediate.'"3' Additionally, their must be a causal nexus between the asserted injury and the challenged action. Its other words, the alleged harra must have "resulted" in a " concretely demonstrable way" from the claimed infractions." Deze also must be a sufficient causal connection betw:en the alleged harm and the regaested remedy so that the complaining party "stend[s] to profit in some penonal interest.""

B.

Here, it is clear that the petitioners fail to satisfy the injury in fact test for standing. His being so, we need not reach any question concuning the zone of interest requimment.

f.her, we need address only Ms. Hiatt's standing claims because OCRE's standing as the representative of its member is, infer alia, dependent upon Ms. Hiatt's standing and, to the extent OCRE seeks to intervene as an organization in its own right, both petitioners have alleged the same interests." Thus, because Ms. Hiatt has failed to establish an injury in fac',

OCRE's claim likewise must fail.

i 1.

In the intervention petition, Ms, Hiatt first asserts that she lives and owns property within fifteen miles of the Perry facility and that she has an interest

- in preserving her health, livelihood, property, and environment as well as '5e cul: ural, historical, and econorric resources of northeastern Ohio, all of which

• Valley Forge CArksian College v. Amerkans Unitedfor 3eparanea of Check and State,454 U1464. 472 0982) See tenera'h is C. WriaN, A. hLucr Jt *?., Cooper. Fedauf Practka med Preced,re i 3531 As6 (1984k

1. War:A v. 3 14,a,422 U1490,501 (1975K 31 United 3uses v. RicAardma. 415 U s.166,177 (1974).

32 fes Aagehs o. Lyons,461 U.s. 95,1(n (1983),

3'Ssmen v. Eastern Ky WeVae Rigkst %,426 U% at 4a 3'linds #1 v. RuAard D.,410 U.s. 614,617 (1973).

38Ba6&str v. United Farm Werters Nes'd Union,442 U.s. 289. 298 (l979) (quoting l'emasyksaia v. Wess Virginia,

- 262 U.s. 553,593 (1923)),

36 les Angeks v. Lyons,461 U1 at 102.

" Wer A v. 3*kf a. 422 U1 at 504

" Simon v. Earurn Ky Werare RigAar Org. 426 U1 at 39.

It should be acted that when the sequested rdieris the causanon of the putaticaly Allegal cmduct, the analysis of the causal nesus between the aDesed injury and the challowed actum (Ls., the "rairly trscoble" analysis) and the assened harm and ths sequestal relief (ie., the "redressituhty" analysis), is the sama See Allem v. Wrighs, 468 U1737,759 m 24 (1984).

"See mpra notes 26 27 and accompanymg seat 121 i

l b

h

'} f may be impacted by the operation of the plant. But petitioner's mere interest in these enumerated matters, without a great deal more, is woefully insufficient to establish that she has suffered some actual or threatened injury from the challenged license amendment Generalized interests of the kind asserted by the petitioner do not comprise an injury that is distinct and palpable or particular and concrete. Rather, the petitioner's asseitd interests are abstract and conjectural grievarm that fall far short of the kind of real or threatered harm essential to establish an injury in fact." As the Supreme Court has stated "a mere ' interest in a problem,' no matter how longstanamg the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization ' adversely affected' or ' aggrieved' within the meaning of the (Administrative Procedure Act)"*t Similarly, the concerns listed by the petitioner are inadequate to demonstrate her " interest" in this proceeding within the meanir.g of the Commission's regulations.

As previously indicated, to satisfy the injury in fact requirement, the alleged harm to the petitioner also must have been caused by the challenged licensing action. Yet, the amendment at issue only removes the reactor vessel material surveillance withdrawal schedule from the Perry techaical specifications and places it in the updated safety analysis report. Ms. liiatt concedes that the license amendment is purely an administrative matter that involves no significant hazards considerations. As solely an administrative change, the instant licensing action has no effect on any of the petitioner's asserted interests in pre:erving her life, health, livelihood, property, or the environment lience, the essential causal nexus between the petitioner's alleged hxm and the challenged license amendment is missing.

Nor is the petitioner's position enhanced by her claim that & lives within fifteen miles of the Perry facility and that her interests, therefore, may be impacted by maurs affecting the operation of the plant. Such a speculative claim is far too tenuous a causal link between the petitioner's alleged injury and the licensing action at issue to meet the injury in fact test. 'The Commission has emphasized that, in proceedings other than those for construction permits and operating licenses, injary to individuals living in reasonable proximity to a plant must be based upon a showing of "a clear potentian for offsite consequences" resulting frem the challenged action." Not only has the petitioner not made any such showing here, but her gratuitous admission in the intervention petition that the license amendment is purely an administrative matter with no significant hazards considerations precludes it.

"see 7M!. ' s NRC at 3s2-33; T,rtay fwit. 33 NR I 530.

• l Larm GA 1. MertonJes U1771. 739 (1972).

4St. Lwin. 30 NRC at s29.

122 i

. _ ~ _ _ _ - _. - - _

m p

2.

Ms. Hian's second. claim of injury is as unavailing as her tilst. She

' asserts that she has an interest in preserving her " legal right" to meaningful participation in matters affecting the operation of the Perry facility. This claim c g-'~

of injury, however, also fails to meet the injury in fact test.

~

- Setting aside for the froment the petitioner's declaration that she has 'a legal right to participate in F1C licensing proceedings, we note initially that the injury claimed by Ms. Hlan is a future one. She does not allege any actual

- present harm from the license amendment. Ind.:cd. she concedes it is merely.

. an administrative maner with no safety implications. --Instead,- the petitioner complains that if future changes in the withdrawal schedule occur, there will be no future license amendrt ent proceedings so she will lose her right to participate meaningfully in matters c'tceting the operation of the Perry plant.

Ahhough a future injury can meet the injury in fact test, it must be one that is realistically threatened and immediate." licre, however, the petitioner's alleged future injury is speculative.** Before the petitioner's alleged harm can occur, a number of uncertain and unlikely events must take place including, rnost obviouslyi a change in the withdrawal schedule, But Ms. Hiatt h,.s not asserted thy, future changes in the withdrawal schedule will be made or even that such changes are likely."

Equally damaging to her argument, hcwever, is the fact that the speculative harm asserted by the petitioner is footed on an erroneous premise. Widmut -

' citing any direct authority, Ms. Histt declares that pursuant to section 189(a) of the Atomic Energy Act she has a legal right" O participate in NRC license-amendment proceedings. From this thesis, she argues that the challenged license amendment violates that right with respect to future changes in the specimen withdrawal schedule - changes she characterizes as de facto license -

amendments made without notice and an opportunity for a hearing. Contrary

~

to the petitioner's apparent belief, section 189(a) does not give the petitioner

' an absolute, automatic right to intervene in NRC licensing proceedings. That provision bestows no legal or vested right on her to participate in agency _

licensing actions. As'the United States Court of Appeals for!the District of Columbia Circuit recently stated, "we have'long recognized that Section L"see aupre ansas 3446 and accompanymg text.

"ses /midee v. Vail,430 U.s. 327,332-33 & n.9 (1977)(plauaift prevumly impnsoned and Ened for coniempt for ignosing de9esition subpoena teganhng outstamimg judgment teck 4 sunding to espn fuwe enforcement of stais statutory concernpt precedwes because prospect of future carammpt was speulauve camjecture even though pdgment amained unsatisfied). see stao Lar Anantes v.1. yens. 461 U.s. at 105; o'shes v. Littleton. 414 UA 488. 496 97 (1974); Uniand Transp. Union v. ICC. s91 F.2d 908,913-14 (D.C. Cir.1989). cert 4,ased,110 s.

CL 3271 (1990)..

"MditionaDy. the petitioner has failed 'to identify the chain of cutumstanegs adminating in "offsite conse-quences" that nut be Imked so those future changes before she reasonably can claim to be thre.atened by the

. operation of the Perry facility. ses supre p.121 123 y

-m

~

1 189(a) *does not confer the automatic right of intervention upon anyone.'""

Rather, section 189(a) grants participatory rights only to those persons who first establish, inter clia, that they have standing to intervene. IIcte, of course, the petitioner tws not demonstrated that she las standing so section 189(a) cannot be used as the bootstry to establish it.

Finally, the purponed harm claimed by the petitioner fails to pass the injury in fact test for another reason: it has no causal link to any substantive regulatory m

impact. For example, the petitioner does not allege that the removal of the h

withdrawal schedule from the Perry technical specifications violates 10 C.FR.

I 5036, the Commission's substantive rule prescribing the matters that must le included in a plant's technical specifications. Rather, Ms. liiatt claims only the deprivation of a purported procedural right to have notice and an opportumty to request a hearing on futtre changes to the withdrawal schedule. Statert otherwise, she alleges a right to participate in a license amendment hearing as an end in itself." But standing cannot be properly predicated upon the denial of a purported procedural right that is uncoupled from any injury caused by the substance of the challenged license amendment As the District of Columbia Circuit has stated, "before we find standing in procedural injury cases, we must ensure that there is some connection between the alleged procedural injury and a substantive injury that would otherwise confer... standing. Without such a nexus, the procedural injury doctrine could swallow [the injury in fact) standing requirements."'s Illustrative of this substantive nexus principle is the same circuit's decisions in Capital Uga! Foundation v. Commodity Credit Corp.** nere, Capital Le-

"Umoa af Coaceraad Sciaatuar v. NRC. 920 F.2d 50,55 (D C. Cir.1990) (quoting 8P1 v. AEC,502 F.2d 44, 42s (D C. Cir.1974)1

1. Additionally, the painoner argues that,if the amendmcra is grames, the mly medanism evadatde for patu:

participade si future changes to the wvhdrawal schedule is thrugh 10 Cf.R. l 2.206. Acennung to the petitmner, that provision provides nether meanmgful parncipanon nor a right to p&cial review. " Dss argument,1.ks the me above,is bouemed on the emumus, alben imphci:, notim that the petinmer has a icgal right, wuhma more, to participate in NRC licence amenenas paccedmgs. As pcviously stated, accnon 189(a) of the Aionns F.nergy Act graras no rigra to the petmaner to pamcipans in agency }wceedegs for the sake of part@dng. whethcr Ms. II.ars has uhar avemes to dellenge funare cieges in the specimen wahdrawal seedule is imlevant to the daerminauan of her suu&ng to intervue in # Air hcenso amendnua procoadmg. wtuch rrmat rest rus a showing that the instara amendrnent results in an actual or thmuened injury in feet.

as United Traag. Unkin v. ACC. 891 F.2d at 918 (cuanan ornM lateresdngly. la its decidun, the cour of appeals went on to pnsit an saample that is cicaely analogms to the situatim at hand; Consider, for example, what would happen if the ICC adoped a rule ataung that any Anwncan could intervma in an ICC pmcee&ng to challenge any interlocAmg directorsie between two ra.lroads, and then later sepealed that rule. would every Arnerican be entiGed to sue allegmg that he or she suffered a pmcedural injury when As right to intervens was revoked? sursty amw shoGs that interlocking directorates would he llely to injure the complainara ahmid be ratuired. Indeed. if a procedvsal injury alo ie suffices to confer Ardele !H standmg. any Amencan could aae any agency auegma that it is arbitrary and capticious not to have a procedure by stuch they can challenge agency acshm.

At at 91519.

711 F.2d 253 (D C. Cir.1983),

124

' gal Ibundation (Capital) sought declaratory and injunctive relief against the Commodity Credit Corporation (CCC) for offering to assume certain Polish government debts owed to American creditors and guaranteed by the agency, without first complying with the requirement of the CCC's regulation that the creditors declare the Polish debts in defaultJ Capital, an orgvization involved a- -

in monitoririg agencies engaged in economic regulation, claimed that the CCC's violation of the default provisions in its regulations was a de facto rule amend-

ment tmdestaken without compliance with the notice and comment rulemaking procedures of the Administrative Procedure Act. Capital allege <t it was harmed by the CCC's action because it had been deprived of its procedural right to comment on the rule clunge. It also conceded that it suffered no other injury stemming from the CCC's action. 'Ihc court held that Capital lacked standing because it was not injuled by the CCC's action."

rapital's injury claim directly parallels Ms. Hiatt's claim that the challenged licetise amendment harms her procedural right to notice and an opportunity to request a hearing on future changes to the withdrawal schedule 8 And like Capital, Ms.- Hiatt effectively concedes she has no other injury by admitting the challenged emendment is purely an administrative matter with no significant hazards considerations.' Given these circumstances, the same result must obtain here for Ms. Hiatt and OCRE which stands her stead.

C.

Although the petitioners do not rely.upon or even mention it in their

f. lings, we think it incumbent upon us to account for our divergence from another Licensing Board's decision in an earlier Ferry license amendment proceeding that the applicants and th' staff brought to our attention.n There, in circumstances indistinguishable from those before us, the Board found that OCRE had standing. We decline to follow that ruling.-

In the earlier proceeding, OCRE, as the representative of its memoer Ms.

Hiatt, challenged a license amendment tuat removed the cyc!c-specific core op-

. erating limits and other cycle specific fuel information flom the Perry twhnical specifications and replaced therr with an agency-approved calculation method-ology and acceptance criteria.' As in this case, OCRE conceded that the amend-ment involved purely an administrative matter that involved no significant haz-i

. "asearA and Acaica Ceaser v. FCC,917 F.2d s85, 3ss (Ilc CLr.1990); Wilder =<a 3eciety v. oriles,824 F.2d

711 F.2d at 25s 57. 25940. 3,4elas united Tr wg linien v. ICC,891 F.2d at 918-19, Teleconianedcariens A

4.19 (11C. Or 1987).

8A'the pathkmer aneks to diamguish Capital legal Fouadmos on sta ground that Capital clauned irdury mly

, to procedural rights contened upon every<me by sne Admuustrative Procadme Act la contrast, she argues that her injury is to stie submarsive right to a hearing en hcense amendmana given by the Ainrnic Energy Act to the

- special class er citizens living in close proniraity to a nuclear plant. The psitioner's argument is merititas. As.

povicusly in6cated, section 189(a) or the Atomic Energy Act does ma confer upon anyone en automatic nght or irmervention in NRC liccasing paceedmga. See sqrre pp.12344. Funher, mere rendence in the vicinity ad a

' oucicar plant is insufr.cient by hscir tu confer standmg on a peam gariing to intervene in an creror' g license amedmrmt proceedmg. Jae su;ma p.121 mIR 90-15,31 NRC 501,50G, re4's deaisd t. BPM 25,32 NRC 21,24 (1990).

125 1

a----

4 L ards considerations. And, as herei OCRE claimed that it was harmed because the challenged license amendment would permit future core operating limit changes without notice and an opportunity to request a hearingc Similarly OCRE as-setted that it wished to raise C.e single legal issue of whetler the challenged amendment violated section 189(a) of the Atomic Energy Act by depriving the public of the right to notice and an opportunity to request a hearing on future core operating limit changes?

in holding that OCRE had standing, it appears the Board determined that, because the Commission's regulations allow the filing of a contention raising only a legal issue, and OCRE raised such an issue, OCRE had standing to '

intervene " Further, in its ruling denying motions for reconsideration, the Board appears to have concludet that OCRE's injury claim was sufficietal because

. the challenged amendment deprived OCRE of its "!cgal right" to notice and an opportunity to sequest a hearing on future cycle-specific parameter limits.

Additionally, the Boaal apparently found persuasive OCRE's argument that if the amendment were granted OCRE would have no effective opportunity to confront future cycle-specific operating limit changes?

In our view, the regulatory requirement that a petitioner must establish standing to _ intervene is independent of, and unrelated to, the type of issue,

1.e., legal or factual, a petitioner seeks to raise. The requirement of 10 C.F.R. 52.714(b)(1) that a petitioner must proffer at least one admissible legal or

' factual' contention in order to obtain a her og has nothing to do with the

- separate requirement that the petitioner estah la standing. Moreover, for the

reasons already detailed herein, we conch 4: inat section 189(a) of the Atomic Energy Act grants no automatic hearing rights and thm the lack of other avenues -

for challenging the changes permitted by the amendment is irrelevant to the

-- determination of the petitioner's standing." Accordingly, we do not concur with the reasoning or the ruling of the previous Ferry Board.

- Order For the foregoing reasons, we find that both petitioner Hiatt and petitioner

- OCRE lack sufficient interest.within the meaning of 10 C.F.R. 9 2.714(a)(1) to intervene in this operating license amenoment proceeding. Accordingly, the intervention petition of Ms. Hiatt and OCRE is denied.

~ 33si NRC a 50F05.

"M st 50&

s$s2 NRC e 24.

"3ss mapre pp. 122,123-24.124 n.47.

126 o

I q;

s O?

Pursuant 10.10 C.P.R. 9 2.714a 0,c petitioners, within 10 days of service rf this Memorandum aW Order, may appeal this Order to the Commission by

((

filing a notice of. appeal and accompanying lxief.

It is so ORDERED.

Tile ATOMIC SAFETY AND LICENSINO BOARD Thomas S. Moore, Chairman ADMINISTRATIVE JUDGE f)

Dr. Richard F. Cole ADMINISTRATIVE JUDGE 1

Dr. Charles N, Kelber

-i ADMINISTRATIVE JUDGE Bethesda, Maryland

. March 18,1992 127 i-l I

.-]_'

..w-

l.

Cite as 35 NRC 128 (t992)

LBP-92-5 L

b UNITED STATES OF AMERICA F

NUCLEAR REGULATORY COMMISSION

- ATOMIC SAFETY AND LICENSING BOARD Before Admh/Mrative Judges:

Ivan W. Smith, Chairman

' ur. Rbhard !". Cole

{

Or, Jetty R. Kilne in the Matter of Docket No. 030-20541-OM (ASLBP No. 92 65844-OM)

(Byproduct Material Lleense No. 52 21350-01)

(EA 91 171)

JOSE A. HUtZ CAF J March 24,1992 1

MEMORANDUM AND ORDER (Approving Settlement Agreement and Terminsting Proceeding)

On February 21,1992, tire parties to this enforcement proceeding, the NRC

- Staff and Mr. Jose A. Ruiz Carlo, filed with the Atomic Safety and Licensing Board (1) a Settlement Agreement that has been accepted and signed by both parties and the Licensec, and (2) a joint motion requesting Ae Board's approval of the Agreement and elsry of an order terminating this proceeding, together-wi:h a proposed Order.i 'Ihe Board has reviewed the Settlement Agreement under

.10 C.F.R. 5 2.203 to determine whether approval of the Settlement Agreement and consequent termination of this proceeding i: in the public interest. We have requested and received additional explanation. Based upon its review, the Board I.Jconce, Alonso and Cana fron Works. Inc., while it did not request a learmg. is.. e a sigutroy to the I

Agnarnent for nasons ses out therein.

128

^

p

?

H f.

Jls satisfied that approval of the Seulement Agranent and termination of this

- proceeding in.d thereon is in the pub!!c interest.-

3

. Acenrdingly, the Board approves the Seulement Agreement attached hereto

- and, pursuant to sections 81 and 161 of the Atoiale Energy Act of 1954, as

~

amended (42 U.S.C. 562111 and 2201), incorporates the Ser'-ment Agreement -

" by reference into inis Order. Pursuant to 10 C.F.P. 6 2.203, the Board hereby taminates this proceeding on the lusis of the Rttlement Agreement THE ATOM!C SAFETY AND LICENSING DOARD, Richard F. Cole ADMINISTRATIVE JUDGE

e Jerry R. Kline ADMINISTRATIVE JUDGE Ivan W. Smith, Chairman ADMINISTRATIVE JUDGE

. Bethesda, Maryland March 24,1992 -

h U

129

• B

[ ?.

\\Wi "

~

.'y

/-

-fi}

j

+

ICite a5 35 NRC 130 (1992) --

LBP.92 6 7

.. - UNITED ST ATES OF AMERICA -'

NUCLEAR REGULATORY COMMISSION t

,[

. ATOM 10 SAFETY At4D LICENSING BOARD

+

s.

Before Adniinistrative J0dgett n

' _Ivari W. Smith, Chairman Peter S. Larg Ph.D.

' ~

Harry Retn, M.D.

t

.in the Matter of Docket No. 55-8615-SC (ASLBP No. 9164642 SC)_

(Senior Reactor Operator

~

License No. SOP 10561 1) 7 (EA 91-054)

DAVID M. MA>NING

- (Senior Reactor Operator):

March 31,1992-

-MEMORANDUM AND ORDER -

l(Terminating Proceedieg)

-;We have before us the ERC Staff's motion of February 24,1992, to terminate this proceeding.~ The teckground of this_ and the related FitzPatrick proceeding

.-la set out b our Memorandum and Order (Terminating FitzPatrick Proceeding),

New York Power Authorly (James A; FitzPatrick Nuclear Power Plant), LBP--

t 92-1,25 NRC 11 (1992).

la sum, David M. Manning held a senior operator's license in connection with

. his employment with the Nevt York' Power Authcrity (NYPA) at the FitzPt ek j

plant. This proceeding v'as initiated upon Mr. Manning's request for a hearing-J 130

,hi

+

4

_l r

o,,

4

+

..i

~ on an enforcement action by the NRC Staff suspending his license. Since then Mr. Manning's employment with NYPA has been terminated.l'

'Ihc Staff's motion is grounded upon 10 C.F.R. 555.55(a) which provides -

that exh senior operator license expires "upon termination of employment with -

.,the facility licensee..,." Thus, in the Staff's view, this proceeding is moot and thould therefac be terminated. Mr. Manning did not answer Starf's motion.

ORDER:

Staff's motion is granted. _This proceeding is moot and is therefore termi-nated. '

THE ATOMIC SAFETY AND LICENSING BOARD

' Pc'er S, l.am, Ph.D.

ADMINISTRATIVE JUDGE Harry Rein, M D.

ADMINISTRATIVE JUDGE Ivan W. Smith, Chairman ADMINISTRATIVE JUDGE Bethesda, Maryland

-_ March 31,- 1992.

~, i.

33ee Soent Notificadons 9241 and 92-02. Board Notificauen 9242 aiclosed a leuer dated.L mary 24.1992, from NYPA to NRC Regim I advising ht Mr. Manning is no longer ernpioyed by NYPA and requesting ht ina -

license be termmated in accordance with to CFA 155.55, Since NYPA is required to report ilss informanon

- under 10 CFA (50.74(b). the Board takaa official nouco af its accuracy.

131.

4 Y

- it 3

l Directors' Decisions Under 10 CFR 2.206

.M T

- i r-7

~ ~ ~.. >

. p.~2

- Cite as 35 NRC 133 (1992)

DD-921 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE OF NUCLEAR REACTOR REGULATION Thomas E. Murley, Director in the Matter of Docket Hos. 50-528 50 529 50-530

- ARIZONA PUBLIC SERVICE COMPANY, et al..

"(Pab Verde Nuclear Generating.

Station, Units 1,2, and 3)

March 16,1992 The Director of the Office of Nuclear Reactor Regulation denies a petition filed by Messrs. David K. Colapinto and Stephen M. Kohn, requesting action

with' regard to the Palo Verde Nuclear Ocnerating Station Units 1, 2, and 3.

Specifically, the Petition alleged that: a hydrogen leak in the main generator of Unit 2 could pose a fire hazad; fire pumps at the plant have malfunctioned and cannot pump water in the event of a fire; the cooling towers are crumbling and are unsafe; the plaint has been operating outside of safety regulations

= under "justHications for continued operation"; the Licenst;c has not identified s the electrical circuit breakers for fire protection such that, in the event of a fire, it would not know what equipment could be damaged; it is rumored that

. Unit 2 has a primary-to-secondary leak of 2 gallons per minute; the Licensee has willfully operated Palo Verde Nuclear Generating Station in violation of unspecified licensing requirements and willfully failed to report unspecified safety violations to the NRC through Licensee event reports; the Licensee has never moved the portable hydrogen recombiner from one unit to another, has no procedure to do so, and has no backup recombiner; the Licensee failed

- to correctly implement a design change for the reactor contro! element drive mechanisms on Unit 3; the Licensee has engaged in widespread harassment and retaliation against employees who raise safety concerns. The Petitic

.s request

- emergency action to shut down Palo Verde Units 1,2, and 3, and timt the NRC -

133

appoint a special investigative teans to monitor and inspect conditions at the plant.

DIRECTOR'S DECISION UNDER 10 C.F.R. 9 2.206 I.

LNTRODUCTION On June 6,1991, Messrs. David K. Colapinto and Stephen M. Kofu sent a letter addressed to the Chairman of the U.S. Nuclear Regulatory Commission (NRC) which presented ten allegations regarding various facets of pbnt opera-tion at the Palo Verde Nuclear Generating Station, and reques.ted that the three units be inunediately shut down until matters raised in the letter are resolved.

- The letter also stated that a special investigative team should be appointed to

= monitor and inspect conditions at the plant. The letter is being treated as a

. request for action (petition) under the NRC's regulations contained in section 2.206 of Title 10 of the Code of Federal Regulations (10 C.F.R. 5 2.206). By letter dated August 15,1991, Petitioners' request for emergency action to shut down Palo Verde Units 1,2, and 3 was denied, and receipt of the petition was acknowledt;cd.

II, ' DISCUSSION In the June 6,1991 letter, the Petitioners presented 10 concerns as bases for Petitioners

• request. Petitioners' concerns are summanzed as follows: a hydrogen leak in the main generator of Unit I could pose a fire hazard Fire pumps at the plant have alfunctioned and cannot pump water in the event of a fire. 'Ihe cooling towers are erunbling and am unsafe. The plants have -

been operating outside of safety regulations under " justifications for continued

- operation" The Arizona Public Servlee Company (Al'S, the Licensee) has not

. Identified the electrical circuit breakers for fire protection such that, in the event of a fire, it would not know what equipment could be damaged. h is rumored that Unit 2 has a primary-to-secondary leak of 2 gallons per minute. The Licensee has willfully operated Palo Verde in violation of unspecified licensing requirenrnts and willfully failed to report unspecified safety violations to the NRC th*ough licensee event reports, as required. The Licensee has never moved the p.Atable hydrogen recombiner from one unit to another, has_ no procedure te do so, and has no backup recombiner. The Licensee failed to correctly -

impicment a design change for the reactor control element drive mechanisms oa Unit 3. 'the Licensee has ergaged in widespread harassment and retaliation 134

g

~

- a h

- against employees who raise safety concerns.8 Additional details regarding the condition of the cooling towers were provided in a supplemental letter of January s4, 1992.

I will address each of these items below.

A.

Unit 1 Hydrogen Leak Petitioners allege the following:

A hydstgen leak in Palo Verde Unit I has been angoing since late IWO or early 1991.

His has created an extrernely dangt.rtws and volatile condition which could i., nite in a catastrwhic $rc. h is believed that APS has known or th% condi6m for at least sin mmths tut has ncs 6xed the problem. Moreover. APS had an wponunity to resolve the prole n during a planned ouLage earlier this year but failed to do so.

The NRC has no specific regulations regarding hydrogen leakage from the generator portion of the turbine generator, flowever, good fire protection practices would require that such fire and explosion hazards be miaimized.

Hydrogen leakage from generators is normal. and hydrogen does leak from the Unit I generau>r. The rate of hydrogen leakage has been as high as 4600 cubic feet per day (cfd). Contrary to the allegation, the Licensee performed extensive work during the ult 1 outage in February 1991 to reduct a hydrogen leakage to appmximately one-third (1300 cfd) of its former value. The leakage rate had increased to about 2000 cfd just prior to the unit shutck)wn for refueling in February D92. 'During this refueling, a modification is being made to the unit generator which is expected to reduce hydmgen leakage. 'Ihe generator area is well ventilated and has notices posted regarding the possible presence of hydrogen and a prohibition of smoking in the area. $gecific portions of the generator hydrogen seal oil system are vented outside of the turbine buildin, in an isolated area to minimize the fire hazard. Additionally. the License has procedures for monitoring the hydrogen concentration levels during plari operation. The levels of hydrogen detected 10 date are indicative of no significant L risk of fire.

A lxk of hydrogen purity in the generator is an explosion hazard. lYocedures at Palo Verde require that the hydrogen concentration in the main generator be maintained between 90 and 100% to ensure adequate cooling of the generator -

and to avoid a flammable mixture of hydrogen and exygen. 'lhe concentration

' I"Ilie NBC's office erinvestigations is invesdgating the inauer of arged intunidadon. Laras unent, and retaliation against anplop who rame sarcry concerns at Palo Vente in nnpeiue so a Pension of May 22.1994 rded under 30 C.FA 4 2.206 by Mr. Colapinio en nehalt er Ms tJnda Machea. As stated in the Duessor's Decision issued en October 31,1990 (DD 90-7. 32 NRC 273), this rnauer wiU be the subject of a seprate Duector's Domsim Therefore, this Decision will not adbess that anegann 135 i

pm,.

p is normally 97%, which is above the specified minimum 90% and well above a flammable limit of 75%. APS has not had a problem maintaining the generator hydmgen purity for Palo Verde.

Consequently, based on all of the above, there is no basis to conclude that the hydrogen leak in the Unit I generator is either a fire hazard or a substantial L

safety concern.

. B.

Fire Pump ReUability.

Petitioners allege the following:

h has been recently discovered that the plant's fire pumps malfunction due to a lack of -

adequate maintmance. Ahhough this equipment was upgraded to quality sugmented system in 1990 APS has failed to perform adequate QA and mutine maintenance. hus, in the event -

of a fire at the plant there cairts en unacccpable risk that the fire pumps would be unable to pump water no eatinguish a 6:e.

Palo Verde has three permanently installed 50% capacity fire pumps, one powerF by a motor and two po vered by diesels. The site's fire pumper truck is also a backup pump that the Licensee can connect to the fire main system to compensate for the extended loss of a single pump. The three-pump concept allows for one pump to fail becaut s two of the pumps will pmvide 100% capability. The NRC reviewed pump test data and found that the maintenLxe history for these pumps has _ varied annually. Since 1987, the Licensee has initiated four to twelve indivicual pump outages each year for corrective maintenance, The total numier of hours for corrective maintenance outages for all three pumps has varied from 624 to 2706 hours0.0313 days <br />0.752 hours <br />0.00447 weeks <br />0.00103 months <br /> each year since u

1987.

He Licensee also periodically tests the pumps in accordance with its NRC-approved fire protection program s hich requires monthly testing he pumps.

De Palo Verde fire insurer, American Nuclear Insurers, requires xkly pump

. tests. During both the weekly and monthly tests, individual pumps have failed to produce the required flow six times since 1988. This number of failures is a very small percentage of the :otal number of test starts over the period.

%c maintenance history of the pumps indicates th t th Licensee could give a higher priority to completing acquired maintenance. However, in its review, the_NRC did not identify any occasions when the Licensee failed to meet the -

NRC's requirement of 100% available capacity for the fire pumps. Therefore, _

the Petitioners have raised no substantial safety concern regarding the reliability of the plant's fire pumpe.

136

= -

y

~

s C.

Cooling Towers Petitioners allege the following:

De conting towers for all three Palo Verde units are crumbling and are unsafe, tn fact, a portion of one of the cooling tmwers for Unit I reccaly cdlarsed. APS has not prgesed a sdutian to this problem, and it is believed that APS plans to corainue to gerate Unit 1

. a full power even though a portion of its cooling tower is incapscitated. h is also beheved that APS has known for an extended period of time about the a ainesses in the cmcrcse material used to cmstrua the cooling towers bot has failed to correct these deficiencies.

The cooling towers at Palo Verde are not safety-related structures. If the cooling tower were incapacitated, this could result in Unit 1 operating less

' efficiently than possible, which would be an economic penalty to APS but.

not a safety problem. However, falling debris is a hazard to personnel, Two sections of louvers, which direct air and deflect cooling water back into the tower, deteriorated and fell from a Unit 1 cooling tower. The Licensec addressed this problem by restricting access to the area surrounding the cooling iowers with

. rope barriers for personnel safety..

The Licensee also found indications of concrete spalling caused by the.

corrosion of the reinforced steel within the precast concrete. APS is conducting an engh.cering evaluation to determine corrective measures for the :ooling tower deterioration. A schedule will follow when the corrective measures have been determined.

In summary, the cooling towers have no safety function and consequently there is no substantial nuclear safety c' ocern with their condition.

D. -Justifications for Continued Operation Petitioners allege the following:

In muncrous areas the NRC has permined APS to operate Palo Verde outside safety regulations tr/ accepting leuers of Justification for Continued Operation ('*JCO'). His is an unacceptable and highly dangerous practice. First, APS has na fuBy emunitted to pennanent solutions for these JCO's. Ibr example, APS has not proposed a permanent sdution for the JCO governing problems with its Reador Coolars Scals. Second, APS has been permitted to violate Tedmical Specifications and other licensing conditions for.

unreasonable and extensive periods of time and JCO's are not resolved in a timely fashion.

Wird, neither APS nor the NRC has conduced safety evaluations of these JCO's. Ibunh,

- there are no procedures governing the writing and cmtrol of JCO's. Fifth, given the sheer volume cf JCO's in effect it is bebeved that the operstors are not fully cognizant of operating cmditions.

Petitioners allege that the APS's use of JCOs has created an unacceptable and dangerous practice. Appendix B to 10 C.F.R. Part 50 requires APS to 137

f m

i n

establish measures to ensure that conditions adverse to quality, such as failures, malfunctons, deficiencies, deviations, defective material and equipment, and nonconformances are prompt!y identified and corrected. Ilowever, resolutkin of some of these issues roay take a considaable amourd of time to devekp design changes and prt.cedures and install hardware. APS prepares Justificadons i

for Continued Operation (JCOs) which document the manner in which it can continue to safel> operate the plant until it iesolves such deficiencies. JCOs are also prepamd in support of Temporary Waivers of Compliance (discussed in sect on 2, below).

i 1.

Reactor Coolant Pump Seals Ittitioners allege that APS has not propomt a permanent solutica for the JCO goverrung the reactor coolant pump scais. Neither APS nor NRC is aware of any JCO or reactor coolant pump seats. De JCO to which the Petitioners refer appears to be the JCO submitted to the NRC for the interlace betweer. the nuclear coolint, water system and the high-pressure seal cooler for the rcactor coolant pump (RCP). Tic rupturu of the high pressure seal cooler for the RCP was a postu'ated accider't that was not considered for Palo Verde. Ilowever, the Licensec aulyzed this scenario in response to the NRC's Information Notice 89-54,"fbtential Overpressurization of the Component Cooling Water System,"

of June 23,1989. APS has presented analyses demonstrating that tiu doses from such an accident are wc!! within the 10 C.F.R. Part IC/) guidelines but are subject to certsin sperating constraints. The NRC technical staff Ms reviewed this matter and has documented its approval in safety evaluadons of March 12, May 20, and October 9,1991, APS har committed to conect the design deficiency on Unit I during its refueling outage beginning February 1992.' APS -

will modify Units 2 and 3 during deir next refueling outages.

2.

Ylola !on of Technical Spec (fications petitioners allege that APS has been permitted to ' chte Nalcal specifi-cations and other license conditions for unmasonaMad ch-ac periods of tinw., De allegation appears to refer to NRC issiv c of Vmenary Walvers of Compliance (TWOC). A TWOC is issued upon raest ri.3 Justifications by a utility to the NWC and allows the utility to deviate Inx

• Its technical specifi-cations or other license condidons for a short time if the ueviat on will result in i

no significant barards or irreversible environrnental consequtuces, ne TWOC requires a written request from a utility which includes the following:

138 L

i pg

a. a discussion of the requirements for which a waiver is requested; b.

a discussion of the circumstances sunounding the situation, including the need for prunpt action and a description of the reasons that the situation could no' have been avoided;

c. a discussion of any compensatory actions; d.

an evaluation of the safety significance and consequences of the proposed request; e.

A discussion that justifies the duration of the request; f.

the basis for the licensec's conclusion that the request does not lavolve a significant harards consideration; and g.

the lusis for the licensee's conclusion diat the request does not involve irreversible environmental consequences.

Such requests are reviewed by the NRC and approved in wridng. "Ihe NRC will not act on a utility's request until the Licensee has confirmed that de action has been reviewed and approved by de Plant Operations Review Commit *c (IORC) or its equivalent and tie NRC is clearly satisfied that issuance o, a TWOC is consistent with protecung the pablic hea,th and safety.

'Ihe NRC issues a TWOC e allow a utility a short p:riod of time tcyond that t

allowed by technical specifica;lons to fin ecuipment without requiring a plant shutdown or prevendng startup. In many cases, shutting down the plant would

- involve more risk than allowing a short period of time to fix equipment Sqfety Eseluat on of JCOs, Timeliness of Resolution, and Procedures 3.

i for Writing and Control of JCOs Petitiorers allege that reither APS not the NRC conducu safety evaluations of JCOs, APS does not resolve JCOs in a timely fashion, and APS has no procedures governing the writing and control of JCOs. ' APS has a procedure that establishes the process for pre [uring, reviewing, and approving JCOs. Licensing Department personnel prepare JCOs for Palo Verde. *lhe JCOs are reviewed by the affected plant managers, managers of departments providing technical support, and the Nuclear Safety Group, and are appmved by de Plant Review Board. The JCOs are made available to the NRC upon request. NRC can and has reviewed de Licensec's JCOs. In some cases, this review lias resulted in changes in some of the JCOs.

Petidoners allege that operators are not fully cognizant of operating ;onditions because the JCOs do not require them to be. When a JCO requires compensatory

. $casures, APS provides instructions to address the specific condition by revising rg>ropriate Palo Verde pncedures stich as those for operating, maintenance, and surveillance testing. Operations personnel are also briefed.imt Om deficient condition.- AP" has instructions for initiating and processing JCOs, 139

i I

and operators know of the JCOs te:ause they are datributed to the conuel room arx1 are Lept in marked binders.

The c.mc needed to resolve the issues dtscussed in a JCO might involve design changes, revised procedures, or hardwarc changes. Resolution timc varies depending on such matten. %c JCO that has been active for the longest period was approved in July 1990 to justify iriterim operation while APS tw uer defined and implemented the requirements in the quality assurance program for fire pro".cction and related systems. De time required is not unreasonable considering the work that ne(ded to t,r dore.

Ittitioners do not identify any issue egarding writing, controlling, evaluating, or using JCOs that raises a substantial safety concern.

E.

Appendix R Electrical Circuit Dreakers Petitioners allege the following:

Al's has run idersifeed amt cawJanated Artemia R ineakers thsoughmt the udts. hs, in the ewes of a f.se APS would ext know what pic<cs d equipmers waid t= lost.

%e Licensee has studied circuits for fire potection, spurious actuations, and breaker coordination to ensure that the plant can be shut del safely in the event of a fire, in March 1985, the NRC inspected the Licensec's analyses icx associa:cd circuits and fuse and breaker coordin.ition and found thctn ecceptable (Inspection Report 50-528/85-05).

Technical Specification 333.5 lists the electrical equipment, including switches, breakers, and circuits, needed to shut down tic plant safely in the event of a fire or any cther event that requires the operators to leave the control mom. De Palo Verde pre-fire strategies manual lists equipment that would le unavailable or could malfunction during a fire. His manttal also lists the equipment or set of components that the Licensec would use to achieve safe shutdown (safe shutdown train B). The NRC has reviewed the Licensce's safe shutdown analysis methodology and spurio:ts actuation analyses and accepted them (Supplemental Safety Evaluation Report: 5 and 7, of November 1985 and December 1984, respectivelA Contrary to the allegation, APS has identified tle equipment affected by a postulated fire and evaluated the methods to be used to achieve safe shutdown.

%erefore, the NRC finds no reason ta conclucie that Petitioners have raised a substantial safety concern with regud to Appendix R clectrical circuit breakers.

140

r t

I F.

Ruu.s of a Primary to-Secondary Leak Petitioners allege the following:

h has teen rumored that APS has eigenen<td a grimary to secundary teak our 2 rawn in Unit 2 tut has faned to progedy ex4ify the NRC cr shut down the unis tf this is uue, then the seconjary systern in Una 2 has been cantarninated with radiadan.

The Palo Verde technical specif.W*ts state that leakap from tic reactor coolant system shall te limi/ed to a rate of I gallon per minute (gpm) of total primary to-secondary leakage through all steam generattrs. and of 720 gallons per day through any one steam generator. *Ihe Palo Verde tedmical specifications also require the plant to be shut down if the rate of primary-to-secondary leakage exceeds the technical specification limit.141o Venic has detection equipment installed in each unit that would alert operators to prir'. ry.

to-secondary leakage. *lhis system enables the Licensee to cetect leakage on the order of hundredths of a gallon per minute. 'ihe Licensee can also detect primary-to secondary leakage by conducting radiochemical analyses of the secondary system, which tie technical specifications require to be performed

- at least orce every 3 days. The NRC hts examir.ed plant data from Palo Verd:

Unit 2 and could not verify the rumored primary.lo-secondary leakage.

'the rumor may have arisen because of coolant from the Palo Verde Unit 2 primary system vehich leaked at a rate of approximately 2.9 gpm to collection systems. Il9 wever, this coolant did not leak to the secondary system. Palo Verde has technical specificauon limits on the primary system leakage of 10.0 gpm on identified primary system leakage and 1.0 gpm on unidentified leakage (TS 3 A.5.2). APS found 2.8 gpm of the 2.9 gpm leakage resulted from a leaking thermal relief valve for the seal injection heat exchanger of the reactor coolant pump. During an outage in August 1991 APS replaced this valve and reduced

, the primary system leakage substantially.

'Ihe Petitioners stated that the secondary side of Unit 2 could become contaminated in the event of primary-to-recondary leakage. *Ihis would be true for any pressurized water scactor (PWR) experiencing primary to-secondary leakage. Ilowever, Unit 2 did not have a 2 gpm primary-to-secondary leak, but had only a leak to collection systems, and was within limits. Although such contamination would represent an operational inconvenicice, it does not present a significant safety concern. Consequently, there is no reason to conclude that Petitioners have raised a substantial safety concern.

141 I.

---

_m,m--,_--._-

-- - - " ' - - ~ - - - ~ - - - '

^ ' " ' - '

G.

Willful Violations of Safety Requirements and Willful railure in Report Safety Violations to the NRC Petitioners allege the following:

APS has covered up and knowingly failed to repnt safety vMariam to the NP.C via Licensee Evers Repcsts (Ll'Rs") Al"i has Lnomingly and willfuHy werated Palo Wrde while not in cunpliance with iu bcensing requiremera.

Petitioners must " set forth the 4ts titat constitute the tosis" for their request l

according to 10 C.F.R. l 2.206(a), llowever, the Petitioners have made a general allegation and provided no facts to supratt it. Moreover, NRC maintains resid:nt inspcctors at Palo Verde, who monitor the Licensee's operations to ensure that the facility operates ht conica mance with its technkal specifications and licendng requirements. De NRC knows 6f no instance in which APS has covered up safety violations or willfully violated the Palo Verde ticcasing requirements.

Accordingly, the NRC has no basis to conclude that Petitioners have raised a substantial safety concern.

II, Portable Ilydrogen Recombiner

- Petitiorers allege the following:

Ahhough APS commlued to te stde to move he hydrogen recumbiner frran orm unit to enasher in a 72 hout period,it has never dme so and has no procedure to mein h. Marcat, APS does aca have a back up hydrogen recombiner (ahhough it connninc4 to have one).

For a multi unit site, the NRC requires only one set of recombiners.' Palo Verde has a redundant set consisting of two recombiners instelled in Un:t 1. He NRC has no requirement to move the recombiners periodically and allows the recombiners to reside at one unit, llowever, the NRC reviewed and approved a plant-specific analysis in which the Licensee commitied to be able to move the

. recombiners to one'of the othet units within 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> if accident conditions require it.. %e Licensee also has procedures by which to disconnect and arconnect the recombiners. De Licensee has demonstrated through a mockup of the recombiners that the recombiners for Unit I could be moved to Units 2 and 3 within 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br />. The Licensee found that a lighting panel interfered with its ability to move the secombiner from Unit 1. De Licensec has since removed

' the intctfering lighting panel. Palo Verde meets its licensing requirements for recombiners.

He NRC finds no reason to conclude that there is a substantial safety concern related to the hydrogen recombiners.

112.

n

~

-- -~

I.

Implementatiun of Control Element Assembly Design Change Ittitioners allege the following:

APS failed to prtperly implemern its Iksign Change Padage CDCP s for Cesarti 13cmers Diive Med miams CCEDM's") in (bit 3 (RCl3 #039846), 'Ihis DCP wee designed r

incorrectly resulting in pulling the wrong grtup of rods d.aring testing. Ilom v, rather than restdvs this prthlem APS removed the DCP in order to restart Urdt 3 without c<snmittirig to permancas resolution. It is n'Jeged that the C1.DM petadern is a gmeric one at Palo Verde.

= During the Unit 3 refueling outage in March and April 1991, the Licensec

, performed substantial work on the control system for the control element drive mechanisms. His work included reversing the polarity of the current to the lower gripper coil on all control c!cment assemblies (CEAs). %c Licensee also removed and realigned all CEA timing cards, overhauled power supplies, modified the ground fault detector, calibrated the undervoltage relays, and tested individual CEA circuit treakers with some replacements. In performing this wort. APS caused a large number of expected problems with rod control during

- initial CEA testing and obtained preliminary timing settings that could be refmed only during testing. A few timing utrds had not been: properly seated and some failed and had to be replaced. %c Licensee anticipated and corrected these problems before startup. During the tests, some CEAs did not move when called upon to move and some slipped whe:i called upon to move, as alleged.

De Licensee corrected each of these anomalies.

During and aftet startup, all CEAs moved as called upon by the control switches. A position hJication anomaly occurred after startup during low.

power physics testing. The Licensee performed troubleshooting and found that the problem resuhed from the recent work that it had performed to reverse the polarity of the CEA lower gripper coil. De Licensee restored the CEA coil wiring to the configuration used successfully during the last operating cycle, ne vendor, Combustion Engineering, Incorporated, concurred with this decision.

After restoring the coil polarity to the previcus state, he Licensec tested all-CEAs again and found that CEA control and position indication were normal,

' Accordingly, the NRC fmds no basis in fact to conclude that there is a substantial safety concern regarding the control element drivo mechanisms.

III. CONCLUdION t

Petitioners requested an immediate shutdown of the Palo Verde Generating Stadon and appointment of an investigative team to inspect and monitor oper-titions at Palo Verde. 30 institution of procec#.n ;s in response to a request for action under 10 C.F.R. 52.206 is appropriv.o only when substantial health 143 1:

I '

9'

]

l i

and safety issues have been raised. See Consolidated Edison Co. of New York (Indian Ibint. Units 1,2, and 3), CLi 75-8,2 NRC 173,176 (1975), and trash.

\\

ington Public Pcer Supply System (WPPSS Nuclear Pro)cct No 2), DD-64 7, 19 NRC 899,923 (1984). I have applied this standard to determine if any action 15 warranted in response to safety allegations in the request. The NRC Staff and resident inspectors at Palo Verde investigated thoroughly the Petitkmess' alle-gations. All available information is sufficient to conclut that no sutstantial safety issue has teen raised regarding safe operation of Palo Verde. Therefore, I conclude that, for the reasons discussed above, no basis exists for taking the ac.

Lions requested by the Petitioners. Ittitioners' requests for immediate shutdown of the Palo Verde Nuclear Generating Stathn and for an investigative team to inspect and monitor Palo Verde are denied.

A copy of this Decision will be filed with the Secretary of the Commission for the Commission to review in accordance with 10 C.F.R. 62.206(c). As provided by this regulation, this Decision will constitute the final action of the Ccenmission 25 days after issuance, unless the Commission, on its own motion, institutes a review of the decision within thei time.

FOR TIIE NUCLEAR REOULA*IDRY COMMISSION Thomas E. Murley, Diutor.

Office of Nuclear Reactor Regulation Dat::d at liockvitte, Maryland,'

. this 16th day of March 1992.

t i

l 144 o

n

.n.

,,., - - -